HomeMy WebLinkAbout10/06/2021 Council minutes COUNCIL MEETING
OCTOBER 6, 2021
The Council Meeting of the Council of the County of Kaua`i was called to order
by Council Chair Arryl Kaneshiro at the Council Chambers, 4396 Rice Street,
Suite 201, Lihu`e, Kaua`i, on Wednesday, October 6, 2021 at 8:48 a.m., after which
the following Members answered the call of the roll:
Honorable Bernard P. Carvalho, Jr.
Honorable Mason K. Chock
Honorable Felicia Cowden
Honorable Bill DeCosta
Honorable Luke A. Evslin
Honorable KipuKai Kuali`i
Honorable Arryl Kaneshiro
Council Chair Kaneshiro: Good morning. Today's meeting will be
conducted pursuant to Governor Ige's COVID-19 Delta Response Emergency
Proclamation with the most recent relating to the Sunshine Law dated
October 1, 2021. Please note that we do have registered speakers for some of our
agenda items this morning. I will read the agenda and take public testimony. Staff
will appropriately incorporate the testimony into the record. After public testimony,
we will proceed with our Council Meeting, followed by our Committee Meetings, and
conclude with our Executive Session.
APPROVAL OF AGENDA.
Councilmember Kuali`i moved for approval of the agenda, as circulated,
seconded by Councilmember Carvalho.
Council Chair Kaneshiro: Are there any questions or is there any
discussion from the Members?
(No written testimony was received and no registered speakers requested to
testify regarding this agenda item.)
The motion for approval of the agenda, as circulated, was then put, and
unanimously carried.
Council Chair Kaneshiro: The motion is carried. Next item.
MINUTES of the following meetings of the Council:
September 15, 2021 Council Meeting
September 15, 2021 Public Hearing re: Resolution No. 2021-27, Bill No. 2831,
Bill No. 2832, Bill No. 2833, and Bill No. 2835
COUNCIL MEETING 2 OCTOBER 6, 2021
Councilmember Kuali`i moved to approve the Minutes, as circulated, seconded
by Councilmember DeCosta.
Council Chair Kaneshiro: Are there any questions or is there any
discussion on these items from the Members?
(No written testimony was received and no registered speakers requested to
testify regarding these agenda items.)
The motion to approve the Minutes, as circulated, was then put, and
unanimously carried.
Council Chair Kaneshiro: The motion is carried.
CONSENT CALENDAR:
C 2021-217 Communication (09/21/2021) from the Director of Finance,
transmitting for Council information, the Condition of the County Treasury Statement
quarterly report as of June 7, 2021.
C 2021-218 Communication (09/24/2021) from the Mayor and the Boards &
Commissions Administrator, transmitting for Council information, Mayoral
appointments to the Kaua`i County Voters with Special Needs Advisory Committee for
the County of Kaua`i:
• Kimberly J. Blaum—Term ending 12/31/2024
• Ann E. Lemke —Term ending 12/31/2023
• Angenette M. Molina—Term ending 12/31/2022
• Joseph D. Thomson—Term ending 12/31/2023
• Marjorie E. Works—Term ending 12/31/2022
Councilmember Kuali`i moved to receive C 2021-217 and C 2021-218 for the
record, seconded by Councilmember Carvalho.
Council Chair Kaneshiro: Are there any questions or is there any
discussion from the Members?
(No written testimony was received and no registered speakers requested to
testify regarding these agenda items.)
The motion to receive C 2021-217 and C 2021-218 for the record, was then put,
and unanimously carried.
Council Chair Kaneshiro: The motion is carried. Next item.
COUNCIL MEETING 3 OCTOBER 6, 2021
COMMUNICATIONS:
C 2021-219 Communication (09/08/2021) from the Executive on Aging,
requesting Council approval to receive and expend Federal funds, for the third
allotment in the amount of $128.00 for Fiscal Year 2021 (total amount of funds
including the previous approved awards is $41,402.00), and to indemnify the State
Executive Office on Aging, for the Nutrition Services Incentive Program (NSIP)
provision of congregate and home-delivered meals.
Councilmember Kuali`i moved to approve C 2021-219, seconded by
Councilmember Cowden.
Council Chair Kaneshiro: Are there any questions from the Members?
(No written testimony was received and no registered speakers requested to
testify regarding this agenda item.)
The motion to approve C 2021-219 was then put, and unanimously carried.
Council Chair Kaneshiro: The motion is carried. Next item.
C 2021-220 Communication (09/09/2021) from the Executive on Aging,
requesting Council approval to receive and expend Federal funds, in the amount of
$2,109.00, and to indemnify the State Executive Office on Aging, for the provision of
Title III services of the Older Americans Act, which includes Supportive Services,
Congregate Meals, Home-Delivered Meals, Preventive Health, and for Family
Caregivers, for the Federal Fiscal Year 2021 that began October 1, 2020 and runs
through September 30, 2024.
Councilmember Kuali`i moved to approve C 2021-220, seconded by
Councilmember DeCosta.
Council Chair Kaneshiro: Are there any questions on this item? Is there
any discussion from the Members?
(No written testimony was received and no registered speakers requested to
testify regarding this agenda item.)
The motion to approve C 2021-220 was then put, and unanimously carried.
Council Chair Kaneshiro: The motion is carried.
C 2021-221 Communication (09/10/2021) from the Executive on
Transportation, requesting Council approval of the County of Kauai, Transportation
Agency's submittal of its current Title VI program to the Hawaii Department of
Transportation's Office of Civil Rights, as a recipient of Federal Transit Administration
funds, which has been updated, reviewed, and approved through consultation with the
Office of the County Attorney.
COUNCIL MEETING 4 OCTOBER 6, 2021
Councilmember Kuali`i moved to approve C 2021-221, seconded by
Councilmember Carvalho.
Council Chair Kaneshiro: Are there any questions from the Members?
We do have a question, so I will suspend the rules. Councilmember Cowden.
Councilmember Cowden: I just wanted a simple explanation of what this
is. I believe this is something that happens every year, is that correct?
There being no objections, the rules were suspended.
CELIA M. MAHIKOA, Executive on Transportation (via remote technology):
Thank you for your inquiry. In actuality, we are required to submit updated reports as
requested by the grantor, which is the Hawai`i State Department of
Transportation(HDOT), as they coordinate the funding that comes through the Federal
Transit Administration(FTA). Basically, in promoting accessibility, the Transportation
Agency has adopted a zero-tolerance policy towards acts of discrimination. Members of
the public are entitled to use public transit in an atmosphere devoid of any harassment
or intimidation. Employees are prohibited from behaving in a way that discourages use
of public transportation through discriminatory language or actions. If we are made
aware of any situations like that, they are dealt with extreme seriousness. This Plan
and program is required for us, and at the same time, we are fully committed to carrying
it out to ensure that the services made available for the community are equitably
distributed to all our patrons without regard to race, color, national origin, et cetera.
That is what this program helps to lay out-the specifics for ensuring that is handled
properly.
Councilmember Cowden: Thank you for that. Do we have many
instances occur?
Ms. Mahikoa: No, thankfully. There are occasional instances
between passengers, typically. That is what we are needing to deal with. Thankfully,
the excellent crew that we have that carries out the services is not offensive in any way
to our riders in this manner.
Councilmember Cowden: Okay. Thank you. I just have to say that I do
not ride the bus that often, but I do make a point to ride it occasionally. Luck of the
draw, I always get a great ride and driver, and I like being up high looking out of the
big windows. I know we also have internet on the buses now, so the ride goes by fast
and you can get work done.
Ms. Mahikoa: That is wonderful.
Councilmember Cowden: My personal experience is always very positive.
Ms. Mahikoa: Thank you.
Council Chair Kaneshiro: Are there any other questions from the
Members? If not, is there any discussion from the Members?
COUNCIL MEETING 5 OCTOBER 6, 2021
There being no objections, the meeting was called back to order, and proceeded
as follows:
(No written testimony was received and no registered speakers requested to
testify regarding this agenda item.)
The motion to approve C 2021-221 was then put, and unanimously carried.
Council Chair Kaneshiro: The motion is carried. Next item.
C 2021-222 Communication (09/17/2021) from the Clerk of the Planning
Commission, transmitting the Planning Commission's recommendation to amend
Chapter 8, Kaua`i County Code 1987, as amended, relating to Transient
Accommodations.
Councilmember Chock moved to receive C 2021-222 for the record, seconded by
Councilmember Kuali`i.
Council Chair Kaneshiro: We did receive testimony related to Bill
No. 2838, which is related to this item. We will see this later on the agenda. Do we
have any questions or discussion from the Members on this item?
(No written testimony was received and no registered speakers requested to
da item.)n
testify regarding this a g
The motion to receive C 2021-222 for the record was then put, and unanimously
carried.
Council Chair Kaneshiro: The motion is carried. Next item.
C 2021-223 Communication (09/21/2021) from the Chief of Police, Stan R.
Olsen, Deputy Chief of Police, and Bryson Ponce,Assistant Chief of Police, Investigative
Services Bureau, requesting Council approval to receive and expend recurring Federal
funds, in the amount of $44,481.00, from the Edward J. Byrne Memorial Justice
Assistance Grant (JAG) Project No. 19-DJ-03 (2019-DJ-BX-0069), and to indemnify the
State of Hawaii, Department of the Attorney General, funding will be used for
drug-related investigations, training, K9 supplies, communication equipment,
eradication projects, and travel to other islands for joint operations with other law
enforcement agencies.
Councilmember Kuali`i moved to approve C 2021-223, seconded by
Councilmember Cowden.
Council Chair Kaneshiro: Are there any questions from the Members?
Councilmember Cowden.
Councilmember Cowden: Thank you, Chief Raybuck, Deputy Chief
Olsen, and Assistant Chief Ponce. I am curious...this is actually not much money here,
forty-four thousand dollars ($44,000). Do we have anything targeted with this recent
COUNCIL MEETING 6 OCTOBER 6, 2021
round of Fentanyl problems? Or, can you tell me what exactly this is targeting? I like
the K9 dogs and everything. Are we shifting our weight at all since we have had the
Fentanyl tragedies?
There being no objections, the rules were suspended.
BRYSON PONCE, Assistant Chief of Police, Investigative Services Bureau (via
remote technology): Sure. Let me just talk a little bit about the Statewide
Multi-Jurisdictional Drug Task Force (SMDTF). The SMDTF is a coordinated effort
amongst all the police departments throughout Hawai`i, including our other State and
Federal partners. The forty-four thousand four hundred eighty-one dollars ($44,481)
that we are requesting approval of, and indemnification approval for, can be used and
we do use it for all types of illicit drug investigations. The overall goal of the SMDTF is
to disrupt and dismantle the availability of illicit drugs on Kaua`i from our mid-level to
high-level dealers and anything that is being imported. Our goal is to work with all
types of illegal drugs. Besides all the training, equipment, and technology, it is also for
the coordinated effort like you mentioned, to target specific problems that we may be
having right now.
Councilmember Cowden: Okay. I appreciated the Narcan training that
I did and they also have these Fentanyl strips. I guess I am wanting to use this moment
to let you talk to the end users. I do not even know how this stuff is coming in. If it is
coming in the mail...we have had a number of deaths even since we last met. How can
we educate our people out there to not make a mistake?
Assistant Chief Ponce: I am going to turn it over to Chief Raybuck. I
will just touch a little bit on the fact that it is not a secret that we have Fentanyl present
in our community. This is a very dangerous synthetic opioid. We have our coordinated
efforts really focused and prioritizing the fight against Fentanyl in our community. The
Chief can talk a little bit about...we are not going to be able to arrest ourselves out of
this issue. It takes a coordinated effort from all of our partners to be able to tackle and
deal with some of the stuff that we are talking about.
TODD G. RAYBUCK, Chief of Police (via remote technology): Thank you,
Assistant Chief Ponce. Councilmember Cowden, thank you for the question. First and
foremost, I appreciate the opportunity to speak this morning about Fentanyl. As you
have read in the newspaper and you have heard anecdotally throughout our
community, Fentanyl has arrived in our community and in the State. It is a significant
issue and concern for all of us. Just a little bit of background for the Council to explain
what Fentanyl is, as Assistant Chief Ponce mentioned, it is a synthetic opioid and
opioids belong in the same family as morphine, heroin, and some of those more common
opioids that you may be familiar with. The problem with Fentanyl is that it is one
hundred (100) times more potent than morphine. As you know, morphine is often used
as a drug at the end of life to remove pain from people who are experiencing or are near
death. Fentanyl is a significant issue. This is an issue that started on the East Coast,
in the Southeast and has made its way across the Country towards the West.
Unfortunately, it has now found its way to our State as well. It is a growing problem
and it has been for about a decade. To give you some background, back in 2011, there
were roughly two thousand one hundred to two thousand three hundred (2,100 to
COUNCIL MEETING 7 OCTOBER 6, 2021
2,300)...my numbers may be a little bit off, so please forgive my memory...it was just a
little over two thousand (2,000) synthetic opioid deaths in the Country. Last year in
2020 and I am sure COVID-19 played a part in this, the nation saw more than ninety
thousand (90,000) drug overdoses and that was a significant increase over 2019.
Seventy percent (70%) of those drug overdoses last year were attributed to synthetic
opioid overdoses, mostly Fentanyl. It is a significant problem. Last year on our island
we saw two (2) confirmed Fentanyl overdose deaths. Already this year we have had
two (2) and we have a few others that we are awaiting on results from toxicology reports
to confirm whether or not Fentanyl was involved. So to your question, it only takes
about two milligrams (2mg) of Fentanyl to trigger a fatal overdose. To put that in
perspective, a teaspoon of salt is two thousand three hundred milligrams (2,300mg).
We are talking about a significantly small amount of this substance. It is most
commonly brought in just like all other drugs are, via transpacific travel, packages and
parcels, and through individuals who bring the drug over through private and/or
commercial travel. It is a significant issue for us. It is more often found in a powder
form. Unfortunately, we are seeing this drug being used intentionally and
unfortunately also used unintentionally with some deadly consequences. Our priority
here, as Assistant Chief Ponce mentioned, is to put our enforcement efforts towards
trying to identify and dismantle individuals that are responsible for spreading this
poison in our community. But, as he also mentioned, we cannot arrest our way out of
this. This requires a full-press by our community partners. I just want to recognize
and thank Mayor Kawakami, I have spoken to him this week, and he has committed
the Office of the Mayor to support us in any way possible. We have also spoken to
Council Vice Chair Chock, and his role as the Chair of the Resiliency Project on Kaua`i,
and we are planning a meeting to get together and find out how all of our community
partners can work together to try to address this problem. It really comes down to
education and prevention. It is going to take our entire community to talk to their loved
ones, their friends, to those they know have substance abuse problems, to address this
issue and try to prevent future tragedies. I had a meeting yesterday with our
High-Intensity Drug Trafficking Agency (HIDTA) and the Director there and our state
and local partners with the Hawai`i Opioid Initiative, so that the local law enforcement
working groups can partner with the other working groups to identify and focus our
efforts on addressing this not only in our community, but across the state as well. I
think all together through education and awareness, and the assistance of the media in
educating our community about the dangers, we can try to prevent future tragedies. I
just want to highlight as we put out our press release recently, the great efforts of our
community members who have stepped forward to help save the lives of two (2) young
ladies that were obviously or apparently experiencing an opioid overdose in one of our
parks. It was the quick responses of the community members, off-duty nurse, off-duty
police officer, and others, that triggered the call to 911 to get medical and police services
on the scene. It was our officers who first arrived who recognized the signs and
symptoms of an opioid overdose that administered Naloxone and I believe saved those
two (2) ladies' lives. Thank you for the time to share some of this information with you
and I will entertain any other questions or comments.
Councilmember Cowden: I just want to thank you for giving that
explanation. We all need to be learning it and hearing it. I think for many in the
community, especially those that are not directly affected by this, they should know so
that they can take care of their loved ones. Thank you.
COUNCIL MEETING 8 OCTOBER 6, 2021
Council Chair Kaneshiro: Councilmember De Costa.
Councilmember DeCosta: Thank you for all that you do. Most
importantly, Chief, you did not mention and maybe you have something in place, but
you did not mention our school system. Getting out there with the Drug Abuse
Resistance Education (DARE) program, when I was out at the high school for ten (10)
years, and now I am at the elementary school, I think that is where we should be
focusing our constructive informational presentations for our school kids. I think it is
one thing when an adult overdoses on Fentanyl, but can you imagine what happens
with our children in high school that are not aware. I am kind of troubled. Are some of
these moneys going towards educating our children in our high schools and middle
schools? Or are we not targeting that audience?
Chief Raybuck: I share your interest and passion for educating
our youth. We did actually speak with the Hawai`i Opioid Initiative in communicating
and getting the Department of Education (DOE) online with us. Obviously, we do have
our School Resource Officers (SROs) in schools. COVID-19 has obviously set back some
of our programs and some of the challenges that we have had in reaching students in
the classrooms, but it remains a priority for us to re-engage that and share information.
It is also going to require the assistance and partnership with DOE for them to utilize
resources to educate the youth as well. We are looking at statewide, how we can engage
the DOE and bring them in as partners to also educate people. One of the tragedies
with substance abuse is that many of these kids learn about the dangers of drugs and
the costs that substance abuse has in our community, and unfortunately, they go home
to see parents, family members, or loved ones abusing those same drugs. That is why
this is a community issue that is going to take more than education in the classroom.
It is going to take more than arresting people and shutting down drug dealers. It is
going to take our entire community to become active and engaged in communicating
and trying to get people to recognize that there is help out there and other ways to try
to deal with problems than turning to substance abuse.
Councilmember DeCosta: Okay, Chief, I appreciate your explanation,but
you just said, "It is going to take a little more than the school making children aware
and it is going to take a little more of something else." We do not even have that "little
more" in the schools right now, correct? So you are telling me that the DOE is not
onboard to get this informational piece out to our schools?
Chief Raybuck: No sir, and I was not saying that the DOE was
not onboard. What I was saying was that with the Hawai`i Opioid Initiative, we are
looking to seek more of a partnership and more engagement with the DOE so that we
can assist in trying to partner more with them to increase the level of education and
awareness in the schools so that it just does not fall on a handful of SROs.
Councilmember DeCosta: Okay. Let us know how the Council can help
you, please. Next thing I want to ask is what you mean by "eradication projects." I am
an environmental teacher and when we talk about eradication, it is a removal of an
invasive species. It is removal, meaning it is completely gone. Enlighten me with your
verbiage of eradication projects.
COUNCIL MEETING 9 OCTOBER 6, 2021
Chief Raybuck: The short answer, is that eradication means
illegal marijuana growths. To talk about eradication, and I appreciate that you used
the word "invasive," if you watch the news and see what is occurring particularly in
California and in the West Coast where they are experiencing significant droughts,
illegal marijuana operations are syphoning away vital water resources from farmers,
agricultural areas, and natural ponds and lakes. It is important to continue to identify
and eradicate illegal marijuana operations that not only poison agricultural areas with
utilizing fertilizers, replacing native landscape, and native agricultural plants, but they
also diminish the critical resources of water and other issues. Some of those funds are
utilized to help eradicate illegal marijuana operations.
Councilmember DeCosta: I agree with you on that, Chief. I would like to
see those funds go more towards educating our children and making them aware of the
more detrimental drugs out there. That is just my own mana`o.
Chief Raybuck: Thank you.
Council Chair Kaneshiro: Councilmember Carvalho.
Councilmember Carvalho: I just wanted to say mahalo for the explanation
overall. For anyone watching, that was a great detailed explanation. Having talked to
several people regarding what happened at the Bryan J. Baptiste Sports Complex, like
you mentioned, I think how we bring awareness...picking up on Councilmember
DeCosta's comments...because it is not only the actual activity that happened, our
young children were around the area and were questioned about what happened. That
speaks to the awareness part of it. Especially where a lot of our youth congregate for
sports activities such as stadiums and different locations like that, where would you be
in supporting a resolution of implementing drug-free zones and incorporating the
explanation of"why." It is not only about what happened, it is about children witnessing
what happened across the street and getting information in this area that brings our
youth together. I wanted to get your input on that. If you are congregating in these
kinds of areas like stadiums and creating these drug-free zone areas.
Chief Raybuck: Thank you for the question. If I heard you
correctly, I think you were asking if drug-free zones could assist us in curbing some of
these behaviors, is that accurate?
Councilmember Carvalho: Yes.
Chief Raybuck: I do believe that drug-free zones do serve a
purpose. A lot of places on the mainland have implemented those to try to reduce the
impact, particularly where our children are. Drug-free zones, for those that do not
know, typically allow law enforcement an extra tool in the prosecution of individuals
who violate those drug-free zones. It is an education piece to put people on notice that
drug use and drug possession is not welcome in those areas and if you are caught with
drugs in those areas, there could be an increased penalty for having drugs. I do think
that is an area that we could
explore to see if that can helpprevent this type of tragedy,
P
especially in the presence of minors. It is traumatic for anyone to see lifesaving
measures being taken on anyone, let alone a youth having to experience that. That is
COUNCIL MEETING 10 OCTOBER 6, 2021
certainly something we could discuss. It would require both the prosecution and the
judicial system to come onboard to see if they support it, and of course, it would also
take an act of the County Council to approve that as well.
Councilmember Carvalho: Okay, thank you for that. I would consider
doing a resolution or whatever else it takes to bring it to the forefront in this particular
discussion. Thank you.
Chief Raybuck: Thank you.
Council Chair Kaneshiro: Are there any other questions from the
Members? Is there any final discussion from the Members?
There being no objections, the meeting was called back to order, and proceeded
as follows:
(No written testimony was received and no registered speakers requested to
testify regarding this agenda item.)
The motion to approve C 2021-223 was then put, and unanimously carried.
Council Chair Kaneshiro: The motion is carried. We will need to take a
recess right now. There is a fire alarm going off on the Administration's side, so
everyone had to leave the building. We will come back once everyone knows it is safe
and they are ready to settle back in at their desks or phones. We will take a recess until
that time.
There being no objections, the meeting recessed at 9:15 a.m.
The meeting reconvened at 9:26 a.m., and proceeded as follows:
C 2021-224 Communication (09/23/2021) from the Director of Finance,
requesting Council approval of the indemnification provision contained in the Avolve
ProjectDox software Terms and Conditions for upgrade and migration to the latest
version of Avolve ProjectDox, which is used to manage the building permit system.
Councilmember Kuali`i moved to approve C 2021-224, seconded by
Councilmember Cowden.
Council Chair Kaneshiro: Are there any questions from the Members?
Councilmember Cowden.
Councilmember Cowden: Thank you, Reiko. Can you give us a brief
description of what this is? My understanding is that coming on is a little bit of a
struggle, as people are applying, I am not quite sure. If you could tell us a little bit
about this. I know that we are moving forward in becoming automated and I am
grateful for that. Just wanting a little more information.
There being no objections, the rules were suspended.
COUNCIL MEETING 11 OCTOBER 6, 2021
REIKO MATSUYAMA, Director of Finance (via remote technology): Reiko
Matsuyama, Director of Finance. Right now, we are just replacing the current E-plan
review software that the Building Division uses. The current software that we are using
expires at the end of this calendar year, so what we need to do is basically replace that
service with them, so we can continue with the E-plan review.
Councilmember Cowden: Okay, so no significant change.
Ms. Matsuyama: No.
Councilmember Cowden: Thank you.
Council Chair Kaneshiro: Are there any further questions? Is there any
final discussion from the Members?
There being no objections, the meeting was called back to order, and proceeded
as follows:
(No written testimony was received and no registered speakers requested to
testify regarding this agenda item.)
The motion to approve C 2021-224 was then put, and unanimously carried.
Council Chair Kaneshiro: The motion is carried. Next item.
C 2021-225 Communication (09/24/2021) from the Director of Finance,
requesting Council approval of the Bank of Hawai`i Merchant Application and Terms,
which includes indemnification provisions, unquantifiable fees, and unspecified future
obligations for the collection of the County of Kaua`i's Transient Accommodations
Tax (KTAT) via credit/debit card payments or Automated Clearing House (ACH)
withdrawal.
Councilmember Kuali`i moved to approve C 2021-225, seconded by
Councilmember Cowden.
Council Chair Kaneshiro: Are there any questions from the Members?
Councilmember Cowden.
Councilmember Cowden: Thank you, Reiko. My question is going to be
similar to the last one. I know this is new, because this is managing our Transient
Accommodation Tax, so this is a big adjustment for our County, which is probably
requiring an employee or two (2). When I am looking at twenty (20) pages with very
fine print, I have looked through it, but can you simplify this for us?
There being no objections, the rules were suspended.
Ms. Matsuyama: Sure. This is going to be an online portal for
TAT collections. What we are going to have is, taxpayers can go onto this portal and
either pay via debit/credit card or ACH. A lot of these terms are general terms from
COUNCIL MEETING 12 OCTOBER 6, 2021
both Bank of Hawai`i who will be the provider, as well as the merchant behind it, so a
lot of them are Visa or Mastercard—those big companies that will accept the credit/debit
portion of it. We have received an addendum from Bank of Hawai`i that kind of takes
some of these away. We just received this and we are going back and forth on the terms,
but we still need Council approval for many of them.
Councilmember Cowden: When it says, "Unquantifiable fees and
unspecified future obligations." That is kind of loose. What does that mean?
Ms. Matsuyama: Many of these are penalty fees; insufficient
funds; if someone were to close their bank account and we never received the money,
there might be fees associated with that; if we did not pay whatever terms then we
would have to pay their attorney fees, all of those fees are not quantifiable at the time
and maybe we would never have to pay them, but there are situations where we may,
so they are written into the agreements, so we need to get Council approval for such.
Councilmember Cowden: Okay, thank you.
Council Chair Kaneshiro: Are there any further questions?
Councilmember Evslin.
Councilmember Evslin: Hi, Reiko. Is this platform the same that the
State is using for TAT collections?
Ms. Matsuyama: No. The State uses a really comprehensive
solution with Hawai`i Tax online. They pay"big bucks" for their solution. So this might
not be a permanent fix, we are still looking with all the Counties, doing an RFP for a
more comprehensive solution that will do the back end, calculating the penalty and
interests, doing the reconciliations, maybe sending out automatic delinquency letters,
so we are still trying to work that side of it, but this is just the deposit mechanism.
Councilmember Evslin: So when someone goes to file, they are using
the State's filing system, which in some sense, will calculate what they owe for the
Kaua`i TAT, then they click on a link, which brings them to this separate payment
system inputting the amount that they owe.
Ms. Matsuyama: That is correct. They would do everything that
they normally do when they file their TA-1 form with the State, so they will continue
that process as normal. Then after they pay the Kaua`i tax online to the State, there
will be a link that says, "Do not forget to pay your Kaua`i TAT here." Then, it will click
to the Bank of Hawaii portal.
Councilmember Evslin: I am sure you have looked into it—there is no
way for us to "piggyback" on the Hawai`i Tax online payment system in some capacity.
Ms. Matsuyama: We feel that it would be too much. They pay
about five to six million dollars ($5,000,000 - $6,000,000) a year in just maintenance
costs for that software. Granted, maybe it will be something that we would share
COUNCIL MEETING 13 OCTOBER 6, 2021
through the Counties, but when we issue the RFP, maybe they will respond and we can
figure out more quantifiable costs, but that is completely out of our price range.
Councilmember Evslin: Thank you, Reiko.
Council Chair Kaneshiro: Are there any other questions from the
Members?
There being no objections, the meeting was called back to order, and proceeded
as follows:
(No written testimony was received and no registered speakers requested to
testify regarding this agenda item.)
The motion to approve C 2021-225 was then put, and unanimously carried.
Council Chair Kaneshiro: The motion is carried. Next item.
C 2021-226 Communication (09/28/2021) from the Acting County Engineer,
requesting Council approval of the unbudgeted equipment purchase of a Grader in lieu
of the currently budgeted Smooth Drum Roller to be used at the Kekaha Landfill and
soil harvesting site in Paua Valley. The Smooth Drum Roller is currently budgeted at
$314,000.00 and the Grader will cost $465,000.00, an increase of $151,000.00 in the
annual lease financing payment to be funded from the unexpended rental budget in the
Department of Public Works, Solid Waste Division.
Councilmember Kuali`i moved to approve C 2021-226, seconded by
Councilmember Carvalho.
Council Chair Kaneshiro: Are there any questions from the Members?
Councilmember DeCosta, then Councilmember Cowden.
Councilmember DeCosta: Who is here from the Solid Waste Division?
Dustin, and Mr. Gayagas are there. I will address Mr. Gayagas. I am very impressed
that we have this which will add new equipment to help our landfill become more
efficient. I am very excited. I wanted to ask Mr. Gayagas, I believe you and I were out
at the landfill a few months ago and one (1) of the machines was broken and I am not
sure if it is too old to fix or it is fixable, but I think we were going to look into that. Did
you look into that Mr. Gayagas?
There being no objections, the rules were suspended.
BOYD GAYAGAS, Deputy County Engineer (via remote technology):
Councilmember DeCosta, Dustin and Allison, both, did some research on equipment
that we need there, so I will let them answer your question.
Councilmember DeCosta: Okay, thank you.
COUNCIL MEETING 14 OCTOBER 6, 2021
DUSTIN MOISES, Environmental Services Management Engineer (via remote
technology): Councilmember DeCosta, I was not out there with you folks, what specific
equipment were you and Boyd looking at that day?
Councilmember DeCosta: I believe it was two (2) older graders, but
one (1) was really old and I think it was going to be scrapped, but the other was
constantly being repaired and I wanted to know with the new grader coming in, will we
still repair the old one, so we can have two (2) graders in case something happens?
Mr. Moises: My understanding is we do not have an old
Grader out there.
Mr. Gayagas: I am sorry, Councilmember DeCosta, I think
you are referring to the compactor that we were looking at.
Councilmember De Costa: Okay. Are we going to repair that compactor?
Mr. Gayagas: It was a compactor that we were looking at.
ALLISON FRALEY, Solid Waste Program Development Coordinator (via remote
technology): I can answer that question, Councilmember
De Costa, about the compactors.
Councilmember DeCosta: Yes. Thank you, Allison.
Ms. Fraley: Yes. Allison Fraley, Solid Waste, for the
record. We do have two (2) compactors on-site now. One (1) that we purchased and
used two (2) years ago and it had been broken for several months. It is in operation
now. We have the one (1) that we purchased from Waste Management when we parted
ways with them and ended our contract. That could be repaired, but would be a
significant cost, almost to the tune of purchasing a new compactor, which we are in the
process of doing now. We just signed a contract with a 180-day delivery timeline to have
a new compactor, so we will have two (2) working compactors on-site if one (1) goes
down, then the other one (1) could be used. So we are going to be in really good shape
here in the next one hundred and twenty (120) days.
Councilmember DeCosta: I just want to extend a nice mahalo. I know we
were under some scrutiny with The Garden Island Newspaper article during the last
Council Meeting about the morale out there on the landfill, but everything is in place
and has been addressed. As Chair of this Public Works&Veterans Services Committee,
I am very impressed with the comradery of management. "Shout out" to Mike Tresler,
who is part of this solution back then. We have Mr. Gayagas, Dustin Moises, and
Allison, thank you so much for all you do and moving us in the right direction. Thank
you.
Council Chair Kaneshiro: Councilmember Cowden.
Councilmember Cowden: For whoever has the most knowledge on this.
Can someone explain the role of the smooth drum roller and how the grader can address
COUNCIL MEETING 15 OCTOBER 6, 2021
that need or is that need addressed in a different way? How is the smooth drum roller
used and if we do not buy it, are we good?
Mr. Moises: I can answer that. As far as the smooth drum
roller, they use that for the tipping floor, access roads, ramp construction, and road
construction at the landfill. As far as the grader, they use that for the landfill slope
basis, access roads, tipping floors, but they also use it for berms to control the storm
water management at the landfill. In addition to that, we have a soil site that we
recover soil in Paua Valley for daily cover and the grader is useful for the access road to
maintain access to that site, as well. Prior to this, they have been using the roller, but
the Grader is more of a daily need. The Roller can be used two (2) or three (3) times a
week and is not necessary now, because of the change in the landfill conditions over the
last few months. Prior to that, because the compactor was down, unfortunately, the
landfill filled up quicker than we anticipated and now that there is more dirt than rock,
they need the grader to basically operate the landfill more than the roller.
Councilmember Cowden: I get that we need the grader and that is a good
investment. Do we still need to buy a smooth drum roller or should that be something
that we are thinking about as a future purchase or is it that we do not need a new one
for a while?
Mr. Moises: Both, actually, so the plan right now is to use
some of the rental funds to get a roller by January and likely make the request next
Fiscal Year to purchase a new roller.
Councilmember Cowden: Okay. Thank you, that is helpful.
Council Chair Kaneshiro: Are there any other questions from the
Members?
There being no objections, the meeting was called back to order, and proceeded
as follows:
(No written testimony was received and no registered speakers requested to
testify regarding this agenda item.)
The motion to approve C 2021-226 was then put, and unanimously carried.
Council Chair Kaneshiro: The motion is carried. Next item.
CLAIMS:
C 2021-227 Communication (09/03/2021) from the County Clerk, transmitting
a claim filed against the County of Kaua`i by Darlene Hatakeyama, for damage to her
vehicle, pursuant to Section 23.06, Charter of the County of Kaua`i.
C 2021-228 Communication (09/17/2021) from the County Clerk, transmitting
a claim filed against the County of Kaua`i by DB Insurance, as subrogee of Wendalen
COUNCIL MEETING 16 OCTOBER 6, 2021
Gonzalez, for personal property damage, pursuant to Section 23.06, Charter of the
County of Kaua`i.
Councilmember Kuali`i moved to refer C 2021-227 and C 2021-228 to the Office
of the County Attorney for disposition and/or report back to the Council,
seconded by Councilmember Carvalho.
Council Chair Kaneshiro: Are there any questions or discussion from
the Members?
(No written testimony was received and no registered speakers requested to
testify regarding these agenda items.)
The motion to refer C 2021-227 and C 2021-228 to the Office of the County
Attorney for disposition and/or report back to the Council was then put, and
unanimously carried.
Council Chair Kaneshiro: The motion is carried. Next item.
COMMITTEE REPORT:
COMMITTEE OF THE WHOLE:
A report (No. CR-COW 2021-10) submitted by Committee of the Whole,
recommending that the following be Approved on second and final reading:
"Bill No. 2830 — A BILL FOR AN ORDINANCE AMENDING
CHAPTER 3, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO
FINANCIAL DISCLOSURES,"
Councilmember Kuali`i moved for approval of the report, seconded by
Councilmember DeCosta.
Council Chair Kaneshiro: Are there any questions or discussion from
the Members?
(No written testimony was received and no registered speakers requested to
testify regarding this agenda item.)
The motion for approval of the report was then put, and unanimously carried.
Council Chair Kaneshiro: The motion is carried. Next item.
RESOLUTION:
Resolution No. 2021-27—RESOLUTION AUTHORIZING THE ACQUISITION
OF LAND FOR PUBLIC USE, TO WIT: THE 23.5-ACRE PARCEL OF LAND,
SITUATED AT KILAUEA, DISTRICT OF KO`OLAU, COUNTY OF KAUAI,
COUNCIL MEETING 17 OCTOBER 6, 2021
HAWAII, TMK (4) 5-2-005-024, AND DETERMINING AND DECLARING THE
NECESSITY OF THE ACQUISITION THEREOF BY EMINENT DOMAIN
Councilmember Kuali`i moved for adoption of Resolution No. 2021-27,
seconded by Councilmember Carvalho.
Council Chair Kaneshiro: Are there any questions from the Members?
Councilmember Cowden.
Councilmember Cowden: Aloha, Housing Director Adam P. Roversi.
First of all, I will just own that I am very much in support of expanding our affordable
housing in that area, as has been the desire of the community expressed for at least
a decade, so I want to acknowledge that. Can you speak to what you would anticipate
in legal conflict over this and help us understand why eminent domain is a path of
choice? I know we touched on it, but can you give it to us again?
There being no objections, the rules were suspended.
ADAM P. ROVERSI, Housing Director (via remote technology): Aloha,
Councilmember Cowden. Adam Roversi, Housing Director. I do not want to venture
into the realm of offering a legal opinion or legal advice, but I can generally say that
eminent domain is a procedural process to acquire land for public purpose where a
negotiated acquisition is not possible. We had discussions with the current owner for
more than two (2) years about his expected asking price, have had appraisals done
for the property, have had discussions with him about where the County Housing
Agency sees the value of the property based on these appraisals and we are, to be
blunt, we are so far away that we are not going to come to a negotiated agreement, so
an eminent domain process is essentially one in which the court decides what the fair
price for the property is, when a government entity cannot come to an agreement with
a private landowner.
Councilmember Cowden: I live near this property, as do you, and I see
it almost on a daily basis. For at least a couple of years, there was a for sale sign and
it represented it as being zoned residential and Commercial. Zoning on that property
is Agriculture, correct?
Mr. Roversi: That is my understanding that it is both State
land use districted as Agricultural, as well as County zoned as Agriculture.
Councilmember Cowden: When this property was up for sale for a
couple of years and I know I have spoken with you about it before we came into this
process, what price were they offering?
COUNCIL MEETING 18 OCTOBER 6, 2021
Mr. Roversi: I have never received anything in writing
from the owner, but I have orally been told that the sale price would be around thirty
million dollars ($30,000,000). I believe that there was an article in today's The
Garden Island Newspaper and presuming that the quotes in there are correct, I
believe that is what the landowner told the reporter in The Garden Island
Newspaper. He valued the property around thirty million dollars ($30,000,000).
Councilmember Cowden: Okay. I think it is important to note that this
was on the market for a couple of years, unsuccessfully being sold. I called him myself
and did not get a clear price on it, but it is not like it just "hit the market," I mean
things move quickly and when we are making this purchase, some of this is with the
Community Development Block Grant Disaster Recovery (CDBG-DR), so it is
targeting our Flood 2018 challenges. So it is not like this could get rolled in. I saw
that we had a letter saying roll it into what could be purchased anywhere, but we are
looking very hard for North Shore property, which is all out of reach, is that correct?
Mr. Roversi: We did go through a fairly lengthy process of
analyzing different potential sites for affordable housing projects on the North Shore.
Several in the Kilauea area, assessing the pros and cons of each, looking at both the
General Plan and the Kilauea Town Plan for guidance as to where the Planning
Department and the community have expressed their desire for development. We
have looked at some properties in Hanalei that had flood issues and archeological
issues. In the end, this parcel simply made the most sense. It is immediately
contiguous to Kilauea Town. It is designated in the Kilauea Town Plan for the
gradual expansion of the town and for affordable housing, it is designated in the
General Plan for the gradual expansion of Kilauea Town. It is my understanding
that it is more or less unanimously supported by the Kilauea Neighborhood
Association for the redistricting and rezoning of that property for the gradual
expansion of the town and primarily for affordable housing purposes. I believe that
the town plan expressly calls for a minimum of sixty percent (60%) of any homes built
on that property to be at affordable prices. After our relatively lengthy analysis, there
was a small pool of properties that were even of a size and location that could be
possible for housing and this one simply makes the most sense.
Councilmember Cowden: Thank you.
Council Chair Kaneshiro: Councilmember DeCosta.
Councilmember DeCosta: Adam, would we pursue this property by use
of eminent domain if we had other areas that we could develop for public housing for
our North Shore people?
Mr. Roversi: If there were an equally appropriate parcel of
land that fell within the community plan and the General Plan and made sense, then
COUNCIL MEETING 19 OCTOBER 6, 2021
we certainly would have selected that, because we have no overarching desire to
engage in legal action to accomplish our goal.
Councilmember DeCosta: That is the answer I was looking for Adam.
We are doing this for the betterment of our North Shore community. End of story.
Adam, it troubles me that this twenty-three (23) acre parcel would be selling for thirty
million dollars ($30,000,000) as zoned Agriculture. I know there is a piece of property
that I own that is ten and half(10 %2) acres with three (3) homes on it that the County
assessed at one million five hundred thousand dollars ($1,500,000). This property is
twice the size with no homes and the landowner wants thirty million
dollars ($30,000,000)—let's be real here. Local people cannot afford to buy something
like that—it is going to come in from a mainland investor. That is the problem we
face today. We increase these prices, locals cannot buy it, and who buys it? Mainland
investors. Therefore, I am all for eminent domain here. Thank you very much for
answering my question, Adam.
Council Chair Kaneshiro: Adam, I have a quick question. We received
testimony in opposition saying that we are taking away agricultural land, but I just
wanted to clarify with you, is there active agriculture on the parcel right now or has
there been any agricultural activity on the property recently?
Mr. Roversi: There is no active agriculture on that property
now and as Councilmember Cowden mentioned, she and I both live in that
community, I do not remember any agriculture on that parcel in at least the last
decade. It was historically part of Kilauea Plantation and was planted at one point
with sugar, but as you folks all know, Kilauea Plantation shut down in the late `70s
and I do not believe it has been actively farmed since then.
Council Chair Kaneshiro: Thank you. Councilmember Cowden.
Councilmember Cowden: I have a question for Matt Bracken. Is he
available? County Attorney Matt Bracken, we saw at least in the newspaper that the
owner of the property, Mr. Bertsch is saying that he is going to take us to court. I
know that we would anticipate this going to court. Do you have a sense of what might
typically be the court effort? How long? How much? Some loose range.
MATTHEW M. BRACKEN, County Attorney (via remote technology): With
the landowner saying, "He is going to take you to court." I do not find that too
concerning, because this is going to court. The fact that we are proceeding with
eminent domain means that we will be filing a complaint to take possession of that
property, so it will be going to court. When it does go to court, the landowner can
dispute two (2) things; he can dispute the price and our ability to use eminent domain
to take the property. Those are the only two (2) things that can be disputed in court.
The first one, our ability to take the property that would most likely be decided by
COUNCIL MEETING 20 OCTOBER 6, 2021
the Judge on a motion, so it would be decided relatively quickly. The price of the
property—that is something that the Judge would have to decide. That is something
that we would put on expert witnesses, we would hire appraisers, the appraisers
would say the value of the property and the owner would do the same. Ultimately,
the Judge would make the determination as to what the property is worth paying.
From start to finish, it is really hard to say how long the process will take. The
County has been involved in condemnation actions that have taken over ten (10)
years. That does not mean that we will not get possession of the property for ten (10)
years, it just means that, if there are appeals filed, it could take a really long time for
the entire lawsuit to resolve. Generally speaking, the courts are backlogged because
of COVID-19, but we potentially could take possession of the property relatively
quickly, after we file the complaint. If we put a deposit down with the court, then we
could take possession of the property and Adam could proceed with the plans.
Councilmember Cowden: Just to be clear on the second point, when you
say, "Adam can proceed with the plans when we take possession of the property that
means that we could begin to look at a strategy for either creating waste water
treatment and building houses...I know that part of the reason that this property is
a priority for our community, we have about six hundred (600) or nine hundred (900)
cesspools, but having a waste water system is something that Kilauea needs and this
is a good location for that. This person built the post office and at the time the post
office was built, even then, there was consideration for the use of this parcel. The
land has been there for decades, he bought the whole piece and that is being held.
This is not a predatory action that we are taking right now, it has been something
under consideration for a long time. I guess I lost my question in that whole piece.
There was one, but thank you. If you heard it, please answer, but I lost it.
Mr. Bracken: The only thing I would just say, is the first
step in the process would be the change of zoning, because it is not zoned for the
current plans. There will be a lot of steps in the process and Adam can outline that
better than I can, but the zoning will need to be changed before we can proceed.
Councilmember Cowden: Okay, that was my question. How long is it
before we would be able to actually move forward? So it would go to the Land Use
Commission first.
Mr. Bracken: Right. To change the zoning, we would have
to go through the Land Use Commission to change the State zoning, then after the
State zoning is changed, we would have to change the County zoning. So the Land
Use Commission does have an abbreviated accelerated process for the County, but
even that process will likely take a year or two (2) to complete.
Councilmember Cowden: Thank you.
COUNCIL MEETING 21 OCTOBER 6, 2021
Council Chair Kaneshiro: Are there any further questions from the
Members? Is there final discussion?
There being no objections, the meeting was called back to order, and proceeded
as follows:
Councilmember Cowden: When I look at a value like twenty-three
million dollars ($23,000,000), which it was for a while, to increase to thirty million
dollars ($30,000,000), it seems like that value might be appropriate if it had already
gone through the Land Use Commission, the County changes, and the infrastructure
improvements. There is a tremendous amount of investment that has to be made
before this property is divided up to be subsidized for our community that desperately
needs the housing. So when we are anticipating the cost, those costs apparently had
been out of reach for a long time, because the demand has been there, very present
for some time, and that has not been able to happen so far. I feel comfortable with
this action and do not feel like we are bullying private landowners or that there would
be a worry that we would do this whenever we felt.
Council Chair Kaneshiro: Councilmember DeCosta.
Councilmember DeCosta: Thank you for that Councilmember Cowden
and thank you for putting it kindly, using the word "bullying." I believe we all were
elected for a reason. I have been involved with County Council for a long time,
watching all of the meetings, and this is the best that the Council has gotten along
and making executive decisions, and I believe we are doing this for our community.
So whether a few testimonies come in to say we are being bullies, here is the message
I would like to say, "Large landowners watch out." Because we are acting in the best
interest of our community and that is where we move with this. Locals cannot buy
land today. How do we help them? This is one way to help them. Is Kilauea the only
piece of property or are North Shore residents the only ones that we are looking out
for? Wrong. We will look from the West to North and make sure we hold the
community in our best interest. I am moving forward and voting in support of this.
We were elected to do a job and this is part of the job we are doing. Thank you.
Council Chair Kaneshiro: Is there anyone else? Councilmember Kuali`i.
Councilmember Kuali`i: I just wanted to say that this is a very
important step that we are taking and I appreciate the Mayor and Housing Director
Adam Roversi for helping us move in this direction. This is an important Resolution
and I hope we have a unanimous vote in support. Thank you.
Council Chair Kaneshiro: Councilmember Evslin.
COUNCIL MEETING 22 OCTOBER 6, 2021
Councilmember Evslin: I am in full support of the Resolution, as well,
for all of the reasons that have been stated. Obviously, we have an incredibly dire
housing crisis on Kaua`i, which is decimating our communities and decimating the
next generations that are forced to move off-island and we need to be approaching
this crisis from every angle possible. One of those angles is to try to acquire land and
have the County build more affordable housing. It is not the only angle, but it is an
important aspect of it. It would be a more difficult decision or conversation if there
were a bunch of active farmers farming the land currently or if this was someone's
family house that they lived in for a long time, right? That is a totally different
conversation. This is a vacant parcel of land that the community has identified for a
very long time for future housing needs for the community that aligns entirely with
the General Plan and the community plan and the community will be behind it. I
feel like all the stars are lining up for this property, plus we have the advantage of
leveraging Federal funds, so for me, it is an easy decision here and I support the
Resolution.
Council Chair Kaneshiro: Councilmember Chock.
Councilmember Chock: Thank you, Chair. I will be supporting the
Resolution, as well. I think some of the testimony that came in asked the question of
whether or not the County is a housing developer. The truth is, by force we have to
be and that is not where I want the County to be exclusive. I hope that we can
broaden opportunities for developers, but the opportunities are not there, oftentimes.
I have not seen our Housing Director turn anyone down that would like to help, or
anyone that is coming forward who wants to provide affordable housing. It behooves
us to move on any opportunity that we can, to address the housing crisis, and this is
one of those that when we look at the history of the interest that has been discussed
over the years, it is clear to me that this is the right move for the whole community
in Kilauea, and that is what we have seen in terms of support from that particular
neighborhood and community. I am happy to support it. Thank you.
Council Chair Kaneshiro: Councilmember Carvalho.
Councilmember Carvalho: It is all about housing for me and for all of us.
Whether you are from the North Shore all the way to the West Side of our beautiful
island, anytime we can turn over every rock to look for opportunities for housing,
what else can we say? I am in total support of this. We are in the right direction.
More to come with diverse thinking and ways and methods of how to do it, but I think
overall, we as Members, have the opportunity to look at every opportunity for housing
and this is just another one. I am totally supportive and look forward to more
opportunities on our beautiful island for housing. Thank you.
Council Chair Kaneshiro: Councilmember DeCosta.
COUNCIL MEETING 23 OCTOBER 6, 2021
Councilmember DeCosta: Well said, Councilmember Carvalho. The
word that jumps out at me, and I am kind of excited, is the word "donate." We have
wealthy people in the world who donate money to good causes. How about our
wealthy landowners donate, maybe twenty (20) acres, maybe fifty (50) acres of their
several thousand acres to build community housing. So whoever is watching, who
are large landowners, we are not looking for money, we are looking for land. Thank
you.
Council Chair Kaneshiro: Is there anyone else? Councilmember Kuali`i.
Councilmember Kuali`i: I am just reiterating, because I did not say it
and I am glad everyone else mentioned a critical need for housing. I think as the
Housing & Intergovernmental Relations Committee Chair it is important that I say
that, too. The other thing I would say, as far as the land and agricultural land, the
land that we are considering here is immediately adjacent to the existing town where
we already have commercial and different types of development and that is why we
have the full support of the Kilauea community. I think we have excellent planners
in the Planning Department that can help with doing it the best way possible. I think
it is really exciting that we stay in front of any kind of growth and development to
make sure we are doing smart, controlled growth. Further, coming from a working
class poor family and living on the Hawaiian Homestead, I think it is really important
that we have more affordable housing for our diverse native population, who more
and more cannot afford anything on the island, but the need for affordable housing is
everywhere on our island, but even more so on the North Shore. The fact that we
have the opportunity in Kilauea is really important. Thank you, Chair.
Council Chair Kaneshiro: Councilmember Cowden.
Councilmember Cowden: I just have a final piece. It might have not
been clear that I am enthusiastically in support of this. Someone said, we are not
sure if we are going to be unanimous. Of course I support this and I just want to
acknowledge how it is in alignment with our County goals across the island. It is
directly adjacent to our new shopping center where they need employees, which is in
walking distance to our community agricultural park, so if people have affordable
housing, especially those who might be able to have some assistance in housing, then
it can effectively work for farm housing. If they are not right on the farm or if they
are two (2) blocks from the farm, and they are also right next to the bus stop,
transit-oriented development, also next to parks, churches—it is what we want in a
walkable community. It has so many "wins" in it. It helps it to be in, what I would
consider, a uniquely valuable position for helping, not only the residents who need
housing, but Kilauea and because we have this CDBG-DR grant that is directed at
our prioritizing members who were hurt in the flood in 2018. It is going to be a way
to prioritize the existing residential community that has longer roots in the general
area. Kilauea is cousins to both the Anahola area and to the Hanalei to Ha`ena even
COUNCIL MEETING 24 OCTOBER 6, 2021
if it is not directly in those floodplains, it is close enough that it still feels like home.
Kilauea openly welcomes, with open arms, the members from those communities who
might have been displaced.
Council Chair Kaneshiro: Is there anyone else? For me, I will be voting
in favor of this Resolution. Again, it all comes down to housing and you can see how
strategic the County has been over the years in acquiring housing or trying to rebuild
housing. If you look at projects around the island, we have Lima Ola in `Ele`ele,
Waimea 400, Koa`e that just finished in Koloa, then we are looking at this Kilauea
parcel and the County has used all the different tools that they have at their
fingertips. They have used Open Space Commission funds to purchase property like
the Waimea 400. They used the affordable housing policy, which developers had to
provide land for housing for Lima Ola and Koa`e, and now there is this opportunity
in Kilauea where the County has Federal Emergency Management Agency (FEMA)
funds that needs to go to benefiting the North Shore community. The County has
looked and analyzed the areas and that is where the money can go. It is not the
County being single-minded and trying to get land off of developers. They are using
all their tools in the toolbox to try and acquire or try and provide housing for the
future. The County should be commended for really looking out for the future. Lima
Ola is going to be one the biggest projects on the island. This Kilauea parcel is going
to be another very huge project for the island. Again, it is all on the focus of housing,
which is probably one of the biggest issues that we hear of daily, regarding
affordability of housing on Kauai. I am happy to be a part of this. I am happy that
the County has used all of the diversified tools at their fingertips to try and acquire
land or try to provide housing for Kaua`i and its residents. Again, in this situation
the County will be paying fair market value for this property. We are not going to
"cheat" anyone out of the value of their land. We will be paying fair market value for
the property that we will be acquiring, so I will be voting in favor of this. Is there any
further discussion from Councilmembers? Councilmember DeCosta.
Councilmember DeCosta: I always give praise, and Chair Kaneshiro
that was well said.
Council Chair Kaneshiro: Let me suspend the rules. I saw Adam with
his hand up.
There being no objections, the rules were suspended.
Mr. Roversi: I apologize for jumping in at the last minute.
I just wanted to make one clarifying comment, so the record was clear. Our
acquisition plan as this moves forward is to use both County development funds and
the Federal CDBG-DR funds, so I do not want to misrepresent that the CDBG-DR
funds will be the sole source of funds to acquire this property, but it is one of the
COUNCIL MEETING 25 OCTOBER 6, 2021
sources that we will use and we have sufficient County funds to move ahead. I just
want to be clear about that.
There being no objections, the meeting was called back to order, and proceeded
as follows:
The motion for adoption of Resolution No. 2021-27 was then put, and carried by
the following vote:
FOR ADOPTION: Carvalho, Chock, Cowden, DeCosta
Evslin, Kuali`i, Kaneshiro TOTAL— 7,
AGAINST ADOPTION: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL — 0.
Ms. Fountain-Tanigawa: Seven (7) ayes.
BILLS FOR FIRST READING:
Proposed Draft Bill (No. 2822) —A BILL FOR AN ORDINANCE AMENDING
CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED RELATING TO
TRANSIENT ACCOMMODATIONS
Pursuant to Governor David Y. Ige's COVID-19 Delta Response Emergency
Proclamation dated October 1, 2021, public testimony was taken at the beginning of the
day and as follows:
Council Chair Kaneshiro: Our first speaker for Bills Nos. 2822 and 2838
is Lorraine Mull.
LORRAINE MULL (via remote technology): Good morning. Can everyone
hear me? I am here to offer my strong support of Bill No. 2822 and/or Bill No. 2838. I
have been a full-time resident here on Kaua`i for thirty (30) years. I have two (2)
children who grew up here, both of whom went to Hanalei School and the University of
Hawai`i at Manoa (UH). They both came back to Kaua`i to live in the place they love
more than anywhere else in the world. Then we have a third generation on Kaua`i, a
new baby girl in our family that I want to see grow up in a Kaua`i that we all still
recognize decades from now. Kaua`i is now at a crossroads, a tipping point. The island
has met the challenges of floods, road closures, the pandemic, and a tsunami of tourism
that we were not expecting. This has been especially acute on the North Shore. It has
brought into sharp focus the fact that we now face an important choice; do we take the
necessary steps to protect and preserve our way of life and the treasure of our open
spaces or do we fall prey to promises of developers and resort companies on our open
spaces? No one will argue that tourism is not an important cog in the engine of our
economy, but if we care about what kind of place that we fundamentally are and what
COUNCIL MEETING 26 OCTOBER 6, 2021
we want to be, we should not sell out to unbridled development and unfettered tourism.
We have limits, strains on our roads, our infrastructure, and our special way of life.
Therefore, we need to plan carefully for our future. We have important choices to make
and the bills before you are a huge step in protecting and preserving our open space.
What kind of place do we ultimately want to be? Do we want to maintain the
magnificent beauty of open spaces and green vistas that make Kaua`i so desirable both
for our residents and for the visitor experience? Or do we want to allow outside
corporate money make their choices for our future before they sell their assets to other
big money corporations then pack up all their tents and leave a trampled place behind.
If we do not have a plan, we will be part of someone else's plan. Commercial developed
campgrounds have become a thinly discussed path for resort expansion on open space.
I am sure you have heard about the proposed glamping campground in Princeville that
has caused such consternation in our community. Just last night, we heard about
another proposed luxury campground on Open Agricultural land on Kalihiwai Ridge.
You have the power to hit the brakes. You have the power to keep our open space truly
open. We want to keep Kauai green for our families, our neighbors, and our future.
The problem with these commercial developed campgrounds is that they are not really
campgrounds, they are actually hotels. They have room service, turndown service, and
all of the amenities of a hotel, some of which even include twice daily maid services. I
think Bills Nos. 2822 and 2838 are a very important step to making sure that our island
maintains its fundamental character and our open space. You as the County Council
hold the future in your hands. Mahalo for your time and for your careful stewardship
of this treasured island we all call home. Thank you.
Council Chair Kaneshiro: Thank you, Lorraine. Next up is Tom Mull.
TOM MULL (via remote technology): Thank you for your time and for your
effort in what you are trying to do, and what you have in fact done. Now you have given
us two (2) bills, both of which we support. I suppose you get to choose which one or a
combination of the two (2)you feel is the most appropriate. We have two (2)bills on our
side too. The dollar bills on one side and the bill that will come due to the next
generation if this action is not taken. There is that line between develop and preserve,
between too much and too little. That line reminds us that we actually in the real world
have to live on both sides of the line. With these two (2) bills you have done your job.
You gave us the bill in early April, Planning improved it, but for some reason, granted
a two (2) month deferral, which is not your fault. Consequently though, we now have
competing interest, mostly and importantly, the interest of time. Time is now the
essence. That is the truth and is an undeniable fact. Oftentimes developers...people
are tempted to manipulate the facts to game the system, play the process, and they see
what is coming to try to slide under the falling curtain, cleverly sidestepping the clear
intent of the people and the lawmakers. It has become a race to outmaneuver the effects
of the Bill,if not the Bill itself. You must now act and we ask that you do with deliberate
speed to get this Bill approved. What happens if this effort fails, if the fierce call of
urgency is not heeded, it would be another missed opportunity. We would then be left
COUNCIL MEETING 27 OCTOBER 6, 2021
with the bleats, bones, and developed residues of another paradise paved in the name
of progress. Another opportunity squandered where it will be said by our kids and their
kids, "not too little,just too late." Thank you.
Council Chair Kaneshiro: Thank you, Tom. Next up is Mary Patterson.
MARY PATTERSON (via remote technology): Aloha and good morning
everyone. Thank you so much to the Council for the work that you do. We really
appreciate the opportunity to speak. I have not gotten anything prepared, but after
listening to both Tom and Lorraine Mull, I cannot do any better than that. They have
covered every point. It is a really important Bill and we are so grateful to the
Councilmembers who put this Bill forward and to all of the Commissioners who has had
a say in it so far. I agree with Tom especially that time is of the essence. We need to
preserve the island's open space, not just in Princeville, but all around the island to save
it from overdevelopment, which we all know is not a good thing at this point. I urge you
to listen to all the other testimony and to vote in favor of one or the other of these bills
as soon as you can so we can close this loophole in the Comprehensive Zoning
Ordinance (CZO). Thank you so very much for your time.
Council Chair Kaneshiro: Thank you. Next up is Carolyn Padgett.
CAROLYN PADGETT (via remote technology): Hello. This is Carolyn
Padgett from Princeville. I also would like to voice my support for either one of these
two (2) bills. I do not have too much to add beyond what has already been said. I hope
that you can pass these as soon as possible before it is too late. Thank you for everything
that you do to protect open space on Kaua`i. Aloha.
Council Chair Kaneshiro: Thank you. Next up is Teresa Tico.
TERESA TICO (via remote technology): Thank you. Good morning. I am
a resident of Wainiha and I am testifying on my own behalf in support of Bills Nos. 2822
and 2838. I would like to especially thank Councilmembers Evslin and Chock for
introducing the original Bill No. 2822, which has been returned to you from Planning
as Bill No. 2838, with several minor revisions, all of which are acceptable to me anyway.
I think it is a wonderful Bill and I hope that you pass it as soon as possible. I do agree
with Lorraine Mull that the County of Kaua`i is at a crossroads in terms of how we want
our island perceived and the quality of life we want for future generations. Will we
remain"The Garden Island" or will we become another Ka'anapali, Maui or Waikiki? I
am sure all of you know that as a result of the COVID-19 shutdown, our population has
increased some say by as much as ten percent (10%), the greatest increase in the state.
There is tremendous pressure to develop properties that are not zoned for development
or to develop campgrounds on golf courses, which is just a euphemism for resort
development, we all know that. The idea of developing golf courses is not unique on
Kaua`i. In our research we have found that developers throughout the United States,
COUNCIL MEETING 28 OCTOBER 6, 2021
indeed the world, are trying to develop golf courses claiming they are not profitable. I
was talking to a friend of mine on the Big Island the other day, Julia Neal, the former
Editor of The Garden Island newspaper. She was telling me about a proposal to build
a glamping resort at the Discovery Harbor Golf Course in Na'alehu near South Point on
the Ka`u Coast. The Ka`u coastline is the longest stretch of undeveloped coastline in the
state and that is only as a result of continued and arduous community effort to preserve
and purchase those lands so that they will not be developed. Now the owner of Na'alehu
wants to build a glamping resort on it. You can imagine the community is fighting back
and communities everywhere are fighting back demanding that open space remain open
space. They are winning these fights. They are winning because open space
conservation produces significant economic and health benefits for our communities.
Let us preserve the intent of our CZO by defining exactly what a developed campground
is and is not. Please pass the Bill and pass it now. As Mr. Mull said, "time is of the
essence." Thank you.
Council Chair Kaneshiro: Thank you, Teresa. Next up is Ned Whitlock.
NED WHITLOCK(via remote technology): Am I up?
Council Chair Kaneshiro: Yes, we can hear you, Ned.
Mr. Whitlock: I am totally opposed to Bill No. 2822. I am a
full-time farmer here in Moloa`a growing on twenty-eight (28) acres. I have gone
through the Farm Worker Housing process. I have two (2) structures. One in building
and one completed. That is one thousand eight hundred square feet (1,800 SF). That
just covers my family, my immediate family. Now I have workers. Putting a kibosh on
having a developed camp for my workers would be a huge problem for diversified,
organic agriculture. We produce food for this island. In a typical week, we might do
one hundred fifty (150) bunches of chard, three hundred fifty (350) bunches of kale, two
hundred (200) pounds of lettuce, one hundred fifty (150) pounds of arugula, two
hundred (200) pounds of beets, two hundred (200) bunches of green onions, et cetera.
Every day, we are picking six (6) days a week and sending out things through farmers'
markets, all of the health food stores, et cetera. We are a legitimate farm and to do this
it takes hands and a lot of people. It takes about I would say eight to twelve (8-12)
workers to make this all happen. A lot of this time, these are young folks who want to
learn about agriculture and are willing to work for stipend or a work/trade situation.
We are always trying to take care of our workforce. This seems like a big sledgehammer
coming down on agriculture land that would make it very difficult for us producers if
for instance we have some billionaire neighbors who are trying to do their own
development and are "picking a bone" with farmers on this side of the line. We would
be an easy target. Kauai will suffer. The only reason I am able to do this is youthful
energy, people willing to work, and people who want to live in the country while they
are doing it. They could be jammed in a house somewhere in suburbia with sixteen (16)
other people. I appreciate the concern about developing golf courses and things like
COUNCIL MEETING 29 OCTOBER 6, 2021
that. If you are coming down on Agricultural land, we are just trying to make a living
here. Help us out. That is about all I can say. Are there any questions? I would be
glad to answer them.
Council Chair Kaneshiro: There are no questions. Thank you, Ned for
your testimony.
Mr. Whitlock: Thank you.
Council Chair Kaneshiro: That concludes the public testimony this
morning.
There being no additional public testimony, the meeting proceeded as follows:
Councilmember Kuali`i moved to receive Proposed Draft Bill (No. 2822),
seconded by Councilmember DeCosta.
Council Chair Kaneshiro: This is the Bill that the County Council
prepared on the front end. The motion on the floor is to receive this Bill. This Bill was
referred to the Planning Commission. The Planning Commission sent back an updated
and revised Bill, so the motion on the floor is to get rid of this older Bill that the County
Council sent to them and we would be moving forward working on Bill No. 2838. Are
there any questions on Proposed Draft Bill (No. 2822)? Councilmember Cowden.
Councilmember Cowden: I just have a question for Matt Bracken,
County Attorney. I had several people ask me to keep Proposed Draft Bill (No. 2822).
My understanding that I have said to those people, so I am looking for accuracy, is if we
kept Proposed Draft Bill (No. 2822) instead of using the Proposed Draft Bill (No. 2838),
we are effectively not respecting the Planning Commission, is that correct? We need to
move on to Proposed Draft Bill (No. 2838), so when people say, can we keep Proposed
Draft Bill (No. 2822), what would be the answer to that?
There being no objections, the rules were suspended.
Mr. Bracken: You cannot keep both of them,because they are
touching the same subject matter and ordinance sections, so you cannot keep both of
them, you have to only keep one of them. Proposed Draft Bill (No. 2838) is the one that
the Planning Commission changed and approved by them, so if you kept Proposed Draft
Bill (No. 2822), you would basically be ignoring the Planning Commission's
recommendation. Under the Charter the Planning Commission has the authority and
expertise in this area and that is why these Bills are sent to them, because they have
the authority and they are the ones enacting a lot of the ordinances,but they also, under
the Charter are required to have certain expertise that you are relying on. So if you
were to reject what they say, you are just ignoring them.
COUNCIL MEETING 30 OCTOBER 6, 2021
Councilmember Cowden: Okay, thank you. I just wanted to clarify it for
people who have that concern.
Council Chair Kaneshiro: Councilmember Evslin.
Councilmember Evslin: If I can clarify one thing, too. I support the
Planning Commission's recommendation. I think it is a better Bill than what was sent
over and their changes were good. The major substantial change, which maybe Ka`aina
would get into in the next Bill, but it is worth explaining now, is that this Proposed
Draft Bill (No. 2822), the motion is to receive, had an entire section at the end, which
what we thought was clean up within the Transient Vacation Rentals (TVR) code, and
would have prohibited TVRs from operating at all on Agriculture and Open zoned land.
The Planning Commission with the Department's advice was to shear that part off of it
and deal with it in a separate Bill, as it did not relate to developed campgrounds and it
would create issues down the line with having to figure out with non-conforming uses
for existing TVRs on Open zoned land. So it makes sense to shear that off and given
that, I think this Bill is no longer necessary.
Council Chair Kaneshiro: Are there any other questions on this Bill? Is
there final discussion on Proposed Draft Bill (No. 2822)?
There being no objections, the meeting was called back to order, and proceeded
as follows:
Council Chair Kaneshiro: With that, we will take a roll call vote.
(Written testimony was received and registered speakers testified regarding this
agenda item.)
The motion to receive Proposed Draft Bill (No. 2822) was then put, and carried
by the following vote:
FOR RECEIPT: Carvalho, Chock, Cowden,
DeCosta, Evslin, Kuali`i, Kaneshiro TOTAL— 7,
AGAINST RECEIPT: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL — 0,
RECUSED & NOT VOTING: None TOTAL— 0.
Ms. Fountain-Tanigawa: Seven (7) ayes to receive.
Proposed Draft Bill (No. 2838) —A BILL FOR AN ORDINANCE AMENDING
CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO
TRANSIENT ACCOMMODATIONS (Kaua`i County Council, Applicant) (ZA-2021-2
— Planning Commission Recommendation)
COUNCIL MEETING 31 OCTOBER 6, 2021
Councilmember Kuali`i moved for passage of Proposed Draft Bill (No. 2838) on
first reading, that it be ordered to print, that a public hearing thereon be
scheduled for November 3, 2021, and referred to the Planning Committee,
seconded by Councilmember Chock.
Council Chair Kaneshiro: Council Vice Chair Chock.
Councilmember Chock: Ka`aina, we have heard today that some of the
primary concerns around this Bill centers around the impact on agriculture,
particularly small farmers, and we discussed there was a possibility that some
recommendation will come forth from the Planning Commission on it. I have read the
transcripts. I just want to provide some background on where that is and it does not
look like it has been taken care of, so the question I have is around if we want to move
forward with the new Bill or is there interest to work with the Council in Committee to
provide an amendment?
There being no objections, the rules were suspended.
KA`AINA S. HULL, Planning Director (via remote technology): Vice Chair
Chock. I saw the testimony this morning and I think it has come up concerning
agriculture or farm worker uses of possible camp sites for farm operations. We saw a
little bit of testimony at the Planning Commission and Mr. Whitlock this morning. The
Department is not opposed to looking at scenarios in which possibly camp sites can be
propped up in a regulatory framework for addressing farm workers. Right now, the
proposal that was received by the commission review was to prohibit developed
campgrounds outright on agricultural lands and open lands, which we do agree with,
because while we have not received, at least in my fifteen (15) years here, we have not
received a single application for farm camps, if you will, I would say, in my time here,
on average we have received one (1) or two (2) inquiries a year about true transient
camping sites on agricultural lands a year. I would say in this past year, and I am not
sure if this just happened spontaneously, if it was in response to COVID-19, or if it was
in response to this Bill or the glamping proposal being pitched out of Princeville, we
have been somewhat inundated with transient accommodation campsites inquiries for
agricultural land this year. Dozens have come in. You all have not seen any on the
Planning Commission, because every single one that has come in, quite honestly, we
have meetings with them and informed them they have the right to apply, but we will
be recommending denial and have explained to the applicants why. So far, all of them
in hearing that have walked away and said we are not going to apply for it, but the
interest and the desire and thrust of developers or operators to set up transient
campgrounds on Agricultural land is a bit of an urgency now. That is why we are in
agreement with the Bills. Prohibition on agricultural lands for now, but I think if there
is a desire to look at farm camps, if you will, we are open to that, but there would need
to be a specific set of standards under which bona fide farmers are qualifying, as opposed
to non-bona fide operations coming in under the guise of farm camps. So we are opened
to that, but that will take some time.
COUNCIL MEETING 32 OCTOBER 6, 2021
Councilmember Chock: Thank you. I want to hone in on the vehicle for
that. We have a Farm Worker Housing Ordinance that is certainly something that
could be looked at and revised to expand upon, but I am looking for your guidance in
terms of where you see any future amendment occurring.
Mr. Hull: I would say that in looking at standards, we
definitely would want to look at some type of income or sale threshold to qualify farm
operations, but I think a concerted effort to outreach to the farm community, to the
stakeholders, particularly the farm bureau, and to work with farmers themselves to see
what would meet their needs, but also hit that threshold of what will segregate a bona
fide farmer operation from a "farm operation" that is really just transient
accommodations.
Councilmember Chock: Thank you. My last follow-up to this question
is for Matt, because the interest is really, should we do it now or do we need another
Bill? Obviously, Planning Director Hull is saying, "Another bill" for various reasons.
Matt, you have heard some of the ideas in terms of threshold surface, would those types
of amendments be substantial? In fact, if this Council at Committee decided to amend
it now, it would have to go back to the Planning Commission.
Mr. Bracken: It is hard to say without seeing the specific
language. But from what has been said and my experience with planning contested
cases in the past where we were trying to differentiate bona fide farmer versus not, I
would almost support the outreach in getting good standards in there, just because I
know in those contested cases that I was involved in, it was really difficult to
differentiate the two (2), the standards were not in place. So I have not heard enough
today, that I think would make a good amendment to differentiate the two (2) and not
have substantial changes. You would really have to put the language in place before I
can say for sure.
Councilmember Chock: That is fair. Thank you.
Council Chair Kaneshiro: Councilmember DeCosta.
Councilmember De Costa: I have a question for Ka`aina. We have been
talking about another Bill, so we are going to make sure we are protecting our farmers.
Help me, our constituents, and fellow Councilmembers understand, farmers are staying
in tents to farm or ranch agricultural lands, correct? That is why they would stay in
farm worker housing, whether it is a tent, a structure, or some kind of lean-to, they
would be on the property to farm products or livestock, am I correct?
Mr. Hull: Sorry, Councilmember, are you saying, the
farmers are doing that right now or...
COUNCIL MEETING 33 OCTOBER 6, 2021
Councilmember De Costa: I am trying to understand something here. I
am trying to distinguish between two (2) entities that want to put tents up. To me,
one (1) entity wants to live in a tent, lean-to, or some kind of structure to farm
agricultural products to earn revenue for the farm owner of the land. They are not
paying money to stay in that lean-to or tent, they are actually getting paid by the farmer
who owns the land to farm products, am I correct?
Mr. Hull: There is an array of different scenarios that we
have seen worldwide in which campgrounds can also be used in farm operations. At
one level they could just be used straight up for transient accommodations to
supplement the farm income and the people staying in those tents are not farming
whatsoever. Then there is another scenario possibly within the gradation that travelers
are traveling from an area to the camp site, staying in the camp site with the expressed
intent of paying that site to actually experience farming the products as part of a tourist
farming attraction. Then more on the other side of the scale, you have actual travelers
that may come expressly to become farm workers without paying for the experience,but
they are being put up at camp sites somewhat at a temporary stay, anywhere between
two (2) weeks to three (3) or four (4) months, then they return home after their
experience. Then you have fully on the other side of the spectrum, tents being set up in
a manner that is like a yurt or whatnot and serves as an actual housing site for
habitation for farmers to stay, work, and live on the site. So there is a whole array in
which tents, so to speak, can be used within a farm operation.
Councilmember DeCosta: That is why we were discussing the value
placed on the product that is raised on the farm versus the value that is made off of the
tent and we did not want the value on the tent side to supersede the value of the
agricultural product and we are going to do that in our Bill. The point I was trying to
make is that on Proposed Draft Bill (No. 2838), it seems like these tents that are going
in are more for people who want to eat and enjoy food in a glamping style instead of
actually working in a garden growing lettuce or tomatoes, am I correct?
Mr. Hull: It is wholescale applied to any tent site
whether it is a small tent site that is very bare bones, or a high-end luxury glamping
site that comes with a lot of amenities, insofar as there is a commercial compensatory
aspect to it.
Councilmember DeCosta: Thank you. You answered my questions.
Council Chair Kaneshiro: Councilmember Cowden, then Councilmember
Evslin.
Councilmember Cowden: I like how our dialogue is really highlighting
the challenge with this Bill. Just to give a little bit of a format before I ask some
questions. The challenge that I see with this Bill is it is intending to really control
COUNCIL MEETING 34 OCTOBER 6, 2021
impacts of resort sprawl into land that is not intended to be a resort. That is where I
see the core piece of this is. Even when we look at Open zone in a Visitor Designated
Area (VDA) in Princeville, that golf course is more than just a place where you play a
game, it is a retention basin for water, it is a leech area, it is a park, it is a lot of different
things that was a commitment to the purchase of people around it. It was a clear
function of the understanding when people are buying there. I understand and respect
that goal. When you are speaking of recent applications, Director Hull, I just learned
of one while at the Kilauea Neighborhood Association of a big plan in Kilauea that has
come before the Planning Department, is that correct? On the Waikoa property.
Mr. Hull: That inquiry has come in to the Planning
Department. We met with the representative that possible proposal and at least the
way it was approached with us in the manner it was presented, that was one (1) of
several that we informed, if presented in this manner, which has no bona fide
agricultural component to, we will be recommending denial, yes.
Councilmember Cowden: Okay, that was an example of the fear. I was
blown away last night when I listened to it, however well intended it was. If I looked at
it, it has the potential of ten million dollars ($10,000,000) in revenue. That is a lot of
lettuce that one would have to grow to make that work.
Mr. Hull: That is one of many that have come in.
Councilmember Cowden: I am honoring the intention that is behind this
Bill to not allow that. So how do we not have collateral damage? Thank you,
Councilmember DeCosta for working on something. I have been working on it for quite
some time. Here are a few questions for whoever is appropriate. When I look at
Proposed Draft Bill (No. 2838), it almost doubled down on what was in Proposed Draft
Bill (No. 2822). This is stronger, because it took out organized recreation camps, which
is examples that would include Boy Scout camps and summer camps. I think that is a
really important application for us. I have been working with Aaron Hoff and The Keala
Foundation for doing youth wellness effort. Are you familiar with his project? Can you
speak for a moment how, if this passed, that it would not interrupt that, which I feel
like is an incredibly important goal to keep our youth making healthy choices. I call it
"prehab." Maybe they need rehabilitation or pre-habilitation. How do we keep people
from being another fentanyl case?
Mr. Hull: Thank you, Councilmember Cowden.
Ultimately, it was the department and adopted by the Commission's recommendation,
that in addition to the developed campgrounds being removed from the use table for
Agricultural lands and Open lands, we also felt it necessary to, in concert with the
developed campgrounds, remove "organized recreation camps." The main reason being
that within the use table at the end of each section for use permits, the Planning
Director is allowed to find anything similar in nature to anything listed as being able to
COUNCIL MEETING 35 OCTOBER 6, 2021
be reviewed via these permit process. Could an applicant come in after the developed
campgrounds have been removed and say I am not coming in for a developed
campground, I am coming in for an organized recreation camp. For example, the
proposal that is being looked at in Kilauea, and say, "I am not a developed campground.
I am an organized recreation camp for overnight accommodations, so the Planning
Department needs to accept this application." That was the main reason we removed
that. When speaking about organizations, as you have mentioned Aaron Hoff, I did
speak with Mr. Hoff because he did have some concerns. My understanding is that he
does have plans for a youth recreation camp site for at-risk youth. My understanding
with his proposal is that he is not charging any of the individuals or families that will
be staying at that site. If there is no commercial aspect to it, if it is not being done for
compensatory purposes, then it is just an accessory use and that is outright permitted,
so they can do that with a ministerial over-the-counter permit as it is today. Whether
it is Boy Scouts, Girl Scouts, youth camps, grammar group for all we know, staying
overnight on Agricultural Open lands, if there is no compensation or commercial aspect
to it, that is outright permissible today.
Councilmember Cowden: I want to make sure that ten (10) years down
the road that what we have would be right. I am asking your direction. I have two (2)
different ideas to help the vulnerable communities that I am going to maybe try to get
with an amendment. When I look at his piece that says there is no compensation
monetary or otherwise, now this is being funded by a nonprofit. I imagine if there are
wealthy parents wanting to help their kids, they can donate to that nonprofit, but we
have to figure out how. I will be coming to you asking, but I am asking right now, if
there is a way to add more wording in here that could say, what is acceptable would be
nonprofit applications for community enrichment like residential community
enrichment, because when we just talked about housing and keeping our children
healthy or anyone healthy not just kids, it could be U-turn for Christ.
(Councilmember Chock was noted as not present.)
Councilmember Cowden: We have camps that are dedicated to the health
renewal or the empowerment of our people, I do not want to accidentally create
something that a predatory landowner next to it can file a complaint about and put
those people into some sort of legal battle. Can you think of any wording we could add
here, whether it is developed or undeveloped that would be able to support a program
like Keala Foundation or U-turn for Christ or any other type of program?
Council Chair Kaneshiro: This is only for first reading now, if you want to
think about it, I would say, you and Councilmember Cowden can think about it and
come up with some type of wording that might satisfy what Councilmember Cowden is
trying to do and bring it as an amendment, but you do not need to answer or come up
with something on the fly right now in first reading.
COUNCIL MEETING 36 OCTOBER 6, 2021
Councilmember Cowden: I have been sending questions to him ahead of
time, so it is probably not that surprising. Another question similar that you can answer
later or now, when we look at developed campgrounds, I am wondering if we can add
something in that has a term like farm worker campgrounds, because I am in
agreement with hearing that intention along the spectrum. We also do not want
slumlords on agriculture property.
(Councilmember Chock was noted as present.)
Councilmember Cowden: Some people might have compensated yurts
and things like that. That is not the intention to turn properties into that. He said you
do not have to answer, but do you have an answer or do you want to wait on whether
we can amend without needing a new bill for either the nonprofit or farm application.
Mr. Hull: We can look into the nonprofit and how that
can be phrased, but as far as the farm worker campground site, we are open to it, it is
just we believe very specific standards need to be set in there. I think that Mr. Bracken
was alluding to is a fairly salient point in that several years ago we received a slew of
homestay or bed and breakfast applications on agricultural lands while the County was
looking at closing that loophole, and several of them had what the Department felt was
subpar or no Agricultural activity going on the property. So we recommended in some
cases denial or saying, "If you are going to do this, you need to bring the farm sale
amount higher than the transient accommodation amount." We thought that was a fair
recommendation to put in, a fair condition of approval, and ultimately, the hearings
officer overruled that recommendation saying, no, County of Kaua`i Planning
Department, you do not have a specific set of standards on thresholds for income of
agricultural sales, therefore you cannot impose that restriction. If we are looking at
farm campsites, we are open to the possibility, but we need a very specific set of
standards that is going to take time to vet through various agricultural and farmer
organizations to get those standards up. So that is why I feel it would be appropriate
to spin up another bill and let this Bill work its way through right now with you folks,
because of the fact that we are facing a bit of a wave of applications.
Councilmember Cowden: I accept that. When you spoke about the
Hawai`i Farm Bureau, can you also include the Hawai`i Farmers Union United,because
those tend to address two (2) different types of farms. There is overlap for sure, but the
farm bureau has been more of a traditional larger farms that can generate more money,
oftentimes with an export crop, so those farms can afford to rent existing housing for
their transient farmers that come in, where if you are selling salad greens or green
onions. You have to have so much workers that are not machines and there is not much
money. I think that really needs a separate type of consideration, because those things
are more of a way of life and an intention to support our sustainability as an island,
than to be able to be an export crop. We would have to look at how we would handle
that, but I want to also say, when people come for two (2)weeks to three (3) months, are
COUNCIL MEETING 37 OCTOBER 6, 2021
you aware that when people look to get a two-week employee, very often they want a
two (2) or three-year employee. It is like a test case when people come. They do not
want to be rolling people over, because they start weeding the desired crop. They do not
know what they are doing. It is a liability as much as it is a benefit. I just want to make
sure that we have that understanding, so you understand the unique needs of
diversified crops for local consumption is different than a bigger agricultural export
product.
Mr. Hull: Yes.
Councilmember Cowden: You can include Hawai`i Farmers Union
United.
Mr. Hull: Yes.
Council Chair Kaneshiro: We are coming to a caption break. I know
Councilmember Evslin has a question when we get back. 10-minute caption break.
There being no objections, the meeting recessed at 10:39 a.m.
The meeting reconvened at 10:52 a.m., and proceeded as follows:
Council Chair Kaneshiro: Welcome back. We are still on Proposed Draft
Bill (No. 2838). While the rules are still suspended, our next question is from
Councilmember Evslin.
Councilmember Evslin: Matt, are you here?
Mr. Bracken: Yes.
Councilmember Evslin: I have a quick question for Matt, and then a
few follow-up questions for Ka`aina. While I think this Bill is clearly intended to look
at the broader concern of developed campgrounds on Agriculture- and Open-zoned
lands islandwide, the clear "elephant in the room" is the well-publicized fact that
there is a current corporation submitting for a Use Permit application for a
"glamping" project in Princeville. If they submit a Use Permit application before this
Bill potentially is passed and signed into law, could you walk us through whether an
applicant has vested rights in uses of the property and based on that, would the
application be considered based on the law as it exists now or based on the law as it
potentially would exist if this Bill passes?
Mr. Bracken: Potentially, if this Bill were to pass and an
application was in-place, the Planning Department or Planning Commission could
rely on the current law as it is now, or the new law. To rely on the new law they
would have to go through an analysis. It is a vested right equitable estoppel analysis.
COUNCIL MEETING 38 OCTOBER 6, 2021
It is kind of a blend of the two (2). To apply the new law, there would have to be an
equitable estoppel analysis. What equitable estoppel is or in this context we are
talking about zoning estoppel. To define that, it is a legal doctrine that allows a
landowner based on the landowner's reasonable and substantial reliance on the
government's original position to proceed with the development despite the change in
government's position of making the development illegal. The theory itself focuses
on equity and fairness. The Supreme Court has established a framework or a test to
apply this theory. Some of the things that you will have to look at...or we would have
to look at is have they received official assurances that what they are doing is in
compliance with the current zoning, have they taken good faith actions towards
whatever it is they are proposing, what kind of financial investments they have made
into the pending application, and whether the landowner had the right to rely on
these additional assurances. There is a four-part test that would have to be applied
to any specific situation with any permit in-process. With that specific one, you would
have to apply an equitable estoppel analysis or the zoning estoppel analysis to
determine which law to apply. At this point in time, I cannot really say which one
would apply. To apply the new law, we would have to go through this analysis
though.
Councilmember Evslin: I have more questions, but if she has a
follow-up...
Councilmember Cowden: I have a follow-up. I want to just speak to this
"elephant in the room." That application that includes...and I know it is not limited
to...but includes high-end camping on the Woods Course in Princeville, has that
application been successfully submitted?
Mr. Bracken: Yes.
Councilmember Cowden: What date was that submitted on?
Mr. Bracken: I actually do not have that information. I did
receive a copy of the application this morning.
Councilmember Cowden: I think it might have been September 16th. It
might be that Ka`aina knows.
Mr. Hull: Yes, Councilmember Cowden, it was...I
believe it was September 16th or I may be off a day or two. I will have to check on
that.
Councilmember Cowden: Okay, so if this application that includes
resort camping on Open Space in Princeville was submitted a few weeks ago, would
COUNCIL MEETING 39 OCTOBER 6, 2021
that application have to be analyzed in terms of what the law was at the time of
submission or at the time of when it is determined at the end?
Mr. Bracken: That is when the zoning estoppel analysis
would come into play, right? If this Bill is passed before the application process is
complete, then we would have to do a zoning estoppel analysis to see if the new law
could be applied or if under the fairness and equitability analysis, we would have to
apply the old law. An analysis would have to occur...
Councilmember Cowden: Who does the analysis?
Mr. Bracken: That would have to be the Planning
Department in consultation with my Office.
Councilmember Cowden: Okay, so Planning Director Hull, where do
you see or where would you anticipate this to be working? I had sent some questions
in and I appreciate the answers that you have given me. It seems like what I am
hearing from Mr. Bracken is a little different from what I interpreted was your
answer before.
Mr. Hull: I can say, I made a number of statements to
the public on the record and in an official forum that it would have to be reviewed
under the old standard and that was going off of a County Attorney advisement when
we did the homestay operations and there was a Homestay Bill to prohibit them and
a bunch of applications came in. I think what the County Attorney is saying is that
technically, we have to look at each case scenario to see if we can make an analysis
under a new law that has been adopted subsequent to the application being accepted.
One, I have not fully vetted the application under the proposed ordinance that you
folks have here. I think that we can only really truly make that estoppel analysis in
the event that Council actually takes action on an ordinance. To me, this is still just
a proposal, right?
Councilmember Cowden: Correct. It sounds like there is a gray area.
Just so I am clear, if there was an adaptation and amendment that made it very
specific about nonprofit actions or intentions, that does not have any impact on the
"elephant in the room," right, which is the existing application? Whatever we finish
here and probably the earliest we could do it would probably be in December, right?
Did you say early December? I think our timeline would be two (2) months, if this
went to a contested case hearing, that is almost certain that that would do it. It still
does not matter in terms of the estoppel. They would still be deciding or at least
contemplating what was the law on September 16th.
Mr. Bracken: The existence of a contested case really would
not impact the estoppel analysis. The estoppel analysis would come into play as soon
COUNCIL MEETING 40 OCTOBER 6, 2021
as this Bill is passed. That is when the analysis would have to occur. That is when
we have to balance the equities of fairness and kind of look at what they have
invested, and that sort of thing to determine which law would apply.
Councilmember Cowden: I have one last question on this. This is my
first time hearing this phrase "estoppel analysis." I was not aware of it. When we
look at the investment, the developer is going to invest considerable moneys in legal
fees and planning efforts. There has been a lot of money going in, but it has been
opposed almost since it was proposed. This has been a point of conflict. If people
spend a lot of money between then and now, even though they knew they might be
fighting it, that would seem unfair if they can say, "Well, we have spend two million
dollars ($2,000,000) in trying to make this reality happen, so now we have to go back
to what was in place on September 16th." The reason why I am pushing this so hard
is because the urgency on this Bill was largely around this particular project. I want
to make sure that we do not go through all of this work rapidly and it does not even
make any difference.
Mr. Bracken: I think the intent of the Bill is an overarching
Bill. It does not apply to just one (1) property. It will have a significant impact for
the entire island at some point in time. The estoppel analysis, that can be done at
any point. The application has been received and it is something that I can look at.
The difficulty in the estoppel analysis and why you look at the balance of fairness
aspect is, can they reasonably rely on the existence of the current zoning and then
make investments based on that? At this point the analysis has not been done. That
is why I am saying that either can be applied. The analysis does need to be done at
some point.
Councilmember Cowden: Okay, thank you.
Council Chair Kaneshiro: Councilmember Evslin.
Councilmember Evslin: The urgency of the Bill certainly...I think the
current unpublicized Use Permit application in Princeville was certainly what gave
rise to this potential concern. The urgency is islandwide. As Ka`aina said, they are
being inundated with permits. I think everyone has seen the "light go on" on
agricultural land that this is a possibility. It is certainly much broader than this
specific application. Ka`aina, I had a couple of questions which have come up in
testimony and other community concerns. One, as this Bill would potentially impact
people's ability to house homeless individuals on their properties...if someone were
trying to get a Use Permit to build some type of houseless facility or tent site for
displaced people, is "developed campgrounds" as it is currently defined, a mechanism
for them to do that, or would they have to go through separate mechanisms?
COUNCIL MEETING 41 OCTOBER 6, 2021
Mr. Hull: How do I put this...To take care of say the
houseless population, insofar as it is a program that is not charging individuals to
stay say at tent sites, then this would not be applicable.
Councilmember Evslin: Is there any way that someone could use the
current definition of"developed campgrounds" to make some type of houseless facility
if there was some charging?
Mr. Hull: In theory, possibly. Today, yes. The
"developed campground" is used much more as a transitory facility, right? The
houseless population having, what I think you are getting at Councilmember Evslin,
is more of a habitation site. Where the County runs into issues with people using
tent sites for habitation purposes is not so much that we are against using tents for
habitation...individuals can use yurts or what have you to their heart's content and
we are totally fine with that...it is just that the rub often comes with the sanitation
and infrastructure facilities that are necessary for habitation sites.
Councilmember Evslin: As it relates to agricultural workers and I
know we talked about this some already, are there any people hosting transient
agricultural workers or even longer term agricultural workers that have applied for
a "developed campground" permit?
Mr. Hull: No. There may be that occurring today, but
as far as coming in for actual applications with the Planning Department, we have
not seen it.
Councilmember Evslin: I think I have heard us discussing unintended
consequences...do you feel as if there are potential unintended consequences related
to the ability to house homeless people or for agricultural workers or farmers trying
to house workers? Or would those traditionally be done through other mechanisms?
Mr. Hull: I think that can be are done through different
mechanisms.
Councilmember Evslin: Okay, thank you, Ka`aina.
Mr. Hull: Sorry. With the houseless issue, there are
specific mechanisms that can be used such as a 201H-process, which can essentially
go over the zoning requirements. To go back to the original discussion with
Councilmember Cowden and Council Vice Chair Chock concerning the farming
aspect, it would in theory possibly shut down some of those proposals coming in
should the bona fide farm operation want to submit it after this Bill is adopted. I
think that another mechanism can be spun up. There are Councilmembers that have
COUNCIL MEETING 42 OCTOBER 6, 2021
been engaging the Department in looking at and crafting a vehicle separate and apart
from this Bill to funnel those applications for bona fide farm operations.
Councilmember Evslin: Thank you. I just want to add that I one
hundred percent (100%) support those efforts. These questions are more about
impacting those that are currently hosting woofers and others that they rely on these
workers for their farms and to ensure that they are not being impacted by this current
Bill.
Council Chair Kaneshiro: Councilmember Cowden.
Councilmember Cowden: Thank you for raising both of those issues,
Councilmember Evslin, because those are absolutely concerns of mine. I have been
pushing on the farmers for years even from before being elected about the need to be
in a permitted situation. I would say there is a collective fear and not wanting to
draw attention to what is happening. That is why there is so much silence and lack
of financial capacity to be able to submit appropriate plans and how to do it the right
way. There are economic barriers for farming, but also when we look at the houseless
situation and creating permanent housing types of circumstances, as I have brought
to you, part of the thing would be trying to create...and Councilmember Kuali`i was
with me...we want sustainable houseless communities, they would not be unhoused
any longer, but would be agriculture in nature. It would be that they would all be
financially contributing a little bit. They would be basically contributing together to
be paying their land taxes, insurance, et cetera. Part of that whole goal is to move
people off of public assistance and to become self-sufficient. If they were contributing
to their organized, excuse me, not organized...to developed campgrounds, because
they need the toilets and water, when they are contributing, then would that be
considered compensation? Because we have this word "transient," would that be
removing them from that? When there is compensation, monetary or otherwise, but
they are not transient, maybe they would not be set aside by this Bill? Is that too
complicated?
Mr. Hull: I would have to look into that further,
Councilmember.
Councilmember Cowden: Okay. I do not want to be "hitting a half-inch
nail with a sledgehammer." We want to make sure that we stop the exploitation of
camping on lands, but not stop holistic healthy application on agricultural lands.
Council Chair Kaneshiro: Are there any further questions from the
Members?
There being no objections, the meeting was called back to order, and proceeded
as follows:
COUNCIL MEETING 43 OCTOBER 6, 2021
Council Chair Kaneshiro: Is there any final discussion? Councilmember
DeCosta.
Councilmember DeCosta: I am going to say this because I believe fair
representation among all of our constituents is important. I know that Council Chair
Kaneshiro and I spoke a little bit about this with the new vision that Gay & Robinson
might want to go with the agricultural development or vision. I am hoping that
Ka`aina, we can put something in place that these agriculture companies can
successfully grow agricultural products and yet entertain agrotourism if they need to
stay afloat with the amount of land taxes that they have to pay, especially when a
landowner is as large as Gay & Robinson. I just wanted to put that out there. I
believe that we should discuss that further with Ka`aina, so we have that in our best
interest.
Council Chair Kaneshiro: Councilmember Evslin.
Councilmember Evslin: Sorry, I should have done this at the start. I
do have a housekeeping amendment.
Councilmember Evslin moved to amend Proposed Draft Bill (No. 2838), as
circulated, and as shown in the Floor Amendment, which is attached hereto,
seconded by Councilmember Kuali`i.
Councilmember Evslin: The amendment deletes the second half of the
Bill as it relates to vacation rentals. The Planning Commission took out the language
that we had changed which is why the whole second half was in there. We had some
language which said, "Transient Vacation Rentals (TVRs) are prohibited on
Agricultural or Open land..."; that language was removed. This is just removing the
rest of the unchanged language in the second half of the Bill. There are no substantial
changes at all. It is just deleting unchanged language.
Councilmember Cowden: Where?
Councilmember Evslin: It is all of this language that is included in the
Bill. You see here, there are three (3)pages of language as it relates to existing things
within the CZO that relates to vacation rentals. Since there are no more changes
anymore, there is no reason to include that in the Bill.
Council Chair Kaneshiro: Councilmember Cowden.
Councilmember Cowden: Can I ask Matt Bracken or Ka`aina if we
remove this, would that be fine or does it have to go across the street again? Is this
fine? Is this a housekeeping amendment in your eyes?
COUNCIL MEETING 44 OCTOBER 6, 2021
There being no objections the rules were suspended.
Mr. Bracken: Yes. It can be removed.
Councilmember Cowden: Okay.
Council Chair Kaneshiro: Are there any additional questions on the
amendment?
There being no objections, the meeting was called back to order, and proceeded
as follows:
Council Chair Kaneshiro: Is there any discussion on the amendment?
The motion to amend Proposed Draft Bill (No. 2838), as circulated, and as
shown in the Floor Amendment, which is attached hereto was then put, and
unanimously carried.
Council Chair Kaneshiro: The motion is carried and the amendment
passes. Does anyone else have any final discussion? Councilmember Cowden.
Councilmember Cowden: I appreciate everyone, certainly the people in
the Planning Department and all of my colleagues. It sounds like we are all working
on a similar goal. I am wondering and formally asking in whatever way I have to
formally ask, but I want it on the record...if we can do something like a workshop
piece in a Committee Meeting coming up such that we can openly be talking about
our ideas. You just said what your ideas were...Councilmember Kuali`i and I have
some half-done ideas. I know that I have looked at farm ideas. When we have to do
things on faith and trust in the future, and just hope that our colleagues come up
with something that will be good, I think it would be nice...I think it would be more
than nice, but I think it is essential for us to develop good policy, in that we allow for
an open discussion on what ideas we would have for addressing this. Can we please
do that?
Council Chair Kaneshiro: I would say that preparing an amendment
and getting an amendment on the floor is the arena for us to address any discussion
on any items you want to amend into the Bill.
Councilmember Cowden: We are saying when there is going to be
parallel work...part of the question that has come up is that okay, there is another
way to handle it...when we pass something, but that other way of handling it does
not manifest, then that is a problem. I would like to make sure that we do a little bit
of concurrent work. If people's ideas are not developed enough, we can share those
COUNCIL MEETING 45 OCTOBER 6, 2021
ideas so it would not be on this particular Bill, it would be an agenda item in addition
to this particular Bill so that we can have a holistic conversation.
Council Chair Kaneshiro: So the workshop would not be in relation to
this Bill?
Councilmember Cowden: It would be in relation to this Bill and others.
It could be an adaptation of farm worker housing or however we can do it. As we are
being told there are other ways we can address the developed campgrounds on
agricultural land. How do I know what they are before we close the door on allowing
it? I definitely would like to close the door on exploiting it, but I do not want to close
the door on finding a concurrent solution. Even having a discussion where we could
see where we are at...
Council Chair Kaneshiro: Typically if there are other avenues that you
would want to pursue, you would speak with the Planning Department or whoever
the person is and decide whether it is something you would amend in this Bill or if it
is something that would be brought up in a new bill. That is where the discussion
would happen.
Councilmember Cowden: I am hearing that your answer is no. Why
that is frustrating is...
Council Chair Kaneshiro: No, to?
Councilmember Cowden: That is frustrating because I have done that.
I have been doing that and I have been asking these questions. It takes all of us to
be able to...it is not just an individual and the Planning Department through an
amendment. It would be nice to know what we are all thinking so we can all figure
something out together. It seems like we should be able to do that.
Council Chair Kaneshiro: We can and it is through you bringing up a bill
or an amendment and everyone discussing that.
Councilmember Cowden: Okay, I am accepting your answer as no, but
I am still going to ask for it.
Council Chair Kaneshiro: Okay, I am not exactly sure what you are
asking for but...I am saying that is where the discussion happens. The discussion
happens here on the floor based on the Sunshine Law. If you want to discuss a bill
or if you have a change to this current Bill...or if there is another way you want to
address housing or farm worker housing, then you discuss it with the appropriate
departments, you come up with a bill, and you bring it onto the floor. That is typically
how you do it.
COUNCIL MEETING 46 OCTOBER 6, 2021
Councilmember Cowden: When we do that, we have poor policy
development, because it has to then work around the last piece instead of having it
holistically developed together. He is bringing something up that is important to him
that is relative to...I guess if I am hearing you, visitors on the land. If he is working
on something and you are working on something, it is important to know what it is
as we are going through all of this.
Council Chair Kaneshiro: Okay. I guess we can agree to disagree.
Ultimately, we are here to pass the best bill that we can. If we are not comfortable
with the bill or the way it is, then you ask for a deferral or you vote no on it, or you
do something else. That is typically how we do it. We are not here to just pass
anything. If you feel like a discussion on a certain item did not happen for you to feel
comfortable with the bill, then maybe ask for a deferral or come up with amendment
for everyone to discuss on what change is you would like to see. That is typically the
process for that. Historically, I have not seen us do workshops to work on a bill.
Councilmember Cowden: It would be a workshop to work on a concept.
The challenge that we have here is that we have a bill that is intending to stop
exploitation of these different land uses, but it is intended to pass simply, and it does
not address these special needs. We are all saying we are going to do something later.
I do not want to do something now, when later never comes. At least in my three (3)
years, I have experienced quite a bit when later never comes.
Council Chair Kaneshiro: I think later falls on the responsibility of a
Councilmember. If there is something you do not agree with in the Bill, then again,
you speak with the department heads or you come up with your own bill. You speak
to the staff and come up with an amendment or with a new bill. That is when later
happens. If there are issues that you have that never makes it back to the floor, then
we are never going to see it.
Councilmember DeCosta: May I shed a little bit of light?
Council Chair Kaneshiro: Councilmember DeCosta.
Councilmember DeCosta: I would like to maybe collaborate so maybe we
can come up with something. I think Ka`aina is onboard to address via an
amendment or a new bill to address some of the concerns in this fruitful conversation.
I think we did have a fruitful conversation today. We know what we need to fix and
how we want to go with it.
Councilmember Cowden: You have already spoken to Council Chair
Kaneshiro and I have already spoken to Councilmember Kuali`i, so you and I cannot
speak.
COUNCIL MEETING 47 OCTOBER 6, 2021
Councilmember DeCosta: Okay.
Councilmember Cowden: Those are the rules and that is what I am
trying to get past. If he and I are working on something and you two are working on
something, there might be other people working on things. We might each have a
kernel that is good, and the way it works when we put an amendment out is we have
to decide if we pass that. Whoever gets theirs in first or when do we come back, it
just is not a practical way of dealing with something of such importance.
Councilmember DeCosta: I think the Council Chair has a really good
point that we have the Sunshine Law and this is how the process works. I think if
you and Councilmember Kuali`i introduce your proposal, we would be very much open
for the discussion and more things could happen at that point.
Councilmember Cowden: The workshop is the way that we go around it.
That is how we go around it and he is saying no to the workshop.
Council Chair Kaneshiro: I am not trying to go around the Sunshine
Law.
Councilmember Cowden: A workshop does not go around the Sunshine
Law, it is how the Sunshine Law can work. I am getting that I am getting told no,
and I have someone shaking his head right next to me. I am disappointed and I am
going to be clear about that. That is how we make the best choices; when we can have
a holistic conversation instead of sequential amendments that are not able to consider
the other possibilities.
Council Chair Kaneshiro: Council Vice Chair Chock.
Councilmember Chock: I am going to push back a little bit on it. I am
not averse to workshops, in fact I had a workshop here at this body. I do think that
a workshop is broad in nature and something that I think we can include a wide
variety of stakeholders in the process. I think it becomes problematic, at least from
my standpoint, as it relates to specific legislation...right now we have a Bill on the
table. The process that we have outlined is that we can all...each one of us can come
up with an amendment and bring it to the table. While you are correct, we take those
amendments individually, that does not mean that you cannot speak to, once an
amendment is introduced, to what it is you are moving towards so that there is an
avenue for us to discuss what it is we might be able to change. That is where the
work happens. That is why it is focused work. I just want to kind of highlight the
intention of the workshop versus the intention of the process that we have for
bill-making. I support that. My only closing comments as this goes to Committee is
that as these amendments come forth, you vet them with our County Attorney. I
think there is a strong interest to move this Bill through, so do not lose sight of how
COUNCIL MEETING 48 OCTOBER 6, 2021
it is you want to achieve the outcomes, it is just where do we get it done...within this
Bill or not. I think we want to get this Bill passed. That is all.
Council Chair Kaneshiro: Councilmember Evslin.
Councilmember Evslin: This is our final discussion on the Bill itself,
correct?
Council Chair Kaneshiro: Yes.
Councilmember Evslin: To address Councilmember Cowden's
concerns, I hear you and I appreciate that I think in a lot of this conversation you
could see the "flowers blossoming" and these ideas blossoming in different directions.
I think that is great. You had Councilmember DeCosta discussing his, and you
discussed yours. I think the process that we have in place, as Council Chair and
Council Vice Chair said, is to work with the subject matter experts at the Planning
Department to try to figure out what really could work. I think that some of that
relates to how to define a real farm and there is going to be a ton of work with the
Farm Bureau and other stakeholders that is going to have to happen outside of this
body here. I think the workshop is a little bit of a way to get around the Sunshine
Law if you are trying to throw out ideas to get support from other Councilmembers.
I do not think that is necessarily a great way to utilize a workshop. The broad
intention of this Bill is to recognize the current definition of"developed campgrounds"
allows uses that are unintended and were not...whoever originally framed that
definition in the CZO had never thought of "glamping." Twenty (20) years ago
probably none of us would have ever thought of"glamping," but clearly it leaves the
door wide open to uses on Agriculture and Open land that are not ideal, especially at
a time when we are overcapacity for tourism and when we have a General Plan and
a Kaua`i Tourism Strategic Plan that all say we need to better manage our tourist
industry and better control the growth of the industry. It looks clear, and let us close
this door and take the time to figure things out right. I am optimistic that the work
that you are going to do and the work that Councilmember DeCosta is going to do,
and the work that we are all going to do behind the scenes with the Planning
Department will hopefully allow us to figure out some way to open up some doors to
legit farmers to certainly house agricultural workers in a legal way and possibly open
the door in a limited fashion for legit farmers to have limited tourism activities on
their land. This is not just overnight accommodations, but tourism activities in
general are difficult to do on agricultural land and we need to do more to support our
real farmers. I think there is a lot of work to do going forward in a lot of different
directions. The legislative process as we have it works to help encourage those types
of different ideas to blossom. I am looking forward to seeing what you all come up
with and I appreciate the dialogue that we had here. I think we talked about it for
almost two (2) hours and I am sure we will talk about it more in Committee. We are
going in-depth into a lot of these important issues.
COUNCIL MEETING 49 OCTOBER 6, 2021
Council Chair Kaneshiro: Does anyone else have any final discussion?
Councilmember Carvalho.
Councilmember Carvalho: I support the idea of a workshop. I think
workshops are great and it promotes dialogue to come up with good results. In this
particular discussion, I think there are different ways to get to the same result. I
believe it can be done through an amendment. I understand what Councilmember
Cowden is asking. At the same time, there is a process that we need to continue to
work on. This discussion here is very important for setting the pace for our island.
Once we get our individual communication across the street or whatever we have to
do, then come back and discuss it, I think that is the result of that from my
understanding and in working together. We can get to the same result in that way.
I just wanted to share that. Thank you.
Council Chair Kaneshiro: Does anyone else have any discussion? For
me, this is only first reading. This Bill has to go to a public hearing, it has to go to
Committee, so there is time to work on amendments. Really, the way to do it is you
really focus in on what it is that you are trying to accomplish in the Bill. If you are
trying to help farmers out, then you focus on that, you speak with the department
head, you speak with the appropriate people, you speak with Matt or the attorneys,
then you come up with a bill or amendment that tries to satisfy what you are focusing
on. They may say that it may be too big of a change and it needs to be its own bill or
they may say, "No, we can work it in as an amendment here," but that is where you
do the work. You focus on that, you create an amendment or bill and it comes up for
discussion here on the floor. That is how it works. It is not through a workshop. It
is through focusing on what you want to accomplish with the bill and either coming
up with an amendment or another bill on it. From there, more conversations might
be spurred and someone else might want to do a different amendment or something
similar. That is how we do it in the confines of the Council. Is there any further
discussion from anyone? Again, this is first reading.
(Written testimony was received and registered speakers testified regarding this
agenda item.)
The motion for passage of Proposed Draft Bill (No. 2838), as amended, on first
reading, that is be ordered to print, that a public hearing thereon be scheduled
for November 3, 2021, and that it be referred to the Planning Committee was
then put, and carried by the following vote:
FOR PASSAGE: Carvalho, Chock, Cowden,
DeCosta, Evslin, Kuali`i, Kaneshiro TOTAL— 7,
AGAINST PASSAGE: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL — 0,
RECUSED & NOT VOTING: None TOTAL — 0.
COUNCIL MEETING 50 OCTOBER 6, 2021
Ms. Fountain-Tanigawa: Seven (7) ayes.
BILL FOR SECOND READING:
Bill No. 2830 — A BILL FOR AN ORDINANCE AMENDING CHAPTER 3,
KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO FINANCIAL
DISCLOSURES
Councilmember Kuali`i moved to approve Bill No. 2830 on second and final
reading, and that it be transmitted to the Mayor for his approval, seconded by
Councilmember Carvalho.
Council Chair Kaneshiro: Does anyone have any questions? If not, does
anyone have any final discussion?
(No written testimony was received and no registered speakers requested to
testify regarding this agenda item.)
The motion to approve Bill No. 2830 on second and final reading, and that it be
transmitted to the Mayor for his approval was then put, and carried by the
following vote:
FOR APPROVAL: Carvalho, Chock, Cowden,
DeCosta, Evslin, Kuali`i, Kaneshiro TOTAL — 7,
AGAINST APPROVAL: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL — 0,
RECUSED & NOT VOTING: None TOTAL — 0.
Ms. Fountain-Tanigawa: Seven (7) ayes.
Council Chair Kaneshiro: Please read us into Executive Session, which
we will take at the end of the day.
EXECUTIVE SESSION:
ES-1061 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4,
92-5(a)(4), and Kaua`i County Charter Section 3.07(E), the Office of the County
Attorney requests an Executive Session with the Council to provide the Council with
a briefing and request for settlement authority in the matter of Matthew Mannisto,
Esq., as Personal Representative of the Estate of Leslie Gae Lutao, Deceased, et al.
vs. County of Kaua`i, et al., Civil No. 19-1-0107 JKW (Fifth Circuit Court), and
related matters. This briefing and consultation involves the consideration of the
powers, duties, privileges, immunities, and/or liabilities of the Council and the
County as they relate to this agenda item.
Councilmember Chock moved to convene into Executive Session for ES-1061,
seconded by Councilmember Kuali`i.
COUNCIL MEETING 51 OCTOBER 6, 2021
Council Chair Kaneshiro: Are there any questions or discussion from
the Members? May I have a roll call vote to go into Executive Session?
(No written testimony was received and no registered speakers requested to
testify regarding this agenda item.)
The motion to convene into Executive Session for ES-1061 was then put, and
carried by the following vote:
FOR EXECUTIVE SESSION: Carvalho, Chock, Cowden, DeCosta
Evslin, Kuali`i, Kaneshiro TOTAL— 7,
AGAINST EXECUTIVE SESSION: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL— 0.
Ms. Fountain-Tanigawa: Seven (7) ayes.
Council Chair Kaneshiro That concludes the business on our agenda.
Not seeing or hearing any objections, this Council Meeting is now adjourned.
ADJOURNMENT.
There being no further business, the Council Meeting adjourned at 11:31 a.m.
• I ectfully submitted,
at
JAD . FOUNTAIN-TANIGAWA
County Clerk
•jy
Attachment
(October 6, 2021)
FLOOR AMENDMENT
Proposed Draft Bill (No. 2838), Relating to Transient Accommodations
Introduced by: LUKE A. EVSLIN, Councilmember
Amend Proposed Draft Bill (No. 2838) by deleting SECTION 8 in its entirety as
follows and renumbering all subsequent SECTIONS accordingly.
[SECTION 8. Chapter 8, Article 17, Kaua`i County Code 1987, as
amended, is hereby amended as follows:
"ARTICLE 17. TIME SHARING AND TRANSIENT VACATION RENTALS
Sec. 8-17.1 Limitations on Location.
Except as provided in this Section, time share units, time share plans, and
transient vacation rentals are prohibited.
Sec. 8-17.2 Permitted Time Share Locations.
Subject to the limitations contained in Secs. 8-17.4 and 8-17.5, time share units
and time share plans are allowed:
(a) In hotels in Resort or Commercial Districts; and
(b) In the Resort RR-10 and RR-20 Districts and Multi-Family R-10
and R-20 Residential Districts when such districts are located within the Visitor
Destination Areas of Po`ipu, Lihu`e, Wailua Kapa'a or Princeville, as more
particularly designated on County of Kaua`i Visitor Destination Area maps attached
to Ordinance No. 436 and incorporated herein by reference. The boundary lines
established on these visitor destination maps shall be transferred onto the Official
Zoning Maps for reference purposes.
(c) Time share units and time share plans are prohibited in the R-1, R-2,
R-4 and R-6 Residential Districts.
Sec. 8-17.3 Permitted Locations for Multi-Family Transient Vacation
Rentals.
Subject to the limitations contained in Sec. 8-17.5, multi-family transient
vacation rentals are allowed:
(a) In hotels in Resort or Commercial Districts; and
(b) In Resort Districts and Residential Districts within the
visitor destination areas as more particularly designated on County of Kaua`i
Zoning Maps.
Sec. 8-17.4 Time Sharing in Projects Located Within Visitor Destination
Areas and Hotels in Resort or Commercial Districts.
If the project in which the time share unit or time share plan is to be created
contains an existing time share unit or time share plan, then time share units and
plans shall be regulated according to the terms of the project instruments.
If the project in which the time share unit or time share plan is to be created
is not a hotel and does not contain time share units or time share plans, then such
use may be created only if such use is explicitly and prominently authorized by the
project instruments, or the project instruments are amended by unanimous vote of
the unit owners to explicitly and prominently authorize time sharing. Provided,
however, that time share units and time share plans permitted under this Section
shall be limited to the Visitor Destination Areas described in Sec. 8-17.2, and to hotels
in Resort or Commercial Districts.
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Sec. 8-17.5 Existing Time Share and Multi-Family Transient Vacation
Rental Uses.
(a) Time Share Units, Time Share Plans, and Multi-Family Transient
Vacation Rentals Existing On or Before September 22, 1982, That Are Not Located
in Visitor Destination Areas. Time share units, time share plans, or multi-family
vacation rentals existing on or before September 22, 1982 that are not located within
the visitor destination areas described in Sec. 8-17.2 may continue as allowed uses.
However, no additional time share units, time share plans, or multi-family transient
vacation rentals outside the visitor destination area shall be created after
September 22, 1982. The uses left unimpaired by this Subsection shall not be lost by
the failure to exercise the use unless it clearly appears that the use has been
abandoned for a period in excess of two (2) years. This Subsection shall not apply to
hotels in Resort or Commercial Districts.
(b) Time Share Units, Time Share Plans, and Transient Vacation Rentals
in Projects Located Within Visitor Destination Areas Existing On or Before
September 22, 1982. Time share units and time share plans in projects existing on
or before September 22, 1982, and located within areas described in Sec. 8-17.3 shall
be regulated in accordance with the provisions of Sec. 8-17.4.
Sec. 8-17.6 Penalty.
An owner of any unit which is operated in violation of this Article, and/or any
other person, firm, company, association, partnership or corporation violating any
provision of this Article, shall each be fined not less than five hundred
dollars ($500.00) nor more than ten thousand dollars ($10,000.00) for each offense.
This civil fine may be in addition to any criminal fines. If any person fails to cease
such violation within one (1) month, such person shall be subject to a new and
separate violation for each day the violation continues to exist.
(a) Actions by County Attorney. The County Attorney may file a civil action
to enjoin any violation of this Article and collect any penalties provided for by this
Article.
(b) Disposition of Fines. All fines imposed for violations of this Article shall
be paid to the Director of Finance to the credit of the Development Fund.
Sec. 8-17.7 Amendments to Visitor Destination Areas Designations.
Amendments to the location and/or boundaries of the Visitor Destination Areas
shall be made in accordance with the amendment provisions of Sec. 8-3.4 of this
Chapter 8, provided that the burden of proof rests with the applicant to show upon
the clear preponderance of the evidence that the amendment is reasonable. The
criteria for evaluating such proposed amendments shall be as follows:
(a) The proposed amendment is consistent with the General Plan and the
Development Plan.
(b) The parcel or parcels to be affected by the proposed amendment are
suitable for Visitor Destination Area uses.
(c) The availability of existing public services and facilities in the affected
areas and whether the requested public services and facilities for the proposed change
in use can be met without undue burden.
(d) The proposed change will conflict with other existing uses in the
affected area.
(e) The proposed change will cause or result in unreasonable air, noise, or
water pollution, or will adversely affect irreplaceable natural resources.
(fj The affected areas contain or are in close proximity to other areas
that contain:
(1) Large numbers of hotel and/or multiple family dwelling units
suitable as accommodations by temporary visitors.
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(2) Lands designated for Resort Use on the General Plan or having
Resort zoning.
(3) Outdoor or commercial recreational facilities, such as beaches,
golf courses, tennis courts and other similar facilities.
(4) Tourist related commercial facilities, such as gift shops, food
stores, recreational equipment and services shops, tour and transportation
service terminals, restaurants, bars, night clubs, cabarets, shopping centers,
theaters, auditoriums, and other similar facilities.
(g) The proposed change will include or adversely affect predominantly
residential neighborhoods.
Sec. 8-17.8 Single Family Transient Vacation Rentals.
(a) Notwithstanding any underlying zoning designation and with the
exception of properties on the National or State Register of Historic Places, single
family transient vacation rentals are prohibited in all areas not designated as Visitor
Destination Areas.
(b) Development Standards for Single Family Vacation Rentals Permitted
Within Visitor Destination Areas and Holders of Nonconforming Use Certificates.
Development standards shall be the same as those for single family detached
dwellings in Secs. 8-4.5 through 8-4.8, inclusive, with the following additions:
(1) Applicant for a single family transient vacation rental shall
designate a contact person or owner's representative who shall be available on
a twenty-four (24) hour, seven (7) days-per-week basis. Applicant shall provide
the name and contact information to neighbors adjacent to and directly across
subject vacation rental, the Planning Department, the Kauai Police
Department, the Kaua`i Civil Defense Agency, and the Kauai Visitors Bureau
upon issuance of a nonconforming use certificate or registration number.
Owner is responsible for keeping information updated with all agencies.
(2) One (1) outdoor sign no larger than one (1) square foot shall be
posted in a visible place on a wall, fence, or post immediately inside or on the
front boundary of the property where it is easy to see, for the purpose of
providing the current Nonconforming Use Certificate number or the
Registration Number and the 24/7 phone number. No other signs shall be
allowed and there shall be no direct illumination of the required sign. The
numbers on the sign shall be no smaller than two (2) inches in height.
(3) The applicant shall provide a list of requirements and information
entitled "For the Safety and Comfort of You and Your Neighbors." This shall
provide essential information to the visitor and shall seek to reduce negative
impacts on the surrounding neighborhood. This information piece shall be
provided to the Planning Department at time of application and shall be posted
in a conspicuous place in the guest's sleeping quarters along with a copy of the
Nonconforming Use Certificate or the Registration Number, whichever the
case may be and if required. The list shall include, but not be limited to,
suggested curfews, guidance with respect to the character of the neighborhood
and gatherings and noise, and what to do in cases of emergency and
natural disaster.
(4) All print and internet advertising for single family vacation
rentals, including listings with a rental service or real estate firm, shall include
the Nonconforming Use Certificate or the Registration Number.
(5) A copy of the Nonconforming Use Certificate or the Registration
Number, where required, shall be displayed in the back of the front door of the
sleeping quarters.
(6) A site and floor plan shall be filed with the application.
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Sec. 8-17.9 Registration of All Transient Vacation Rentals.
(a) All single family transient vacation rentals, excluding, however, a time
share unit in a time share plan subject to Chapter 514E of the Hawai`i Revised
Statutes, as amended, lawfully existing in Visitor Destination Areas on March 7, 2008
shall register with the Director of Finance on a form prescribed by the Director of
Finance no later than one hundred eighty (180) days after March 7, 2008. Any new
single family transient vacation rental, excludes, however, a time share unit in a time
share plan subject to Chapter 514E of the Hawai`i Revised Statutes, as amended,
established in Visitor Destination Areas subsequent to March 7, 2008 shall register
with the Director of Finance prior to any such use of said rental. All single family
transient vacation rental uses will be subject to Kaua`i County Code Title III,
Chapter 5A.
(b) No single family transient vacation rental shall operate outside a
Visitor Destination Area without a Nonconforming Use Certificate obtained
under Sec. 8-13.10.
Sec. 8-17.10 Nonconforming Use Certificates for Single Family Vacation
Rentals.
(a) The purpose of this Section is to provide a process to identify and
register those single family transient vacation rentals as nonconforming uses which
have been in lawful use prior to March 7, 2008 and to allow them to continue subject
to obtaining a Nonconforming Use Certificate as provided by this Section.
(b) The owner, operator or proprietor of any single family transient vacation
rental which operated outside of a Visitor Destination Area prior to March 7, 2008
shall obtain a Nonconforming Use Certificate for single family vacation rentals.
(c) No Nonconforming Use Certificate shall be issued by the Planning
Director unless the use as a single family rental is a legal use under the
Comprehensive Zoning Ordinance, and the applicant provides a sworn affidavit and
demonstrates to the satisfaction of the Planning Director that a dwelling unit was
being used as a vacation rental on an ongoing basis prior to March 7, 2008. The
Planning Director, in making the decision, shall take into consideration, among other
things, the following guidelines:
(1) The applicant had a State of Hawai`i general excise tax license
and transient accommodations tax license for the purpose of the lawful
operation of single family transient vacation rentals for a period long enough
to demonstrate actual payment of taxes.
(2) That prior to March 7, 2008, applicant had deposits for
reservations by transient guests in exchange for compensation for use of
subject property as a vacation rental.
(3) That applicant had transient guests occupy subject property in
exchange for compensation prior to March 7, 2008, with a pattern of
consistency that evidences an ongoing and lawful enterprise.
(d) Applications for Nonconforming Use Certificates for single family
transient vacation rentals located on land designated "Agricultural" pursuant to
Chapter 205 of the Hawai`i Revised Statutes shall be made within sixty (60) days of
August 16, 2010. If an operator as defined under Subsection (c) fails to apply for a
Nonconforming Use Certificate within sixty (60) days of August 16, 2010, then the
Planning Director shall assess an administrative late application processing fee of
one thousand five hundred dollars ($1,500.00) at filing. A Nonconforming Use
Certificate may be issued for a single family transient vacation rental located on land
in the State of Hawai`i's land use Agricultural District if:
(1) It was built prior to June 4, 1976; or
4
(2) The applicant has obtained a Special Permit under Hawai`i
Revised Statutes, Sec. 205-6 which specifically permits a vacation rental on the
subject property.
(A) An application for a Special Permit shall include
verification by the applicant that the farm dwelling unit was being used
as a vacation rental on an ongoing basis in accordance with
Subsection (c).
(B) An application for a Special Permit pursuant to Hawai`i
Revised Statutes Sec. 205-6 and Chapter 13 of the Rules of Practice and
Procedures of the Planning Commission that is deemed complete by the
Planning Director must be filed within one (1) year of August 16, 2010.
Upon completion of the application, the Planning Director shall issue a
provisional certificate that will allow the transient vacation rental to
operate. The provisional certificate shall be null and void after the
Planning Commission or the Land Use Commission makes a decision
upon the application.
(C) In addition to the Special Permit standards set forth in
Hawai`i Revised Statutes Sec. 205-6 and Chapter 13 of the Rules of
Practice and Procedure of the Planning Commission, the Planning
Commission may only grant a Special Permit if, prior to March 7, 2008:
(i) the property upon which the transient vacation rental is located had
a registered agricultural dedication pursuant to the guidelines set forth
in the County of Kaua`i's Department of Finance Real Property Tax
Division Agricultural Dedication Program Rules; (ii) a bona fide
agricultural operation existed, as shown by State General Excise Tax
Forms and/or Federal Income Tax Form 1040 Schedule F filings; or (iii)
the Planning Commission finds that the size, shape, topography,
location or surroundings of the property, or other circumstances, did not
allow an applicant to qualify for an agricultural dedication pursuant to
the County of Kaua`i's Department of Finance Real Property Tax
Division Agricultural Dedication Program Rules or inhibited intensive
agricultural activities.
(D) If the application for the Special Permit is granted, then
the transient vacation rental operation shall be subject to conditions
imposed by the Planning Commission or the Land Use Commission.
(E) If the application for Special Permit is denied, then the
Nonconforming Use Certificate shall not be issued and the transient
vacation rental must cease operation.
(e) The owner, operator, or proprietor shall have the burden of proof in
establishing that the use is properly nonconforming based on the following
documentation which shall be provided to the Planning Director as evidence of a
nonconforming use: records of occupancy and tax documents, including all relevant
State of Hawaii general excise tax filings, all relevant transient accommodations tax
filings, Federal and/or State of Hawai`i income tax returns for the relevant time
period, reservation lists, and receipts showing payment. Other reliable information
may also be provided. Based on the evidence submitted, the Planning Director shall
determine whether to issue a Nonconforming Use Certificate for the single family
transient vacation rental.
(f) The Planning Director shall make available to the public at the Planning
Department counter and on the County of Kaua`i website a list of all completed
applications for Nonconforming Use Certificates. Applications deemed completed
shall concurrently be made available to the public. Copies of applications shall also
be made available to the public as public information, as provided by H.R.S.
Chapter 92F (the Uniform Information Practices Act). Such list shall include the
5
names of the applicants and the tax map key number of the parcels which are the
subject of the applications. The Planning Department may physically inspect a single
family transient vacation rental prior to a Nonconforming Use Certificate
being issued.
(g) The Planning Director shall prepare an application form which shall be
available to the public. If an operator as defined under Subsection (c) fails to apply
for a Nonconforming Use Certificate within sixty (60) days of August 16, 2010 the
Planning Director shall assess an administrative late application processing fee of
one thousand five hundred dollars ($1,500.00) at filing. Applications received more
than one (1) year after August 16, 2010 shall not be accepted and the use of a
transient vacation rental shall be deemed discontinued.
(h) The owner or lessee who has obtained a Nonconforming Use Certificate
under this Section shall apply to renew the Nonconforming Use Certificate annually
on the date of issuance of the Nonconforming Use Certificate.
(1) Each application to renew shall include proof that there is a
currently valid State of Hawai`i general excise tax license and transient
accommodations tax license for the nonconforming use and shall be received
by the Department prior to the expiration date of a held Nonconforming Use
Certificate. Failure to meet this condition will result in the automatic denial
of the application for renewal of the Nonconforming Use Certificates.
(2) Upon renewal, the Planning Department may initiate
re-inspection of properties for compliance with other provisions of this chapter,
or other pertinent land use laws, and may withhold approval of a renewal
application and issue cease and desist notices to the applicant until all
violations have been resolved to the satisfaction of the Planning Director.
(3) The applicant shall pay an annual renewal fee of seven
hundred fifty dollars ($750.00) which shall be deposited into the County
General Fund.
Sec. 8-17.11 Enforcement Against Illegal Transient Vacation Rentals.
(a) In addition to other penalties provided by law, including, but not limited
to, Secs. 8-3.5(a) and 8-17.6, the Planning Commission Rules, as amended, the
Planning Director, or any member of the public who has duly obtained standing
pursuant to rules promulgated by the commission, may initiate proceedings to revoke
or modify the terms of a Nonconforming Use Certificate pursuant to the Rules of
Practice and Procedures of the Planning Commission, as amended. Violations of
conditions of approval or providing false or misleading information on the application
or in any information relating thereto at any time during the application process shall
be grounds for revocation or cease and desist orders.
(b) Advertising of any sort which offers a property as a transient vacation
rental shall constitute prima facie evidence of the operation of a transient vacation
rental on said property and the burden of proof shall be on the owner, operator, or
lessee to establish that the subject property is not being used as a transient vacation
rental or that it is being used for such purpose legally. If any unit is found to be
operating unlawfully, penalties established in Secs. 8-3.5(a) and 8-17.6 shall apply.
Sec. 8-17.12 Historic Properties Exemption.
Single family dwelling units on the National or State Register of Historic
Places may be allowed to operate as a transient vacation rental through a Use Permit
and by abiding by the development standards specified in Sec. 8-17.8(b)."]
(Material to be deleted from Proposed Draft Bill (No. 2838) is bracketed.)
V:\AMENDMENTS\2021\FA- pdb2838 le AMK_dmc.docx
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