The URL can be used to link to this page

Home My WebLink About2020-1208_ PC Regular Meeting Minutes Draft1 ` KAUA‘I PLANNING COMMISSION REGULAR MEETING December 08, 2020 The regular meeting of the Planning Commission of the County of Kaua‘i was called to order by Chair Glenda Nogami Streufert at 9:08 a.m., - Microsoft Teams Audio +1 469-848-0234, Conference ID: 258 180 577# The following Commissioners were present: Ms. Glenda Nogami Streufert Ms. Donna Apisa Mr. Melvin Chiba Ms. Helen Cox Mr. Francis DeGracia Mr. Roy Ho 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, and Planning Commission Secretary Leslie Takasaki; Office of the County Attorney – Deputy County Attorney Teresa Tumbaga; Office of Boards and Commissions – Administrator Ellen Ching, Support Clerk Arleen Kuwamura Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Nogami Streufert: Called the meeting to order at 9:08 a.m. ROLL CALL Chair Nogami Streufert: Are we ready to start? Could we have the roll call? Planning Director Mr. Kaaina Hull: Roll call, Madame Chair. Commissioner Apisa? Ms. Apisa: Here. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Cox: Here. 2 Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Ho? Mr. Ho: Here. Mr. Hull: Commissioner Otsuka? Commissioner Otsuka? Sorry. You are muted. I think she is muted, but we will note that she is present at the meeting. Mr. Hull: Chair Streufert. Chair Nogami Streufert: Here. Mr. Hull: You have a quorum, Madame Chair. Seven present. APPROVAL OF AGENDA Mr. Hull: Next is will be the pool Agenda. The Department has no recommended changes for the Agenda. Chair Nogami Streufert: I need a motion to approve the agenda as presented. Mr DeGracia: I move to approve the Agenda as presented. Mr. Ho: Second. Chair Nogami Streufert: It's been moved and seconded approve the Agenda as presented. Any discussions? If not, we will do just a voice call on this. All in favor? Aye (Unanimous voice vote) All those who disapprove? Agenda stands. Motion carried. 7:0. Mr. Hull: Motion carries. MINUTES of the meeting(s) of the Planning Commission Mr. Hull: There are no minutes from the previous Commission. 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: Moving onto Hearings and Public Comment. At this time those that have called in here for the agenda, please mute your phones, unless you are in - or mute your tele video systems unless you are speaking. If you are unable to do that, when we have a lot of interference, we will 3 mute every single participant. So, just be aware - you may have been automatically muted. When you intend to speak, you need to unmute yourself at on the teams link, or the - on your phone itself. Going into the Public Hearing and Comments, I will be calling on all of the phone numbers that are listed as calling in. If you are an applicant, the public testimony is not your time to speak. If you are an applicant or a petitioner - I should say. At this time, we will be calling for anybody that wants to speak on any agenda item. So, I’ll call a few of the phone numbers. If you intend to speak, you do have three minutes. Area code 808-364-9916, would you like to testify on any agenda item? If so, please speak now. Woman: No. Mr. Hull: Okay. Thank you. Area code 949-270-3503, would you like to testify on any of the agenda items at this time? Hearing none. Area code 808-639-3093, would you like to testify on any agenda item at this time? Seeing none. Area code 808-652-7891, would you like to testify on any agenda item at this time? Woman 1: No. Thank you. Mr. Hull: Area code 808-634-0811, would you like to testify on any agenda item at this time? Woman 2: No. Mr. Hull: Thank you. Area code 949-887-3901, would you like to testify on any agenda item at this time? Man: No. Mr. Hull: Thank you. Area code 808-282-5710, would you like to testify on any agenda item at this time? Man 1: No. Thank you. Mr. Hull: Thank you. Area code 250-423-6741, would you like to testify on any agenda item at this time? Man 2: No. Mr. Hull: Area code 970-759-1199, would you like to testify on any agenda item at this time? Man 3: No. Thank you. Mr. Hull: Thank you. In case I have missed anyone that has called in, is there anyone that has called in that would like to testify as a member of the public on any agenda at this time. I will hold for five seconds. Hearing none, Madame Chair. 4 New Agency Hearing Amendment to Special Management Area Use Permit SMA(U)-88-1 and Class IV Zoning Permit Z-IV-8810 to allow construction involving two (2) additional resort units for the existing resort facility on a parcel situated on the makai side of Po’ipu Road, further identified as the Grand Hyatt Kaua’I Resort & Spa, 1571 Po’ipu Road, Tax Map Key: (4) 2-9-001:002, and containing a total area of 39.725 acres= Kawiloa Development, LLC. [Director’s Report received by Commission Clerk 11/24/20.] Mr. Hull: We can move on to the next agenda item, which is New Agency Hearing. We will be holding the agency hearing and the review and discussion with the applicant in tandem. First for Agency Hearing - amendment to special management (inaudible) permit - SMA, 88-1 and classified zoning permit, Z4, 88-10 to allow construction involving two additional resort units for the existing resort facility on a parcel situated on Makai side of Poipu Road. Further unidentified as the Grand Hyatt Kauai Resort and Spa. Address - 1571 Poipu Road and Tax Map Key: 2-9- 001:002 and containing a total area of 39.7725 acres. The applicant is Kawailoa Development, LLC. Is there any member of the public that has called in that would like to testify on this specific - specific agency hearing at this time? I will hold for five seconds. Hearing none, Madame Chair, I can say we did already receive one letter from Greg Peterson, in support of the petition. The Department would recommend closing the agency hearing. Chair Nogami Streufert: Do I have a motion to close the agency hearing, please. Mr. Ho: I move to close the agency hearing. Mr. DeGracia: Second. Chair Nogami Streufert: It has been moved and seconded to close the Agency Hearing. Is there any discussion? So, a voice will go on this one. All those in favor of closing the Agency Hearing on Kawailoa? (Unanimous voice vote) Any opposed? (None) Agency Hearing is closed. Motion carried 7:0. Chair Streufert announced that the Agency Hearing in closed Mr. Hull: Agency hearing is closed. We will move directly into the review so I will turn this over to Dale for the Director’s Report. Staff Planner Dale Cua: Good morning, Madame Chair and members of the Planning Commission. Chair Nogami Streufert: Good morning. Mr. Cua: Due to the agenda we have today, my presentation will be very brief to accommodate the time, and if at any time, you have any questions regarding any of the projects that I will be 5 presenting today. I can definitely elaborate for you. So, this first one is consideration of applicant proposal involving an amendment to estimate use permit in class 4 zoning permit to allow renovations to the existing facility that would add two additional hotel resort units. 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: Poipu Road is a county road with an 80 feet wide right-of-way. It is capable of accommodating two-way vehicular traffic. The existing land use permits affecting the project site identified in the report, and at this time, this concludes the Departments and Directors report for you. Chair Nogami Streufert: Are there any questions from the Commissioners to the Planner? Mr. Ho: Yes, Dale - is there - is there something else in the report about (inaudible) dedication of a park? Mr. Cua: That was one of their previous obligations in approving the resort facility. Since that time, the dedication been completed. Mr. Ho: Thank you. Chair Nogami Streufert: Any other questions if not, Dale, If not, can you tell us a little bit about the employee-parking situation there? Mr. Cua: The current employee parking area? Chair Nogami Streufert: Yes, please. Mr. Cua: Yeah. There is a dedicated area within the site. It is located in the northwestern corner of the property, directly abutting an access off Poipu Road. The employee parking area is - I do not know the exact number of parking stalls that is currently available in that specific location. Back in - let me see - back in around 2008, there was a proposal to provide a structure over the parking area, and the primary intent of the - of that parking structure - or that structure over the parking area was to accommodate solar panels. I think - I noted in the Directors Report back in 2007, in order to accommodate this construction for this parking structure over this area, a temporary parking area approved for a site offsite. Actually, off the street on the mauka side of Poipu Road, and immediately adjacent to the golf course. The area was roughly about - a little over an acre, and that parking area ceased when the construction work was completed. Mr. Ho: So, it is not— Mr. Hull: I can also add - sorry. 6 Ms. Streufert: Go ahead, Kaaina. Mr. Hull: I was just going to add also, Madame Chair, that - you know - there are - I think there’s some notes of having some parking issues for some or many of the hotel resorts in Poipu. I can say that this particular operation has been meeting with the Department over the past several months because they do have a petition to look at expanding their parking availability. And so, we’d intended and - and I think it’d be - you know - best if we could’ve gotten both applications together, but we’re still working with them on their parking operation proposal to get it up to par. And so, I do have a meeting with the Developer, actually, this Friday to further discuss consultation for that permit application, but he’s going to anticipate a - a parking probably in the next month or two. Chair Nogami Streufert: Okay. Any other questions from the Commissioners for the Planner? Woman 3: Yes. Hello? Chair Nogami Streufert: Yes? Who is this? Women 3: Yes. I just joined in. Chair Nogami Streufert: I am sorry. Mr. Hull: Oh. Sorry. Madame, can - did you intend to testify on the Kawailoa or Grand Hyatt application? Woman 3: I am sorry. Is this Opelo Street? Chair Nogami Streufert: Oh. Not yet. That will... Mr. Hull: That— Woman 3: Okay. I am going to be quiet, then. Thank you. Mr. Hull: Thank you. Chair Nogami Streufert: If there are no other questions from the Commissioners to the Planner is there someone representing Kawailoa available? Ms. Rebecca Candilisa: Yes. Hi. Good morning. Director Hull and Commissioners. My name is Rebecca Candilasa, Wilson Okamoto Corporation. I’m here today as an authorized agent presenting on behalf of the applicant, Kawailoa Development, who will join with me on the call along with the architect, WATG. On behalf of all of us, we thank you for hearing our request today. At this time, I will be sharing my screen for a short presentation. Since Dale went over a lot of the subject matter, I will somewhat just breeze through it and really, try to show you visually, where the improvements would be located. So, let me share my screen now. 7 Chair Nogami Streufert: Okay. Ms. Candilasa: Okay. Let me know if you can see. Mr. Cua: Yep. I can. Ms. Candilasa: Okay. Excellent. I am going to provide just general info - some background. Then, go into the project description, purpose and need, and potential impacts for the projects. So, as we know, the project’s located, uh, in the Poipu Resort area. The area designated as urban, within the County’s Resort District, and the General Plan designation for the property is resort. It is located at 1571 Poipu Road. As Dale mentioned, the resort received approval for SMA use permit, shoreline set back variance and class 4 zoning permit in 1987. It was then constructed a few years later in 1991, pursuant to those permits. Today, the resort consists of 605 hotel rooms, a spa, and other amenities, including lagoons, pools, ballrooms, restaurants and retail, among other things. The proposed project is to renovate a portion of the Poipu guestroom wing. It would add two new hotel guest rooms to an existing third floor terrace. If we refer to the photo that shown, this photo was taken at ground level, and you can see outlined in red the area where the rooms - the two rooms would be located. So, this is the outdoor terrace right here, um, and it would be the third floor. Then, this building height, and the one behind it, goes up to a fourth floor story. Um, because it is taken at ground level, it looks like it takes up everything, but, um, it has - it is only the - the third floor. So, the project site would consist of approximately 2,17 67 square feet within the existing footprint of the building, and it would increase the room count from 605 hotel rooms to 607 hotel rooms. The estimated cost of construction is approximately $1.5 million and anticipated to take approximately six to seven months to construct. On the next slide, you will see a site plan of where the project site is in relation to the rest of the resort. It is located in the existing Poipu guest room wing, which is on the west - western end of the resort. The project site is set back from the shoreline area and would not affect the existing pedestrian easement located along the shoreline, which is right here at the bottom. Zooming in, we see an aerial view of the project site and the location of the existing terrace. Again, it shows that the project would sit within the footprint of the existing structure. Also shown is the existing staircase and the corridor. It is an enclosed corridor. That would provide access to the two rooms. On the next slide, we show elevations and sections of the proposed project. Each room would offer ocean views and would be about 1,011 square feet in size. There would also be a lanai area of 145 square feet. Again, here in this photo, we see the existing staircase and the corridor that would provide access to the rooms. All exterior paint and finishes would be selected to match that of the surrounding buildings and would be in line with the character of the area. So, the purpose of this project is really to expand the range and the quality of the amenities at the hotel and doing so in a way that would minimize the impacts of development and the SMA, while also 8 preserving the coastline for the enjoyment of guests and the community at large. By implementing the projects, we would be able to create construction and construction support jobs in the short term and in the long-term, implementation of the project would allow Hyatt Kauai to remain competitive in hospitality and tourism industry. Potential impacts - temporary construction related impacts, such as (unintelligible) dust and noise would be mitigated through implementation of BMPs and adherence to state and county rules and regulations. We had discussed the parking issues. As mentioned, there is a separate action by the applicant that will accommodate overflow parking in compliance with the Conditions of earlier permits for the property, and to adjust community concerns related to parking. Therefore, no additional parking spaces are anticipated to be required for this particular project. Um, the project remains within the existing footprint of the existing developments, and within the overall massing of the building. Therefore, there would be no impacts on views, um, to or from the coast or from surrounding properties, and given the scale and the scope of the improvements, there’d be no significant short or long-term impacts anticipated as a result of the proposed projects. Again, we thank you for hearing our, um, request, and we open it up for any questions. Ms. Streufert: Are there any questions from the Commissioners to the representative from Kawailoa? There was one of the original Conditions - number 15, I think - was a management- training program that was to be presented to people. Was that - was that ever done? Was it ever completed? Ms. Candilasa: I also have on mute, a representative from Kawailoa and the architect. If it is okay, I would like to defer that question to the representative from Kawailoa. Is that - I believe Robert. Robert, are you on the call to answer that question? Sorry. I am not sure if he is on the call, but that is something I would have to check back with - if - if we could give you an answer after this or if it were pertinent to the decision at hand, then, we would love to get a response for you. Chair Nogami Streufert: Well no it is not pertinent to this particular one, but it was part of the original, Conditions. So, I was just wondering about what the status of that was. Ms. Candilasa: I would love to get a response and send it to you, uh, off the - offline. Ms. Streufert: That would be great. Thank you. Ms. Candilasa: Okay. Thanks. Ms. Streufert: If there are no other questions for - is - is there anyone from the public who would like to speak on this? Mr. Ho: Madame Chair? 9 Chair Nogami Streufert: Yes? Mr. Ho: Madame Chair, please, could Rebecca be made aware that there is an opening and closing date on construction for this? That you would decide within two years, and to have substantial progress made. Is that one of the Conditions that - condition 22 - that if - that if - if you are given approval today, that you have two years to commence your project. Ms. Candilasa: Okay, I am sorry. This is Condition 22, you said. Okay. Is that related to the 2020 project amendment Conditions? Or is that related to - I guess this question is for Dale or the Planning Department. Or is that related to the previous approval? Mr. Cua: Actually, this Condition is applicable to all SMA permit projects— Ms. Candilasa: Okay. Mr. Cua: Since - you know, it is an amendment to the project the Condition would be applicable. So, just to give you a heads up that— Ms. Candilasa: Okay. Mr. Cua: You know any new development would be subject to this particular requirement. Ms. Candilasa: Okay. Thank you. Thank you for making us aware of that requirement, and we will comply. Mr. Ho: Thank you. Ms. Cox: I do have a question. This is Helen, Chair. Now, I am wondering - so, how many people - now, I know these are two rooms, but how many - maximum number of people could actually occupy these rooms? I mean, could a whole family go in each of these rooms? Ms. Candilasa: I think, given the size its 1,000 square feet. That’s (inaudible)— Ms. Cox: Yeah. Ms. Candilasa: (Inaudible) of my parents’ townhouse. Ms. Cox: Right. That is what I was thinking. Ms. Candilasa: Right. Yeah. I think it is pretty significant. We have not nailed down the exact design details as to how - how many guest rooms - or rooms that would fit inside. I am not sure on the exact number of people that would fit in each room, but I would imagine that it would be a - a larger family or somebody who would paying extra money to stay in that room. It has, you know - given the size, I think it has - it is geared towards - you know higher paying - a higher price point, or for a larger family. 10 Ms. Cox: You know, Chair, I - this is a concern for me only because we have seen some, pushing, of this. I mean, I do not expect the Hyatt to do this, but I am wondering if we should - there shouldn’t be some sort of maximum number, just because down the line, if they haven’t designed yet, what if they design it so that you know, 30 people can be each room? Then, that’s very different than saying they’re two hotel rooms, and I suspect the Hyatt is not planning to do something like that, but I’m just wondering is good practice if we should actually be putting some sort of limit - or ask to know how many down the line or something because we have seen abuses in this area. Chair Nogami Streufert: Kaaina, is there or could you respond to this? Dale? Mr. Cua: Yeah. Occupancy (inaudible) are generally regulated by building code. So, you know, that would determine how a maximum occupancy in any particular environment, and oftentimes, many public rooms have information in terms of it being posted with regards to the maximum number of occupancy a particular room can hold. So it is something that— Ms. Cox: But this is a hotel room you know, it would not be posted - you know - maximum - we would not know the maximum occupancy. Mr. Cua: Right. Mr. Ho: (Inaudible). I would think that the Board of Health might weigh in on this, too - could limit the number of people that could be with the facilities available for sanitation and - you know - so forth. Mr. Hull: And I will just add too, that yeah both what Dale mentioned in as far as the building codes regulate maximum occupancy and if it is not - it cannot be because a room this size, it is not going to be over you know, 15 or 20 people. It is going to be limited, just by building code requirements. I do not know the specifics. Again, I will also say with general - generally, hotel operations will also limit the amount of people that can go into the room just by the reservation itself. As a parent of one, I have tried to - just tried to get my son not charged to go into a room, but they - they do assess those often. But if you would like - because I don’t know where the Kawailoa representative is - it’s unfortunate he’s not on this call – but Commissioner Cox, if you’d like to get specific information concerning that, then a deferral would be in order - or could be in order. Ms. Cox: Yes. That is a tough one for me, because I mean, as I say, I suspect its fine, but I feel like this is an oversight that we do not know. Chair Nogami Streufert: Maybe— Ms. Cox: I wish the Kawailoa person was on the line, so that we could get - because I hate to defer it - you know - if we don’t have to, but, um— 11 Ms. Candilasa: Would it— Ms. Cox: I do I wish we had some more information. Ms. Candilasa: Would it be possible to see if, maybe the architect might have more insight as, you know - designing hotels and on this project, as well? Steven, are you able to respond to that? Mr. Steven Ogden: Ah, yes. Hi. My name is Steven Ogden. I am with WTG, here in Honolulu, and we are the architects for Kawailoa Development that is looking to add the two suites here at the Grand Hyatt Kauai. These - we are designing for two suites, and they are one-bedroom suites. So, the intent is to not have a large occupants within these rooms, and (unintelligible) some of the suites that we’ve worked in the past, they’re - they’r e, um - for instance, like a one- bedroom suite would be for a couple or a family of four or three or four at the max. So, that’s the intent of these rooms and what the occupancy is, and we are pretty certain that the management and the operators will try and limit them - the occupancy within these two rooms. Chair Struefert: Were there any other questions? Thank you. There was no one Kaaina, there was no one from the public wanting to speak on this. Is that correct? Mr. Hull: No. The agency hearing was closed. Chair Nogami Streufert: Okay. Mr. Hull: And I will note that again, one letter in support that came in was accepted for the record. Chair Nogami Streufert: All right. Hearing no other questions, I will entertain a motion to accept or deny the application. Ms. Apisa: I make a motion to approve a special management area use permit SMAU 88-1 in Class IV, Zoning permit Z-IV- 88 10, to allow construction, involving two additional resort units for the existing resort facility. Mr. Ho: Second. Chair Nogami Streufert: It has been moved and seconded. Approved. Kawailoa Development, LLC, Special Management Area Use, SMAU 88-1, Class IV Zoning Permit Z-IV-88-10. All right. Is there any further discussion? Mr. Hull: Just for clarification, so to state, Madame Chair, for Commissioner Apisa, in that recommendation, was your intent to approve as recommended by the Department. Ms. Apisa: Yes. As recommended by the Department. Thank you for clarifying. Mr. Hull: Thank you. 12 Chair Nogami Streufert: If there is no other questions or no discussion, I think we are ready for a roll call vote, please. Mr. Hull: Roll call, Madame Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0. Madame Chair. Special Management Area Use Permit SMA (U)-2021-3 to allow construction of a multi- use path (bicycle & pedestrian) extending from Ahukini point to the existing path at the northern section of Lydgate park and associated improvements affecting several parcels along the makai side of Kuhio Highway for a distance of approx.. 607miles, further identified as Tax Map Keys: (4) 3-7-001:008, 159 ;( 4) 3-7-002:001, 002: (4) 3-7-003:001, 017; (4) 3-9-002:004,032; (4) 3-7-005:001-003,009, and affecting a portion of several parcels containing a total area of 1,572.883 acres = County of Kauai, Department of Public Works. Mr. Hull: Motion passes, Madame Chair. Next, we are moving on to (inaudible) hearing for special management area use - permit SMAU 2021-4, for oh. Excuse me. I skipped one. Special management area use permit, SMAU 2021-3, to allow construction of a multi-use path - bicycle and pedestrian, extended - extending from Ahukini Point to the existing path at the northern section of Lydgate Park and associated improvements affecting several parcels along the Makai side of Kuhio Highway for a distance of approximately 6.7 miles, further identified as tax map 13 keys 3-7-001:008, 159, 3-7-002:001, 002, 3-7-003,001, 017, and 3-9-002:004, 032, and 3-7- 005:001 – 003, 009, and affecting a portion of several parcels containing a total area of 1,572.883 acres. The applicant is the County of Kauai Department of Public Works. This is the Agency Hearing portion of the Agenda. So, is there any member of the public that has called in that would like to testify on this agenda item? I will hold for five seconds. Please speak now. Hearing none, Madame Chair, I will also note for the record that the Department has received and transmitted to the Commission, one letter from Tommy Noyes of Kauai Path dated 12-7-20 concerning this petition, as well as a letter from Pat Griffin also on the same date concerning this petition. Without hearing any further comment, the Department will recommend closing the agency hearing. Chair Nogami Streufert: Could we have a motion to close the agency hearing, please? Mr. DeGracia: I move to close the agency. Ms. Cox: Second. Chair Nogami Streufert: Moved and seconded. Close the Agency Hearing. All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carried 7:0. The Agency Hearing is closed. Chair Streufert announced Agency Hearing Closed Mr. Hull: Moving on to the actual review of this project, I will turn it over to Dale, again. He - Dale is pinch hitting for Romeo, so he has pretty much the entire show today. Dale, if you want to take over the reports (inaudible). Staff Planner Dale Cua: Okay. Thank you. What you have before you is Special Management Area Use Permit, SMAU 2021-3, the proposal involves the construction of a multi-use path that extends from Ahukini Point to the existing path at the northern section of Lydgate Park. The associated improvements with the project includes new comfort stations and improvements to parking areas, as well existing bridges along the way. 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 details of the project is described in the report and is further illustrated in the applicant’s application. The details of the project is described in section three of the application. Let me see. Like many of the projects that I will be presenting - and in order to save time, I will be, doing brief presentations, but for this particular project, as well as others. There are various standards that apply to this project. They include the special management area objectives as well as the CZO development standards which are identified in the Director’s Report. It should be noted that the applicant has obtained a Finding of no significant impact that was signed and the 14 Final Environmental Assessment was included with this application. That pretty much concludes the Director’s Report at this time. Chair Nogami Streufert: All right. (Inaudible). I have one question. Once we - if we were to approve this, we have committed ourselves - or we have committed the County to have a path that goes very close to the airport. It will essentially go right next to the airport - or the airport runways. Has DOT been informed of this? Or has DOT been involved in the discussions for security reasons at this point? I realize that this does not - since this goes from Ahukini Point on, it really does not affect the airport right now. But once we start this at Ahukini Point, we are committed - I think - to having it go past very close to the airport. That seems to me to be a potential security issue that we might want to address before we get to this point. Mr. Cua: Yes. Mr. Hull: Yeah, Madame Chair, I think when - once you guys are done with discussions with Dale and the Department, when we move into the applicant’s presentation, that’d be - I think - Doug or Jared may have a response for you. Chair Nogami Streufert: Were there any other - are there any other questions for the planner? Or for the Planning Department from the Commissioners? If not, could we hear from the representative? Mr. Doug Haigh: Is it appropriate for me to respond at this time? Mr. Hull: Well, Doug, if you want to respond and/or if you folks had a presentation for the Commission. Mr. Haigh: Okay. We do have a presentation, but the particular question is more pertaining to the next phase of the project and our consultant has not been involved in that, but I have been involved in it. I could probably address it now, if you want. Chair Nogami Streufert: That would be fine with me. Mr. Haigh: Okay. Yes, the security of the airport and the runways, and the interaction between the path and airport is something that we have discussed in detail with the Airport Management, and it - it affects the next phase of the path going from Ahukini Landing to Kalapaki. It was during that phase, we had discussions. These discussions were actually quite a few years ago, but the path is intended, the main path to go Makai of the runways. And the agreement we have is that their gates on each end of the path where it is Makai - of the airport - so, if there is a security safety issue, the airport has full authority to close the path at that time - to restrict access to maintain that security. Those issues, it is a good question - those issues were of main concern and we have discussed them with the airport - HDOT. Chair Nogami Streufert: Great. Thank you for that (inaudible) because once we do that, we are 15 committed (inaudilbe) for the (inaudible). Is there any presentation that you would like to present at this point? Mr. Jared Chang: Good morning, Commissioners. My name is Jared Chang. I am with SSFM. We are the prime consultant on this project working with Doug. I am a planner. We did the EA and the Federal CatEx, also from Federal Highways Administration and we are doing the preliminary design, also. There is no presentation - so, no sharing screen, but we did have a couple of points we wanted to bring on for the Commission’s consideration. The easy ones first - there was a question about lighting. There is no lighting involved in this project, so that is not an issue. So, um, just wanted to clarify that. We recently completed our final topographic survey for the whole alignment, and there were some parts of the alignment that we couldn’t survey in the past because of access issues. So, can hall grass was too high. We could not get surveyors in there. We recently just completed that survey, and we will be taking that topographic survey to refine our alignment, and by refine, I just mean that - you know - there might some tweaks in two areas. One being Ahukini Landing where we come back down and connect to the parking lot, and the second being along Nukuli’i - you know - by the motocross track area. Just to make sure that we are in the right parcels as we traverse that area. So, very minor adjustment to the alignment, but, um, so, no real affects, otherwise - different from what is in the EA or the SMA. Uh, once we do refine that alignment, we will be sharing that with, um, Director Hull for his approval. Any changes - you know - we want - I should send to him. That is coming, um, probably later this month. Uh, and then, the last one is regarding preliminary recommendation number 7. This is the start of construction and completion of construction dates. We wanted to make a request for the Commission’s consideration to change those time frames. We would like to extend the start of construction from one year to within two years from approval, and completion of construction from two years to within four years of approval. The reason for this is because right now, we are still in a preliminary design and we have to secure construction funding for the project with Federal Highways Administration and complete the design. This is likely to occur within the next year or two - completing the design - design and getting the construction funds. Then, construction will follow that. The one year start and two- year finish time frame is likely not to be adequate for where this project stands today. Chair Nogami Streufert: Are there any questions for the representative? I am sorry. Your name is Jared. Is that correct? Mr. Chang: Jared Chang. Correct. Chair Nogami Streufert: Are there any questions for Jared or for Doug? Mr. Ho: Jared? 16 Yes. Ms. Cox: Yes. I have one question. It refers to not only this section of the proposed plan, but in general, I know that one of the concerns is the rising sea level. Does this specifically - I know that further down, there are some issues you have to address. Like in this area - this proposed park - I do have those issues. Or is it pretty much high enough and back enough that we’re okay? Mr. Chang: Doug, I can answer that one. Okay. So, we - this path in particular - this section of the path is pretty much mauka and we’ve - we go behind where the golf course - or along Kuhio Highway. When we get down to Hanamaulu, we are on the bluffs coming around the bay. So, we don’t really have any sea level rise issues. As part of our application for setback - shoreline setback assessment, we did overlay our path alignment with one - to certify shoreline and our version of the shoreline setback, we are out of it, and we did look at the Sea Level Rise Exposure Area Maps - the SLR -XA. So, we’re outside of the SLR-XA with the exception of a - a few places, I can explain where they are, too. Therefore, when you are coming from Ahukini Landing, and we approach Kuhio Highway, and we get to Hanamaulu Bridge, that is a low-lying area there that is essentially in the SLR-XA, but we are going to be- you know - that’s pretty mauka and we’re looking at, like, a boardwalk-type of solution through that area - not a concrete path. Then, the next one is by Nukoli’i. So, there’s a - there’s a - actually, it’s Kauai Beach Road, and Nukoli’i - there’s a channel there - a drainage channel, which technically ends up in a SLR-XA also. So, we have to cross that channel two times and we’ll be bridging over that. So, one of them - we are using an existing culvert - it is a historic culvert, and we have worked with FHPD to approve what sort of improvements we can do on there. For the most part, it is just getting a - a deck and some railings on top of it, and we are not touching the culvert other than that. So, those are the only places where we really touch a SLR-XA, but those two places are actually pretty mauka from the shoreline. Ms. Cox: Thank you. Mr. Ho: When it comes to - gotten say— Ms. Cox: I have to say— Mr. Ho: Yeah. Ms. Cox: It is exciting. Mr. Chang: Okay. Okay. Thanks. Mr. Hull: And I’ll just add to Commissioner’s, as Jared pointed out, this phrase SLR-XA, which you and I hear consistently over the course of the next several years and we incorporate what’s referred to as a Sea Level Rise Exposure Area Data into the review of coastal projects. 17 And with the sea level rise exposure, there’s three specific data points coastal erosion again, and that’s really with sea level rise projected at 3.2, feet within the century, where the - the new coastline will be. So, that’s one of the data points. The other data points are highway and annual highway runoff, as well as passive flooding, and the sections that Jared’s referring to that were in the SLR-XA aren’t necessarily in that - that coastal erosion where that coastline’s going to move, but we’ll experience either highway runoff or co- passive flooding. And so, in that approach - you know - when you see the maps with SLR-XA, a lot of people freak out and they’re like, Whoa. That is where all of the land is going to be, and it is like, No. No. That is where once a year, a predicted wave is to come up. So, the proposed path can accommodate that - that by being elevated, essentially. But, we’re real grateful that Doug and Jared’s folks really went through a thorough and exhaustive sea level rise exposure area to address climate change and sea level rise, and - and we’re confident path will be able to meet the mitigating necessities of the future. Mr. Chang: Thank you. Ms. Cox: Thank you. I have to say that I think it is great that there is going to be this addition to the ability for people to travel in a multi-modal way, and I know it’ll get a lot of use. Chair Nogami Streufert: Mr. Ho, did you have a question? Mr. Ho: Sure. Uh, Jared how is this being financed? Is it guaranteed? Can we start a project and finish it? Or do we have to do it in increments or sections? Mr. Haigh: This is Doug Haigh, Department of Public Works, and Building Division. I am probably the best one to answer that question. Funding is a challenge today and I know - actually, my request for extension of time was greater, but the Planning Director brought me back to your guys’ needs and reality. It’s a challenge. Right now, Federal Highway funds are the primary source of funds to build the path. We are fortunate right now - we have enough funds - construction funds - obligated to complete the path from Lydgate Park to Kealia - getting that last section. This will be the next phase. Right now, we have design - some design money committed to start that was programmed, but we do not have construction moneys programmed yet. It’s become more of a challenge for the path because it used to be the path was the only Federal Highway funded projects that County was going for, but now, the Engineering Division has gotten, a little more aggressive. And so, they’ve got a lot of projects. So, it’s - we have a certain pot that’s available each year from Federal Highway, and the administration’s going to have to make the decisions on where that money - you know - what we’re going to spend the money on. This project will qualify 100 percent Federal Highway fund, to proceed. We are dividing it - breaking it into at least two phases, and we would like to do the Ahukini Landing to Hanamaulu Beach Park as the first phase. It has, it is going to be so gorgeous. You will not believe how nice that is. I am excited, but it is also a challenge because we do have to do an elevated boardwalk to get over that area Jared was talking about. We are recreating a train trestle 18 that was there many years ago. There was a wooden train trestle before, and now, we will coming in with a more durable maintenance minimum maintenance material there, but it is going to be expensive. So, what I’m hoping is we’ll have a huge stimulus bill in the next six months, and there’ll be some money there, and we can go forward, but it’s going to be a challenge. I would not be surprised if we came back and asked for time extensions on this project but I will be pushing to try to get the construction funds as soon as we can. Mr. Ho: With that, Jared had asked for that time frame of two years to start and four to complete. So, that’s - that is here and there. It could change. Mr. Haigh: Yes. That is highly optimistic. Mr. Hull: Yeah, and to that, Commissioner, I did speak with Doug, yesterday about this. He’s been this issue and I’ll echo what’s Doug’s saying is that a two-year start and four-year completion is extremely optimistic. I would anticipate it taking longer. If the Department in hearing the proposal from Jared, would make a friendly amendment to our recommended Conditions on approval for our Condition No.7, to specifically say that the applicant shall obtain the necessary building permit and commence construction within two years from the date of approval of the SMA permit, and complete construction within four years from the date of approval. So, we will make that verbal amendment to our report but like Doug is saying, more than likely, they’ll have to come back to you folks for an extension. Chair Nogami Streufert: Okay. There were some concerns that were, raised about monk seals and where they might be nesting or resting. Are you - are you going to be working with DLNR or with the Mock Seal Project for stakes to put up safety areas for these monk seals should they be - should they rest on the beach or anywhere close to the - to the walkway? Mr. Chang: Yes. We did that through section 7, consultation with Fish and Wildlife Service plus the National Marines Fishery Service and we ended up with a (unintelligible) determination. Um, so, we - we did have more mitigations in the event that we were going to use lights- you know - to protect sea birds, and monk seals I don’t have it right in front of me, but whatever mitigations those agencies gave to us to consider, we did incorporate them and will be carrying them forward. So, I - you know - off the top of my head, I don’t remember if we had ones for monk seals, other than maybe if they were at the boiler plate sort of mitigations, but basically, we’re not touching any of the shoreline areas with - with sand and what not. Chair Nogami Streufert: Great. Thank you. But when you get to Nukuli’i, you might be hitting into some of the areas. I am not quite sure where these monk seals are supposed to be there, but the - this was a concern and I just wanted to bring it to your attention before we concluded. Mr. Haigh: Okay. Let me... I can comment further on that issue. We did have another consultant on board prior to SSFM. We have been working on this for over 10 years. And at the beginning, we were looking at alternate routes, and some of them went close to the beach by Nukuli’i, and 19 that’s where the main monk seal issue concerns were was raised, and what we did is redesigned the path and moved in more Mauka. So, we really are significantly away from a monk seal area, and with our final approval by Fish and Wildlife, National Marine folks they concur. Mr. Chang: I can tell you what the mitigations for monk seals were. So, we basically have to survey our construction areas for any monk seals to make sure none are present, and if any are present, then we have to cease construction until the monk seal leaves. Those are the mitigations. Chair Nogami Streufert: Okay. Any other questions for the representatives for the, uh... Mr. Ho: I have a question for Doug. This will, uh, this bike path - you are going to need service personnel when it has completed - County service personnel. You are going to need people to take care of it, clean it - the maintenance of it. Does, Federal Highways Act subsidize any of that? Mr. Haigh: No. Federal Highways does not pay for maintenance for any of the projects that they fund. That is a local responsibility. They do help us develop facilities and to design projects for minimum maintenance. As an example, at Lydgate Park, Federal Highway funds paid a maintenance building to assist - and that is kind of, like, the main maintenance building to assist managing the path also at Kealia Beach. Part of that comfort station is a maintenance storage room to help manage maintaining the path. Department of Parks and Recreation has been doing an excellent job on the maintenance, and of course, during construction and design, we do everything we can to minimize maintenance So, we’re spending, we’re using expensive materials sometimes spending more money up front to try to minimize costs in the future. Mr. Ho: Thank you. Chair Nogami Streufert: Are there any other questions? If not— Mr. Chiba: I do, Madame. I like the project. Everything is good, but my big concern is safety for the bike path along the highway - along the number 10 (inaudible). What kind of discussions have you guys had with regards to safety in that area? Because we have had accidents where cars have run off the road into the golf course area. Does anyone have any thought on that? Mr. Chang: They… we are going to be outside of the highway right-of-way. And so, there’s actually a little, kind of a vegetative buffer already from where we’re going to have the path and the highway. That is about it, though. We are not in- incorporating any improvement on the - the highway right-of-way for safety, but through that section along Wailua Golf Course, the path will have fences on - on actually both sides. So, that’s - you know - one safety measure. Yeah. Mr. Haigh: You know— Mr. Chang: You know, (inaudible) golf balls - yeah. Go ahead, Doug. Mr. Haigh: Yeah. I will add to that, as we get into final design Kauai District - Hawaii 20 Department of Transportation, Kauai District Office - we will be reviewing the plans. If there’s concern about safety from the road, we would probably add guard rails as part of the project, but we would be deferring to the Kauai District Office and Kauai District engineer to help guide us if such safety requirements are recommended. Mr. Chang: Thanks, Doug. Mr. Chiba: Thank you. Chair Nogami Streufert: Are there any other questions? If not, are we ready for a motion? Could we have a motion to either accept or reject this - the, uh, Directors re- recommendation? Ms. Apisa: I was making - I was making a motion, but I was on mute. Sorry about that. I move that we approve, um, Special Management Area Use Permit (U)-2021-3 as recommended by the Planning Department, including modification to Condition No., 7, with a two-year start date and a four-year completion for the construction of a multi-use path extending from Ahukini Point to the existing path at the northern section of Lydgate Park. Ms. Cox: I second that motion. Chair Nogami Streufert: It’s been moved and seconded that we accept the Directors report and recommendations as amended. Any discussion? If not, could we have roll call vote, please? Mr. Hull: Roll call, Madame Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Commissioner Cox? Ms. Otsuka: She texted saying that her internet went down. Chair Nogami Streufert: Oh. Ms. Otsuka: So, I am not sure if I am allowed to, but her text says, Internet went down. Will try to get back in or phone, but if vote comes up before, vote I would be in favor of the path. Mr. Hull: I do not think officially, we can count that, Commissioner, but I will continue through the roll call. So, Commissioner Cox is going to be noted as silent. Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? 21 Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 6 Aye.1 silent. Madame Chair. Moving on to agency hearing for— Chair Nogami Streufert: Point of record, if at some later point in time Dr. Cox were to submit her vote, would that - would that be possible? Mr. Hull: I will defer to the attorney on that. Teresa, are you monitoring? Deputy County Attorney Teresa Tumbaga: Hi. Sorry. This is Teresa Tumbaga. The question is if she were to come back on and want to vote. Was that the question? Chair Nogami Streufert: What - yes. Or to vote? She told us how she wants to vote, but obviously, it is not in person. In text - and she was voting in favor of it. Is there any way to, these are unchartered times for all of us. Ms. Tumbaga: Right. Chair Nogami Streufert: We are not quite sure how this works. Ms. Tumbaga: Regardless - you know a silent…let me double-check the rules. Can you give me a minute? Mr. Hull: Sure. I can, Okay. I can affirm that a silent vote is pursuant to our rules, does run with the majority. So, counting as a silent would I think, Teresa - be counted, technically, as in favor, but being that she’s absent from the meeting, I’m not sure. Ms. Tumbaga: Let me just take a quick look. Ms. Otsuka: The thing is with Helen, she is very passionate about this. So, I think she would.... (Inaudible) her (inaudible) on it (inaudible). Chair Nogami Streufert: With her (inaudible) - if she is very - yeah. Right. Very passionate about it. So, for the (inaudible)... Ms. Otsuka: (Inaudible) a second text saying, I was kicked back again. I vote in favor. Chair Nogami Streufert: Right. 22 Ms. Otsuka: So, two texts. She would appreciate her name on this. Ms. Tumbaga: Hi. This is Teresa again. According to the Commission’s rules, rule 1-2-14(b), it states that, unless a member is excused from voting, his silence shall be recorded as an affirmative vote. Chair Nogami Streufert: Okay. Ms. Tumbaga: Does that satisfy the Commissioner? Ms. Otsuka: Thank you. Chair Nogami Streufert: We were trying to see if she could have an affirmative vote affirmatively, as opposed to in silence, as she would put it. Let us put it on the record that although she has a silent vote, on text messages but because she was (inaudible) kicked out of internet - she does not have an internet connection - she did want to vote positively or favorably for this. I think she might have called in. We will wait for a few more sec or half a minute or so. And if that doesn’t work, then we’ll continue on with the agenda. We have a large agenda today. Ms. Tumbaga: Hi. This is Teresa again. Did the Commission want to take a short recess to work on reconnecting with Commissioner Cox? Chair Nogami Streufert: She was trying to call in, rather than going on the internet. She was going to call in her vote on the phone. Ms. Tumbaga: Oh. Okay. Chair Nogami Streufert: And (inaudible) we will continue on, but— Woman 4: (Inaudible) still on the call? What time is your doctor’s appointment? Chair Nogami Streufert: Someone else is on the, please, whoever it is on - you may want to mute your phone. Woman 4: Oh. Chair Nogami Streufert: Your call. At this point, since we have not heard from Helen, let us take a 10-minute, uh - 10-minute recess, and come back at 10:30 a.m. Can we do that? Mr. Hull: Yeah, Madame Chair. So, we’ll take a 10-minute break and returning at 10:30 a.m. Commissioners, do not leave the line. Sometimes it is harder - I think this is Commissioner Cox coming in right now. Chair Nogami Streufert: We will take a 10-minute break. Then, see whether she can get back in on the internet and this will be a good time for a break, anyway (inaudible). 23 Mr. Hull: Okay. All right. Ten-minute recess, returning at 10:30 a.m. The Commission recessed this portion of the meeting at 10:17 a.m. The Commission reconvened this portion of the meeting at 10:30 a.m. Chair Nogami Streufert: Call the meeting back to order after the recess. Mr. Hull: And so, Commissioner Cox is on the line. Would it be okay for you just to have a re- roll call or is there a procedural process to this? Ms. Tumbaga: I think since the - I mean Commission really quickly went to their voting and then completed the voting process you know, again, it is in the record of the Commission that she was only not present because of technical difficulties and the silent vote is a permanent vote according to the rules. If the Commission would like to redo the vote, they could do a motion to reconsider. Though typically that is for other reasons but if they would like to say, “We want to do this motion because one of our Commissioners was not present for the vote due to technological difficulties.” That is another option too. Chair Nogami Streufert: I think it would be good to - Helen are you going to be with us by phone. Ms. Cox: I am just going to - yeah. I am going to just stay on the phone for a while until I know my husband’s off that other meeting. Chair Nogami Streufert: (Inaudible). I would -I will entertain a motion to redo the vote so that every - while we have everyone here. Ms. Cox: I move we redo the vote. Mr. Hull: Sorry, sorry. Can I interject a little bit? If we’re going through the reconsideration process then a request for reconsideration can be made by a Commissioner that voted in the affirmative. Since all of you did, any Commissioner can make it. So the official motion will be to re- reconsider Special Management Area - SMA Use Permit 2021-3. Chair Nogami Streufert: Do I have a motion to reconsider? Ms. Cox: I move that we reconsider the vote for SMA 20- sorry. I lost the number. Whatever Kaaina said. Ms. Otsuka: 2021-3. Chair Nogami Streufert: Helen cannot— Ms. Cox: Yeah okay. Thank you. There it is. 2021-3. Chair Nogami Streufert: Okay. Helen cannot make that motion. She was not voting on this. 24 Ms. Cox: Oh. I thought I could because I was in the affirmative. Chair Nogami Streufert: Is that an affirmative vote or is that just by being silent? Ms. Cox: Oh sorry. I thought from what Kaaina said I was affirmative. Ms. Apisa: If you are affirmative, we do not need to revote. Mr. Hull: Correct. Ms. Cox: Yeah but I was silent which turned me into affirmative. Chair Nogami Streufert: Could we have someone else, (inaudible) to reconsider this? Ms. Otsuka: I make a motion to reconsider for holding Special Management Area Use from an SMA Use 2021-3 to allow construction of a multi-use path extending from Ahukini Point to the existing path at the northern section of Lydgate Park due to the fact that a Commissioner had technical difficulties and would appreciate a revote. Chair Nogami Streufert: Is there a second? Mr. Chiba: I second. Chair Nogami Streufert: It’s been moved and seconded that we do a revote. All those in favor say? Aye. All those opposed? (Unanimous voice vote). Okay. so Kaaina then let’s do a roll call vote please. Mr. Hull: Okay. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? 25 Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Okay. So the motion passes 7:0. That motion was just to reconsider. So now, a motion needs to be made— Chair Nogami Streufert: We did reconsider that. Mr. Hull: So formally you have only - the body has only approved reconsidering it. Now that you folks are reconsidering it, if there is any further discussion on the permit application then you would also need a motion to take action now on the permanent applications. Chair Nogami Streufert: Okay. Could I have a motion to accept the Special Management Area Permit SMA-21-3 as amended? Ms. Apisa: So moved. Chair Nogami Streufert: Is there a second? Ms. Cox: Second. Mr. Ho: Okay. I second. Chair Nogami Streufert: Okay. It’s been moved and seconded. Could we have a roll call vote please? Mr. Hull: Roll call. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? 26 Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0, Madam Chair. Chair Nogami Streufert: Great. Special Management Area Use Permit SMA (U)-2021-4 for construction of a 9,000 sq. ft. warehouse/repair facility and associated site improvements (parking & fencing) on a parcel located within the port Allen Industrial Subdivision, along the makai side of Aka Ula Street, approx. 650 ft. east of its intersection with Waialo Road, further identified as Tax Map Keys: (4) 2-1-003:016 (Por.) & 031, and containing a total area of 40,762 sq. ft. = Tink Tank, LLC. Mr. Hull: Moving on to next Agenda Item F.2.c Special Management Area Use Permit SMA (U)- 2021-4 for the construction of 9,000 sq. ft. warehouse repair facility and associated site improvements, parking and fencing on a parcel located within the Port Allen Industrial Subdivision from the excuse me - along the makai side Aka Ula Street, approximately 650 feet east of its’ intersection with Waialo Road, further identified as Tax map Keys: 2-1-003:016, and 031 and containing a total area of 40,762 sq. ft. The application is Tink Tank, LLC. This is the agency hearing portion of the agenda. Is there anyone that is involved in that would like to testify as a member of the public on this agency hearing for the Tink Tank application? I will hold for 5 seconds. Please speak if you do need to or if you would like to testify. Hearing none. Madam Chair the Department is not in receipt of any other additional testimony for this agency hearing. The Department will recommend closing the agency hearing. Chair Nogami Streufert: Is there a motion to close the agency hearing? Ms. Otsuka: I move that we close the agency hearing for Special Management Area Use Permit SMA (U)-2021-4 for the construction of a 9,000 square foot warehouse repair facility. Applicant Tink Tank LLC. Ms. Cox: Second. 27 Mr. Chiba: Second. Chair Nogami Streufert: It’s been moved and seconded. Are there any discussion on this? Let’s do a voice vote on this. All those in favor of closing the Agency hearing say? Aye. (Unanimous voice vote). All those who opposed? Nay. Motion passes 7:0. Chair Nogami Streufert announces Agency hearing is closed. Mr. Hull: Thank you Madam Chair. I will turn it over to Dale again, for the Director’s Report on this application. Dale, you might be muted. Staff Planner Dale Cua: Sorry about that. Thank you, Madam Chair and members of the Planning Commission. The project is situated in the Port Allen Industrial Subdivision. The project site is along the Makai side of Aka Ula Street in Port Allen and approximately 600 feet east of the intersection with Waiala Road. Surrounding area is within the general industrial zoning district. 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. Hull: Hold on a second Dale, hold on. Sorry, for the members of the public that have called in, please mute your phones. We are getting a considerable amount of feedback and it is easier if folks mute your phones. If not, we as the organizers will mute all phones and you’ll be responsible to unmute it on your end when you want to speak, so we’ll give you 5 seconds to please mute all your phones. Thank you. Go ahead Dale. Mr. Cua: Okay. Not a problem. So at the bottom of Page 8 of the Director’s Report, I’d like to make a correction. In the recommendation, the proposal would be a 9,000 square foot warehouse repair facility. Not what is noted there? Also, in the recommendation, the Department would like to introduce two new Conditions and if it’s appropriate at this time maybe I’ll read out these conditions. Condition Number 10 would read, “The applicant shall provide a minimum of 18 off-street parking stalls plus the number of disclosed company vehicles.” And there’s Condition Number 11 would be an environmental assessment fee pursuant to Section 11A-2.2G shall be due at the time of building permit application. And that concludes Department’s presentation of the Director’s Report. Chair Nogami Streufert: All right, (inaudible). If not, is there any one from the from Tink Tank available? Mr. Johnathan Chun: Good morning, Madam Chair. Jonathan Chun on behalf of the applicant Tink Tank. I hope I am off my mute. Mr. Hull: Yes. 28 Chair Nogami Streufert: Yep. Mr. Chun: Good. Chair Nogami Streufert: Look at me. Thank you. Mr. Chun: Anyway, uh, this is Jonathan Turner on behalf of the applicant Tink Tank, LLC. We have reviewed the preliminary report and the recommendation of the Department. We have no objections to that. We would agree to provide the 18 parking stalls. The property has more than enough space to do that. So we have instructed the architect to add in the additional parking spots somewhere on the property. Chair Nogami Streufert: And 11 also (inaudible)? Mr. Chun: Yeah. We originally provided for 13. The Department’s Report recommended 18. We will gladly do that. That is not an issue with us. That tend - there is more than enough room on the property to accommodate the additional stalls. Uh, in addition the - the (inaudible), designates two spots within the property for the company’s trailer and truck I believe. They already - they are designated within the - because everything is stored within the warehouse itself. Chair Nogami Streufert: Jonathan, I was asking about Condition Number 11 - a new Condition in Number 11, which is an EIS fee. Mr. Chun: Oh, yes. No objection to that. That is fine too. That is required by the ordinance so we totally understand that. Chair Nogami Streufert: Are there any questions from the Commissioners to Mr. Chun? If not, do we have a motion to accept or can we have a motion on this? Ms. Apisa: I move that we approve Special Management Area Permit SMAU 2021-4 as recommended by the planning department with a modification with the addition of Condition Number 10 and 11 for the construction of a 9,000 square foot warehouse repair facility and associated site improvements. Mr. Ho: Second. Chair Nogami Streufert: It’s been moved and seconded that the Director’s Report and approval of the 9,000 square foot warehouse and repair facility as amended. Is there any? If not, roll call vote on this. Mr. Hull: Roll call, Madam Chair. Commissioner Apisa? Ms. Apisa: Aye. 29 Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0. Madam Chair. Special Management Area Use Permit SMA (U)-2021-5, Class IV Permit Z-IV-2021-6, and Use Permit U-2021-5 for the construction of a farm dwelling unit and associated improvements within Lot 15 of the Seacliff Plantation Subdivision in Kilauea, involving a parcel situated at the terminus of Makana’ano Place, approx. 1,200 ft. east of its intersection with Pali Moana Place , further identified as Tax Map Keys: (4) 5-2-004:088 and containing a total area of 5.11 acres. = Ellen and Paul Baker. Mr. Hull: Motion passes Madam Chair. Moving to the next agenda item. Agency Hearing 2D Special - Special Management Area Use Permit SMA(U)-2021-5 Class IV Zoning Permit 2021-6 and Use Permit U-2021-5 for the construction of a farm dwelling unit and associated improvements within Lot 15 of the Seacliff Plantation Subdivision in Kilauea involving a parcel situated (inaudible) approximately 1200 ft. east of its’ intersection with Pali Moana Place further identified as Tax Map Key: Key5 -2-004:088 and containing a total area of 5.1 acres. The applicant is Ellen and Paul Barker. This is the Agency Hearing portion of the agenda. Has anybody called in as a member of the public that would like to testify for this agency hearing for these permits? Please speak now. I will hold for 5 seconds. Hearing none, Madam Chair, the Department is also noting that we have not received any public testimony for this agency hearing. The Department recommends closing the Agency Hearing. 30 Mr. Ho: Move to close agency hearing. Ms. Otsuka: I second. Mr. DeGracia: I second. Mr. Hull: Chair, I believe you are muted. Chair Nogami Streufert: It’s been moved and seconded that we close the Agency Hearing. Is there any discussion? If not, we voice vote on this. All those in favor I? Aye. All those who opposed? Nay. Motion carried. 7:0. Chair Nogami Streufert announces Agency hearing is closed. Mr. Hull: With the agency hearing close, I will turn it over to Dale for the Director’s Report concerning this agenda item. Staff Planner Dale Cua: Thank you. Project site is located within the Seacliff Plantation Subdivision in Kilauea. Physically the project site is 1 mile east of the Kilauea Lighthouse. It is situated on the Makai side of Makua Ana Place and approximately 500 feet of it’s’ intersection with Pali Moana Place. 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 again is subject to various policies, which include the SMA Development Standards, the North shore Planning Area and CZOD Development Standards. Specifics are contained in the Director’s Report and the applicant has addressed the Use Permit criteria in their application. At this time, this concludes the Director’s Report. Chair Nogami Streufert: All right. Are there any questions from the Commission from planner? Do we have any start and end dates for the construction of this? Mr. Cua: Let me see. Mr. Hull: (Inaudible) rules, Madam Chair. It just standard 1-year to start and 2 years to complete substantial construction. Chair Nogami Streufert: Okay. Is there any description for what a farm dwelling is? Mr. Hull: So pursuant to HRS205, a farm - on state land and agricultural lands, only farm dwellings are permissible. Not just straight outright single-family dwellings. But a farm dwelling is essentially a single-family dwelling that is associated with farm activity occurring on the property. Like I say it is required for all farm dwellings, that receive zoning approval that they also have to execute a farm dwelling agreement, which is a legally binding document saying that 31 the single-family dwelling will be used in association with farming activity. The flip side of that issue though is that there is no hard and fast thoroughfare. There is a criteria with farming with exception of growing certain plants. So, there’s no set criteria that applicants are held to in most of these farm dwelling agreements. Chair Nogami Streufert: Condition 9 has changed from earlier things that we have had for building. Mr. Hull: And this is the Condition concerning, being able to meet local construction and union employment? Chair Nogami Streufert: Correct. Mr. Hull: So Dale I think what the Chair is trying to bring out is that there’s been a new line added from the template standard, um, construction condition that states, “It is recognized that the applicant may have to employ non-Kauai residents for particular skilled jobs where no qualified Kauai residents possess such skills.” Mr. Cua: Okay. Mr. Hull: So is - was there I guess, you know, as the Director, you know, do you know why that adjustment was made? Because I was not aware. Mr. Cua: No. I am not aware myself. I can research similar projects just to make sure that the language would be consistent with what have been proved recently by the commission. Chair Nogami Streufert: Okay. If there are no other questions for the planning department, do we have a representative? Is there anyone for this application? Mr. Hull: Is there - is there an applicant on the line to discuss this project? I believe Paul and Ellen Baker or have you folks called in? Mr. Paul Barker: Yeah. We are online. Sorry about that. Ms. Ellen Barker: Can you hear us? Sound check. Mr. Hull: Yep. Mr. Cua: Yeah. Mr. Hull: We can hear you loud and clear. Chair Nogami Streufert: Would you like to present anything about your proposal? Mr. Paul Barker: Nothing other than this is a plan to be our permanent home here in Kauai so we are excited to get started and we hope to be an asset to the community. 32 Chair Nogami Streufert: Do the commissioners have any questions for the applicants? Mr. Ho: I believe Kaaina alluded to a start date for your property here. He said after we grant (inaudible) you have 1 year to start and 2 years to complete. Is that suitable to you? Mr. Barker: As far as we know, you know, with COVID, who knows but that would be a general reasonable expectation of ours to have it complete within 2 years. Mr. Ho: Thank you. Mr. Hull: Let me just interject real quick. Again, guys that have called in, we’re getting a certain amount of feedback. If you could - if you are not speaking please mute your phones or - or we will - we will be forced to mute all of your phones as well. So if you are not speaking please mute your phones. Go ahead Chair. Chair Nogami Streufert: (Inaudible) calling right now. Okay. If the - all right. Are there any other questions for the applicants? If not, we have a (inaudible). Ms. Apisa: I move to approve Special Management, uh, Use 2021-5 Class Iv Zoning Permit Z- IV- 2021-6 and Use Permit 2021-5 for construction of a farm dwelling unit in associated improvements on Lot 15 of the Seacliff Plantation Subdivision as recommended by the Planning Department. Chair Nogami Streufert: As - it’s been moved (inaudible) to approve the (inaudible) Special Management SMA (U)-2021-5 Class IV Zoning Permit Z-IV-2021-6 Use Permit U-20 21-5. Are there any discussions? If not, do a roll call vote on this please? Mr. Hull: Roll call, Madam Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? 33 Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0, Madam Chair. Chair Nogami Streufert: Congratulations. Mr. Barker: Thank you very much. Ms. Barker: Thank you. Special Management Area Use Permit SMA (U)-2021-6 to allow construction of a Guest House and Carport on a parcel situated near the terminus of Opelu Street in Hanalei Town, approx. 150 ft. north of its intersection with Pilikoa Street, further identified as 5079 Opelu Street, Tax Map Keys: (4) 5-5-010:040, and containing a total land area of 8,300 sq. ft. = Wilcox Family Limited Partnership. Mr. Hull: Moving next to Agenda Item F.2.e, Special Management Area Use Permit U-2021-6 to allow construction of a guest house and a car port on a parcel situated in the terminus of Opelu Street in Hanalei Town, approx. 150 ft. north of its intersection with Pilikoa Street, unidentified as 5079 Opelu Street, Tax Map Key: 5-5-010:040, and containing a total land area of 8,300 sq. ft. The applicant is the Wilcox Family Limited Partnership. This is the Agency Hearing of the agenda. I can note that we have received, sorry, we have received a letter from an Andrea Sopranski, dated 12/7 on this particular agenda item that has been transmitted to you folks and officially folded into the packet. Again, this is the Agency Hearing of the portion. Is there any member of the public that has called in that would like to testify on the Wilcox Family Limited Partnership? If so please speak now. Ms. Andrea Sopranski: Yes, this is Andrea Sopranski. I do not know if you are referring to me as a - or a person as a part of the Wilcox family. Mr. Hull: Are you part of the application, ma’am? Ms. Sopranski: No, I am the one who, uh, sent you a letter. Mr. Hull: Okay. Yeah, then this would be your time to - to testify if you’d like to. Ms. Sopranski: Yes. I would like to testify that this is going to be crowding the area due to flooding we also have, it backs into the pond and a lot of the water gathers at the back part of the property and it’s, like, sort of with, like, the hill is short of going downslope and I don’t know if 34 there exactly 8300 square feet still there. I do not know when was the last time that the land was actually surveyed but I am very concerned about the noise level, the lighting. It is gone take up the entire mountain view of mine. It will take away the quality of my lifestyle. I do not think I will be able to, like, excuse my language but I think I will hear them fart. I have the neighbor on the right - we are in a CPR - so there is only 10 feet on the right so on the left with only 10 feet I am going to be completely smashed in with no view. I was holding art classes here for Patrick Ching and having the neighbors come and join, children come and join, you know, vacation people wanting to experience Hanalei and paint the actual mountains right in front of us. It was a beautiful experience and so my kitchen, my entire li- living space -- I am permanent resident. I do not rent. I have never rented this place. I live here full-time, and for me this is going to radically change my life having a guesthouse, two-story plus a carport, plus considering the land to me is very fragile. After experiencing the flood every single time it rains it floods in the back. And so there’s a considerable amount of footage that doesn’t it into the 8300 square feet that was planning on putting two full huge homes. It is not even - to me it is a full-size home having a kitchen, plumbing, LB, you know, lighting, all the sounds, uh, laundry, all the machines that go in. Then they want to install a septic tank right in front of my window, like, literally right against the property line. So I’m going to be instead of staring at the mountain, a septic tank and two homes completely smashing me in. Um, I believe the noise will reverberate around the entire cul-de-sac as we all face each other and the noise level is already extreme as every single house is rented out to capacity, um, with vacation rentals so they have 10 to 20 people in each home. So as a single person living here with an artistic lifestyle and a musician on top of it I have to say this will radically affect my lifestyle to make it almost impossible to live a normal life. This is quite a project they have here and I just want to mention also they have an outdoor shower backing right up to the end. They have a lot of stuff going on here with cement— Mr. Hull: Three minutes. Ms. Sopranski: And this everything that I look (inaudible)... is up to the mount— Mr. Hull: Andrea, if you could wrap it up, please. You have a three-minute limitation. Ms. Sopranski: Okay. And that’s it. It’s that is all I wanted to say is that I really am concerned about the noise and wanted to know also if they intend on renting this out as a guest unit. I notice it is an ABL and I wanted to know if it was permitted to rent out as well and what is happening there. That’s my - that is it. Mr. Hull: Thank you for your testimony, Andrea. Is there anyone else that is called in that would like to testify on this agenda item? This is an Agency Hearing for the application for the Wilcox Family Limited Partnership. Is there anyone else that would like to testify? You can speak now. Ms. Jackie Shockley: Hi, yes, I would like to back up everything Andrea said. I am one of the neighbors as well. Mr. Hull: Sorry, ma’am...ma’am. Ms. Shockley: Yeah? 35 Mr. Hull: Excuse me, if you could identify yourself and you have three minutes for your testimony. Ms. Shockley: Yeah, sure, Jackie Shockley. I would just like to say that I think the density might be a little bit high and I’d like to have somebody come out and recheck the boundaries of the of the lot to make sure the density is in conjunction with the project that they’re asking to put on the piece of land. Again, it is going to affect the senses, the, you know, the site, the sound now. So there’s going to be several different senses that are going to be affected for all neighbors combined and again this land has been used also as, you know, just open space in the neighborhood. And so if you could just double-check the, you know, the process of, um, the density on this particular land that would be great, and then also the usage. Someone had mentioned that there is a potential that there might be another vacation rental instead of just this family living on this property or a person living on this property. So I just want to make sure, um, the usage as well as the density that’s it’s in line with what the county has already recommended and it’s not a variant. Mr. Hull: Thank you for your testimony. Is there anyone else that is called in as a member of the public that would like to testify in this agency hearing for the Wilcox Family Limited Partnership? If so, if you could please speak. Mr. Fernandez: Yes, this is Aaron Fernandez. I’m also a neighbor and I’d say my questions are not to be redundant but maybe just to be clear, curious if the - if the home has a TVR rental and if the stand-alone unit that they’re proposing is, uh, intended to be an ABU, um, that would also be rented. So that’s -those are the questions for me. Thank you. Mr. Hull: Thank you for your testimony. Is there anyone else that has called in that would like to testify in this agency hearing for the Wilcox Family Limited Partnership application? If so, please speak. Hearing no further testimony. Madam Chair, the department would recommend closing the agency hearing. Chair Nogami Streufert: Could we have a motion to close the agency hearing, please? Mr. Ho: Move to close the agency hearing. Ms. Otsuka: I second. Chair Nogami Streufert: The motion is seconded to close the Agency Hearing on Special Management Area Use Permit SMA (U) - 2021-6. Are there any discussion? If not, we will just do a voice vote on this. All those in favor of closing the Agency Hearing, aye. Commissioners: Aye. Chair Nogami Streufert: Aye. All those who opposed? Nay. Motioned carried. 7:0. Chair Nogami Streufert announces Agency hearing is closed. Mr. Hull: With the agency, hearing closed, Madam Chair, I will move it over to Dale to give the Directors a Report. As far as some of the testimony that has come up, I can say that - that no, they would not be allowed to rent either the single-family dwelling or the proposed guesthouse 36 as a vacation rental. That would be prohibited in this area being that they would not be able to obtain a non-conforming use certificate. And as far as the density, it does qualify for a single- family dwelling and a guest house. So, pursuant to Special Management Area Rules and Regulations as well as HRS 205 the single-family - the first single-family dwelling is exempt from SMA review, which is why it is not part of this petition. But the Department does interpret the guest house as separate and apart from the single-family dwelling and that exemption is not applicable which is in essence why it’s before you folks today. I will turn it over to Dale for the Directors Report. Staff Planner Dale Cua: Thank you. As previously noted the project site is located along Opelu Street within the Hanalei Palm Subdivision in Hanalei. Physically the project site is approximately a quarter mile south of the Hanalei pier. 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 will be subject to various policies, which include the North Shore Planning Area and the SMA policies as well as the CCO Development Standards. They are referenced in the Department’s Direct Report and evaluated as such. And that pretty much concludes the Director’s Report at this time. Mr. Hull: Are there any (inaudible)? If not, is there someone representing the Wilcox family here? Mr. John Kegal: Yes, this is John Kegal. I am the architect. Chair Nogami Streufert: Okay. Mr. Kegal: And yeah, I am just on audio only I am afraid. My camera is not working this morning. Chair Nogami Streufert: All right. Would you like to present your plans for this location? Mr. Kegal: Sure. Yes, so as indicated in the use permit application, we are proposing a single- family dwelling that is I believe the permit has already been approved - the building permit, um, which we, you know, made every effort to keep as compact as we could. It is about 1000 square feet on the lower level and another 400 on the second story with a189 square-foot covered lanai. So we, you know, it is a three-bedroom, two- bathroom home with a really compact blueprint, you know, trying to be sensitive to the lot coverage and density issues that are of concern. The guest house is a two-story structure with 500 square feet of living area above the car port. Um, the concerns for lighting and noise that’s, you know, people living in the guest house day to day we don’t really have, you know, there’s one kitchen window, a jalousie window kind of in the corner that would be facing the neighbor to the north as well as just one window from the bathroom. Uh, so we did kind of, you know, make every effort to minimize the amount of, you know, just talking and going about your life kind of noise emanating from the house toward the neighbor. There is no proposed lighting or anything on that side of the house facing the neighbor. 37 The reason for it being two stories is, again, you know, just trying’ to minimize the amount of construction required and lot coverage and density. You know, it made a lot sense to us to take the approach of having parking below rather than, you know, building another, you know, a one- story garage and a one-story guest house, so those are kinda some of the intentions behind the design, from kind of a program and seismic standpoint. Architecturally, aesthetically, we were very consistent with other homes in the neighborhood. It is a traditional design with a - a hip roof and board and bat siding, and combination of picture windows and jalousie windows. So we are not you know, we are not proposing any kind of atypical, um, construction method or aesthetic or anything there. Um, both buildings are fully compliant with all, uh, flood requirements for drainage. We are not altering any of the natural flow on the property. We do have a survey that was done recently that kind of - we are working from in determining the elevations. Uh, we are well below our allowed lot coverage and both buildings are compliant with, um, overall building heights, plate height requirements, um, all those sort of things. Um, so I guess that is about it for me and, um, I would be happy to answer any questions anybody may have. Chair Nogami Streufert: Commissioners, are there any questions for the applicant? Ms. Apisa: This is Donna. I - just to clarify, there is already an existing house or you are building the house and the guesthouse? Mr. Kegal: The proposed house is permitted but has not been built yet. But there is an approved building permit ready for it. Ms. Apisa: Okay. Then you are just asking, this is to get approval for the guesthouse that is in the SMA? Mr. Kegal: Correct. Ms. Apisa: Thank you for clarifying. Mr. Kegal: Sure, my pleasure. Ms. Otsuka: Thank you for asking that question, Donna. I was not aware. I thought there was a house already on it. Chair Nogami Streufert: Just worried about sorry am I muted. No. There was a concern about the septic system being very close to your neighbor’s kitchen window I think she said. Ms. Sopranski: Yes, this is I. Mr. Kegal: The septic system is located on the opposite corner. So the neighbor to the north, the septic system is actually on the southeast or southwest corner of the property. And, given the - the low lying nature of the property over there it’s adjacency to the pond we did do a fairly elaborate septic system - an aerobic system with UV filtration so we really did take some extra expense and effort there in making sure we had a septic system that was going to be very eco- friendly. Ms. Apisa: Is that septic system— 38 Ms. Sopranski: My main— Ms. Apisa: Is the septic— Ms. Sopranski: My I speak. Mr. Hull: No, not right now. Ms. Sopranski: Okay. Mr. Hull: Is the septic system above or below ground? Mr. Kegal: It is below grade. It is buried. Mr. Hull: Okay. Ms. Sopranski: But the tank is above ground. That was my concern, the tank, LPG tank that is a big white - the gas tank. Mr. Hull: Ma’am that is time, it’s not public testimony time. Ms. Sopranski: Okay, forget it. Chair Nogami Streufert: Okay. All right. Any other questions for the applicant? I guess the question is why - what - what - what are we talking about here? We are not talking about a septic system then. Is that correct? I this is to the applicant. So the septic system is underground so that should not be— Mr. Kegal: Yeah, I - yeah, again their - I guess the question is regarding the gas tank. Uh, we will have, uh, gas appliances, um, so we will have a - a propane storage tank. And that is located on that northwest corner of fairly, you know, close to the property lines of both the street and and the neighboring property there. It would be perfectly reasonable for us to relocate that to a more agreeable position. There are a couple of guidelines that we need to follow with that placement and this is required by the gas company. So their requirements are for that tank to be within 60 feet of the service truck when it comes to fill it and then it needs to maintain a visual line of sight between the tank and the truck. So taking those two things into consideration, we can relocate that tank. It will probably need to stay on that north side of the guest house but it doesn’t need to be as close to the street as originally, um, intended and it’d be very easy for us to, um, screen it either with a wall or landscaping, anything like that. I mean that’s not something we want to see or, you know, my clients don’t want to see it either, um, so there would be every intention to - to provide, um, screening in either the forms of a short fence around it or - or landscaping. Chair Nogami Streufert: All right. Mr. Kegal: It would probably end up a combination of both. Chair Nogami Streufert: Are there any other questions for the applicant or the architect for the applicant? If not, could we have a motion? Oh wait, do we want to - before we do that do we want to hear what the the Conditions are - the Department’s report? The Planning Department— 39 Mr. Cua: I am sorry, Chair. Did you want me to read the Conditions of the project? Chair Nogami Streufert: We all have it in front of us so the question is do the Commissioners want to have it read or is having in your hand enough? Ms. Apisa: I think just to hear the recommendation is good enough for me. Chair Nogami Streufert: Do we want to add a Condition about the LPG tank or that they should work with the neighbors to resolve that issue? Mr. Ho: I believe when he places the tank he has - it’s to work with the neighbors would be sufficient. I do not think you need to make it a Condition. Chair Nogami Streufert: Okay so we are ready for a motion. Mr. Ho: Motion to approve Special Management Area Permit SMA (U)-2021-6 Tax Map Key: (4) 5-5-010:040, Wilcox Family Limited Partnership. Chair Nogami Streufert: Is there a second? Moved and seconded. Mr. Chiba: I second. Chair Nogami Streufert: It’s been moved and seconded. We approve of Special Management Area Use Permit SMA (U)-2021-6. Any discussion? Let us do a roll call vote on this one. I’m sorry, yes? To speak on this - the Commissioners? Okay. Then could we have a roll call vote, please. Mr. Hull: Roll call vote, Madam Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. 40 Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0. Madam Chair. Special Management Area Use Permit SMA (U)-2021-7 for demolition and reconstruction of a single-family residence on Lot 11 of Waioli Beach Lots in hanalei Town, approx. 100 ft. west of the Weke Road/Anae Road intersection, further identified as 5514 Weke Road, further identified as Tax Map Keys: (4) 5-5-005:018 , and containing a total land area of 15,224 sq. ft. = Deborah Boden Manoogian. [Director’s Report received by Commission Clerk 11/24/20.] Mr. Hull: Moving onto the next agenda item, F.2.f, Special Management Area Use Permit SMA (U)-2021-7 for the demolition and reconstruction of a single-family residence on Lot 11 Waioli Beach Lots in Hanalei Town, further identified as 5514 Weke Road, Tax Map Key: 5-5-005:018 and containing a total land area of 15,224 square feet. The applicant is Debra Bolden Manoogian. This is the Agency Hearing portion of the agenda. Is there any member of the public that has called in that would like to testify on this agenda item? Please speak now. Hearing none, the Department will note that a letter from Suzanne Kobayashi has been received for this application as well as a letter from Christine Kobayashi as well as a letter from Carl Emperado on behalf of Haena Community Association. I am sorry, was there somebody that called in that would like to speak in this agency hearing or the Manoogian application? Hearing none. Madame Chair, the Department will recommends closing the Agency Hearing. Mr. Ho: Move to close the Agency Hearing. Ms. Otsuka: I second. Chair Nogami Streufert: It has been moved and seconded to close the Agency Hearing. Any discussion? We will do this as a voice vote. All those in favor, say? Aye. (Unanimous voice vote) All those who oppose? Nay. Chair Nogami Streufert announces Agency hearing is closed. Mr. Hull: With the Agency Hearing closed; I will turn it over to Dale for the Director’s Report. Dale- I think you are muted, Dale. Staff Planner Dale Cua: Sorry again. The project is located on the northern side of Weke Road, west of the intersection with Anae Road. Physically it is approximately a quarter mile west of Hanalei Elementary School. 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: Project is subject to the objective and goals of the North Shore Planning Area as well 41 as the SMA rules and policies as well as the (CCO) Development Standards. They have been identified in the Director’s Report. And that concludes the Director’s Report at this time. Chair Nogami Streufert: Are there any questions for the planner? Are there plans—? Mr. Ho: I have a question for Dale. Dale? Mr. Cua: Yeah? Mr. Ho: When you - in an SMA zone when you demolish a building or destroy, the replacement building would it have to be the same size or within the same footprint as the original building? Mr. Cua: No, not necessarily. Mr. Ho: Does it have to have the same monetary value? Mr. Cua: No, because the rules have changed over the years. The current standard now is SMA use permit is required when the development exceeds a $500,000 threshold. Mr. Ho: Thank you. Mr. Hull: Yeah, and to that, I am Commissioner Ho, because I think what you’re getting at is that in some situations if it’s the same square footage and it’s the same footprint or monetary amount then it would be exempt from permitting. But it’s been determined that this is not exempt just because of the $500,000 threshold. And so this essentially is an application for a new residence essentially. Mr. Ho: Thank you. Chair Nogami Streufert: And they are two residences on this lot and only - only one is covered by this. Is that correct, the primary one? Mr. Cua: Yes, the one that was damaged during the - the rain event of 2018. Chair Nogami Streufert: It is still - it says it will be demolished. So is it still— Mr. Cua: Yeah, I believe it is still standing today. Ms. Apisa: What is the elevation on the proposed building, just because of floods? Mr. Cua: Yeah, for the record the current residence would have to be built in compliance with today’s flood requirements. So in this particular area there is a base flood elevation and I believe that’s noted in the elevation drawings. But the overall height of the building would be the base flood elevation plus 15 feet. Mr. Hull: Is that I think, too Commissioner Apisa, there’s a real concern about this residence 42 being that it was, you know, hit pretty hard and the rain ‘18 event and the need to reconstruct. And in your view and our view of it to ensure that it can adequately mitigate another rainy ‘18 type event; because it’s been proven in the history that in fact, flooding does occur here. So part of this application there was a pretty thorough analysis and review and proposal from the applicant’s side to not only elevate but also to deal with storm water. And I think the representative can go a bit further in detail with you folks on those particular measures. Ms. Apia: Thank you. Chair Nogami Streufert: Is there any other question for the planner? I thought I heard something in the background. I am not sure. If not, could we have the applicant? Where is the applicant? Mr. Ian Jung: Good Morning Commissioners, Ian Jung on behalf of applicant Debra Manoogian. Let me first apologize. There is some tree-trimming going on behind - outside my office so if I have some voice issue let me know and I will try to adjust. So just for a little bit of background when we embarked on this project we realized that there was the house and ADU on the subject property rather than the guesthouse. We undertook the Departmental Determination process to allow and recognize the demolition of the primary dwelling unit and the reason for the demolition is this property is unique. It is actually not in the flood zone required BFE is just outside the flood zone. It is on that knoll that kind of stretches through Weke Road there. But their prior design of the home had a little subterranean floor which during the rain event, you actually stepped down to go at a lower floor area almost as if it’s a basement. During the flood event water did intrude that area, so we had to come up with an alternative design to try and fill that area, as well as create a rather unique grading system to deal with water as it came onto the property because we have to capture all our own water and not allow the water to divert from its normal sheet flow. So if you look at Exhibit E.2 we have a grading plan that’s assigned to this project which created an elevation of the grade about a foot and a half with swales around it and then a contraption to capture water. Then piping to deliver the water to underground chambers similar to what you would have for a septic system. Esaki’s office, our engineer, did a great job in dealing with the situation that brings the grade up to a little bit of elevation to prohibit any future intrusion of water into the house. The new system that was designed would then capture that water and allow it to remain on site through the swales into the existing trap system that will be subterranean. And so there was great effort to deal with the issue to make sure water is monitored on the property and that the flooding event wouldn’t happen again to deteriorate the foundation that occurred on this particular property during the rain ‘18 event. So with that I hope that answers the question about how we preemptively tried to figure out solutions to deal with flooding in the future. And just to clarify the North Shore DPA does allow for 25 feet of height limitation so it is a two-story home. Without the BFE here, because we are above the flood requirement we can go up to 25 feet on the second floor. Chair Nogami Streufert: Okay. Mr. Jung: So with that I can answer any additional questions. If not, I know there was, we did and there was two things I wanted to follow up on the report, I know before Romeo left for 43 vacation we had some comments from the Hanalei to Haena Community Association based on the shoreline setback. One of the comments they asked for was a revised Condition to allow for monitoring and mitigation of any vegetative intrusion for Waioli Beach Park. We crafted an additional item as a Condition for that. Dale, did you get that in the packet? Mr. Cua: (Inaudible). Mr. Jung: And if so, I can read it into the record— Mr. Cua: Yes. In fact, I may have. Oh in fact, I do have it in front of me, yes. Mr. Jung: Then okay. Just for the Commissioners, the way we framed it is, I quote, “The applicant shall periodically inspect and maintain vegetation along the northern boundary of the subject property to ensure vegetation does not encroach into Waioli Beach Park.” So this is an ongoing issue with Shoreline properties where vegetation often encroaches these access corridors. We have no objection to dealing with it in the same scenario as beach park right and actually beach pathway. So we’re happy to— Mr. Cua: So— Mr. Jung: Add that into our Conditions. Chair Nogami Streufert: Does that become Condition 10 then? Mr. Hull: Sorry, correct, Madam Chair, that would be Condition 10. A new Condition 10 and the Department would welcome that in the friendly amendment and so I can read onto the record (inaudible) in reading the testimony. Condition 10 would read, “The applicant shall maintain the proposed vegetation along the boundary between the subject property and the Waioli Beach Park.” Mr. Jung: And that is acceptable to the applicant. Mr. Ho: All right, Ian, could you touch upon this one more time? What is the mea- the mean flood height for that area? Mr. Jung: Uh— Mr. Ho: Did you say 25 feet? Mr. Jung: Well, it is actually - so Hanalei has along the Weke Road corridor, it is actually a unique mill system that was part of the old dune system that was there. So it’s actually out of the flood zone. It is in XS rather than in AE or BE which requires the structure to be elevated to the point of the base flood elevation. So the topography there, it sits upon mean sea level in a range of 13 to 15 feet. So there is no what we call base flood elevation required for this particular property. But to mitigate any potential future flooding based on the prior even the applicant is proposing to elevate the natural grade by a foot and a half and then we had to accommodate for 44 whatever water would come into the property to be retained on the property. So then we had Esaki’s office design a trap system which would capture the water in the (inaudible) over it through these little hole covers into a subterranean trap system which has these - kind of a unique design similar to a septic system which could filter the water down into the earth kind of, like, an underground retention system. Mr. Ho: So by engineering it and raising the floor level you - you are out of the flood area. Mr. Jung: Yeah, well we are out of the flood area to start with and this is just, um, better improves the property so it does not - it has not impacted with future flooding. Mr. Ho: Thank you. Chair Nogami Streufert: All right. That seems to be a little bit further away from the streams. That is what it looks like. Mr. Jung: Yeah, this is on the corridor of Weke Road and the Waioli Beach Park access lane. So it is quite a ways away from (inaudible). Chair Nogami Streufert: I meant the (inaudible). I am sorry (inaudible) beach access so it is a little bit further back than it was previously. Mr. Jung: Yeah, we have a problem. There is when we did the certified shoreline for this property we - there was a - during the rain event there was a shore that was created, um, that kind of did an outflow of water that pulled water into (inaudible) Waioli Beach Park and because it bumps in there we had to follow our setback line to bump it in. So the house is pulled back from what has called the rear boundary line which is technically the Makai boundary line to accommodate that shoreline setback requirement. Chair Nogami Streufert: And the second house that is already there that was not - or not significantly damaged that will continue to be there? Is that correct? Mr. Jung: That is correct. Ms. Apisa: So what is the setback from the offshore line? Mr. Jung: The setback from the shoreline was (inaudible)...well the - a unique problem because it is a common actually the County’s lot in front of it the setback requirement (inaudible) has a shoreline, (inaudible). Ms. Apisa: Thank you. Yeah, I forgot there was a County park - that County strip in front. Mr. Jung: No, so there is about eight I think it was about 82 feet but I - I will need to confirm that in detail...with Romeo because we just put - platted on our site plan in Exhibit E.1 the shoreline setback requirement, which extends beyond the typical. Previous setback line. 45 Ms. Apisa: Thank - thank you. That is sufficient. Mr. Jung: Okay. Ms. Apisa: I was forgetting about the county land in front. Mr. Jung: Yeah, that is the Waioli Beach Park. Ms. Apisa: Right. Mr. Jung: Yeah. Ms. Apisa: Right. Mr. Jung: That fronts, it’s, the (inaudible) house lots. Chair Nogami Streufert: Are there any other questions for the applicant or for Mr. Jung? If not, could we have a - a motion? Ms. Apisa: I move we approve Special Management Area Use Permit SMA (U)-2021-7 for demolition and reconstruction of a single-family residence on Lot 11 of the Waioli Beach lots in Hanalei town, as recommended by the Planning Department and amended to include Condition Number 10. Ms. Otsuka: I second. Chair Nogami Streufert: It’s been moved and seconded. (Inaudible) 2021-7 as amended. Mr. Hull: Sorry. Roll call, Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba. Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Commissioner Ho? 46 Ms. Otsuka: Commissioner Ho, there is a button on the right of the microphone. Oh wait, he cannot hear me. Hold - hold on. Hold - hold on. Mr. Hull: Mr. Hull, you are muted. You just have to unmute yourself. Ms. Otsuka: No, he is text— Mr. Ho: I got it. Ms. Otsuka: Here - okay he got— Mr. Hull: I am sorry, Commissioner Ho, again? Mr. Ho: I am here. Mr. Hull: Yeah, no you are - as far as your vote is that an aye or a no? Mr. Ho: Aye. Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0. Madam Chair. Mr. Jung: Well, thank you Commissioners. New Public Hearing Zoning Amendment ZA- 2021-1: A bill for an ordinance amending Chapter 8, Kauai County Code 1987, as amended, relating to Comprehensive Zoning Ordinance (CZO). The proposal amends sections8-1.5 and 8-2.4 of the CZO relating to Definitions and Tables of Users, respectively. = Kauai County Council. Mr. Hull: Moving on in the agenda New Public Hearing Zoning Limit ZA-2021-1, a bill for an ordinance amending Chapter 8 of the Kauai County Code 1987 as amended relating to the comprehensive zoning ordinance CZO proposal amend Section 8-1.5 and 8-2.4 of the CZO relating to definitions and tables or users. Respectively the applicant is a Kauai County Council. This is an Agency Hearing so we can take testimony after the Director Report. So very briefly I will just go over, I am sitting on this one so I will be handling the Director’s Report myself. This proposal was introduced by Council Chair Kaneshiro and specifically looks at areas of the Agricultural Zoning District to free up and allow commercial types of uses. Currently the way 47 that the CZO Use Table is structured the agriculture district it does not list any type of commercial uses as permissible - as outright permissible in the agricultural zoning district. While the Department is in general support of not allowing commercialization of the agricultural zoning district, there are some uses as Council Chair is proposing that may be appropriate. One is the ability for farmers to be able to sell their own produce on their property in a small Ag retail stand. He is proposing is that what the bill proposes is to outright allow ag retail stands that are up to 1000 square feet for the sale of produce from the subject property or the subject property’s associated farm. Secondly, it’s also adding for definitions that allow for restaurant…okay - that allow for restaurant activities to also be permissible on agricultural lands, however, with a use permit. And specifically as that restaurant would be linked to a Ag production with the subject property so, you know, the vegetables grown or livestock raised on the subject property could be utilized in a restaurant use. However, a use permit and public hearing review with the Planning Commission would still be required. Then it also establishes definitions for uses that are currently listed in the use table but to clarify exactly what they are. And those particular uses are the botanical garden and zoological garden as well as food processing and packaging of ag products. So that’s kind of the bill in a nutshell. I can say that there, um, it has been brought to the Department’s attention to a certain degree that botanical gardens may need further clarification in that, you know, all botanical gardens theoretically can exist on Ag properties. The Council Chair’s proposal is looking at requiring a use permit and I’m very certain and I can have discussions with him that it wasn’t his intention or the bill’s intention to require all botanical gardens as any, you know, person who has Ag property who grows things have to get a use permit. I am certain that he was looking at the commercial display of trees and plants in a botanical garden section - situation would require use permits. So that needs to be further clarified as well as and just cleaning it up the way that they restaurant is listed in the use table actually does not have that Number (2-4) which denotes the requirement that the restaurant be utilized Ag produce from the subject property. So that definitely needs to be cleaned up. So ultimately the Department will be asking for a deferral on this proposal to the January 12 meeting, but if you folks have any questions, we are available. Chair Nogami Streufert: The retail sales that are also owned to the restaurants and the - that should probably be about what they are growing on that property or are they or are you anticipating that that retail sales could be over whatever they want to sell? Mr. Hull: I am sorry. Can you repeat that question? There was a little static there. Chair Nogami Streufert: Okay. There is no (inaudible) the retail sales, that should also have two on it. It should be based upon what the uh, value added that are produced on that property I would think. Mr. Hull: Correct. Chair Nogami Streufert: I would also ask for another definition of a zoological park. The idea of 48 putting animals in cages would unless - I am not quite sure what that means. Mr. Hull: With the correct definition being proposed are you saying. So what the council - what the bill essentially tries to do is zoological gardens are currently listed in that use table as a use permissible to use permit currently, but there’s no definition. So I think that the bill is just attempting to try and narrow that down, what exactly is that. Are you saying, Chair, that – Ms. Otsuka: It sounds inhumane. Chair Nogami Streufert: I do not see a definition for it and it might be useful to have a definition of what that means just as you are having with the other ones. Mr. Hull: No, so the proposal is the zoological garden means “a parklike area in which live animals are kept in cages or large enclosures for public exhibition.” That is the proposal on the bill. Are you saying that – that— Ms. Otsuka: The cages. The cages sounds a little inhumane. How about, like, fenced area or— Mr. Apisa: Contained. Ms. Otsuka: Cages is a - contained - contained area, enclosed, enclosed area. Chair Nogami Streufert: Well I guess that also depends up on what kind of animals they are thinking of. I am not sure how they are— Mr. Hull: Yeah, they probably could come up with some adjustments and bring it back on the - on the 12th meeting as well. Ms. Otsuka: Yeah, some- something less inhumane. Mr. Hull: Okay. Mr. Ho: Kaaina - would this would this add to your enforcement problems? Mr. Hull: No. It just - it just clarifies because I think too for the commercial display of these types of, you know, uses - whenever there is a commercial aspect to Ag land right- on agricultural land, our - our zoning enforcement is outdated. I think it helps clarify exactly what these uses are being that they are already listed, bringing more clarity to the process does help should anything arise but I can say in my tenure here we have never - we have not experienced a zoological garden complaint at all. Mr. Ho: I would not want you to become the food police too, you know. I would not want you to be out there looking at products on the stand. Thank you. Chair Nogami Streufert: Are there any other questions on this? Do we have them defer then for the next meeting? 49 Mr. Hull: Before (inaudible) being that, this is not technically the Agency Hearing or a public hearing it might be appropriate if we ask if there is anybody that has called in that would like to speak on this agent, uh, agenda. Chair Nogami Streufert: Is there anyone in the public who has called in for this agenda item? Mr. Hull: Hearing none, Madam Chair, the Department would ask for a deferral, uh, to the January 12 meeting. Chair Nogami Streufert: Could we have a motion to defer this issue - the zoning amendment to the January meeting? Ms. Otsuka: I make a motion to defer Zoning Amendment ZA2021-1 to our January 20 - January 12, 2021 meeting. Mr. DeGracia: Second. Mr. Ho: Second. Chair Nogami Streufert: It has been moved and seconded to Defer Amendment ZA-2021 to the January 12 meeting, okay? 2021 meeting. Any discussion? If not, all those in favor say, “Aye.”(Unanimous voice vote). Ms. Apisa: Aye. Mr. Ho: Aye. Ms. Otsuka: Mr. DeGracia: Aye. Ms. Cox: Aye. Mr. Chiba: Aye. Chair Nogami Streufert: All those opposed, “Nay.” Motion passed. 7:0. It is deferred to the January 12th meeting. 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. 50 Mr. Hull: Next up on the agenda we have nothing on the Consent Calendar with the Executive - well, let me ask this, Chair. Did you just still want to keep on going? Do you want to go for a 10- minute recess? Or lunch? Chair Nogami Streufert: Yeah. Was there a problem with having everybody here for one of the other parts coming up? I thought there was a time limit on them. Mr. Hull: Yeah. Because the - one of the representatives for the declaratory order request did have to step out at 1:00 ‘til about 1:15, so if you guys want to- the other thing that can happen is we can muscle through Executive Session portion and the Bancroft issue if you guys want to try. Or you folks can take a lunch break right now if you’d like and should the rep be still detained during the (inaudible) we could table it and go into the Maui asphalt. So it really is at the discretion of you folks. If you guys wanted to take a break now or not. Chair Nogami Streufert: Okay. Well, like, what would you like to do? Take a break now or continue on with your Executive Session or to continue on with the Laura (inaudible) Living Trust before we take a lunch break? Ms. Apisa: How about just a 10-minute break? Or continue. Chair Nogami Streufert: It’s a little difficult to do when we’re not all in the same room but let’s take a 10-minute break and then we’ll be - we’ll start back up at about, uh, 10 after 12:00 and we’ll get directly into the, uh, into the Executive Session. But before we do that I think we need a - a motion that when we get back from break we will go immediately into Executive Session. Is that correct? Mr. Hull: You can make the motion now or when you guys get back from break. It might be easier if in trying to herd everybody together if we just come back here after break and - and the motion is made here and then you guys can go into the Executive Session. Chair Nogami Streufert: Okay. Then we will do that. We will take a 10-minute break. 12:10 we will be back. Thank you. The Commission recessed this portion of the meeting at 12:00 p.m. The Commission reconvened this portion of the meeting at 12:10 p.m. Chair Nogami Streufert: Call the meeting back to order after recess. Mr. Hull: Commissioners Ho and Apisa, are you folks present? Mr. Ho: Yes. Ms. Apisa: Present. Mr. Hull: Commissioner Otsuka, are you here? Ms. Otsuka: Here. 51 Mr. Hull: Ms. Cox is present. Commissioner Chiba are you here. Mr. Chiba: Yes, I am. 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 remand from the Circuit Court of the Fifth Circuit regarding Laura Bancroft Living Trust, et al. vs. Planning Commission of the County of Kauai, et al., Civil No. 17-10029 JKW. Mr. Hull: Okay. Returning to the meeting, we are on agenda item H - Executive Session. I can turn it over to Teresa to read you folks into Executive Session. Teresa, are you back? Deputy County Attorney Teresa Tumbaga: Yes. I am here. Okay, 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, privileges, immunities, and/or liabilities of the Commission and the County as they relate to the matter of remand from the Circuit Court of the Fifth Circuit regarding Laura Bancroft Living Trust, et al versus Planning Commission of the County of Kauai, et al, and Civil Number 17-1-0029JKW. Chair Nogami Streufert: Okay. Could we have a motion to go into Executive Session? Ms. Cox: I move we go into Executive Session and I apologize for not being on the phone for so much of the morning. Mr. Ho: Second. Ms. Otsuka: I second. Chair Nogami Streufert: It is moved and seconded that we go into Executive Session and at the end of Executive Session, we come back to the original meeting is that correct? Ms. Otsuka: So is someone going to send us an invite? Chair Nogami Streufert: There is an invite that was sent to you earlier for the executive - executive meeting. Ms. Apisa: It was sent by Arleen. Mr. Hull: I am sorry. Hold on. Hold on. If you guys could take the (inaudible) first. Sorry. 52 Chair Nogami Streufert: But before we do that could - could everyone check to see that they have the Executive Session before we end this? Ms. Apisa: It came from Arleen. Ms. Kuwamura: Yes. It was there on Friday. It should be there. It is there. Chair Nogami Streufert: Okay. All right. Well, then. Let us have a vote now since we are all on it I hope - on the executive pool - or we can connect to it. I have (inaudible) from Mel or from Francis - you guys okay with that? Mel or Francis can you - do you have the Executive Session before we do a vote on it and, uh, go into Executive Session— Mr. Chiba: I did get it originally but I was one of those that lost it after that too. So I need to go back and check. Ms. Apisa: Arleen, if we need to— Mr. Chiba: Okay. I will go back to it. Chair Nogami Streufert: All right. Then are we ready for a vote to go into Executive Session? All of those - if we go through this as a board vote - all those in favor of going into the Executive Session Say “Aye.” (Unanimous voice vote). Ms. Otsuka: Aye. Ms. Cox: Aye. Mr. Chiba: Aye. Mr. Ho: Aye. Chair Nogami Streufert: Okay. All those who opposed? Okay. We will go into Executive – I cannot even talk now - Executive Session. We will see you back— Ms. Apisa: The question - do we log out of this one then? Mr. Hull: Yeah, Commissioner. So if you just log out of this one and then you have a separate invitation that only you - the Commissioners and the attorney have to log into that Executive Session myself and the rest of the public and applicants for the other agenda items will just stay on this line. Chair Nogami Streufert: And if we can— Ms. Apisa: We actually - if we hang up with this one we actually hang up and we can log back in after? Mr. Hull: Correct. 53 Ms. Apisa: Okay. Thank you. The Commission moved into Executive Session at 12:17 p.m. The Commission returned to Open Session at 12:34 p.m. Chair Nogami Streufert: Call the meeting back to order after Executive Session. Mr. Hull: Commissioner Cox? Is that you on the phone line? Ms. Cox: Hi, sorry. My internet is going in and out and in and out so I am the phone again. Mr. Hull: Okay. Thanks. Chair, did you want me to do roll call again? Sorry. Chair Nogami Streufert: Yes, please. Mr. Hull: Okay. Starting from the top. Commissioner Apisa? Commissioner Apisa? Ms. Apisa: Here. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Cox: Here. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Ho? Mr. Ho: Here. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Here. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Here. Mr. Hull: You have all members present 7:0. Madam Chair. 54 GENERAL BUSINESS MATTERS Remand from the Circuit Court of the Fifth Circuit regarding Laura Bancroft Living trust, et al. vs. Planning Commission of the County of Kauai, et al., Civil No. 17-1-0029 JKW and receipt of the Fifth Circuit’s Final Judgement and Findings of Fact, Conclusion of Lay, and Decision and Order directing the Planning Commission to direct the Planning Department to Process the Bancroft’s Application for a nonconforming use certificate pursuant to the Decision and Order. Mr. Hull: Moving out of Executive Session into I. General Business Matters. Item one - Remand from the Circuit Court of the Fifth Circuit regarding Laura Bancroft Living Trust, et al., versus Planning Commission of the County of Kauai, et al, Civil Number 17-1-0029 JKW and received of the Fifth Circuit Fifth Circuit’s Final Judgment and Findings of Fact, Conclusions of Law, and Decision and Order directing Planning Commission to direct the Planning Department to process the Bancroft’s application for a Non-Conforming Use Certificate pursuant to the Decision and Order. We also have excuse me. We also have a letter with attachments from Karen Diamond received on 12/07/20, I guess I will turn it over to the Commission for any questions or I’m not sure the County Attorney had any statements. Chair Nogami Streufert: Is Teresa on? Ms. Tumbaga: Yes. Hi. I am here. Chair, did you want to start with a question for the Director or? Chair Nogami Streufert: Oh, we could do that. I think Mr. Ho had a question for the Director. Mr. Ho: Kaaina, I believe by this Court Order here, it’s directing you to process the application for NCUC? Mr. Hull: Correct. Mr. Ho: And then after that where does it go for approval? Does it come back to the Commission? Mr. Hull: No, Non-Conforming Use Certificates are reviewed - well, there’s no longer a process for reviewing Non-Conforming Use Certificates being that the window is closed. But with this, when it was in place it was strictly a Department review. It is not even a Permit. It is just a Certificate certifying that this TVR operation existed prior to the prohibition on vacation rentals outside the BVA and allows them to operate with that Certificate in so far as it meets the annual renewal requirements every year. So ultimately, in a nutshell no - once it’s re- officially remanded to us we process it, issue it, and it does not go to any other bodies or agencies for further review. Mr. Ho: Thank you. That is all I wanted to hear. Ms. Tumbaga: Thank you. So I am just going to make a statement regarding this, um, matter. This was a decision by the Department that was appealed to the Commission. This is back a few 55 years ago. The Department did not process the Bancroft’s TVR Registration and Non- Conforming Use Form. So the decision not to process was appealed to the Commission. The case went before a Hearing Officer who had a hearing and made recommendations and ultimately the Commission entered an Order affirming the Director’s decision not to process the application for various reasons. The Bancrofts appealed that decision to the Circuit Court and this remand if stemming from that appeal. The Court found in favor of the Bancrofts and reversed and remanded the Commission’s decision. So the Order that is included in this packet simply states that the Commission is ordered to direct the Department to process the application in compliance with certain things listed in the Order. So that judgment is final. It was not appealed. This is just a procedural matter now that the Commission needs to take care of. The Commission does not have any discretion over what it can do with this Permit. It simply needs to Order the Department as directed in the Order from the Fifth Circuit Court. Chair Nogami Streufert: Are there any questions from the Commission to our attorney? Okay. If not, do we open this for anyone who is here who may want to say something on this? Mr. Hull: it is at your discretion, Chair. The agency hearings we didn’t specifically call for it because those are agency hearings. Those are public hearings. There was a call for public testimony at the beginning of the Agenda for any other item as well on the Agenda so you’re not required to open up for public hearing at this point but it’s at your discretion. Chair Nogami Streufert: If there were anyone here who would like to speak on this matter? Mr. Jonathan Chun: Madam Chair, Jonathan Chen on behalf of the Bancrofts. I was the attorney that represented the Bancroft’s in front of both the Planning Commission, the Hearings Officer, and the Circuit Court. I can respond to any questions the Commission might have regarding this matter and what happened back in 20- 2009. If you - if the Commission so desires. If not— Chair Nogami Streufert: Well, we are not, we, it’s just open for any comment and we will then dispense with this matter. Mr. Chun: Okay. Thank you. Chair Nogami Streufert: Thank you. Any other (inaudible)? If there’s no other comment from the (inaudible) the Chair will then take a motion to (inaudible). Chair will entertain a motion to direct the Planning Department to (inaudible) the Planning Co- to, sorry - the Chair will entertain a motion to direct the Planning Department to process the Bancroft’s Non-Conforming Use (inaudible) an Order. Could we have a motion to that effect? Ms. Apisa: So moved. Chair Nogami Streufert: Is there a second? Ms. Otsuka: Second. 56 Chair Nogami Streufert: It’s been motioned and seconded that the Planning Department direct the planning or - I’m sorry - the Planning Commission direct the Planning Department to process the Bancroft’s application for a Non-Conforming Use Certificate per the Circuit Court - the Fifth Circuit Court Order. Is there any discussion? If not, could have a roll call vote, please? Mr. Hull: Roll call, Madam Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0. Madam Chair. At this point, we will have to move into what is anticipated to be possibly a lengthy proceeding. Did you folks want to continue or take a lunch break? Ms. Apisa: I am good to continue but up to the majority. Chair Nogami Streufert: But the attorney was not going to be available. Is that correct? Mr. Hull: I believe he has to - he has to take a 1:00 meeting with one of the judges. I think he has a court proceeding at 1:00 but it should only take 15 to 20 minutes he mentioned. Chair Nogami Streufert: Okay. Do we want to have an Executive Session with the attorney on 57 this matter before we get to the - to (inaudible)? Mr. Mauna Trask: Hello, can you hear me kind of, Chair? Mr. Hull: Yeah. Hey, Mauna. We are trying to figure out the handling of this next matter before we read it on the Agenda. Sorry, for the Commissioners, Mauna Kea Trask is the attorney representing the Petitioner. Mauna Kea did you have to excuse yourself for a certain time here? Mr. Trask: Yeah, I - I have a hearing at 1:00. Um, it’s going to be a quick status on mediation but as far as the other matter we’d ask - we’d note for the record that Executive Session for this item is not posted on the Agenda. It would be premature at this time to go in as there is not only no notice but any justification we’d have to show a unanticipated and I don’t think that there has been such a showing as of yet so we would just request to - I’ll - I have to get off ‘cause it’s on the same screen but I’ll call back in after my hearing with the judge is finished and then maybe we can take it up at that time. Chair Nogami Streufert: And do you - how long - when do you - when do you anticipate you will be able to come back? Mr. Trask: As soon as possible, Chair. It would not be too long. It is a quick status on mediation and it’s not contested. So that’s - so, like, like, uh, the, uh, Director said maybe 15 minutes - 20 minutes just at max. Chair Nogami Streufert: So if we took a lunch break and came back at, uh, 1:30 would that give everybody enough time? Ms. Cox: Yep. Ms. Otsuka: Yes. Mr. Jung: This is Ian Jung. Mr. Ho: Yes? Mr. Jung: I am on for Maui Asphalt so if you want to take it out of order I am happy to do that as well to accommodate Mr. Trask. Chair Nogami Streufert: (Inaudible). Mr. Hull: What was that, Chair? Mr. Ho: What is—? Chair Nogami Streufert: To take the Maui Asphalt— 58 Mr. Ho: Maui Asphalt? Chair Nogami Streufert: Ahead? Mr. Hull: I will be honest Maui Asphalt we anticipate lasting about 10 minutes. It could last longer but more than likely. Chair Nogami Streufert: How about we go out to, if that is the case then we could probably do that and then go for a lunch break. Would that work? Mr. Hull: Do you want to move to Maui Asphalt right now and then consider lunch after that? Is that what you are saying, Chair? Chair Nogami Streufert: Yes. Mr. Ho: Yes. Mr. Hull: Okay. So we’ll have to— Chair Nogami Streufert: Sounds good. Mr. Hull: Sorry. It’s, to move something out of order what would be the formal process? They are trying to make a motion to - to hear Maui Asphalt out of order. Ms. Tumbaga: That would be fine. Mr. Hull: So, yeah. Do we have a motion? You are saying? Ms. Tumbaga: Sure. We can do that. Mr. Hull: Thanks, Teresa. So we just need a motion to move the Maui M- Asphalt petition out of order to be reviewed right now essentially, a motion to that effect. Ms. Otsuka: I will make the motion— Mr. Ho: I make a motion to move Maui Asphalt ahead of HBR hearing. Chair Nogami Streufert: So was there a second? Ms. Otsuka: Second. Chair Nogami Streufert: It’s been moved there to move Maui Asphalt prior to the HBR Enterprises on our Agenda. Any discussion? If not, all those in favor? Aye? (Unanimous voice vote). Ms. Otsuka: Aye. 59 Mr. Ho: Aye. Ms. Apisa: Aye. Ms. Cox: Aye. Mr. Chiba: Aye. Chair Nogami Streufert: All those who opposed? Nay? Okay. Motion carried 7:0. We will now continue with the Maui Asphalt. Petition to Modify Condition No. 2 Class Iv Zoning Permit Z-IV-2015-16, Use Permit U- 2015-15, Variance Permit V-2015-2, and Special Permit SP-2015-4; Exhibits “A” – F’F” from Ina Jung, Esq. = Maui Asphalt X-IV, LLC. Mr. Hull: Okay. Agenda Item I.3, Petition to Modify Condition Number Two of Class IV Zoning Ordinance Z-IV-2015-16, Use Permit U-2015-15, Variance Permit V-2015-2, and Special Permit 2015-4, Applicant is Maui Asphalt, and Dale is our planner on this so I will turn our Director’s Report over to Dale. Mr. Cua: Thank you. Consideration of Applicant’s request to amend Condition two of Class IV Zoning Permit, Use Permit, Variance Permit, and Special Permit to allow continuation of operation involving the asphalt - that is plant facility. Mr. Cua read the Summary, Project Data, Project Description and Use, Additional Findings, Preliminary Evaluation, and Preliminary Conclusion sections of the Director’s Report for the record (on file with the Planning Department). Mr. Cua: So in this request the Applicant is seeking to amend the condition in order for them to operate an additional year so that the new expiration date would be November 11, 2021. And that’s pretty much the summary of the Director’s Report that and - and Applicant’s request. Chair Nogami Streufert: Right. Any questions for the, uh, planner? From the Commissioners? Maui Asphalt representative? Mr. Michael Lingaton: This is Michael Lingaton representing Maui Kupono. Mr. Jung: This is Ian Jones, also on behalf of Maui Asphalt who’s partners with Maui Kupono. So just to bring all the Commissioners up to speed on where we were at with the original permit. The original permit 19 in 2015, contemplated just this one-time project for a State DOT and once the Applicant got here, they realized there was a need for the State and County jobs for road resurfacing. I think we can all attest to the need for road resurfacing right now. Okay. At the time they realized they wanted to try and create a footprint here on Kauai for a business opportunity and we got the second - the first and second extensions and now during the period of the second extension we were trying to locate a suitable permanent site which we were in negotiations with Grow Farm but due to COVID things slowed down in early March to try and negotiate these terms and now we’re at the point where we’re pretty close with Grow Farms to identify suitable 60 sites for the operation and relocate to (inaudible). We don’t have a - a finite location as of yet but we worked with Wade Lord who’s a CIP Manager to get an extension to the current lease and I don’t know if you folks are familiar but in 2019 the County acquired from (inaudible) Villages, LLC, the parcel for which the batch plant operation is located. So now we’re, um, we’re in month-to-month holdover status with County as our landlord and they’re agreeable to a two-year lease, one-year for continuation of operation and then one additional year for the required clean-up of the site and so we haven’t formalized that contract amendment yet. Mr. Lord wanted to wait to see what the feeling of the Commission was to allow for the extension and then if it is extended, then we would enter into the amendment to the contract to extend operations and then extend that one period for the cleanup while we relocate. And so, with that I’ll answer any questions. I think one other thing Dale may have mentioned the Staff Report we did have one complaint this past year, and Dale asked that I follow-up with the complainant and I spoke to him and I did let him know that we are in the process of relocating. But he did indicate that on certain occasions when the wind comes from a certain angle, in his case it was on a north angle, that they would have some smell impact. But the condition that was negotiated with the school back in 2017, that condition requires us to cease operation if there’s a southwest or Kona wind at the start of the day. So we’re actively working with the community to monitor the wind patterns and if we do have a southwest blowing day then we do halt operations for the morning pursuant to that - that condition. But the one complaint - recent complaint once I informed him that we’d be relocating he thought that was a great idea and didn’t have any further items to discuss with us. Once we - I’m sure you’ll - you folks will be hearing back from us soon once we identify the location ‘cause we’ll be coming in with a certain set of permits similar to this for the new location. Chair Nogami Streufert: All right. Are there any questions for the Applicant or for Mr. Jung? If not, is there a recommendation from the Department? Mr. Cua: Yes, Madam Chair. The Department’s recommendation is to approve the extension of time to allow the continuation of the bench plant facility at its current location and to amend condition number two such that the new date would read November 11, 2021. Chair Nogami Streufert: Can we have a motion for that? Ms. Apisa: I will make a motion to, uh, approve, um, based on the Planning Department’s recommendation or modify - to modify Condition number two of Class IV Zoning Permit Z-IV- 2015-16, Use Permit U-2015-15, Variance Permit V-2015-2, and Special Permit SP 2015-4. Maui Asphalt. Mr. Ho: Second. Chair Nogami Streufert: It’s been moved and seconded that we approve the Director’s Report on amending Condition two of the Class IV Zoning Permit, Use Permit, Variance Permit, and Special Permit for Maui Asphalt. Do we have any discussion? 61 Ms. Apisa: I will just make a comment. I think - I was on the Commission when that originally, the prior time it came and I feel comfortable with that decision. Chair Nogami Streufert: Are we ready for a roll call vote, please? Mr. Hull: Roll call, Madam Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0, Madam Chair. Mr. Jung: Okay. Thank you, Commissioners. We will all look forward to seeing you folks in next year with the new setting. Chair Nogami Streufert: Without the potholes. Mr. Jung: Yeah. Mr. Hull: Yeah, I just think you guys want to break for lunch? Chair Nogami Streufert: Yes. If we could break for lunch for half an hour? Back at 1:30? Would that give us would that give Mr. Trask enough time? 62 Mr. Hull: Yeah, I believe from the statement he made that should be sufficient. Chair Nogami Streufert: Okay. All right. We will have a break for half an hour and we will be back at 12:30 - or 1:30. Sorry. Mr. Hull: Thank you. The Commission recessed for lunch this portion of the meeting at 1:02 p.m. The Commission reconvened this portion of the meeting at 1:30 p.m. Chair Nogami Streufert: Call the meeting back to order after recess. Mr. Hull: Thank you. I will do the roll call. Commissioner Apisa? Ms. Apisa: Here. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Cox: Here. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Ho? Mr. Ho: Here. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Here. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Here. Mr. Hull: Excuse me. All seven members present, Madam Chair. 63 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 by Mauna Kea Trask, Cades Schutte LLP, Attorneys for Petitioner HBR Enterprises, LLC. Mr. Hull: Moving into the next Agenda Item, given the content of the next agenda item I’m going to actually turn it…I’m going to stand down from my role as Clerk of Commission and turn it over to it over to the attorney, Teresa to read the agenda onto the record. Chair Nogami Streufert: Teresa, is that what we are doing? Ms. Tumbaga: Hi, sorry, one moment. Let me just get to it. Okay. Um, Item I.2, yeah, okay. Petition for a Declaratory Order Regarding Non-compliance with the Comprehensive Zoning Ordinance and Variance Application V-7211, Memorandum in support, Verification of Petition, Declaration of Mauna Trask, Exhibits 1 through 20, Certificate of Service by Mauna Trask, Cades Schutte LLP, attorneys for petitioner HBR Enterprises, LLC. Mr. Trask: Well, good afternoon, Chair, um, honorable members of the Commission. For the record, Mauna Trask on behalf of petitioner. Pardon me, you know, before we start, I would like to respectfully raise one issue per Commission Rule 1-2 15A. Um, it’s my understanding that the Honorable Commissioner Apisa is president and principle broker of Oceanfront Sotheby’s Realty. I believe that oceanfront some of these listed units at Hanalei Bay Resort. At last check I believe it’s between four to seven and the listing price of which is the amount of, you know, approximately a million dollars per apartment unit. So I just request that she, that she recuse herself for this matter because of the possible direct - or direct possible financial interest again per that rule. Ms. Apisa: That is - I will just answer that. That is correct. Um, your statement is correct and I am okay to recuse myself from any discussion and voting. Mr. Trask: Thank you very much. I do not mean to offend. I am sorry. Thank you for understanding. Ms. Apisa: Sure. Can I still just sit in and listen? Chair Nogami Streufert: Yes, I think you can. Is there any reason why (inaudible) listen in on it regardless of whether she participates or not? Mr. Trask: I will— Ms. Tumbaga: I just— Mr. Trask: Go ahead. Chair Nogami Streufert: Is Teresa? Ms. Tumbaga: I am sorry. What was being said? A couple people were talking at the same time. 64 Chair Nogami Streufert: Donna Apisa will recuse herself from voting but she would like to listen in on the conversations or on the proceedings. Would that be possible? Is that a— Ms. Tumbaga: According to the rule 1-2-15A, “When a member has made a disclosure of interest and is deemed by the Commission to have a conflict of interest, such conflict shall apply to all subsequent actions relating to said member. The member with the conflict of interest shall refrain from voting except where the member’s vote is required to constitute a quorum to act in which event he shall be permitted to vote.” So the rule is really silent. It you are required to refrain from voting with that exception listed. Ms. Apisa: I agree to mute my microphone and disappear. Chair Nogami Streufert: But there is no prohibition to listening in on the proceedings? Ms. Apisa: No, I will— Ms. Tumbaga: That is correct. Chair Nogami Streufert: Okay. Great. Ms. Apisa: Thank for clarifying. Commissioner Apisa recused herself from the meeting at this time. Ms. Tumbaga: Okay. Mr. Trask: Okay. Chair Nogami Streufert: Are we ready to proceed? Mr. Trask: Yes, Chair, thank you. So, yeah, um, I - I wanna note for the record I did receive Mr. Carol’s pleading late yesterday afternoon. It was hand-delivered to my office about 3:30 pm and emailed by Planning Department staff at approximately 2:30 pm. So, at this point, and this is per the petition filed on October 22, 2020, we are requesting as a primary matter, that a hearing be held on this - an agency hearing be held on this request per Commission Rule 1-10-6 and that is on Part Five, Page 60 in the petition. And the reason why is simply because that is the appropriate procedure. Under the rules, what is supposed to happen is that a petition is filed and in the event, a hearing request is made, which we did in this case, and if that hearing is granted - the request is granted - the rules relating to agency hearing procedures before the commission shall govern the proceeding. Now, along with that goes agency hearing notification, publication that the petitioner asked me to cover. And at which time seven days prior to agency hearing any interested person would have an opportunity to intervene. Now, without you know, giving up the argument we would note that Mr. Carol in his pleading raised an issue regarding service of all 134-unit owners - apartment unit owners of the resort - Hanalei Bay Resort. Now the reason why we have not given notice to anybody yet is because our request for hearing 65 was not granted and of course, upon request of hearing we would make all appropriate notifications. And we’re not saying necessarily we would have to notify everybody at this time but we would make all the appropriate publications to cover said costs. So what we would like to do today and - and we know again Mr. Carroll made his filing (inaudible) would presumably make a motion to intervene. But I have been informed that they’re also possibly other neighbors from the Princeville area that live next to Hanalei Bay Resort or Hanalei Beach and Racquet Club that may also have an interest because of the activity going on over there. So what I don’t want to do is create a situation whereby a - a decision is made - a hearing is held without appropriate notice, and even (inaudible) and it qualifies as contested case hearing. But the Planning Department’s own rules haven’t been followed in doing so. So I believe at this point given the submittal by (Inaudible), we should or the Commission should hear it and grant the contested case hearing. We anticipated that they would want to be involved, um, and set it out before hearings officer. Because as you know there is a lot of confusion. All parties I think can agree there is a lot of confusion with this issue. It is a nearly a 50-year-old issue at this point. There is, we would like to take testimony. There is numerous amount of exhibits and various other proceedings. A lot of legal issues are raised and those would be most appropriately held and addressed via an organized contested case hearing, per the Commission. With that, we would like to start with that matter and then set this out as appropriate. Chair Nogami Streufert: So let me (inaudible) understand those. You want a hearing. You want the Planning Commission to have a hear a contested hearing on this thing or some— Mr. Trask: An agency hearing, correct, which is defined as in effect the contested case hearing under the rules of the Commission per Rule 1-10-6 regarding the declaratory orders. Chair Nogami Streufert: I am going to have to defer this to the attorney. Ms. Tumbaga: So regarding a hearing under the Commission’s rules for declaratory orders Rule 1-10-6 states, “Request for hearing - Although in the usual course of disposition of a Petition on for a Declaratory Ruling no formal hearing will be granted to the petitioner or to a party in interest. The Commission may in its discretion order a hearing. Any petitioner or party in interest who desires a hearing on a Petition for Declaratory Ruling shall set forth in detail in his request the reasons why the matters alleged the petition together with supporting affidavits or other written briefs or memoranda of legal authorities will not permit the fair and expeditious disposition of the petition. And to the extent that such a request for hearing is dependent upon factual assertion shall accompany such request by affidavit establishing such facts and shall deposit with the Department such amounts as deemed necessary to cover applicable publication costs. In the event a hearing is ordered by the Commission, the rules relating to agency hearing procedure before the Commission shall govern the proceeding.” Mr. Michael Carroll: Madam Chair, may I interrupt? My name is Mike Carroll. I represent the Association apartment owners. We filed a brief where we specifically objected to the request for hearing and at the opportune time, I would like an opportunity to address the Commission with our specific objections to the request. 66 Chair Nogami Streufert: At this point, I am not…I would like to have the attorney weigh in on this. What are the options? What are we doing at this point? Ms. Tumbaga: Well at this point you have…what we have is a petition that’s been filed with the Commission, a document was filed by this other party. The rule is clear that the… in the usual course of disposition no formal hearing is - will be granted. It’s a discretionary for the Commission. I am going to note that the filing done by the other party came in yesterday. That’s the day before the hearing. So the matters raised in that filing that Mr. Carroll is addressing are - is that something that the Commission should be discussing with their attorney as far as their liabilities as far as what they can do. That is a reason for an executive session. Again the filing just came in yesterday so if the Commission wants to -- I’m hearing an echo -- if the Commission wants to go into executive session that was an unanticipated event because it was filed after the agenda had already been published. That is one option. Chair Nogami Streufert: So our option right now is that we could go into executive session just to discuss the legal liabilities and options that we might have. Okay? Ms. Tumbaga: That is an option if - because this is complicated and the parties are raising various issues and there again could be more than one party that is interested. Again the hearing request is a discretionary - is not mandated that the Commission give a hearing. Um, but to discuss further what has been raised and the new filing again with the - with the Commission again it was filed yesterday so there hasn’t been an opportunity really for - for the Commission. I do not even know if the Commission has been able to get through all of the - what was filed. Mr. Ho: Madam Chair - Madam Chair. Chair Nogami Streufert: Yes. Mr. Ho: I believe I would like to make a motion that we move into executive session please. Chair Nogami Streufert: Is there a second? Ms. Cox: I second. Ms. Tumbaga: Just to remind the Commissioners that the reason for the executive session needs to be stated on the record. So— Chair Nogami Streufert: So could we have an executive pursuant to the Revised Statute Section 92-4 and -84, “The purpose of this executive session is to consult with County’s legal counsel on questions issues, status and procedural matters. As counsel involves consideration of the powers, duties, privileges and unities and/or liabilities of the Commission and the county as they relate to the matter of “matter of the Petition for Declaratory Order Regarding Non-compliance with the Comprehensive Zoning Ordinance and Variance Application V-72-20, memorandum in support.” That is it. Is that - does that accurately reflect what we would like to do? Ms. Tumbaga: Yes, that is fine. 67 Chair Nogami Streufert: Okay, so that is the, that is the Chair that is the motion on the floor or do we have to make it - vote for again? Ms. Tumbaga: That is fine. Chair Nogami Streufert: So could we have a…we will just have…well, no, we will have - we will have a roll call vote on this since this is now becoming very legalistic. (Inaudible), uh, hence, we do not have Mr. Hull and I will do this. Donna Apisa has recused herself. So who do we have now? Mel Chiba? Mr. Chiba: Aye. Chair Nogami Streufert: Helen Cox? Ms. Cox: Aye. Chair Nogami Streufert: Gosh, I am sorry, I am - I am running out of names. Ms. Otsuka: Frances DeGracia. Mr. Ho: Frances. Chair Nogami Streufert: Frances? Mr. DeGracia: Aye. Chair Nogami Streufert: Sorry, I am order here, Lori. Ms. Otsuka: Aye. Chair Nogami Streufert: Okay, so I have six and I am aye so there is six of us who want to, one one is recusing herself, so we will go into executive session and shortly after our executive session we will be coming back to the regular Planning Commission meeting. Mr. Trask: Yeah, Chair? This is Mauna Trask for the record. Uh, just for the record we would object at this time to a holding of executive session in order to preserve the issue for appeal. That is all. Chair Nogami Streufert: I am not sure I quite understand that. Pass this back to our attorney. Ms. Tumbaga: The attorneys are stating that he is objecting and it will be reflected in a minute. Ms. Otsuka: So you are saying we can still have the executive session even if the attorney is against it. He just stated that for the record. Ms. Tumbaga: That is correct. He is- he is preserving that he has objected so that it will be noted 68 in the minutes that he disagrees. Ms. Otsuka: Okay because I understand he stated it was not listed on the agenda so I can see his point for us not to have an executive session Ms. Tumbaga: If the Commission would like to be extremely cautious with this, matter and notice that on the agenda as its own separate item for the next meeting that is another option. You would need to reconsider the vote that you have just done. But - and there are a few other things that need to be dead-lined but happen when a petition for Declaratory Judgment has been filed. But if the Commission prefers to in all - out of caution move this item to the next meeting that is another option. Again, you would need to reconsider the vote that you just took and not move into executive session and we can - that - that is an option for the Commission. Chair Nogami Streufert: Okay. So the option is we can go into executive session or we cannot go into executive session and then what are our options? Ms. Tumbaga: If you look at the Commission’s rules regarding a Declaratory Petition, just give me one moment. Sorry, I have many windows open. Hold on one moment. Okay. So for Declaratory Petitions, Rule 1-10-3, Commission Actions states, “Within 45 days after the submission of a petition for Declaratory Ruling the Commission shall either deny the petition in writing stating the reasons for such denial, or issue a declaratory order on the matters contained in the petition, or set the matter for hear- hearing. However, that if the matter’s set for hearing the Commission shall render its findings and decision within 45 days after the close of the hearing.” So the since the petition has actually submitted on I believe October 26, the 45-day mark would make that December 10. So the Commission has the option let me just - sorry, give me on moment again. There is a rule that the Commission has, Rule 1-10-3, that states for good cause that the Commission may waive or suspend by a majority vote any rule or procedure established herein. So what you could do is vote to waive that rule. There is various reasons that give you good because, for example, during Covid you are not meeting twice a month therefore the Commission did not even have this on their agenda until today, which is two days before the 45 days. Had it not been for Covid you most likely would have met on this petition last month. Additionally there are multiple others. There’s a lengthy filing that was delivered to the Commission yesterday, which again does not give the Commission time to even look into that to even see whether you would consider it. Additionally the governor’s latest proclamation has suspended HOS91 to the extent necessary such that any deadlines may be waived or suspended. Again, because of Covid I think that has led to a lot of this - this short turnaround that the Commission has. So if you choose to go down that route you could waive your 45-day requirement so that this matter can be put on the next agenda along with an executive session and that will give the Commission the opportunity to review carefully all of these various filings. Mr. Carroll: Madam Chair, if I may have an opportunity to just respond real briefly if it would be okay? 69 Chair Nogami Streufert: Please. Mr. Carroll: So just in short, the reason we filed the opposition when we did is we did not have notice of the petition until late last week or mid last week. So we filed it as quickly as we could. We believe that there really is overwhelming grounds to dismiss the petition pursuant to 1-10-3 - excuse me 1-10-4. and to the extent - we’re in support of the Commission going into executive session and if I could make a suggestion. If - perhaps if I were to articulate the grounds - to summarize the grounds in our petition I think that would - or opposition - I think that would make it even clearer as to why it would be appropriate for the Commission to go into executive session. I believe that it’s appropriate to go into executive session now, however, I think if I can highlight a couple of points that might even further emphasize why it’s appropriate for executive session because ideally what we’d like to see is we would like to see the this petition dismissed today. And, your Honor, I’m sorry. Chair Nogami Streufert: Let our attorney get involved in this because this is now, beyond my knowledge of the of the legal\ limitations that we have. So I will turn this over to Teresa. Mr. Trask: Sorry, Your Honor let me just, I am sorry, petitioner would object because we are just talking about the hearing at this point. If Mr. Carol’s going to get— Chair Nogami Streufert: If that— Mr. Trask: If he gets (inaudible) this case, we get merits, we get to argue the merits of ours, and then we will contest the case. We might as well just set it for hearing so everybody can - can participate. Chair Nogami Streufert: Well I think we are there yet. I am trying to find out what our options are and let the Commission decide how we want to proceed from here legally so that we are all in compliance with whatever laws or regulations we have to be in compliance with. If I could ask Teresa to join the conversation. Ms. Tumbaga: So again, the Commission to be conservative could waive their 45-day rule requirement based on Covid, based on the short time frame that the Commission has been put into because their own - they are dealing with this petition and a lengthy response that was sent in one day before the hearing. The Commission can choose to waive that rule, to set this matter for its next meeting, and to set an executive session. At that point, the Commission will be able to discuss with their attorney the petition. If the Commission wants to discuss what was raised by that opposition which was unanticipated which was filed yesterday then the Commission could vote, which it technically has already done that, to go into the executive session to discuss those things raised by that opposition, again which was filed yesterday. Chair Nogami Streufert: So at this point one of (inaudible), Mr. Ho. Mr. Ho: Trying to get set-up. All right. Would it, Does anybody have Mr. Carroll’s petition of objection? I don’t have anything - any reading on that so, it’s - it’s a one - it’s a one-legged, race here, Mr. Trask - not being facetious but, I do have his (inaudible) so I would not know his 70 objections to your to your petition, Mr. Trask. I strongly suggest that we have an executive session and consult our attorney. I am lost right now. Mr. Trask: Yeah and to answer that, Mr. Ho, I would agree because I haven’t had enough time to review myself. And like I said earlier, the appropriate process is for this Commission to decide whether or not to hold a hearing. Then the reason why Mr. Carroll was not given notice and we would’ve given notice to everybody and I would have included the AOAL is because the hearing hasn’t been set yet. And so what we would argue is effective what you could do within the 45 days now if you set this for agency hearing everyone has an opportunity to participate. If this gets set in a month and only Mr. Carroll’s there no one else has the ability to participate in this within the Princeville community except from the AOAL. And like I said, I’ve been informed today that neighbors also want to participate. So we want the hearing to take place. We think that these are important questions only the Commission can answer them. Mr. Carroll has his arguments. There is numerous arguments. And so the best way to hear this is if you know, if you don’t have the pleading before you, you’re right, what’s the purpose of talking about it in an executive session? This should be set for hearing to allow Mr. Carroll and anyone else to participate. That is the appropriate process. And (inaudible) been very diligent. They jumped the gun on this one. So they’re here today. But it wasn’t our intent to subvert anybody. It was to have a hearing. And - and you have to make that call first, is what we’re— Mr. Carroll: If I may respond briefly, I would urge the Commission and their counsel to review, the Citizen’s Against Reckless Development versus Zoning Board of Appeals case, it is a Hawai’i Supreme Court Case and it basically says that the Declaratory Order Procedures are not an appropriate vehicle to review agency decisions. It has intended to review decisions that have not yet been made. And they are completely using this process in an in an inappropriate means and there’s a number of other procedural issues that just makes this completely impractical, or not in accordance with the rules aside from the fact that they’ve already litigated this issue five times before other proceedings, including this body one year ago. So, Your Honor, we would - excuse me - Members of the Commission, we would respectfully ask that, or suggest that you go into Executive Session so your counsel can explain to you that case and the other procedural issues that makes this petition entirely appropriate. Mr. Trask: Okay, and on that now we are arguing the merits of the case. And what we— Chair Nogami Streufert: No, we are not. Mr. Trask: No, state (inaudible) says the denial of request for contested case constitutes a final decision order that is appealable to the Circuit Court. And now, what we would say in response to that argument is that this is not a Citizens Against Reckless Development issue. There’s no agency decision. Mr. Hull’s Declaration is not a agency decision. That’s his deck. You have not made any decision yet, so we are not overturning any decision. The decision is, the permit back in ‘72 we are asking what it means. Given the abrupt 180 that was done a month ago, or two months ago. 71 Chair Nogami Streufert: Let’s do a time— Mr. Ho: Gentlemen, I am sorry. Let me jump in here and just, I have the motion on the floor for Executive Session. Madam Chair, let me withdraw that motion of Executive Session and if Madam Chair would, want to further discussion, then I take my motion back and let the discussion begin and we will have my motion or another motion after that. Thank you. Chair Nogami Streufert: If you withdraw your motion, then whoever seconded it will also have to withdraw their second. Ms. Cox: I seconded it and I’m willing to withdraw it, but I feel uncomfortable moving forward too far without, if there are other people who have a vested interest and want to participate, it seems like we should schedule it in such a way that allows those people to be - to have their voices heard. Chair Nogami Streufert: If that were the case, then that would be - would be another motion, but we are not— Mr. Ho: I believe - I believe what— Chair Nogami Streufert: (Inaudible) withdrawing the motion. Mr. Ho: I am sorry. I think what we are moving down the road to is probably a deferral with the Executive Session in there. Chair Nogami Streufert: No, right now, we are only withdrawing the motion to go into Executive Session. Mr. Ho: Okay. Chair Nogami Streufert: Okay. Then we will decide what we are going to be doing after this. I am trying to make this very simple, so we all understand it, so I understand what we are doing when we are doing it. Ms. Cox: Maybe somebody could explain, maybe I am the only one who is a little confused, but I am wondering if somebody could explain the difference between deferring it and having an Executive Session, and taking it up next meeting as opposed to setting a hearing date and…which would also be in the future, because they both seem to give us time to look at the documents, since I’m honestly not quite sure what the ramifications of each of those are. Maybe Teresa can explain that, I do not know. Ms. Tumbaga: The hearing is a very different matter from deferring the item. If you defer the item to the next meeting and you do not make a decision on the hearing, then you will make that decision in the future. Setting a matter for hearing is essentially granting the request for hearing. Per your rules, no formal hearing is us- is granted during the usual course of this position of the petition for declaratory ruling. It is the Commission’s discretion to grant one, and the reasons 72 why a hearing is necessary need to be set forth by the petitioner. The person requesting it needs to provide affidavits, briefs, memoranda, explaining why it is that a hearing in which the Commission takes factual evidence versus simply looks at the law - why is that necessary. So, that in itself is a decision that the Commission would be making before which they should be consulting their attorney. To defer the matter simply will put it on for the next agenda, in which case an Executive Session can also be scheduled for that meeting. Chair Nogami Streufert: With - without deferring (inaudible) Executive Session. Look at the merits of the case, is that correct? Ms. Tumbaga: I am sorry, what was the question? Chair Nogami Streufert: So, without deferring this, we cannot really have an Executive Session with you. Ms. Tumbaga: Because the filing by Mr. Carroll and his firm occurred after the agenda was already posted and it raised issues and it argued against a hearing, you could do a limited executive session. If you take the vote, because it was not anticipated that they would be filing those documents. To be conservative and put the entire item on for executive session, you could set it for your next hearing, but we do have that option that go into Exec Session today based on that unanticipated filing. Chair Nogami Streufert: By conservative you mean, the more careful or considerate way to do. Ms. Tumbaga: Yes. Chair Nogami Streufert: Okay. Okay, so, all right Commissioners, I guess, um, we have (inaudible) or we can have a fuller executive session and (inaudible) and discuss the entire case. If we defer this to our next meeting. Is that my understanding, Teresa? Ms. Tumbaga: Yes, if you do choose to defer it to the next meeting, you will need to vote to waive your rule because the rule itself requires the Commission to act within 45 days of submission, so that would be procedurally what would need to happen. So that would allow the Commission to then, you know, place it on their next agenda. Chair Nogami Streufert: If we were to waive the 45-day requirement, would that also mean that both parties would also have to agree to that waiver, or is it something that the Commission could do without having to agreement by both... Ms. Tumbaga: If the Commission waives the rule, then the Commission waives the rule. It does not require the parties’ agreement. Chair Nogami Streufert: All right. Ms. Tumbaga: There are provisions in other areas where, you know parties in contested cases can agree to certain things, but that’s not within this Declaratory Order or Chapter. 73 Chair Nogami Streufert: What would a limited executive session be limited to as opposed to a full (inaudible). Ms. Tumbaga: Well, the filing that was filed yesterday, brought up issues of other parties’ involvement possible interest in this petition, as well as the argument against a hearing, so, the Commission could discuss those things in the Executive Session as it relates to their privileges, liabilities and immunities. Chair Nogami Streufert: Is it possible that the filing that was done yesterday (inaudible). I could not open up the (inaudible). I think that is the - okay. Ms. Tumbaga: If - no - if the Commissioners have not even seen it or reviewed it, it may be more beneficial to just defer this whole matter to the next meeting. Chair Nogami Streufert: All right. Do I have a motion - or, is there any discussion among the Commission members? We have now withdrawn the motion to go into Executive Session and we have withdrawn the second to go into the Executive Session. With that being the case, do we need to vote on that or just at – withdraw? Ms. Tumbaga: The withdrawal is fine. Chair Nogami Streufert: Okay. All right. So, now we don’t have anything on the table. (Inaudible) by the executive, by the Commission on what (inaudible). Ms. Cox: Seems like since we have not even read the thing that we got yesterday because we could not open it and it did not come in until late yesterday. It seems like maybe the deferral is the - is the best route. Chair Nogami Streufert: Are there any other comments from anyone else? Ms. Otsuka: So, we need to make a motion to waive the 45-day, is that—? Chair Nogami Streufert: That’s the first one, yes. 45-day rule. Ms. Tumbaga: So, the rule is, um, rule 1-10-3. Mr. Trask: Madam Chair, if I may, real briefly, I just this is Mauna Trask for the record. You know, I just spoke with my client and we would agree to a deferral of this matter. Of course, we would like a hearing be granted, but we would agree to a deferral on this matter and waive that, so you can be, you know, you can review the material. I think that is just a basic courtesy. And so, you know, without prejudice to any of the other issue, we wouldn’t object to that, just to give you more time. Ms. Cox: I make a motion - this is Helen Cox. I make a motion to waive rule 1-10 10, uh. 1-10- 3, which is the 45-day rule. So that we may defer this item ‘til the next meeting. 74 Ms. Otsuka: Teresa does she need to include because of COVID. Ms. Tumbaga: Hi, I am sorry, yes. For good cause, that is the standard so, just, articulate the cause. Ms. Cox: Okay. Do have to start over or can I just add it? Mr. Hull: Sorry, could I just jump in real quick. This is Kaaina Hull, Plan Director, I am not acting as your clerk, but just also as somebody who will be a party to this proceeding should they, the hearing be scheduled. I would just note, and for you guys to discuss with your attorney, that perhaps the January meeting may not be appropriate as you will have a new chair being sworn in on that January meeting and that chair will have to be conducting the proceedings. And generally, that chair should be working with the attorney’s office to understand how these proceedings go and without having the chair elected, the attorney’s office won’t be able to work with that chair. So, I would recommend or ask that you consider and discuss with your attorney that the deferral, if it occurs, happens on February - is moved to February, would be February 9th Planning Commission meeting. Chair Nogami Streufert: We were still on waiving the 45-day rule, though, right? Before we even get to that. Ms. Cox: Yeah. Ms. Tumbaga: Sorry. I am just going to add - when you make the motion, maybe, oh— Ms. Otsuka: If we are going to do it February 9, we need more than - oh, I guess as long as we defer it to the February 9, you do not have to give a specific day count, yeah. Chair Nogami Streufert: Right. Ms. Otsuka: We do not have to say, like, 90 days, okay, got it. Ms. Tumbaga: So, the motion should cover pursuant to rule 1-2-27 for good cause, the Commission moves to waive rule 1-10-3. The good cause includes delay in meetings caused by Covid as well as filing - a filing received one day prior to the hearing, giving the Commissioners limited time to review. Chair Nogami Streufert: So, does all of that have to be put into one motion? Ms. Tumbaga: Yeah, I think if you could articulate the rule that it is being waived pursuant to. As well as the rule that is being waived and the (inaudible), yeah. Mr. Trask: Madam Chair, this is Mauna Trask, I am conferring with my client. They are not available in February. Could we do it March? Is that possible? Sorry, I apologize. They want to insure that they are here and available. 75 Chair Nogami Streufert: Kaaina is there any problem with that. Mr. Hull: The Department, the Department would not have any problem with that. Chair Nogami Streufert: Okay. So, the motion should be pursuant to 1-2-27. Commission waives the 45-day, uh, waive rule 1-10-3, which is the 45-day (inaudible) due to Covid and the - and the (inaudible) good cause and (inaudible) is that correct? Ms. Tumbaga: Yes. Ms. Otsuka: I believe it is March 9. Chair Nogami Streufert: We do not have to - oh, I guess we could put a date to defer it to that date. We are not there yet, we are waiving the 45-day rule first. Then we will get to when— Ms. Otsuka: Does not include in that? Chair Nogami Streufert: No, not, we are just waiving the rule. Okay, so, can I have a motion that pursuant to 1-2-27, the Planning Commission waives rule 1-10-3, the 45-day rule, due to Covid and to late submission (Inaudible). Ms. Cox: I will make that motion, especially since you said it all. Chair Nogami Streufert: Do we have a second? Ms. Otsuka: I second. Chair Nogami Streufert: Okay, it has been moved and seconded that we waive the 45-day rule. Any— Ms. Otsuka: Due to good cause. Chair Nogami Streufert: Due to good cause. Is there any...Are you ready for the vote? Okay. All right, then we will start again. Donna Apisa not a part of this. So, Mel Chiba? Mr. Chiba: Aye. Chair Nogami Streufert: Helen Cox. Ms. Cox: Aye. Chair Nogami Streufert: Francis DeGracia. Mr. DeGracia: Aye. 76 Chair Nogami Streufert: Roy Ho. Mr. Ho: Aye. Chair Nogami Streufert: Lori Otsuka. Ms. Otsuka: Aye. Chair Nogami Streufert: And Glenda Nogami Streufert, Aye. (Unanimous voice vote) So, there was 6:0. Motion passes. we are - we give - waive the 45-day requirement. Now, this is where if we want to defer it, we can defer it. And or we can set the date. Motion. Thank you Kaaina. Do we have a motion to defer this, or what would you like to do at this point? Ms. Cox: I move that we defer the petition for a Declaratory Order for the item on the agenda, the petition for Declaratory Order regarding Non-Compliance with the Comprehensive Zoning Ordinance and Variance Application Permit V-72-11, to March - what was the date? Ms. Otsuka: 9th. Ms. Cox: 9th, 2021. Ms. Otsuka: Can you also add, to include it in an executive session? Ms. Cox: And that we include an executive session to discuss the legalities. Ms. Otsuka: On the agenda. Ms. Cox: On the agenda, yes. Included on the agenda. Ms. Otsuka: Yes. Ms. Cox: Thank you, Lori. Ms. Otsuka: Thank you. Chair Nogami Streufert: Good of you to have done that. Is there a second on that motion? Ms. Otsuka: I second. Chair Nogami Streufert: It’s been moved and seconded to defer this to the March meeting. (Unintelligible). Is there any discussion - with an executive session? Are we ready for the vote? All right, do the vote one more time. Mel Chiba? Mr. Chiba: Aye. Chair Nogami Streufert: Helen Cox. 77 Ms. Cox: Aye. Chair Nogami Streufert: Francis DeGracia. Mr. DeGracia: Aye. Chair Nogami Streufert: Roy Ho. Mr. Ho: Aye. Chair Nogami Streufert: Lori Otsuka. Ms. Otsuka: Aye. Chair Nogami Streufert: Glenda Streufert, aye. (Unanimous voice vote). 6:0. Motion passes. It’s been deferred to the March 9th, meeting. Mr. Hull: Okay, thank you, Madam Chair. Thank you members of the Commission, moving on to the next agenda item K. Mr. Trask: I am sorry - I am sorry Mr. Secretary, one final thing. Just given that you are going to hear - going to review the pleadings on both sides. I’d like to know, per Rule 1-6-16(d), no reply or supplemental memoranda shall be filed unless specifically allowed by the presiding officer, but Petitioner would request is the opportunity to provide a reply to Mr. Carroll’s pleading once it’s been re- thoroughly reviewed. Also follow up with the information I was provided today with my client regarding - and this would be part of the reply, any other interested parties in the community that - that would want to participate in the agency hearing. That’s just to kind of tie everything up and I - again, I apologize for interrupting, but I would have to make that request to Madam Chair today. Mr. Carroll: And if they are allowed to - permitted to file a reply, when - respectfully ask to file a very brief sur-reply to that, no longer than five pages. Chair Nogami Streufert: Can I have the attorney back. Ms. Tumbaga: Hi, this is Teresa. I am sorry, Mr. Trask, could you cite that - state that rule you cited again. Mr. Trask: Sure, it’s, uh, Rule 1-6-16, “d” as in dog. That is the, I believe it is the 2016 amendment - I am not sure. It is the most recent amendment to part - I am sorry, October 2017. It is the most recent amendment to Chapter 6 of the Commission Rules. Ms. Tumbaga: Okay, thank you. Commissioners, I am going to have to look at this, so I do not know if you want to take a short - give me five minutes. Chair Nogami Streufert: How about if we take a five-minute break? We will be back. 78 Ms. Tumbaga: Thank you. Chair Nogami Streufert: 40- 2:35. Thanks, Teresa. Ms. Tumbaga: Thank you very much. The Commission recessed this portion of the meeting at 2:23 p.m. The Commission reconvened this portion of the meeting at 2:35 p.m. Chair Nogami Streufert: Call the meeting back to order after recess. Mr. Hull: Madam Chair, because this is still over the discussion of the previous issue, I would ask that perhaps you could do the roll call, Madam Chair make sure the staff is here, or the Commissioners are here. Chair Nogami Streufert: Okay. Donna Apisa. Donna? Are you here? Ms. Cox: She may not be, since she does not have to be. Chair Nogami Streufert: Mel Chiba. Mr. Chiba: Here. Chair Nogami Streufert: Helen. Ms. Cox: I am here. Chair Nogami Streufert: Francis. Mr. DeGracia: Here. Chair Nogami Streufert: Roy. Mr. Ho: Here. Chair Nogami Streufert: Lori. Ms. Otsuka: Here. Chair Nogami Streufert: Six present. Where are we? What (inaudible) meeting or do we still have to (inaudible) that we need (inaudible)? Ms. Tumbaga: I was looking into the request by Mr. Trask to file a reply. 79 Chair Nogami Streufert: Okay. Ms. Tumbaga: So, I’ll just okay, so the rule cited by Mr. Trask, 1-6-16, it actually falls into the agency hearing procedures and just to be clear, the Commission has not set this matter for hearing, so we’re not - again, this is not set for hearing. However, the Commission, the Chair would have the discretion to allow it under Rule 1- 2-8 gives the Chair the discretion or the power to (inaudible) perform such other duties as may be required by law, or such as may properly a- pertain to such office. So, if the Commission would like to receive a reply from Mr. Trask that is an option that the Chair could allow. It is really up to you, it is your discretion again. I guess in all fairness again, the rules for Declaratory relief, they do not, necessarily allow an opposition to be filed either. They’re silent on that and an opposition was filed, so if the Commission thinks it would be helpful to receive a reply to the opposition, I just, it would be good to set a due date so that we - the Commission has ample time to review. Chair Nogami Streufert: (Inaudible). Do we have other options? Ms. Tumbaga: Other options would be to not allow a filing, but again, you know, the declaratory judgment rules of the Commission are silent. An opposition to the petition was filed. So if the Commission thinks it may be helpful to allow a reply that is an option. Chair Nogami Streufert: (Inaudible). I do not know what the consequences are going to be for either decision or either way we go. What the advantages or disadvantages are. Ms. Tumbaga: Well, the petition wa filed and then, another party filed an opposition to that petition, right? The rules do not necessarily state that is allowed, yet it was filed and the Commission is going to be reviewing that. The Commission is not granting a hearing at this point. No hearing’s been set, so none of those agency procedures would come into play at this stage, however, if the - because the Commission will be at least reading the documents filed by opposing counsel, a reply would give you an opportunity to - to just see the legal arguments by Mr. Trask in response to that opposition. Chair Nogami Streufert: Oh, that is an interesting one. If no one reads the documents since we have not gotten it yet. Does that change anything? Ms. Tumbaga: I think that would be more a discussion about this would more likely fall into advising. Something that I the attorney would want to do an executive session because we are getting into liabilities, privileges, and duties of the Commission. Chair Nogami Streufert: Well at this point, it appears that if we defer it - it does not mean that we are either he- we are holding a hearing. We are just going to - it is just a petition right now and then we have just deferred that petition until March. Is that correct. It does mean that we are going to have hearing. Ms. Tumbaga: That is correct. Chair Nogami Streufert: Okay. So if we defer the petition for declaratory order to March that 80 still does not say that we are having a hearing we’re just going to hear the whole thing or we’re just going to hear what we would of heard today, and then our actions could be either to dismiss it, to defer it, or to hold a hearing. At that point we could make that decision, is that correct? Ms. Tumbaga: Yes, that is correct. Chair Nogami Streufert: Okay so if we just defer the petition right now or declaratory order to March then (inaudible) the greatest flexibility or the next Chair the greatest flexibility. That also correct. Ms. Tumbaga: Yes, basically, you have enacted one way or another so it remains to be acted upon. Chair Nogami Streufert: Okay. And could I have - a motion to defer? Is that what you would suggest or can I ask— Mr. Hull: Madame Chair, if I could just interject this for clarity sake and, again, I am a party so I am not speaking as your clerk. But, the motion I believe was already acted upon. I think what kind of threw this whole discussion for a loop is Mr. Trask wanted to preserve his right to submit since your rebuttal, and I think what you’re saying is indeed, the next chair can make that determination so the motion has the action has been to defer. And that’s acting upon. Mr. Trask: And it has just to qualify the statement by Director Hull as the party. You know, Mr. Carroll submitted an opposition and like Ms. Tumbaga said it - that is not provided for in the rules but he did do it. And I think due process would require you consider it and so therefore because it appears to have raised more issues. We would like an opportunity to respond to some of them and then he is asking for you an opportunity to respond to what we say. Now if this is just normal course in a civil proceeding. So, you know, we will we are not going to comment on our position regarding his request. I think the given that we have the time and that this is an important issue. We think it would be appropriate just to provide you with as much information that would assist you in making that decision. Chair Nogami Streufert: And you propose to help us make this decision by a rebuttal? Is that what you are saying? Mr. Hull: Mauna Kea, you are muted. Mr. Trask: Okay. Yeah and it would help because some of the arguments raised are beyond that which we included our petition. We believe it would be appropriate for - and in a normal civil case, a reply is allowed. Now Mr. Carol is requesting opportunity to respond to our response, which is, you know, a decision that you guys have to make. But we do believe that the more information that you’re provided in the form of affidavits, exhibits and legal argument only helps you serve the public interest better and enforce the tenants of the CZO and (inaudible) laws in the best way possible. So, and I think the court precedent favors, you know, hearing and submittals and consideration versus turning a blind eye (inaudible). 81 Mr. Hull: And to add and perhaps if your attorney needs to clarify this, Madame Chair, the sub- the submittals, all potential rebuttals, and responses I should say, can be determined by the Chair when that Chair is setting the agenda as well in March. And correspondence can be made from the Chair to the petitioners, as far as deadlines or timelines are set to get those responses in. And what I kind of am getting at is at this point there’s no further action required by the Commission. The motion was acted upon and should the new Chair decide to set the agenda with the responses that will be at the discretion of the new chair. Mr. Trask: You know we would object I mean, again, Mr. Hull is speaking as a party. He is unrepresented. It’s been defer the current question by the two other parties at this point are to make submittals just to in order to flush out the legal arguments. These aren’t simple legal arguments and so we - there’s a lot of time - if you said like for example a deadline for any reply in the beginning of February any (inaudible) by Mr. Carroll by February 15th well then you’ve got three weeks to consider the supplemental before the next hearing. So, that’s what we would say. Chair Nogami Streufert: Could I have our attorney jump in on this? Ms. Tumbaga: I think the best thing for the Commission to do would be to make a determination at whether to allow the briefing or not at this meeting because this is really the time in which if the Commission does want to receive further briefing you can receive in advance of the next meeting. Chair Nogami Streufert: But if we a (inaudible) briefing than it would be to hold their hearing as opposed to dis-, as opposed to dismissing. Is that correct? Ms. Tumbaga: No, the only request being made by the attorneys right now is that -so there is not hearing set. This has simply been deferred to another meeting. So no decisions have been made either way. Mr. Trask filed a petition for declaratory relief and then Mr. Carol’s office filed an opposition right. The opposition is not provided for in the rules but it was filed. Mr. Trask is asking to file a reply and that is just a term that means it is a document that responds to the legal arguments made in the opposition. And then Mr. Carol further asks for a sur-reply which is another response to the reply. Therefore, it is basically to give further argument - further legal argument. Chair Nogami Streufert: So we have already received it, is that correct? Because it has been received by the Planning Department. Ms. Tumbaga: The— Chair Nogami Streufert: (Inaudible) open it up and— Ms. Tumbaga: (Inaudible) the oppose… I am sorry— Chair Nogami Streufert: The op— 82 Ms. Tumbaga: The, sorry. Chair Nogami Streufert: The opposition has submit (inaudible) open it but it was submitted and it was, I guess received by the Planning Department so therefore, it has been received, is that correct? Ms. Tumbaga: I believe it was filed with Planning Commission so I do not know the exact time and then I believe it was sent out as a - a supplement to the packet. And that perhaps is why not all Commissioners were able to review it but as far as procedurally, yes, it was submitted to the Commission via the Department. Chair Nogami Streufert: So if that has already been done then it only seems far to have the (inaudible) but not. Ms. Cox: As a Commissioner, I would say that I would prefer to have as much information as possible as early as possible. I agree that we need to make the decision today and I actually would agree that I would want both the reply to the opposition and then a reply the - if the opposition wants to reply that is okay with me too. The only thing I would say is that we do not want reams and reams of stuff to read. Ms. Tumbaga: You could limit the sur-reply to, you know, only rebuttal of any arguments raised in the reply, you know. Ms. Cox: Yeah that would be great. Chair Nogami Streufert: Okay. Well if that is the case, and if - are - does any other Commissioner want to weigh in on this? I will go with trying to (inaudible) as much information- (inaudible). No more than (inaudible) bonding to whatever issues that are already brought up (inaudible). Could that be done? Mr. Trask: Yes, Chair. Chair Nogami Streufert: Teresa you are muted I think. Ms. Tumbaga: Sorry, there was a little bit of interference when you were speaking earlier so I only caught the end of it when you said, can this be done. Chair Nogami Streufert: Okay. That whatever rebuttals will be limited to whatever issues have already been provide - or been put forth and that they be edited in length. (Inaudible). Ms. Tumbaga: So you could— Chair Nogami Streufert: Or five minutes or three minutes. I am not sure how we would do this. Because we will probably still be in a Covid environment so it is going to be by Zoom, continue to be by Zoom. That is my (unintelligible). 83 Ms. Cox: I think we are talking about getting documents ahead of time. Chair Nogami Streufert: They still have the rebuttals and how much rebuttal do you want to have that - we already have a docue— Ms. Cox: I thought the rebuttal was also written. The response were written. Chair Nogami Streufert: Could be. Mr. Trask: Chair, we are fine with the ten-page limit to only arguments raised by the (inaudible). Mr. Carroll: And Chair, we are okay with ten pages for our sur-reply as well. Chair Nogami Streufert: Okay. Ms. Tumbaga: And then Chair, do you want to set due dates for both, to— Chair Nogami Streufert: What would be - what would be the due dates that you would suggest? Ms. Tumbaga: Well, we should give the Commissioners enough time to review so I am sorry Kaaina, what was the date of the next meeting. March— Chair Nogami Streufert: 9th. Mr. Hull: March 9th. Ms. Tumbaga: March 9th. So does the Commission prefer having these 30 days prior to the meeting enough time for - because this is kind of far out so. Chair Nogami Streufert: Would 45 days from now at the end of January work for everyone? That would give people at least a month to review the documents. Ms. Tumbaga: So 45 days from now would be the, uh, reply and then you would have to set a new deadline for the sur-reply to respond to the reply. So 45 days from today would be January 22. Chair Nogami Streufert: Okay. So if we did to January 22, and we had a rebuttal and when could we get that back do you think? A ten - no more than ten pages. Mr. Carroll: If I could get two weeks that would be - that would be appreciated. Ms. Tumbaga: So— Chair Nogami Streufert: That would be middle of February. 84 Mr. Carroll: I will be right back. Chair Nogami Streufert: That would give us a month before we had the meeting. Okay. If those dates are okay with both attorneys. Mr. Trask: So just to confirm so January 22 is reply and then February— Chair Nogami Streufert: 5th. Mr. Trask: 5th is rebuttal. Thank you. Chair Nogami Streufert: Okay. Does that resolve that issue for right now? Mr. Carroll: Thank you Chair. COMMUNICATIONS (For Action) Mr. Hull: Moving right along, we have no Communications for Actions. COMMITTEE REPORTS Subdivision Mr. Hull: Okay Madame Chair moving onto the next Agenda Item. We are on Agenda Item K. Committee Reports K.1 Subdivision. Subdivision action matters listed in the Subdivision Committee Agenda. I will turn it over to subdivision committee Chair Ho. Chair Ho: We had four clients for consideration this morning, Tentative Subdivision Map Approval Kukui`ula Development was approved, Tower Kauai Lagoons was approved, Final Subdivision Map Approval for Robert S. and Carolyn R.V. Barros approved, and Keopele V. & Ashley H. McBride and Paul E. Pascuilla Trust. Den and Narcisa Concepcion approved. That is my Subdivision Report for your receiving and— Chair Nogami Streufert: Do we have a motion to (inaudible). Ms. Cox: (Inaudible) I will move that we receive and approve, do we just approve or we just receive the— Chair Ho: Receive. Ms. Cox: The Subdivision Report? Chair Nogami Streufert: Do both. Okay is there a second. Ms. Otsuka: I second. Chair Nogami Streufert: There has been a motion to receive and to approve the Subdivision 85 Committee report. All those in favor? (Unanimous voice vote). Aye. Ms. Cox: Aye. Mr. Ho: Aye. Mr. Chiba: Aye. Mr. DeGracia: Aye. Ms. Otsuka: Aye. Chair Nogami Streufert: All this opposed nay. Motion Carried 6:0. 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 previously. 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 January 12, 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: And so for Topics for Future Meetings we have actually had a massive glut of applications which hence today’s rather robust agenda. But after that glut there things kind of tapered off as far as submittals. So technically, on January we only have the deferral of the zoning amendment that folks have today and essentially the election of leadership. I think we are all now aware of what is going to be a topic for our future meeting in March. Plus it’s fairly light folks but other then that, I’ll say as this is, you know, Chair Streufert will be gaveling the January but this was her last phone meeting. So just want to acknowledge her leadership in helping us navigate not just sticky Commission items. And more particularly, having to navigate a Planning Commission and be the Chair of it in this teleworking environment I think is a true testament of how well Glenda was equipped to navigate us through these waters. I just want to thank her for her leadership in leading us through. She is not going anywhere. She’s still with us but having her a Chair - as chair from the Department’s perspective has been absolutely - absolutely wonderful so thank you - thank you so much Glenda. Mr. Chiba: Thank you. 86 Ms. Cox: Thanks Glenda. Ms. Otsuka: Thanks, Glenda. Ms. Cox: You really earned your - your stripes today. Chair Nogami Streufert: Thank you, guys. All right so before we - are there any other announcements and Roy will be with us here is another announcement. Roy will be with us on the Commission for at least another four months right. Mr. Hull: Three months yeah. Commissioner Ho has agreed to be a holdover - unfortunately, Commissioner Ho is terming out but we have him for three more months so for the Department is very appreciative. Mr. Ho: I love you guys. Kaaina, Kaaina, before that March meeting, we have if the agenda is quite full could you schedule two meetings in February to clear your calendar? Mr. Hull: What was that? Mr. Ho: Well you know to clear your calendar for that March meeting HBR. If the agenda is full, could you schedule two meetings in February to lessen your load? Mr. Hull: Oh, no - no - yeah, we could - we could absolutely look at doing two meetings. The reason we only have, you know, the way the applications are submitted and the deadlines we have to put it on this December meeting. We do not anticipate full meeting quite honestly for the next two or three months. Granted, I imagine the March meeting will have rather robust and lengthy discussions, but as far as the number of applications Commissioner Ho, with the application rate we are seeing right now, we do not anticipate large numbers of applications on the agendas for the next couple of months. Mr. Ho: Good deal. Chair Nogami Streufert: Okay well then Merry Christmas, happy Hanukah, joyous Kwanzaa, whatever you celebrate let us celebrate and, enjoy the year as it comes to an end and a new year starts. Ms. Tumbaga: Thanks Glenda. Mr. Hull: Thank you, all. Ms. Cox: Happy holidays everybody. Teresa, it is really nice to see you. Ms. Tumbaga: Nice seeing you too. Ms. Cox: I am sure KCC misses you still. 87 Ms. Tumbaga: I am sure they miss you. ADJOURNMENT Chair Nogami Streufert: Could we have a motion to adjourn and then we can still continue to— Ms. Otsuka: I make a motion to adjourn. Mr. Ho: Motion to adjourn. Ms. Cox: I second that motion. Chair Nogami Streufert: It’s been moved and seconded that we adjourn this meeting. All those in favor it’s a voice vote. Ms. Cox: Aye. Mr. Ho: Aye. Ms. Otsuka: Aye. Mr. Chiba: Aye. Mr. DeGracia: Aye. Chair Nogami Streufert: All those opposed. Nay. Thank you very much. Motion carries. 5:0. If you would like to stay on it’s not going to be recorded. Season’s greetings and everything else. Mr. Hull: Thank you all. Mr. Chiba: Thank you very much. Chair Nogami Streufert adjourned the meeting at 3:03 p.m. 88 Respectfully submitted by: _________________________ Arleen Kuwamura, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) ( ) Approved as amended. See minutes of __________ meeting