HomeMy WebLinkAbout08/22/2018 Council minutes COUNCIL MEETING
AUGUST 22, 2018
The 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, August 22, 2018 at 8:30 a.m., after which the following
Members answered the call of the roll:
Honorable Arthur Brun (present at 8:40 a.m.)
Honorable Mason K. Chock
Honorable Ross Kagawa
Honorable Arryl Kaneshiro
Honorable Derek S.K. Kawakami (present at 9:06 a.m.)
Honorable JoAnn A. Yukimura (present at 8:35 a.m.)
Honorable Mel Rapozo
APPROVAL OF AGENDA.
Councilmember Chock moved for approval of the agenda, as circulated,
seconded by Councilmember Kaneshiro, and carried by a vote of 4:0:3
(Councilmembers Brun, Kawakami, and Yukimura were excused).
Council Chair Rapozo: Motion carried. Next item.
MINUTES of the following meetings of the Council:
July 11, 2018 Council Meeting
August 8, 2018 Public Hearing re: Bill No. 2715 and Bill No. 2716
Councilmember Kaneshiro moved to approve the Minutes as circulated,
seconded by Councilmember Kagawa.
Council Chair Rapozo: Is there any discussion or public testimony?
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 approve the Minutes as circulated was then put, and carried by
a vote of 4:0:3 (Councilmembers Brun, Kawakami, and Yukimura were
excused).
Council Chair Rapozo: Motion carried. Next item, please.
COUNCIL MEETING 2 AUGUST 22, 2018
CONSENT CALENDAR:
C 2018-175 Communication (07/13/2018) from the Mayor, transmitting for
Council consideration and confirmation, Mayoral appointee Elesther Calipjo to the
Planning Commission (Business) — Partial Term ending 12/31/2019.
C 2018-176 Communication (07/26/2018) from Councilmember Chock,
transmitting for Council consideration and confirmation, Council appointee Aubrey
Summers to the Kaua`i Historic Preservation Review Commission (Architecture) —
Term ending 12/31/2020.
Councilmember Chock moved to receive C 2018-175 and C 2018-176 for the
record, seconded by Councilmember Kagawa.
Council Chair Rapozo: Is there any discussion or public testimony?
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 receive C 2018-175 and C 2018-176 for the record was then put,
and carried by a vote of 4:0:3 (Councilmembers Brun, Kawakami, and
Yukimura were excused).
Council Chair Rapozo: Motion carried. Next item, please.
COMMUNICATIONS:
C 2018-177 Communication (06/27/2018) from the Deputy Chief of Police,
requesting Council approval, to accept funding from the Enhanced 911 (E-911) Board,
in the amount up to $312,000.00, which will be used for the remodel of the Kaua`i
Public Safety Answering Point (PSAP), as there have been tremendous advancements
in ergonomics, technical functionality, and equipment for the Emergency Services
Dispatchers: Councilmember Kaneshiro moved to approve C 2018-177, seconded by
Councilmember Chock.
Council Chair Rapozo: Is there any discussion or public testimony?
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 approve C 2018-177 was then put, and carried by a vote of 4:0:3
(Councilmembers Brun, Kawakami, and Yukimura were excused).
Council Chair Rapozo: Motion carried. Next item, please.
COUNCIL MEETING 3 AUGUST 22, 2018
C 2018-178 Communication (07/09/2018) from the Chief of Police, requesting
Council approval of the indemnification provision in the Intergovernmental License
Agreement for Law Enforcement Participants of the Sexual Assault Management
System (SAMS 1.0), by and between the County of Kaua`i and the City of Portland,
which will allow comprehensive tracking of sexual assault cases and evidence,
allowing the Kaua`i Police Department to better serve victims of sexual assault,
increase efficiency of multi-agency case collaboration and insure compliance with new
sexual assault legislation.
• Intergovernmental License Agreement for Law Enforcement
Participants of the Sexual Assault Management System (SAMS 1.0)
Councilmember Chock moved to approve C 2018-178, seconded by
Councilmember Kagawa.
Council Chair Rapozo: Is there any discussion or public testimony?
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 approve C 2018-178 was then put, and carried by a vote of 4:0:3
(Councilmembers Brun, Kawakami, and Yukimura were excused).
Council Chair Rapozo: Thank you very much. Next item, please.
C 2018-179 Communication (07/11/2018) from Michael A. Dahilig, Clerk of
the Planning Commission, transmitting the Planning Commission's recommendation
to amend Chapter 8, Kaua`i County Code 1987, as amended, to distinguish two (2)
Agriculture Districts, encourage agriculture production, and to discourage the
development of "Gentlemen Estates" on lands suitable for long-term agriculture
production: Councilmember Chock moved to receive C 2018-179 for the record,
seconded by Councilmember Kaneshiro.
Council Chair Rapozo: Is there any discussion or public testimony?
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 receive C 2018-179 for the record was then put, and carried by
a vote of 4:0:3 (Councilmembers Brun, Kawakami, and Yukimura were
excused).
Council Chair Rapozo: Motion carried. Next item, please.
COUNCIL MEETING 4 AUGUST 22, 2018
C 2018-180 Communication (07/25/2018) from the Fire Chief, requesting
Council approval, to accept a donation of the following items from the Kaua`i
Lifeguard Association (KLA):
• One (1) solar public announcement system, valued at $6,510.00,
which will be utilized by the Ocean Safety Bureau to outfit the
Pinetrees Tower in Hanalei;
• Eight (8) Bennett surfboards, valued at $10,068.00, which will be
used in the Junior Lifeguard program for educational and
promotional purposes, and for documentation of lifeguard training
exercises; and
• One (1) Canon camera, Model #1053585, valued at $1,249.99, which
will be used in the Junior Lifeguard program for educational and
promotional purposes, and for documentation of lifeguard training
exercises.
Councilmember Kagawa moved to approve C 2018-180 with thank-you letter
to follow, seconded by Councilmember Kaneshiro.
Council Chair Rapozo: Is there any discussion or public testimony?
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:
Council Chair Rapozo: Councilmember Kagawa.
Councilmember Kagawa: I just want to, again, thank Monty Downs and
the Kaua`i Lifeguard Association (KLA). We get a lot of things donated for the
lifeguards due to KLA and their efforts, and that is free money coming to the
taxpayers and actually going to saving and rescuing lives. I just want to thank KLA
and I appreciate all of their efforts.
Council Chair Rapozo: Thank you very much. Is there any further
discussion?
The motion to approve C 2018-180 with thank-you letter to follow was then
put, and carried by a vote of 4:0:3 (Councilmembers Brun, Kawakami, and
Yukimura were excused).
Council Chair Rapozo: Next item, please.
C 2018-181 Communication (07/26/2018) from the Director of Economic
Development, requesting Council approval to apply for, receive, and expend funds in
the amount of $51,313.00, from the Hawai`i Tourism Authority's (HTA) Kukulu Ola
Program, and to indemnify HTA, for the Ka Leo 0 Na Kupa-Ni`ihau Language
Preservation Program: Councilmember Chock moved to approve C 2018-181, seconded
by Councilmember Kagawa.
COUNCIL MEETING 5 AUGUST 22, 2018
Council Chair Rapozo: Is there any discussion or public testimony?
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 approve C 2018-181 was then put, and carried by a vote of 4:0:3
(Councilmembers Brun, Kawakami, and Yukimura were excused).
Council Chair Rapozo: Motion carried. Next item, please.
C 2018-182 Communication (07/31/2018) from the Executive on
Transportation, requesting Council approval to apply for, receive, and expend Federal
Transit Administration (FTA) Section 5311 Non Urbanized Area Formula Program
grant funds, in the amount of $1,068,000.00, and FTA Section 5339 Non Urbanized
Area Formula Program grant funds in the amount of $900,000.00, and to indemnify
the FTA. The Section 5311 grant will fund fifty percent (50%) of bus driver wages,
hourly pay, and fringe benefit line items, and the Section 5339 grant will fund eighty
percent (80%) of vehicle purchases and miscellaneous transit facility expenses.
(Councilmember Yukimura was noted as present.)
Councilmember Chock moved to approve C 2018-182, seconded by
Councilmember Kaneshiro.
Council Chair Rapozo: Is there any discussion or public testimony?
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:
Councilmember Yukimura: Do we have the Transportation Agency?
Council Chair Rapozo: We have no one here. This is all we have. If
you want, we can move this over to the Committee for next week. I think it is one of
those recurring grants that funds the salaries and equipment, but if you have specific
questions.
Councilmember Yukimura: It is a major support for operating moneys, so
I just wanted to see how it fit into the whole picture.
Council Chair Rapozo: Okay. If I can entertain a motion to refer this
to the Public Safety & Transportation Committee, then we can have the discussion
next week. The reason is, and you were not here earlier, but I am concerned about
getting our staff out of here today so that they can go and take care of their families
and not spend unnecessary time. The Transportation Agency is applying for the
grant, they are not here, and that is not for me to go beg them to be here. If they
COUNCIL MEETING 6 AUGUST 22, 2018
want the money and the approval, they should be here. They are not. I think I have
said that more than enough times throughout these meetings. When the
Departments are on the agenda, Wednesdays, one (1) day a week, is Council time. If
they are not here and it is not important, then we will just refer it to the Committee.
Councilmember Yukimura: Well, to give them the benefit of the doubt, I
think some of them are at the Emergency Operating Center (EOC) already, so it is
extraordinary.
Council Chair Rapozo: The world does not end, Councilmember
Yukimura. You know that. They have multiple people in every Department that
could be here today. It just comes down to whether or not they wanted to be here for
whatever reason. Let us just move it to the Committee so we can have the complete
discussion and they can have a presentation prepared. I do not want to have them
come over here to tell us that they are not ready.
Councilmember Yukimura: Alright. Thank you.
Council Chair Rapozo: I am ready to vote on this today. This is just
a simple grant application, but I will leave it up to you folks.
Councilmember Chock: Councilmember Yukimura, do you need to ask
questions, because I think we are ready to vote?
Councilmember Yukimura: Okay, and there is no way to ask them to come
later on?
Council Chair Rapozo: I do not want to prolong today because, again,
it is not time-sensitive. I want to get our staff out of here today.
Councilmember Kaneshiro: I am actually ready to vote on it today. The
grant is for expenses that they pay for anyways. There is a County amount on it, but
that is an amount that they would be paying in salaries and purchasing of buses
anyway. I am okay with it.
Councilmember Yukimura: I agree. We can go ahead.
Council Chair Rapozo: Thank you.
Councilmember Yukimura: But I...
Council Chair Rapozo: Go ahead, Councilmember Yukimura.
Councilmember Yukimura: I hope we are not rushing through real
substantive things.
Council Chair Rapozo: I am giving the Council an opportunity. I am
not trying to rush it. I am just saying that I am ready. I read the application. It is
in the agenda. The application is very specific to what it is going to be used for. I
COUNCIL MEETING 7 AUGUST 22, 2018
have read it. I am comfortable. I am one of the biggest critics of the Transportation
Agency, so I would say, Councilmember Yukimura, if you have my support, you
probably should move forward if you have the votes.
Councilmember Yukimura: Given the other issues on the agenda, I think
I will let this go.
Council Chair Rapozo: Thank you.
Councilmember Yukimura: Thank you.
Council Chair Rapozo: Councilmember Kaneshiro.
Councilmember Kaneshiro: The grant will fund fifty percent (50%) of bus
driver wages, hourly pay, fringe benefit line items, and eighty percent (80%) of vehicle
purchases. It is all things that they do in their regular day-to-day operations. We
are just getting grant money for things that they need to pay for anyway.
Council Chair Rapozo: Again, in the agenda, there is the application
that goes down to the vehicle number that is being replaced. It is very complete, and
I commend the Transportation Agency for a very thorough application. I am satisfied.
With that, the motion was to approve.
The motion to approve C 2018-182 was then put, and carried by a vote of 5:0:2
(Councilmembers Brun and Kawakami were excused).
Council Chair Rapozo: Motion carried. Next item, please.
C 2018-183 Communication (08/06/2018) from the Fire Chief, requesting
Council approval to accept, receive, and expend Federal funds, in the amount of
$63,025.00, from the Federal Emergency Management Agency, Assistance to
Firefighters Grants (AFG), to be used by the Kaua`i Fire Department (KFD) to
purchase a Command Certification Program (CPC) administered through a
state-of-the-art Command Training Center (CTC) for Command & Control Training;
and to purchase eight (8) laptop computers, eight (8) wireless mice, instructor and
simulator software, twelve (12) two-way radios, twelve (12) headsets, three (3)
Teledyne boxes, and subscription services for each KFD officer, which are all
necessary to run the simulations: Councilmember Kagawa moved to approve
C 2018-183, seconded by Councilmember Chock.
Council Chair Rapozo: Is there any discussion or public testimony?
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 approve C 2018-183 was then put, and carried by a vote of 5:0:2
(Councilmembers Brun and Kawakami were excused).
COUNCIL MEETING 8 AUGUST 22, 2018
Council Chair Rapozo: Motion carried. Next item, please.
C 2018-184 Communication (08/13/2018) from Councilmember Kawakami,
transmitting for Council consideration the following measures for inclusion in the
2019 Hawai`i State Association of Counties (HSAC) Legislative Package and the 2019
County of Kaua`i Legislative Package:
• A Bill for An Act Relating to Tort Liability, to make an exemption
from tort liability for the State and Counties arising from lifeguard
services, except for gross negligence or wanton acts or omissions.
• A Bill for An Act Relating to Taxation, to provide a taxpayer who
hires an individual with a disability a nonrefundable tax credit for
the six-month period after the individual is initially hired by the
taxpayer.
• A Bill for An Act Relating to Taxation, to provide a taxpayer who
hires an elderly individual a nonrefundable tax credit for the
six-month period after the individual is initially hired by the
taxpayer.
• A Bill for An Act Relating to Zoning, to allow Counties with
populations less than one hundred thousand to enact a zoning
ordinance to amortize or phase out nonconforming single-family
transient vacation rental units over a reasonable period of time.
• A Bill for An Act Relating to Transient Accommodations, to proscribe
licensing requirements and enforcement provisions for transient
vacation rentals under the department of commerce and consumer
affairs, which takes effect on January 1, 2020.
(Councilmember Brun was noted as present.)
Councilmember Chock moved to approve C 2018-184, seconded by
Councilmember Kaneshiro.
Council Chair Rapozo: Is everyone comfortable with this package as
well? I was going to suggest we move it to the Committee and have Councilmember
Kawakami explain these Bills so we can have the discussion.
Councilmember Kagawa: I have a question.
Council Chair Rapozo: Yes.
Councilmember Kagawa: Do we have time?
Council Chair Rapozo: Yes, I just asked Aida. If we refer it to the
Committee and we get it to the next Council agenda, we will meet the deadline.
Councilmember Kagawa: I think going to Committee would be a good
idea, and the public can see what each item is about as our Hawai`i State Association
of Counties (HSAC) Vice Chair can go over each item and explain what HSAC is
endorsing.
COUNCIL MEETING 9 AUGUST 22, 2018
Council Chair Rapozo: Yes. I think there are some important issues
on here and I would like to have some discussion. Councilmember Yukimura.
Councilmember Yukimura: This says that these measures, if approved,
would be included in the HSAC Legislative Package and the 2019 County of Kaua`i
Legislative Package, which means it is a package approved by both the Mayor and
the Council?
Council Chair Rapozo: The County package?
Councilmember Yukimura: Right.
Council Chair Rapozo: Correct. We would approve it here and then
the Mayor would also have to approve the same items.
Councilmember Yukimura: Can we get the Mayor involved in the
discussion so that we know where he stands?
Council Chair Rapozo: Yes, and that is why—because I am not sure
if Councilmember Kawakami reached out to the Administration so we know whether
or not. Obviously, if we cannot get the Administration's support on any of these items,
there is no sense approving it for the County package.
Councilmember Yukimura: Yes, it cannot go into the County package. It
can still be a Council package, right?
Council Chair Rapozo: Correct, and it could be a Mayor's package
item if we do not agree.
Councilmember Yukimura: Right. It would be good to get the Mayor
involved in the discussion so that we do not just unilaterally act, then send it to him,
and then he says, "I do not support it."
Council Chair Rapozo: Okay. Staff, I am not sure if it was already
done, but if not, can we send the package over to the Administration for their
comments if it has not been done already? I would assume the Mayor is going to
agree with these.
Councilmember Yukimura: Well, I have a question about the proposal to
"proscribe licensing requirements and enforcement provisions for transient vacation
rentals under the department of commerce and consumer affairs." I am not clear
what the intent of this is. Is it to substitute regulation of Transient Vacation
Rentals (TVRs) that the County is doing, or is it just dealing with Uber, registration,
and taxation?
Council Chair Rapozo: Aida just said that all of these Bills are repeat
bills from the last session.
COUNCIL MEETING 10 AUGUST 22, 2018
Councilmember Yukimura: Well if they are, then everyone knows what
they stand for? I do not.
Council Chair Rapozo: That is why I suggested we move it to the
Committee, because I do not know the answers. Councilmember Kawakami would
know which County introduced each one and their reasons for it. I just have not been
going to the meetings, so I do not know. Councilmember Kagawa.
Councilmember Kagawa: Being the alternate representative for HSAC,
you are right about a lot of it. We do not get fully educated or engulfed in it because
on the flip side, we kind of know that the Legislature is not going to approve it. We
know that a lot of the measures that we do put on are a "homerun swing," but the
chances are not likely that it will get approved, so it is kind of a catch. We are asking
and hoping a lot times for legislation, but we kind of know the answer, which is kind
of sad, but true.
Council Chair Rapozo: Councilmember Chock.
Councilmember Chock: I think I am familiar with all of them except
this last one. That would be the only one that I have some request for review on, but
I think the rest have been introduced previously multiple times. I am happy to take
it to Committee, Council Chair Rapozo.
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Yukimura: Well, one of the reasons why we keep putting
this in our package and then nothing happens is because we often do not do our
homework to understand the cost implications and all of those things that the
Legislature has to look at in approving it or not. It is just kind of a meaningless act
of looking good that we are advocating this, but we do not follow-up, lobby, nor
address the underlying concerns of the Bill. So, it is just every year—like the
amortization of vacation rentals. Actually, that is a more recent one. We have had
them on the agenda maybe for three (3) or four (4) times. The transfer of fines and
forfeitures, which is the next one, which is support, I think we have had it in our
package for at least ten (10) years, maybe more, and nothing happens. I think we
need to look at why nothing happens. It is because we do not go and lobby in a really
concerted way and talk to them like we did with the excise tax, which took three (3)
tries. Do you know what I mean? I have lobbied on the excise tax, and I know you
have to go and talk to them, you have to answer their questions, and they have some
legitimate concerns. For example, the one about giving tax credits to the taxpayer
who hires an individual with disabilities, what are the cost implications? We do not
know what the cost implications are. If they are really big, it is hard to advocate. It
is nice to put it on the agenda, but it is hard to advocate before the Legislature
because then everyone is going to come in and ask for a tax credit for all kinds of good
things and then the overall budget will be affected. We have to look at that, but we
do not even know, at least I have not seen any information and I asked this question
the last time; what are the cost implications of what we are proposing? We do not
even know what the cost implications are. We have to be able to answer the question
COUNCIL MEETING 11 AUGUST 22, 2018
of, "Why are you advocating this if it is going to cost so much and it is going to set a
precedence?"
Council Chair Rapozo: Councilmember Kagawa.
Councilmember Kagawa: I guess in the six (6) years that I have been on
this Council, my observation at the Legislature has basically been that if we are
asking for something that is going to cost more or is going to ask the State for more
responsibility over some issue that they already control, their answer has been "no."
It is sad, but true. To say that the Legislature vets their bills or items more than this
Council is clearly giving them too much credit. They do not even look at a lot of bills.
They do not even hold any meeting on it. They just kill it in privacy. I think let us
not give them too much credit. We do need to work better together, but I think to say
that the Legislature has been open to our suggestions at the County-level is simply
not true in my estimation. Thank you.
Council Chair Rapozo: And I would agree with that statement. I
have been up there quite often. We had a concerted effort to the Transient
Accommodations Tax (TAT)—statewide Mayors, Councils, HSAC, Hawai`i County of
Mayors (HCOM), individual Councils, and individual Council Chairs. I have never
seen any kind of effort like we put for the TAT, and nothing happened. We got
screwed. I agree with you, Councilmember Yukimura, to a certain extent. But at the
end of the day, I think what Councilmember Kagawa is saying is if it involves moneys
that the State is going to lose, you can forget about it. I will not discuss C 2018-185
until we get there, but responsible legislation would be to determine the fiscal impact,
obviously. We would need to know that number and to expect the State to participate
in the discussion, but often times, it is not that easy to get. How do you put an
amount? How many employers are going to go out and hire people with disabilities?
We just do not know that number. How many of them have them onboard now? Some
of these numbers are very difficult to get, and I think that is the dilemma that a lot
of Legislators are in. What is the impact going to be? Go ahead.
Councilmember Yukimura: Council Chair Rapozo, I think as a matter of
practice, it would be good when we have bills proposed for our legislative package, to
have a briefing paper that tells us what this bill proposes to do. For example, the Bill
regarding licensing and enforcement provisions for transient vacation rentals, that it
is proposing to put under the Department of Commerce and Consumer Affairs, to
have a briefing paper that tells us what the Bill proposes to do, what its cost
implications are to the extent that we are able to determine this—at the Legislature,
they are good at doing that. There is a way even though it is an estimate. Then,
other issues related to the subject matter so that we can vote on the package item in
an informed way.
Council Chair Rapozo: Councilmember Kagawa.
Councilmember Kagawa: I agree. For the item that she is picking out,
if it is a statewide problem, it is better that the State deals holistically with this issue
as far as online bed and breakfasts (B&Bs) and Airbnbs. To have the State have
one (1) rule for the whole State of course would be better, but again, that is asking
COUNCIL MEETING 12 AUGUST 22, 2018
them for more responsibility and the State is famous for, "Yes, we will take the
responsibility where we collect more fees," but when it comes to actual enforcement,
I do not know whether they will be performing better than the Counties. I think we
do need more answers and I think Planning probably can add to some of what this
Bill is asking. I think maybe the Planning Directors all have had some say on this
Bill, so let us push it to next week. I do not think we should be discussing this today
in too much detail, as Committee would be the perfect place.
Council Chair Rapozo: Go ahead. I am sorry, Councilmember
Kaneshiro.
Councilmember Kaneshiro: But we do have the Bill and the description of
the Bill. I know in the past when the disabilities one came up, Councilmember
Kawakami explained that when bills go to the Legislature, they like to have the
number blank because then it gives them the flexibility to adjust it the way they want
and discuss it. Again, I do not know how it works there, but I know Councilmember
Kawakami did talk about it in the last meeting about leaving the amounts blank as
far as dollar-wise goes.
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Yukimura: In order for the State Legislature to fill in the
blank, they have to have the information I am talking about; what is the estimate
number of taxpayers who take advantage of this? Then, they would know where to
set it so they could know what the cost implications are. To just sign a blank check
does not make sense either as a Council that is advocating it or as a Legislature that
is passing it. So, what I am talking about is a practice of having a briefing paper with
every proposed legislation. If HSAC adapted that practice, then when bills come to
us from other Counties, we would have a better idea of what is being proposed, what
the underlying intention was, what the implications are, and it would also allow us
to make a better decision. I am talking about a practice that we might establish first
here as a model and then when we can see how well it works, maybe we can propose
this to HSAC.
Council Chair Rapozo: Sounds good. Thank you. With that, is there
any other discussion? I will just need a motion to refer to the September 5, 2018
Economic Development & Intergovernmental Relations (EDIR) Committee.
Councilmember Kaneshiro moved to refer C 2018-184 to the September 5, 2018
Economic Development & Intergovernmental Relations Committee Meeting,
seconded by Councilmember Brun.
Council Chair Rapozo: Is there any further discussion?
September 5th is my birthday by the way, just to let you folks know. Nothing big.
Councilmember Yukimura: He is going to treat us to lunch.
COUNCIL MEETING 13 AUGUST 22, 2018
The motion to refer C 2018-184 to the September 5, 2018 Economic
Development & Intergovernmental Relations Committee Meeting was then
put, and carried by a vote of 6:0:1 (Councilmember Kawakami was excused).
Council Chair Rapozo: Thank you very much. Next item, please.
C 2018-185 Communication (08/13/2018) from Council Chair Rapozo,
transmitting for Council consideration the following measure for inclusion in the 2019
Hawai`i State Association of Counties (HSAC) Legislative Package and the 2019
County of Kaua`i Legislative Package:
• A Bill for An Act Relating to Unadjudicated Traffic Fines, to transfer
certain fines and forfeitures collected for uncontested traffic
infractions to the counties.
Councilmember Yukimura: Council Chair Rapozo, do you want to refer it
Committee, too?
Council Chair Rapozo: Yes. Let us just do it all so we can have all of
the discussions.
Councilmember Yukimura: If I make the motion now, then we still can
have a discussion?
Council Chair Rapozo: Yes.
Councilmember Yukimura: Okay.
Councilmember Yukimura moved to refer C 2018-185 to the September 5, 2018
Economic Development & Intergovernmental Relations Committee Meeting,
seconded by Councilmember Chock.
Council Chair Rapozo: Thank you.
Councilmember Yukimura: Council Chair Rapozo.
Council Chair Rapozo: Yes, go ahead.
Councilmember Yukimura: I know we have addressed this many years
and it is an important one, can you tell me what the figure is that we would get?
Council Chair Rapozo: Does anyone remember what it was? I
honestly do not remember. I will have it next week.
Councilmember Yukimura: Well, we have time.
Council Chair Rapozo: You are right, I do not know if it is ten (10),
but I know we have had it on several packages. Joe Souki was one of the roadblocks
through all of this. He is a good friend of mine, but he gave me a very historical
COUNCIL MEETING 14 AUGUST 22, 2018
description or reason why other Legislators believed that it is their money. The
bottom-line is this, it is like déjà vu because we say this every year. The County police
officer gives a ticket, the County prosecutor files the complaint, the violator writes a
check and puts the money in an envelope, and mails it in or they take it to the
courthouse, and then it is done. The State, except for opening the envelope and
depositing the check, has no role in this other than to collect the money. It is our
police officer that goes out. We have heard this story every year, and we are not
asking for more money. We are asking for a percentage. We are asking for a small
cut of the uncontested fines, uncontested, expect they keep the airport, all of the State
properties, and all of the violations like parking here at the parking lot would not be
subject to the percentage. This is what our officers are doing out on the highways
and that people are not fighting or contesting. It is all County work and we are just
asking for a very small percentage of that. Councilmember Kagawa.
Councilmember Kagawa: The form with the request for settlement or
payment gets mailed from the Courts, right? The form gets mailed out by the Courts,
right?
Council Chair Rapozo: No, the ticket. The person gets a ticket.
Councilmember Kagawa: Yes.
Council Chair Rapozo: When you get a ticket, on the back...
Councilmember Kagawa: Oh, you can settle it?
Council Chair Rapozo: Yes.
Councilmember Kagawa: And then you mail it to the Courts?
Council Chair Rapozo: Correct.
Councilmember Kagawa: So they have a play because they have to open
the envelope.
Council Chair Rapozo: Well, that is why I said aside from opening the
envelope and depositing the check, they have no role. It is our officers. The
frustration is, and I would say this, the majority of the people on the road think that
the Counties get a percentage or the fines from the officers' tickets. There is a huge
problem with the officers out there on the street because people think that they are
just writing tickets because they are raising money for the County, which is simply
not true. Others will argue that this will give them an incentive to go and give more
tickets. They are not going to do that. They are busy enough. They are not going to
go out and give tickets because it is going to create more revenue for the County. This
is really to offset the expenses of our police departments to go out and do that. That
is all it is. Councilmember Yukimura.
Councilmember Yukimura: Council Chair Rapozo, you make compelling
arguments, so I think if that is in a briefing statement and it goes to the other
COUNCIL MEETING 15 AUGUST 22, 2018
Counties—I know they have not objected to it, but wherever the item goes and it has
the briefing statement, I think it makes the information and the reasons more
available to the public and to everyone. It gives us more chance to get it passed. I
would like to know not just the fines that would come back to the County of Kaua`i,
but to Maui County, Hawai`i County, and O`ahu to see what we are talking about.
Council Chair Rapozo: I know we have that, right? I know we had
the response a while back. I will go dig it up.
Councilmember Yukimura: Okay. Thank you.
Council Chair Rapozo: Councilmember Kagawa.
Councilmember Kagawa: I just want to reiterate my first statement,
that for the past six (6) years that I have been on this Council, every request that we
have made to ask for more funding or what have you, the answer from the Legislature
has been "no," and I hope that changes.
Council Chair Rapozo: Well, we will have a new Legislature
somewhat. We will have new people in there this year. We have had many versions
of this proposal. We have had where we had the blank, we have had where we had a
percentage, and we tried all kinds of ways to do it. So, we will see how it goes. I think
it is something that the entire State, all of the Counties, have to really lobby hard for,
but it is going to be difficult. We have to get our Delegation behind us. That is the
first challenge, getting our Delegation behind it. We all know how that goes. Is there
any further discussion or public testimony?
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 refer C 2018-185 to the September 5, 2018 Economic
Development & Intergovernmental Relations Committee Meeting was then
put, and carried by a vote of 6:0:1 (Councilmember Kawakami was excused).
Council Chair Rapozo: Motion carried. Next item, please.
C 2018-186 Communication (08/13/2018) from Councilmember Kawakami and
Councilmember Kaneshiro, transmitting for Council consideration, A Bill For An
Ordinance Amending Chapter 23, Kaua`i County Code 1987, As Amended, Relating
to the Sunshine Market, to expand the list of agricultural products allowed to be sold
at Sunshine Markets to include meat, shellfish, eggs, and whole fish: Councilmember
Kagawa moved to receive C 2018-186 for the record, seconded by Councilmember
Brun.
Council Chair Rapozo: Is there any discussion or public testimony?
There being no objections, the rules were suspended to take public testimony.
COUNCIL MEETING 16 AUGUST 22, 2018
There being no one present to provide testimony, the meeting was called back
to order, and proceeded as follows:
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Yukimura: Why are we receiving it?
Council Chair Rapozo: This is the Communication.
Councilmember Kagawa: It is a Communication for the Bill.
Council Chair Rapozo: The Bill will come up later.
Councilmember Yukimura: Oh, okay. I thought I saw some indication
that we would be deferring this. Is that true?
Council Chair Rapozo: Oh, yes. There is a note to defer on the
agenda, but that is the Bill. This is just the Communication.
Councilmember Yukimura: Right. Can we discuss the substance of the
substance of the Bill? I think the intention is a good one, but as I understand it, there
are a lot of complications when you start selling fresh fish and things like that
because you need to have certain control and regulations. I figured that with the Bill
being introduced, that these things have been worked out.
Council Chair Rapozo: Does anyone have an answer? I just see the
deferral. I would assume that we are going to have the discussion.
Councilmember Yukimura: When the Bill comes up?
Council Chair Rapozo: Or we can have it now. It does not matter.
Councilmember Yukimura: It is the Office of Economic
Development (OED), because they are the ones that administer the Sunshine
Markets, right, and this is to allow meat, shellfish, eggs, and whole fish to be sold at
the Sunshine Market?
Council Chair Rapozo: I have a lot of questions as well. But again...
Councilmember Kaneshiro: If the motion is to defer, we should just defer
it and get our questions ready. Then when it comes back up, we ask the questions
then. I do not see them asking us to defer and we ask them a whole bunch of questions
on it.
Council Chair Rapozo: Is the request to defer coming from the
Administration or is it from the introducers?
Councilmember Kaneshiro: It was from the Administration.
COUNCIL MEETING 17 AUGUST 22, 2018
Council Chair Rapozo: Oh, okay. I would suggest that we—did they
explain why? What was the reason for the request for the deferral?
SCOTT K. SATO, Deputy County Clerk: They wanted to prepare possible
amendments.
Councilmember Yukimura: They are preparing amendments?
Mr. Sato: Possible.
Councilmember Yukimura: Possible.
Council Chair Rapozo: Okay. Councilmember Kagawa.
Councilmember Kagawa: I understand some of the concerns about what
we are up against, but if you look back at history, this is Kaua`i. We have people
selling akule, ahi, and aku on the road. Aku does not really have a long shelf life, but
we have it. We have people selling Sugarloaf Pineapple in Kapa'a and tamales.
Councilmember Yukimura: Coconuts.
Councilmember Kagawa: We have a lot of food that has historically
been sold on the side of the road, and I admit that if it is illegal, I am a regular
customer. I think for a rural community, to have that, it has already been done. The
County should support having that so that people who are not comfortable stopping
on the side of the road, they can have the farmers market to stop at. It seems to make
sense. When you talk to the local cattle industry and other livestock, they talk about
how it is frustrating because you have Costco selling this beautiful looking rib eye
and frankly, their meat is not going to stack up. But when you eat it, local people
know that the taste is better. It is different. I think there is a market for it and I
think the County's farmers market would be a good place. Now, whether we can jump
over all of these hurdles to make sure that we do not jump into lawsuits is good,
because we are the ones with the deep pocket, right? Government. We need to be a
little more careful than the person parking on the side of the road and opening up his
cooler. On face-value, I thank Councilmember Kaneshiro and Councilmember
Kawakami for bringing this subject up because certainly, our cattle industry and
other livestock do not make much money when they have to send it overseas to the
mainland and get their product sold. I think whether or not it works, it is a good
"homerun swing" and try to take care of something because like I said, it has been
done for generations on the side of the road; smoked meat or whatever. Thank you.
(Councilmember Kawakami was noted as present.)
Council Chair Rapozo: Councilmember Brun.
Councilmember Brun: This was brought up. Someone came to see
me about this, so I called and it was already being worked on. Everyone knows that
I used to sell smoked meat on the side of the road. It is not a secret. I had an approved
kitchen. Everything was legitimate. It was legal, taxes, one million
COUNCIL MEETING 18 AUGUST 22, 2018
dollar ($1,000,000) insurance policy, and that is the same thing we have to look at
with these people. The people that are asking to sell meats are regular businesses. I
went to the Kilauea farmers market and there is someone there selling meat, but we
cannot do it at a County one. These are legitimate businesses and I think there is a
market for local meats at these Sunshine Markets. Not everyone—Councilmember
Kagawa brought it up. We go to Costco and buy our meat, but not everyone likes the
locally grown meat, but I think there is a really good business opportunity here at the
Sunshine Markets. I think this is a great opportunity. I am kind of shocked at all of
the questions and whatnot, but even the fishermen have licenses. They have licenses
to sell fish. Even the people on the side of the road. Those are legitimate businesses
trying to do it, trying to make it. I think this is a great opportunity and I think we
should put it on and have these people promote their businesses at the County
farmers markets. I was not aware that they could not sell meat at the County
Sunshine markets until someone called me and gave me an earful about it. That is
why we called and Mauna Kea was already working on it. I think it is a good
opportunity and I think we should look into it and get it done.
Council Chair Rapozo: Well, we are already allowing it on the side of
the roads. Like Councilmember Brun, he gets his smoked meat, gets a vendors
certificate, proof of insurance, and all of those things. So, it is okay for him to do it
on the side of road by Puhi, why not allow him to do it at the Sunshine Market?
Councilmember Brun: Yes.
Council Chair Rapozo: As long as those protections are in place,
really, we just have to protect the County from liability. I think we have to be aware
of the fish and so forth, but the administrative rules that the Office of Economic
Development promulgates is required by this Bill. They have to clear all of that up
because you treat fish and meat a little different than you treat a Sugarloaf
Pineapple. Obviously, you have to make sure this person has proper refrigeration
and all of that. That is for them to decide. My point is that we are already doing it
for some vendor on the side of the road. All we are asking is that they be allowed to
do it at the Sunshine Markets, which makes absolute sense.
Councilmember Brun: I think a lot of these people are already
inspected by the State and Federal governments. How many of those vegetable
farmers at the Sunshine Market is being inspected, especially now that we have the
rat lungworm disease that is going on. Do you know what I mean? I think this is
safer than a lot of the vegetables that we have there at the Sunshine Market. I am
just kind of confused why we did not let these people do it when they are legit
businesses. How many of these people are being inspected there with the vegetables?
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Brun: That could be really dirty. We do not know.
Thank you.
Council Chair Rapozo: Councilmember Yukimura.
COUNCIL MEETING 19 AUGUST 22, 2018
Councilmember Yukimura: I totally agree that these products should be
allowed to be sold at the Sunshine Market, but it is as you said, Council Chair Rapozo,
as long as all of these protections are in place and also as Councilmember Kagawa
said, we have huge liability if something goes wrong. So, the law needs to make clear
that these kinds of protections are required and the rules and regulations issued by
the Office of Economic Development, which administers our Sunshine Markets, needs
to tie that down because we have to distinguish between those who are legitimate,
have the protections, and have the proper process against those who do not. They
may apply for Sunshine Markets, too, so you just have to have the protections in
place. Until we do, I do not think we should be allowing it. So, that is the detail that
needs to be worked out.
Council Chair Rapozo: And that is exactly what this Bill does.
Councilmember Kaneshiro: Yes. This Bill is just catching up to the times.
This Bill will allow people to do it. It is same as the vegetables now. The Sunshine
Markets have all of these requirements that the vendors need to do. They check the
farm, make sure they are an actual farmer, and are not bringing produce in from
Costco or something like that. They have all of those rules. This just allows the
ranchers to get involved. They are going to create all of those rules. It is nothing
new. I believe Kukui`ula Market sells meat right now. I think Rancher's daughter
meat. They do it throughout the State. I am sure they do it in the United States also,
so I do not think it is a new concept. They cannot do it now because we do not have
this passed or we do not have this going through. Once we give them the ability to
do it, of course, they are going to work on these laws before they start getting people
to come and sell it at the Sunshine Market. It is a matter of us giving them the ability
to know that, yes, we want this to happen. I think it is a natural progression and it
should happen. But again, I think with them asking for the deferral, I think we
should just hold our questions and wait until it comes back up when they are here
and ready to talk about it.
Council Chair Rapozo: I would agree. Councilmember Kagawa and
then Councilmember Kawakami.
Councilmember Kagawa: I think the last point is that, for me, we are
solving this question because I am around a lot of fishermen and the question they
ask me is, "Can you folks help us with a solution because we work so hard to try to
catch fish and be sustainable,just even to break even to sustain our hobby? We catch
these two hundred (200) pound tunas and the best we can get is two dollars ($2) a
pound." When they go into any poke shop, they are selling at sixteen dollars ($16) a
pound. So they are saying, "Can you folks help, because I think if I am not mistaken,
we are doing all the work. We are taking all of the liabilities when we go out and fish
and all of the expense if we do not catch. We get two dollars ($2) a pound, while the
poke shop is going to sell it at sixteen dollars ($16) a pound. How can you help us
out?" To me, we can help. With the crowds that I see at the farmers markets, I do
not know who would not want to pay a lot less than sixteen dollars ($16) a pound.
Cut that in half. People know how to make their own poke and what have you. This
is really a direct solution to these fishermen and maybe we do not have to catch all of
these small fish and what have you. We can be more sustainable. We can throw
COUNCIL MEETING 20 AUGUST 22, 2018
them back because we are not struggling again because we have a solution to that
problem. I think this is a great solution right here and we should pursue it.
Council Chair Rapozo: Councilmember Kawakami.
Councilmember Kawakami: Thank you, Council Chair Rapozo. The
reason why we introduced this Bill is this is the next evolution of our great Sunshine
Markets. Previously, you were only allowed to sell raw produce and fruits, and we
changed that. We allowed value-added and this is the next evolution that is
supporting local agriculture. It is improving something that we currently have. If
you are worried about liability, read the Bill. On page 2, (d)(1), "Sign an
indemnification agreement developed by the County Attorney holding the County
harmless and releasing it from all liability." Maybe the County Attorney can come
up and verify that, but we go back and forth on liability and why we are so scared to
go and approve something that is very simple. I come from the grocery industry and
Councilmember Kaneshiro comes from the ranching industry, so we know these
industries well and the people have asked for it. They want these type of items in
our Sunshine Markets and I think it would be a great asset to the County. Mauna
Kea, does this language pretty much cover the liability side?
Council Chair Rapozo: We will have it on the discussion. I think it is
the same Bill that we used for the fruits, vegetables, and value-added. It is the same
Bill. We are adding this in, so I think the protections are there. My only question
was why the request for deferral? What is the Administration—it is coming from the
Administration, not from the Council. The Council is ready to move, I think, but they
are asking for a deferral. I do not know why. I am just saying that we give them that
opportunity, but the discussion with us would have been helpful, in my opinion. If
the Administration is looking at amendments, why would the Administration not
want to have that discussion with the Council if we are going to discuss amendments
we do it together? Now, they will come up at some later time and then the Council is
going to have questions. To me, it would just make sense that we have the discussion
together as a County so that when amendments come across, it will incorporate
Council and the Administration. I am going to honor the request of the
Administration to defer. I still believe this discussion should be had and it does not
have to be in the Bill. It can be on a communication. It could be on an agenda item
in the Economic Development & Intergovernmental Relations Committee. But I
actually want this Bill. I want to see this thing pass as soon as possible because I
was just visualizing the old days and do you remember the old days when you heard
the little bell ringing in the street and it was the ice cream truck or the manapua
truck? Then, do you remember when the station wagons would pass and the trucks
with the people yelling, "Akule"? I do not know if any of you remember that. I do.
Everyone would run out in the streets and buy their akule. This is just an extension
of that, giving them a place that they do not have to worry about State tickets,
trespassing, and selling on private property or County property. This just provides
an area where these business people can sell their products. Would it not be great
that you can go to one place and buy your fresh Alaskan king crab? That was a joke.
Councilmember Yukimura.
COUNCIL MEETING 21 AUGUST 22, 2018
Councilmember Yukimura: I just wanted to ask the introducers of the
Bill, whether you been in discussion with the Office of Economic Development
because they are the ones who have to administer this? I see that the effective date
of the Bill is one hundred eighty (180) days, which is good, which is the same thing
we did when we added the value-added because they need time to get the regulations
in place and to let everyone know what they are. Have you worked with them then?
Councilmember Kawakami: Yes. The Office of Economic Development has
had this Bill and has known of the intent of the introduction of this Bill way in
advance of today's meeting.
Councilmember Yukimura: And have you had discussions with them?
Councilmember Kawakami: We had discussions about it and so I am
baffled as to the request for a deferral, but we will respect it, move it out two (2)
weeks, and the world will keep turning.
Council Chair Rapozo: Literally. Councilmember Brun.
Councilmember Brun: I was wondering if we should have them come
over, push this off until after something, and have them come over to ask them why?
I am ready to move forward and we can have all of the questions. We have been
discussing this for an hour already.
Council Chair Rapozo: I know.
Councilmember Brun: We might as well have them come here, ask
them the questions, and move forward with this.
Council Chair Rapozo: We have discussed this for an hour with
reasons why we should hold the discussion until the next one. It is killing me.
Councilmember Brun: Yes. So, should we have them come over and
move to the next item; have them come over, discuss it, and move forward?
Council Chair Rapozo: I just heard Councilmember Kawakami say
he is baffled with the deferral. I do not know. Councilmember Kaneshiro, do you
have any idea why?
Councilmember Kaneshiro: I am not sure why they wanted to defer, but I
know it is a Bill that will likely pass. But if they need a deferral, I figure we defer it,
it will come back up, and we will deal with it then. There is no sense in taking two (2)
hours to discuss a Bill that is just going to get deferred and come back up. It will
come back up.
Council Chair Rapozo: I do not want to pass it out, set the public
hearing, and then the changes are substantive that we have to redo it. Let us just
defer it. Two (2) more weeks is not going to hurt anyone. Rather than have them
come over and have another hour and a half discussion to defer, let us just defer it,
COUNCIL MEETING 22 AUGUST 22, 2018
have them come back in two (2) weeks, and we will discuss it then. Councilmember
Chock.
Councilmember Chock: I was going to ask, when fishermen sell their
fish on the side of the road, do they have to get a peddlers license? Is it a State license?
I was just curious about that. Does this mean that they would still have to go get
that license?
Councilmember Kagawa: I do not know the answers to the peddler
license, but I believe there are some that do not even have that.
Councilmember Chock: Oh. I was just curious.
Councilmember Kagawa: If you go historically, I think they just park
their truck on the side of the road, put the sign, and open the cooler.
Councilmember Chock: If we can get away from that...
Council Chair Rapozo: Councilmember Brun is a peddler license
holder.
Councilmember Brun: What happens with the fish is, if they are
selling it whole, they are good with what they have. If they cut it, then they have to
get a kitchen and everything else. So, a lot that you see on the side of the road are
selling whole fish like the akule and whatnot, that is all whole because once you do
that, you do not need it. But if you cut it up, then you need the whole kitchen,
inspection, and you need everything else. That is the thing with fish once you cut it.
Like smoked meat, I am not selling the whole pig. Do you know what I mean? I am
cutting it up, so I have to get the whole kitchen and everything else. That is the same
thing with fish. If not, they can just use their fishing license to sell it whole, but once
they have touch the fish, then they have to get the whole kitchen and everything else.
Council Chair Rapozo: That makes sense. Councilmember
Yukimura.
Councilmember Yukimura: Councilmember Brun's description of what is
needed makes you begin to realize that it is quite a bit complicated when you are
dealing with fresh fish or even raw meat.
(Councilmember Chock was noted as not present.)
Councilmember Yukimura: Because the Office of Economic Development
is going to be the one that administers it, it may be simple to those who are already
administering, but it is a new level of competency that is need by OED. Until
recently, the Sunshine Markets were monitored by volunteers. I think in recent
years, you now have a County employee who is regulating it, which is a good addition.
You can see how there is going to need to be some revving up in capacity.
Council Chair Rapozo: Go ahead.
COUNCIL MEETING 23 AUGUST 22, 2018
Councilmember Kaneshiro: I do not want to belabor this, but I have no
doubt that OED can handle this. They do not just open the Sunshine Market and
just say, "Anyone who wants to come today, just come and sell things." They
pre-approve vendors and if the vendors are doing something questionable, then they
go and double-check on the vendor, where they are getting their beef and where they
are doing it. I think they are more than capable of doing it. I think it is just a good
step. Again, I think they need this in order to be able to move forward with all of the
protocols they have, which should be available already because people do it around
the State and people already do it on Kaua`i. I think they are more than capable of
handling it. It is just a matter of putting a checklist together of the things that they
are going to require of these people, making sure they do it, get their approved vendor
list, and that is who gets to be at the Sunshine Markets.
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Yukimura: Well, it is that pre-approval process that they
will have to be doing that. If you have a lot of applications, they will have to go
through that vetting process.
Council Chair Rapozo: That is for them to do. We just enable the
legislation and they take care of all of that. I think the concept is great. It is long
overdue and I think that if they are asking for the deferral, we will grant the deferral.
I think if there was a Councilmember or Councilmembers that felt what they wanted
more time, that would be a little bit of a different story. I think we talked about merits
of moving it ahead. I think we need to pass this sooner than later this is what I am
trying to say. But this is just the Communication. Is there anyone in the audience
wishing to testify?
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:
Council Chair Rapozo: Seeing none, the motion is to receive.
The motion to receive C 2018-186 for the record was then put, and unanimously
carried (Pursuant to Rule No. 5(b) of the Rules of the Council of the County of
Kauai, Councilmember Chock was noted as silent (not present), but shall be
recorded as an affirmative for the motion).
Council Chair Rapozo: Motion carried. Next item, please.
LEGAL DOCUMENTS:
C 2018-187 Communication (07/30/2018) from the Acting County Engineer,
recommending Council approval of a Right-of-Entry Permit between the County of
Kaua`i and the State of Hawai`i, Department of Land and Natural Resources (DLNR)
and to indemnify the State DLNR, to allow for construction of the shared-use path
between Elsie H. Wilcox Elementary School, the Kaua`i War Memorial Convention
COUNCIL MEETING 24 AUGUST 22, 2018
Hall, and the Lihu`e Ball Park (Tax Map Key (TMK): (4) 3-6-003:021 & 22
(State-owned)).
• Right-of-Entry Permit (by letter dated April 5, 2018, addressed to
Douglas Haigh, Chief of the Building Division, signed by Suzanne D.
Case, Chairperson, Board of Land and Natural Resources
Commission on Water Resource Management)
(Councilmember Chock was noted as present.)
Councilmember Yukimura moved to approve C 2018-187, seconded by
Councilmember Kaneshiro.
Council Chair Rapozo: Is there any discussion or public testimony?
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 approve C 2018-187 was then put, and unanimously carried.
Council Chair Rapozo: Motion carried. Next item, please.
C 2018-188 Communication (08/10/2018) from the Acting County Engineer,
recommending Council approval of a Right-of-Entry Agreement between the County
of Kaua`i and the State of Hawai`i, Department of Transportation, on State lands
situated at Tax Map Key (TMK) (4) 1-8-008:004 (por.) and (4) 1-8-008:076, Hanapepe,
Kaua`i, Hawaii, to allow the County to install protective measures for the Salt Ponds
in Hanapepe and assist in preserving a clean environment for the cultural practice of
salt making.
• Right-of-Entry Agreement
Councilmember Kagawa moved to approve C 2018-188, seconded by
Councilmember Kaneshiro.
Council Chair Rapozo: Thank you. Go ahead, Councilmember
Yukimura.
Councilmember Yukimura: Is someone here to explain?
Council Chair Rapozo: I had expected someone to be here because—
well, I want someone from Public Works. I understand what this legal document
does, but what I want to know and I think we are just going to repost this as a new
item in the Committee, I want to know what the plan for Salt Pond is. This grants
us the approval so we can at least start in that direction. I do not have a problem
with this. I think this is something that we have to pass, but I want the discussion
to be a lot broader than just the legal document. I am going to ask that we probably
COUNCIL MEETING 25 AUGUST 22, 2018
post this and before I go on, everything is going to be dependent on this hurricane as
well. We do not know what is going to happen regarding future agendas. We will
post it in the Committee next week, let us do it in the Public Works / Parks &
Recreation Committee, and let us have the discussion. Oh, okay. September 5th
Committee Meeting. We will do it in the Public Works / Parks & Recreation
Committee. We will have a broader discussion on the Salt Pond plan because I think
that is what we have to work on. Councilmember Kagawa.
Councilmember Kagawa: I want to echo that idea. I think part of me
says maybe we should wait because I think should Parks come up with this elaborate
plan at this point as Mayor Carvalho is reaching the end of his term, how much of
that bold idea is really going to come to fruition, where as if we do not do anything,
just wait, and live with the problems that exist. So yes, let us put something in. It is
always nice to have a nice, elaborate plan that carries over because if it is a good plan,
then it will survival, right? We just had a complaint about the Kaua`i Humane
Society where they say there are drug addicts and whatnot living there. The thing
is, I think the Kaua`i Humane Society is tied into the Salt Pond Park, so let us have
a communication that discusses all of these things about the salt beds, the backroad,
as well as the frontage, and we can see what the plan is for Salt Pond. We can get
updates on the sewer line and everything from the current Administration as the next
Administration comes in to take over. I think it is a good idea. Let us put it on and
I accept having that in my Committee.
Council Chair Rapozo: I think it is important we identify all of the
issues—you know Councilmember Kagawa, you have seen the E-mails. I think many
of us have gotten the E-mails about what is going on out there. I think it is just time
we identify and define what the issues are and what plan is to resolve it. I think that
is important. Councilmember Chock.
Councilmember Chock: Thank you, Council Chair Rapozo. I, too,
agree looking at the bigger picture, holistically, about the future of this area is really
important. I know that there has been talks for many years. The specific reason for
the right-of-entry in this instance or for this request has to do with a series of rocks
that have been illegally put there in the way. I would just say that I support moving
it to the Committee to having that broader discussion, I also would like to see the
right-of-entry moved forward as soon as possible for the removal or movement of the
rocks prior to the big waves coming in for the season because I think that is what the
issue has been for them, that the sand has been depleted. If we can do both at the
same time, that is kind of where I am at.
Council Chair Rapozo: My suggestion is we pass the right-of-entry
today.
Councilmember Chock: Okay.
Council Chair Rapozo: I am not, for a second, trying to postpone this.
That is why I said this needs to be done today.
Councilmember Chock: Thank you.
COUNCIL MEETING 26 AUGUST 22, 2018
Council Chair Rapozo: We will repost a new item so we can have that
broader discussion. Councilmember Kawakami.
Councilmember Kawakami: Thank you, Council Chair Rapozo. From the
discussion that I have had with Public Works and also the salt makers, what they
want to see is part of what you said, getting that right-of-entry to move those boulders
and to really protect that area from vehicular access. People driving on the beach is
a type of behavior that everyone is not going to be happy with, but from what we
understand, it is impacting the salt makers and their ability to make that pa ahai
that we all enjoy. The other thing that they have been talking about is closing down
that road that goes right between the salt patches, because that is also contributing
to the detriment of that very special place of wahi pana. They have also asked that
the helicopter companies be respectful. We continue to hear complaints that they are
not willing to work together. I am not sure if this new company is willing to work
with us. The other discussion that I heard is that there is a possible stewardship
agreement to give at least some authority to the salt makers out there to be able to
make some decisions. Those are all things that I have heard that are planned and
those are things that I hope come to fruition because really, that is what the salt
makers have been asking for many years now. It has been the same "ask" year after
year and finally, we are going to be able to get that right-of-entry to move on these
things. Thank you, Council Chair Rapozo.
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Yukimura: I am so glad that we will be passing this and
I want to be clear exactly what this right-of-entry will be doing. Will it be removing
the rocks at this point that are causing people to drive on the beach?
Council Chair Rapozo: Mauna Kea. With that, I will suspend the
rules. It is a legal document. Let us have Mauna Kea explain it. That is the
understanding that I had, was that they needed this to deal with the rocks. I am not
sure.
There being no objections, the rules were suspended.
Councilmember Yukimura: It would be helpful to have a diagram, or is
there? Okay.
Council Chair Rapozo: Go ahead.
MAUNA KEA TRASK, County Attorney: For the record, Mauna Kea
Trask, County Attorney. What this does is, all of the actions of the State and County
are trying to take together are to meet the needs of the salt makers, like the body has
talked about. This issue right here in order to move the rocks around, is actually to
protect the salt ponds themselves to prevent people from driving in and around that
area on the airport side because that causes erosion and dust and they do not like the
traffic because of its proximity to the salt makers. So, you need a permit in order to
move those things. The right-of-entry (ROE) is for Public Works to go on to get the
necessary permits to do the work for the State. The jurisdictional issues are really
COUNCIL MEETING 27 AUGUST 22, 2018
mixed over there. The salt pans themselves are historical and cultural sites. They
cannot be disturbed. Because they are cultural, there is a layer of Department of
Land and Natural Resources (DLNR), State Historic Preservation Division that kind
of oversees the area. The group themselves are self-regulating. They are not formally
comprised of anything. They are the °ohana who have been there forever, and so a
lot of deference is given to them to how they manage that area, but the land itself is
contained within property that is being held by the State Department of
Transportation, Airports Division. There are a bunch of differences or different
agencies that you have to work through, but ultimately, this first step is to protect
the salt pans at the request of salt makers to decrease traffic in and around the area
that threatens the integrity of the product and then ultimately, the goal is—there has
been discussion of stewardship agreements to really bring in that area, opening it up,
and allowing more formal type recognized controls to the salt makers so that they
may take care of it in best way that they see fit because obviously, the County and
State are in no position to tell them how to prosecute their cultural practices.
Council Chair Rapozo: Councilmember Chock.
Councilmember Chock: Thank you, Mauna Kea. One of the things I
heard that was attributing to the delay was this hydrological study that was part of
what the salt makers had gotten some funding for. I do not think it is complete and
I was just wondering if you had any information about it. If not, that is something
that I would like to make a request now to be part of what goes to discussion in
Committee.
Mr. Trask: I do not, and there are a lot of component
parts over there. But again, you are going to want to be aware that it is all relevant
and all in the area, and you do not want to necessarily conflate this action with any
other because you want to avoid lack of movement for cautious.
Council Chair Rapozo: Are there any other questions for Mauna Kea?
Seeing none, thank you very much.
Mr. Trask: Thank you.
There being no objections, the meeting was called back to order, and proceeded
as follows:
Council Chair Rapozo: Is there any further discussion? Seeing none,
the motion is to approve.
The motion to approve C 2018-188 was then put, and unanimously carried.
Council Chair Rapozo: Motion carried. Next item, please.
CLAIM:
C 2018-189 Communication (08/15/2018) from the County Clerk,
transmitting a claim filed against the County of Kaua`i by Heather Barth on
COUNCIL MEETING 28 AUGUST 22, 2018
behalf of Mary K. Off ley, for damage to her vehicle, pursuant to Section 23.06,
Charter of the County of Kaua`i.
Councilmember Kagawa moved to refer C 2018-189 to the Office of the County
Attorney for disposition and/or report back to the Council, seconded by
Councilmember Yukimura.
Council Chair Rapozo: Is there any discussion or public testimony?
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 refer C 2018-189 to the Office of the County Attorney for
disposition and/or report back to the Council was then put, and unanimously
carried.
Council Chair Rapozo: Motion carried. Next item, please.
(Councilmember Kawakami was noted as recused.)
COMMITTEE REPORTS:
PLANNING COMMITTEE:
A report (No. CR-PL 2018-08) submitted by the Budget & Finance Committee,
recommending that the following be Approved as Amended on second and final
reading:
"Bill No. 2687 — A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 8, SECTION 8-2.1(A)AND SECTION 8-4.2(A), AND CHAPTER 10,
SECTION 10-5A.7(A), KAUAI COUNTY CODE 1987, AS AMENDED,
RELATING TO THE COMPREHENSIVE ZONING ORDINANCE AND
LIHU`E TOWN CORE URBAN DESIGN DISTRICT,"
Councilmember Kaneshiro moved for approval of the report, seconded by
Councilmember Yukimura.
Council Chair Rapozo: Is there any discussion or public testimony?
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 report was then put, and carried by a vote of
6:0:0:1 (Councilmember Kawakami was recused).
COUNCIL MEETING 29 AUGUST 22, 2018
Council Chair Rapozo: Motion carried. Next item.
(Councilmember Kawakami was noted as present.)
BUDGET & FINANCE COMMITTEE:
A report (No. CR-BF 2018-29) submitted by the Budget & Finance Committee,
recommending that the following be Approved on second and final reading:
"Bill No. 2715 — A BILL FOR AN ORDINANCE AMENDING
ORDINANCE NO. B-2018-842, AS AMENDED, RELATING TO THE
CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII,
FOR THE FISCAL YEAR JULY 1, 2018 THROUGH JUNE 30, 2019, BY
REVISING THE AMOUNTS ESTIMATED IN THE BOND FUND AND
HIGHWAY FUND-CIP (Salt Pond Wastewater Improvements and Hanapepe
Moi Road Pedestrian Safety Improvement Projects - $765,000.00),"
A report (No. CR-BF 2018-30) submitted by the Budget & Finance Committee,
recommending that the following be Approved on second and final reading:
"Bill No. 2716 — A BILL FOR AN ORDINANCE TO AMEND
SECTION 5A-6.4(C) AND SECTION 5A-11A.1 OF THE KAUAI COUNTY
CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAX
(Licensed Day Care Provider Homestead Tax Classification),"
Councilmember Chock moved for approval of the reports, seconded by
Councilmember Brun.
Council Chair Rapozo: Is there any discussion or public testimony?
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 reports was then put, and unanimously carried.
Council Chair Rapozo: Motion carried. Next item, please.
COMMITTEE OF THE WHOLE:
A report (No. CR-COW 2018-04) submitted by the Committee of the Whole,
recommending that the following be Received for the Record:
"COW 2018-02 Communication (06/27/2018) from the Mayor,
requesting agenda time for a briefing from Smith Dawson & Andrews, Inc.,
Washington, D.C. consultants, to provide a recap of the services and activities
they provided to the County during Fiscal Year 2017-2018 as part of their
professional services contract,"
COUNCIL MEETING 30 AUGUST 22, 2018
Councilmember Brun moved for approval of the report, seconded by
Councilmember Yukimura.
Council Chair Rapozo: Is there any discussion or public testimony?
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 report was then put, and unanimously carried.
Council Chair Rapozo: Motion carried. Next item, please.
(Councilmember Kaneshiro was noted as recused.)
RESOLUTIONS:
Resolution No. 2018-27 — RESOLUTION CONFIRMING MAYORAL
APPOINTMENT TO THE PLANNING COMMISSION (Elesther Calipjo —Business):
Councilmember Brun moved for adoption of Resolution No. 2018-27, seconded by
Councilmember Kagawa.
Council Chair Rapozo: Is there any discussion? Councilmember
Yukimura.
Councilmember Yukimura: There was a letter of concern on the agenda.
Council Chair Rapozo: On the agenda?
Councilmember Yukimura: Oh, maybe it was not. Maybe it was just in
our E-mails?
Councilmember Chock: Council Chair Rapozo.
Council Chair Rapozo: Go ahead.
Councilmember Chock: I can respond. If you are referring to the
E-mail, I think that was received in question after confirming, I believe that there
was no need for a permit on the proposed complaint.
Councilmember Yukimura: So you did confirm that?
Councilmember Chock: Yes.
Councilmember Yukimura: Okay.
Council Chair Rapozo: Are you are talking about the E-mail?
COUNCIL MEETING 31 AUGUST 22, 2018
Councilmember Yukimura: Yes.
Council Chair Rapozo: I did have Staff as well as the Office of the
County Attorney check. There was a concern, an E-mail, from an anonymous—not
anonymous, I guess you can call it. It was regarding concerns about a possible
grading violation by the nominee, but the County Attorney has verified that there are
no violations and that there is an open stockpiling permit that is renewed annually.
So as far as any kind of illegal activity, it is just non-existent based on what we just
got confirmed about fifteen (15) minutes ago from the County Attorney.
Councilmember Yukimura: Okay. Thank you very much.
Council Chair Rapozo: Is there any further discussion? The motion
is to approve.
Council Chair Rapozo: Is there any public testimony?
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:
Council Chair Rapozo: Seeing none, roll call.
The motion for adoption of Resolution No. 2018-27 was then put, and carried
by the following vote:
FOR ADOPTION: Brun, Chock, Kagawa, Yukimura,
Kawakami, Rapozo TOTAL – 6,
AGAINST ADOPTION: None TOTAL – 0,
EXCUSED & NOT VOTING: None TOTAL– 0,
RECUSED & NOT VOTING: Kaneshiro TOTAL – 1.
Mr. Sato: Six (6) ayes.
Council Chair Rapozo: Thank you. Can we get Councilmember
Kaneshiro back in and read the next item, please?
Resolution No. 2018-28 – RESOLUTION CONFIRMING COUNCIL
APPOINTMENT TO THE KAUAI HISTORIC PRESERVATION REVIEW
COMMISSION (Aubrey Summers –Architecture): Councilmember Yukimura moved
for adoption of Resolution No. 2018-28, seconded by Councilmember Kagawa.
(Councilmember Kaneshiro was noted as present.)
Council Chair Rapozo: Is there any discussion or public testimony?
There being no objections, the rules were suspended to take public testimony.
COUNCIL MEETING 32 AUGUST 22, 2018
There being no one present to provide testimony, the meeting was called back
to order, and proceeded as follows:
Council Chair Rapozo: Seeing none, roll call please.
The motion for adoption of Resolution No. 2018-28 was then put, and carried
by the following vote:
FOR ADOPTION: Brun, Chock, Kagawa, Kaneshiro,
Kawakami, Yukimura, Rapozo TOTAL — 7,
AGAINST ADOPTION: None TOTAL — 0,
EXCUSED & NOT VOTING: None TOTAL — 0,
RECUSED & NOT VOTING: None TOTAL — 0.
Mr. Sato: Seven (7) ayes.
Council Chair Rapozo: Next item, please.
(Councilmember Kagawa was noted as not present.)
BILLS FOR FIRST READING:
Proposed Draft Bill (No. 2719) — A BILL FOR AN ORDINANCE AMENDING
CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO
AGRICULTURE DISTRICTS (ZA-2014-4) (County of Kauai Planning Department,
Applicant): Councilmember Chock moved for passage of Proposed Draft Bill (No. 2719)
on first reading, that it be ordered to print, that a public hearing thereon be scheduled
for September 26, 2018, and referred to the Planning Committee, seconded by
Councilmember Brun.
Council Chair Rapozo: Is there any discussion? Councilmember
Yukimura.
Councilmember Yukimura: Can we get a briefing from the Planning
Department?
Council Chair Rapozo: Sure. With that, I will suspend the rules.
Planning.
There being no objections, the rules were suspended.
KA`AINA S. HULL, Deputy Planning Director: Good morning, Council
Chair Rapozo and Members of the Council.
Council Chair Rapozo: Good morning.
Councilmember Yukimura: Good morning.
COUNCIL MEETING 33 AUGUST 22, 2018
Mr. Hull: Deputy Director Ka`aina Hull, for the record,
with Planner Chance Bukoski to my right. The Proposed Draft Bill is a series of
amendments to the agricultural section of the Comprehensive Zoning
Ordinance (CZO). You can kind of essentially couch it under three (3) essential
proposals, the first being that it essentially bifurcates the current Agricultural zoning
district into two (2) distinct zoning districts: Agriculture 1 or AG1 and Agriculture 2
or AG2. AG1 being those lands that have been designated through the State Land
Use Commission process as Important Agricultural Lands (IAL) and AG2 essentially
being all other agricultural lands. The proposal also does look at restricting those
IAL designated lands to one (1) dwelling unit per lot, but it does not look at restricting
further any residential dwellings on AG2. The second area is actually a bifurcation
of the Residential District to recognize that under the State Land Use districting, you
have a rural section that under Hawai`i Revised Statutes (HRS) Section 205
specifically calls out as a district that is for residential use in conjunction with small
farms. Under the current zoning ordinance that has been in place since the 1970s,
there are restrictions on doing agricultural activities in all Residential zoning
districts, which runs to a certain degree, counter to the purpose of the Rural district.
So we have essentially called out R-1/R-2 Residential zoning district, which are those
lands located on the State Land Use Rural district, to specifically allow agricultural
activities on those lands in conjunction with residential unit as well. Then lastly,
there is a new provision to outright permit agricultural produce stands on
agricultural lands for the products or produce that is grown on-site as an outright
permitted use because currently under the Code, there are no actual outright retail
permitted uses on agricultural lands, so any type of retail, including technically a
small farm stand, has to get a use permit. This is recognizing that these farmers
should be able to outright sell their produce on the property that they are growing.
That is essentially the breakdown in a nutshell. Do you folks have any questions?
Council Chair Rapozo: Real quick, is AG2 basically what is in the
statute now?
Mr. Hull: Which statute?
Council Chair Rapozo: I mean not the statute, but the Code?
Mr. Hull: Yes. It is essentially...
Council Chair Rapozo: So right now, it encompasses IAL and
non-IAL?
Mr. Hull: Correct.
Council Chair Rapozo: And they are governed by that (a), (b), and (c),
what used to be (1), (2), and (3)?
Mr. Hull: Correct.
Council Chair Rapozo: So we are just taking out IAL now and saying,
"Hey, if you are on IAL, you can only have one (1) residence"?
COUNCIL MEETING 34 AUGUST 22, 2018
Mr. Hull: Per lot.
Council Chair Rapozo: Per lot?
Mr. Hull: Correct.
Council Chair Rapozo: Okay. Councilmember Chock.
Councilmember Chock: Thank you, Council Chair Rapozo. The
bifurcation on trying to supporting agricultural activity and the permitting for
produce, are those forthcoming initiatives?
Mr. Hull: It is in the Bill.
Councilmember Chock: It is part of this? So it is not in addition to?
Mr. Hull: That is part of the package that you folks have
right now.
Councilmember Chock: I am trying to get a sense of what we are
trying to accomplish holistically for this package and maybe you can answer it. What
are we trying to accomplish here, holistically, for agriculture? Is it to just increase
agriculture activity, is it to create opportunity for housing or actually decrease
housing opportunities for IAL, and how does that play into the bigger picture of what
the goal is for agriculture?
Mr. Hull: Essentially, there are two (2) functions in
here. One, to help facilitate agricultural sales and agricultural productions on lands
in the Rural and Agricultural districts here on Kauai. That is where the Table of
Uses, where you have the whole series of uses that are now permitted on Rural lands
as well as Agricultural lands. Second, is recognizing that the Hawai`i State
Legislature and State Land Use Commission have designated certain areas as
Important Agricultural Lands, but still, the regulations at State-level are still
relatively open-ended, I will say. It is very hard and fast. Once these lands are
designated Important Agricultural Lands for all intents and purposes, the can never
be put in Urban designation or Rural designation. It will stay in Agricultural
designation at the State-level, but there is no real further clarification as protections
or regulations as to how the IAL will be essentially administered or reviewed. It is
so setting the platform for the County to essentially dive deeper into the review and
regulation of Important Agricultural Lands and it sets one (1) possible measure, the
restriction on residential dwellings, but it leaves open for future discussions should
there be a desire to set further policies in the protection of Important Agricultural
Lands. But no further policies are being proposed at this point. It is just setting the
two (2) platforms for Agriculture and then one (1) recommending restricting density
in the IAL.
Councilmember Chock: Okay. Then for the bifurcation piece, you
referred to, I guess, trying to honor the Rural district by including agricultural
activity in residential.
COUNCIL MEETING 35 AUGUST 22, 2018
Mr. Hull: Correct.
Councilmember Chock: But my understanding is that we do not
actually have a Rural designation. Is that correct?
Mr. Hull: No, we do.
Councilmember Chock: Oh, okay. Is that on a County-level or is that
on a State-level?
Mr. Hull: Technically, the Rural designation is at the
State-level. Under the State Land Use districts, you have four (4) land use districts.
Councilmember Chock: Right.
Mr. Hull: One being Conservation and that is all in the
State's purview.
(Councilmember Kagawa was noted as present.)
Mr. Hull: Then you have the Agriculture districts,
which is under both the State and the County's purview; then you have the Urban
district, which is pretty much where the County has the bulk of the purview and
where we put our Commercial, Residential, and Industrial; and then lastly we have
our Rural designations. We do not have much on Kaua`i, but we have some. Rural
designations under Hawai`i Revised Statutes is set up to essentially be a half-acre or
no smaller than half-acre lots that are for the purposes of providing residential
dwellings in conjunction with small farms. Our Code has actually made it particularly
hard for any property owner to actually farm those properties. Now, we are not out
there actively shutting down people that are farming on their rural lands, but if we
get a complaint that say someone is raising goats on their rural land, technically,
without a use permit, that is a violation.
Councilmember Chock: Okay. Thank you.
Council Chair Rapozo: Councilmember Kaneshiro.
Councilmember Kaneshiro: In regards to the products being raised on the
property and the State zoning Rural activity, can you point out where it is in here?
Mr. Hull: Which one?
Councilmember Kaneshiro: First, the products raised and grown, I do not
see the change, underline, or where it is.
Mr. Hull: So, you would go to—for the farm stand you
are talking about?
Councilmember Kaneshiro: Yes, for the farm stand.
COUNCIL MEETING 36 AUGUST 22, 2018
Mr. Hull: It is on page 9 of the Proposed Draft Bill,
which is a portion of the Table of Uses. If you look at the third item, which is
"Agricultural Produce stand provided that said stand shall not exceed five
hundred (500) square feet."
Councilmember Kaneshiro: So the "P5" is what is added?
Mr. Hull: The "P" list is essentially denotes that
outright permitted. You can get it with a Class I Zoning Permit over-the-counter. A
"U" denotes a Use Permit, which requires Planning Commission review. The "5"
footnote is essentially clarified at the end of the table and states, "Only products
raised or grown on the property."
Councilmember Kaneshiro: Okay. Was this line item there before?
Mr. Hull: It does not exist.
Councilmember Kaneshiro: Is it a new line item?
Mr. Hull: It is a new line item.
Councilmember Yukimura: It should be underlined.
Councilmember Kaneshiro: Yes. I guess, just little details. For example,
usually a new line is underlined, so that is why I could not find it.
Mr. Hull: Yes. In working with Council Services,
because there is a whole lot of underlining quite honestly, and with the new districts,
it was like I said, in discussions with Council Services, it was felt by both as us as
well as Council Services to present a clearer picture to just erase or delete the whole
table and reset up a brand-new table, essentially.
Councilmember Kaneshiro: It is a brand-new table, but the only changes
is this P5 and another one for the rural activity also?
Mr. Hull: No. The Rural, if you are on page 9 up on the
first column, it says, "R-1 to R-2." Those are essentially Rural lands. The Table of
Uses previously, does not have R-1 to R-2. It is just straight Residential—well, R-1
to R-6 and R-10 to R-20. We are calling out the R-1 to R-2 and then if you look below,
now you have things like "Agriculture, Diversified" and "Agriculture, Specialized"
which have "P" now, and those denote that are now permitted in those R-1/R-2
districts.
Council Chair Rapozo: Ka`aina, can you make a chart of all of the
changes?
Mr. Hull: Yes.
Council Chair Rapozo: Because I do not know where to start looking.
COUNCIL MEETING 37 AUGUST 22, 2018
Mr. Hull: Okay.
Council Chair Rapozo: I only looked at—actually, I did not even look
at the Agriculture one. I looked at "Retail Sales" and it is showing that with Retail
Sales, you have to get a Use Permit, but you can only sell products. That is interesting
because you are allowing the agricultural—it is permitted on the Agriculture for an
agriculture stand.
Mr. Hull: Yes.
Council Chair Rapozo: Which is retail, but then on "Retail Sales,"
they have to get a Use Permit.
Mr. Hull: Yes. The straight up agricultural stand is
essentially denoting with the "5" footnote that it is products grown on property, but
say if you want to sell just "Retail Sales" themselves, which would not be...
Council Chair Rapozo: No, but on your chart, it says, "U5," which the
"5" is "Only products raised or grown on the property." So you are limiting. You have
to get a Use Permit the same thing the person is going to do to put up an agricultural
stand. I am not sure if that is an error.
Mr. Hull: I have to double-check on that.
Council Chair Rapozo: Yes, because retail, you are talking about
T-shirts and things like that.
Mr. Hull: Right, yes.
Council Chair Rapozo: Do you know what I am saying?
Mr. Hull: Exactly.
Council Chair Rapozo: It is the same—should be the same as the
stand.
Mr. Hull: Yes. We can clarify that.
Council Chair Rapozo: We need a chart to show every single change
in every single district for every single activity. If there is new activities, we need to
see that because there is no way we will know what is new.
Mr. Hull: Yes.
Council Chair Rapozo: There is definitely no way the public is going
to know what is new. Just clarify that because I agree with the "5" footnote. I believe
that anything we are going to sell needs to come from that property. They cannot
ship in wholesale T-shirts, hats, and hoodies. No. The other question on the "Retail
Sales," I noticed that AG1 is just blank.
COUNCIL MEETING 38 AUGUST 22, 2018
Mr. Hull: Correct.
Council Chair Rapozo: I do not know if that ties into what you were
answering Councilmember Chock's question earlier, but that was conscious effort to
leave that alone for now?
Mr. Hull: Correct. It was, I will say, debated for several
months at the Planning Department-level whether or not we should be having the
"U" or the "P" for Retail Sales on AG1. Ultimately, the policy decision that came out
was that it should not be occurring on AG1, period.
Council Chair Rapozo: But that is what we have designated as the
best agricultural lands on the island.
Mr. Hull: Hence the desire not to look at allowing Retail
Sales, per se, on that.
Council Chair Rapozo: Okay. We can have that discussion. I guess I
just disagree with that concept. I think if you remove Retail Sales altogether from
Agriculture and just allow them to do the stand for the products that they are raising
and growing, I think that is what they are supposed to. Anyway, if we can get that
chart, I would really appreciate that.
Councilmember Kaneshiro: I mean, it was clear on the density thing and
then all of these other things, I could not find it because we have this big table. I do
not know what is new. Obviously, this entire line of R-1 to R-2 Rural is a new line. I
do not know how any of these items are treated previously. I had a difficult time. I
clearly saw the density one, but the Rural activity and products grown and raised, I
did not know where that was coming from.
Council Chair Rapozo: Right, and I just noticed "Restaurants and
food services," too. You can get a restaurant on an Agriculture. We are going way
beyond, I think. That is why we need the chart to see the additions because now I
have to look at each line. I thought we were just talking about the fruit stands, but
now, we are talking about putting restaurants on agricultural lands. I have a little
bit of an issue with that, in fact, a big issue with that.
Mr. Hull: To that point, Council Chair Rapozo, that one
was discussed. That one also has the "5" to allow for restaurant usage should
someone want to set up a food truck selling their products that they grow on-site as
actual restaurant food. This can help accommodate the farmers getting more sales,
essentially. But ultimately, it is a policy discussion and one that we have had heavily
over past two (2) or three (3) years, and whether or not it is appropriate, I think it is
going to be a very engaging discussion with you folks at the Committee-level.
Council Chair Rapozo: Yes, but we need to know the difference.
Mr. Hull: Which is the exact ones, yes.
COUNCIL MEETING 39 AUGUST 22, 2018
Council Chair Rapozo: Each one. Councilmember Kawakami.
Councilmember Kawakami: Thank you, Council Chair Rapozo. You bring
up a good point. As far as the restaurants, I am open to the idea because there are a
lot of models. Waianae has Kahumana Organic & Cafe and it sits on agricultural
land. It is a farm. Actually, they are employing people that are rehabilitating
themselves. It is a great model to follow. It is not like it is something sinister to have
a restaurant. We are talking farm-to-table, supporting local agriculture, and
allowing farmers to profit. It is very hard to profit nowadays on farming and finding
labor, but I can tell you that when you take that model with the trend of this
farm-to-table movement and chefs now focusing on buying local, it is a great concept
of agriculture. I am open to the idea. Of course it is going to be a case-by-case process
as it goes to the permitting, but it is a great concept that is working all over the place.
Council Chair Rapozo: Thank you. That is true. I just want to make
sure. What I do not want to see is we get into this discussion or argument how much?
Is it fifty percent (50%) that it has to come from? I want to fly in oysters, but we going
to be using the vegetables and fruits. That is where I am concerned when you are
going to start using this. I understand case-by-case, Use Permit required. I would
assume that would be all dealt with. I just want to make sure that we do not have
all of these restaurants that are using their green onions.
Mr. Hull: Yes.
Council Chair Rapozo: Are there any other questions?
Councilmember Kagawa.
Councilmember Kagawa: Ka`aina, where did this Bill come from? Is
this a Kaua`i County push?
Mr. Hull: It essentially came from the Planning
Department.
Councilmember Kagawa: It is not a State wide movement?
Mr. Hull: No. The Planning Department has been
having meetings over this particular issue as well as other comprehensive updates to
other sections of the Code for the past three (3) years.
Councilmember Kagawa: And it is to meet the purpose to encourage
agricultural production and to discourage development of gentlemen estates?
Mr. Hull: Yes.
Councilmember Kagawa: That is why we did this. Have we had—like
every good idea, you have unintended consequences. Have we had discussions with
the big cattle industry people maybe like Bobby Farias or Dwayne Shimogawa just to
say, "Hey, this is what we are doing," because I think I just want to avoid having
COUNCIL MEETING 40 AUGUST 22, 2018
those people say, "Wow, you passed this and you did not even let us know," because I
think they are the stakeholders, right?
Mr. Hull: Yes. I believe we submitted it to the Mayor's
Agricultural Committee that has several ranchers.
Councilmember Kagawa: The Mayor has an Agricultural Committee?
Mr. Hull: Yes, and it was submitted several years ago,
about two (2) or three (3) years ago.
Councilmember Kagawa: Okay.
Mr. Hull: So it went through that process, I believe, and
we did not get many comments out of it.
Councilmember Kagawa: So you folks basically do not really foresee any
negative impact on those people?
Mr. Hull: On the cattlemen themselves?
Councilmember Kagawa: Like to warrant telling them, "Hey, this Bill
might affect you."
Mr. Hull: On the actual ranching activities itself, no.
Councilmember Kagawa: Okay.
Mr. Hull: On some property owners that have IAL
lands, yes, we reached out to them because we noticed that there was nothing on the
record from any of them have that have IAL. We did reach out to them and are in
discussions. At least one (1) of them actually came back and said, "I do not have any
problems with it."
Councilmember Kagawa: Okay.
Mr. Hull: Another one came back and said, "We could
have some issues because you are restricting our current entitlements," so they
wanted to chew on it a little bit longer, I think, and will probably be testifying at the
Committee-level.
Councilmember Kagawa: Alright. Thank you.
Council Chair Rapozo: Are there any other questions?
Councilmember Yukimura.
Councilmember Yukimura: Yes. As the purpose of this Bill, you say that
it is to prevent gentlemen estates, but you are having AG2 be the same as status quo,
COUNCIL MEETING 41 AUGUST 22, 2018
which is gentlemen estates, so I do not see how this Bill is getting us to our goal of
not having gentlemen estates.
Mr. Hull: Well, that was more specifically to preventing
gentlemen estates on IALs because right now, technically, we have no—you are
correct, Councilmember Yukimura. To a certain degree, the ship has sailed on
gentlemen estates on agricultural lands. The vast majority are not producing actual
agricultural activity on their lands.
(Councilmember Kawakami was noted as not present.)
Mr. Hull: That is really a function of State law in which
they have the ability to put a house and that house has to be in conjunction with a
farm, but under State law, currently a farm you can—and they do come to the
Planning Department to sign the Farm Dwelling Agreement with a single papaya on
that plan. Under State law, that qualifies a farm and we have to, reluctantly shaking
our heads, sign off on that Farm Dwelling Agreement.
Councilmember Yukimura: Why is the Planning Department not lobbying
for changes to State law?
Mr. Hull: If I could finish my statement,
Councilmember Yukimura.
Councilmember Yukimura: Go ahead.
Council Chair Rapozo: Go ahead.
Mr. Hull: So having seen it gone that way and the fact
that those lands are designated IAL right now do not have residential dwellings on
them, we are stating, "Yes, the ship, to a certain degree, has sailed on regular
agricultural lands, but if we can prevent that type of gentlemen estate development
on IAL, this is one (1) way of doing it," just straight-out restricting density.
Councilmember Yukimura: Do you know how many acres of all of our
agricultural land is in IAL and how many is in what you are proposing to be AG2?
Mr. Hull: We can get that number for you and we have
that data, but I do not have it off the top of my head.
Councilmember Yukimura: It seems to me that information should be in
the Director's Report.
Mr. Hull: I can go through it, but I do not have it off the
top of my head.
Councilmember Yukimura: Did it not go through the Planning
Commission? Did they not have that information? You are talking about different
COUNCIL MEETING 42 AUGUST 22, 2018
regulations on AG1 and AG2 and we do not even know how many acres are being
effected by your proposal.
Mr. Hull: I am not saying it did not go to the Planning
Commission. I am just saying that I do not have it off the top of my head.
Council Chair Rapozo: We will request a copy of the report.
Councilmember Yukimura: We have the copy.
Council Chair Rapozo: Do we have Director's Report?
Councilmember Yukimura: It was transmitted to us.
Council Chair Rapozo: Okay. Again, this is just first reading.
(Councilmember Kawakami was noted as present.)
Mr. Hull: I am sorry. I have the copy here and it is one
hundred sixty (160) pages. I can go through it, but I do not have it right now.
Council Chair Rapozo: No, we are not going to do that today. I think
this will be an opportunity, I think Councilmember Yukimura is right as far as an
opportunity to control gentlemen estates. This is an opportunity that this Council
will have to further define or restrict gentlemen estates with this Bill.
Mr. Hull: Yes.
Council Chair Rapozo: I think it is a great opportunity for us to really
clamp down on the gentlemen estates, so what is here is great. Now we have the
vehicle that we can now say what we want. The Farm Dwelling Agreement, to me,
Ka`aina, I am not sure how we cannot enforce that. For the life of me, I cannot
understanding why we cannot enforce it.
Mr. Hull: That was to my point, Council Chair Rapozo,
that if they can show us a papaya tree, that Farm Dwelling Agreement is legal.
Council Chair Rapozo: No. The Farm Dwelling Agreement, which I
am very familiar with, says they have to derive the majority of their income from the
farming activity. One (1) papaya is not the majority of their income.
Mr. Hull: I can research that.
Council Chair Rapozo: I can tell you that we have had that discussion
so many times on this floor and it gets recorded in the Bureau of Conveyances. It is
an agreement between the owner and the County. Regardless of what else is out
there, you make an agreement and it is very clear what it says. I do not know. It has
to be going on ten (10) years now that I have been saying, "Why have we not enforced
it on those flagrant violators," and we just do not. It says that you have to derive most
COUNCIL MEETING 43 AUGUST 22, 2018
or your—you agree and if not, there are ramifications that are explained in there. We
just have never gone after any one of these people, but this will be our opportunity, I
think, as Councilmember Yukimura is saying, to further define these gentlemen
estates. Councilmember Kaneshiro.
Councilmember Kaneshiro: I do not with a want to go down a slippery
slope, but I have the same concerns as Councilmember Yukimura. Why are we going
to restrict gentlemen estates on IAL, which is already restricted and not on regular
agricultural land? For me, the question is, what is considered a "gentleman estate,"
because even if we reduce the density on an IAL to one (1), then does that mean that
they can only build one (1) gentleman estate? I guess I need to know what the
definition of a "gentleman estate" is. Are we talking about people that are going to
build a house that is ten million dollars ($10,000,000)? Why would we prevent the
additional four (4) densities from building regular houses? I do not know what a
gentleman estate is, I guess. If you could tell me what a gentleman estate is, then let
us maybe look at reducing size or something like that. But I know what a gentleman
estate is in general. All I know is if you have an agricultural parcel and you have so
many acres, then the maximum density you have is five (5) units. What kind of
houses they build on it, I guess, that is where you tack on that we do not want to see
a lot with a ten million dollar ($10,000,000) house on agricultural land. Whatever.
But to just say, "Oh, no. Let us reduce it to one (1) so they can only build one (1)
gentleman estate," I do not really understand it. Then in regards to the, and I am
not on the Planning Committee, so I do not get to vote on it, but these are just the
same questions that I have, too. As far as the fruit stands, I do not know what one (1)
parcel means. Do you have to grow it and sell it on one (1) parcel? I know for Grove
Farm, we have small Tax Map Keys (TMKs), big TMKs, and large TMKs. We have
farmers that are spread out throughout all of the TMKs. We have always talked
about getting a Use Permit for them to do a farm stand where everyone in that area
sells at that one (1) farm stand. I do not know if doing this would say, "Only if you
are on this one TMK parcel, then you can sell it at that farm stand." It is all
contiguous farmland. Some of these tenants...the TMK line splits their property and
they are farming on both sides. It is something to consider as it goes to Committee.
Mr. Hull: To that point, Councilmember Kaneshiro, the
use of the parcel, the term "parcel" is very specific because the definition of"parcel"
under the County Code is one (1) lot or more than one (1) lot contiguous to each other.
So, if you have multiple lots of record, but they are contiguous, they constitute one (1)
parcel. It was specifically to address that issue.
Councilmember Kaneshiro: Okay. Thank you. But again, you could have
a farmer that farms on one side of the road and then he has another lease on the other
side of the road that are right next to each other, but then he has to do another fruit
stand on the other side.
Mr. Hull: It gets meaty and getting into the regulation
of where these products come from, it is not an easy task. But the purpose of it
ultimately, is right now, every single farm stand, no matter what, a little kid selling
lemonade on the side of the road technically under the County Kaua`i County Code,
needs a Use Permit. All we are saying is, from the kid grabbing lemons from the
COUNCIL MEETING 44 AUGUST 22, 2018
lemon tree to selling lemonade to the farmer producing, we should at least try to free
it up a little bit.
Councilmember Kaneshiro: Yes. I think for me, the only scary part is we
just do not want them shipping in produce and then trying to sell it at their farm
stand.
Mr. Hull: Yes.
Councilmember Kaneshiro: The intent is to have them sell things that are
grown here. I do not know. Those are just some of my concerns as far as not
everything is all a farmer is in one (1) area. You might have a farmer that farms in
Lihu`e and Moloa`a, can he bring his produce from Moloa`a to Lihu`e and sell it at the
farm stand? Those are things...I know for a fact that we have farmers that have land
in Moloa`a also. So, do they have to restrict their produce there from Lihu`e? Just
some things to consider.
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Yukimura: How is it that we are restricted by the State's
definition of "farm dwelling" because as Council Chair Rapozo pointed out, it is an
agreement between it the County and the landowner?
Mr. Hull: And I will have to do some more research on
that specific Farm Dwelling Agreement document. My statement was to the point
that under the State definition of "farm," there is no number of fifty (50) trees or
sixty (60) head of cattle. There are no numbers.
Councilmember Yukimura: Is it not true that the County can have a
stricter definition?
Mr. Hull: Absolutely.
Councilmember Yukimura: Well, then why are we not doing it?
Mr. Hull: In discussions with farmers, and we went
through great lengths to go over, okay, let us start defining it more and restricting it
so that we can ensure that gentlemen estates or people living on agricultural land
were not taking advantage of the State's very lax definition of"agriculture," and we
got into the State problem. State Legislators have told us time and time again, "We
can never to come to full consensus and agreement of what `farming' is." There is no
one (1) true definition and absent that, where we can weed out everyone, we are stuck
with a very open definition of "farm." I am not saying this body cannot do it and
definitely, that is what the role of this body is, to tackle those issues, but I am just
saying that it was not for a lack of trying that the Department did not forward to you
folks a stricter definition of"agriculture." We spent several years discussing this with
farmers, ad nauseam, and there was no hunkering down of the definition that
everyone could agree on, hence, here we are.
COUNCIL MEETING 45 AUGUST 22, 2018
Councilmember Yukimura: Have you explored what other jurisdictions
around the Country, how they are defining "farm dwelling" and how they are...
Mr. Hull: We have looked at other ways of defining
"farm dwelling" and again, Councilmember Yukimura, we could not...
Councilmember Yukimura: There is nothing?
Mr. Hull: I did not say there is nothing. I said we could
not come to a consensus.
Councilmember Yukimura: And Planning Department needs one hundred
percent (100%) consensus in order to use professional planning proposals?
Council Chair Rapozo: Councilmember Yukimura, that is not a fair
question for him. He just said they could not reach a consensus. He cannot answer
for the Planning Department.
Councilmember Yukimura: I am sorry. He is the Deputy Director of the
Planning Department.
Council Chair Rapozo: Understood, but he just said they could not
come to a consensus.
Councilmember Yukimura: And I am asking, is that your basis of
decision-making, that you have to get one hundred percent (100%) consensus or you
are not going propose something?
Mr. Hull: No.
Councilmember Yukimura: That is good for planning and for the island?
Mr. Hull: No, I am not saying that. We did not get
enough consensus with the various experts and farmers that we put in the room to
feel comfortable moving forward to this body with a definition that restricted
"farming." We could not. Now...
Council Chair Rapozo: Okay, good. Do you have another question?
We are not going to debate that.
Councilmember Yukimura: Yes. What about the definition that we are
using for "farmworker housing," our farmworker housing law?
Mr. Hull: That was debated, ad nauseam, as to whether
or not we should impose on every single individual on agricultural lands to have a
thirty-five thousand dollar ($35,000) income requirement.
Councilmember Yukimura: Of gross income?
COUNCIL MEETING 46 AUGUST 22, 2018
Mr. Hull: And ultimately, it was decided, no.
Councilmember Yukimura: And so...
Mr. Hull: But if you would like to propose that as a
Councilmember that every single agricultural dwelling...
Council Chair Rapozo: I was just going to say, nothing prohibits any
one of us from proposing what you believe is the right thing to do.
Councilmember Yukimura: Well, I just...
Council Chair Rapozo: You can introduce a bill.
Councilmember Yukimura: That is fine, but I am just asking Planning
about its process because we do rely on Planning as the experts. When a bill comes
to us, we want the best work possible presented to us because I do not think we should
have to do the work that the Planning should do.
Council Chair Rapozo: That is why we are here. They have provided
what they believe is the best bill and we have the ability to change it, and that is how
this process works. I do not want to see a debate as to why and what the philosophy
was. He said it more than once, they could not reach consensus to the level where
they were comfortable sending it to us. End of story.
Councilmember Yukimura: Okay. So it is not State law that is preventing
you from doing it?
Mr. Hull: No.
Councilmember Yukimura: It is...
Council Chair Rapozo: It is the political will. That is what it is. We
have an ability to exercise our political will and do it. That is how it works.
Councilmember Yukimura: Okay. I am just wanting to understand their
basis of proposal.
Council Chair Rapozo: Councilmember Kawakami.
Councilmember Kawakami: Thank you, Council Chair Rapozo. It is not
necessarily Planning not being able to come up with a consensus, it is farmers
themselves, the very people that are experts at growing vegetables, fruits, and raising
livestock and fish. When you ask them, "What is the definition of `bona fide
agriculture,"' it is hard to get a consensus. There are people out there that have
orchards that are not having any income for years because it takes a while for those
trees to be able to fruit. It is difficult. It is like "good luck." It has been tried over
and over again, we have the Farm Bureau, who is challenged with defining"bona fide
agriculture," and it is not as easy as it sounds. That thirty-five thousand
COUNCIL MEETING 47 AUGUST 22, 2018
dollar ($35,000) requirement has been talked about as being very prohibitive from
bona fide farmers, in my opinion, in getting farmworker housing up and going. So it
may sound easy to put a definition on "farming," but it is very complex. It is not as
simple as it seems. It is not just Planning that cannot get a majority consensus. It
is farmers themselves. Thank you, Council Chair Rapozo.
Council Chair Rapozo: Well, I can tell you that I planted my mango
tree five (5) years ago and I just got mangos this year. It just gave me a different
perspective. Let us say I get a farm, I get the land, and I plant my orchard of mango
trees. I will not have income for five (5) years. I am only going to have expense, right,
of whatever I have to do to raise the tree? Again, by no means, I am not a farmer,
but my point is that and it is kind of tagging on to what Councilmember Kawakami
just said, is that in some years, they may not derive income. Wind, rain, and storms.
I do not know how you define it. I do not know. Councilmember Kaneshiro.
Councilmember Kaneshiro: I guess to make it clear, I am not advocating
either. First, it is like, what is the fairness between restricting the density on one
type of agriculture versus another type of agricultural land? Then, if you are going
to go towards that we are going to restrict it on IAL, then we should restrict it on all
agricultural lands. There is going to be a huge blow-back because I do not think it is
fair to start reducing the density on farmers. You talk about a definition of what is a
"gentleman estate." You have farmers that have land that want to build houses, and
then we are going to tell them, "Oh, you work hard farming, but we are going to limit
the size of your house now on your property," on bona fide farmers because a few
people are taking advantage of it? As this Bill goes through, I can envision there is
going to be a lot of push-back and blow-back on it just as far as what is our intent and
why are we pushing this through? I mean, everyone was okay with IAL, everyone is
okay with their current agricultural land, and then we are just further restricting
people that already have a difficult time farming in the first place. I do not know how
this is going to go. There is unfairness in this Bill already. Then, if we are going to
try to make it fair to everyone, there is going to be an even bigger blow-back. That is
just my comments.
Council Chair Rapozo: I think we all know what we are targeting, is
the fake farmers. Those are the ones. We do not want to go after the legitimate
farmers who want to build homes for their family or whatever. It is these people who
come here that purchase these lands, build a mansion, do not farm, and they are not
even here. That is, I think, where we have to really look at and not punishing the
farmer. It is going after who...and why be secretive? That is who we want to target,
the people that are building mansions on agricultural lands and they do not farm.
They do not live here. Whether it is a vacation rental or a part-time residence, that
is the target. We want to preserve—the State law says us we have to preserve
agricultural lands for farmers. So I agree with what Councilmember Kaneshiro is
saying, but let us just clarifying who the real target is. I do not have a problem telling
these people that we do not want them building a mansion on agricultural land. It is
not discrimination, that land is for agriculture and not for their little, miniature
resort. Councilmember Yukimura.
COUNCIL MEETING 48 AUGUST 22, 2018
Councilmember Yukimura: In order to target those country estates or to
support the farmers, you have to define who is a country estate and who is a farmer.
That is the importance of definitions. If you do not define it, then we are going to go
through this regular process that jurisdictions have gone over, over the years and our
agricultural lands will disappear. It will become urban, rural, and residential spread
out development. If that is what we want for the island, then do not define it. Just
be really ambiguous, do not enforce it, and just let it go to all of this fragmentation of
agricultural land that turns into country estates. The reason why these bills are so
important is if we want to truly diversify as well as provide for self-sufficiency and
really create a strong agricultural base. In order to do that, we have to have some
clear definitions. I do remember a workshop that was sponsored by the Office of State
Planning that showed in Connecticut or elsewhere, they are defining it and they are
actually increasing their agriculture industry and sector. So that is the really key
thing. If we just go lazy fair, say, "Oh, we cannot define it. It is really hard." We are
never going to protect agriculture and develop a new foundation for our economy.
Council Chair Rapozo: Councilmember Kaneshiro. I am sorry,
Councilmember Chock has had his hand up. I am sorry, Councilmember Chock. Go
ahead.
Councilmember Chock: I am just curious. I know you said the
Agriculture Task Force reviewed it, has any others like the Farm Bureau, looked at
this Bill as well?
Mr. Hull: I cannot speak to that. They did not provide
comments to it, but I cannot speak to if they have reviewed it.
Councilmember Chock: Okay. Thank you.
Council Chair Rapozo: Did you have something?
Councilmember Kawakami: We have the power and ability to define
"agriculture" and if any one of us wants to really define agriculture and protect
agriculture, give us a starting point. Introduce a bill, put the definition in, and let it
go through vetting process. This issue has been here from the beginning of time and
it is nothing new. So, if any one of us here wants to put a number on what a farm
looks like, let us do it. I am just saying it is a challenge because when you actually
talk to farmers themselves, they have a tough time defining it as well at times. Thank
you.
Council Chair Rapozo: I did pull up the Farm Dwelling Agreement
and I think it is a great starting point if you look at the Farm Dwelling Agreement,
because it says and this based on Chapter 205, "A farm dwelling is define by
Chapter 205 under State Land Use district regulations as `a single-family dwelling."'
So that is number one. It has to be a single-family dwelling. "...located on and used
in connection with a farm or agricultural activity provides income for the family
occupying the dwelling." That is number two. So that is pretty clear. I can tell you
there are a bunch of violators of that right now. I just know. Now, they define the
family as used in the definition of a "farm dwelling," as defined by the Land Use
COUNCIL MEETING 49 AUGUST 22, 2018
District regulations as "an individual, or two (2), or more persons related by blood,
marriage, or adoption, or a group comprising not more than five (5) persons not
related by blood, marriage, or by adoption." So that is number three, and four, the
definition of the family. It says, "whereas the applicants acknowledge," remember
this is an agreement, "that a violation of this statute or this agreement is subject to
a citation and fine of not more than five thousand dollars ($5,000), and failure to abide
by this agreement may result in the removal of the prohibited structure at the owner's
expense." Now, we all know that there are numerous people in violation of this
agreement. Numerous. I do not think we have even cited anyone. So everyone is
correct. We have to have a starting point. We need to define it. Let us start with
this and let us move forward on this. We have absentee owners. We all know, right?
Where does the tax bill go? The mainland. You tell me we cannot figure that out?
Hey, all of the agricultural properties on Kaua`i, send us the data, we are sending the
tax bill to the mainland, let us compile a list, and let us send our inspectors out. Done.
Five thousand dollars ($5,000). "Hey, guess what? You have to take down that
beautiful mansion at your expense." That is how you control it, not setting thirty-five
thousand dollars ($35,000). No. This agreement is here for a reason. We have
ignored it time and time and time and time again. If we want a starting point, that
is where we start. You cannot get clearer. You have to derive income from the farm
that that house is on that is lived in by a family. Pau. Thank you. Councilmember
Yukimura.
Councilmember Yukimura: It is a very complex issue and I do expect the
Planning Department to really think it through and look at the farm. I do not know
in your discussions, if you even looked at the Farm Dwelling Agreements because
then you would know some of the things there that have to be addressed. I know
when we did the farmworker housing, we included the Farm Bureau, farmers, and
all the stakeholders. I think Councilmember Chock asked if you have had that kind
of vetting process. I do not believe we should have to do that and it is almost...I think
that due diligence and work needs to be done by the proposer of the bill.
(Councilmember Kagawa was noted as not present.)
Councilmember Yukimura: That is the starting point. Your bill is the
starting point, so maybe we should send it back for that kind of work.
Council Chair Rapozo: Councilmember Kawakami.
Councilmember Kawakami: I think the tough part is the definition of
"derived income" because I think like what our Deputy Director was saying, someone
shows that they have a derived income from selling some papayas at a Sunshine
Market, I think that is what qualifies, so I think the starting point is very broad and
that is why we are having the discussion as to the difficulty of just defining how much
income that derived income actually is. Like I said, this is a work in progress. I do
know that I think the intent of this measure was to create that delineation between
AG1 and AG2, to really start prioritizing Important Agricultural Lands, putting
tougher restrictions on it, and then also taking a look at the R-1/R-2 designation,
which Rural, and allowing actual agricultural uses, which was the intent of creating
R-1 and R-2. I think that as the discussion has gone along, we have identified other
COUNCIL MEETING 50 AUGUST 22, 2018
areas where we can improve on protecting these agricultural lands. But the intent of
today is a starting point to create that R-1/R-2, provide uses that are consistent with
agriculture, and to also protect the Important Agricultural Lands as well. Thank you,
Council Chair Rapozo.
Council Chair Rapozo: I think the intent when they designed this
Farm Dwelling Agreement was to keep it broad, but I think that you have to have a
farming operation. I do not care what State says, if you have one (1) papaya—I have
a mango tree. That is not a farm operation. Even if I took my mangos to the Sunshine
Market and sold them for whatever, that is not a farming operation. I think that is
the question and the broadness of it. Do you know if that Farm Dwelling Agreement
was amended?
Mr. Hull: Not to my knowledge.
Council Chair Rapozo: I noticed on the internet, it is showing that it
is 2014, because I honestly remember that thing a little more restrictive back when
we did the Transient Vacation Rental (TVR) in 2008, 2006, or 2007, whenever that
was. I am not sure if we amended it to make it broader, but...
Mr. Hull: I can check.
Council Chair Rapozo: I know I have the original in my files, but I
could be wrong. Councilmember Yukimura.
Councilmember Yukimura: I would like to ask for a briefing on the IAL
process and on where the IAL are designated so that we know what we are regulating
by this proposal. Also, I wanted to say, Council Chair Rapozo, that it is not just
absentee owners who own country estates. It is a lot of local residents who live here
on agricultural land, who are not doing agriculture in any significant way, and that
is the hard thing. What is "agriculture?" How do you define it? If you take a few of
your avocados to the Sunshine Market, is that agriculture? It is really complex, but
the other thing about this is that we are not just talking about existing farmers who
often, I mean, I have great sympathy for this, have to sell their lands in order to get
their retirement and they will sell it to the highest bidder. So, what was once farming
then by the next generation, is not farming. There are a lot of issues. It is like in
future generations, if that just keeps happening, then our farmlands will no longer
be farmlands. That is how complex the issue it. The other thing is that maybe the
biggest bar to country estates is to not allow condominiumization. In our original
agriculture law, which was very far-sighted in many ways, the first agricultural
subdivision law said we would have a mix of sizes, so they said so many five (5) acre
lots, so many ten (10) acre lot, so many twenty (20) acre lots, and then a huge remnant
parcel so you could have a real variety for a variety of agricultural. Then, they had
the one (1) dwelling unit for the first acre and then another in that law, and that was
so that you could have farmworker housing. They knew that a farm could not be done
by just one (1) family, so maybe you wanted three (3) families. The larger the land,
you wanted more units. But then the real estate industry came in and invented
condominiumization so that the minimum size of a lot is no longer five (5) acres. It
is now one (1) acre and two and a half(2%) acres, and not only that, it is not only in
COUNCIL MEETING 51 AUGUST 22, 2018
one (1) ownership. It is in fragmented ownership so you did not have one (1) farm
with several houses and families working on it. All of a sudden, you had—it is more
conducive to country estates than a farm. We have prohibited condominiumization
of Addition Rental Units (ARUs) because we understand the need to have one (1)
ownership. Why are we not doing that to agricultural lands and enforcing the original
intention of our agricultural laws?
Council Chair Rapozo: I guess the question that I will pose to the
County Attorney in writing anyway, not for today is, how can we include the
prohibition to Condominium Property Regime (CPR) in this Bill? This would
probably be the time to do it. We do it for ARUs. We just have to be very smart on
how we do it. That will be the question posed to the Attorney because I think that is
a cause of a big problem. That is the root. If you go back to the root problem in all of
this, it is the CPRs.
Councilmember Yukimura: May I?
Council Chair Rapozo: Go ahead.
Councilmember Yukimura: The problem is, now that you have a
twenty (20) acre piece that is surrounded by rural—oh, that is the other problem. The
State definition of "rural" half-acre, but they are allowed an additional dwelling
unit (ADU), so it is actually a quarter-acre lot. A quarter-acre lot is urban. Rural,
thank God we only have a few acres of rural on this island, because rural is suburban
sprawl. It is quarter-acre lots.
Council Chair Rapozo: Hang on. We are coming up on a caption
break. I want to end this item. Are there any more questions for these two (2)
gentlemen? If not, thank you both.
Councilmember Yukimura: Well, Planning Committee Chair, I would like
to have a briefing on IAL. I think that is really important.
Councilmember Chock: Do you want that in a Council Meeting or in a
Committee Meeting?
Council Chair Rapozo: Planning Committee.
Councilmember Yukimura: In Committee, I think.
Council Chair Rapozo: Yes, in the Committee. Thank you very much,
gentlemen.
Mr. Hull: Thank you.
Council Chair Rapozo: Is there anyone in the audience wishing to
testify? Seeing none, I will call the meeting back to order.
COUNCIL MEETING 52 AUGUST 22, 2018
There being no one present to provide public testimony, the meeting was called
back to order, and proceeded as follows:
Council Chair Rapozo: Is there any further discussion, not that we
have not discussed it to death?
Councilmember Yukimura: We worked on farmworker housing for
three (3) years.
Council Chair Rapozo: Yes, it is going to be to be a while. I can see
this one take a long time. But if you have any questions, get it over to the Planning
Department. The public hearing is set for September 26th. With that, the motion is
to approve. Roll call.
The motion for adoption of Proposed Draft Bill (No. 2719) on first reading, that
it be ordered to print, that a public hearing thereon be scheduled for
September 26, 2018, and referred to the Planning Committee was then put,
and carried by the following vote:
FOR ADOPTION: Brun, Chock, Kagawa, Kaneshiro,
Kawakami, Rapozo TOTAL — 6*,
AGAINST ADOPTION: Yukimura TOTAL — 1,
EXCUSED & NOT VOTING: None TOTAL — 0,
RECUSED & NOT VOTING: None TOTAL — 0.
(*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai,
Councilmember Kagawa was noted as silent (not present), but shall be recorded as an
affirmative for the motion).
Mr. Sato: Six (6) ayes.
Council Chair Rapozo: Next item.
Proposed Draft Bill (No. 2720) — A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 23, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO
SUNSHINE MARKETS
Council Chair Rapozo: Before we entertain the motion to defer, we
have had all of the discussion. Is there any other pressing discussion? I have to allow
the public to testify. Is there anyone wishing to testify on Proposed Draft
Bill (No. 2720)?
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:
Council Chair Rapozo: If not, go ahead.
COUNCIL MEETING 53 AUGUST 22, 2018
Councilmember Yukimura: Is that the Sunshine Market Bill?
Council Chair Rapozo: Yes. Councilmember Brun.
Councilmember Brun moved to defer Proposed Draft Bill (No. 2720), seconded
by Councilmember Yukimura.
Council Chair Rapozo: Thank you, roll call.
The motion to defer Proposed Draft Bill (No. 2720) was then put, and carried by
the following vote:
FOR DEFERRAL: Brun, Chock, Kagawa, Kaneshiro,
Kawakami, Yukimura, Rapozo TOTAL — 7*,
AGAINST DEFERRAL: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL — 0,
RECUSED & NOT VOTING: None TOTAL — 0.
(*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai,
Councilmember Kagawa was noted as silent (not present), but shall be recorded as an
affirmative for the motion).
Mr. Sato: Seven (7) ayes.
Council Chair Rapozo: Hang on. Do you folks anticipate spending a
lot of time on Bill No. 2715 and Bill No. 2716? We have had all of the discussion in
the Committee.
Councilmember Yukimura: Do you mean...
Council Chair Rapozo: Bill No. 2715 and Bill No. 2716. I would like
to take that while Councilmember Kawakami is still here and then we can release
him for the final Bill. Can we just go to Bill No. 2715?
BILLS FOR SECOND READING:
There being no objections, Bill No. 2715 was taken out of order.
Bill No. 2715 — A BILL FOR AN ORDINANCE AMENDING ORDINANCE
NO. B-2018-842, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE
COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2018
THROUGH JUNE 30, 2019, BY REVISING THE AMOUNTS ESTIMATED IN THE
BOND FUND AND HIGHWAY FUND-CIP (Salt Pond Wastewater Improvements
and Hanapepe Moi Road Pedestrian Safety Improvement Projects - $765,000.00):
Councilmember Yukimura moved to approve Bill No. 2715, on second and final
reading, and that it be transmitted to the Mayor for his approval, seconded by
Councilmember Brun.
Council Chair Rapozo: Is there any discussion or public testimony?
COUNCIL MEETING 54 AUGUST 22, 2018
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:
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Yukimura: I just want to say I am whole-heartedly in
support of this Bill. It addresses two (2) very important needs, one is the Salt Pond
wastewater improvements. We have been having some problems with that given the
use of this very popular west side park. The real solution is to hook the restrooms to
our sewer system, and this appropriation will accomplish that, so I am really glad.
Then as we all have said before, the Hanapepe Moi Road Pedestrian Safety
Improvement, the sidewalk coming down from Hanapepe Heights to the town, is so
key and is going to make our town over there more walkable. It is one (1) part of
what hopefully will be a pathway to Salt Pond as well, so it is just a wonderful project
and I am really glad for this.
Council Chair Rapozo: Thank you. With that, the motion is to
approve. Roll call.
The motion to approve Bill No. 2715, on second and final reading, and that it
be transmitted to the Mayor for his approval was then put, and carried by the
following vote:
FOR APPROVAL: 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.
(*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai,
Councilmember Kagawa was noted as silent (not present), but shall be recorded as an
affirmative for the motion).
Mr. Sato: Seven (7) ayes.
Council Chair Rapozo: And Bill No. 2716, please.
Bill No. 2716 — A BILL FOR AN ORDINANCE TO AMEND
SECTION 5A-6.4(C) AND SECTION 5A-11A.1 OF THE KAUAI COUNTY
CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAX (Licensed Day
Care Provider Homestead Tax Classification): Councilmember Yukimura moved to
approve Bill No. 2716, on second and final reading, and that it be transmitted to the
Mayor for his approval, seconded by Councilmember Brun.
Council Chair Rapozo: Is there any discussion or public testimony?
There being no objections, the rules were suspended to take public testimony.
COUNCIL MEETING 55 AUGUST 22, 2018
There being no one present to provide testimony, the meeting was called back
to order, and proceeded as follows:
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Yukimura: This Bill, Bill No. 2716, extends to long-term
affordable rentals that are used for licensed childcare, the favorable tax rate already
granted under County law to owner-occupied homes used for licensed childcare. In
doing so, it provides equal treatment for in-home licensed childcare whether in an
owner-occupied home or in a long-term affordable rental. This is consistent with our
overall real property tax policy of taxing based on use. Without this Bill, a
homeowner doing licensed childcare would pay three dollars and five cents ($3.05)
per one thousand dollars ($1,000) of assessed value, while a landlord renting an
affordable rental to a licensed childcare provider would pay eight dollars and ten
cents ($8.10) per one thousand dollars ($1,000) assessed value, a difference of about
three thousand five hundred dollars ($3,500) each year, everything else being equal.
This would likely cause the landlord to pass on that difference to the renter or
childcare provider who would then pass it on to families, or the landlord would refuse
requests to do childcare in his or her rental, thus making childcare harder to provide
for and for parents harder to find childcare. By passing this Bill, we will be
recognizing the importance of quality childcare services to our community. Brain
research shows that early childhood development has far-reaching effects into the
future affecting both physical and mental health, learning, and performance.
Research shows that the quality of childcare development at time of school entry
predicts performance in school programs. Countries that provide quality universal
early development programs for families with young children tend to outperform
countries in which early development programs are ad hoc. Kaiser Permanente
studies in California found that adults with mental health problems, addictions,
obesity, Type 2 diabetes, coronary artery disease, and other conditions in adult life
had poor early child development. My friend and mentor, the late Phyllis Kunimura,
a beloved master teacher and founder of one of the most sought after preschools on
Kaua`i, would be proud of us today. Although, if she were alive, she would be
challenging us to do more much. On Kaua`i, we love our keiki and approving Bill
No. 2716 is a good way to demonstrate that love.
Council Chair Rapozo: Thank you. With that, the motion is to
approve. Roll call.
The motion to approve Bill No. 2716, on second and final reading, and that it
be transmitted to the Mayor for his approval was then put, and carried by the
following vote:
FOR APPROVAL: 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 MEETING 56 AUGUST 22, 2018
(*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kaua`i,
Councilmember Kagawa was noted as silent (not present), but shall be recorded as an
affirmative for the motion).
Mr. Sato: Seven (7) ayes.
Council Chair Rapozo: Thank you. We are going to take a break. We
have one (1) more item, but we are going to do the Executive Sessions first. Let us
take five (5) minutes. Ho`ike, we will go into Executive Session. I anticipate that
being about thirty (30) minutes, and that is just so we can release Councilmember
Kawakami because he is recused from the next open item. We will do the Executive
Sessions and then we will be back, let us say we will try to be back at 12:00 p.m. and
hopefully wrap that up by lunch.
Councilmember Yukimura: A caption break?
Council Chair Rapozo: Yes, they are going to be on a (30) minute
break because we are going to go into Executive Session right now.
Councilmember Yukimura: Oh.
Council Chair Rapozo: They will be on their extended caption break.
With that, we will try to reconvene at noon or shortly thereafter. Thank you. I need
a motion to go into Executive Session.
EXECUTIVE SESSION:
ES-959 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4 and
92-5(a)(4), and Kauai County Charter Section 3.07(E), the Office of the County
Attorney requests an Executive Session with the Council, to provide the Council with
a briefing and request for authority to settle the case of The Hertz Corporation v.
Roselyn Martin, et al., Civil No. 17-1-0137 (Fifth Circuit Court), and related matters.
This briefing and consultation involves consideration of the powers, duties, privileges,
immunities, and/or liabilities of the Council and the County as they relate to this
agenda item.
ES-960 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4 and
92-5(a)(4), and Kaua`i County Charter Section 3.07(E), the Office of the County
Attorney requests an Executive Session with the Council to provide the Council with
a briefing on the Habitat Conservation Plan for the County of Kaua`i and related
matters. This briefing and consultation involves the consideration of the powers,
duties, privileges, immunities, and/or liabilities of the Council and the County as they
relate to this agenda item.
ES-961 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4 and
92-5(a)(4), and Kaua`i County Charter Section 3.07(E), the Office of the County
Attorney, requests an Executive Session with the Council, to provide the Council with
a briefing and request for authority to settle the case of Cameron Raymond v. County
of Kaua`i, et al., CV 15-00212 ACK-RLP (United States District Court), and related
COUNCIL MEETING 57 AUGUST 22, 2018
matters. This briefing and consultation involves consideration of the powers, duties,
privileges, immunities, and/or liabilities of the Council and the County as they relate
to this agenda item.
Councilmember Kawakami moved to convene in Executive Session for ES-959,
ES-960, and ES-961 seconded by Councilmember Brun.
Council Chair Rapozo: Roll call.
The motion to convene in Executive Session for ES-959, ES-960, and ES-961
was then put, and carried by the following vote:
FOR EXECUTIVE SESSION: Brun, Chock, Kagawa, Kaneshiro,
Kawakami, Rapozo TOTAL— 7*,
AGAINST EXECUTIVE SESSION: None TOTAL — 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL — 0.
(*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai,
Councilmember Kagawa was noted as silent (not present), but shall be recorded as an
affirmative for the motion).
There being no objections, the meeting recessed at 10:37 a.m. to convene in
Executive Session.
The meeting reconvened at 11:19 a.m., and proceeded as follows:
(Councilmember Kagawa was noted as present; Councilmember Kawakami was
noted as recused.)
Council Chair Rapozo: Can we have the last item, please?
Bill No. 2687, Draft 1 — A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 8, SECTION 8-2.1(A) AND SECTION 8-4.2(A), AND CHAPTER 10,
SECTION 10-5A.7(A), KAUAI COUNTY CODE 1987, AS AMENDED, RELATING
TO THE COMPREHENSIVE ZONING ORDINANCE AND LIHU`E TOWN CORE
URBAN DESIGN DISTRICT: Councilmember Kagawa moved to approve Bill
No. 2687, Draft 1, on second and final reading, and that it be transmitted to the Mayor
for his approval, seconded by Councilmember Yukimura.
Council Chair Rapozo: Thank you. Is there any discussion?
Councilmember Yukimura: Yes, I have an amendment.
Council Chair Rapozo: Okay.
Councilmember Yukimura moved to amend Bill No. 2687, Draft 1 as
circulated, and as shown in the Floor Amendment, which is attached hereto as
Attachment 1, seconded by Councilmember Brun.
COUNCIL MEETING 58 AUGUST 22, 2018
Councilmember Yukimura: Thank you. May I explain it?
Council Chair Rapozo: Sure, please.
Councilmember Yukimura: This amendment would allow R-40 density,
but it would be limited to the first two hundred fifty (250) units that have a complete
Zoning Permit application that has been accepted by the Planning Department.
Basically what it does is it allows the doubling of the density, but only to the extent
that infrastructure is available. To me, it is really dangerous to give out more
entitlements than you can actually support so this is, I think, with the intent of the
Bill. It does have a sunset clause where it says that if they do not build within ten (10)
years of the issuance of the Zoning Permit, then their entitlement will expire. The
second part, "No multiple-family dwellings under this section shall be eligible for
additional rental units (ARUs)," we just reformatted it. That is why it looks like an
addition, but we had already put that in already. The new part of this amendment
is (a). Are you looking at my proposal?
Councilmember Brun: Yes.
Councilmember Yukimura: I think it is a cleaner proposal and it will not
give out extra entitlements. I think it is dangerous to give out entitlements that we
cannot support with infrastructure. It also limits our ability when you give out too
much zoning than you really are able to support. For example, I think the Planning
Department has told us that transferred development rights do not work because we
have given out so much zoning, and this just does what we need to do without causing
any unintended consequences. Are there any questions?
Council Chair Rapozo: Was Planning sent a copy of that?
Councilmember Yukimura: Yes, they were. I do not know why Ka`aina-
oh, here he is.
Councilmember Brun: Can I have...
Council Chair Rapozo: I remember them saying—I think Mike was
saying they were not in support, but I do not know. Are there any questions? Okay,
I will suspend the rules.
There being no objections, the rules were suspended.
Mr. Hull: Aloha, again, Council Chair Rapozo and
Members of the Council.
Councilmember Yukimura: I just want to also say that when we have
infrastructure for more, we just lift the cap. We just amend this and we remove it, or
we put five hundred (500) if now that is an amount that we can handle. But it really
will give incentive to those who want to use it, to use it and to do what we want to see
happen, have redevelopment of Lihu`e Town with residences in there. I think it really
does fulfill the original intention of the law without over-zoning.
COUNCIL MEETING 59 AUGUST 22, 2018
Council Chair Rapozo: Ka`aina.
Councilmember Yukimura: In a way that we cannot support.
Mr. Hull: Yes. With all due respect, I understand where
you are coming from, Councilmember Yukimura. While the Department can support
Subsection (b) that no multi-families are allowed to do ARUs, Subsection (a), the
restriction to two hundred fifty (250), we cannot support.
Councilmember Yukimura: Why?
Mr. Hull: Because it is essentially—I mean, those
two (2) in conjunction with each other actually reduces the density of Rice Street as
it exists today, and the overall purpose of the Bill is to increase density to try to
attract investment into the area to provide for housing opportunities. But right now
as it sits as the County Attorney gave the position that ARUs potentially qualify in
this area, that means right now, you can do an ARU and R-20. The proposal right
now is saying, "no ARUs and only two hundred fifty (250)," meaning it actually
restricts density from what exists today and the Department cannot support that.
Councilmember Yukimura: May I?
Council Chair Rapozo: Go ahead.
Councilmember Yukimura: How does it restrict density and not allow
more density?
Mr. Hull: Because technically...
Councilmember Yukimura: Because it is allowing R-40.
Mr. Hull: Because technically right now, you can do
R-20 with an ARU. So, twenty (20) of units and twenty (20) ARUs on one (1) piece of
property, but overall, you have several acres. Right now, arguably with ARU, you
have the R-40 and you just cannot CPR it off. With the proposal as it sits right now,
the amendment is saying, "no ARUs," so it is back to R-20. Sorry, you go to an R-40,
but then you say, "but you can only build two hundred fifty (250)," so it is much more
restrictive than what actually exists today, and the intent and purpose of this Bill is
to increase density overall in this area.
Councilmember Chock: I have a question.
Council Chair Rapozo: Go ahead.
Councilmember Chock: We amended previously in the Committee.
We amended it so that the ARU was addressed.
Mr. Hull: Yes.
COUNCIL MEETING 60 AUGUST 22, 2018
Councilmember Chock: I guess what I am hearing you say is, with the
ARU now in Section (b) with the two hundred fifty (250), it now compounds that even
further?
Mr. Hull: Yes.
Councilmember Chock: Okay. Thank you.
Council Chair Rapozo: Go ahead, Councilmember Yukimura.
Councilmember Yukimura: What if we just instead leave the—not to
exceed our density—we just move the ARU restriction up? I think I see what you are
saying, but I think there is a way to change that so that we get the result we want,
which is the first two hundred fifty (250) units can be R-40 and any R-20 left, would
allow ARUs. Is that what you are saying?
Councilmember Chock: Would it not be to just take out Subsection (b)?
Would that not accomplish what she is trying to accomplish?
Mr. Hull: Well Subsection (b), I think—well, overall as
you said in the Committee, you folks have already taken care of the fact to establish
no ARUs in this area. Even absent Subsection (b) or whatever you folks did
previously, and I apologize. Mike Dahilig has been playing point on this, but he has
been activated at the Emergency Operating Center (EOC). So if you folks have
already taken care of the area where ARUs are not permissible in this district and
then restricting under Subsection (a) to only two hundred fifty (250) units, that means
you are essentially restricting density from what exists today on the ground, which
is R-20 with ARUs.
Council Chair Rapozo: Go ahead, Councilmember Yukimura.
Councilmember Yukimura: What we are saying is maybe we did not even
need the R-40 bill if you allow the ARU bill, too, right?
Mr. Hull: No. For density purposes, yes, there is no
difference, but for the market analysis that investors need do and some of them will
have to sell these units off, the ARU does restrict it from being sold.
Councilmember Yukimura: Right, so it is better to say R-40 and no ARUs?
Mr. Hull: Yes.
Councilmember Yukimura: That is the better way?
Mr. Hull: Yes.
Councilmember Yukimura: Okay.
Mr. Hull: And we are okay with that.
COUNCIL MEETING 61 AUGUST 22, 2018
Councilmember Yukimura: Okay. This does not restrict density. The first
two hundred fifty (250) units will be in the context of an R-40, so a lot that with the
R-20 that had only two (2) units, now can have four (4) residential units, so it does
allow R-40.
Mr. Hull: Only up to two hundred fifty (250) though.
Councilmember Yukimura: Right, because that is all the infrastructure
there is. It does not make sense to give additional density when they cannot build.
So, it is allowing people to have R-40 up to the point of that they can build, which is
the only thing that this Bill would do anyway. There is a two hundred fifty (250) limit
even if you did everything R-40 because of infrastructure. What my amendment does
is it prevents a landowner to have density without the ability to build it because there
is no infrastructure, and that is a terrible dilemma to put landowners in.
Mr. Hull: Well, that is the thing. I work for the
Planning Department, so I think planning is very important, but planning is just
one (1) element in the construction of housing or a housing development. It is the
first generally check on the checklist. Is there zoning? They check that and then
they move on. Is there water? They check that and they move on. Is there
wastewater? They check that. So it is the first element of it, but ultimately, after
receiving the land use zoning entitlement, then they have to ultimately access the
adequate infrastructure, and if it is inadequate, wait for it to be build up, or they
themselves as a developer, they build it. Now to throw onto a developer, a property
owner, or a homeowner to say, "You can only build two hundred fifty (250) because
that is what infrastructure requires," that is fine and dandy. But then, say a
homeowner or property owner is willing to upgrade the infrastructure. Now, we have
put a whole new task to say, "You have to upgrade the infrastructure and in addition
to that, you have to go to County Council to amend the Comprehensive Zoning
Ordinance" for which that leaves things up in the air. Right now, that is the last
thing or one of the barriers for housing construction, is uncertainty of the market. If
they are uncertain whether or not they can get the County Council, which is in place
at time after the two hundred fifty (250) is met, that will serve as a barrier. The
whole purpose of this Bill is to reduce barriers in the Lihu`e area to get housing
constructed. It is not going to compel housing. It is reducing barriers and facilitating
it better.
Councilmember Yukimura: The thing is that there is already a barrier in
the infrastructure. So when you do that and you have an oversupply of entitlements
and not enough infrastructure then you have all these owners competing for the
infrastructure, whereas if they could have the certainty that this is the area and there
are plans for the infrastructure, then it is much better for them as developers. So
that is where planning gives more certainty, because planning brings together the
land use zoning with the infrastructure. That is what planning does. It coordinates
transportation, water, sewers, et cetera, and this way we are tossing that up to a no
man's land.
Mr. Hull: Any developer that is going to do a
multi-family housing project is not going to come to the Planning Department, quite
COUNCIL MEETING 62 AUGUST 22, 2018
honestly, get a Zoning Permit and then go, "Oh, my gosh. I did not check on the
infrastructure. I was unaware of it." Any person that is going to put multi-million
dollar investments into a multi-family housing project is going to be working with all
of the agencies to ensure all the ducks are in a row. I can also pretty much guarantee
that the same developers or investors are going say, "If I have to go to Council and
that adds an additional barrier, I have to reconsider that project."
Councilmember Yukimura: Of course, and we are not talking about them
coming on a parcel-by-parcel basis. We are coordinating it with our infrastructure
plans so then if the Department of Water comes in with plans for building a water
system and enabling this, then we increase the land use.
Mr. Hull: Yes.
Councilmember Yukimura: Because right now, the Department of Water
and I refer you—Yvette, did we pass out what we got from Brian? Okay. Did everyone
see that? Right now, they do not have any additional capacity for new growth areas.
They will work on amending their Water Plan, but they do not have any...
Councilmember Kagawa: Council Chair Rapozo, are we going to get to
have our side of the story told as well? We are only hearing just one (1) side.
Council Chair Rapozo: I am trying to give as much latitude. I want
to hear questions of Planning and not so much a debate on philosophy.
Councilmember Kagawa: I think we went over this last week, actually,
all of this.
Council Chair Rapozo: We did.
Councilmember Kagawa: And it was Mr. Dahilig that was here and now
it is Mr. Hull. We are just asking the same questions that we did in Committee, and
I would like to say my piece about the infrastructure.
Councilmember Yukimura: Yes. Council Chair Rapozo, I do not want to
squelch any debate, but it was after our discussions last week that I conceived of this
amendment, which is a floating zoning, that would be better tied to the reality of
infrastructure. I think it gives for more orderly growth and that is why I came up
with this because it is better—I mean, that is what planning is about, orderly growth.
Why would you give out a lot of entitlements when you do not have the water or the
infrastructure that is going to enable them to actually build, which is our goal, to get
actual building on Rice Street?
Council Chair Rapozo: And we had gone through that extensively
last week. Councilmember Kagawa.
Councilmember Kagawa: The frustrating part is that as much as I agree
with some of the points that you are saying, we heard last week from Mike and the
Department of Water that unfortunately, they do not put infrastructure based on
COUNCIL MEETING 63 AUGUST 22, 2018
what a County Councilmember thinks they should. They put infrastructure in on an
as-needed basis. If they have enough infrastructure existing, of course, you would
get a fast approval. If infrastructure is not there, then they will move forward with
plans to add more infrastructure or plans to work with the developer. I mean, we had
this discussion before. Unfortunately, the Department of Water and sewer does not
put infrastructure based on projections going forward. While that would be nice from
a planning standpoint, they do not work that way and have not worked that way in
all of these years. Maybe we need to change direction in how these infrastructure
demands in the future that they can, I guess, reliably predict to put that forth, but it
is not how it happens. I think Ka`aina was excellent in his responses as far as we
want to spur on growth; however, when the developer is fine and ready, they will go
to the various sewer or water and will go for the approval, then they will be told as
far as what is there for them to get approval and if it is not there, what they can do
to make it faster or how long they will have to wait for the Department of Water or
Sewer Division to get them hooked up. It is a frustrating, long process at times, but
it is the reality. I think we, today, have to vote on what is the reality now and not
vote on whether we think water and sewer should be as far as taking direction from
Planning. I know it is frustrating, Councilmember Yukimura. You stated your point.
I agree with some of it that yes, it is better to have the cart before the horse.
Councilmember Yukimura: You mean the horse before the cart.
Councilmember Kagawa: Horse before the cart, yes. Unfortunately, it
is not there as far as the infrastructure demands that you are seeking at this time.
All we are looking at is if we ready to support what we worked on Committee today.
If not, let us send it back to Committee and have more detailed discussions. Thank
you.
Council Chair Rapozo: Councilmember Chock.
Councilmember Chock: Thank you. We have had this discussion, I
agree, last week and probably the week before. But I just wanted to confirm, because
really what we talked about was that the policy here would drive the outcome that
we are looking for, which is increased density. And you agree...
Mr. Hull: Yes.
Councilmember Chock: ...and you believe that if we stay the course
on what we are currently proposing, that the Department of Water will then, even
though they said in their responses to us that there is no capacity, would direct them
to actually find and develop that capacity. Is that what you are saying?
Mr. Hull: That is essentially what happens. It if there
is no capacity at time and you either stay on Water's schedule when they anticipate
upgrading it, or the only way can you do it is you upgrade it yourself. We see a
common occurrence on large-scale development projects where they have to come in
and put in upgrades to the infrastructure; wastewater, water, or otherwise.
Councilmember Chock: Okay. Thank you.
COUNCIL MEETING 64 AUGUST 22, 2018
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Yukimura: The Department of Water said that—the
question was, "How is the Department working with Planning Department," so how
is the Department of Water working with the Planning Department, "to target growth
areas for additional capacity and how is this being included in the Water Plan for
2020?" So that your thought, right? We with say that by our zoning, this is where
growth is going to be and therefore, the Department of Water would respond. The
response to that question is, "The Department of Water provides comments to
proposed growth areas identified by the Planning Department. Water Plan 2020 took
into account the General Plan existing at that time. Additional capacity for newly
established growth areas will be considered as the Department of Water works on
updating its Long-Range Water Plan." So far, so good. You are saying, "This is where
we want growth" and their Water Plan is going to say, "This is how we are going to
support it," so that is my question then. We have said already with zoning that we
want growth to happen between the hospital and Kapule Highway on Grove Farm
lands. I am saying, "Where is the water?" Okay? I want to make sure there is water
there and that was, I believe, before the Water Plan 2020. I want some assurance
there is water and that the process is working. We say we want growth here and the
Water Plan shows that there is going to be water for this growth area, but I do not
see that happening because if I can be assured that the existing growth is taken care
of, then maybe I can have some comfort that the Department of Water's next big push
is going to be for Rice Street, but I cannot even see that existing growth has been
taken care of. The area that we have already designated for growth has the water
because if we have all of these areas designated for growth and there is no water
system to support it, we are doing wrong by the developers and we are doing wrong
by ourselves because we are going to have hodgepodge development or it might not
happen. I do not get it.
Mr. Trask: Mauna Kea, County Attorney, for the record.
Just to clarify the intent of this Bill because I do not think it is been said yet, but in
looking at the issues that this Bill is to address, which is more housing opportunities,
the affordable housing crisis is a crisis throughout the Country and it can also be
understood as just not enough housing product. We researched the economics in
inclusionary zoning. We did extensive research. I have a law review article here from
Yale Law School. This is Robert C. Ellickson, The Irony of Inclusionary Zoning. I
also have one from Willamette Law Review Michelle DaRosa 2007. She actually looks
at all of the inclusionary zoning programs in Hawai`i, so all of the different Counties
in Hawai`i. She did an extensive analyses on it. What they come up with is this, and
she cites it, that "although many communities around the Country have
experimented with affordable housing exactions for over three (3) decades, these
regulations have only resulted in fifty thousand (50,000) units being put up across
the whole Country." So they acknowledge the economics of it, the base economics,
"that many officials who draft and administer inclusion zoning programs appear to
lack a sophisticated economic understanding of housing productions, the workings of
housing markets, and public finance." Basically, it comes that "low a moderate
income families benefit from the construction of housing at all levels of quality,
including the highest quality units that they could not conceivably afford to buy."
What they are saying is this, the problem Kaua`i is not there is a lack of affordable
COUNCIL MEETING 65 AUGUST 22, 2018
new housing. There is just a lack of housing. Then, the old housing becomes a five
hundred thousand dollar ($500,000) or six hundred thousand dollar ($600,000)
product. That was never intended to be built as such. The intent of this, you could
say that if there is no zoning, they are not going to put the infrastructure so we have
to do the zoning. There is no infrastructure so they are not going to the zoning. It
creates a false dilemma. You win and lose both ways. The intent of this Bill is to
create the zoning entitlements to encourage, when it is necessary, the infrastructure
to follow because otherwise, you are never going to build anything. The intent here
in limiting zoning to any number of units aside from the R-40 and the prohibition
against ARU, is not the original intent of this Bill.
Councilmember Yukimura: I am sorry, we are not asking—this is not a
legal opinion you are giving us and we are not talking about affordable housing.
Mr. Trask: Excuse me, I am talking about...
Councilmember Yukimura: We are just talking about housing.
Mr. Trask: I am talking about the intent of the Bill,
which that is the intent.
Councilmember Yukimura: Well, I am not disagreeing with the intent of
the Bill.
Council Chair Rapozo: Perfect, then let us...
Mr. Trask: Thank you. That is all.
Council Chair Rapozo: Perfect.
Councilmember Brun: Thank you.
Council Chair Rapozo: Councilmember Chock.
Councilmember Chock: I have a question around that because it keeps
coming up that we just have to supply more homes and that is the direction that we
can go and yet, I think the counterargument and the fear is that we cannot compete
with outside investors, for instance, who can come in at any time and build the kind
of housing that none of us can afford. That is the fear that I think we are having
around the table when we have those entitlements. The balance that I am asking for
and maybe the question for Planning is, how do we create mechanisms in order to
kind of direct the kind of development that we are trying to move towards that would
give us at least some market or somewhat affordable housing, rather than allow, and
I hate to say it, but something like Kaka`ako to occur in that sense? Is there any
response to that, because I think that is where you are seeing some of these things
come up from the Councilmembers in terms of trying to limit and throttle what kinds
of things we are supporting?
COUNCIL MEETING 66 AUGUST 22, 2018
Mr. Hull: I get the question. I think even what Mauna
Kea was going into is, how do we ensure it is the product that we want? We want to
spur on housing and there is housing development going on Kaua`i, right, but it is not
the type of product that we necessarily want to fully support. We have large mansions
going up in various areas, but we are looking at the target market for local families
being smaller homes, more often than not, giving the market what is bearing
apartments because they are cheaper. How do we get more of that product,
essentially constructed? Right now, well, for the most part, it is not being constructed
at all. It is almost like we have several throttles in place, one of them is our Housing
Ordinance, right, and there is some discussion on whether it is too much of a throttle
right now going on. Does that become such a barrier to actual housing that we
throttled it too far? I know that the Housing Agency is working on a study to
specifically address that right now. But for zoning right now, we are saying that we
do not want to throttle multi-family. We want to spur on as much as we can, and the
way that you do that is you free up the density for them.
Mr. Trask: I think part of it, too, is it is a long-term thing,
so this is not the magic bullet. It is one (1) more tool that we need to utilize in the
bigger-picture and what you are doing is you are creating a—one thing, I have a friend
right now who is working on building houses. His next project is Drew Brees' house.
If you look at Planning's last response, "Provide an example of an R-80 structure
using R-40 zoning, et cetera. Essentially, Lihu`e Townhouses accept that dwelling
units half the size and twice the number." Zuckerberg is not going buy that unit on
Rice Street. Drew Brees is not going to buy that unit on Rice Street. But whoever
does buy that unit, we cannot ignore what is called the "trickle-down effect." You
build the unit now and people buy it now at market. Over time, the layout, products,
and trends change. My wife is not going to want an island anymore. She will want
some other kind of kitchen. That product filters down and becomes more of an
affordable product in the future. This is a short-play and long-play. It is not a
derivation of anything else. It is just more units.
Council Chair Rapozo: Are there any other questions for Planning?
If not, thank you very much.
Mr. Hull: Thank you.
There being no objections, the meeting was called back to order, and proceeded
as follows:
Council Chair Rapozo: Is there any further discussion? We are on
the amendment right now.
Councilmember Kagawa: Yes.
Council Chair Rapozo: Go ahead.
Councilmember Kagawa: I see the merits of having this amendment. I
do not want to criticize Councilmember Yukimura for doing it at the Council, but for
me, it is like, if I use that theory of letting the infrastructure tell us what we should
COUNCIL MEETING 67 AUGUST 22, 2018
and could not do, then a lot of existing R-20s, we would tell them, "Do you know what?
We should take away your R-20 zoning because we are not sure on paper if the
Department of Water or sewer is ready to accommodate you right now." But the fact
is we have a lot of zoning that far exceeds the infrastructure that the sewers and
water can currently handle. We do have zoning ahead of infrastructure in place, but
the way we have sewers and water operate is that they do it as-needed basis. When
those building applications come in, that is when the approvals, disapprovals, or
negotiations take place. I think Hanama`ulu is a great example. D.R. Horton did a
lot of infrastructure to get the water to meet their project. The same will be with the
developer that does one of these on Rice Street. I think to put a cap on it would send
a message to the developers, many developers are not based on Kaua`i, we would send
the message that "Kaua`i is not ready for you, we will put up too much barriers for
you that will be actually causing you to waste your time, and you may as well go do
your business in the Hawai`i Island or Maui." Like Ka`aina said, in fact, we need
more inventory for our local residents. A lot of the projects that we have done like,
Halelani, have been very successful. We want to make sure that we continue to
provide these opportunities for the next generation because the next generation, like
your children, Council Chair Rapozo, they do not have these opportunities in
condominiums and apartments. This is the start-up inventory that they need in order
to own a residence in Kaua`i at the time. They cannot buy that Pikake house right
now. They do not have the equity, so we have to provide these opportunities and it is
better served in the private sector providing opportunities. Thank you, Council Chair
Rapozo.
Council Chair Rapozo: Councilmember Yukimura.
Councilmember Yukimura: Yes. This amendment is not putting up any
barriers. The barriers already exist. There is no infrastructure. This Bill is not
putting up any barriers. It is just facilitating an R-40 density on Rice Street to the
extent that it is possible and then on a more methodical way...and you do not want
developers to have to do infrastructure parcel-by-parcel because the fire hydrant
water needs a certain pipe that is going to apply to all of Lihu`e. So, you want a more
regional County provided system. You might want the developers to pay for their
share of it, but it is not going happen case-by-case. I believe this amendment provides
more for methodical planning and actually supports development on Kaua`i because
it says "wherever we invite you by putting more density, we are going to become your
partners in also providing the infrastructure." We are doing it by working between
Planning and the Department of Water, so when the plans are ready and the plan is
already SPA-D and that shows that in the Water Plan. If the Department of Water
puts in the Water Plan the infrastructure for more beyond two hundred fifty (250)
units, then we come and change this restriction to feature that so that when
developers come, they know they can have both the infrastructure and the zoning. To
me, that would be something developers want.
Council Chair Rapozo: Anyone else? If not, the motion is to approve
as amended. The amendment. I am sorry, the amendment, as circulated. Roll call.
COUNCIL MEETING 68 AUGUST 22, 2018
The motion to amend Bill No. 2687, Draft 1 as circulated, and as shown in the
Floor Amendment, which is attached hereto as Attachment 1 was then put,
and failed by the following vote:
FOR AMENDMENT: Yukimura TOTAL – 1,
AGAINST AMENDMENT: Brun, Chock, Kagawa, Kaneshiro,
Rapozo TOTAL– 5,
EXCUSED & NOT VOTING: None TOTAL– 0,
RECUSED & NOT VOTING: Kawakami TOTAL– 1.
JADE K. FOUNTAIN-TANIGAWA, County Clerk: The amendment
fails.
Council Chair Rapozo: Back to the main motion. Is there any further
discussion on the main motion? If not, I will just make a few comments. I will not be
supporting the Bill. I think I made my points clear last week. My position has not
changed. I think increasing density while reducing lanes on Rice Street is—I do not
think that is a good formula and that is exactly what is happening. Like I said, if the
plan for Rice Street was not to change the lanes, if it was not to reduce the lanes, I
would be much more open to this Bill. But with the current plans for Rice Street, I
just cannot understand the logic of increasing density. Rice Street was at two (2)
lanes in the past. We know what happened with that. We know what will happen
when we go down to two (2) lanes and I just cannot imagine us increasing density.
That is the first thing. The other thing is, as I stated, we will be giving up the
Council's authority or ability to address each of these parcels that will get the double
density. I do not understand why if someone wants to increase their density from
R-20 to R-40, they can go through the process and then the Council would have an
opportunity to voice their concerns at the time on a case-by-case basis. In this case,
no one is asking. It is something that we feel that will help, yet, I do not know. I
have not been called by any landowner on Rice Street asking me to support this
measure. I am not sure if anyone is in a position to do it, but nonetheless, the Council
will give up their ability to oversee this. I call it a gift. Once the Mayor signs this,
landowners on Rice Street will wake up next morning and understand that they just
got our density doubled with no exactions or conditions imposed by the Council. The
affordable housing is another component, yes. To use Zuckerberg as an example is
kind of an extreme. I am not concerned about Zuckerberg and all of these billionaires,
but there is absolutely no assurances that any of these units will go to affordable, and
I think that is a big issue. As we talked about last week and as the Planning Director
agreed, this is not an affordable housing issue. This Bill will not trigger our housing
policy because you just do not have too many properties in that parcel or on that block
that have the ability to build more than eleven (11) units or more than ten (10) units,
so it is going to be market and again, the Council will have no ability to come in and
create any kind of exactions with this increased density. Obviously, I can count. It
will pass, but I just want to say that for everyone that supported the Transportation
Investment Generating Economic Recovery (TIGER) grant, it was with the
understanding that it was going to improve the economy and so forth, but no one ever
talked about increasing the density. My other concern is that as the density increases
and these lot owners realize that they can put more density and they just do not have
COUNCIL MEETING 69 AUGUST 22, 2018
enough space in their building, then they are going to be moving to take away the
height limit on Rice Street. I have heard that talked about on this floor and I
definitely do not want to see that happen. It is going to happen because we are setting
it up for that. In the smaller buildings that cannot go wide, they will have to go up
and you will see a future Council contemplating that, and I do not want to see that
happen. For those reasons, I am just not going to support this Bill at this time. I
think if a landowner wants R-40, they can apply like everyone else. We have
Hanapepe and Kapa'a Town, both are thriving that we could look at giving them some
kind of density bonuses as well because those communities are ready. I know what
you folks are going to say, "No, the traffic is bad." Well, it is going to be bad on Rice
Street. We have an ability right now, to at least take a breath and I do not think the
traffic study that was done for the TIGER grant included doubling the density on Rice
Street. Anyway, those are my points for the day. Councilmember Yukimura.
Councilmember Yukimura: I want to say that yesterday, I was driving
down Rice Street and saw two (2) little boys that looked about seven (7) or eight (8),
trying to cross where there was not a crosswalk around where Kaua`i Economic
Development Board's former office was. I was going toward Nawiliwili. I motioned
them to go to the crosswalk, which is front of the TSA building, so they started moving
towards the crosswalk. I went and parked in front of the old theater just to help them
cross. I saw the first car stop to let them cross and starting to wave to the car in the
next lane to try to stop because they were really small. You could not really see them
with four (4) lanes. I have to say, I saw yesterday, I was so scared for those two (2)
little boys. Thankfully, all four (4) lanes stopped and let them across, but that is the
danger. We will slow the traffic down because there probably will be more lines of
cars, but I think it is going to be safer with three (3) lanes, one (1) being a turn lane,
but it will not solve the traffic problem. It could make more congestion, which is why
we have to go to a better bus system. We cannot just do it with cars.
Council Chair Rapozo: You are good, Councilmember Yukimura. It
is a compliment, do not get me wrong. I understand.
Councilmember Yukimura: It is the truth, please.
Council Chair Rapozo: The way you do that, you do it so well.
Councilmember Yukimura: Thank you. I will take that as a compliment.
But the other thing I want to say is that I do not agree with the case-by-case coming
in and every lot having to apply. That is why doing it on a regional basis is better.
But Council Chair Rapozo, I think you should have voted for my amendment because
it at least limited the number of units that would get this handout of density and still
give the R-40 a chance because, I have been talked to by the developer of the Crest
Building, more recently known as the Salvation Army building, and do you see what
he is doing? He is restoring that building that is going to be a beautiful building and
there is going to be new activity and economic development. The Kaua`i Realty
building, I think he is also doing that. They asked me for R-40. They said, "We need
R-40 to make it more." At that time, I did not even know the bill was coming, but I
was glad when it came and so there is a need. Two (2) or three (3) more units in the
Kaua`i Realty building or six (6) instead of three (3) is good. That is why I think it is
COUNCIL MEETING 70 AUGUST 22, 2018
good, but not just give density where you cannot have infrastructure. I think we could
try it with this first two hundred fifty (250) and see how it works and then move on,
and in the meantime, working on transportation, sewer, and water.
Council Chair Rapozo: Councilmember Kagawa.
Councilmember Kagawa: It is good news to hear that they are fixing up
that building, but I have seen numerous attempts from when I was small in trying to
renovate it. It always ends up being a furniture store of some sort just with a different
name. Seriously, I have seen it try to be something else, but then it always ends up
being a furniture store.
Councilmember Yukimura: That is why to try it on a small-scale instead
of a large-scale is going to be good. It is very exciting.
Council Chair Rapozo: It is. I am just stoked.
Councilmember Kagawa: And to your amendment, your amendment in
reality, will take place anyway. I think that is what Councilmember Chock realizes.
If the infrastructure is not there, they will not get approvals to move forward.
Councilmember Yukimura: I know, but you have given people R-40
density. If you ever want to condemn it, it is going to be double the value.
Councilmember Kagawa: It will never happen, though, without the
infrastructure or without them wanting to put in the infrastructure. What I am
saying is the infrastructure will hold up the development and people should be on a
first-come, first-served basis and hurry up. If the developers want to do it, they should
hurry up because whatever infrastructure is taken up, it will delay future requests.
Council Chair Rapozo: Are there any other comments?
Councilmember Kaneshiro
Councilmember Kaneshiro: I will make mine brief because I think I made
it clear in past how my vote will go. I will be voting for this. The way I see it, I think
we are following the plan and policy that we set forth in the Lihu`e Plan and General
Plan. Just in general when people talk about housing, we say, "What do we want to
see? Do we want to see urban sprawl into agricultural land or do we want to see
infill?" I think this is the first step in following the plan; the Lihu`e Plan, the General
Plan, and everything that we have been trying to do as far as creating more housing
in an area where people live and work and creating more density. This is exactly
what has been set forth and this is exactly the type of steps we need to take in order
to get there. If we do not make moves like this, then I do not see any movement in
trying to get infill or more housing. It is a scary step, but I think it is a necessary
step, so I will be voting for this.
Council Chair Rapozo: Anyone else? Go ahead.
Councilmember Yukimura: Oh, shoots. I forgot what I was going to say.
COUNCIL MEETING 71 AUGUST 22, 2018
Councilmember Kaneshiro: Just say you agree with me and we will vote.
Council Chair Rapozo: No, it was about the bus. It had to have been
about that. Transportation, maybe?
Councilmember Yukimura: No. That is alright.
Councilmember Brun: Good job. I call for the vote.
Council Chair Rapozo: Last chance.
Councilmember Yukimura: Oh, yes.
Council Chair Rapozo: Okay. Go for it.
Councilmember Yukimura: I know what I wanted to say. We should know
by now that we should not give density without really thinking seriously about it
because you cannot take it back. That is why this two hundred fifty (250) was a good
way to do it gradually. We still do not know how we are going manage transportation.
Council Chair Rapozo is right. We do not know how we are going manage all of the
other infrastructure. I think we should have gone more incrementally, but not one (1)
lot at a time.
Council Chair Rapozo: Okay.
Councilmember Kaneshiro: We talked about smart growth for years. We
have attended smart growth conferences. We have done all of this. I do not know
how you can apply the principles of smart growth without being willing to take a step
to increase density in an area. The smart growth principle will not happen if we do
not increase the density. I think this is exactly what we need to do.
Councilmember Yukimura: My amendment increased density.
Council Chair Rapozo: Are you folks ready?
Councilmember Brun: I am ready.
Council Chair Rapozo: Or do you want to stretch this out to
12:30 p.m.?
Councilmember Brun: No, I am ready to vote.
Council Chair Rapozo: Alright. Roll call. The motion is to approve
as amended.
Ms. Fountain-Tanigawa: No, just approve.
Councilmember Brun: No.
COUNCIL MEETING 72 AUGUST 22, 2018
Ms. Fountain-Tanigawa: The amendment failed.
Council Chair Rapozo: Oh, the amendment failed.
Councilmember Yukimura: Yes, the amendment failed.
Council Chair Rapozo: We are at the main motion.
The motion to approve Bill No. 2687, Draft 1 on second and final reading, and
that it be transmitted to the Mayor for his approval was then put, and carried
by the following vote:
FOR APPROVAL: Brun, Chock, Kagawa, Kaneshiro,
Kawakami, Yukimura TOTAL— 5*,
AGAINST APPROVAL: Rapozo TOTAL— 1,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: Kawakami TOTAL— 1.
(*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai,
Councilmember Yukimura was noted as silent, but shall be recorded as an affirmative
for the motion)
Ms. Fountain-Tanigawa: Motion passes.
Council Chair Rapozo: With that, that concludes the business for the
day. Everyone be safe, take care of your families, and we will see you folks at 1:30 p.m.
for an Emergency Meeting.
ADJOURNMENT.
There being no further business, the Council Meeting adjourned at 12:05 p.m.
Respectfully submitted,
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JADE ii'IT OUNTAIN-TANIGAWA
County Clerk
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Attachment 1
(August 22, 2018)
FLOOR AMENDMENT
Bill No. 2687, A Bill For An Ordinance To Amend Chapter 8, Section 8-2.1(A) And
Section 8-4.2(A), And Chapter 10, Section 10-5A.7(A), Kaua`i County Code 1987, As
Amended, Relating To The Comprehensive Zoning Ordinance And Lihu`e Town Core
Urban Design District
Introduced by: JOANN A. YUKIMURA
Amend Bill No. 2687, SECTION 4, to read as follows:
"SECTION 4. Section 10-5A.7(a) of the Kaua`i County Code 1987, as
amended, is hereby amended as follows:
"(a) Generally Permitted Uses and Structures in SPA-D.
(1) Accessory uses and structures;
(2) Art galleries and sales;
(3) Churches and temples;
(4) Clubs, lodges and community centers (private);
(5) Commercial indoor amusement and recreation facilities;
(6) Convenience store and neighborhood grocery stores with a twenty
thousand (20,000) square foot building footprint or smaller;
(7) Home businesses;
(8) Hotels and motels not to exceed RR-10 density;
(9) Household services;
(10) Light manufacturing, such as handicrafts and garment fabrication;
(11) Minor food processing, such as cracked seeds, jellies, candies and ice
cream with a twenty thousand (20,000) square foot building footprint or
smaller;
(12) Museums, libraries and public services;
(13) Offices and professional buildings;
(14) Parking garages/structures;
(15) Personal services, such as barber and beauty shops, salons, Laundromats,
shoe repair shops, etc.;
(16) Public offices and buildings;
(17) Public parks and monuments;
(18) Restaurants and food services;
(19) Retail sales and shops with a twenty thousand (20,000) square foot
building footprint or less;
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Attachment 1
(20) Multiple-family dwellings not to exceed R-20 density [provided no
dwellings shall be eligible for additional rental units (ARUs) pursuant to
Ordinance No. 1026] provided that:
(a) The first 250 units for which complete zoning permit applications
have been accepted by the Planning Department may have R-40 density on a
first come, first serve basis. The R-40 zoning shall be void for any R-40
entitlements that are not built within ten (10) years of issuance of the zoning
permit, as evidenced by certificates of occupancy.
(b) No multiple-family dwellings under this section shall be eligible for
additional rental units (ARUs) pursuant to Ordinance No. 1026;
(21) Single-family dwellings;
(22) Schools and daycare centers."
(Material to be deleted is bracketed. New material to be added is underscored.)
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YS_dmc.docx
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