HomeMy WebLinkAbout06/06/2018 Special Council minutes SPECIAL COUNCIL MEETING
JUNE 6, 2018
The Special Council Meeting of the Council of the County of Kaua`i was called
to order by Council Chair Mel Rapozo at the Council Chambers, 4396 Rice Street,
Suite 201, Lihu`e, Kaua`i, on Wednesday, June 6, 2018 at 9:44 a.m., after which the
following Members answered the call of the roll:
Honorable Arthur Brun
Honorable Mason K. Chock
Honorable Ross Kagawa (present at 9:53 a.m.)
Honorable Arryl Kaneshiro
Honorable Derek S.K. Kawakami
Honorable JoAnn A. Yukimura
Honorable Mel Rapozo
APPROVAL OF AGENDA.
Councilmember Kaneshiro moved for approval of the agenda as circulated,
seconded by Councilmember Brun.
There being no objections, the rules were suspended to take public testimony.
There being no one present to provide testimony, the meeting was called back
to order, and proceeded as follows:
The motion for approval of the agenda as circulated was then put, and carried
by a vote of 6:0:1 (Councilmember Kagawa was excused).
Council Chair Rapozo: Next item, please.
EMERGENCY BILL:
Proposed Draft Bill (No. 2713) —AN EMERGENCY ORDINANCE RELATING
TO STANDARDS, PERMITS, AND FEES FOR WORK ON BUILDINGS,
STRUCTURES, AND PROPERTY DAMAGED IN THE HISTORIC RAIN EVENT
OF APRIL 2018: Councilmember Kaneshiro moved to approve Proposed Draft Bill
(No. 2713) pursuant to Kaua`i County Charter Section 4.02K, and that it be
transmitted to the Mayor for his approval, seconded by Councilmember Brun.
Council Chair Rapozo: As you know, this item was deferred last week,
so I am anticipating some amendments. Are there any amendments today?
Councilmember Chock: Yes, Mr. Chair, I do have an amendment that
Yvette is working on right now.
SPECIAL COUNCIL MEETING 2 JUNE 6, 2018
Councilmember Chock moved to amend Proposed Draft Bill (No. 2713) as
circulated, and as shown in the Floor Amendment, which is attached hereto as
Attachment 1, seconded by Councilmember Kaneshiro.
Councilmember Chock: I will just give a high view of what we have
done in the last week since we referred it and asked our Planning Director to kind of
walk us through the amendment. I have understood the request and need from the
Planning Department in order to help these citizens who have suffered, trying to get
back on their feet and rebuild. Equally, I also understood the concerns around the
table from Councilmember Yukimura and the Chair regarding the after-the-fact
permitting. So what you have here in the amendment that is being passed around is
the elimination of the after-the-fact permitting and really looking at what is a more
expedited permit process, and what the Planning Director...and we have other
resources, some community people that came in yesterday, Building...we have
Stanford there, and also we had Lyle, really kind of walk through how it is we can
improve on this particular kind of process. So this amendment is really a reflection
of that. I think what you will find is the concern areas of anything that has to do with
zoning permitting, as well as primary residences is what we are really focusing on,
and really excluding some of the other shoreline setback issues or those who have
kind of fallen into the other category that needs to be more scrutinized. We obviously
have been working on it up until the last minute, so I think what I want to do is have
Mike kind of walk us through it and then we can go from there.
Council Chair Rapozo: Well, we are going to wait until we have the
amendment because I do not want to have Mike up until we all have a copy of the
amendment. Councilmember Yukimura.
Councilmember Yukimura: Was there a motion to amend?
Councilmember Chock: Yes.
Councilmember Yukimura: Can we still discuss it?
Council Chair Rapozo: Yes, I just do not want to have Mike go
through the amendment until we have a copy of the amendment. Feel free to discuss
it. That is fine.
(Councilmember Kagawa was noted as present.)
Councilmember Yukimura: Okay. I will say a few things. I really
appreciate the time and attention that our Planning Director and our Planning
Committee Chair and our staff, Yvette Sahut, have given to this and I think what is
being proposed is better. There are a few unresolved issues that we were trying to
resolve just prior to this and we can maybe take it up here. As the Planning
Committee Chair has said, what the amendment does is it removes the after-the-fact
permitting and puts in place a form of expedited permitting. As we discussed
yesterday with the Department of Public Works and Planning there, as well as some
community representatives, Building is able to respond to permit applications really
quickly, but it is in the zoning area, the zoning permits in Planning that have a more
SPECIAL COUNCIL MEETING 3 JUNE 6, 2018
lengthy process, so the Planning Director has committed to a three-day turnaround
in the area of zoning permits, but we are exempting from this expedited permitting
certain categories of applications, and among them are the nonconforming uses, the
situations in where a nonconforming building has perhaps been totally destroyed or
severely damaged, because it is a very complicated process. We are also excluding
historic properties and places where a Special Management Area (SMA) permit
required and shoreline setbacks are required, because they may take a recertifying
of the shoreline and some complications, so Planning obviously cannot commit to a
three-day turnaround.
Council Chair Rapozo: When you say "exempt," what does that
mean?
Councilmember Yukimura: Sorry?
Council Chair Rapozo: When you say these classifications are
exempt?
Councilmember Yukimura: They are exempt from the expedited
permitting and would have to go through the regular permitting process.
Council Chair Rapozo: Okay.
Councilmember Yukimura: Places where it would be...the cost of the work
to repair the building would be fifty percent (50%) or more...I had a question there...it
is fifty percent (50%) more of market value of the replacement cost and usually cost
is different from market value, so maybe the Building Division can explain that. That
is something that I saw about 1:00 a.m. this morning as I was reviewing this. That
is the general approach that we want expedited permitting and we figure that of the
three hundred eighty plus (380+) properties that need repair, it looks like maybe
twenty (20) to fifty (50) are the ones that are more complicated, so the rest we want
to get through really fast. Did I miss anything?
Council Chair Rapozo: Are these, for a lack of a better word,
"entitlements," because it does entitle the homeowner to some advantages, and
rightfully so. We want to get them back in their homes. The question I raised last
week was are these entitlements limited to the emergency repairs alone? In other
words, if your home has a hundred thousand dollars of repairs that you need to do to
move in...maybe it was the roof or maybe the wall caved in or whatever it is, but the
homeowner is planning to...while he or she is doing these improvements or repairs
that they want to enhance their property, does this entitlement also allow for that?
That is where I am having a very difficult time that if we are going to make any kind
of concessions or expedite permits, I am hoping that it is limited to the emergency
repairs only and nothing more.
Councilmember Yukimura: May I? This ordinance, both the original one
and the amendment, makes a distinction between temporary repairs and permanent
repairs. So the term "emergency repairs" means "temporary work done to any
SPECIAL COUNCIL MEETING 4 JUNE 6, 2018
building or structure to meet immediate threat and essential to saving lives and
protecting and preserving property." That is Section 4 on page number 2.
Council Chair Rapozo: Right, but when I asked the question last
week...
Councilmember Yukimura: I want to explain "permanent repairs."
"Permanent repairs" are "repairs related to the flooding that will be entitled to an
expedited permit process," except for those exceptions that are complicated and
require a longer time. It does not exempt anybody from permits, except the
temporary or emergency repairs, nothing else is exempted from permits.
Council Chair Rapozo: Thank you.
Councilmember Chock: I think what we want from Mike in order to
help clarify is what the qualification process is for that. So if they go into this
three-day turnaround, what that assessment will entail in terms of how they can
rebuild.
Council Chair Rapozo: Any other discussion before I suspend the
rules? I will suspend the rules. Mike.
There being no objections, the rules were suspended.
MICHAEL A. DAHILIG, Planning Director: Good morning, Chair and
Members of the Council. For the record, Mike Dahilig, Planning Director. The floor
amendment that has been circulated and introduced by Committee Chair Chock
outlays some of the things that both Councilmember Chock and Councilmember
Yukimura have already described with respect to addressing some of the concerns
from last week's discussion on the emergency ordinance. What I would point to is
that the major fundamental change within the structure of the ordinance is to remove
the after-the-fact permitting consent and instead replace it with an emergency
permitting regime, similar to what was laid out in Ordinance No. 607 after Hurricane
Iniki. After Hurricane Iniki, what happened was that you came in, did a
pre-registration, and within thirty (30) days, you were required to submit for all the
building permits. This is similar in that structure where because there is a period of
time that has a lapse between the event and now, we do acknowledge that there is
some work that is being conducted on some of these properties that could fall under
the qualification of this ordinance. So what we are suggesting is a three-day
registration period where the qualification is evaluated and a database is built for
the various agencies to then reference through their expedited permitting review, a
baseline to then go ahead and verify if there is compliance with the codes or not. That
is what is currently envisioned. After the three (3) days, if there is qualification based
on that application, then they have thirty (30) days to submit for all of the building
permits. There are nuances to provide for in case there may be hardship or those
type of things, in case people cannot meet the thirty-day requirement. There is also
a clarification that the ordinance will not apply to a number of certain scenarios. So
if you look under Section F on page 5, the previous language under G was eliminated
and what has been laid forth is just to say clearly that the ordinance shall not apply
SPECIAL COUNCIL MEETING 5 JUNE 6, 2018
to the following. So those concerns regarding something is within the shoreline
setback or may require a shoreline setback determination, has special management
area permit, and things that relate to 6(e), historic preservation. If any of these are
on the table, then you have to go through normal process. So that is clearly laid out
in Section F. If you turn back to page 3, Section A, as mentioned, we are limiting the
bandwidth of applicability, so the qualified expedited permitting would only be
allowed for those that the tax classification is within Homestead, Residential, or
Agriculture. So we are being clear that before the event, this is the best way we can
try to narrow the bandwidth of applicability by looking at those people that really
need to get back into their homes versus something that is compared to a
commercialized or similar type of usage. Then you will notice on the very backend
that there is the fee section. We do acknowledge that there is many different
jurisdictional applicability within Section 2, so it bridges between our department,
the Department of Public Works, and other departments, etcetera. Our department,
as Councilmember Yukimura did mention, does tend to be a bit of a hang up when it
comes to timelines and then some of the applicable penalties or fines that are there.
So it does provide for situations where there was inadvertent construction that may
need to be permitted that we can waive the five hundred dollar ($500) after-the-fact
permitting fee, but that is only in inadvertent cases. You will notice that the
Section C on page 7 has been stricken. That whole section has been stricken in
acknowledgement that there is no after-the-fact permitting that is being proposed as
part of this Bill. That is somewhat what is being proposed by this floor amendment.
Council Chair Rapozo: What is the difference? You basically changed
prequalification or qualification to permitting, but you are not actually permitting.
Mr. Dahilig: You are required to come in;just like with the
Iniki Ordinance, you have to come in and permit within thirty (30) days of getting the
qualification. So we can say "no" to the qualification and then you cannot come in for
expedited permitting.
Council Chair Rapozo: So they are allowed to do the repairs without
the permit, but they are required to apply within thirty (30) days.
Mr. Dahilig: Yes, it is similar to what...
Council Chair Rapozo: Is there an expedited process to process those
applications? To me, it is kind of the same thing as the last one. You changed a few
words and saying that you are coming in for qualification, that you are coming in
basically to apply for an opportunity to come later with your permit application, but
there is no expedited permitting that I see in this ordinance. It is basically that you
can start building and you have to come in and apply for your permits within
thirty (30) days, but I do not see any expedited process from that point.
Mr. Dahilig: Chair, if I could point you to page 4 under
paragraph E. in the last line, the rub tends to be with our department on the timelines
for permitting. So that is where that three-day turnaround for approval or
non-approval comes at least from our department from expedited permitting. In our
meeting yesterday, both the County Engineer and the Division Chief Doug Haigh,
SPECIAL COUNCIL MEETING 6 JUNE 6, 2018
who is in charge of the Building Division, mentioned that they are already prioritizing
those building permits. So they have an in-house mechanism to be able to put forth
the permitting in through on expedited means. So it really bears upon our
department's jurisdictional guidance that we need some flexibility or some
narrowing, so that is where that expedited permitting with at least the Chapter 8,
Chapter 9, or Chapter 10 permits would come in.
Council Chair Rapozo: I am reading the three-day commitment by
Planning. Is there one for Buildings in here?
Mr. Dahilig: No.
Council Chair Rapozo: That is my concern. Zoning use is kind of easy
to determine, right? But the Building permit—there is no expedited permit process
for Buildings in the ordinance as I read it. I think that is my concern.
Councilmember Chock: You are right, Mr. Chair. Again, in our
meeting, when we posed that same question, I think the response, and maybe Lyle
can validate it by Doug, was that they have the resources and the ability to actually
focus the time and energy to move this forward. So whether or not we need to actually
validate that with specific writing...
Council Chair Rapozo: For me, it does, because then it becomes
another after-the-fact permit process and I want to make sure that...we talked about
it at the last meeting, utilizing some of those emergency funds to hire people to focus
on these expedited permit applications. So I understand the zoning. We can get that
done. Buildings is the one that I am concerned about. It is kind of difficult to do in
three (3) days.
LYLE TABATA, Acting County Engineer: The expedited process that was
mentioned is that people come in and apply for the permits and we move them to the
top of the pile. We already have improved our permit evaluation and building
permitting process to the point where I can confidently say that within two (2) weeks,
and I will let Leo confirm, that our review process has been streamlined and we are
doing a lot better. We have a lot of vacancies filled, so part of expediting the process
is moving them to the top of the pile basically.
Council Chair Rapozo: Currently, how long does the top of the pile
application take?
LEOLYNNE ESCALONA, Code Enforcement Officer: Good morning,
Council Chair and Members of the Council. I am Leolynne Escalona, Code
Enforcement Officer for the Building Division. As far as electronic plan review, it is
not only the Building Division that is part of the review process. We also have the
Department of Water, Department of Health, and Wastewater, so it is not only a
matter of our office completing the review. There may be other considerations and
that would factor into the timeframe for plan review and approval.
Council Chair Rapozo: Go ahead, Councilmember Yukimura.
SPECIAL COUNCIL MEETING 7 JUNE 6, 2018
Councilmember Yukimura: Lyle, you mentioned two (2) weeks—does that
include all of the other agencies like the Department of Health?
Mr. Tabata: That would include that and that has been
our best performance of expediting permitting.
Councilmember Yukimura: Okay.
Mr. Tabata: If this is approved, we will have to notify all
the agencies.
Councilmember Yukimura: With the Department of Health, they are all
under the Governor's Emergency Declaration, so hopefully they will be willing
partners. We did find out yesterday that the requirement of the new septic system
has been waived for repairs.
Ms. Escalona: Right.
Councilmember Yukimura: Which is going to make it possible, in some
cases, to repair.
Ms. Escalona: Yes.
Councilmember Yukimura: Thank you.
Council Chair Rapozo: Just for the sake of discussion, thirty (30)
days would be comfortable?
Ms. Escalona: Yes.
Mr. Tabata: Barring any complications.
Council Chair Rapozo: Obviously, if something unexpected comes
up...even the three (3) days for Planning, something could happen and that would
have to be adjusted, but in the normal circumstance, would the thirty-day window be
sufficient and comfortable for your department?
Ms. Escalona: Yes.
Council Chair Rapozo: Thank you. Councilmember Chock.
Councilmember Chock: I just wanted to clarify because I think the
figure that we were talking about was one hundred (100) or less building permits that
we would be looking at and I just want to make sure that the two (2) weeks would
still stand for you folks in terms of...
SPECIAL COUNCIL MEETING 8 JUNE 6, 2018
Mr. Tabata: We have already had some people come in,
and at every community meeting, we explain those to the people who were at the
meetings and have connected with many of them already.
Council Chair Rapozo: You tell us what that number should be that
you can accomplish because I hate to put a number in there and then you give the
people that false belief that it is going to happen. You can set your internal timeline
at two (2) weeks or one (1) month, but what would be safe, if it is one hundred (100)
or less? I want to make sure that we can comply with what is in the ordinance. That
is all.
Ms. Escalona: Are you asking the review for the Building
Division or for all agencies?
Council Chair Rapozo: Well, whatever you are responsible for, the
Building Division. We obviously cannot control the Department of Health and to a
certain extent, the Department of Water.
Ms. Escalona: So within the Building Division, two (2)weeks
is more than reasonable.
Council Chair Rapozo: Two (2) weeks?
Ms. Escalona: Yes.
Council Chair Rapozo: Okay. Councilmember Yukimura.
Councilmember Yukimura: So you also said that it is likely that you can
have all the review by the Department of Health and Fire and everything in two (2)
weeks.
Mr. Tabata: So not speaking for them, we will alert them
as to the priorities...
Councilmember Yukimura: And ask for their cooperation?
Mr. Tabata: Yes.
Councilmember Yukimura: So the target would be for everybody to do it
in two (2) weeks. That would be ideal.
Ms. Escalona: Yes.
Councilmember Yukimura: I want to point out that in Iniki, in the
emergency permitting, that was their timeline, they had to turnaround a building
permit application in two (2)weeks, but they had these exemptions for nonconforming
uses and things like that. If it is three (3) days for Planning and two (2) weeks for
Building and associated agencies, so that is fourteen (14) days plus three (3), so
SPECIAL COUNCIL MEETING 9 JUNE 6, 2018
seventeen (17) days is our target goal. That is not far from what the Iniki emergency
permitting did.
Council Chair Rapozo: Like I said, for me, I just want to make sure
that we can comply. You said your best turnaround, your quickest turnaround, was
two (2) weeks and that means if all of the planets lined up.
Mr. Tabata: Everything lined up, yes.
Council Chair Rapozo: I do not want to base this ordinance on if all
the planets line up because it will not, in most cases, especially in these type of
situations. I just want to be fair and I want to make sure that this ordinance can be
complied with without you folks stressing out.
Mr. Tabata: Our commitment is to do our best to get it out
as fast as we can and connect all the dots.
Council Chair Rapozo: You can set your own internal targets, but I
do not want to see anybody violate a law because we had two (2) days of something
else happen where your inspectors could not go out or whatever. I just want to make
sure that we get that cushion so you are not going after an ordinance that is
impossible to comply with. Councilmember Chock, I am not sure if you want to have
staff prepare an amendment. It sounds like we can get to some agreement here. I
would say "not to exceed thirty (30) days" because I just want to make sure...I
appreciate your willingness...if you can do it in two (2) weeks, then great. To be safe,
I would say thirty (30) days. I think that is very reasonable for the public to
understand as well that there is a lot of things going on and a lot of applications that
you folks are going to have to deal with coming in at once. Councilmember Yukimura.
Councilmember Yukimura: So the thirty-day period will start whenever
they get qualification...well, no...they have thirty (30) days to apply for a permit from
their qualification. We have talked about how to help them get to the point of
applying for permits because that is also an issue. It is not an issue for the County's
system, but it is a concern just in terms of getting the people housed, and that, we
have not totally solved, but we plan to work with the community and with agencies
that are giving personal assistance and hopefully that will be part of the picture.
Council Chair Rapozo: Thank you. That is equally important.
Councilmember Yukimura: The other part, which is...I wanted to ask
Lyle...you folks do have a tracking system, so you will be able to let us know how
many permits are meeting the two (2) weeks and how many are within the thirty (30)
days, right?
Ms. Escalona: Well, (inaudible), we are going to be
identifying them, so we do have a means of tracking.
Councilmember Yukimura: You do track them?
SPECIAL COUNCIL MEETING 10 JUNE 6, 2018
Ms. Escalona: Yes.
Councilmember Yukimura: Because you have been sending us these
reports that tell us with regular building permits, not flood-related ones.
Ms. Escalona: Yes.
Councilmember Yukimura: This is a sixty-day ordinance, so one of the
Planning Director's concern was that we would have to keep renewing it and it is, I
believe, the intention of the Planning Department to come in within the sixty (60)
days with a permanent ordinance, right?
Mr. Dahilig: I guess I would refer this over to the County
Attorney to further elaborate on the mechanism that will probably need to perpetuate
whatever policies develop today.
Council Chair Rapozo: The other option is to work on a permanent
ordinance.
Councilmember Yukimura: That is what I am talking about.
Council Chair Rapozo: In other words, introduce a new bill that is not
an emergency bill that would repeal this one upon passage. That would be the other
way to do it, because it is going to be a while for us. There are many options, but it
is really up to the Council on how we want to proceed.
Councilmember Chock: Chair, just to clarify, that was the topic of
discussion and I think agreement that we should really continue to focus on, because
as you suggested, and others have, there is much more needs to be addressed.
MAUNA KEA TRASK, County Attorney: For the record, Mauna Kea
Trask, County Attorney. I would like to thank the Office of the County Clerk for all
the help they have been giving me to help get the record and research this thing, but
they assisted in pulling all of the Iniki Ordinances and there were a total of at least
twelve (12), the first six (6) of which were a succession of temporary ordinances that
were subsequently repealed by later temporary ordinances and then a permanent
ordinance that was later repealed by a temporary ordinance. It was not until
November of 1993 that a first actual permanent ordinance that was permanent was
passed, and thereafter it was amended five (5) more times, finally ending in 1997. So
I think the best thing is to do this stop gap and get the registration. It is not total
island wipeout like Iniki was, so I think if Planning gets the information, that will
help you scope a permanent ordinance, because I think that is what is really needed
at this time.
Council Chair Rapozo: The trigger is that declaration and we can set
a permanent ordinance with different triggers. The Mayor could declare an
emergency and it would trigger certain entitlements and then you got the Governor
and the President. So we could frame that permanent ordinance to only be triggered
SPECIAL COUNCIL MEETING 11 JUNE 6, 2018
when we have incidents of that type and that way we do not have to worry about
these emergency sixty-one (61) day requiring six (6) votes type of deals in the future.
Mr. Trask: Yes, I think that is good.
Council Chair Rapozo: And it would only apply during times of
disaster. That is it. Councilmember Yukimura.
Councilmember Yukimura: So this was a legitimate concern of the
Planning Director, and as I understand it, in our meeting, there was a commitment
to develop a permanent bill within this sixty-one day period, right?
Mr. Dahilig: If this passes with the amendments as
discussed, we will have some real time information if we were to come back with a
subsequent ordinance to make more permanence of these operational policies that we
would have some backup information already based off of intake that will be coming
in.
Councilmember Yukimura: Speaking of data, I am hopeful...I have been
looking for it and it is not yet in existence I guess, but we need a list of all the damaged
properties. It sort of aligns with the questions that we sent you: how many are
residents, how many are other structures, how many are in floodplain, and what their
zonings are? With this amendment here, the main purpose is to return people to their
homes. That is why it is for the real property tax classifications of Homestead,
Residential, and Agriculture.
Mr. Trask: Like the Chair said, I want to make clear,
although there are governor and mayoral proclamations that have waived the
substantial amount of laws and the focus is on getting people back into shelter and
addressing their individual and family hardships, we are not operating without any
rules and the difficulty in this is a lot of the old nonconforming structures and/or
structures that predated the flood regulations at the federal level, which we cannot
waive, which the Governor cannot waive, do need to be complied with. So the housing
issues are going to maintain and I just want to modulate expectations on the floor.
Council Chair Rapozo: Councilmember Kagawa.
Councilmember Kagawa: Mike, you talked about seeing these
contractors driving in lumber and materials and knowing that construction work is
going on—what is our response to them? If they are doing work, adding to the
baseline, adding more to what we know as existed prior, what is our message to them?
Mr. Dahilig: That is where that qualification process
comes in because we obviously do not want scenarios where people are taking
advantage of a situation by the expansion that you are describing or intensification
of use. The only way we are able to verify what kind of repairs are going on is that
through the qualification process first, we go out to the property and inspect it and
that is where the amendments make very clear that we are to inspect the property.
We have records that do go back that show as-builts prior to this, so part of that
SPECIAL COUNCIL MEETING 12 JUNE 6, 2018
research of the qualification is going to ensure whether or not they are trying to
qualify a structure that did not or was not entitled to density, let say for example, or
did not or was not entitled to intensification of use or expansion of the footprint,
etcetera. Those are the types of things that we need to kind of sift out and give the
qualification. What is going to make the scenario very clear for us from an
implementation standpoint is that a lot of the complex permitting laws, like the SMA,
like the shoreline setback determination, those types of things, we know right off the
bat and we do not even go through that analysis. If you are applicable, we pull it out
and say that you have to go through the normal process. We are trying to minimize
that bandwidth of intentional violations of some of our current policies.
Councilmember Kagawa: If you find a substantial amount of these
occurrences, can we count on you to come back to this Council so that we can give you
some teeth so that we can actually do something about it instead of give after-the-fact
permits or what have you that got us into this situation in the first place? I believe
that Council Chair talked about requiring demolition and heavy fines and that should
be ran by this body so that we can help you to cure the problem. I do not want to have
inspectors out there, helpless, without any teeth to handle situations where people
are purposely violating the law for their own advantage, and like Mauna Kea said, it
does not matter disaster or non-disaster, there are rules to be played by and the whole
island needs to play by the same rules.
Mr. Dahilig: I understand and I cannot speak for the
County Engineer, but when you look at Chapter 8 or the Comprehensive Zoning
Ordinance (CZO), along with the civil fine authority, there is also a criminal penalty
for violations and because we are in a declaration mode, it actually gets into a scenario
of enhance sentencing or heightened sentencing in case there is a violation of the
code. So if we discover those situations that you need to stop, we are in an emergency,
and you may be subject to enhanced criminal violations if you do not stop now.
Councilmember Kagawa: Yes.
Mr. Dahilig: That is going to be the message that we are
going to say.
Councilmember Kagawa: I understand. Just for myself, I think what
went wrong in the past was that we had decisions made solely by the Administration
when it came to finding out problematic areas, and then solving it; whereas I think
we would not have been in that situation had we had the Council side involved to
assist the Administration and give it some teeth from a law-making body as far as
how we fix problems that are being abused. I hope that we can improve and have
that step in process so we can help our County workers that are out there, doing their
job, and not having to play referee when we have homeowners and administration
bosses telling you two (2) different stories. I think to have the legislative side give
you the teeth, help solve the problem...it is like having a referee at a football game
rather than having two (2) teams calling each other's fouls. We are the referee and
we want to be involved to make sure that our County workers have clear guidance as
to how to handle problem areas.
SPECIAL COUNCIL MEETING 13 JUNE 6, 2018
Mr. Dahilig: Given that the ordinance will be only good for
sixty (60) days if it is passed, it will require us to come back and retool and present
further information, so I think that is part of our expectation, Vice Chair, is that we
are going to still continue this dialogue within a fairly short amount of time.
Councilmember Kagawa: Thank you.
Council Chair Rapozo: Councilmember Chock.
Councilmember Chock: Just in light of the last discussion we had and
knowing that we are kind of moving into this assessment period, I just wanted to put
it on the table so that Members are aware what the capacity is and what the resources
needed moving forward might look like, because that was the request from this body
that they do it right. So I just wanted to give you a chance to shed light on that.
Mr. Dahilig: I will say that if it is structured as amended,
the amount of work is going to be narrowed considerably, and in terms of how we at
least get through the first sixty (60) days, I believe that as long as we are able to take
advantage of the flexibility that is provided through the Governor's Emergency
Proclamation, we should be able to meet this timeline of a three-day turnaround. The
other thing that was going to be intended as part of if this passes with the
amendments is that we are going to throttle the intake by actually going out into the
community, and announcing that we are going to be in specific areas at specific times
so that way you can still come to our counter and get qualified, but what makes it
more advantageous for our staff is that if they are boots on the ground in a place and
are able to do the qualification and verification inspections in real time, we can take
care of these things a lot quicker. That is part of the strategies to move our staff out
into the field and make more efficient time versus having them travel back and forth.
It does not make any sense for us to intake a form for Wainiha, have to work around
a convoy, and take care of one item and you lose an inspector's whole day because
they are working around a convoy. That is the kind of stuff that we are going to be
using to try to be more efficient with it. I do not anticipate at least for qualification
and the three-day turnaround at this time that we are going to need to beef up with
additional staff, but within sixty (60) days, if that is not the case, then I will ask.
Mr. Trask: I think one of the best things that this
ordinance does is it cites to a little known ordinance, which is 2-1.17 which designates
the Planning Department as a central coordinating agency for the County. Under
that section, subsection D, "Cooperation: all county departments, divisions, agencies,
and commissions of the County of Kaua`i shall cooperate with Planning in making
available and updating information regarding laws, rules, regulations, procedures,
permit requirements, and review criteria to enforce upon land projects." So we owe
it to the public to work together, both branches of government, all departments, all
employees. I think overall, we can get it done if we do that and put our differences
aside and move forward together.
Mr. Dahilig: One more thing that I do want to add in light
of what he is mentioning is that a lot of data has already been generated as part of
the individual assistance qualification documentation that the Real Property
SPECIAL COUNCIL MEETING 14 JUNE 6, 2018
Assessment office has already generated. We are going to be taking a lot of that
information and trying to fill in the gaps that is there, so it is not as if we are working
with a blank slate; we are actually working with data that has already come in and
we just need to fill those gaps.
Council Chair Rapozo: Councilmember Kawakami.
Councilmember Kawakami: Thank you, Mr. Chair. Just for clarification
purposes, when you are responding to potential violations, what I guess kick-starts
that mechanism is a formal complaint from the community; correct? Is that how you
respond to violations?
Mr. Dahilig: By policy, that is correct, with the expectation
of vacation rentals.
Councilmember Kawakami: Okay. In your response to violations, what is
our track record as far as being able to correct a problem either through voluntary
efforts of the property owner or by levying fines and punishments?
Mr. Dahilig: I do not have statistics on me and we can
provide that, but anecdotally, a lot of the kind of minor violations or things that relate
to having somebody engaged in beekeeping or having too many chickens in a
residential lot, those things, we can take care of very quickly. It is the more complex
ones that involve and they typically tend to be centered around vacation rentals that
involve a lot of our effort with it. From a batting record standpoint, we tend to take
those zoning compliance items like that where people did not know the use was not
supposed to be done in that area and we can get those things shut down pretty quickly
if they are normal CZO types of things. It is really the things that hedge on high
revenue type of scenarios that we tend to get stuck with administrative litigation.
Councilmember Kawakami: Okay, so a majority of our complaints are
being generated by transient vacation rentals (TVRs) and not necessarily Residential
or Homestead?
Mr. Dahilig: I would say that it is about half-half.
Councilmember Kawakami: Okay.
Mr. Dahilig: In terms of workload and time, it is about
ninety percent (90%) TVR work and ten percent (10%) regular zoning code stuff.
Councilmember Kawakami: Okay. With this proposed amendment, I
think we are all...well, I can speak for myself that the top priority are these local
families that have been flooded and have their floors covered in mud and you had
community groups going out there helping to remove drywall and flooring, because
mold is a public health and safety issue. Now, the intent of your original emergency
ordinance was to allow this work to be done so that repairs could be made so that
families could move back in without fear of mold and be able to go in for the
permitting after and there were a slew of safety measures built-in. That would have
SPECIAL COUNCIL MEETING 15 JUNE 6, 2018
addressed these type of violations. Does this proposed amendment take care of that
top priority as far as allowing these homeowners that have already done the repairs,
they are living there; does it take care of, in my opinion, the foundational priority of
this ordinance?
Mr. Dahilig: I believe it does in that the qualification
period is very similar to what was initially proposed as part of the qualifications for
a potential after-the-fact permit. In both scenarios, we know that they are in our
system. We add them to our system within three (3) days and this allows for
contemporaneous initiation of that work versus work whenever you want within an
eighteen-month period.
Councilmember Kawakami: I think what is really going to expedite the
process is that you stated that you are going to have boots on the ground proactively
going out there and reaching out and I hope that these homeowners that are affected
take advantage of you being out there prequalifying people and I hope that they are
not going to be resistant and then come in and say, "Hey, can you send somebody out
now?" Therefore, it kind of makes the expedited process moot, in my opinion. If it is
going to take care of what I felt is a top priority, then I have no problem supporting
this. Is it going to add any significant cost to the process from the homeowner's
standpoint?
Mr. Dahilig: That is where the balancing of the health and
safety elements come into play, because in some scenarios, some people that are at
flood-level that may have had a house that is destroyed may want to rebuild it at that
level. But in order to take care of them from a health and safety standpoint, we have
to force them to go up and that is a flood regulation. So it will not necessarily, in
certain cases, be simply just drywall or simply just flooring. In full destructive types
of definitions under the flood ordinance, they will need to go vertical. I think that is
a conversation that we had yesterday, where do we look beyond just what the
government can provide and do we have to look at partnering with those agencies
that are external to the government to fill those gaps of cost? We know a septic
system is going to cost an extra thirty thousand dollars ($30,000) and we know going
vertical can cost anywhere from fifty thousand dollars ($50,000) to one hundred
thousand dollars ($100,000). It is definitely not going to be easy for some of these
situations, but the reality is if we allow the rebuilding at that current level that is
nonconforming, it is a safety matter and we need to make sure that they are brought
to code when it comes to flood.
Councilmember Kawakami: Yes, but in that scenario, it is already exempt
under this current proposed amendment because any work that requires fifty
percent (50%) or more of the structure being brought back to life is going to have to
go through the current permitting process. In that case, it is exempt anyway.
Mr. Trask: Just to touch on the two (2) main points, one,
like you said, in this case, the Planning Department will actually go out to your house
and help you, instead of you having to come to Lihu`e. That is one. Two, we are in a
state of emergency. Applicable public health and safety laws relating to mold,
appropriate reconstructions for your shelter—that is appropriately waived and do not
SPECIAL COUNCIL MEETING 16 JUNE 6, 2018
worry about that. Work with the Planning Department to get your structure correct
and make everything all pono. That is not a threat that you have to worry about.
You will not be snitching on yourself if you work with the Planning Department in
this scenario, is basically what it comes down to. For the other substantial work, we
are committed to working with you within the bounds that we can.
Councilmember Kawakami: Mike, one final question—there are homes
that have already gone through the repairs, like I mentioned. We had numerous
community organizations going out with manpower to remove drywall and flooring
and we know that they are going to remove drywall, drywall is going to go back up;
they are going to remove flooring and they are going to put the flooring back in. Are
they not coming in for after-the-fact permits anyway?
Mr. Dahilig: Well, we understand anecdotally from
organizations like "Samaritans First" or other people that have been focused on the
reconstruction element. They are aware of the Building Division's ten thousand
dollar ($10,000) limit. So the amount of effort and work that they have been trying
to limit themselves to has been within those bounds of simply drywall, flooring,
replacing sinks, and those types of things; not necessarily on the structural types of
things that could be more big ticket items. Characteristically, some of those things
that are related to that drywall scenario, you are describing or are being...in at least
one portion of the relief effort are being acknowledged and adhered to. But beyond
that...again, this is an islandwide disaster...I cannot provide insight as to how the
rest of the other areas on the island have been engaging in present repair and
reconstruction. If we are caught in a scenario where we have to go and evaluate what
has gone in, we are going to have to do some sleuthing in the data that came from
Real Property Tax Assessment and also take a look at our previous permitting records
to see if things have been added on or the so forth. It will take a little bit of research
in those situations where we cannot necessarily recognize by first glance, whether or
not something has been or not been repaired in a certain manner.
Councilmember Kawakami: Thank you, Mr. Chair. I think that answers a
lot of my questions. We want to make sure that our top priority is covered as far as
people making these repairs to get back into their homes; two, not allowing the
opportunity for any type of expansion or any type of opportunity for people to utilize
this disaster and say, "Hey, this is a great plan for me to add that extra bedroom so
my kid can live with us." Those would have to go through the proper channels. Thank
you.
Council Chair Rapozo: Just real quick, have you or the Building
Division given any thought of raising that ten thousand dollar ($10,000) threshold?
I suggested it last week that we might look at...it is not...it was ten thousand
dollars ($10,000) when prices where what it was back then that there is a cost of
living. There are all kinds of reasons why that number...that would alleviate a lot of
the problems of these local families that needed to get in right away and it is not
structural changes. It is just to get back in and ten thousand dollars ($10,000) really
does not do much. I do not know what that number is. That is why I relied on
Buildings more than anybody else as to "what was the nexus back then to come up
SPECIAL COUNCIL MEETING 17 JUNE 6, 2018
with ten thousand dollars ($10,000), and using that same nexus, what would that
value be today?"
Mr. Dahilig: I will turn it over to Lyle, but just to be clear,
at least for Chapter 8, 9, and 10, we have no limit threshold for no permit scenario; it
is anything and everything.
Mr. Tabata: Lyle Tabata, Acting County Engineer. I have
information that it has been approximately fifteen (15) years since the last increase,
and you are correct; we will need to review the inflation and would have to do some
studying on inflation and increase it appropriately. I know people are going to freak
out with that, but I think we have to be realistic that the cost of replacing the roof,
the drywall, or the flooring obviously does not cost the same it did fifteen (15) years
ago, so I would appreciate that. Thank you. Councilmember Yukimura.
Councilmember Yukimura: Thank you for the discussion and all of the
changes that have been agreed to. There are two (2) things that are left that we were
discussing just prior to this meeting and one of them is on page three (3), this
declaration. It is within three (3) business days filing an application to register for
expedited permitting. So to register for expedited permitting means to get the
qualification, right?
Mr. Dahilig: Right.
Councilmember Yukimura: That language probably needs to be altered.
"The registrant will also sign a declaration that provides for the following"...and 1
and 2 are a concern to me, as well as 5...so "a declaration that confirms that the
registrant shall comply with all applicable codes and laws associated with any
construction and understands that it is his or her sole responsibility to comply with
any and all laws," and two, "an acknowledgment that any violation, deviation, or
expansion from the reconstruction parameters on file with the Department of
Planning will resort..."—and that word needs to be changed, too—"...will become or
will be considered a violation and require the registrant to demolish and remove the
repairs and improvements." This was not required in the Iniki Emergency Ordinance
and I am concerned that because fifty-two (52) days have passed since the event and
people will have proceeded with construction, because we gave them no signal one
way or the other that this is going to...it sounds so onerous that people will not even
register or they will not even go for a qualification. I am wondering whether it is
necessary to do this, because what we are saying is that a permit is required and
when a permit is required, if it is not followed, you will see the penalties provision on
page number 7. It says "all penalties are available to the County where there has
been a violation, so I believe we have the hammer and since it is our goal to help
people get back into their homes, we are going to require permits, and as was spoken
on the floor today, our effort in the process of requiring the permits is to help them
and not penalize them. My question is whether we really need this in the
qualification process. I agree that we need their consent to allow the Planning
Department to enter the premises and to inspect the progress of work. I have no
objections to, as a condition of qualification, having them give consent to that, but
SPECIAL COUNCIL MEETING 18 JUNE 6, 2018
this declaration thing seems kind of overboard and I am afraid that on its face, it is
going to discourage people from trying to get permits.
Mr. Trask: In regards to that, that portion was suggested
by the Office of the County Attorney, because one, you are upfront with everybody
and you make them understand that with the gravity of the situation, what they are
doing, and again, we are in disaster time, but there are still things that apply. They
have the right to understand what that is. You do have the right of entry. That is
Planning's main concern, because to do their job and to get this thing going, they need
access to the land. That is the agreement, in effect a contract, between the Planning
Department and the applicant. It does protect the County, it restates current County
protections. If we rely upon your building permit application and we grant it, we are
not subjecting our employees to liability by doing that. Also, too, if you look in the
record back in Iniki, there was not this portion, the declaration required in Ordinance
No. 607 and subsequent ones, and then what you saw throughout the twelve (12) to
fifteen (15) ordinances is an expansion and erosion of the standards, to the point
where they are allowing nonconforming uses to be rebuilt as late as 1997. So what
you have now is a lot of the product now that was damaged in the flood was
nonconforming pre-Iniki that was allowed to be built nonconforming that was
probably rebuilt nonconforming `82. So we are perpetuating this potential problem
in the future. Also if you look, the number one ready example in the east side is Coco
Palms. We need to get away from this. That is the main reason. It is not meant to
be onerous, it is just honest.
Councilmember Yukimura: The thing about this gradual laxity during
Iniki is not our problem. By requiring permits upfront, which is why some of us were
so against the after-the-fact permit is because when you say you need permits, you
are giving people notice that we are applying the laws; we are not allowing them to
build without application of the laws. To me, that is enough, because we are putting
people in a dilemma because we waited so long to tell them that permits are going to
be required and they have proceeded and now we are telling them to affirm/declare
that they are going to follow all of the laws, but we have allowed them to proceed for
fifty-two (52) days and not told them that permits are required. So we are putting
them into a really tough spot to make this declaration. Why do we not help them get
their permits in the inspection process? If we find that they have done something
that is not according to regulation, we say that part of the permit process will be to
correct it. I am worried that they may not apply and we are going to have a bad
situation because this is pretty onerous.
Council Chair Rapozo: Just a quick follow up—we cannot tie a person
pre-ordinance to the conditions of the ordinance once we pass it, right? If someone
did work on their property prior to this Bill passing and becoming an ordinance, yes,
they still have to go through the application, but how would you be able to legally tie
them to the conditions of this ordinance if the action was done pre-ordinance? Say
they change the speed limit tomorrow and I sped today, I am not going to get a ticket.
Mr. Trask: That is true, but if there was a
Governor/Mayor's proclamation waiving all speeding laws or implying that all
speeding laws are waived, you have a really good argument as to intent as to whether
SPECIAL COUNCIL MEETING 19 JUNE 6, 2018
or not you violated that law. I think that is what we are talking about, is that as of
April 14th for the Mayor and April 15th for the Governor, everyone read the laws were
suspended. So we want to work with them to get everything back on track, even
though they were not necessarily...it is confusing...I think we owe it to the layperson
because I work with Building and Planning and they are very sophisticated and they
are asking me what is or is not waived. That is their laws. I think the declarations
are good. We are not hiding anything. The concern is that if you do not say it not
and you do not clearly elucidate it, then when you do the registration and do the
inspection and you say, "You need a permit for this," "I did not know that, no one told
me that. I thought..." That is what we are trying to mitigate. I think Planning is
looking at doing it at the front end versus the middle or the back. It is a matter of
style. I do not want to argue the point. It is a difference of perspective.
Council Chair Rapozo: Yes. It is going to be up to the Members.
Councilmember Yukimura.
Councilmember Yukimura: You are making our point. You are saying
that the Governor's declaration and the Mayor's declaration sounded like all things
were off, all conventional things, such as permits were off. They proceeded and now
we are telling them, "You are going to confirm that you have applied with all codes."
It is different if we make the declaration, which we are doing by saying that permits
are required that we are enforcing the laws and you are now under an obligation to
follow them. That is our declaration to them. To ask them to confirm in order to get
a qualification to apply for expedited permitting, to ask them to confirm that they
followed all the laws when they may not have, does not seem just.
Mr. Trask: I think the discussion should be more specific.
Like Councilmember Kawakami said, in talking about the drywall issue. So you have
under ten thousand dollars ($10,000) work currently that does not affect electrical.
Confirm that that is all this is; you did not put up a wall, you did not do all of this
stuff that you could not do, because those were never waived.
Councilmember Yukimura: But they may not be legal what they have
done, confirm what they have done and it may not be legal and it may have been
inadvertent. You are asking them to confirm something that will disqualify them
from emergency permitting.
Mr. Trask: I think on that point, you have a point. I am
trying to be here as a resource to explain the rationale and I do not want to argue the
point.
Council Chair Rapozo: I do not want to argue either. Councilmember
Kawakami has a question.
Councilmember Kawakami: Thank you, Mr. Chair. I am going to say that
the emergency declarations given by the Governor and the Mayor did not send the
message that all waives were put on hold. When I had been out to those community
meetings that the Mayor held in Ha'ena, Koloa, and Hanalei, and we had people from
the community that were affected by the floods, we had every department and agency
SPECIAL COUNCIL MEETING 20 JUNE 6, 2018
set up for information and what I heard clearly is that building permits are going to
be required. So any statement saying that we sent out a signal that you did not have
to get building permits is not what I heard firsthand at those meetings. I heard it
with my own ears when I sat behind the agencies to hear what the discussion was,
because when people asked questions to their elected officials, we have to have that
information so we can respond. People utilize their elected officials as points of
information. So that is not what I heard at those community meetings. I heard it
clearly that building permits are going to be required. I do not think it is fair to say
that was the message that was sent out during those declarations, but what I heard
firsthand was that building permits are going to be required. That is just what I
heard. I wanted to clarify and put that on the record. Thank you, Mr. Chair.
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Yukimura: So the question here is whether we need this
section on declaration. The message that we do not need permits was going to be if
we said, "You can get after-the-fact permits," and we are taking that away now. We
are telling people that they need permits and that they need to follow the law. So the
question is whether we need this declaration, which to me, requires them to declare
they have not done anything against the law and they may have. So instead of
requiring this as a prerequisite to getting a permit, why do we not just require the
permit and help them make the corrections if there have been some inadvertent and
significant non-following of the requirements of a permit.
Mr. Trask: That is the thing—this is not creating a
situation to encourage anyone to lie. Upon looking at this declaration, anyone is to
say, "I did not do that, I cannot sign this. How can you help me to make this legal?
What do I have to do?" That is the point.
Councilmember Yukimura: That does not say this here though. It says,
"You shall confirm that you have followed the laws."
Mr. Trask: If you cannot confirm that, do not sign the
declaration.
Councilmember Yukimura: Well, then do not ask for an expedited permit.
Mr. Trask: As the attorney for the County, our advice is
that you do.
Council Chair Rapozo: I think you made that clear and you did not
want to argue and debate, so we are not going to do that. She has an opportunity to
amend. I understand what you are saying and I happen to agree that it should be in
there. I think that we should have them declare that they are going to follow the law
because there are a lot of opportunities for abuse in a bill like this. Anyway, let us
get past that. She can amend if she wants to.
Councilmember Yukimura: Chair, your point has just brought up
something that...
SPECIAL COUNCIL MEETING 21 JUNE 6, 2018
Council Chair Rapozo: I just do not want to talk about that anymore.
The declaration is there and if you are not comfortable, then please introduce an
amendment to remove it.
Councilmember Yukimura: It may be okay if it is prospective and I want
that clarified. If we are asking for them to confirm that from this time forward, they
will follow the law, that is one thing. I read this to say that I am promising to follow
the law; therefore, I cannot...if I am honest, I cannot confirm that because I might
have done something up to now. So if you are saying you are asking them to confirm
that they will follow the permitting process now and all of the laws that go with it, I
do not have a problem with that. It is the confirmation of, "Up to now, I have followed
the law."
Mr. Trask: We believe that they need to follow laws up
until now, because you could jeopardize the whole island's flood insurance program.
Councilmember Yukimura: Well, we would go and enforce. So answer my
question: is this prospective or is this retroactive since the event?
Mr. Trask: It is both.
Councilmember Yukimura: It is both?
Mr. Trask: Yes, the intent is to best protect the County
and to advise the community to follow the laws.
Councilmember Yukimura: Well, then we should not have waited
fifty-two (52) days to tell them that this is how they get permits.
Council Chair Rapozo: In all the years on this Council, with this
Planning Director, the one prior, and everyone else, it has always been the position
of the Planning Department to strive for compliance and penalty. In some cases, I
did not agree with that, but that was always the philosophy. I brought up the
discretion last week. The Planning Department and the Planning Director has a
discretion and latitude. I think if the person came up...you have to make that
concession...you are going to help them come into compliance. I have to believe that
is what you are going to do, Mike. I know this is not the case. Just through your
actions over the last many years, the Planning Department has always been out there
to try to gain compliance versus send these folks to jail.
Mr. Trask: Just in defense of the Planning Department,
because this came from the Planning Department, Mike Dahilig was living out in
Wainiha for two (2) weeks, taking care of what he had to do out there. Now Senator
Kouchi, then I believe Council Chair, introduced Ordinance No. 607, which is the first
Iniki Emergency Ordinance, September 30, 1992. I do not believe anybody has
prohibited anyone from introducing emergency ordinance, but on behalf of this client,
he was working, maybe not on this immediately, but I know he was talking about it,
SPECIAL COUNCIL MEETING 22 JUNE 6, 2018
we were talking about. He was indisposed to a certain effect and I just wanted to
make that clear.
Council Chair Rapozo: Any one of us could have introduced a bill. I
relied on the ten thousand dollar ($10,000) threshold thinking that anyone that had
to get back in the house could do so utilizing that statute. It is here for us today as
we make the decision today on what we want to do. Is there any other questions for
the attorney or for Mike? I really want to get into the amendment that is going to be
prepared. Councilmember Yukimura.
Councilmember Yukimura: So number 5 on page number 3 is also in
agreement or acknowledgement that the County shall not be liable for any damage
whatsoever and the registrant shall release, forever discharge, indemnify, and hold
harmless the County, its officials, employees, representatives, and agents from any
and all claims arising out of the construction and repair of building structures
appurtenance thereto under the exercise of the expedited permitting process. It first
applied to after-the-fact registration and since that was taken out, it is now applying
to the expedited permitting process. My question is if the County makes an error
that causes a problem, is this saying that the person harmed cannot sue the County?
Mr. Trask: Yes.
Councilmember Yukimura: Even though it was an error on the part of the
County?
Mr. Trask: Well, the County bases all of its decisions
upon what is produced to it by the applicant. Let us talk pre-flood—that is what the
codes, in effect, say both zoning and building now. If you give Engineering an
engineering drawing and they give you a grading and grubbing permit and something
bad happens, that is not on them; it is on the engineer who drew the plans that they
relied upon. Also, going back to the flood thing, because this is a flood, that we have
to make clear that we are not going to jeopardize the rest of the island because of the
one (1) mal-actor. We have to do that.
Councilmember Yukimura: I am not talking about a legitimate action of
the County; I am talking about an illegitimate act.
Mr. Trask: Acting in good faith is not negligence.
Councilmember Yukimura: So the County can do anything, acting in good
faith and not be sued?
Mr. Trask: No, that is not what it says.
Councilmember Yukimura: It is not? It says "any damage whatsoever
from all action."
Mr. Trask: It is not meant to be unreasonable. It is our
advice to protect the client.
SPECIAL COUNCIL MEETING 23 JUNE 6, 2018
Council Chair Rapozo: Right.
Councilmember Yukimura: Yes, but I am talking about protecting people
from the County, residents who are applying for these permits.
Mr. Trask: As are we.
Council Chair Rapozo: They do not have to sign.
Councilmember Yukimura: If they do not sign, they do not get an
expedited permit process.
Council Chair Rapozo: Correct. I read it differently. I just read it as
if you...I am going to go to the County and say, "You know what, I want to go forward.
I will turn in my permit applications in thirty (30) days," and I go do something crazy
and something happens, pollute a stream, I cannot come back and sue the County.
That is how I read it. Obviously, if the County gives them the "okay" to do something,
how can you be released and you are not acting in good faith? Then that is different.
I think we need the language. I think we have to protect the County. Again, we are
going to allow people to move forward without a permit.
Councilmember Yukimura: No, we are not. As in the exercise of expedited
permitting, this is when we give them permits.
Council Chair Rapozo: Are we letting people move forward without a
permit?
Mr. Trask: They are working now.
Council Chair Rapozo: I am talking about once we pass this Bill.
Mr. Dahilig: They have to apply for a permit.
Council Chair Rapozo: Right, but they can start the work.
Mr. Dahilig: Yes.
Council Chair Rapozo: That is what I am saying. It is an entitlement.
Anyway, you asked the question and he answered. Any other questions?
Councilmember Yukimura: So we are giving expedited permitting for
Homestead, Residential, and Agriculture, so I guess bed and breakfast (B&B) where
there is an owner-occupant will not get this even though it may mean repairing his
home to get back into it.
Mr. Dahilig: No.
Councilmember Yukimura: It does not cover that?
SPECIAL COUNCIL MEETING 24 JUNE 6, 2018
Mr. Dahilig: It does not cover that.
Councilmember Yukimura: Commercialized residential?
Mr. Dahilig: That would be that scenario.
Councilmember Yukimura: That would be sorry?
Mr. Dahilig: That would be that scenario.
Councilmember Yukimura: Okay. So a B&B goes under
commercialized...
Mr. Dahilig: Commercialized home use.
Councilmember Yukimura: Not under Vacation Rental?
Mr. Trask: B&B is defined under Homestay. Homestay
references "B&B" and it is all encapsulated in TVR.
Councilmember Yukimura: So the category of Real Property Taxes that it
falls into is Commercialized Home Use. Okay. So we are saying that even though
you are a resident of this island, you do not get expedited permitting to get back into
your home because you also happen to rent out rooms in your home.
Mr. Trask: That is not said in here anywhere.
Councilmember Yukimura: Yes, it is. "The qualification for expedited
permits shall be only issued to applicants whose real property tax classification is
homestead, residential, or agriculture."
Mr. Trask: I would just not agree with that
characterization. The effect is to focus on residents, not commercial home use.
Councilmember Yukimura: I am sorry, Mauna Kea. A law has what is
included and what is not included and this does not include commercialized home
use.
Council Chair Rapozo: The bed and breakfast would not qualify for
this ordinance.
Councilmember Yukimura: Yes.
Council Chair Rapozo: That is what I read.
Councilmember Yukimura: That is what I am trying to verify.
SPECIAL COUNCIL MEETING 25 JUNE 6, 2018
Council Chair Rapozo: I agree. That classification, because of the
use, is not going to be subject or be able to use this. It is what it is and that is
something that we have to discuss. Councilmember Kagawa.
Councilmember Kagawa: We just heard from Leo that the permitting
process has not been slow anyway right now, so to say that the B&Bs is going to have
to wait substantially long...we just heard from Leo that we have gotten way better
for the permitting process and under the normal process that we have is not taking
that long anyway, right?
Mr. Trask: It is really for the needy, it is those who need
it the most.
Councilmember Kagawa: Everybody needs it, but this ordinance is
trying to speed it up for residential homeowners who are not operating a commercial
business. If you are operating a B&B, unfortunately, you are a commercial business.
Mr. Trask: Correct.
Councilmember Kagawa: If you are operating a long-term rental, you
can keep your Homestead class. So they have a choice, whether to have a benefit to
stay in the Residential class and forego their operations, they can. We have choices
out there. It is not where we are trying to strangle somebody on purpose. It is just
that you folks have set up a process that puts residents first. If you have a commercial
business in there, unfortunately, you do not fall into that category. But you
fortunately reap the benefits of having tourists stay in your house at a high rate and
make some money. Let us get that clear. Everybody has choices in life, on Kaua`i as
well.
Mr. Dahilig: I think the message is that...
Councilmember Kagawa: We are beating a dead horse is what I am
saying. Unfortunately, we cannot please everybody. That is life.
Mr. Dahilig: Just to confirm that, the intention is to state
clearly that the priority is a health and safety shelter concern and that is what we
are trying to encapsulate with Section A.
Councilmember Kagawa: I am ready to vote.
Council Chair Rapozo: Mike, how many B&Bs are we talking about
that is out there in that affected number? How many do we have out there?
Mr. Dahilig: I do not have that number. I can get that for
you.
Council Chair Rapozo: Is it a significant number?
SPECIAL COUNCIL MEETING 26 JUNE 6, 2018
Mr. Trask: To differentiate, I think a homestay is when a
person lives in a vacation rental.
Council Chair Rapozo: That is what I think Councilmember
Yukimura was talking about, she may have used the wrong term, but homestay...I
have that same concern. That is the resident of that house.
Mr. Trask: Yes. That is not necessarily a bed and
breakfast. You do not have to...
Council Chair Rapozo: So let us just say"homestay" where the owner
is living in that house and that is the owner's primary residence; do we have a
ballpark?
Mr. Dahilig: Not off the top of my head. The majority in
many of the affected areas tend to be just full on vacation rentals, not homestays.
Council Chair Rapozo: Right, that is where I am curious. I know
there is a difference. Those that do not live in those homes should not qualify.
Mr. Dahilig: I would say that I can count them on my hand
potentially.
Council Chair Rapozo: Okay. That is important though. I agree with
Councilmember Kagawa one hundred percent (100%), but yet, we still cannot forget
that in many cases, it may be their primary residence.
Mr. Dahilig: What I would suggest...this is going to be a
sixty-day rolling thing where we are going to have to come back and if there is that
need that comes through the intake process that we realize we are turning people
away, then we can bring it back and try to expand it for that discussion if that is the
case.
Council Chair Rapozo: Councilmember Chock.
Councilmember Chock: I want to reiterate that what we are asking
for is to get something off the ground here and get some assessment in place so that
we get a better idea of what it is that we are working with. We already talked about
the proposal of a more long-term solution here. I am comfortable with it. I
understand that there is a concern from the Planning Department regarding this
inclusion, so at this point, I would support it.
Council Chair Rapozo: Any more questions before we bring this back
to discussion? If not, thank you very much. Where are we on the amendment?
Councilmember Chock: Mr. Chair, Yvette wanted to make sure that
all of the discussion in any potential amendments were flushed out and I think she is
going to request for a recess to complete this.
SPECIAL COUNCIL MEETING 27 JUNE 6, 2018
Council Chair Rapozo: Yes, I will be calling for one. I just want to
make sure if there is any discussion that would lead to amendments from individual
members. Councilmember Kagawa.
Councilmember Kagawa: Felicia had her hand up and I think before we
send Yvette to make the amendments, let us hear what the public has to say.
Council Chair Rapozo: Yes, we definitely need to call for public
testimony.
Councilmember Kagawa: Thank you.
Council Chair Rapozo: Any other discussion before I do that? If not,
thank you. Anyone in the audience wishing to testify?
FELICIA COWDEN: Felicia Cowden, for the record. By the way,
this is not streaming live on Ho`ike right now, so I have people letting me know that
that are out there watching or would like to be watching. I think this is really
important, and like what Councilmember Kawakami and Councilmember Yukimura
were basically pointing out is that we have to stay really focused on who is the most
core element that we are trying to help. What I see that as being is the residents,
particularly those with multigenerational history living in that area. As I am hearing
what is discussed, I have a rough stomach, because I saw many people crying and
talking and who are quite smart and understand what all these different rules are,
and what I look at is that how we do permitting and having building standards might
be really appropriate for Lihu`e or someplace on a plateau that does not have as much
rain, but in Wainiha, there are all of these little iii that look like the corduroy along
the valley walls, and higher on the mountain, typically, the stronger the house is and
when we put these new standards, like after Iniki, we basically flushed probably half
of our local population, particularly our Hawaiian population; they were just gone
after that point. I walk up and down, door to door in Wainiha, and I think that we
really run that risk again. What I saw in these iii, where you have these two-code
houses with all of this concrete—well, when that water come flushing down just as it
washed away the sand underneath the houses that are on the beach, it washes all of
the soil and the rocks around these solid concrete foundation houses, then goes down
those concrete driveways like a giant culvert, ripping up the driveway, ripping up the
road, digging a twelve-foot (inaudible), the field of the house across the way, and then
flushing into these houses that have more modest construction and really damaging
them. I think that when we have this "king of the hill" type of mindset in what we
are asking with the level of permitting required, we are asking for houses that I do
not think really are actually appropriate to be on such soft, wet soil. I am very
saddened to hear that people will have to put two hundred thousand dollars
($200,000) into their homes that probably need to come back, because we are going to
be replacing a lot of people and when you see...Councilmember Kawakami said he
was out there...some of these houses that were under construction that are by good
contractors, all their mud just comes down the hill and fills somebody else's bottom
floor and the higher building codes from the house next door is going to more damage
an existing house. I need to come back.
SPECIAL COUNCIL MEETING 28 JUNE 6, 2018
Council Chair Rapozo: Anyone wishing to testify?
Councilmember Kagawa: I have a question.
Council Chair Rapozo: Go ahead.
Councilmember Kagawa: Felicia, our building inspectors follow what is
called a "code," so are you saying that in those areas, we should ignore the code?
Ms. Cowden: I am not saying that, but I am saying that we
need to be looking at things comprehensively and some of the reasons that the houses
got damaged is because a fresh house built to a fresh code fifty (50) years later across
the street from them caused their house to fail. Who is going to be hurt the most are
these families who are core to our history and then we will lose them.
Councilmember Kagawa: I understand. It is problematic because the
old code was followed fifty (50) years ago, but the new code is for new houses. The
code changes and you do not have the same code house all over the place.
Ms. Cowden: But we are seeing that it is not holistically
looked at and these codes that are appropriate for a plateau are not appropriate for a
tight valley like that with such soggy soil.
Councilmember Kagawa: I understand. I am just saying then, "What is
the solution?"
Ms. Cowden: I think that we have to...
Council Chair Rapozo: Let us not get into a debate. Councilmember
Yukimura.
Councilmember Kagawa: Well, it is fair to say that it is screwed up, but
what is the solution then? If you do not have a solution then...
Council Chair Rapozo: The solution is if a homeowner builds a new
home that causes damage to the old home, then they are responsible for the damage
caused to the old home.
Ms. Cowden: Except that they were permitted. The County
did not say that to them, the County did not say, "Hey, if you build to the standard
that we are asking, guess what; you are going to destroy your downhill neighbors'
vitality."
Council Chair Rapozo: I do not know how many of those occurred
during this flood, but I would be curious to know.
Ms. Cowden: It would be interesting for you to go up and
look.
SPECIAL COUNCIL MEETING 29 JUNE 6, 2018
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Yukimura: I think you are making an assumption. I
think that has to be verified that the building of two (2) code houses detrimentally
affected the older houses. That is a cause and effect that has to be shown first.
Ms. Cowden: It is easy to see it.
Councilmember Yukimura: My question to you is are you suggesting that
we do not require permits and we just allow people to rebuild?
Ms. Cowden: I am not suggesting that. What I am
suggesting is that it is important to take hold in mind, as Councilmember Kawakami
said, that we have to think about who is our core group that we are trying to help and
I think...we are not going to help them and we are going to be eliminating a lot of
them.
Councilmember Yukimura: So the way the amendments are written are
to help the people who live on this island. Do you think there should be another
priority?
Ms. Cowden: I think that we have failed in not looking
holistically at our planning and holistically for different values in land structures and
water structures, so people have been hurt as a result of what has been the code for
houses that are permitted above it. I am just trying to really call attention to the fact
that there is a high impact here that I do not think is intended and I am not a builder,
but...
Council Chair Rapozo: I have to stop you there, Felicia, because right
now is time for questions and you can come back. Anymore questions? It should have
been clarified, but I understand and appreciate the discussion. Mr. Hart.
BRUCE HART: For the record, Bruce Hart. Just on two
questions that Councilmember Yukimura had in the discussion—it is not my
understanding that even though some people may have misunderstood the
declaration of the Mayor and the Governor, it is just common sense that the Mayor
and the Governor cannot just suspend law. I hope we never get to that point. So, I
would have taken it, just as a citizen, that the permitting process was still in place
and I would not have thought that it was not in place until I actually heard from
somebody of authority a direct statement that it was not in place, so I agree with
Councilmember Kawakami and his comments. In regards to what I call the clause
that Councilmember Yukimura brought up and the indemnification of the County or
protecting the County that Mauna Kea brought up is that I happen to know enough
about civil law to know that if I can prove that the County was negligent in regards
to advising me that I am likely to win. I think that it is important to protect the
County since this process is to speed everything up. When you speed things up, we
want to help people, but the law is the law and we have to abide by the law. If it is
not good law, then we change it. But the reality is, as Councilmember Kagawa said,
that this is life, this is how it works. Everybody has the feeling that we want to help,
SPECIAL COUNCIL MEETING 30 JUNE 6, 2018
but we have to help within the confines of the rules. We are going to do our best. We
had something happen this morning that showed the spirit of the people here where
all Councilmembers and all agencies, Mike, and Mauna Kea, everybody is doing the
best they can. Thank you.
Council Chair Rapozo: Anyone else? Caren.
CAREN DIAMOND: Aloha Councilmembers. Thank you for this
discussion today. A reminder is that we had one of the biggest floods ever on Kaua`i;
we had this monster flood that really impacted Wainiha in a major way. Wherever
there was a small stream, it opened up into a major waterfall and major waterway,
huge landslides, huge rock falls and boulders everywhere. It is not only about just
letting people rebuild in place. It is really about having people rebuild in a safer way
and the best thing we can do for local families is to help them build to flood code, not
to just have them put houses up again where they are at risk again, where the next
flood takes their family away. We were really, really lucky that nobody got hurt and
we should take this opportunity to build safer structures, not just "as quick as we
possibly can." That is how we can help local families. You might also have to do some
housing projects that are out in the danger zone where families can start living. But
having people live right along riverbeds, what is now known as a"riverbed,"is a really
hazardous thing. I think the Council should ask the flood insurance people to remap
Wainiha. I think it absolutely has to be mapped for where the known hazard is right
now, because when the flood maps where drawn, it was done for tsunamis, it was not
done for river inundation, like we just had. With that said, in your ordinance,
Section 5, it talks about the preregistration for properties that were damaged or
destroyed. That conflicts with the applicability in Section 2, which just talks about
this ordinance only being for damaged structures, and as well as on G(3) which makes
it clear that properties that have more than fifty percent (50%) damage are not part
of this exemption either. I think maybe the destroyed structures should come out of
the preregistration project process. On page 3, I wanted to address number 2. Our
road was closed just until about three (3) weeks ago. Again, we had a major disaster;
I think there were eighteen (18) landslides from Waikoko to Wainiha. Nobody was
bringing in building materials, nobody could bring in building materials. In fact,
until this day, you are not allowed to bring any loaded trucks. So it is not like people
in Wainiha have been building. Nobody has started building yet. I do not think this
should be a problem to have that read as-is right now.
Council Chair Rapozo: I have to stop you there. Anyone wishing to
testify for the first time? Second time? Felicia.
Ms. Cowden: Felicia Cowden, for the record. When we were
getting into some questioning, some of this stuff is a little bit more long-term, not the
emergency permitting. But I do have, for another time, ideas of how to be addressing
where some of these people do need to be moved a little bit or how we can create
something like that. I think that when we are looking at the emergency elements...I
kind of lost my track a little bit, but there was a confluence of a whole number of
different issues and even how when going house to house, to house, you could see
where some of the newer houses...maybe they did not realize what they were doing,
but when they had done their buildout that they had destroyed the rock structure in
SPECIAL COUNCIL MEETING 31 JUNE 6, 2018
the mechanisms that were in those auwai for a long time and that also helped to
create amplification for the flooding. I was kind of bridging over to that long-term,
but we have to be able to...I guess I am just going to say"looking holistically" at what
is here and I think that if you make it such that people have to confirm that
everything that they had done before was fine—well, a lot of the houses that got
damaged were old and I did not even take pictures of the houses there and they did
not want to raise their hands, but those houses might have been fifty (50) or
seventy (70) years old. They were where they should not be and they were hurt, but
I just wanted to acknowledge that there is a lot that was not counted and how do we
help these people? Maybe it comes under some sort of other piece of an emergency
ordinance or how we help with some funding, but some of our most vulnerable people
are the ones that are the most likely to be displaced. Thank you.
Council Chair Rapozo: Thank you. Caren.
Ms. Diamond: Thank you. I will finish quickly. I just have
two (2) changes of words: in E(2)(b), it says "a structure was illegal before the
disaster..." I wonder if you could add the word "unpermitted" or "illegal?"
Council Chair Rapozo: That was E you are saying? Page number 4?
Ms. Diamond: Page 3, E(2)(b).
Council Chair Rapozo: Oh, I do not think she has the amendment.
Ms. Diamond: No, I do not have the amendment. Sorry. The
only other thing that I do have is on page number 4, G, which is G(1), which only adds
the word "legally" to...
Council Chair Rapozo: Did you give her the copy of the amendment?
You are saying G?
Ms. Diamond: Yes.
Council Chair Rapozo: Our G(1) is on page...
Ms. Diamond: So using the original one...
Council Chair Rapozo: Can you use the amendment? That is what is
on the floor right now.
Ms. Diamond: Okay. Let us see. So it looks like you have
taken out that sentence.
Councilmember Yukimura: So you are okay with us taking out that
sentence?
Ms. Diamond: Yes. Well, actually, I do prefer that sentence
in there.
SPECIAL COUNCIL MEETING 32 JUNE 6, 2018
Council Chair Rapozo: Which sentence are you looking at?
Ms. Diamond: The sentence F(1) at the end where it is
bracketed further, "no after-the-fact permit shall approve an expansion of any
nonconforming structure."
Councilmember Yukimura: That is supposed to be removed.
Ms. Diamond: Right, so I actually think that should stay in
and I think it should have a legally existing structure so that...
Councilmember Yukimura: We are taking out any "after-the-fact
permitting."
Council Chair Rapozo: Right, but I would agree that that should
probably remain.
Ms. Diamond: Even if after-the-fact gets taken away from
that, the expansion of the nonconforming structure and not allowing that to happen
and it being stuck to what was illegally existing and a permitted structure; that is
the point that I was wanting to make. Thank you.
Council Chair Rapozo: Thank you. Is Mike still here? Can you come
up real quick? I have a question. It is pertaining to that F(1). I did not see those
brackets in there. In removing that sentence, is there any allowance in here or any
prohibition, I should say, of expansion of any nonconforming structure or intensify a
nonconforming use beyond what existed before? Is there any allowance or is there
any prohibition?
Mr. Dahilig: What Section 1 would do in this situation is it
would snap back to what the CZO requirements are in the current code, which I do
not have on me right now, but it qualifies that if what you are proposing or what you
are going to do is triggering a type of activity outside the bounds of a nonconforming
use or a nonconforming structure as defined currently in the code, then you cannot
get this registration. Removing that line does that snap back. If you leave the line
in and let us say that you take out the phrase "after-the-fact permit" and you just say,
"no permit shall approve any expansion," it would be a narrower read than what is
currently allowed in the CZO. I think in working with the amendment, we simply
took that out just because the after-the-fact permit regime.
Council Chair Rapozo: There is no other reference to "after-the-fact."
Mr. Dahilig: Yes.
Council Chair Rapozo: But still, I think the message is "do not even
try to expand your nonconforming use because it is not going to happen."
SPECIAL COUNCIL MEETING 33 JUNE 6, 2018
Mr. Dahilig: If that is the policy of the Council, we can
implement that.
Council Chair Rapozo: Absolutely, for me.
Councilmember Yukimura: Chair, this basically says that any
nonconforming use/repair has to go through the regular permit process. All F is
saying is that this ordinance shall not apply to the following and means that all of
these things listed here do not qualify for expedited permitting. It would have to go
through the regular process.
Council Chair Rapozo: Correct.
Councilmember Yukimura: So if a nonconforming structure was not
elevated and now has to be elevated to be rebuilt and they want to add another
bedroom, now is the time to do it because the elevation is such a major thing, right?
If they are going through the regular permit process, so they are not getting any
expedited processing, you have a chance to look at it and it seems to me that if it is a
large local family, they are going to make the big jump and get the resources to
elevate it so it is safe. If they want to enlarge it, they should be able to just go through
the regular process.
Mr. Dahilig: Ultimately, it is a policy question and if there
is a determination by the Council one way or the other, we would just suggest that
the phase "after-the-fact" be taken out at a minimum.
Councilmember Yukimura: This provision is just saying that it is not
covered by expedited permitting and has to go into the regular process.
Mr. Dahilig: Right.
Councilmember Yukimura: If you have a problem with the regular
process, then you should change it there.
Council Chair Rapozo: No, but I guess what we have seen is they go
through the regular process—that is not a problem—but they do something different
and they expand the use or they change the use. Without that sentence in there, I
am not talking about going through the emergency process, I am talking about the
regular process. The removal of this section allows the County to give them an
after-the-fact permit.
Councilmember Yukimura: I do not believe so. All it does is throws it into
the regular process and whatever the regular process says about enlargement and
everything applies. You have to change...well, okay...so what you are saying is that
to the extent that it is a repair related to flooding that has to go through the regular
process, it cannot be expanded?
Council Chair Rapozo: It can, but not with an after-the-fact permit.
That is what I am saying. If they want to come up and expand the bedroom, then
SPECIAL COUNCIL MEETING 34 JUNE 6, 2018
come in and apply for a permit to expand the bedroom. If they want to put in another
bathroom, then they come in for a permit to do that.
Councilmember Yukimura: Right, so taking this out of this provision does
not do what you want it to do. It is not even applicable because it is just talking about
not following the expedited process and it throws it into the regular process. If you
want to amend the regular process, then you have to amend the regular process.
Council Chair Rapozo: No, I am not amending the regular process.
What I am suggesting is if we have a flood-related damage that does not qualify and
you are going to go through the regular process that they will not have an opportunity
or the County will not have an opportunity to grant an after-the-fact permit to expand
a nonconforming use. Nonconforming is really unpermitted or illegal.
Mr. Dahilig: Or it was in a situation where the right or the
structure was vested before the law changed.
Council Chair Rapozo: Correct, but you cannot expand that. You are
not allowed to expand that.
Mr. Dahilig: Currently in Chapter 8, there are ways you
can adjust the use.
Council Chair Rapozo: I am suggesting that cannot be done by an
after-the-fact permit process. That is all I am saying. If you are going to go and
expand your use, your nonconforming use, then you do it the right way and you be
upfront about it. Do not go sneaking in and come back later and say, "By the way, I
need an after-the-fact permit now." No. That is just me.
Mr. Dahilig: Chair, I would suggest that going forward,
outside of the sixty-day bounds, that we would probably need something to make that
policy call more durable going forward if that is the intention. We can roll that into
a subsequent ordinance.
Council Chair Rapozo: Any other questions for Mike?
Councilmember Yukimura: Maybe this is for Mike and Public Works, but
number 3 talks about...so we are taking out of expedited permitting any work done
that would be fifty percent (50%) or more of the market value of the replacement cost
of the building and I just need somebody to explain to me market value of replacement
cost. I do not understand what that means.
STANFORD IWAMOTO, Civil Engineer: For the record, Stanford
Iwamoto, Public Works. We use market value and how the suggested or the
recommended way of getting it is to use the replacement costs new, less depreciation.
So they calculate how much it will cost to rebuild the structure new, then they minus
the depreciation for the existing structure. So it is market value.
SPECIAL COUNCIL MEETING 35 JUNE 6, 2018
Councilmember Yukimura: So you are saying it is the replacement cost in
today?
Mr. Iwamoto: Yes.
Councilmember Yukimura: The market value of replacement cost is a
term of art, it is defined somewhere?
Mr. Iwamoto: It is a term that perhaps the Federal
Emergency Management Agency (FEMA) uses/defines.
Councilmember Yukimura: Okay, but this is for building and flood. So
you are saying that replacement cost is defined as"market value minus depreciation."
Mr. Iwamoto: So the market value is defined as
"replacement cost new minus depreciation."
Councilmember Yukimura: Okay. Market value of the replacement cost,
which is replacement cost new minus depreciation.
Mr. Iwamoto: Yes.
Councilmember Yukimura: Okay. It is a standard phrase, so you folks
know what you are talking about?
Mr. Iwamoto: Yes.
Councilmember Yukimura: Okay. Thank you.
Council Chair Rapozo: Any other questions? Seeing none, I will call
the meeting back to order. Let us have a caption break and finish up that
amendment. Is that caption break enough? I do not want to come back if you are not
ready. Let us do a fifteen-minute recess for the preparation of the amendment.
Thank you.
There being no objections, the meeting was called back to order, and proceeded
as follows:
There being no objections, the meeting recessed at 11:30 a.m.
The meeting reconvened at 11:57 a.m., and proceeded as follows:
Council Chair Rapozo: The meeting is called back to order. Who is
introducing the first...is that yours?
Councilmember Chock: I am not sure, it must be mine.
Council Chair Rapozo: The first thing we would need to do is
withdraw your original.
SPECIAL COUNCIL MEETING 36 JUNE 6, 2018
Councilmember Chock withdrew the motion to amend Proposed Draft Bill
(No. 2713) as circulated, and as shown in the Floor Amendment, which is
attached hereto as Attachment 1. Councilmember Kaneshiro withdrew the
second.
Council Chair Rapozo: Thank you. Let us introduce the new
amendment.
Councilmember Chock moved to amend Proposed Draft Bill (No. 2713) as
circulated, and as shown in the Floor Amendment, which is attached hereto as
Attachment 2, seconded by Councilmember Kaneshiro.
Council Chair Rapozo: Thank you.
Councilmember Kagawa: I have a question.
Council Chair Rapozo: Go ahead.
Councilmember Kagawa: Just to be clear, the Administration is fine
with this amendment, right?
Council Chair Rapozo: Yes.
Councilmember Kagawa: In totality?
Council Chair Rapozo: Of this one. Councilmember Yukimura has
three (3) amendments, but on this one here.
Councilmember Kagawa: Yes. I just need a "thumbs up" or "thumbs
down" that the Administration concurs, because I know there are several. I do not
want to pass something on the legislative end that is not in approval by the
Administration.
Council Chair Rapozo: The only change to this was in the inclusion
of the thirty-day...Public Works. The discussion we had before we left regarding
Caren...that one was not added in. The only thing here is the thirty-day timeframe
for Public Works. I think that was very generous actually, it was more time than
they had requested. That is the only change in this.
Councilmember Kagawa: Okay. As soon as I know whether the
Administration is okay, then I am ready to vote.
Council Chair Rapozo: If you want it on the record, I can suspend the
rules and have them come up.
There being no objections, the rules were suspended.
SPECIAL COUNCIL MEETING 37 JUNE 6, 2018
Mr. Dahilig: In response to Vice Chair's question, we have
no objections to this amendment.
Council Chair Rapozo: Thank you. I will call the meeting back to
order. Further discussion? During the discussion that we did have, Caren brought
up page number 5, which was the removal of the last sentence. I instructed the Staff
to leave it in because I was not sure how the rest of you felt. I think it is clear that
expansions of nonconforming use, Mike, if not mistaken, is already prohibited in the
CZO.
Mr. Dahilig: It is controlled under CZO. I do not have the
specific reference on me.
Council Chair Rapozo: Rather than have the amendment come out
and have disagreement and have to go back and redo, I asked the Staff that if that is
what you folks want to do, then we can prepare a very quick amendment to remove
that section. That was not a deal-breaker for me. Councilmember Kaneshiro.
Councilmember Kaneshiro: The amendment is removing it right now,
right?
Council Chair Rapozo: Right. That was in the original.
Councilmember Kaneshiro: Okay.
Council Chair Rapozo: The meeting is called back to order. Any
further discussion on the amendment?
There being no objections, the meeting was called back to order, and proceeded
as follows:
The motion to amend Proposed Draft Bill (No. 2713) as circulated, and as
shown in the Floor Amendment, which is attached hereto as Attachment 2 was
then put, and unanimously carried.
Council Chair Rapozo: Motion carried. Councilmember Yukimura.
Councilmember Yukimura moved to amend Proposed Draft Bill (No. 2713) as
circulated, and as shown in the Floor Amendment, which is attached hereto as
Attachment 3, seconded by Councilmember Kaneshiro.
Councilmember Yukimura: I am proposing to remove the requirement of
a declaration because I think it is not necessary and will cause some people not to
apply.
Council Chair Rapozo: Okay. Any further discussion?
Councilmember Kagawa: I have the same question for Mike on this.
SPECIAL COUNCIL MEETING 38 JUNE 6, 2018
Council Chair Rapozo: I will suspend the rules with no objection. I
think Mauna Kea made his position very clear in the earlier discussion that he
recommended that it stay in. Mike, do you have any objections?
There being no objections, the rules were suspended.
Mr. Dahilig: We stand by the advice of our attorney.
Council Chair Rapozo: Okay. Thank you.
Councilmember Kagawa: So what does that mean then? For it or
against it?
Council Chair Rapozo: Against the amendment.
Councilmember Kagawa: Okay. I am against it, too.
Council Chair Rapozo: Any other questions for Mike? Seeing none, I
will call the meeting back to order. Further discussion? I think we have discussed
this to death. Councilmember Yukimura.
There being no objections, the meeting was called back to order, and proceeded
as follows:
Councilmember Yukimura: Council Chair, I just want to clarify that if it
were to apply prospectively, I do not have a problem with it, but applying
retroactively, I do, so I am just proposing this.
Council Chair Rapozo: Thank you. Any further discussion? The
motion is to approve. Let us do a roll call on this one.
The motion to amend Proposed Draft Bill (No. 2713) as circulated, and as
shown in the Floor Amendment, which is attached hereto as Attachment 3 was
then put, and failed by the following vote:
FOR AMENDMENT: Yukimura TOTAL — 1,
AGAINST AMENDMENT: Brun, Chock, Kagawa, Kaneshiro,
Kawakami, Rapozo TOTAL — 6,
EXCUSED & NOT VOTING: None TOTAL — 0,
RECUSED & NOT VOTING: None TOTAL — 0.
Council Chair Rapozo: Motion fails. Next amendment.
Councilmember Yukimura.
Councilmember Yukimura moved to amend Proposed Draft Bill (No. 2713) as
circulated, and as shown in the Floor Amendment, which is attached hereto as
Attachment 4, seconded by Councilmember Chock.
SPECIAL COUNCIL MEETING 39 JUNE 6, 2018
Councilmember Yukimura: So this just includes commercialized home use
among the real property tax classifications that qualify for expedited permitting if
they comply with everything else in the ordinance. The intention here is to actually
fulfill our main goal, which is to get people who live on Kaua`i, who have been affected
by the floods, back into their homes as fast as possible and to allow them to qualify
for expedited permitting. I was just trying to call Steve Hunt to find out who else
besides homestays are in commercialized home use, because otherwise there will be
residents that are excluded from this relief that we say we are trying to give to
residents. I just thought it was not good to exclude residents just because they have
commercialized home use and it could run the gamete from somebody just using their
home as an office, where they do not have a lot of...I believe that is the requirement
or maybe Mike can shed light on how we give zoning permits. There are not an
onerous use and to be disqualified for quick relief does not seem right to me.
Council Chair Rapozo: Any further discussion? Councilmember
Kagawa.
Councilmember Kagawa: For me, I think Joan Conrow documented
very well in her abuse chronicles that the commercialized home use category included
a lot of the abusers who use their houses as vacation rentals and did all kinds of stuff
that they wanted in the prior administration that subsequently, a lot of them, they
got after-the-fact permits and all of this nonsense going on. We already heard from
the Building Division and Planning that the normal process is not unreasonable. So
we already have a system in place. I am sure that through the regular process, our
departments hopefully will be speeding up as much as possible, these permits,
whether it be commercialized or regular commercial. I think the process in
place...this is just an emergency ordinance and at some point, you have to draw the
line. Like I said, it is the choices that people have made. If you want to long-term
rent it, you can change to the Homestead class, the regular one. It is the choices that
you made and unfortunately, the lines have been drawn and I think at some point,
we just have to accept that not everything in life is fair. What is priority for me is
normal residents that either long-term rent or just use their house as their regular
residence. Unfortunately, if that does not satisfy everybody by this ordinance,
hopefully our regular process will fulfill your needs. Thank you, Chair.
Council Chair Rapozo: Any other discussion? Councilmember
Yukimura.
Councilmember Yukimura: I want to point out that this commercialized
home use does not apply to the standalone vacation rentals that are purely an
absentee owner that rents out his place for transient visitors, but it actually has
somebody who lives there as an owner-occupant. Also, it is only for legal homestays
because in Section F, repairs to buildings or structures or property that are in
violation of regulations cited in Section 2, which is all the CZO stuff, is not entitled
to the expedited processing. So this would only allow legal commercialized home use.
Real property taxes does not go according to zoning, so they actually tax illegal
ones...they categorize illegal ones based on use. But this provision in F does not allow
illegal uses to be part of the expedited permitting, so my amendment would just allow
those that are legal.
SPECIAL COUNCIL MEETING 40 JUNE 6, 2018
Council Chair Rapozo: Any other discussion? Councilmember
Kaneshiro.
Councilmember Kaneshiro: I just wanted to ask the Administration what
their position was on adding commercialized home use.
Council Chair Rapozo: Okay. I will suspend the rules.
There being no objections, the rules were suspended.
Mr. Dahilig: Just in response, Chair and Councilmember
Kaneshiro, the department does not believe it is necessary at this time; however,
given that we are coming back with another amendment and another more
permanent ordinance, if the data does show that, then we can help justify that one
way or the other.
Councilmember Kaneshiro: Okay. Thank you.
Council Chair Rapozo: Real quick, Mike—on commercialized home
use, although we tend to think of that as homestays, it is not limited to homestays.
It could be anyone that works out of their home that would qualify for this
classification, right?
Mr. Dahilig: It could potentially if it is somebody that
works out of their home that is legally operating a business out of their home. We
rarely see a situation where you see that the home use is being commercialized
beyond...let us say if it is dentist office or those types of things, you would actually
have to have the proper zoning compliance anyway for that and that is a very rare
situation for those types of office or cottage industry types of things where you see it
also classified as a commercialized home use. It is there, but it is mainly the transient
things that we see.
Council Chair Rapozo: Theoretically, the way the law is written is
that they have to reside in that home. In other words, that property is the owner's
primary residence.
Mr. Dahilig: That is correct.
Council Chair Rapozo: Okay. Thank you. Anymore questions?
Councilmember Yukimura: So what kind of data will you be looking for to
see whether you want to include this or not in the permanent ordinance?
Mr. Dahilig: Well, what we will track is people that say, "I
want one, but I am not eligible." That is the kind of stuff that we are going to be
getting. Part of the touch and feel on this is we are also going to be getting many
people that maybe do not follow within the parameters of this saying "I need this" or
SPECIAL COUNCIL MEETING 41 JUNE 6, 2018
they come and apply and then they do not follow within the parameters of this. That
is the kind of stuff we can help gather for the Council.
Councilmember Yukimura: So some people who have...you say you can
count it on your hands...
Mr. Dahilig: Yes.
Councilmember Yukimura: ...that are legitimate homestays, they are
going to wait for sixty (60) days. They can try going through the regular process, but
we are giving priority to the expedited permits for the very purpose of getting
residents back into their homes, but at the end of sixty (60) days, maybe they will
have to wait for another ordinance and then get a permit.
Mr. Dahilig: That is what we suggest, but if the Council
has the wisdom and would like that taken care of now, then that would be appropriate
as part of this ordinance.
Council Chair Rapozo: Does the ban on TVRs that the Mayor
implemented include homestays as well?
Mr. Dahilig: Yes.
Council Chair Rapozo: So these people right now are only a primary
residence and until the Mayor lifts that ban, they have no ability to utilize their
entitlement to have a homestay? So really, they are residents now?
Mr. Dahilig: Really...I better...
Council Chair Rapozo: I just want to know...
Mr. Dahilig: I do not think it necessarily converts to the
use, but is the structure that they are in being used just for residential purposes—I
would concede that, yes, that would be the case.
Council Chair Rapozo: That was really what I was trying to get
answered. Thank you. Anymore questions?
Councilmember Kagawa: Going back, in Hanalei, I have residents
telling me that their whole neighborhood are all B&Bs or vacation rentals...
long-standing residents, the few that are still there. So giving priority to residents is
giving priority to those people and I am good with that and I am sure it is the same
way in Wainiha and Ha`ena. I have no problem with giving our long-term residents
priority. Guys who are operating business, yes, you have a need, but you can go
through the normal process. It is plain and simple and you will come back to us and
say, "Well, maybe we need to expand," and I think I am good with that as this point.
For me, it is a policy call that we can agree with Councilmember Yukimura and we
can open up the window and take care of all of these other people, but there may be
some unattended consequences where we are taking care of people that should not be
SPECIAL COUNCIL MEETING 42 JUNE 6, 2018
priority and that is what my vote is. I have heard enough to say, "Hey, this is a good
step right now."
Council Chair Rapozo: Okay. Any more questions? If not, I will call
the meeting back to order. Any further discussion? Councilmember Chock.
There being no objections, the meeting was called back to order, and proceeded
as follows:
Councilmember Chock: For me, it is about the level of scrutiny that
we want to impose right now and just based on what I am hearing is what we are
primarily using commercialized home use for, I am a little bit concerned and would
probably want to see more measures in place for us to understand what it is, just in
case what we are seeing is some interest in expansion of their property as it relates
to the kind of activity that they are accustomed to. I will not be supporting it at this
time. I do think that if Mike and his team can come back to us and validate some
concerns or needs more specifically, then I will be willing to address it.
Council Chair Rapozo: Mauna Kea, you have a question of us? By all
means, come up. The rules are suspended. I do not know if we have ever had this
before.
There being no objections, the rules were suspended.
Mr. Trask: For the record, Mauna Kea Trask, County
Attorney. It is novel, but I just want to make this clear because I am going to have
to interpret this for the next sixty-one (61) days at least. As you know, we tax on use.
So you can have an illegal or a cited TVR, but as long as you are getting taxed
commercial use, then you are okay with the tax office. You are not okay with the
Planning Department, you are okay with tax. So when you say here, you insert tax
classifications that are legal tax classifications, but may not be legal land use
classifications; how do I interpret that? When you say "previous legal," just so I can
be clear on the record so the record reflects that. It is close and it is kind of confusing,
so that is my question as far as intent.
Councilmember Yukimura: I have an answer.
Council Chair Rapozo: Go ahead.
Councilmember Yukimura: That was my point about F(5), which says
that expedited permitting will not be allowed where repairs are on property that is
in violation of the CZO.
Mr. Trask: Okay. So irrespective of the legality of the
tax, if it is not legal for the land use, then it is not applied.
Councilmember Yukimura: That is correct.
SPECIAL COUNCIL MEETING 43 JUNE 6, 2018
Mr. Trask: What about a pending violation? The County
is saying it is illegal, but of course the owner...
Councilmember Yukimura: Then you are not going to be able to approve
a qualification for a permit because you asked them to acknowledge that any violation
will be required to demolish and remove, unless they are lying.
Mr. Trask: No, like a pending...we have a lot of TVRs in
that area that are currently in...
Council Chair Rapozo: We are not talking about TVRs here.
Mr. Trask: I am sorry...
Council Chair Rapozo: The TVRs tax class is not commercial home
use, it is TVR.
Mr. Trask: That is a bad analogy, but if there is...
Council Chair Rapozo: If we are going to have a discussion, then let
us talk about commercial home use in that area and not TVRs.
Mr. Trask: If it is a pending case regarding
inappropriate...I do not want to say commercial home use as a tax
classification...what if there is a pending zoning violation for that thing? How do we
deal with the pending zoning violation?
Councilmember Yukimura: That is your call whether it comes into this
ambit or the intention of repairs that are in violation. If there is a question as to
whether they are in violation or not, I would suspect that you would say this
ordinance does not apply, but I think that is a genuine county attorney call, unless
you want to suggest an amendment.
Mr. Trask: I do not want to assume the intent of the
legislation.
Councilmember Yukimura: Okay, then let us make it clear. Give us an
amendment that are in violation or are under charges of violation or whatever.
Mr. Trask: Okay.
Council Chair Rapozo: If there is a discrepancy between the tax
classification and the zoning classification, then that has to be rectified by the
Administration via a citation, a notice to cease and desist, or charging of back taxes
on the erroneous tax classification. I think those mechanisms are in place.
Mr. Trask: Okay. Thank you.
SPECIAL COUNCIL MEETING 44 JUNE 6, 2018
Council Chair Rapozo: Thank you. I will call the meeting back to
order.
There being no objections, the meeting was called back to order, and proceeded
as follows:
Council Chair Rapozo: I will just say this and I will not waste too
much time on this and I think I can count, but when I look at the purpose of the Bill,
the purpose is real clear that "the Council finds many County households are unable
to find safe shelter on their property due to the damage from this disaster." I have to
agree that I think the fact that they are doing a homestay is...a lot of people do not
like that, but it is legal. But it is also the primary residents of the operator, it is
where they live. I do not know how we would exclude them from the opportunity to
get an expedited permit to fix their primary residence. I am challenged by that
because regardless of what they do in the house, prior to the commercialized use,
those folks would be classified as commercial. That is why we came up with the
commercial home use because it gave them a little break if they lived in the house
because it is their primary residence. We came up with that new classification so
they did not get popped with the full commercial rate, but it is still their primary
residence. We assume that these are all wealthy people, but some of our local people
that are struggling have a homestay. I received an E-mail just the other day from a
very upset homeowner, because it is about a TVR tax, but at the end of the day, we
have to assume that some of these people are in need, too. Now, we have taken away
their opportunity to rent out their room—rightfully so, I agree with the Mayor's ban,
one hundred percent (100%)—we have taken that away, so now it simply is just a
primary residence without any commercial activity in there. I will support the
amendment...I do not think there is that many...Mike, himself said there is maybe a
handful. I do not know how you tell that handful, "Sorry, you have to go through the
normal process" if they have to get in to fix their house, because they live in the house.
If it was a bed and breakfast where they do not reside in the house, then I have to
agree with Councilmember Kagawa. They have the means and they can go through
the normal process, but this is their primary residence. I will be supporting the
amendment. Councilmember Kagawa.
Councilmember Kagawa: The picture you paint is true in a lot of cases,
but you know how the saying goes, "One bad apple spoils the bunch," and
unfortunately, we have a lot of a bad apples that have spoiled this bunch with abuse.
For me, do I want to take care of the good apples and the bad apples, or do I just want
to make sure that we take care of the ones for sure that we know are all good apples,
just residences? For me, we are talking about priority. We are not saying, "You do
not have a permit process." We have the regular process and the expedited process.
If you have a use of a B&B, then unfortunately, you have to suffer the consequences
that go with holding a B&B or owning the business that operates in a residential
area. As a business in a residential area, you have a big advantage over other
businesses. You do not have to pay rent. Sometimes, you have to take the good with
the bad, and unfortunately, on this legislative body, we have to try and be as fair as
possible. For me, I am comfortable with my vote against the amendment.
Council Chair Rapozo: Thank you. Councilmember Yukimura.
SPECIAL COUNCIL MEETING 45 JUNE 6, 2018
Councilmember Yukimura: I just want to say that the way the Bill is
written, it separates the "bad apples" from the "good apples" and the only ones that
we will be allowing are the legitimate homestays which are not standalone vacation
rentals with an absentee owner. They are homestays where people are residents of
this community and live in the house. As the Chair point out, right now under the
Mayor's ban, they are not even a homestay.
Council Chair Rapozo: Councilmember Kaneshiro.
Councilmember Kaneshiro: I will not be voting for this amendment. I
think I heard clearly from the Administration their stance on it. They said, "If it
comes to a point where we want to change it, then we will come back in and let us
know." For me, I do not have a good grasp on what is going on out there. I think
Mike has been out there and he has a better handle and their office is probably getting
calls from people. For me, I want to leave it in their hands to tell us whether they
need the change or not, so I am fine with voting "no" on it now.
Council Chair Rapozo: I also heard the Planning Director say just a
handful. That argument could be used for the people on agricultural land. How many
of those people that are on agricultural land are actual farmers? They are gentlemen
farmers, they have estates and they have the agricultural class and they are not
farmers, but they benefit from the tax exemptions and the benefits because they have
the agricultural designation. But that does not mean they are farmers. I think you
can use that same argument right across the span of classifications and say, "Hey, if
you feel that way, I can tell you that there is a whole lot more agricultural abuse than
commercial home use abuse on this island." I think you could use that argument for
all of the classifications. I am just thinking about the person that is living in that
home and cannot qualify for this because they chose to rent out their units or their
rooms as a homestay. They are all valid arguments. That is where it is going to come
down to the vote. Councilmember Yukimura.
Councilmember Yukimura: It is easy for us who sit here who have a house
to say, "Yes, let us wait sixty (60) more days to find out something," I do not know
what exactly, and to have people come and say, "Please, I need a permit as fast as
possible." But I think if we are thinking about customer servicing, and that is in our
County mission, and these are residents, they fit in the mission of this emergency
bill...it does not make sense to me not to include them. We are excluding the illegal
ones, so it is arbitrary to not allow them to qualify or at least be able to apply for
expedited permits.
Council Chair Rapozo: Okay. Any other discussion? If not, the
motion is to approve. Roll call.
The motion to amend Proposed Draft Bill (No. 2713) as circulated, and as
shown in the Floor Amendment, which is attached hereto as Attachment 4 was
then put, and failed by the following vote:
SPECIAL COUNCIL MEETING 46 JUNE 6, 2018
FOR AMENDMENT: Chock, Yukimura, Rapozo TOTAL— 3,
AGAINST AMENDMENT: Brun, Kagawa, Kaneshiro, Kawakami TOTAL — 4,
EXCUSED & NOT VOTING: None TOTAL — 0,
RECUSED & NOT VOTING: None TOTAL — 0.
Council Chair Rapozo: Motion fails. Final amendment?
Councilmember Chock: Chair, Yvette pointed out another
amendment that she is working on, on page number 5, paragraph 5, the last sentence
should read, "...written record compiled in the qualification process..." She is
working on that right now.
Council Chair Rapozo: Okay. The Council Rules does allow for
verbal amendments. It does not have to be written, so I would entertain that motion
verbally right now, because I want to get this done before lunch. So I will entertain
a motion to amend Section F, number 5, from "complied" to "compiled"...
Councilmember Chock: And "qualification" rather than
"preregistration."
Councilmember Chock moved to amend Proposed Draft Bill (No. 2713) as
circulated, and as shown in the Floor Amendment, which is attached hereto as
Attachment 5, seconded by Councilmember Kaneshiro.
Council Chair Rapozo: Any discussion on that? Any public testimony
on that?
There being no objections, the rules were suspended to take public testimony.
There being no one present to provide testimony, the meeting was called back
to order, and proceeded as follows:
The motion to amend Proposed Draft Bill (No. 2713) as circulated, and as
shown in the Floor Amendment, which is attached hereto as Attachment 5 was
then put, and unanimously carried.
Council Chair Rapozo: Motion carried. Thank you very much. We
are back to the main motion. Any further discussion? Councilmember Chock.
Councilmember Chock: I just wanted to thank our Planning Director
and our Staff, Yvette, who did a lot of work. Councilmember Yukimura, thank you
for stepping in. My concern last week was that we were not addressing a need and
because we needed six (6) votes to pass an ordinance under this emergency
declaration that people would go without some way to start the process. I am
thankful that we have stayed the course and done the work necessary to pass this. I
think that we have a better outcome at this point. I also want to thank Mike for
introducing this because it is actually outside of the appropriation bill. This is really
the first thing that we have looked at for this flood in terms of building an ordinance
and some policy and I am a little bit concerned, as others might be around the table,
SPECIAL COUNCIL MEETING 47 JUNE 6, 2018
about where we are going. You heard some of the testimony today talk about what
that long-term vision is and how it is we can address is. My request has been...to me,
this has started the process for us as a body to have a discussion about how we want
to see the future, not only in Ha`ena and Wainiha, but the rest of the island. I am
looking forward to more of this multiagency approach to looking at how we can plan
better, as well as inclusion of the community's voice. As I heard earlier, some
concerns about maybe how it is we approach where we build, how we build, and how
we take care of this, I think that I just want to mention that I think that this Council
and people around the table are looking at how to get people into temporary housing,
emergency housing in the next month. I also want to say that I think people are
looking at how to address some of those concerns in terms of the environmental
impacts that have been stated. I just went to Idaho for a conference and one of the
things that I thought was appealing was how they built on their mountain sides,
called a "mountain overlay," and they implemented that based on safety. I think that
I just want to encourage the people who stepped up and started to speak to this stuff
around the community that people are thinking about this and we need to get it
together and organize and have these discussions and I hope that happens. Thank
you, Mr. Chair.
Council Chair Rapozo: Councilmember Kagawa.
Councilmember Kagawa: When all of these ordinances came up and this
emergency ordinance for rebuilding, what came to mind for me was all of Joan
Conrow's work with Kaua`iEclectic and outlining what happened in all of those years
on the north shore, and now that we have this major devastation, the thing that I
want to do at this chair is make sure we do everything we can to make sure that we
are not part of the new stories of abuse that occurred after the flooding and that is
why I have my points of view. I am not against individual cases of legitimate people
that need help. We have to be careful here when we pass legislation, when we give
instructions to the Administration on what to do. Let us make sure that we are not
contributing to more abuses in the future. Let us rebuild the north shore the right
way and let us make sure that people are doing it right. That is our chance now. We
can either do it the right way or we can do it the wrong way, and the wrong way would
be rushing, making harsh decisions, and later seeing consequences that bite you in
the end. In all of these votes, that is what drives me, is that picture that I want to
make sure the north shore does not become another abuse chronicles in the future.
Thank you.
Council Chair Rapozo: Thank you. Anyone else? Councilmember
Yukimura.
Councilmember Yukimura: I, too would like to thank the Planning
Director for his cooperation and coordination and also to our Staff, Yvette Sahut, and
I especially want to thank our Planning Committee Chair for really shepherding this
process through. It was a complicated one actually and everybody working together
really helped get to this end. I also want to thank the Chair for his understanding of
the dangers of after-the-fact permits, which I think is exactly what the Vice Chair
was talking about in terms of doing things that are going to have implications that
are negative and that damage the public interest. So I think because of the kinds of
SPECIAL COUNCIL MEETING 48 JUNE 6, 2018
thoughtful leadership here, we have been able to get a bill that hopefully will work
for our residents. It is, as the Planning Committee Chair said, just the beginning,
because there are many puka in how we are going to achieve that, that are not within
the government's kuleana, but are within all of us, in the kuleana of all of us who
want to make sure that residents can find the resources to rebuild safely and return
to their homes.
Council Chair Rapozo: Anyone else? Councilmember Kawakami.
Councilmember Kawakami: Thank you. I would like to thank this body for
keeping this measure on life support. If you remember, this thing was scheduled to
die at last week's meeting, so I am very thankful that this body had the vision to take
a look at this, and Councilmember Chock did some very good work. I would like to
thank the Administration for the work that they put into this. The bottom line is
when we stay focused on who we are trying to help, it is those very people who live
on Kaua`i that perhaps did not have flood insurance that went through a devastating
experience and lost their property and went through extreme amounts of stress. This
is a step in the right direction to allow them to rebuild. We also have to keep in mind
that we are also trying to make this as affordable as possible and hopefully this
measure moving forward helps to save some of those people that we are focused on
and saving them time and cost. I appreciate the department's ability to be proactive
and say, "Hey, we are going to make this work. It is not necessarily what we had
proposed, but we are going to live with the collaborative efforts from this body," and
we are going to make it happen; we are going to go out to these communities and we
are going to communicate and get boots on the ground to prequalify these folks
because they need to now go through a permitting process. I commend their ability
to be flexible and to respond to some of the concerns that we have. I think moving
forward, this is a good start. I know that if need be, we will take a closer look at
commercialized home use and if they need to be included, it will be. I appreciate the
honesty from the department saying that they do not think it is required at this time,
but they will take a look at it. With that being said, I think that this has been a good
collaborative effort. Thank you to this body for keeping this alive so that we can help
people. Thank you.
Council Chair Rapozo: Thank you. Any other discussion? I just want
to echo the thanks. This was dead last week and I was not going to support a bill that
would provide an avenue for after-the-fact permits. We have gone down that road in
the past. It is not a good thing. I appreciate the body's willingness to keep it alive,
and especially the Planning Department and Public Works for working with the
committee and agreeing to certain terms, which was really a departure from what
was presented initially. Thank you folks for that. As has been said, the whole focus
of this is to help the people that need the help out there. It is not just the north shore,
we are talking about people in Keapana, KOloa, and Anahola. Everything that has
been talked about has been the north shore, and they suffered the most damage, but
we still have local families throughout this island that sustained significant damage.
In fact, losing their residences. I think this is a good measure to assist everyone that
got affected, and in a way that will not put this County in a bad predicament a year
or two from now when we review these properties and find out, "Oh, no..." Then
SPECIAL COUNCIL MEETING 49 JUNE 6, 2018
what? Then we have another predicament. I think it is a good bill, so I just want to
thank everyone for their participation. With that, the motion is to approve.
The motion to approve Proposed Draft Bill (No. 2713), as amended, pursuant
to Kaua`i County Charter Section 4.02K, and that it be transmitted to the Mayor
for his approval was then put, and carried by the following vote:
FOR APPROVAL: Brun, Chock, Kagawa, Kaneshiro,
Kawakami, Yukimura, Rapozo TOTAL— 7,
AGAINST APPROVAL: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL—0.
Council Chair Rapozo: Thank you. With that, that will conclude
today's Special Council Meeting and we will break for lunch and be back at 1:45 p.m.
for the Committee Meetings.
ADJOURNMENT:
There being no further business, the Special Council Meeting adjourned at
12:36 p.m.
Respectfully submitted,
4‘'` .1.Y'
SCOTT K. SATO
Deputy County Clerk
:ct
ATTACHMENT 1
(June 6, 2018)
FLOOR AMENDMENT
Proposed Draft Bill (No. 2713), An Emergency Ordinance Relating To Standards,
Permits, And Fees For Work On Buildings, Structures, And Property Damaged In
The Historic Rain Event Of April 2018
Introduced by: MASON K. CHOCK
Amend Proposed Draft Bill (No. 2713) in its entirety to read as follows:
"BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF KAUAI, STATE
OF HAWAII:
SECTION 1. Findings and Purpose. On April 14th and 15th of 2018, the
County was subjected to historic rainfall leading to massive flooding and landslides
throughout the island of Kaua`i (referred throughout as "event").
This event was consequently declared an emergency and a disaster by the
Governor of the State of Hawai`i and the Mayor of the County, and was declared a
major disaster by the President of the United States, commensurate with the scale
and intensity of ydamage to the structures and residents in areas including but not
limited to: Ha`ena, Wainiha, Waikoko, Waipa, Hanalei, Kalihiwai, Anahola,
Keapana, and Koloa.
The Council finds many County households are unable to find safe shelter on
their property due to the damage from this disaster.
The Council finds it of great importance to consider the hardship to residents
while at the same time ensuring the regulations and codes enacted relating to the
construction, siting, and usage of structures continue to be implemented to ensure
the health, safety, and welfare of the public. Pursuant to the Charter of the County
of Kauai, Section 4.02, the County Council may enact emergency ordinances to meet
a public emergency affecting life, health, or property.
The Council finds and declares that an emergency exists based on the
foregoing.
The purpose of this Emergency Ordinance is to allow residents and landowners
to engage in immediate action to provide themselves shelter, mitigate damages, and
protect property impaired in this disaster, and [for the expedition of] to expedite the
process by which work may be [allowed on] done to repair damaged buildings,
structures, and property[.] with the highest priority given to returning residents to
safe and functional homes.
The Council enacts this Emergency Ordinance relating to standards, permits,
and fees for repair work on buildings, structures, and property damaged in the event
of April 2018 to address the emergency.
SECTION 2. Applicability. This Emergency Ordinance shall only apply
to work done on any building, structure, or property in the County of Kaua`i damaged
by the Historic Rain Event of April 2018. The term "work" refers to any activity for
which a permit [would be] is required by Chapter 8 (Comprehensive Zoning
1
ATTACHMENT 1
Ordinance), Chapter 10 (Special Development Plans), Chapter 12 (Building Code),
Chapter 13 (Electrical Code), Chapter 14 (Plumbing Code), Chapter 15 (General
Provisions Relating to Building and Construction Regulations), or Chapter 22, Article
7 (Grading Ordinance) of the Kaua`i County Code 1987, as amended, and the Special
Management Area Rules of the County Planning Commission under authority of
Chapter 205A, Hawai`i Revised Statutes.
SECTION 3. Standards. All permanent work done on any building,
structure, or property pursuant to this Emergency Ordinance shall be in accordance
with the applicable standards of safety[, decency,] and sanitation, and in conformity
with applicable codes, specifications, and standards, and shall conform to all
applicable standards contained in SECTION 2. This Emergency Ordinance shall not
exempt any State or Federal requirements[.], unless exempted by the emergency
declarations of the President of the United States, Governor of Hawai`i or Mayor of
Kauai. Further, all work shall be in compliance with Hawai`i Revised Statutes, Title
25, Section 464 (Professional Engineers, Architects, Surveyors and Landscape
Architects).
SECTION 4. Emergency Repairs. Emergency repairs may be made to
any building, structure, or property without the necessity of securing in advance of
any work any of the permits referred to in SECTION 2. The term "emergency repairs"
shall mean temporary work done to any building, structure, or property to meet an
immediate threat and essential to saving lives and protecting and preserving
property or public health and safety. Permanent repairs or construction shall be
undertaken in compliance with SECTION 3 and SECTION 5.
SECTION 5. [Pre-Registration Procedure. Between the enactment of
this Emergency Ordinance, and the sixty-first day after enactment, those affected by
the disaster where any building, structure, or property was damaged or destroyed
may register and receive qualification for no-fee after-the-fact permitting on any work
commenced on any building or structure between April 15, 2018 and
October 31, 2019. The after-the-fact permit may be granted provided that all work is
complete and all applicable permits are applied for before October 31, 2019, and all
work is done by a State licensed contractor or owner-builder. Any repair or
construction shall be in accordance with applicable standards of safety, decency, and
sanitation, and in conformity with applicable codes, specifications and standards.
Pre-registration does not exempt the requirement for an application for a permit and
inspection of the work.] Qualification. Between the enactment of this Emergency
Ordinance, and the sixty-first day after enactment, those affected by the disaster
where any building, structure, or property was damaged or destroyed, except for
properties covered by SECTION 5F may register and receive qualification for no-fee
expedited permitting on any work commenced on any building or structure damaged
on or around April 15, 2018. The Department of Planning shall serve as the central
coordinating agency and information clearinghouse for qualification. Qualification
may be granted provided the following:
[A. The Department of Planning shall serve as the central coordinating
agency and information clearinghouse for pre-registration.]
2
ATTACHMENT 1
A. Qualification for expedited permitting shall only be issued to applicants
whose real property tax classification is Homestead, Residential, or
Agricultural in Tax Year 2017.
B. The registrant shall declare in as much detail as possible the work and
activities that will be conducted to the building, structure, or property damaged in
the disaster.
C. Within three (3) business days of filing an application to register for
[after-the-fact] expedited permitting, the registrant shall also sign a Declaration that
provides for the following:
1. A declaration that confirms that the registrant shall comply with all
applicable codes and laws associated with any construction or
development, which may include, but are not be limited to, Flood
Hazard, electrical, plumbing, grading, driveway, work in County or
State right-of-ways, fire, wastewater, and Department of Health
requirements, and the registrant understands it is his or her sole
responsibility to comply with any and all laws and required permits
and approvals;
2. An acknowledgement that any violation, deviation, or expansion
from the reconstruction parameters on file with the Department of
Planning will resort to a violation and will require the registrant to
demolish and remove the repair and improvements;
3. Written consent to allow the Department of Planning or its
designated agents entry to the premises to document via
photographs and take notes on the current state of the damaged
buildings, structures, or properties;
4. Written consent for the entry of any County or State official to
inspect the progress of work between [pre-registration] qualification
and the receipt of a certificate of occupancy from the Department of
Public Works; and
5. An agreement and acknowledgement that the County shall not be
liable for any damage whatsoever, existing or future conditions or
defect, nor any adverse environmental condition. In addition, the
registrant shall release, forever discharge, indemnify, and hold
harmless the County, its officials, employees, representatives, and
agents from any and all claims arising out of the construction and
repair of buildings, structures, or appurtenances thereto under the
exercise of the [after-the-fact registration and] expedited permitting
process.
D. Within three (3)business days of receiving the Declaration, the Department
of Planning shall inspect the property, compile,_ and catalog the information in
3
ATTACHMENT 1 ,
a central database and notify all relevant County and State agencies of the
pending [pre-registration] qualification for a property.
[E. Unless additional pre-inspection work is required by any agency, within
five (5) business days of receiving notice of the pending pre-registration
application, all agencies responsible to implement and regulate the
requirements set forth under SECTION 2, shall provide the Department of
Planning the parameters upon which a registrant may conduct any activity to
repair damaged buildings, structures, or properties.
6. Agencies may require pre-inspection of work conducted before an
application to register for after-the-fact permits are submitted.
7. Based on agency pre-inspection and the photographic and written
evidence gathered by the Department of Planning, an agency may
elect to not provide its consent for pre-registration in circumstances
including, but not limited to:
a) The usage on the property was illegal before the disaster;
b) The structure was illegal before the disaster; or
c) Health and safety reasons.
Any appeal of an agency's determination to not consent shall be
appealable under the corresponding rules and regulations of that
respective agency.]
E. Work may be commenced on any building or structure upon receiving
qualification from the Department of Planning, provided that all permits are
applied for no later than thirty (30) days after receiving qualification, and
provided further that the work is done by a State licensed contractor or owner-
builder. The Director of Planning may extend the deadline to an individual
who exhibits reasonable hardship relating to their ability to submit an
application within thirty (30) days. Within three (3) days of receiving an
expedited zoning permit application, the Department of Planning shall issue a
decision of approval or non-approval.
[F. Within fifteen (15) business days after receiving the Declaration, the
Department of Planning shall compile a list of all reconstruction parameters
from the various agencies, and the Director of Planning or his designee shall
certify the list of those parameters in an electronic or hard-copy transmittal to
the registrant or notify the registrant of the inability to pre-register the
proposed activity for lack of consent from all regulating agencies. A copy of the
certified list and certificate shall be held in file by the Department of Planning.
The list shall also serve as the after-the-fact permitting certificate for the
registrant, and a copy shall be submitted along with respective after-the-fact
permit application for each agency. The Department of Planning shall notate
that the certificates shall expire on October 31, 2019. Agencies shall utilize the
database compiled by the Department of Planning to compare as-built
structures indicated and inspected as part of the after-the-fact permit
application materials to ensure compliance with all relevant laws. Any
deviation or expansion from the reconstruction parameters on file with the
4
ATTACHMENT 1
Department of Planning shall resort to a violation under SECTION 7 and shall
require the registrant to demolish and remove the repair and improvements.]
[G. This pre-registration process shall not be considered or be construed as a
waiver of any laws relating to the construction and usage of property including
but not limited to:]
F. This Ordinance shall not apply to the following:
1. Any building, structure, or use which is defined as a non-conforming
building, structure, or use pursuant to Section 8-1.5 of the Kaua`i
County Code 1987, as amended, and which is subject to the
requirements on the non-conforming structures and/or use
provisions of the Comprehensive Zoning Ordinance. [Further, no
after-the-fact permit shall approve an expansion of any
non-conforming structure or intensify a non-conforming use beyond
what existed on April 15, 2018.]
2. Any property, land, development, buildings, structures, or uses,
including non-conforming structures or uses, subject to the
requirements of Chapter 15, Article 1 (relating to Flood Plain
Management), the Special Management Area (SMA), or property
that is subject to Shoreline Setback.
3. Work done to any building, structure, or property if the cost of the
work would be fifty percent (50%) or more of the market value of the
replacement cost of the building, structure, or property, or would
involve fifty percent (50%) or more of any building, structure,
improvement of property, as determined by building and flood
program officials as it existed on April 15, 2018.
4. Buildings, structures, or improvements that are on the national or
State of Hawai`i Register of Historic Places, or fall under the
definition of Chapter 6E, Hawai`i Revised Statutes.
5. Repairs to any building, structure, improvement, or property that
are in violation of those regulations in SECTION 2 based upon the
photographic and written record complied in the pre-registration
process.
6. Reroofing repairs to commercial buildings and any reroofing work
where the roof sheathing is exposed since it may be subjected to
compliance with the 2009 International Energy Conservation
Code (IECC).
7. Any Executive Orders and State and Federal law, rules, regulations,
or requirements, including those required of the Federal Emergency
Management Agency.
5
A1TAQTP 1
SECTION 6. Additional permit exemptions and waiver.
A. During the [validity] the period covered by of this Emergency Ordinance,
work may commence on the following without [pre-registration or]
permitting, provided all applicable construction, health, and safety
standards are met. The waiver of the pre-registration and permitting
requirements shall not be construed as a waiver of laws relating to the
construction of any building or structure pursuant to Section 15-1.8 of the
Kaua`i County Code 1987, as amended, and which is subject to the
requirements on the non-conforming use structures provisions of the Flood
Plain Management Ordinance.
1. All structures and improvements presently exempt from building
permit requirements under Chapter 12, Kaua`i County Code 1987,
as amended.
2. The repair or replacement of non-retaining walls or fences that
lawfully existed on the owner's property on April 15, 2018, and which
were damaged or destroyed in the event.
3. The repair or replacement of any exterior and interior non-bearing
walls, wall coverings, ceilings, floors, and windows for structures
that lawfully were part of a legal structure that existed on
April 15, 2018, and which were damaged or destroyed in the event.
4. Maintenance, repair, or replacement of electrical and plumbing
fixtures that lawfully were part of a structure that existed on
April 15, 2018, and which were destroyed in the event, provided the
landowner is on notice and bears the risk, the Department of Public
Works, Building Division, may require subsequent construction
inspection leading to the tearing open of walls and floors to verify
safe construction.
5. Any reroofing work provided there is no structural damage and only
the roof covering is being repaired or replaced with identical or
similar material that legally existed prior to April 15, 2018, and no
asbestos is involved in demolition.
B. Fees. All fees normally required for permits referred to in SECTION 2, and
park dedication fees and environmental impact assessment fees, under
Chapters 9 and 11A, respectively, Kaua`i County Code 1987, as amended,
are hereby waived as to all work done on any building, structure, or
property damaged in the event, provided that [any required permit
identified in the certified list by the Director of Planning is applied for prior
to October 31, 2019,] all permits are applied for pursuant to SECTION 5
and [does] do not result in an increase in residential or resort units, or a
substantial increase in commercial or industrial floor area as determined
by the Director of Planning or his designee. The Director of Planning may
waive after-the-fact zoning fees for inadvertent violations of the zoning code
committed during emergency repairs.
6
ATTACHMENT 1
[C. Agency Hearing Process Involving Planning Commission.
1. If an anticipated after-the-fact permit application identified via the
compilation of a pre-registration list would normally require an
Agency Hearing under Chapter 8, Kaua`i County Code 1987, as
amended, or the Special Management Area Rules and Regulations of
the Kaua`i Planning Commission, the Director of Planning may
require an expedited Agency Hearing to be held and consent given
by the Planning Commission prior to certifying any pre-registration
list effectively requiring no further Agency Hearing be held at the
time of the after-the-fact permit submittal and processing.
2. If an Agency Hearing for Planning Commission consent to the
proposed certified list is required by the Director, notice of the
hearing's location, time, date, location of property in question, type
of after-the-fact permit, and name of applicant shall be published in
a county-wide distributed newspaper ten (10) days prior to the
hearing, or twenty (20) days prior to the hearing pursuant to
Section 205A-22, Hawai`i Revised Statutes, for those certified lists
anticipating an after-the-fact Special Management Area Use Permit,
and post notice in conspicuous places around the Lihu`e Civic Center
and Historic County Building. Consent may be conditional by the
Commission. Should the Commission decline to provide consent of
the certified list, or the applicant disagrees with conditions of the
Commission's consent, the Commission shall provide findings of fact,
conclusions of law, decision, and order to the applicant, and is
considered appealable to the Fifth Circuit Court should the applicant
believe the Commission's decision was arbitrary, capricious, or not in
accordance with applicable law. If an Agency Hearing is held, and
interested parties wish to intervene, all parties must follow the
procedures set forth in the Rules of Practice and Procedure of the
Kaua`i Planning Commission. The Director of Planning's decision to
waive an Agency Hearing at time of after-the-fact permitting is
considered a final decision, and appealable to the Fifth Circuit
Court.]
SECTION 7. Penalties. Any person who fails to apply for a necessary
permit in accordance with the provisions of this ordinance, or who fails to perform
work in accordance with or otherwise comply with any of the applicable standards
contained in Chapters 8, 10, 12 through 15, or 22 (Article 7) of the Kaua`i County
Code 1987, as amended, and any other Federal or State laws and regulations, shall
be subject to all penalties and remedies contained in said applicable Chapters. In
addition, any violation of the provisions of this Emergency Ordinance shall require
7
ATTACH/4MT 1 .
the registrant to demolish and remove the repair, reconstruction, and improvement
work.
SECTION 8. If any provision of this Emergency Ordinance or the
application thereof to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of the Emergency Ordinance that can be
given effect without the invalid provision or application, and to this end, the
provisions of this Emergency Ordinance are severable.
SECTION 9. This Emergency Ordinance shall take effect upon its
approval and shall automatically stand repealed as of the sixty-first day following the
date of which it was adopted."
(Material to be deleted is bracketed. New material to be added is underscored.)
V:\AMENDMENTS\2018\06-06-2018 Emergency Bill Chock Amendment
YS_dmc.docx
8
AllACIFER 2
(June 6, 2018)
FLOOR AMENDMENT
Proposed Draft Bill (No. 2713), An Emergency Ordinance Relating To Standards,
Permits, And Fees For Work On Buildings, Structures, And Property Damaged In
The Historic Rain Event Of April 2018
Introduced by: MASON K. CHOCK
Amend Proposed Draft Bill (No. 2713) in its entirety to read as follows:
"BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF KAUAI, STATE
OF HAWAII:
SECTION 1. Findings and Purpose. On April 14th and 15th of 2018, the
County was subjected to historic rainfall leading to massive flooding and landslides
throughout the island of Kaua`i (referred throughout as "event").
This event was consequently declared an emergency and a disaster by the
Governor of the State of Hawai`i and the Mayor of the County, and was declared a
major disaster by the President of the United States, commensurate with the scale
and intensity of damage to the structures and residents in areas including but not
limited to: Ha`ena, Wainiha, Waikoko, Waipa, Hanalei, Kalihiwai, Anahola,
Keapana, and Koloa.
The Council finds many County households are unable to find safe shelter on
their property due to the damage from this disaster.
The Council finds it of great importance to consider the hardship to residents
while at the same time ensuring the regulations and codes enacted relating to the
construction, siting, and usage of structures continue to be implemented to ensure
the health, safety, and welfare of the public. Pursuant to the Charter of the County
of Kaua`i, Section 4.02, the County Council may enact emergency ordinances to meet
a public emergency affecting life, health, or property.
The Council finds and declares that an emergency exists based on the
foregoing.
The purpose of this Emergency Ordinance is to allow residents and landowners
to engage in immediate action to provide themselves shelter, mitigate damages, and
protect property impaired in this disaster, and [for the expedition of] to expedite the
process by which work may be [allowed on] done to repair damaged buildings,
structures, and property[.] with the highest priority given to returning residents to
safe and functional homes.
The Council enacts this Emergency Ordinance relating to standards, permits,
and fees for repair work on buildings, structures, and property damaged in the event
of April 2018 to address the emergency.
SECTION 2. Applicability. This Emergency Ordinance shall only apply
to work done on any building, structure, or property in the County of Kaua`i damaged
by the Historic Rain Event of April 2018. The term "work" refers to any activity for
which a permit [would be] is required by Chapter 8 (Comprehensive Zoning
1
ATTACHMENT 2
Ordinance), Chapter 10 (Special Development Plans), Chapter 12 (Building Code),
Chapter 13 (Electrical Code), Chapter 14 (Plumbing Code), Chapter 15 (General
Provisions Relating to Building and Construction Regulations), or Chapter 22, Article
7 (Grading Ordinance) of the Kaua`i County Code 1987, as amended, and the Special
Management Area Rules of the County Planning Commission under authority of
Chapter 205A, Hawai`i Revised Statutes.
SECTION 3. Standards. All permanent work done on any building,
structure, or property pursuant to this Emergency Ordinance shall be in accordance
with the applicable standards of safety[, decency,] and sanitation, and in conformity
with applicable codes, specifications, and standards, and shall conform to all
applicable standards contained in SECTION 2. This Emergency Ordinance shall not
exempt any State or Federal requirements[.], unless exempted by the emergency
declarations of the President of the United States, Governor of Hawai`i or Mayor of
Kaua`i. Further, all work shall be in compliance with Hawai`i Revised Statutes, Title
25, Section 464 (Professional Engineers, Architects, Surveyors and Landscape
Architects).
SECTION 4. Emergency Repairs. Emergency repairs may be made to
any building, structure, or property without the necessity of securing in advance of
any work any of the permits referred to in SECTION 2. The term"emergency repairs"
shall mean temporary work done to any building, structure, or property to meet an
immediate threat and essential to saving lives and protecting and preserving
property or public health and safety. Permanent repairs or construction shall be
undertaken in compliance with SECTION 3 and SECTION 5.
SECTION 5. [Pre-Registration Procedure. Between the enactment of
this Emergency Ordinance, and the sixty-first day after enactment, those affected by
the disaster where any building, structure, or property was damaged or destroyed
may register and receive qualification for no-fee after-the-fact permitting on any work
commenced on any building or structure between April 15, 2018 and
October 31, 2019. The after-the-fact permit may be granted provided that all work is
complete and all applicable permits are applied for before October 31, 2019, and all
work is done by a State licensed contractor or owner-builder. Any repair or
construction shall be in accordance with applicable standards of safety, decency, and
sanitation, and in conformity with applicable codes, specifications and standards.
Pre-registration does not exempt the requirement for an application for a permit and
inspection of the work.] Qualification. Between the enactment of this Emergency
Ordinance, and the sixty-first day after enactment, those affected by the disaster
where any building, structure, or property was damaged, except for properties
covered by SECTION 5F may register and receive qualification for no-fee expedited
permitting on any work commenced on any building or structure damaged on or
around April 15, 2018. The Department of Planning shall serve as the central
coordinating agency and information clearinghouse for qualification. Qualification
may be granted provided the following:
[A. The Department of Planning shall serve as the central coordinating
agency and information clearinghouse for pre-registration.]
2
ATTACHMENT 2
A. Qualification for expedited permitting shall only be issued to applicants
whose real property tax classification is Homestead, Residential, or
Agricultural in Tax Year 2017.
B. The registrant shall declare in as much detail as possible the work and
activities that will be conducted to the building, structure, or property damaged in
the disaster.
C. Within three (3) business days of filing an application to [register for
after-the-fact] be qualified for expedited permitting, the registrant shall also sign a
Declaration that provides for the following:
1. A declaration that confirms that the registrant shall comply with all
applicable codes and laws associated with any construction or
development, which may include, but are not be limited to, Flood
Hazard, electrical, plumbing, grading, driveway, work in County or
State right-of-ways, fire, wastewater, and Department of Health
requirements, and the registrant understands it is his or her sole
responsibility to comply with any and all laws and required permits
and approvals;
2. An acknowledgement that any violation, deviation, or expansion
from the reconstruction parameters on file with the Department of
Planning will [resort to] result in a violation and will require the
registrant to demolish and remove the repair and improvements;
3. Written consent to allow the Department of Planning or its
designated agents entry to the premises to document via
photographs and take notes on the current state of the damaged
buildings, structures, or properties;
4. Written consent for the entry of any County or State official to
inspect the progress of work between [pre-registration] qualification
and the receipt of a certificate of occupancy from the Department of
Public Works; and
5. An agreement and acknowledgement that the County shall not be
liable for any damage whatsoever, existing or future conditions or
defect, nor any adverse environmental condition. In addition, the
registrant shall release, forever discharge, indemnify, and hold
harmless the County, its officials, employees, representatives, and
agents from any and all claims arising out of the construction and
repair of buildings, structures, or appurtenances thereto under the
exercise of the [after-the-fact registration and] expedited permitting
process.
D. Within three (3)business days of receiving the Declaration, the Department
of Planning shall inspect the property, compile,_ and catalog the information in
3
ATTACHMENT 2
a central database and notify all relevant County and State agencies of the
pending [pre-registration] Qualification for a property.
[E. Unless additional pre-inspection work is required by any agency, within
five (5) business days of receiving notice of the pending pre-registration
application, all agencies responsible to implement and regulate the
requirements set forth under SECTION 2, shall provide the Department of
Planning the parameters upon which a registrant may conduct any activity to
repair damaged buildings, structures, or properties.
6. Agencies may require pre-inspection of work conducted before an
application to register for after-the-fact permits are submitted.
7. Based on agency pre-inspection and the photographic and written
evidence gathered by the Department of Planning, an agency may
elect to not provide its consent for pre-registration in circumstances
including, but not limited to:
a) The usage on the property was illegal before the disaster;
b) The structure was illegal before the disaster; or
c) Health and safety reasons.
Any appeal of an agency's determination to not consent shall be
appealable under the corresponding rules and regulations of that
respective agency.]
E. Work may be commenced on any building or structure upon receiving
qualification from the Department of Planning, provided that all permits are
applied for no later than thirty (30) days after receiving qualification, and
provided further that the work is done by a State licensed contractor or owner-
builder. The Director of Planning may extend the deadline to an individual
who exhibits reasonable hardship relating to their ability to submit an
application within thirty (30) days. Within three (3) days of receiving an
expedited zoning permit application, the Department of Planning shall issue a
decision of approval or non-approval. The Department of Public Works,
Building Division, shall process applications for an expedited permit within
thirty (30) days of receiving permit application.
[F. Within fifteen (15) business days after receiving the Declaration, the
Department of Planning shall compile a list of all reconstruction parameters
from the various agencies, and the Director of Planning or his designee shall
certify the list of those parameters in an electronic or hard-copy transmittal to
the registrant or notify the registrant of the inability to pre-register the
proposed activity for lack of consent from all regulating agencies. A copy of the
certified list and certificate shall be held in file by the Department of Planning.
The list shall also serve as the after-the-fact permitting certificate for the
registrant, and a copy shall be submitted along with respective after-the-fact
permit application for each agency. The Department of Planning shall notate
that the certificates shall expire on October 31, 2019. Agencies shall utilize the
database compiled by the Department of Planning to compare as-built
structures indicated and inspected as part of the after-the-fact permit
4
' ATTA( NNf 2
application materials to ensure compliance with all relevant laws. Any
deviation or expansion from the reconstruction parameters on file with the
Department of Planning shall resort to a violation under SECTION 7 and shall
require the registrant to demolish and remove the repair and improvements.
G. This pre-registration process shall not be considered or be construed as a
waiver of any laws relating to the construction and usage of property including
but not limited to:]
F. This Ordinance shall not apply to the following:
1. Any building, structure, or use which is defined as a non-conforming
building, structure, or use pursuant to Section 8-1.5 of the Kaua`i
County Code 1987, as amended, and which is subject to the
requirements on the non-conforming structures and/or use
provisions of the Comprehensive Zoning Ordinance. [Further, no
after-the-fact permit shall approve an expansion of any
non-conforming structure or intensify a non-conforming use beyond
what existed on April 15, 2018.]
2. Any property, land, development, buildings, structures, or uses,
including non-conforming structures or uses, subject to the
requirements of Chapter 15, Article 1 (relating to Flood Plain
Management), the Special Management Area (SMA), or property
that is subject to Shoreline Setback.
3. Work done to any building, structure, or property if the cost of the
work would be fifty percent (50%) or more of the market value of the
replacement cost of the building, structure, or property, or would
involve fifty percent (50%) or more of any building, structure,
improvement of property, as determined by building and flood
program officials as it existed on April 15, 2018.
4. Buildings, structures, or improvements that are on the national or
State of Hawai`i Register of Historic Places, or fall under the
definition of Chapter 6E, Hawai`i Revised Statutes.
5. Repairs to any building, structure, improvement, or property that
are in violation of those regulations in SECTION 2 based upon the
photographic and written record complied in the pre-registration
process.
6. Reroofing repairs to commercial buildings and any reroofing work
where the roof sheathing is exposed since it may be subjected to
compliance with the 2009 International Energy Conservation
Code (IECC).
5
ATTACHMENT 2
7. Any Executive Orders and State and Federal law, rules, regulations,
or requirements, including those required of the Federal Emergency
Management Agency.
SECTION 6. Additional permit exemptions and waiver.
A. During the [validity of] the period covered by this Emergency Ordinance,
work may commence on the following without [pre-registration or]
permitting, provided all applicable construction, health, and safety
standards are met. The waiver of the pre-registration and permitting
requirements shall not be construed as a waiver of laws relating to the
construction of any building or structure pursuant to Section 15-1.8 of the
Kauai County Code 1987, as amended, and which is subject to the
requirements on the non-conforming use structures provisions of the Flood
Plain Management Ordinance.
1. All structures and improvements presently exempt from building
permit requirements under Chapter 12, Kaua`i County Code 1987,
as amended.
2. The repair or replacement of non-retaining walls or fences that
lawfully existed on the owner's property on April 15, 2018, and which
were damaged or destroyed in the event.
3. The repair or replacement of any exterior and interior non-bearing
walls, wall coverings, ceilings, floors, and windows for structures
that lawfully were part of a legal structure that existed on
April 15, 2018, and which were damaged or destroyed in the event.
4. Maintenance, repair, or replacement of electrical and plumbing
fixtures that lawfully were part of a structure that existed on
April 15, 2018, and which were destroyed in the event, provided the
landowner is on notice and bears the risk, the Department of Public
Works, Building Division, may require subsequent construction
inspection leading to the tearing open of walls and floors to verify
safe construction.
5. Any reroofing work provided there is no structural damage and only
the roof covering is being repaired or replaced with identical or
similar material that legally existed prior to April 15, 2018, and no
asbestos is involved in demolition.
B. Fees. All fees normally required for permits referred to in SECTION 2, and
park dedication fees and environmental impact assessment fees, under
Chapters 9 and 11A, respectively, Kauai County Code 1987, as amended,
are hereby waived as to all work done on any building, structure, or
property damaged in the event, provided that [any required permit
identified in the certified list by the Director of Planning is applied for prior
to October 31, 2019,] all permits are applied for pursuant to SECTION 5
and [does] do not result in an increase in residential or resort units, or a
6
ATTACHMENT 2
substantial increase in commercial or industrial floor area as determined
by the Director of Planning or his designee. The Director of Planning may
waive after-the-fact zoning fees for inadvertent violations of the zoning code
committed during emergency repairs.
[C. Agency Hearing Process Involving Planning Commission.
1. If an anticipated after-the-fact permit application identified via the
compilation of a pre-registration list would normally require an
Agency Hearing under Chapter 8, Kaua`i County Code 1987, as
amended, or the Special Management Area Rules and Regulations of
the Kaua`i Planning Commission, the Director of Planning may
require an expedited Agency Hearing to be held and consent given
by the Planning Commission prior to certifying any pre-registration
list effectively requiring no further Agency Hearing be held at the
time of the after-the-fact permit submittal and processing.
2. If an Agency Hearing for Planning Commission consent to the
proposed certified list is required by the Director, notice of the
hearing's location, time, date, location of property in question, type
of after-the-fact permit, and name of applicant shall be published in
a county-wide distributed newspaper ten (10) days prior to the
hearing, or twenty (20) days prior to the hearing pursuant to
Section 205A-22, Hawai`i Revised Statutes, for those certified lists
anticipating an after-the-fact Special Management Area Use Permit,
and post notice in conspicuous places around the Lihu`e Civic Center
and Historic County Building. Consent may be conditional by the
Commission. Should the Commission decline to provide consent of
the certified list, or the applicant disagrees with conditions of the
Commission's consent, the Commission shall provide findings of fact,
conclusions of law, decision, and order to the applicant, and is
considered appealable to the Fifth Circuit Court should the applicant
believe the Commission's decision was arbitrary, capricious, or not in
accordance with applicable law. If an Agency Hearing is held, and
interested parties wish to intervene, all parties must follow the
procedures set forth in the Rules of Practice and Procedure of the
Kaua`i Planning Commission. The Director of Planning's decision to
waive an Agency Hearing at time of after-the-fact permitting is
considered a final decision, and appealable to the Fifth Circuit
Court.]
SECTION 7. Penalties. Any person who fails to apply for a necessary
permit in accordance with the provisions of this ordinance, or who fails to perform
work in accordance with or otherwise comply with any of the applicable standards
7
ATTACHMENT 2
contained in Chapters 8, 10, 12 through 15, or 22 (Article 7) of the Kaua`i County
Code 1987, as amended, and any other Federal or State laws and regulations, shall
be subject to all penalties and remedies contained in said applicable Chapters. In
addition, any violation of the provisions of this Emergency Ordinance shall require
the registrant to demolish and remove the repair, reconstruction, and improvement
work.
SECTION 8. If any provision of this Emergency Ordinance or the
application thereof to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of the Emergency Ordinance that can be
given effect without the invalid provision or application, and to this end, the
provisions of this Emergency Ordinance are severable.
SECTION 9. This Emergency Ordinance shall take effect upon its
approval and shall automatically stand repealed as of the sixty-first day following the
date of which it was adopted."
(Material to be deleted is bracketed. New material to be added is underscored.)
V:\AMENDMENTS\2018\06-06-2018 Emergency Bill Chock Amendment
YS_dmc.docx
III',
8
ATTACHMENT 3
(June 6, 2018)
FLOOR AMENDMENT
Proposed Draft Bill (No. 2713), An Emergency Ordinance Relating To Standards,
Permits, And Fees For Work On Buildings, Structures, And Property Damaged In
The Historic Rain Event Of April 2018
Introduced by: JOANN A. YUKIMURA
Amend Proposed Draft Bill (No. 2713), SECTION 5, subsection C, to read as follows:
"C. Within three (3) business days of filing an application to [register for
after-the-fact] be qualified for expedited permitting, the registrant shall also sign a
Declaration that provides for the following:
[1. A declaration that confirms that the registrant shall comply with all
applicable codes and laws associated with any construction or
development, which may include, but are not be limited to, Flood
Hazard, electrical, plumbing, grading, driveway, work in County or
State right-of-ways, fire, wastewater, and Department of Health
requirements, and the registrant understands it is his or her sole
responsibility to comply with any and all laws and required permits and
approvals;
2. An acknowledgement that any violation, deviation, or expansion from
the reconstruction parameters on file with the Department of Planning
will result in a violation and will require the registrant to demolish and
remove the repair and improvements;]
[3.] 1. Written consent to allow the Department of Planning or its
designated agents entry to the premises to document via photographs
and take notes on the current state of the damaged buildings,
structures, or properties;
[4.] 2. Written consent for the entry of any County or State official to
inspect the progress of work between [pre-registration] qualification and
the receipt of a certificate of occupancy from the Department of Public
Works; and
[5.] 3. An agreement and acknowledgement that the County shall not be
liable for any damage whatsoever, existing or future conditions or defect,
nor any adverse environmental condition. In addition, the registrant
shall release, forever discharge, indemnify, and hold harmless the
County, its officials, employees, representatives, and agents from any
and all claims arising out of the construction and repair of buildings,
structures, or appurtenances thereto under the exercise of the [after-
the-fact registration and] expedited permitting process."
(Material to be deleted is bracketed. New material to be added is underscored.)
1
ATTACHMENT 4
(June 6, 2018)
FLOOR AMENDMENT
Proposed Draft Bill (No. 2713), An Emergency Ordinance Relating To Standards,
Permits, And Fees For Work On Buildings, Structures, And Property Damaged In
The Historic Rain Event Of April 2018
Introduced by: JOANN A. YUKIMURA
Amend Proposed Draft Bill (No. 2713), SECTION 5, subsection A, to read as follows:
"A. Qualification for expedited permitting shall only be issued to applicants
whose real property tax classification is Homestead, Residential,
Commercialized Home Use or Agricultural in Tax Year 2017."
(Material to be deleted is bracketed. New material to be added is underscored.)
1
ATTACHMENT 5
(June 6, 2018)
FLOOR AMENDMENT
Proposed Draft Bill (No. 2713), An Emergency Ordinance Relating To Standards,
Permits, And Fees For Work On Buildings, Structures, And Property Damaged In
The Historic Rain Event Of April 2018
Introduced by: MASON K. CHOCK
1. Amend Proposed Draft Bill (No. 2713), SECTION 5, subsection C, to read as
follows:
" C. Within three (3) business days of filing an application to [register for
after-the-fact] be qualified for expedited permitting, the registrant shall also sign a
Declaration that provides for the following:
1. A declaration that confirms that the registrant shall comply with all
applicable codes and laws associated with any construction or
development, which may include, but are not [be] limited to, Flood
Hazard, electrical, plumbing, grading, driveway, work in County or
State right-of-ways, fire, wastewater, and Department of Health
requirements, and the registrant understands it is his or her sole
responsibility to comply with any and all laws and required permits
and approvals;
2. An acknowledgement that any violation, deviation, or expansion
from the reconstruction parameters on file with the Department of
Planning will [resort to] result in a violation and will require the
registrant to demolish and remove the repair and improvements;
3. Written consent to allow the Department of Planning or its
designated agents entry to the premises to document via
photographs and take notes on the current state of the damaged
buildings, structures, or properties;
4. Written consent for the entry of any County or State official to
inspect the progress of work between [pre-registration] qualification
and the receipt of a certificate of occupancy from the Department of
Public Works; and
5. An agreement and acknowledgement that the County shall not be
liable for any damage whatsoever, existing or future conditions or
defect, nor any adverse environmental condition. In addition, the
registrant shall release, forever discharge, indemnify, and hold
harmless the County, its officials, employees, representatives, and
agents from any and all claims arising out of the construction and
repair of buildings, structures, or appurtenances thereto under the
exercise of the [after-the-fact registration and] expedited permitting
process.
1
ATTAcU1FNP 5
2. Amend Proposed Draft Bill (No. 2713), SECTION 5, subsection F, to read as
follows:
"F. This Ordinance shall not apply to the following:
1. Any building, structure, or use which is defined as a non-conforming
building, structure, or use pursuant to Section 8-1.5 of the Kaua`i
County Code 1987, as amended, and which is subject to the
requirements on the non-conforming structures and/or use
provisions of the Comprehensive Zoning Ordinance. [Further, no
after-the-fact permit shall approve an expansion of any
non-conforming structure or intensify a non-conforming use beyond
what existed on April 15, 2018.]
2. Any property, land, development, buildings, structures, or uses,
including non-conforming structures or uses, subject to the
requirements of Chapter 15, Article 1 (relating to Flood Plain
Management), the Special Management Area (SMA), or property
that is subject to Shoreline Setback.
3. Work done to any building, structure, or property if the cost of the
work would be fifty percent (50%) or more of the market value of the
replacement cost of the building, structure, or property, or would
involve fifty percent (50%) or more of any building, structure,
improvement of property, as determined by building and flood
program officials as it existed on April 15, 2018.
4. Buildings, structures, or improvements that are on the national or
State of Hawai`i Register of Historic Places, or fall under the
definition of Chapter 6E, Hawai`i Revised Statutes.
5. Repairs to any building, structure, improvement, or property that
are in violation of those regulations in SECTION 2 based upon the
photographic and written record [complied in the pre-registration
process.] compiled in the qualification process.
6. Reroofing repairs to commercial buildings and any reroofing work
where the roof sheathing is exposed since it may be subjected to
compliance with the 2009 International Energy Conservation
Code (IECC).
7. Any Executive Orders and State and Federal law, rules, regulations,
or requirements, including those required of the Federal Emergency
Management Agency."
(Material to be deleted is bracketed. New material to be added is underscored.)
2