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HomeMy WebLinkAbout10/22/2014 Council minutes COUNCIL MEETING OCTOBER 22, 2014 The Council Meeting of the Council of the County of Kauai was called to order by Council Chair Jay Furfaro at the Council Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kaua`i, on Wednesday, October 22, 2014 at 8:56 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Mason K. Chock, Sr. (excused at 5:14 p.m.) Honorable Gary L. Hooser Honorable Ross Kagawa Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Jay Furfaro APPROVAL OF AGENDA. Council Chair Furfaro: May I have an approval of the agenda? Before I ask for the approval, I want to let you know that I am going to ask for a deferral on the Resolution dealing with the recreational use of Hanalei Harbor. I found two (2) other models that are better; one (1) at Hanauma Bay and one (1) used at Waimea Bay. I would ask that you to me defer the Resolution until I can revisit some of those particulars which holds the Department of Land and Natural Resources (DLNR) as well as the Coast Guard more accountable. The second item is, my plan to take the Shoreline Setback Bill first. May I have an approval of the agenda? Councilmember Chock moved for approval of the agenda as circulated, seconded by Councilmember Rapozo. Council Chair Furfaro: Thank you very much. Any discussion? The motion for approval of the agenda as circulated was then put, and unanimously carried. Council Chair Furfaro: Seeing none, let us accept the Minutes. JADE K. FOUNTAIN-TANIGAWA, Deputy County Clerk: Public comment, Chair. Council Chair Furfaro: Oh, I am sorry. Because we are providing an opportunity for Public Comment on the Shoreline Setback Bill and the audience is quite full, I overlooked item (D). This is an opportunity for everyone pursuant to our Council Rules, to have three (3) minutes with no questions and answers (Q&A) to testify for three (3) minutes on nay item that had been posted on today's agenda. I would like to repeat again, this is for the convenience of the public so that they have a specific time where they give their input. So, do we have anyone who has signed up for section "D" under public Rule 13(e)? Ms. Fountain-Tanigawa: Yes, we have three (3) people registered for public comment. COUNCIL MEETING 2 OCTOBER 22, 2014 Council Chair Furfaro: You have three (3)? Please call out their names. Ms. Fountain-Tanigawa: The first member of the public for the public comment period is Gary Peirce. Council Chair Furfaro: Gary, come right up. PUBLIC COMMENT. Pursuant to Council Rule 13(e), members of the public shall be allowed a total of eighteen (18) minutes on a first come, first served basis to speak on any agenda item. Each speaker shall be limited to three (3) minutes at the discretion of the Chair to discuss the agenda item and shall not be allowed additional time to speak during the meeting. This rule is designed to accommodate those who cannot be present throughout the meeting to speak when the agenda items are heard. After the conclusion of the eighteen (18) minutes, other members of the public shall be allowed to speak pursuant to Council Rule 12(e). There being no objections, the rules were suspended to take public comment. GARY PIERCE: Good morning Council. The first item I would like to talk about, the communication for the increase of the General Excise Tax (GET) to three-quarter percent (0.75%). Really JoAnn, more taxes? The bus system here has gone up fifteen percent (15%) since last year's budget. There is another seven hundred fifty thousand dollars ($750,000) that is hidden for salaries in another Department. Bus systems work in an urban area, not in a rural area. There are other systems that we can use such as Uber and Lyft,which is a ride sharing program. The buses should be kept for your urban areas such as town cores. I just do not think this is appropriate at this point and time. The other communication for Council information is to the Director of Finance, the Treasurer of County, and the State. I would like to ask the question, how much is left from the two hundred million dollars ($200,000,000) that the County borrowed, what percentage rate are we paying, and what is the current deficit in our spending relating to our budget right now? My ballpark is somewhere between eleven million dollars ($11,000,000) and twelve million dollars ($12,000,000). Another comment I would like to make is on the communication to Mr. Bynum. This is requesting an update from the office on the Attorney's investigation for certain properties receiving land dedication. At this point in time, another lawsuit? In our budget, Special Counsel is up three hundred percent (300%). We just keep spending money on more and more lawsuits all the time. We are not even looking into whether they are going to come to fruition. Another thing is on the communication from our County Engineer. They are requesting eighty-six thousand dollars ($86,000) to replace a F250 Ford Pickup. It was either stolen or vandalized. Where did it go on this little island? I mean, that is a big truck. A twenty-five thousand dollars ($25,000) generator. I mean, I would like to see a police report or something. I mean, I just do not know how this can occur. Another communication from Civil Defense requesting Council approval to receive and expend grants from the United States Department of Homeland Security, via the State of Hawaii Department of Defense in the amount of five hundred fifty-five thousand five hundred fifty-two dollars ($555,552) to continue to enhance the capability of State and local units of government to prevent, deter, respond, and COUNCIL MEETING 3 OCTOBER 22, 2014 recover from threats and incidents of terrorism as well as all hazards. Sounds great, but are they giving us more Machine Pistol 5 (MP5) machine guns and another tank? More tear gas or maybe it is just surveillance equipment for those pesky Transient Vacation Rentals (TVRs). Speaking on that, maybe instead of hiring new people, we can put up a game camera and pin them with cell phones if you want to find out how many people are in the house. Mr. Rapozo, I do like the communication to find out how much the bus shelters are going to cost. I appreciate that, but I see unforeseen consequences with these bus shelters. A lot of places, they just turn into homeless shelters and you said there is going to be a trash can... Ms. Fountain-Tanigawa: Three (3) minutes. Mr. Pierce: ...at each and every one of them. I just see another twenty-two (22) transfer stations. I mean, there are so many unforeseen consequences. I will stop there. This is a long day today, and there is a lot of people. Thank you very much for your time. Council Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Yoshito L'Hote. YOSHITO L'HOTE: Good morning Council. My name is Yoshito L'Hote. I am here to represent the views of the Kilauea Neighborhood Association (KNA), and I will be reading my testimony. "Dear Honorable Kauai County Councilmembers. It is the position of the Kilauea Neighborhood Association," I am sorry. This is regarding Bill No. 2461, Draft 2. "It is the position of the Kilauea Neighborhood Association that we are better leaving things as they are in the Coastal Zone Ordinance (CZO) with regard to coastal setbacks, than adopting Bill No. 2461, Draft 2 as is. By reducing the shoreline setback on large rocky bluff properties by sixty percent (60%), it will affect not only seabird habitat, but the beauty of Kaua`i's coastal area. It is only in CZO Article 27 that view plain and the beauty of Kaua`i's coastal areas are protected, not in the Special Management Area (SMA), which is exactly what the Article in Bill No. 2461, Draft 2 intends to impact, by eliminating the one hundred (100) foot setback requirement for large lots on rocky bluffs. If the intention of introducing this Bill is to only address erosion control and not address the view plain, we will simply be repeating the same mistakes made with TVRs and waiting for studies to be done until a new ordinance is passed. However, the KNA feels that the hard work put into this Bill can be salvaged if you eliminate the rocky bluff exemption from this Bill. If this exemption is eliminated, the Bill is sound and should be passed. We put our trust in this Council to make the right decision and vote on an amended Bill No. 2461, Draft 2. If it is not amended, then kill this Bill for the sake of one of Kaua`i's best asset, its beauty." Mahalo. Council Chair Furfaro: Thank you. Next testifier. Ms. Fountain-Tanigawa: The last testifier we have is Hayley Hamyoung-Giorgio. HAYLEY HAMYOUNG-GIORGIO: Good morning Councilmembers. COUNCIL MEETING 4 OCTOBER 22, 2014 Councilmember Bynum: Good morning. Ms. Hamyoung-Giorgio: Let me get my maps out real quick. Okay. My name is Hayley ka ma Malamalama Hamyoung-Giorgio. I am a lifetime resident from Ha`ena. I still live there today. I am here to talk about Bill No. 2461, Draft 2. In voting on this Bill, we need to consider the long term future of Kauai. The one hundred (100) foot setback should remain in the new law along with eliminating exemptions 1 and 2. My reason for this, as we have seen in coastal communities all over the world, towns are having erosion issues and properties and roads are sliding into the ocean. As sea levels rise, anything around the ocean is threatened and it would be prudent to consider the island for the citizens yet to come. On a side note, I recently spent some time in Australia in an area near Sydney called Northern Beaches. In all of these little communities, the beach and access to the ocean was primarily given to the public. There were very few, if any, buildings with the exception of public use surf or beach clubs. I feel this type of open space, open access model should be seriously considered for all new development. I support Mason Chock's proposed amendment to this Bill. Mahalo for your time. Council Chair Furfaro: Thank you. Ms. Hamyoung-Giorgio: Thank you. Council Chair Furfaro: So, as this relates to our three (3) minute agenda for public comment, is there anyone else that has signed up? I will close that portion of the meeting. There being no one else to provide public comment, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: I would like to look at the Minutes for approval. MINUTES of the following meeting of the Council: September 10, 2014 Council Meeting September 10, 2014 Public Hearing re: Bill No. 2540 September 17, 2014 Special Council Meeting September 24, 2014 Council Meeting October 1, 2014 Special Council Meeting Councilmember Bynum moved to approve the Minutes as circulated, seconded by Councilmember Yukimura, and unanimously carried. Council Chair Furfaro: That will end this period for the Minutes. I am wondering if we have to go to the Consent Calendar or if I can go directly to the Shoreline Bill. Ms. Fountain-Tanigawa: We could just deal with the items on the Consent Calendar since they are to be received. CONSENT CALENDAR: C 2014-266 Communication (09/15/2014) from Councilmember Yukimura, transmitting for Council consideration, a Resolution urging the State Legislature to amend Hawai`i Revised Statutes Chapter 46 to provide the Counties the authority to impose a General Excise Tax surcharge of up to three-quarter percent (0.75%) to fund COUNCIL MEETING 5 OCTOBER 22, 2014 public transportation: Councilmember Kagawa moved to receive C 2014-266 for the record, seconded by Councilmember Rapozo. C 2014-267 Communication (09/29/2014) from the Director of Finance, transmitting for Council information, the Condition of the County Treasury Statement quarterly report as of August 4, 2014: Councilmember Kagawa moved to receive C 2014-267 for the record, seconded by Councilmember Rapozo. C 2014-268 Communication (10/06/2014) from the Acting Director of Personnel Services, transmitting for Council information, the July-September 2014 Department of Personnel Services Quarterly Report, pursuant to Section 19 of Ordinance No. B-2014-781, the Operating Budget of the County of Kaua`i for the Fiscal Year 2014-2015, which includes new hires, transfers, reallocations, promotions, and vacancies for the first quarter: Councilmember Kagawa moved to receive C 2014-268 for the record, seconded by Councilmember Rapozo. C 2014-269 Communication (10/14/2014) from Council Chair Furfaro, transmitting for Council consideration, a Resolution Renaming The Former Kapa'a New Town Park The "Mayor Bryan J. Baptiste Sports Complex" In Honor Of Bryan J. Baptiste: Councilmember Kagawa moved to receive C 2014-269 for the record, seconded by Councilmember Rapozo. C 2014-270 Communication (10/16/2014) from Council Chair Furfaro, transmitting for Council consideration, a Resolution supporting the preservation of the character of Hanalei Bay by restricting the use of large vessels that are operating within the Bay: Councilmember Kagawa moved to receive C 2014-270 for the record, seconded by Councilmember Rapozo. Council Chair Furfaro: I just wanted to say, I was hoping to have an opportunity during the Consent Calendar, have some dialogue with the Managing Director, but I will go ahead and follow-up then. This is to receive all items on the • Consent Calendar, C 2014-266, C 2014-267, C 2014-268, C 2014-269, and C 2014-270. I will reserve that dialogue when we actually get to the Resolution. I have a motion from Mr. Rapozo, am I correct? Councilmember Rapozo: From Mr. Kagawa, and a second from me. Council Chair Furfaro: From Mr. Kagawa and a second from Mr. Rapozo. The motion to receive C 2014-266, C 2014-267, C 2014-268, C 2014-269, and C 2014-270 for the record was then put, and unanimously carried. Council Chair Furfaro: Very good. So, let us focus on the Shoreline Setback Bill. Let me explain how I plan to approach this. There being no objections, Bill No. 2461, Draft 2 was taken out of order. Ms. Fountain-Tanigawa: Chair, this is on page 4. BILLS FOR SECOND READING: Bill No. 2461, Draft 2 — A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Amendments to the Shoreline Setback Ordinance): Councilmember Kagawa moved for adoption of Bill No. 2461, Draft 2, on COUNCIL MEETING 6 OCTOBER 22, 2014 second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Rapozo. Council Chair Furfaro: I have a motion to approve and a second. Let me go through a little bit of the history on this particular piece if I can. This is the third Shoreline Setback Bill that has been in front of this Council since 2009, 2012, and present. This Bill has had twelve (12) drafts in Committee and it has come to the Council in the way of four (4) more drafts with eight (8) amendments today. That is actually work that should be done at the Committee level. The two (2) most pressing items, and I will yield the floor to Councilmember Yukimura, is dealing with two (2) of those particular amendments; one that failed in Committee which was introduced by Vice Chair Chock, and the clarification of the setback bright line exemption by Councilmember Yukimura. For clarification, I would like to have dialogue on those two (2) items first, then I will take public testimony, and then I will go onto the six (6) other amendments. Since you are the co-introducer of the Bill, I give you the floor. I would like to limit this discussion to approximately twenty (20) minutes. JoAnn, you have the floor. Councilmember Yukimura: Yes, thank you, Chair. I do not think I was co-introducer of the bill. It actually came from the Planning Department and Councilmember Nakamura, I think, was the introducer at their request, but I was the introducer of the very first bill which established a shoreline setback. That was at the request of Caren Diamond and the community that we did the first bill, which resulted in what experts have said was one of the strongest shoreline setback laws in the Country. We are now in the third version of the shoreline setback law and adjusting it based on what the Planning Department has mainly experienced in the administration of the bill, and based on new data which we have from our Coastal Erosion Study, which we had anticipated when we passed the first bill. The first bill was kind of a rough approximation of what we thought the setback should be and in the interim of getting the Coastal Erosion Study, which we now have and are incorporating in Bill No. 2461, Draft 2 that is presently before us. So, with your permission Chair, I just want to show a few of the slides that show us what this bill is trying to prevent. Basically as we know, the ocean is a big force. We have often as human beings, wanted to be up close without understanding the dynamics of the coast. As a result, there has been huge harm and cost to life and property. Next slide. Is that it? Only one (1) slide? Oh, I see. So, we have three (3) of them. Do we have.one from Aliomanu? Because we do have one (1) slide from Kauai. Do we have that Ruby? Okay. So, we have a local example, if you will. This is what really brought about the shoreline setback effort. Is that all of our slides? Some of these are from other islands. Oh, this is Kekaha. Thank you. Council Chair Furfaro: Ruby, please. If JoAnn was not prepared for this presentation, give her some notes. The people cannot hear you so give her some notes. Councilmember Yukimura: Perhaps we could just ask Ruby to come forward. There being no objections, the rules were suspended. Council Chair Furfaro: Ruby come up, walk us through these slides, and remember, I am limiting this to twenty (20) minutes, please. COUNCIL MEETING 7 OCTOBER 22, 2014 Councilmember Yukimura: Thank you, Chair. The presentation will not be ten minutes. RUBY PAP, University of Hawai`i (UH) Sea Grant Coastal Land Use Agent: Good morning. I apologize for that. I am Ruby Pap. Just pointing out, this is the Kikialoa area in Waimea. Recently, these sand bags were put up to protect the homes, it is a severely eroding coastline. Councilmember Yukimura: Okay, next. Ms. Pap: I think that is the last slide. Councilmember Yukimura: Did you want to say anything more about previous slides? Ms. Pap: No, I am fine. Councilmember Yukimura: Thank you very much. Ms. Pap: Unless there are questions. The meeting was called back to order, and proceeded as follows: Councilmember Yukimura: This was just an effort to create the context that we have been working in. Thank you, Ruby. I want to note resource people from University of Hawai`i (UH) Sea Grant Program, Dolan Eversole and Dennis Hwang. They are here to help us in our discussions if we have any questions about any of the pertinent issues. We are trying to stay targeted on the last remaining issues in this Bill. So, there are two (2) main amendments regarding what we are calling the "bright line exemption." I believe that is what most of you are here to testify on. So, I would like to have a discussion, maybe from both the introducers of the amendments and question and answers among Councilmembers, so we can get a clear understanding of what the choice is and what the issues are. Then, as the Chair said, we will then take testimony on the issue. Council Chair Furfaro: I just want to make sure everybody understands, this bill is a shoreline bill for all of Kauai. It is not project specific. There are commentaries that I have heard about this being project specific. This bill does not exempt people from the Special Management Area (SMA), okay? This sets the tone, the direction, and the parameters for the whole island. Specific projects required Special Management Area permits. They are required to have a public hearing that is before the Planning Commission and the Planning Director. They have an opportunity in those Planning Department SMA meetings to mitigate any impacts on project specifics. So, I want to make sure we keep our understanding of what this bill is doing in its third draft over the last six (6) years. So, it is very important that we understand that it does not exempt anyone from the SMA process and the public hearing. Thank you very much. JoAnn, you have the floor. Councilmember Yukimura: Thank you, Chair. You are correct. In many cases, and very certainly with large developments in the SMA, the developers will have to go through the SMA process which is a separate permit which contains a lot of criteria dealing with aesthetics, wildlife habitat, and those kinds of issues. The shoreline setback law, which is before us today, does things on a case-by-case basis as well. Every developer who proposes a structure has to come in to set back the structure based on coastal erosion rates and hazards. So, this bright line exemption would exempt them from what is called the "shoreline setback determination." It COUNCIL MEETING 8 OCTOBER 22, 2014 does so only in a very specific set of circumstances where the assumption is, and people can question the assumption, the assumption is that there will be no possibility of coastal hazard and erosion. That is what we were trying to establish this bright line, as a way to...they still have to; however, under this amendment, they have to do a sixty (60) foot setback from the shoreline with the new amendment as proposed from a shoreline that has been surveyed within twelve (12) months of the time that the development is before the Planning Commission. So, perhaps Vice Chair Chock, do you want to explain your amendment? Councilmember Chock: Thank you. My amendment that was posed in the last meeting takes out the bright line exemption. If you look at Section 8-27.3, it would be taking out the three (3) criterion, and particularly what is of concern for me is the rocky shoreline, for the reason that we do not know how many parcels would be affected at this time. We do not have the data on it and if we had the data, then we would be able to make a better determination of how this might be affecting the shoreline in these areas. The other reason that I think the rocky shoreline becomes problematic for me is as a fisherman, as a user, and I know that we have some science to support this, but we have a mixed amount of rocky mud, sand, and it is everywhere on every property along every shoreline. I think it does leave some gray area for us to...although as scientific as we can be, it does leave some room for interpretation. I would like to get a little bit clearer and feel better about the process that we have in place for this rocky shoreline. It is not for me about view plains or even about habitat. It is really just about not knowing enough information, and for that reason, I have asked to eliminate these exemptions. Also in addition, and I will not speak for the Planning Director, this still allows the Planning Director in this Section to make a case-by-case determination, which I think is really important because we have a condition that is so fluid. In speaking with the Department whether or not this would interfere with their processes, I was told that it would not. I think that this is something that we should consider. We had the most stringent Shoreline Setback Ordinance, and this in fact, would start to deteriorate it. I applaud the efforts of Councilmember Yukimura and the Committee who has been together for a long time, to try and discern how we might be able to pull some of the pieces out to allow homeowners and other owners to have more flexibility, but I am not sure if this is answering it for me at this point. Thank you. Councilmember Yukimura: Thank you. I would like to call, on the issue of rocky shorelines which is a very legitimate concern, perhaps the two (2) experts, Dolan and Dennis, if you would come forward with the Planning Director. Council Chair Furfaro: A reminder to the gentlemen that are coming up, I am using my courtesy and our need of sense of place to allow the Councilmember to have some discussion, but I am limiting you until 9:30 a.m. We have had twelve (12) Planning Committee meetings on this subject. One (1) housekeeping item here if you will hold on. Mr. Kagawa. Councilmember Kagawa: I just want to state for the record that we saw the slides and the explanation at Planning Committee on Ruby's presentation on what was to be a rocky shoreline and what was not to be considered a rocky shoreline. I am kind of confused as to whether Councilmembers do not believe what she said was to be a rocky shoreline or not. It was my interpretation that Ruby explained clearly that if there was a mixture of sand, dirt, or rock, it is not a rocky shoreline. Anything erodible is not a rocky shoreline. So, it is clear to me that I think Ruby explained what is not a rocky shoreline and what is a rocky shoreline. So, I mean, we can do this presentation if that is what the Council wants, but I think we have seen that presentation. COUNCIL MEETING 9 OCTOBER 22, 2014 Council Chair Furfaro: Again, I want to make myself very clear as Chairman here. Do not confuse my sense of having dialogue and aloha with trying to...but we have spent time on three (3) different bills over six (6) years to get us where we are. I am allowing Councilmember Yukimura to have this. At the end of the day, if we cannot come to some conclusion, I am going to look to the majority of the Council and I may ask that this bill be sent back to the Planning Committee, okay? Let us get some final clarification, and gentlemen, if you can introduce yourselves, I will give the floor back to Councilmember Yukimura. Could you introduce yourselves? There being no objections, the rules were suspended. DENNIS HWANG, University of Hawai`i (UH) Sea Grant, Coastal Hazard Mitigation Specialist: I am Dennis Hwang with the University of Hawaii Sea Grant. Council Chair Furfaro: Hit the front of the microphone for the blue light. Mr. Hwang: I am Dennis Hwang with the University of Hawai`i Sea Grant. DOLAN EVERSOLE, University of Hawai`i (UH) Sea Grant, National Oceanic and Atmospheric Administration (NOAA) Sea Grant Coastal Storms Program Coordinator, Pacific Islands Region: I am Dolan Eversole with the University of Hawai`i Sea Grant. MICHAEL A. DAHILIG, Planning Director: Mike Dahilig with the Planning Department. Councilmember Yukimura: Thank you. Councilmember Kagawa and our Chair have expressed their concerns about going over this issue, but I think there are members of the public who consider it important. So, I think the question is, you have read the proposed bright line exemption provisions, and for me the question is —and I think it underlines Council Vice Chair's concerns as well, but he will have a chance to question you, is whether or not there is danger of coastal erosion or hazards with a proposed structure under these circumstances. Mr. Hwang: Under? Councilmember Yukimura: Under the circumstances of the bright line exemption. Mr. Hwang: I would welcome anyone to make a comment,. Dolan. The other thing too, I want to mention we are here not to support or... Councilmember Yukimura: Correct. Mr. Hwang: ...any of these bills, just to answer questions. Councilmember Yukimura: In your technical expertise, if something is thirty (30) feet high, outside of the Federal Emergency Management Agency (FEMA) maps, and on a rocky shoreline as defined, and as pointed out, the definition of rocky is very tight intentionally. Mr. Hwang: Right. COUNCIL MEETING 10 OCTOBER 22, 2014 Councilmember Yukimura: Will there likely be a problem of coastal erosion or hazards? Mr. Hwang: Probably the risk to erosion is minimized. It is not going to be like you are on a sandy beach where there is erosion rates. So, that risk is minimized. There are always risks of other hazards. Councilmember Yukimura: Such as? Mr. Hwang: Well, when you are near a cliff, there is cliff erosion. I mean, there is slope instability undermining. Wind is amplified near cliffs. So, you are reducing the risk, but can never say there is never any risk. Then in terms of rocky, it is defined here, and as Councilmember Kagawa mentioned, if there is a question, if it is mixed, it should not be classified as a rocky shoreline. The other thing too is, it is possible for the Planning Department, if they wanted to put guidance together on what is classified as rocky, they could further clarify it because these are detailed questions that are usually not put in that much detail and in the rules. Councilmember Yukimura: So, they could develop some rules if they wanted to? Mr. Hwang: Rules or guidance on how the Planning Director would think or would guide his decision on how this provision would be implemented. Councilmember Yukimura: Alright. Thank you. Any other comments, and Mike, you are here because I want to ask about the aesthetics question. Mr. Eversole: Dolan Eversole. I do not have a lot more to add to what Dennis has said, but maybe echoing the sentiment. As Hazard Mitigation Specialists, we talk a lot in terms of probability. So, by this narrow definition of rocky or the bright line exemption, would it completely eliminate all of the risks? No, but we are talking probabilities and I would agree with Dennis that it minimizes. By that definition of rocky shoreline, I think it minimizes the erosion risk. Depending on the location though, you do need to consider other hazards other than just erosion, catastrophic bluff failure, things like that. Tsunamis can overtop high bluffs even. I think from a typical coastal erosion standpoint which is the focus of this ordinance, having this definition of rocky shoreline greatly reduces that risk. Councilmember Yukimura: Well, and I want everyone to know that we are not using hurricanes as a standard for setback because if we did, everything would be about five hundred (500) feet of so back. This was mainly to address erosion and hazards. Do you have questions regarding that? Councilmember Chock: Sure, I could. Councilmember Yukimura: Or anybody else? Councilmember Chock: I totally understand. I mean, we have different kinds of shorelines. I understand where Councilmember Kagawa is going with this, but there are large pieces of land properties that have shorelines that are rocky and mixed all along the coastline. There could be a possibility of us having some of that mixed use depending on how these parcels are divided. So, you might have one that is half rocky and then the other half mixed or sandy and so forth. This is where it starts to get a little cloudy for me, is to understand how it is we are determining where we cut that off or how it is subdivided in the future because this COUNCIL MEETING 11 OCTOBER 22, 2014 could have an impact on specific lots or houses. So, you might have some that are further back and some right up onto it because it does not meet the criteria. Those are issues that I am still again, unclear about. I do like the flexibility of having our Planning Director look at each as it arises. Again, the issue that I have is that we just do not know. We have not studied it further enough. We do not know which ones are going to be affected because we have not looked at all of them. Councilmember Yukimura: Okay, thank you. Councilmember Chock: That is not a question. Sorry. Councilmember Yukimura: No, that is okay. It is just that this will be case-by-case. So, it is not going to be a parcel that is exempted. Let us just clear about that. It will be case-by-case. Every proposal will get studied by the Planning Department to see if they meet this criteria. I want to, because time is limited, a lot of people here seem to have issues about aesthetics, which is not in the criteria at all of the shoreline setback. I want to ask our Planning Director what other tools there are for, and I think the SMA Use permit has been the one most often mentioned. Can you please explain how that is handled and how it can address some of the issues that people are concerned about? Mr. Dahilig: Okay. For the record, Mike Dahilig. I am sorry, my throat is a little raw this morning. Councilmember Yukimura: Please speak up because I want everybody to hear. Mr. Dahilig: Let me speak as close as I can to this. We do have other mechanisms and other regulatory tools to address issues like aesthetics and issues like form and capability with the shoreline. As you mentioned earlier, we have the SMA Use permit process which is a very public process that does involve an agency hearing, and the ability for the public to intervene. I think one classic case where you have seen the public get involved with a form and character discussion along the shoreline with respect to aesthetics massing et cetera, has been the Kealia Kai SMA Use permit that was actually intervened and then taken to court. So, that process worked with respect to the public being able to interface very vigorously in trying to protect the form and character along the shoreline. Just for clarification, that is authorized under State law, Hawai`i Revised Statutes (HRS) 205A, and that permit is actually interpreted to be superior to both our County zoning permits as well as superior to Conservation District Use permits. That has been clarified by Sam Lemo, that both permits have to be in line with what are the form and character aesthetics that are prescribed the SMA Use permit. Beyond that from a County level, we have things called"special treatment districts." These special treatment districts are already specifically identified in many maps across the County and especially, the particular one that would be applicable in this case, is scenic and open space. So, we do have areas that require again, a public hearing, a very public process before the Planning Commission... ALLISON S. ARAKAKI, Council Services Assistant I: Twenty (20) minutes. Council Chair Furfaro: Thank you. Mr. Dahilig: Do you want me to finish? COUNCIL MEETING 12 OCTOBER 22, 2014 Council Chair Furfaro: You may continue, but these are my rules, and I am going to extend the time. So, please, I want to get on to public testimony. Mr. Dahilig: Thank you, Mr. Chair. I will wrap it up very quickly. That particular process, we believe if specifically aligned can close the loop hole with respect to concerns about single family units. I know that the SMA HRS 205A regulations provide a State law exemption for single family units that are under seven thousand five hundred (7,500) square feet. However, from a County standpoint, we can still come in and regulate if specifically identified as an area of concern. The same type of scrutiny and process that the SMA mirrors through a public intervention process. So, we do have those tools on a State law standpoint that we implement as well as a County law standpoint through our Zoning Code. Councilmember Yukimura: Thank you. Judy Dalton came to our Committee Meeting, I think, and talked about her... Council Chair Furfaro: Excuse me, JoAnn. Let us use these people here. I mean, for some of us who have never been to your Committee Meetings with Judy Dalton... Councilmember Yukimura: Chair, excuse me, but I am relating it to what Mike Dahilig has spoken about so people understand that what Judy was talking about came under that contested case that came under the SMA permit that he mentioned for Kealia Kai. Council Chair Furfaro: Okay. You know, I will go ahead and let you answer that question, but even that one, I had a problem with because this is a shoreline bill. It is not about where we put the trees and how we plant it, the cosmetics of the project. Councilmember Yukimura: I... Council Chair Furfaro: That comes from the SMA permit, but I will yield aloha to you, and go right ahead. Councilmember Yukimura: Thank you, Chair. I understand what you are saying, but I think a lot of people in the public do not understand, and they have legitimate concerns about view plains and intrusion of the view plains. What I wanted our Planning Director to explain is that we do have systems of laws in place that actually address this. Judy talked about somebody holding a post on the lot and people being down on the beach and doing a walkie talkie talk about no, you have to be further back, you have to be closer, or whatever it is. That came under the SMA Use permit process. Is that correct? Mr. Dahilig: That is correct. Councilmember Yukimura: Then, the elephant in the room is the Omidyar development, which is proposed for Hanalei. People feel that this is going to give the Omidyar development an exemption. I would like to ask you to clarify that Omidyar will have to get an SMA permit. Mr. Dahilig: As of this time, there is no SMA permit to conduct any development. Councilmember Yukimura: There is no application? COUNCIL MEETING. 13 OCTOBER 22, 2014 Mr. Dahilig: There is no application nor is there any sitting entitlement to meet the SMA requirements. Councilmember Yukimura: And he cannot, under the law as presently established, he cannot do a development without an SMA permit? Mr. Dahilig: I want to be careful because I do not have any proposals in front of me at this point other than to say that what has been put out in the public by representatives of`Ohana Hanalei would require an SMA permit. There are certain things that are within Chapter 205 that are exempt by State law with respect to the definition of development that they do not need an SMA permit. That is why it is hard for me to articulate it and say from a standpoint of... Councilmember Yukimura: But if they want to do buildings on the bluff... Mr. Dahilig: If they want to do buildings on the bluff, again, if it does not meet an exemption under Chapter 205A, they would need an SMA permit. Councilmember Yukimura: Okay. What kind of exemptions? Mr. Dahilig: Under Chapter 205A, there are definitions of development and not development. Those are prescribed by State law. Councilmember Yukimura: Oh, yes, and the definition of development is very extensive. Mr. Dahilig: If they are proposing something that is by State law, not development, then they do not need to meet Chapter 205A. Councilmember Yukimura: Well... Mr. Dahilig: But there is like twenty-one (21) different items. None of those items are hotel. None of those items are a large timeshare resort. A lot of the items are not of master development. These are very specific things like Civil Defense sirens, things like that. Councilmember Yukimura: Okay, Mike. Mr. Dahilig: When you use the phrase "development," I have to articulate it that way. Councilmember Yukimura: Okay, but a building that is part of a hotel or a timeshare is a development under the definition of SMA and would have to get an SMA permit, would it not? Mr. Dahilig: Theoretically, yes. I do not have an application in front of me. Council Chair Furfaro: Okay. JoAnn. Councilmember Yukimura: Chair, I think others may have questions. Council Chair Furfaro: Yes, I believe they do, but I want to make sure I am going to recap the rules for everyone. I gave you the courtesy of the twenty (20) minutes because that is what is in our rules if you were the introducer of the bill. You COUNCIL MEETING 14 OCTOBER 22, 2014 came back and told me you were the co-introducer of the bill, that it was Nadine, but I still gave you the twenty (20) minutes. Councilmember Yukimura: Mr... Council Chair Furfaro: Gentlemen, we appreciate you being here, but at this time, we will come back to JoAnn a little later. We have other questions for you at the table. Councilmember Yukimura: Mr. Chair, I just want to say, this is not a presentation. This is, I thought, a Council discussion. Thank you. Go ahead. I give the floor back to you, Chair. Councilmember Rapozo: Thank you. Councilmember Bynum: I think he already had it. Council Chair Furfaro: Mr. Chock, I would like to give you the floor, then I have a question from Mr. Bynum, then I have a question from Mr. Rapozo, and then I have a question from Mr. Hooser. Go right ahead. Councilmember Chock: Thanks, Chair. Just about the rocky shoreline to get a little bit clearer on it. Can you give us some indication as to what it would take to identify the amount of parcels affected? I know that Ruby had suggested that there could be more work done on it at one time. But we are not sure what it would take. Mr. Hwang: Right. Councilmember Chock: Is there any indication of what that is or what it would cost? Mr. Hwang: If the shorelines were rocky, what percent of the coastline... Councilmember Chock: Yes. Right now we do not know how many of these would be affected around our island. Mr. Hwang: I do not think it is in your Geographic Information System (GIS) database. Councilmember Chock: It is not? Mr. Hwang: I do not think it would take that much time to determine, but a lot of these issues have come up and we can look at those if you want, but we have not. I cannot tell you what percent of the shoreline is rocky here. You can get a rough idea by just going on your"Map" function on your smartphone or your IPad and go on the satellite image viewer and the three-dimensional (3D) viewer. That would give you some idea, but it would not be following any specific criteria that we would try and develop. Mr. Eversole: If I may just to help clarify your question. I think it would be far more efficient to do it on a case-by-case basis rather than go around the whole island and map it ahead of time. I mean, one way you can do that is do an aerial survey with a helicopter or something like that, and literally just take video and photos. Then you would have some record of it, but then you would have COUNCIL MEETING 15 OCTOBER 22, 2014 to figure out where the parcel boundaries are and that takes time. Probably much more efficient to just review it on a case-by-case basis, much like shorelines are certified now, rather than you do the whole island, you do it as needed. Councilmember Chock: Thank you. Council Chair Furfaro: Are you clear? Okay. Mr. Bynum, then Mr. Rapozo. Councilmember Bynum: I do not have any questions for the Sea Grant people because you presented all of this before. Everything we just did, we did before, with my question is for Mike. Explain to me again, how the County can get over these single family exemptions. That is the only new information I heard today. Mr. Dahilig: For further discussion, it is under Section 205A-22, which is the definition section. What is not considered development under the State law, is the construction or reconstruction of a single family residence that is less than seven thousand five hundred (7,500) square feet of floor area and not part of a larger development. That is explicit under State law. We cannot supersede that; however, from a County zoning standpoint, we have the authority to preserve things from a scenic and open space standpoint. We have zoning overlays, specifically special treatment districts that can be spatially defined around the island that require Class IV Zoning Permits. A particular example of this is the development along Sea Cliff Plantation out at Kilauea, where we have a number of homes that are along the bluff area even though they had a master SMA permit and a permit for the subdivision, which still needs to come before the Planning Commission and receive a Class IV Zoning Permit because they lie within the scenic and open space districts. The way that you can provide an SMA style review of these particular single family homes from amassing, and a view plain impact standpoint is to spatially include these areas on the zoning maps and say that the special treatment section within Chapter 8 does apply, and therefore, you need a Class IV Zoning Permit. Councilmember Bynum: So, we would have to have further Counsel or further legal action to cover all of the areas that they are still—it is like a case-by-case basis. Some areas we have control, others we do not, is what I heard you say. Mr. Dahilig: But it is within the authority as long as it is within State land use, urban, agricultural, or rural, that you can create a zoning layer for these areas. Councilmember Bynum: But we have not done that everywhere have we? Mr. Dahilig: You have not, but the opportunity is there that should... Councilmember Bynum: Okay, you have answered my question. I am clear now. I do not have any more questions. Council Chair Furfaro: Mr. Rapozo, you have the floor, then Mr. Hooser, and then Mr. Kagawa. Councilmember Rapozo: I actually had a question regarding the process that we are going through, the amendments. COUNCIL MEETING 16 OCTOBER 22, 2014 Council Chair Furfaro: No, this is what I am going to do. This is my plan, at least that is how I started the morning with a plan. We are going to hear from them and then I am going to call up public testimony before I go to any vote on any of the amendments, but those two (2) amendments, I thought, Mr. Chock's came out of Committee and was defeated. JoAnn's, one was prepared for the full Council. I thought we should have some dialogue on that, but then I am going to go back to public testimony. I hope I answered your question. Councilmember Rapozo: You did, and I guess I just wanted to express my concern. Earlier, you rightfully stated that this is not a project specific bill and a lot of the discussion and the dialogue was project specific. I do not want to go there. This is not about the Princeville development. This is not about Mr. Omidyar or any of that. When we get into questions about specific structures on a project, I think we are crossing the line. I just want to make sure that we use this time for questions, and then the discussion on the amendments and the validity should come later. Council Chair Furfaro: Yes. Councilmember Rapozo: Because I am seeing this thing going... Council Chair Furfaro: No, no. I think you reconfirmed what I said earlier when I talked about, for the general audience, every project is, and I think now Mike has clouded it a bit, but every project is, especially at this size, required to have an individual SMA permit. It is required to trigger a public hearing. That is required, but this one is about our bill for the island, the concept and the parameters for the island. Councilmember Rapozo: Thank you, Mr. Chair. Council Chair Furfaro: Mr. Hooser, you have the floor. Councilmember Hooser: Yes, this is for the Planning Director. Thank you, gentlemen for being here. The Special Management Area (SMA) extends, if you could for the public and for all of us, how far does that extend from where to where? Mr. Dahilig: It varies generally around the island, but when the layer was created, they tended to use physical benchmarks as the lineation between in and out. So, a lot of times you will see what is makai of the highway as being within the SMA. Sometimes you will see ridges as being the delineation. So, these were layers that were created when the SMA law was created in the 1970s. Councilmember Hooser: It is not an "x" number of feet from the shoreline? Mr. Dahilig: No. Councilmember Hooser: It is a line on a map? Mr. Dahilig: It is a line on a map. Councilmember Hooser: Okay. If you build outside the line or develop outside of the line on the map, is a lot less restrictive? Mr. Dahilig: That is correct. COUNCIL MEETING 17 OCTOBER 22, 2014 Councilmember Hooser: Okay. Is it possible for someone to come in and subdivide the SMA portion out and then develop on the rest of it? Mr. Dahilig: It is possible as long as they are meeting the criteria of Section 22 and Chapter 205A. If you create more than four (4) lots within the SMA, then you are supposed to go through the full "use" process. Councilmember Hooser: Okay, but you could develop two (2) lots, carve out the SMA, and then...what about an SMA in a bluff area? If you are way up there at the top, is that also in the SMA? Mr. Dahilig: It could be. There are cases particularly near, I guess, Ka`aka`aniu Beach where there are cliffs, but that area is on the bluff within the SMA. Councilmember Hooser: So, like in Kauapea? Mr. Dahilig: That is another prime example where you have... Councilmember Hooser: At the top bluff where those houses are built, are they built in the SMA? Mr. Dahilig: Some are, some are not. So, there is an exemption again, for structures that are under seven thousand five hundred (7,500) square feet. They can be built within the SMA without an SMA permit; however, some choose to sit outside the SMA because of the square footage limitation. Councilmember Hooser: Seven thousand five hundred (7,500) feet for a home? Mr. Dahilig: I could editorialize, Councilmember, but I see where you are going, but that is the law. Councilmember Hooser: Okay. Thank you. Thank you, Chair. Council Chair Furfaro: Then I would like to go to Mr. Kagawa, and then I would like to start taking public testimony. Councilmember Kagawa: Thank you, Chair. I will keep it really quick. If we can go to the next slide. My question is simple, rocky or not rocky? Keep going, right there. I am not talking about the sand area because we know that is not rocky. So, this picture, rocky or not rocky? Any one of you can answer. Mr. Hwang: Well, you are talking about the far... Councilmember Kagawa: It is Kalihiwai. Mr. Hwang: ...or the background? Councilmember Kagawa: The rocky area, of course. Mr. Hwang: The background, yes. Councilmember Kagawa: So, that is rocky? COUNCIL MEETING 18 OCTOBER 22, 2014 Mr. Hwang: Right. Councilmember Hooser: It is a trick question. Councilmember Kagawa: Okay, next, no, I am serious. Next one, right here, Kalihiwai again, not the sand areas. Is that rocky or not rocky? Mr. Hwang: Rocky. Mr. Eversole: It is rocky, yes. Councilmember Kagawa: Rocky, next, this one...if you cannot see it real clear, it is a lot of small rocks in front of the sticks and debris. Is that rocky or not rocky? Mr. Eversole: Yes, it is hard to tell. I would need to know what is underneath that greenery, but based on the shoreline, it cannot be dynamic according to the definition. I would not call that rocky... Councilmember Kagawa: It is not rocky. Mr. Eversole: ...by this definition. Councilmember Kagawa: Okay, next one, right there....it is like a stone reef mixed in with a pocket of sand there. Would that area be considered rocky or not rocky, or do we need more investigation? Mr. Eversole: We probably need to look at it a little closer. Councilmember Kagawa: Okay, that is good that we just honest at this point as we look at it. Next one, right there, property behind that reef, is it rocky or not rocky? Mr. Hwang: Not rocky. Councilmember Kagawa: Not rocky? Clear, okay, good, next one, right there. Mr. Hwang: Not rocky. Councilmember Kagawa: Is that rocky or not rocky? Mr. Hwang: Not rocky. Councilmember Kagawa: Yes, I am talking about the house behind that big wall. Is that rocky or not rocky? Mr. Eversole: It is a manmade structure so... Councilmember Kagawa: It is not rocky, right? Okay, I mean, my point is it is pretty clear; however, there are some areas where we need to go and scratch a little more, and get a little more evidence, right? Thank you, Chair. Council Chair Furfaro: Gentlemen, what I am going to do, we started at 8:30 a.m. and I do not want to have to break for another break in forty-five (45) minutes. So, what I am going to do is, I am going to thank you for your time. If you COUNCIL MEETING 19 OCTOBER 22, 2014 can stay, we may call you up later, but we are going to take our ten (10) minute recess, our caption break now, so that we can continue uninterrupted. We will start up again at 10:00 a.m. with public testimony. We are now in recess. There being no objections, the meeting recessed at 9:50 a.m. The meeting reconvened at 10:01 a.m., and proceeded as follows: (Councilmember Kagawa and Councilmember Rapozo were not present.) Council Chair Furfaro: We are back in session. We are going to start with public testimony. How many people do I have signed up, please? How many more? Ms. Fountain-Tanigawa: Chair, we have six (6) people signed up. Council Chair Furfaro: Okay. For those of you that want to give testimony, it is at the discretion of the Chair whether I give you three (3) minutes and a call back for another three (3), or it is my ability to give you all six (6) minutes upfront. I have decided since we have six (6) people left that have not spoken, I will give you all six (6) minutes upfront. Is there anybody in the audience that I can see that has not signed up and that wants to speak? Okay, we have one (1) more to sign up. Who is our first speaker? Ms. Fountain-Tanigawa: Chair, our first speaker is Mika Ashley-Hollinger. Council Chair Furfaro: Okay, Mika. (Councilmember Kagawa and Councilmember Rapozo were noted as present.) Council Chair Furfaro: Mika, you are testifying on the whole bill as it is. There being no objections, the rules were suspended to take public testimony. Council Chair Furfaro: Press the front pedal. There you go. MIKA ASHLEY-HOLLINGER: Push. Council Chair Furfaro: Do you have a blue light? Ms. Ashley-Hollinger: Huh? Council Chair Furfaro: Do you have a blue light, Mika? Ms. Ashley-Hollinger: A blue light, yes. Aloha kakahiaka Councilmembers. First of all, I want to thank you for all of the hard work you do. I know this is a lot of hard work. My testimony, I will keep really simple. I think that you should just simplify government and just make it one hundred (100) feet, period, for everybody no matter how big or small your pocketbook is. One hundred (100) feet setback. It does not matter if it is rocky shoreline, sandy shoreline, anything. It is our coast. We are on an island and our coast should be salvaged. We are one of the very few inhabited islands that have endangered species living here. We have the Albatross and the Shearwaters, and they are nesting all over this island. One of the things we might actually think about monetarily, wise is eco-tourism. We have a COUNCIL MEETING 20 OCTOBER 22, 2014 very, very unique place here. I think aesthetics is extremely important. I do not think any of us want to walk down on our beaches or anywhere and look up and see big houses. Big house, small house, any kind of house. One hundred (100) feet is a lot of property. The houses that are building back there, they all have incredible views. We are not taking their views away because I do not think we should change the laws for a few developers or even one (1) person. It is the shoreline that should be protected, period. The whole coast should be setback at least one hundred (100) feet. By doing that, you would not have to do all these little things here and have a special management permit. This is so time consuming for everybody, the Planning Department, the Council, everyone. Just make it one hundred (100) feet and keep it that way. When people come here to build, they know what they have to do. As far as our shorelines we are not going to stop global climate change, it is happening. Hopefully, something will prevent it from doing too much more, but we are an island, and this is happening. We should not be building on our shorelines or on our cliffs any closer than one hundred (100) feet. Please, start thinking eco-tourism. People would love to come here and see —we have Shearwaters, we have the monk seals, and we have some incredible things here. It would work. Instead of making more hotels and houses, I am sure people would come here to visit this beautiful island. That is all I have to say. Mahalo for your hard work and mahalo in advance for making the right choice. Please. Councilmember Yukimura: Question. Council Chair Furfaro: Questions for the speaker? Councilmember Yukimura: Mika, thank you for being here, coming all the way from Kalihiwai. Ms. Ashley-Hollinger: It was a long way. Councilmember Yukimura: Yes, I know. If we were to make it one hundred (100) feet as you say, there would be people who could not build a house on their lot and it would take us into what is called "a Constitutional taking," which would be illegal and even if we were to say, "We will leave that open space for Albatross or for others," that would also be a taking. So, that is some of the issues we have to address. Ms. Ashley-Hollinger: Well, all of the land, I mean, does it have to be built on? Councilmember Yukimura: Some people have small lots. Ms. Ashley-Hollinger: Small lots? Okay. Councilmember Yukimura: That is why it is so complicated. Ms. Ashley-Hollinger: It is complicated, but I am just coming from an eco-point of view that we really need to save our island. Councilmember Yukimura: The law requires a balancing of interests. Ms. Ashley-Hollinger: Okay. Councilmember Yukimura: Thank you. Ms. Ashley-Hollinger: I understand. Thank you very much. COUNCIL MEETING 21 OCTOBER 22, 2014 Council Chair Furfaro: • Thank you. Our next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Hob Osterlund. HOB OSTERLUND: Aloha kakahiaka. I have already heard testimony from people that I do not need to repeat, and I am going to try to come in under the three (3) minutes just to make friends. Make it short. Council Chair Furfaro: I do want to let you know if you decide to keep it short, I will not call you back for another three (3) minutes. Ms. Osterlund: I understand. Council Chair Furfaro: I am giving everybody their six (6) minutes up front. Ms. Osterlund: I understand. Council Chair Furfaro: Good. Thank you. Ms. Osterlund: Thank you, Mr. Chair. Pardon. I am Hob Osterlund. I am a founder of something called "The Kaua`i Albatross Network" here on Kauai. I am a longtime resident and I have testimony in front of me that I prepared, but as I said, some of it has already been stated. So, I am not going to repeat it. I do want to mention two (2) animals, native and non-native. The non- native one I want to mention, JoAnn brought up earlier, the elephant. The elephant in the room to me, is not the same. The elephant in the room to me is why would we consider this exemption? That is the question. I know this is rhetorical and you cannot answer that at the moment, but what is the purpose of doing an exemption? How does it serve Kauai? That is the question that I think would be very helpful for the public to understand. Why should we move it from one hundred (100) feet? I understand with properties that are less than one hundred (100) feet in depth that they cannot build more than one hundred (100) feet away, but they already have their own exemptions to that. It is only the larger properties, correct, that have to be one hundred (100) feet back? If you are a smaller property, you can build close to the shore already, correct? Okay. Good. I just wanted to make sure that for public support, for your hard work, and for the education of us all, it would be great to understand that. Who does it serve to have an exemption to shoreline setback? The native critter that I would like to speak for, Mika already brought up, the Laysan Albatross, just as a representative of so many other sea birds that we have here. My concern is that they are never the first ones considered. I have seen this happen in many situations before where people say, "Yes, we will think of the native wildlife later, but we have other things to think about." It gets us to the point with these birds, just as a photo for you in case you all do not know who they are. The Laysan Albatross. Just so you understand, they have many, many global threats they are being faced with everywhere they go. Kaua`i is their Noah's Ark. Midway is going to go under water, and the Northwestern Hawaiian Islands are going under, even as we speak, Hurricane Ana is actually hitting those places. We do not know how badly, but those islands are going to go under water. We have an elevated bluff, we almost have an absence of mongoose, not completely, and we have people who care. Those three (3) elements make it possible for some of those animals to survive here. They cannot survive anywhere else in the world. Mika brought up eco-tourism. Absolutely, there people who are very interested. We ran an Albatross livestreaming camera this year, are for the first time the world has ever seen a family of Albatross grow up here on Kaua`i. It happened near Waikalua and we received two million (2,000,000) hits COUNCIL MEETING 22 OCTOBER 22, 2014 from one hundred ninety-five (195) Countries to take a look at what it is like for a baby Albatross to grow up here on Kaua`i. We plan to really build on that public relations (PR) aspect, to really build on the understanding that these birds deserve our support. They helped bring Hawaiians here to begin with. They helped guide the earliest most skilled navigators here. How can we not possibly give them a voice? That is my perspective. Council Chair Furfaro: Questions? Councilmember Yukimura. Councilmember Yukimura: Hi, Hob. So, how do you think this particular Bill is going to help the Albatross, I mean, without the exemption? Ms. Osterlund: I do not know enough about the whole Bill to say how it is going to help them or hurt them. I only know that the exemption concerns me. So, if the setback moves forward, if we block more areas for their nesting, they will lose habitat. They have a very small area of habitat available to their as it is. The closer we get, the less likely it is that they will be able to successfully be there. Does that answer your question? Councilmember Yukimura: Well, the law requires, the Constitution requires that when we regulate something, there is a basis for regulation. The possibility of Albatross landing in an area is not going to be —I mean, the reason we are doing this is for protection of health and property. That is what the law allows us to do. When you lessen a right of a landowner, it has to be really compelling public interest. I hear you speak about Albatross protection, and habitat is a compelling interest for you, but it is something we would have to... (Councilmember Chock was noted as not present.) Ms. Osterlund: I am not suggesting anything be taken away from current landowners. I am saying that nothing be taken away from the birds and what they already have. The birds already have a very limited range. They ask for very little. I am not talking about where they land, I am talking about where they nest in particular. They are very few places, especially along... Councilmember Yukimura: So, you suggest that we amend this to allow that wherever there is existing Albatross nests, that there be a greater setback? Is that what you are asking? Ms. Osterlund: No. I am suggesting that the exemption be dismissed from this Bill, that particular exemption that says, that you can move closer. I heard forty (40) feet before. This morning I heard you say sixty (60) feet. I do not know what the amendments that have been submitted this morning say. Councilmember Yukimura: How does that relate to the existing Albatross area? Ms. Osterlund: Because there may be empty land. Let us use Moloa`a Bay Ranch as an example. There may be empty land there is one hundred sixty-four (164) acres of empty land where there is lots of nesting, and as you know, last year, lots of dog kill, right? Councilmember Yukimura: I think what would be required, is purchase of the land under the Constitution, but thank you. COUNCIL MEETING 23 OCTOBER 22, 2014 Ms. Osterlund: I would love to purchase the land. Are you offering me money? No, I know. I am just saying, right now, there is already a setback. The exemption in this particular law is saying, let us move it even closer to the bluff, correct? Councilmember Yukimura: Moloa'a is not a rocky shoreline. So, the exemption does not even affect Moloa`a, not at all. Ms. Osterlund: Well, you asked me for an example. I do not know. As Mason said, those particular properties have not been delineated. I do not know where there are exactly. I am just answering your question about vacant land that has nesting birds, they are protected by the Migratory Treaty Act, but nobody actually ever enforces it. Councilmember Yukimura: Thank you. Ms. Osterlund: Thank you. Council Chair Furfaro: Thank you. Next speaker, please. Ms. Fountain-Tanigawa: Chair, the next speaker is Maka'ala Ka'amoana. (Councilmember Chock was noted as present.) MAKA`ALA KA`AMOANA: Aloha Council. I am Maka'ala Ka'amoana, today testifying as Vice Chair of Hui Ho'omalu I ka `Aina. We are a taro root organization founded in the early 1980s by traditional practitioners of moku Halele`a to address threats and impacts to the natural and cultural resources of Kauai. Founded by farmers and fishermen, weavers and hunters, we seek to provide context for issues related to the ecology of our ahupua`a. The organization is an active advocate for those native things and ways that are disappearing. We are not a non-profit. We are an activist organization. We do not whine and wait. We act. Hui Ho'omalu I ka `Aina is the plaintiff in the Federal Endangered Species Act proceedings against the County of Kaua`i for the taking of the Newell's Shearwater and the Hawaiian Petrel. We testify today on Bill No. 2461, Draft 2, which for the most part, seeks to protect those native things and ways for which we advocate. We appreciate the time and energy committed by the County and volunteer members of the working group who addressed this issue and developed this legislation. We understand that when we attempt to manage human uses of our resource, things get complex quickly. The work put into this Bill was certainly complex, and with one glaring exception, in our opinion, reflects thoughtful and comprehensive consideration of those things we care about. The exception of which we speak is the focus of this testimony. The exemption in this Bill relating to rocky coastlines and bluffs, interestingly called "bright line exemptions" are certainly glaring omissions to us. To not provide protection for those places we all know as part of the special quality of Kauai is not doing our job. This is not a simple "we can fix it later." This is a missing piece of the puzzle, a prominent component cut out. The Special Management Area rules, which we are very familiar, does not address the concerns we share today. The CZO mentions this only once, and in this section you are considering amending today. This cannot be delayed for another day, another stab at the issue, without conceding the real impacts to Hanalei River and to the Hanalei Bay view planes that will occur while you fiddle. Indeed COUNCIL MEETING 24 OCTOBER 22, 2014 safety and health concerns of the people who utilize the river and the bay, and who will utilize those lands. Look at Wanini and Princeville now. When in the water you cannot see the mountains, when on the land you cannot see the coastline. Why? Because structures are built right to the edge on pu`u that jut out and block the view. If the SMA applied, do you not think that we would have used it to protect those places? To us, this exemption is a transparent gift to the developers, some of whom are waiting for it in order to proceed with their projects. The very makeup of the working group was set to favor their interests, and indeed, it appears they have achieved that goal. As a culturally based organization, we are committed to looking at the whole, the ahupua`a perspective, the pono process, and not just the human factor in the picture. We are responsible to give voice to those practices and places that cannot speak for themselves. Many of these pu`u provide vital cultural information, Kilo i'a as an example. Views to some are information to others. Lawns to some, habitat to others. This bright line exemption may be appropriate for somewhere else, but not here where our rocky shorelines and bluffs are critical gathering and spiritual places. This bill is not ready. It is not pau. It is incomplete until it addresses the whole picture. It is your kuleana by law and by practice to produce the best legislation you can and not segment your work, not to say, "We will fix that later." If this exemption is not removed from this bill, when all we can see are lights and our reflections in the glass along the bluffs, that which we seek to protect will be gone, not to be retrieved. Do not pass Bill No. 2461, Draft 2 with this bright line exemption. It is a bad exemption in an otherwise good bill. Fix it by removing the exemption or kill it and start anew. Me ka pono. Council Chair Furfaro: JoAnn. Councilmember Yukimura: Maka'ala, thank you. Where did you say that the SMA has not worked? Ms. Ka'amoana: Well, for example, the example I gave you earlier, at Wanini. I think you were thinking of the sandier places, but certainly, when you are in the water, that is our family fishing area. When we are in the water, we cannot clearly see the bluffs at all. There are buildings right to the edge. If the SMA worked there, they would not be there. They would be withdrawn for their own safety, for the drainage issues, and for a variety of concerns. I am just reminding you that our community, and certainly all of Kaua`i's communities, but certainly on the North Shore. We have a lengthy history of applying the SMA. If it was applicable, we would have applied it. Councilmember Yukimura: Well, I agree with you, but there have been Planning Commissions and Planning Directors who have not fully enforced the SMA either. Ms. Ka'amoana: I agree with you. Councilmember Yukimura: But I do not know of any place along Wanini that would actually qualify for a rocky shoreline. Ms. Ka'amoana: Let us do a field trip. COUNCIL MEETING 25 OCTOBER 22, 2014 Councilmember Yukimura: Okay. Ms. Ka'amoana: I would be happy to show you where the rocky shoreline is, where we fish at Wanini. Councilmember Yukimura: Okay. Ms. Ka'amoana: Thank you for calling it Wanini. Councilmember Yukimura: Yes, thank you. Ms. Ka'amoana: Mahalo. Council Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Carl Imparato, followed by Tom Shigemoto. CARL IMPARATO: Aloha Councilmembers. My name is Carl Imparato. Bill No. 2461, Draft 2 has some positive features, but they are far outweighed by four (4) significant negative features in the current draft of this Bill. They are: the blanket exemption from shoreline determinations and shoreline certifications for structures and land above rocky shorelines; the reduction of the existing one hundred (100) foot minimum setback requirement for large lots above rocky shorelines to just forty (40) feet; preferential setback treatment for lots for which coastal erosion study data is not available instead of treating those lots more conservatively in light of the lack of data; and the reduction in the scope of Section 8-27 of the regulation of the CZO. If these problems are not addressed, the entire bill should be scrapped, but they can be addressed through some of the amendments that are being proposed today. The first of Councilmember Chock's amendments would eliminate the rocky bluff exemption. The complete elimination of that exemption is necessary. First, the exemption would cut the existing setback requirement for large parcels above rocky bluffs throughout Kauai by sixty percent (60%), from the current one hundred (100) feet to forty (40) feet, creating significant visual impacts and sea bird habitat impacts around the island in places where they could not otherwise be created under the current Ordinance. Trying to focus on this debate on the dangers of coastal erosion at rocky bluffs is a "red herring" because this is not just about danger. This is about expanding the number of parcels where one could build closer to the shoreline creating all of these other problems. It is not just about danger. That is a "red herring." The exemption does not even appear to be of great importance to the Planning Department and nor should it be, because the Planning Director already has the authority under the existing CZO to allow exemptions in cases where an applicant can demonstrate the legitimacy of an exemption. Councilmember Yukimura's proposed amendment to specify that the setback shall be sixty (60) feet for rocky bluff properties does not address the fundamental problem with the exemption. It still cuts the setback requirement for large parcels almost by half, and ironically, it penalizes the owners of smaller lots, the lots less than one hundred sixty (160) feet deep, by increasing their setback requirements by fifty percent (50%). Finally, the SMA process is no protection. We need to start with a mandatory one hundred (100) foot setback and work back for mitigation from there. If we start from a forty (40) foot or a sixty (60) foot setback and hope for mitigation, all I can say COUNCIL MEETING 26 OCTOBER 22, 2014 is good luck. Judy Dalton testified last month about the problems with applying the SMA at Kealia, and apparently what she said has been turned on its head. Judy talked about the fact that the SMA process was a useless process and the only way that she managed to get things moved further back was by threatening to sue the County and the developer because of procedural problems that had occurred. That is what led the developer to negotiate its project further back. The SMA process is generally a useless process because of the nature of the folks who were in charge of enforcing it on the Commission. The bottom line is that the rocky bluff exemption along with its reduced setback requirements is just a gift to real estate development interests that dominated the working group that was put together to assist with the development of Bill No. 2461. It is a gift at the expense of the public good and it creates no public benefit. It should be eliminated as Councilmember Chock's proposed amendment would do. I also want to talk about the last issues that I raised, which is the reduction in the scope of Section 8-27, relating to regulation. There is a big problem with narrowing of the scope of the CZOs shoreline setback and coastal protection chapter. First of all, activities would be deleted from the applicability of the Ordinance contrary to language in HRS 205A. That problem is compounded by language in the bill that says activities will be related under SMA rules and regulations. It does not mention the requirement for uses within shoreline areas under HRS 343. Then, to boot the very narrowly defined purpose section that has been proposed as Section 8.27.0 intentionally limits the objectives of the CZOs shoreline setback regulations. Councilmember Bynum has a proposed amendment that would remedy most of these scope related problems and then leave it for the courts determination at a later date, whether or not it is legal to delete activities from the applicability section of the CZO. I think that is the best that can be done at this late date, and that Councilmember Bynum's amendment is the way to address the problems with the attempts to narrow the scope of Section 8.27. In conclusion, I urge the County Council at a minimum, to support Councilmember Chock's first amendment, Councilmember Bynum's amendment, and because I had limited time, I did not discuss the other proposed amendments. The second of Councilmember Chock's and the third of Councilmembers Chock's amendment would also deal with some of the other problems that we have in the bill. I urge their passage as well. Thank you. Council Chair Furfaro: JoAnn. Councilmember Yukimura: Carl, how would the shoreline setback law as you want it, actually solve the visual impact problem at Kealia, because one, there is no rocky shoreline, and two, much of the shoreline is sloping, almost like a valley up to the lot? Would you make the one hundred (100) feet? Mr. Imparato: Yes, I am not arguing that this Shoreline Setback Bill in anyway would solve the problem at Kealia. What I am arguing is that when people say, "Do not worry. We have the SMA rules and regulations and those are going to solve our problems," they do not. They have not solved the problems as Maka'ala has said. Councilmember Yukimura: Yes, but the one hundred (100) feet in this Bill is not solving the problem either. So... COUNCIL MEETING 27 OCTOBER 22, 2014 Mr. Imparato: Well, you asked me about Kealia, and I am saying I never said Kealia was a rocky shoreline. I brought up Kealia because others have brought it up to say that Judy Dalton felt that the SMA rules and regulations were a protective set of regulations, and they are not. Councilmember Yukimura: I know, but the example, you would assume, is so that we can address the issue with this Bill, and it is not being addressed no matter how you write it. Mr. Imparato: This Bill is not going to address the problem everywhere. What this Bill does... Councilmember Yukimura: Okay, thank you. Mr. Imparato: ...take places where we do have one hundred (100) foot setbacks and it makes the problems worse by dropping it to forty (40) feet. Councilmember Yukimura: Then, in the reduction of scope, are in favor of removing the purpose portion of the draft? Mr. Imparato: Correct. Councilmember Yukimura: Okay. Caren Diamond and Barbara Robeson proposed on March 14th, a purpose statement, and hearing their concerns, I proposed extensive wording. That is what is in Bill No. 2461, Draft 2 including the purpose part that you want to remove. I have the documents here that I want everybody to see. Council Chair Furfaro: Do you have enough copies for all of us? Councilmember Yukimura: Yes. Mr. Imparato: Okay, I am testifying... Councilmember Yukimura: I will give you one too. Mr. Imparato: Well, I am testifying to the purpose that is in Section 8.27.0... Councilmember Yukimura: I know. Mr. Imparato: ...which is one (1) sentence. Councilmember Yukimura: The purpose statement, which is presently Section 8-27.0 is what was approved by Barbara and Caren in our working group. Mr. Imparato: I find that difficult to agree with, but if that is true, it is something that I disagree with because the purpose that is here in Section 8-27.0 basically says the purpose of Section 8-27 basically to "regulate structures and•activities on lands near the shoreline to protect them from coastal hazards, and protect and preserve the public use and enjoyment of shoreline resources." I think that is very narrow. If the purpose said something to the effect, that the purpose is to "regulate structures and activities to protect them from coastal natural hazards and to protect and preserve the public use and enjoyment of'...excuse me. One (1) second. "Public use and enjoyment of Kaua`i's shoreline resources in accordance with the coastal management law, HRS 205A," then that would be a COUNCIL MEETING 28 OCTOBER 22, 2014 purpose that is much broader because its focus is towards HRS 205A. I think that the language in the purpose section could be corrected. My perception was that we were at this late stage where people were not going to work on improving the language in the purpose section. I think that we are better off without a purpose section than with language that is restrictive. Councilmember Yukimura: Thank you. Council Chair Furfaro: Any more questions? Thank you, Carl. Mr. Imparato: Thank you. Ms. Fountain-Tanigawa: Next speaker is Tom Shigemoto, followed by Caren Diamond. TOM SHIGEMOTO: Good morning. I do support this Bill as amended, notwithstanding all of the various proposed amendments that way be introduced. For the record, my name is Tom Shigemoto. Today I am representing myself today. As I said, I support the Bill as amended, because it maintains the intent of protecting the shoreline properties from coastal hazards, it provides the Planning Director with flexibility which will reduce the bureaucracy currently being applied to all shoreline properties irrespective of use or non-impact, and aims to leave aesthetic and other concerns with the proper regulatory vehicles. As a member of the working group, let me make it very clear that I personally do not have anything to gain or lose with the adoption of this Bill, but I do work for a company that will be impacted by it. Now, as a former County administrator, I do not believe in laws that unfairly and unreasonably burden property owners. I believe that the current law was clearly adopted to focus on the specific North Shore development and have no application to non-abutting shoreline properties and properties that absolutely have no similar issues. I am here to ask all of you to support Councilmember Kagawa's amendment which would subject the law to properties that only abut the shoreline. Just by the nomenclature, this is a Shoreline Setback Ordinance. Setbacks from the shoreline. If an application for example, was made for a property like Kukui`ula Development, and you are all familiar with Kukui`ula Development where it sits adjacent to the shoreline, or in proximity to the shoreline. If an application was made for a structure on our property, what would the setback be? Where would it be measured from? This Bill says you have to measure it from the shoreline, getting the adjacent shoreline property owners permission to do the shoreline survey in order to determine whether or not we would be subject to it. Now, that is unreasonable. That is totally unreasonable. My point is that this Bill should apply strictly to shoreline properties. I believe the five hundred (500) feet, which is pretty arbitrary, is based or was based on an episodic event. Hurricane `Iniki. Hurricane `Iniki showed that Kukui`ula had debris intrusion on its property, but it is in an episodic event. I think today, with the scientific data we have, the FEMA Flood Insurance Rate Map (FIRM) has been established, therefore, the V and VE zones, which sort of address the coastal hazard impact issue. Lastly, I ask that please consider your County Planning Department who has to enforce these regulations. Give them a set of regulations that makes sense. Thank you. Council Chair Furfaro: Questions? JoAnn. Councilmember Yukimura: Tom, thank you for your testimony. On the issue of measuring from a property that the applicant does not own. Mr. Shigemoto: Yes. COUNCIL MEETING 29 OCTOBER 22, 2014 • Councilmember Yukimura: We tried to address that. Mr. Shigemoto: Yes. Councilmember Yukimura: So, that does not work for you? Mr. Shigemoto: It still does not work. To me, it does work whether it is five hundred (500) feet, four hundred (400) feet, or six hundred (600) feet. It is problematic that you include lots that are within five hundred (500) feet. Why five hundred (500) feet? Why not one thousand (1,000) feet? Why not three hundred (300) feet? It does not matter. It should apply to lots that abut the shoreline, pure and simple. Councilmember Yukimura: Right, but what about properties where there is just a road and then a property that could in fact be affected by coastal hazards? Mr. Shigemoto: The roadway would be impacted first. Councilmember Yukimura: Right, but the road may not be wide enough to stop the impacts on the non-abutting property or sometimes it is not a road. Sometimes it is a very narrow strip of land. Mr. Shigemoto: Well, how many... Councilmember Yukimura: But your concern, is it not addressed by the exemption that says the Planning Director...next to the bright line exemption is the other discretionary exemption that can be exercised by the Planning Director. If it is very clear that there is no impact, the applicant does not even become an applicant. I mean, the proposer of the structure will not even have to go through the shoreline setback determination. Mr. Shigemoto: That is true, and we discussed this at length • on this particular matter. However, if you have a reasonable Planning Director who was not a Nazi, for lack of a better word, you could be subject to do shoreline surveys, going the full nine (9) yards getting shoreline determinations for something very simple because he did not like the development or did not like the developer or for whatever reason. So, that is my whole point. Again, this is shoreline. It should be limited to shoreline properties, period. Councilmember Yukimura: Yes, thank you. Actually, the bright line exemption is some protection against a "Nazi" Planning Director. Mr. Shigemoto: It does, yes. Councilmember Yukimura: Thank you. Mr. Shigemoto: Thank you. Council Chair Furfaro: In the future, let us try and be a little bit more • selective on the descriptive... Councilmember Yukimura: Thank you, Chair. Council Chair Furfaro: ...verbs that... Councilmember Yukimura: I mean, I think people... COUNCIL MEETING 30 OCTOBER 22, 2014 Council Chair Furfaro: ...and adjectives. Councilmember Yukimura: ...if they are a single homeowner trying to get a permit can understand when sometimes the discretion seem very political. People want to protect against developers that use that, but others times, it is used against the applicant and the public can be applicant. Mr. Shigemoto: That is right. • Councilmember Yukimura: Yes, thank you. Council Chair Furfaro: Tom, we have questions. Mr. Hooser. Councilmember Hooser: Yes, good morning, Tom. Mr. Shigemoto: Good morning. Councilmember Hooser: I was actually going to raise this when Councilmember Kagawa's...but since we are talking about it, I thought I would raise it. I just want a slide. If we could put it up there. It is on slow motion. Oh, there we go. I am familiar with several subdivisions that are like this where Lot 1 if a flag lot that wraps around the coast. Since the coastal area is either a steep bluff or a shoreline area is essentially not buildable, Lot 1 would encompass all of that area. Then all of the rest of the lots would abut up to that lot. Mr. Shigemoto: Yes. Councilmember Hooser: So, this is an area where those lots 2-8 do not abut the shoreline. Do you follow me? Mr. Shigemoto: Yes. Councilmember Hooser: They would not be subject to the setbacks that are in here even though one could argue that they should be. This is just the dilemma. I do not know what the answer is. Yes, it could be a steep bluff, it could be a shoreline area. Councilmember Yukimura: It could be sandy. Councilmember Hooser: Yes, I mean, it could be either rock or sandy for that matter. I know developments are intentionally designed this way for a variety of reasons sometimes. I would just be concerned that by exempting Lot 2-8 because they do not abut the shoreline, but yes, if you follow mine. Do you have any comments or thoughts on that? Mr. Shigemoto: Well, yes. First of all, how many cases like this exist on the island, this particular situation? If I had to guess, I do not think there are a whole lot of lots like this. I am familiar with some subdivisions that did this to cut out the conservation district. Councilmember Hooser: Right. Mr. Shigemoto: In a lot of cases, those were rocky shoreline, but how many, really, lots are you talking about versus projects in areas like Kekaha, like Kukui`ula, like Waipouli, or like Hanalei town? COUNCIL MEETING 31 OCTOBER 22, 2014 Councilmember Hooser: Right. Mr. Shigemoto: So, that is all I am saying. The law should really apply to what it is intended to do, is to control setbacks from the shoreline. Councilmember Hooser: I guess my point, and I just want to share with...again, I was going to bring it up anyway, was that it is as we all know, these are complex issues. We think it is a simple answer, okay these house, why should they have to set back, but then you have situations like this which would allow someone to abuse if they wanted to design a subdivision like this. So, that is all. Since we had the discussion on the point, I thought it was relevant to bring up this slide at this point. Mr. Shigemoto: Sure. Councilmember Hooser: Thank you. Mr. Shigemoto: Alright. Councilmember Hooser: Thank you, Chair. Council Chair Furfaro: Mr. Bynum. Councilmember Bynum: Tom, a future Planning Director could be hostile towards a particular developer, is your concern, right? Mr. Shigemoto: One of the concerns, yes. Councilmember Bynum: On the other side of that, a future Planning Director could be particularly friendly to some particular developer, correct? Mr. Shigemoto: Well, let me say that the way it is worded right now, we can live with that. All I am saying is that the law should really be structured to apply to what it is designed for, which is setbacks from properties that abut the shoreline. It should not include lots that are five hundred (500) feet or five hundred fifty (550) feet off of the shoreline. Councilmember Bynum: I hear that, Tom, but my question is this provision gives the Director discretion, and whenever they have discretion, it is subject to appeal either from the developer or the community, correct? Mr. Shigemoto: That is right. Councilmember Bynum: Okay. I just want to say, it could work both ways. The community might be concerned that some Directors discretion is too favorable to a developer, and they have the right to appeal or a Director might be too harsh on the developer and the developer has the right to appeal. We are all on a level playing field, correct? Mr. Shigemoto: No, you are correct. Councilmember Bynum: Alright, thank you. Mr. Shigemoto: But at the same time, can anybody answer me, and maybe this is not a proper forum, but what would our setback be if an COUNCIL MEETING 32 OCTOBER 22, 2014 application came in for our property across the highway which is separated from the ocean by another lot and the road? What would our setbacks be? Councilmember Bynum: Well, you would probably expect some kind of exemption and the Director would give it to you. We have a process to determine that. Mr. Shigemoto: You would hope so. Councilmember Bynum: Right, but I think that process is in the Bill right now. So, that was my point. Mr. Shigemoto: Okay. Thank you. Councilmember Bynum: Thank you. Council Chair Furfaro: Thank you, Tom. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Caren Diamond, followed by Dustin Barca. CAREN DIAMOND: Aloha Councilmembers. Thank you for giving me the opportunity today again. I know I have testified quite a lot and was part of the working group as well. There are just a few issues that I would like to talk about that I hope maybe you can understand better. Part of it is, Kaua`i has a model Shoreline Ordinance right now. It is taken actually around the Country and presented as one of the best Ordinances in the Country, so what you do today really matters for the protection of Kauai. Our shoreline environment is probably the most important for everyone who lives here and everyone who visits here. I know we are taking a lot of time today, but I hope that you will give it actually more time, even than today, and even consider deferring it or sending it back to Council because there are so many issues and so many amendments. I hope you will understand that the difference in the bills really severely diminishes coastal protection. It changes the entire bill from being one that protects against all coastal hazards to one that predominantly protects only against coastal erosion. We studied coastal erosion on sandy beaches and we are saying that we can provide an exemption to rocky shorelines, but not only are we giving an exemption to rocky shorelines, the wording is that you are adjacent to a rocky shoreline, which really opens up all kinds of holes into what is "adjacent" to a rocky shoreline? When we were asked specifically to qualify and quantify how many and what shorelines this would apply to, we were told that is an unknown. We were given information and you were given information, but we were all told it was not correct. How can you make policy based on an unknown thing? Then, we are being told that it would be a case-by-case basis. Well, shoreline development is too important to allow it to come down to a case-by-case basis. The rules that you pass needs to be clear and they need to apply to everyone equally so that if you are on a sandy shoreline and you are next to a rocky shoreline, your setback should be the same. One should not have an erosion based setback that puts you one hundred twenty (120) feet, but then this rocky shoreline will let you be at forty (40) feet. You could be exposed to the exact same coastal hazards minus the erosion. No one is saying that it is stable to build on rocky shorelines. In fact, across the world, we are shown that it is not stable to build on rocky shorelines. The rocks move, everything changes once the amount of water comes in, and we have not done COUNCIL MEETING 33 OCTOBER 22, 2014 slope stability studies. Why are you being asked today to diminish what is a protection for all lots equally across Kaua`i? The bill that was written originally had a lot depth setback that protected all lots, and then you could do the erosion study yourself if you wanted to because we did not have the erosion study done. The main purpose of this bill right now is to implement the erosion study, but should you be weakening protections for all other coastal structures at the time you are implementing your coastal erosion rates? I find that really sad. If you allow setbacks to be on houses and you allow this exemption to go through, the habitat will be diminished. Right now, there are endangered birds, the protected sea birds, that rely on that habitat. If you allow houses to be put there, you will have lights there, you will have cesspools or septic systems there, and you will have a complete intrusion into the habitat that naturally exists right now. Are you taking anyone's property rights? Of course not. This law already exists that there is a setback on deep property lots. Why are you being asked to diminish it? I really do not understand. There are several other diminishments happening in this bill. One is the original bill had a one hundred (100) year protection. All structures that were over five thousand (5,000) square feet did not have a seventy (70) times, which that is the year of protections. Seventy (70) years of protection is the erosion rate you are going with now. The bill before had a one hundred (100) years and seventy (70) years. So, small structures under five thousand (5,000) square feet had seventy (70) years of protection and anything over five thousand (5,000) feet had one hundred (100) years of protections. That multiplier was one hundred (100). So, you are giving thirty (30) feet up for all large structures off the top that has not even been talked about here. In addition to that thirty (30) feet that is coming off the regulations, you are looking at allowing the exemption to happen, which basically, without the amendment that JoAnn has put in right now, allows the setback to go down to forty (40) feet. I can say that it was really clear that they were talking about doing a setback of forty (40) feet not even from a certified shoreline. At the minimum, I certainly support JoAnn's amendment which clarifies that certainly a certified shoreline is necessary. Sixty (60) feet is not adequate. I support Mason's amendments that get rid of the bright line exemption. We are kind of conflicted. If you do not get rid of the bright line exemption, are you going to allow development to happen without certified shorelines if JoAnn's amendment does not pass? I think you are overrunning the whole authority of coastal zone protection. I want to bring up another issue, and the bill allows for development to happen within three (3) years. You get a permit, you have three (3) years to do minimal construction, and then if you have not done it, you can go back to the Planning Director for one (1) more year. That makes it four (4) years. The SMA only allows two (2) years for construction. Ms. Fountain-Tanigawa: Six (6) minutes. Council Chair Furfaro: Please summarize. Ms. Diamond: I will wrap up. But this one is allowing extra years. So, whatever you pass today is going to have four (4) years of possibly being built. I will sum up just by saying that HRS objectives and policies go for all of, not only the SMA, but the shoreline rules and regulations as well. I would encourage all of you to read the objectives and policies of HRS 205A and see if we actually are doing them because by allowing this bill to be turned into only protection for coastal erosion, I believe, we are violating much of the protections that HRS envisions. Thank you. COUNCIL MEETING 34 OCTOBER 22, 2014 Council Chair Furfaro: Caren, I have a question for you. As you just testified, could you condense a little bit of your or explain a little bit more how you interpret the fact that extra years for the construction is being given? Could you summarize that a little bit more with detail? Ms. Diamond: Sure. I do not have the Bill in front of me, but towards the back of the Bill it gives you a timeline and development must occur within three (3) years. If it has not occurred, then you get one (1) more year to go back to the Planning Director. Council Chair Furfaro: How is that different from currently what is issued as a permit? Ms. Diamond: In the SMA, you are only allowed two (2) years. So, the shoreline law expanded that and is in conflict with it. Council Chair Furfaro: Okay. Is two (2) years exceptional from the time and the clock starts when? From when the spade goes in the ground, from when the approval is given, to when the financing occurs, which element starts the "taxi meter"? No, seriously. Ms. Diamond: I think it is... Council Chair Furfaro: Which element starts... Ms. Diamond: ..from when approval is given. Council Chair Furfaro: When approval is given? Ms. Diamond: Yes. Council Chair Furfaro: So, whether they have found their long-term financing or anything, the clock started when the permit was given? Ms. Diamond: That is right. Council Chair Furfaro: Okay. Ms. Diamond: Mike can clarify for sure. Council Chair Furfaro: You still think that is reasonable? Ms. Diamond: I do. Council Chair Furfaro: And that the three (3) year is unreasonable? Ms. Diamond: I think it is in conflict, yes. Council Chair Furfaro: Conflict? I did not ask you that. After I just gave you all of the details, Caren, about construction, building, financing, and so forth, how can it be in conflict? It is not reasonable or it is unreasonable. That is what it is because all of those steps have to happen from the time you pull a permit. It is just unreasonable, the three (3) years? Ms. Diamond: I believe two (2) years is reasonable. COUNCIL MEETING 35 OCTOBER 22, 2014 Council Chair Furfaro: You believe two (2) years is reasonable? Ms. Diamond: Yes. Council Chair Furfaro: Thank you for answering my question. Thank you. Ms. Diamond: Thank you. Council Chair Furfaro: Any other questions for Caren? Thank you, Caren. Ms. Diamond: Thank you. Council Chair Furfaro: Thank you very much. Thank you for being on the Committee. Ms. Diamond: Thank you. Council Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: The next registered speaker is Dustin Barca, followed by Felicia Cowden. (Councilmember Chock was noted as not present.) Mr. Barca was not present to provide testimony. Councilmember Rapozo: Next. Ms. Fountain-Tanigawa: The next speaker is Felicia Cowden. FELICIA COWDEN: Aloha. I am Felicia Cowden. I will try to be brief. I feel like I am following a number of very, very articulate speakers with quality crossed examination. It is what it has been. Council Chair Furfaro: I want to clarify that. Ms. Cowden: Okay. Council Chair Furfaro: That was not a cross examination. Ms. Cowden: Okay. Council Chair Furfaro: It was a question about being reasonable. Ms. Cowden: Oh, I was not meaning you. I meant overall, it seemed like we have had a lot of clarity. Council Chair Furfaro: I asked the question about being reasonable, not about conflict. Ms. Cowden: I meant the whole line of people who provided testimony. I am in agreement that I would like to see the original shoreline setback intention to be comprehensive rather than simple coastal protection. I want to pull a different piece. I am not supportive of the bright line exemption. I am concerned, COUNCIL MEETING 36 OCTOBER 22, 2014 as many of the others are, on all of the issues that have been discussed, but I would like to bring forward budget cost and then the disparity between the "haves" and the "have nots" that become so profound. (Councilmember Chock was noted as present.) Ms. Cowden: When we have these gaps where we see lack of clarity on the rocky shoreline causing people to have to fight every single process on a SMA. When I use that word "fight," that is certainly what it feels like when somebody has a decision to do and other people do not like it. It takes the average citizen to have to go and spend time at so many Planning Commission meetings, finding all of this information, and to come and work hard to be able to put some restraint on homeowners or developers that have budgets that far exceed that of the County's, it becomes disheartening and exhausting. When I think of how much it will cost for meeting after meeting after meeting on every development that might happen; I say, have a consistent shoreline setback. There might be some things that we are seeing here that are nuanced, like if it abuts the ocean, if it does not. I think Councilmember Hooser brought up something important, that there could be designs in the development to curtail any ability for people to keep those protections in place, but we have heard a lot of good points. I think that how the original shoreline setback intention is something that I support. So, the bright line exemption makes me very nervous. Expensive and fair. That simple. Council Chair Furfaro: We have questions for you, Felicia. Ms. Cowden: Okay. Council Chair Furfaro: I am sorry if I was so direct, but I wanted to make sure you understood my point about getting clarity. Ms. Cowden: I did, and I actually was not thinking about you when I said that. Council Chair Furfaro: JoAnn. Councilmember Yukimura: Are you aware that actually the bright line exemption, one of the benefits, is to applicants? I think everybody is assuming they are going to be rich applicants. I do not know if that is true, but where the purpose of the bill is not being jeopardized clearly, then you basically say, you do not have to go through the regulatory system, is what a bright line exemption would try to do. It is trying to streamline without jeopardizing the main purpose of the bill. Ms. Cowden: Well, I was not on the group that developed this. I have been coming and listening. I have more to learn, but definitely what it does seem, is this bright line exemption is going to be able to be exploited best by people who are well financed. I would like to see it be very, very carefully crafted. When we hear about land that is not deep enough, it seems that is already being addressed in there. If it is not deep enough, it is a small lot, and somebody is putting a small house on it, yes we need to support that. I think that when we are having...like, I am in agreement with what I am hearing here and have been continuing to hear. It is also the view plane, it is the whole sense of the tranquility of Kaua`i, the ecosystem, it is everything. When it becomes a case-by-case basis, if we knew already, we would say, "Okay, there is one thousand five hundred (1,500) feet here and there is a mile and a half in this area," and we knew exactly what we were talking about, but we do not. We are hearing the discussion about how hard it would be even going in filming in trying to decide where boundaries are. We do not COUNCIL MEETING 37 OCTOBER 22, 2014 know how big a Pandora's box that we are asking for. The Planning Commission is very busy. It seems that when people have an application to build something, it takes an incredible amount of time if it is something simple. Councilmember Yukimura: Okay. Ms. Cowden: You know? Councilmember Yukimura: The law if you wanted to address aesthetics, because it does not, it has to have a whole bunch of criteria as to how you address it. It does not give the protection that is needed right now or I guess the question is, how would you amend this Bill to incorporate aesthetics and what standards would you use? Ms. Cowden: Well, you are asking me to bring a lot of detail in there. I am saying I do not support this bright line exemption. I could sit there and go on a lot of detail here, but Councilmember Chock has something that I am in agreement with. Councilmember Yukimura: Okay. Ms. Cowden: Right there, and I think it is a lot of work. I have already testified before. I get concerned about how landscaping is and I understand we are not talking about landscaping right now. We are not going to discuss that level of detail, and I do see that it is a symbol of a taking as well. Ms. Fountain-Tanigawa: Six (6) minutes. Councilmember Yukimura: Thank you. Council Chair Furfaro: Anymore questions? Thank you, Felicia. Next speaker. Ms. Fountain-Tanigawa: That was the last registered speaker. Council Chair Furfaro: I am going to call the meeting back to order. There being no further testimony, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Members, before we go any further, I would like to walk through the amendments and make sure that everybody has copies, and if you can follow me in the housekeeping areas first, I think it is important that we do that. There are now eight (8) amendments? Councilmember Rapozo: Mr. Chair? Council Chair Furfaro: Yes. Councilmember Rapozo: May I ask a question of the Planning Director, real briefly? My concern was that three (3) years, four (4) years versus the two (2) years relating to the SMA. Council Chair Furfaro: Sure. Councilmember Rapozo: If he could just clarify that. If he is here. COUNCIL MEETING 38 OCTOBER 22, 2014 Council Chair Furfaro: We are going to suspend the rules, and Mike, please come up. There being no objections, the rules were suspended. Councilmember Rapozo: Just as you are getting seated, Mike, I am talking about, this would be Section 8-27.8 subsection...I am not sure if you have the...just for the audience and for my colleagues, the Section reads "For any non-minor structures allowed within the shoreline setback area and any structures outside the shoreline setback area based on the shoreline setback line, substantial construction of the structure shall be achieved within three (3) years from the date of final shoreline setback determination and approval, and construction thereof shall be completed (as evidenced by a certificate of occupancy in the case of buildings for habitation) within four (4) years from said date." As Caren had explained, the SMA permit is typically only valid for two (2) years. This section requires substantial construction, which would mean almost complete, more than fifty percent (50%), I guess. I am not sure what substantial really is. How does that relate to the SMA requirement of a two (2) year validity of the SMA permit? Mr. Dahilig: I think in terms of sequencing, usually you see the shoreline setback determination go first, before an SMA permit is granted. Councilmember Rapozo: Okay. Mr. Dahilig: Typically, the process to actually get the determination and then go through the Planning Commission process of applying will run between six (6) to twelve (12) months. You usually see this domino effect of they come in first, they get their shoreline certification, and then the three (3) year clock is running. You will then come in for the SMA, then the two (2) year clock is running, and then they will both generally hit around the same time that we anticipate from regulation, that they will generally hit that determination of whether substantial construction has been achieved or not during that period of time. Councilmember Rapozo: Okay, but I am assuming that there will be situations where it is not that ideal, where the typical timeline does not happening. Mr. Dahilig: Right. Councilmember Rapozo: Then you have a conflict between this Bill and the SMA permit. What do we do to deal with that? Mr. Dahilig: When you look at situations where there is...like a large development, for instance. The SMA permit will actually run longer. The specific language does allow the Planning Commission in the use permit situation to say, "Okay, rather than just the two (2) year predisposition, you can go and put a longer time clock of like three (3), four (4), or five (5) years." There are opportunities to also come back to the Planning Commission and ask for that determination to actually be extended in certain cases. Again, you hit on that point Councilmember Rapozo, regarding what substantial construction is because that is actually a loaded legal term that is not a bright line. A lot of it can depend on what the contractor has done to pour a slab and put some vertical framing up. That could be...again, it is not something that I can say is a bright line with respect to what substantial construction is. COUNCIL MEETING 39 OCTOBER 22, 2014 Councilmember Rapozo: In this Bill, it is clear that in the case of buildings for habitation, a certificate of occupancy would be evidence. I mean, I think that is very substantial when your certificate of occupancy is issued. Mr. Dahilig: Right. Councilmember Rapozo: But my concern is, and you explained it. There is an opportunity to extend an SMA permit at some point. I guess my only question is, and I do not want to get into a debate about that, does the public have an opportunity to participate in that extension? KA`AINA HULL, Planner: Councilmember, Ka'aina Hull for the record. Just to clarify some of the issue too, is that what is available under Chapter 8 of the shoreline setback rules and requirements, does not conflict with the SMA process. In essence, it says you have three (3) years to build this thing, substantially construct it. In the event that the SMA permit has lapsed because of the two (2) year time window, then should they go out there without extending the SMA permit, they would be in clear violation of that SMA permit that previously lapsed. The same holds for Zoning Permits in general. Anybody that builds in an SMA also had to get a Class I, II, III, or IV zoning permit, which has no timeline set under the Kaua`i County Code. So, they can have for Class I, an indefinite perpetual entitlement. If they have a Class I Zoning Permit, but at the same time, they have to get a SMA permit that terms out after two (2)years. Even though they have that Class I zoning entitlement, they still have to come back after the two (2) year window has lapsed. They still have to come back to extend the SMA permit at the approval of the Planning Commission. The Planning Commission can deny them the request for extension, and if they deny the request for the extension, then they do not have an SMA permit, and hence cannot build. Also, to further clarify, the three (3) year time window, it is not something the Planning Department is proposing to use, just to be clear. This is in the ordinance right now. Councilmember Rapozo: Right, and I am just questioning why would we not have synchronized the two (2), rather than a three (3) year which can be extended to four (4), why would we not just tie it back to the SMA? Mr. Hull: And that... Councilmember Rapozo: It should not be two (2). It should be in accordance with the SMA permit because you just said that you could issue a SMA permit that was good for three (3) or four (4) or five (5) years. This should basically relate back to the SMA permit, in my opinion. Mr. Hull: I do not think we would have any objection to an amendment to align it with... Councilmember Rapozo: Because I can see a SMA permit expiring and then the person realizing his...again, you talk about the detrimental reliance. The person is going to go to court and say, "My shoreline thing said I had four (4)." Anyway, that is fine. You answered my question. Thank you. Council Chair Furfaro: One (1) more question. What defines substantial construction? Where do we get the definition of that? (Councilmember Kagawa was noted as not present.) Mr. Dahilig: It is a construction litigation term. COUNCIL MEETING 40 OCTOBER 22, 2014 Council Chair Furfaro: Say that again. Mr. Dahilig: It is a construction litigation term, generally, that... Council Chair Furfaro: It is a construction litigation term? Mr. Dahilig: Yes. Council Chair Furfaro: Hold on just a second, JoAnn. It is my question. Mr. Dahilig: I mean, there is... Council Chair Furfaro: Princeville broke ground forty (40) years ago on housing because they did substantial construction. They poured one (1) foundation slab. Forty (40) years later we now have housing. What is the legal termination of substantial construction? Mr. Dahilig: So... Council Chair Furfaro: Not what is in the Bill, where do we have that? Who makes that determination? Mr. Dahilig: Outside of the Bill, it is a court proceeding. I am not a construction litigation attorney, it is hard for me to describe what substantial construction is in the eyes of case law. I see Deputy County Attorney Jung kind of moving here, but it is standing case law, Chair. I will probably defer this... Council Chair Furfaro: No, it is just that we have this shoreline piece and substantial construction, and the timing can be flipped flopped here, but what is the definition of substantial? IAN K. JUNG, Deputy County Attorney: Deputy County Attorney, Ian Jung. Again, I think we should heed your own advice on this matter and stick with the Shoreline Setback Bill. If you look at the definition of substantial construction in the existing law, it means that one hundred percent (100%) of the foundation has been laid or that one hundred percent (100%) of the foundation of the active phase of a project has been laid where the project is being done in phases. So, for the purpose of this bill in the existing law, it looks to the foundation. Council Chair Furfaro: They look to the foundation? Mr. Jung: Correct. Council Chair Furfaro: Is that not what happened with Stark? Is that not what just happened to us? Mr.Jung: Should the Council wish to make any amendments, we would be happy to review it. Council Chair Furfaro: No, I will write a letter to your office. (Councilmember Kagawa was noted as present.) COUNCIL MEETING 41 OCTOBER 22, 2014 Council Chair Furfaro: I mean, we need that clarity. Those foundations stayed there twenty (20) years. The foundations at the shopping center stayed there thirty (30) years. It is something we have to work on. I will heed my own advice as you just advised me because you are my attorney. Mr. Jung: You are welcome. Council Chair Furfaro: Mr. Rapozo. Councilmember Rapozo: Thank you, Mr. Chair, and thank you, Ian. I think we have to fix that, because I think the example that the Chair used is correct. I just right now "Googled" substantial completion under constructionlaw.com. It is interesting because they say "substantial completion is another one of those terms of art that lawyers love." This is the definition as recommended by the contractor law website. I think I like it, but I just want to throw this out here and you can respond. It says, "substantial completion is the stage in the progress of the work when the work or designated portion thereof is sufficiently complete in accordance with the contract documents so that owner can occupy or use the work or a portion thereof for his intended use." That is a whole lot more than pouring a slab. That is a whole lot more. To me, that makes sense. Substantial completion would be when you can actually use the structure. It may not be one hundred percent (100%), but it is enough, it is substantial enough that I would move my operation and to me, I think that is probably more...especially dealing with this Bill. I know it is, to me, it is a direct relation to this point we are working on because really, I think when we are talking about the time of a SMA permit, that is horrible if all I have to do is pour the slab and I meet my SMA time requirement just because I made the foundation. That is not substantial. Mr. Chair, I know you do not like amendments and I can do this at a later time, but I believe, and we can have the discussion... Council Chair Furfaro: As I said, Mr. Rapozo, I plan to send something over to the County Attorney for all future terminology at this point. I just wanted to point it out. It has not been fixed. It is still a very gray area what the term means, substantial construction. Councilmember Rapozo: Got it. Council Chair Furfaro: If you are okay with that, that is the communication I am going to send. Councilmember Rapozo: I got it. Thank you. Council Chair Furfaro: Any more questions for the County Attorney and the Planning Department? Thank you for the good advice, Counsel. Did you have questions for them, JoAnn? Councilmember Yukimura: Just for Ian. Council Chair Furfaro: Oh, it is just for Ian. Okay. The rules are still suspended. Councilmember Yukimura: The reason why I want to ask is because these amendments are coming up for a vote now, but you did propose different wording for the amendment that I am proposing. Do you want to explain? Mr. Jung: Sure. Let me go grab it. COUNCIL MEETING 42 OCTOBER 22, 2014 Council Chair Furfaro: While he is away, I just want to let everybody know, I want to get the amendments in order, everybody has them, everybody reviews it, we will take a short break so you can do that, and then we are going to start knocking them off. Councilmember Yukimura: Okay. If you are going to... Council Chair Furfaro: Let us make sure your questions are focused. If you want to get verbiage corrected on your amendment, now is the time to do it especially when we take that short break. Go ahead, Ian. Mr. Jung: This would be JY#la. Councilmember Yukimura: Nobody has that right now, but in order for me to actually... Mr. Jung: Circulate it. Councilmember Yukimura: Yes. Mr. Jung: I understand. In reviewing your proposal, it did look a little out of place when there is just a block paragraph underneath (D). So, what I tried to do is harmonize it with adding it to a criterion. Instead of three (3) criterion, making it four (4) criterion, and then basically eliminating some of the unnecessary language, requiring that the certified shoreline be done as well as having a sixty (60) foot setback, and then imposing the twelve (12) month proposal that we have consistent in our Draft 1 as of right now. Previously, is was six (6) months. Now we are moving it up to twelve (12) months. It is basically just a reorganization of your,proposed amendment. Councilmember Yukimura: Okay. Mr. Jung: So, nothing substantive, just more structural to make it flow a little better rather than having that empty block paragraph on the bottom. Councilmember Yukimura: So, it does not change the substance? Mr. Jung: No, not at all. Councilmember Yukimura: Okay, thank you. Mr. Jung: We do have certified shoreline defined. Instead of utilizing the language "certified survey," we want to be consistent with certified shoreline as required in HRS 205A, I think 43. Councilmember Yukimura: Thank you very much. I am ready for a short break. Council Chair Furfaro: Which are you going to do? Are you going to distribute the JY#la? Councilmember Yukimura: Yes. Council Chair Furfaro: Okay. I just want to make sure that everybody has the following amendments in front of you. The JY#la is... COUNCIL MEETING 43 OCTOBER 22, 2014 Councilmember Yukimura: That is not yet circulated, Chair. Council Chair Furfaro: Will be circulated. You are quick to the draw. If you and I were in Dodge City, you would have got me every time. You are so quick to the draw. Councilmember Yukimura: Not my intention, sir. Council Chair Furfaro: Okay. We have #2 which is from Mr. Chock, #3 would be Mr. Kagawa's piece, #4 is a second piece from Mr. Chock and we will number that#4, #5 is...is that a third one from you, Mr. Chock? Councilmember Chock: It is. Council Chair Furfaro: Okay. There is a third one from Mr. Chock. #6 is the piece from Mr. Rapozo, #7 is Mr. Bynum's, and the last one I got is JoAnn...she decided not to...this is JY 1. Okay. That has been substituted. On that note, we are going to come back and I think that will be in ten (10) minutes, and then we will start discussing the amendments, but I have a motion on the bill? Okay. We will start with amendments in ten (10) minutes. We are on recess. There being no objections, the meeting recessed at 11:16 a.m. The meeting reconvened at 11:32 a.m., and proceeded as follows: Council Chair Furfaro: We are back from our recess. I just want to go through a few things with everyone. As we have eight (8) amendments here. Some of these amendments came out of the Committee approved, but they got back on the calendar for the full Council. We have other pieces with definitions such as substantial completion and so forth, that can be reviewed later. We have three (3) options in front of us. We have an option to defer the Bill for two (2) weeks so that these things can be revisited and tightened up more. This will be the thirteenth deferral, four (4) of them happening at the Council, eight (8) of them happening in Committee. We could refer this back to the Planning Committee of which two (2) of us will not participate, or we could move forward on voting on the amendments as they are right now. I will go around the table for discussion before I take any motions. Mr. Bynum. Councilmember Bynum: Thank you very much, Chair. A couple comments. One is, it is our practice here at Committee that the votes in Committee are recommendations to the full Council. When you say, "Oh, it failed in Committee," it could have failed 3:2 and then come to Council and pass 4:3. It is part of our process to reconsider amendments at Council. In terms of the options, my preference would be to vote on the amendments and see if we can finish this Bill today. I think I understand all of the amendments, I have a position on them, and they are pretty clear. However, I would rather get it right if we cannot get through that process today, and I will be open, but I would like to keep it at the Council level for the reason you just mentioned. We go back to Planning Committee, then two (2) people who will ultimately have a say or not, will not be involved in the discussion. Those are my comments. Council Chair Furfaro: Okay. Councilmember Bynum: Thank you. COUNCIL MEETING 44 OCTOBER 22, 2014 Council Chair Furfaro: A bill could also not make it in Committee if it was a 2:2 vote. So, JoAnn, you wanted to speak next? Councilmember Yukimura: I am all for getting it right. I do not mind a deferral. I do think some of the amendments are no brainers, so to speak, and that we should pass them. For example, Councilmember Rapozo's amendment to eliminate the language that was overlooked that makes the bill inconsistent with the idea that there will be no after-the-fact-permits, to me, I do not think there is any disagreement on this Council. For those types of amendments, we should pass it now. Council Chair Furfaro: Any other comments? Mr. Hooser. Councilmember Hooser: Yes, Chair, I support dealing with...I am not on the Planning Committee. I would appreciate the chance to vote on some of those amendments today that were proposed in the Planning Committee. I echo Councilmember Bynum's thoughts that we should try to get through it today, if not, we can defer to Committee, but I think we should tackle to those amendments. Council Chair Furfaro: Okay. Coming to this side of the table, and I just point this out because there are some things here that I am not satisfied with. I could in fact surprise you with some of my votes. Mr. Kagawa. Councilmember Kagawa: Yes. I could go either way, but for my amendment, Amendment #3, I am aware that Councilmember Rapozo had some concerns about just excluding all abutting properties. So, he has some amendments that could cure, I guess, the example shown by Councilmember Hooser where somebody tried to skirt the abutting requirement by slivering their parcel and putting a piece right in front of the majority of the other parcels. I think Councilmember Rapozo possibly has an amendment to my amendment, and I would certainly be open to that because the intention of this amendment is for practicality for most lots, such as the Kekaha area where you have the main highway. Certainly, the State has done everything they can to preserve that main highway, why should an abutting owner on the mauka side of the highway be required to have shoreline surveys and what have you. That was my intention, not to help developers. It was to help homeowners. Thank you. Thank you, Chair. Council Chair Furfaro: Mr. Rapozo, your comments. Councilmember Rapozo: I would rather just vote on this today. Council Chair Furfaro: Okay. Councilmember Rapozo: I think we have had the discussion that the amendments that are being proposed today were actually, I think, except for Councilmember Yukimura's minor changes, I think, was presented to us at the last meeting. I spent a lot of time going through the amendments, going through the statute, and going through the rules. Mr. Kagawa is correct. Caren Diamond has raised a concern which was similar to what Mr. Hooser put up on the map, that you could be non-abutting but still be subject to some very serious coastal hazards and not directly connected to erosion. My thinking is that we leave that up to the Planning Director to make that determination. If the Planning Director determines that there are some coastal hazard issues, then he would require the process. That is just the only part that I would consider changing at this point. Rather than introduce another amendment to his amendment, I would ask Mr. Kagawa to include that language in his amendment so we do not distort the process for you, Mr. Chair. COUNCIL MEETING 45 OCTOBER 22, 2014 Thank you. My preference would be to go through these things today with limited discussion and then vote. Thank you. Council Chair Furfaro: Mr. Chock. Councilmember Chock: Thank you, Chair. I am feeling the same way as most people around the table. This has been a discussion for about a year and a half. While I am supportive of us getting clear about any specific items that need to be deferred for later, I think that we should have a discussion as much as we can at this point. Thank you. Council Chair Furfaro: What I am hearing around the table is because there is some work on the amendment, because clearly, I am not sure some of the other pieces that were introduced today for the first time, I totally understand, it looks like we might want to defer this. Keep it at the full Council and defer it? Councilmember Rapozo: Mr. Chair? Let me just ask this question. If it is the plan of this Council, the members here, and everybody be honest, to have discussion on these amendments, deep discussion, then it should be deferred. If the members can introduce their amendment and be willing to go to, like I said, if there are clarification questions and go straight to the vote, then I would say let us do it today. I mean, I do not want to have to sit through another three (3) hours of discussion and then end up deferring. I just do not want to do that. Thank you. Council Chair Furfaro: JoAnn, you had your hand up next. Councilmember Yukimura: Yes, I would like to take the amendments and see where we have agreement, and at least get those out of the way. Council Chair Furfaro: Okay. That is a good point. Find out which ones we can agree on, and then vote, but you are going to have to have narrative amongst each other to get an understanding of which ones we can get through and which ones still need work. Mr. Bynum. Councilmember Bynum: At least on this bright line thing, the amendments are prepared, the issues are clear. We should, in my opinion, vote on that today and if we cannot get through all of the other amendments, fine. We have gone far enough with this discussion, the issues are really clear, and the choices are really clear. I am ready to go, and in terms of dialogue, a few minutes on each one to just state why you are voting the way you are. We are done with the questions and answers. I do not need to say a whole lot more, just explain my position on all of the amendments one time and then vote. Council Chair Furfaro: Mr. Hooser, did you want to say anything? Councilmember Hooser: I think we should vote. We should have whatever discussions needed. I do not want to belabor each one of these topics and take until midnight either, at the same time, if there is discussion that has to be conducted, let us have it. I would like to vote, and if we can make it through, then we are done. If not, then we can defer. Thank you. Council Chair Furfaro: Okay. May I ask the two (2) gentlemen on the corner, do you have an amendment? Are you going to amend this piece? Because it looks like we are going to move forward with a vote. COUNCIL MEETING 46 OCTOBER 22, 2014 Councilmember Rapozo: Mr. Chair, I am just going to incorporate it into his original amendment. We are not going to have an additional amendment. Council Chair Furfaro: Okay. JoAnn. Councilmember Yukimura: I just want to say that your concerns are already addressed, Mel. Your concerns are already addressed by the existing law. We have included abutting parcels. You start by including almost everything, a far reach, and then you cut it down. There is this number 2, which is in the same section as the bright line exeniption which allows the Planning Director the discretion to knock out the applications where there is no evidence or possibility of shoreline interaction, wave action, and so forth. It is already addressed. Councilmember Rapozo: Mr. Chair? Council Chair Furfaro: Yes. Councilmember Rapozo: No, this is not to knock out properties that are not subject. This is to add properties that are subject. Councilmember Yukimura: I know, but first, Ross's amendment is knocking out... Councilmember Rapozo: Taking out all non-abutting properties. Councilmember Yukimura: Right, but by keeping the non-abutting provision in there, then you have the discretion which allows the Planning Director to say like Kekaha's situation where there is a very wide road and it does not look like the houses mauka of the road will be affected. He can exempt that from a shoreline determination. It is already... Councilmember Rapozo: Mr. Chair... Councilmember Yukimura: ...actually addressed. Councilmember Rapozo: I think we introduce the amendment and we have the discussion then. I mean, if she does not want to support it, she can vote "no," but I do not want to have a discussion on this. Councilmember Yukimura: Well, I was just trying to show you that the existing law works, but it is up to you. Council Chair Furfaro: We understand you were attempting to give some kokua here. Is there anybody else that wants to massage this thing, because I am going to take another ten (10) minute recess? Can you do it in ten (10) minutes? Then we are going to start voting. Councilmember Rapozo: I can do it in two (2), but we will take ten (10). Council Chair Furfaro: Ten (10) minutes, and nobody else needs to fix verbiage on anything? Okay, we are on recess, ten (10) minutes. There being no objections, the meeting recessed at 11:44 a.m. The meeting reconvened at 11:52 a.m., and proceeded as follows: COUNCIL MEETING 47 OCTOBER 22, 2014 Council Chair Furfaro: Mel, I am going to give you the floor. We are back in session. I know there is one that we can start discussion now. Mel. Councilmember Rapozo: Thank you, Mr. Chair. My amendment is listed Floor Amendment MR No. 1. This just really, cleans up the Bill because there was a conflicting reference to after-the-fact permits. Although the Bill prohibits after-the-fact permits, Section 8-27.9 Subsection (a)(1)stated that there was, so we are just removing any reference to the legality of an after-the-fact permit under the variance application. Councilmember Rapozo moved to amend Bill No. 2461, Draft 2 as circulated, as shown in Floor Amendment No. MR #1, which is attached hereto and incorporated herein as Attachment 1, seconded by Councilmember Kagawa. Council Chair Furfaro: I have a motion and a second. Discussion. Mr. Bynum. Councilmember Bynum: I just need to make sure I have the right copy here. Council Chair Furfaro: Here it is. Councilmember Rapozo: Floor Amendment No. MR#1. Council Chair Furfaro: MR#1. Councilmember Bynum: I just have a question then. Council Chair Furfaro: Go ahead, you have the floor. You need your microphone. Councilmember Bynum: What I have before me removes this about an administrative fee. Councilmember Rapozo: That is the one. Councilmember Bynum: And that accomplishes this too? Councilmember Rapozo: Yes, because in the Bill at the end, it prohibits any variances from being issued on any unpermitted structure. Councilmember Bynum: Okay. Councilmember Rapozo: There was a conflict, basically this one is saying that if you seven thousand five hundred dollars ($7,500), you could buy your variance and I am saying no. Councilmember Bynum: Got it. Councilmember Rapozo: We are not allowing any variances on any unpermitted structures. Councilmember Bynum: Thank you. Council Chair Furfaro: Further discussion? If not, roll call vote on the amendment, please. COUNCIL MEETING 48 OCTOBER 22, 2014 The motion to amend Bill No. 2461, Draft 2 as circulated, as shown in Floor Amendment No. MR#1, which is attached hereto and incorporated herein as Attachment 1 was then put, and carried by the following vote: FOR AMENDMENT: Bynum, Chock, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 7, AGAINST AMENDMENT: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Seven (7) ayes. Council Chair Furfaro: Seven (7) ayes. Okay, next one. Did we have someone who wants to step forward with their next one since we seem to be doing the easy ones because there are a whole bunch of difficult ones? JoAnn. Councilmember Yukimura: Chair, if Vice Chair Chock would introduce his Floor Amendment#3, I do not believe there is major problems with it. Councilmember Chock: Will do. Council Chair Furfaro: You have the floor, Mr. Chock. Councilmember Chock: Thank you. It is on page 3 of the amendment passed out. Councilmember Yukimura: Your microphone. Councilmember Chock: I am sorry. It is on page 3 of the amendment passed out, item number 5. Councilmember Yukimura: Do you want to move to approve as circulated? Councilmember Chock: Yes, thank you. Councilmember Chock moved to amend Bill No. 2461, Draft 2 as circulated, as shown in Floor Amendment #3, which is attached hereto and incorporated herein as Attachment 2, seconded by Councilmember Bynum. Councilmember Chock: Thank you. This refers to, and this was a result of multiple requests from the community, HRS Chapter 205A. It references some additional language that is already contained in HRS Chapter 205A. I passed it through the County Attorney, and he has said that this is okay to move forward on. For that reason, it is here before you. Councilmember Bynum: Do you want to read the additional language? Councilmember Chock: Sure. I will read all of number 5. "All new structures shall be consistent with the purposes of this article and HRS Chapter 205A, as amended, and shall be designed and located to minimize the alteration of natural landforms and existing public views to and along the shoreline." There is reference, I think this was submitted by Caren today actually. I am not sure. You have it in front of you, I think, HRS Chapter 205-2, second page under number 3. Same verbiage that came straight out of HRS Chapter 205A. "Ensure that the developments are compatible with their visual environment by designing and locating COUNCIL MEETING 49 OCTOBER 22, 2014 such developments to minimize alteration of natural landforms and existing public views to and along the shoreline." Council Chair Furfaro: So, that is an HRS document? Councilmember Chock: That is correct. Council Chair Furfaro: We feel we need to put an HRS document in our document because the HRS pieces are already the law? Councilmember Chock: It does say under number 5 unless we excluded all of number 5, which is "All new structures shall be consistent with the purposes of article HRS Chapter 205A..." Again, it was a request and for discussion. I am happy to vote it up or down, either way you like. Council Chair Furfaro: Mr. Bynum. Councilmember Bynum: I think that this amendment just adds clarity to our intent and it not uncommon to repeat language to make it clear that the Council had this as a goal. I would be supportive of this amendment. Council Chair Furfaro: Mr. Chock, is it repeating the exact language of HRS or has it been embellished? Councilmember Chock: I do not believe it has been embellished. It looks like it is repeating the exact words. Is that correct? Council Chair Furfaro: I do not think so. JoAnn. Councilmember Yukimura: I believe the wording in HRS Chapter 205A is about views from the highway. I could be wrong, but I think, and I will look into that. Councilmember Chock: Okay. Councilmember Yukimura: HRS Chapter 205A is about permitted structures within the shoreline setback area. It is not about what you are going to setback. The permitted uses are already established by HRS law. That is why I do not think it should affect too much because it is existing law, but I will look right now. Councilmember Chock: This one in particular, comes under...sorry. Under scenic and open space resources. Again, I read it verbatim. If there is anything outstanding, please let me know. Council Chair Furfaro: Mr. Rapozo. Councilmember Rapozo: Thank you, Mr. Chair. I think we have to remember HRS Chapter 205A is the coastal zone management. It is the entire program, and within HRS Chapter 205A, you have the different sections that govern shoreline setbacks. HRS Chapter 205A gives the Counties the authority or really, the duty, to protect certain parts of the environment and the beaches. I still maintain today, that the shoreline setback and later when we get into commentary, I will explain the original intent, was to preserve our coastlines from coastal hazards. The view plain, the aesthetics of development should be through your SMA permit process, which should be tied into your Development Plans or your General Plan. Basically, the community determines what they want. You may have some communities that want the, and I am not saying here, but in general, you have COUNCIL MEETING 50 OCTOBER 22, 2014 communities that welcome development, and that is defined in your General Plan and your Development Plans for the community. HRS Chapter 205A is a large chapter, and like I said, it encompasses many different parts. I believe the aesthetics and the view plain protection falls not under shoreline protection or shoreline setbacks. It belongs in other vehicles which, and I will discuss it at a later time. I will not be supporting the amendment. Thank you. Council Chair Furfaro: Mr. Hooser. Councilmember Hooser: Yes, Chair. When the amendment was first introduced I thought okay, this is a no-brainer and I put "I am going to vote yes," put it on the side, and then all of a sudden there is this discussion. Relooking at it again, and I cannot see anything to argue with at all. I mean, if it is redundant or not, that is not, in my opinion, a reason not to support it. It says that "All new structures..." and then has the "...existing shall be designed and located to minimize the alteration of natural landforms and existing public views to and along the shoreline." I mean, to me, that is mom and apple pie. I do not know why we would not want to put that in there. I just honestly do not see any reasons whatsoever not to support this measure. If it is in other places, so much the better. I think there is a lot of talk about oh, it is already in the SMA, it is already in this, and it is already in that. If this is truly important, I asked them, it is important to me, why not have it in as many places as possible to maximize the effectiveness and the assuredly that it is going to be done. I will be supporting this. Thank you. Council Chair Furfaro: Mr. Rapozo. Councilmember Rapozo: Mr. Chair, I do not disagree with that this amendment is saying. I am just saying it does not belong in the shoreline protection bill. It is like saying that the type of...shoreline setback. It is like saying we would determine what kind of roof structure you would use because of the aesthetics of a community or the color of the paint of your house in this Bill. I do not think it is appropriate. This bill is to regulate, enforce, and set..."the purpose of the Bill finds that Kaua`i's coastline is subject to a wide variety of natural hazards such as tsunamis, high surf, sea level rise, hurricanes, coastal flooding, coastal erosion, and pose dangers to people and property located near the shoreline." Near the shoreline. It does not reference, and again, I am just reading the purpose and the findings of the bill, the legislative intent. Although I agree with it, I believe our SMA law needs to be changed to incorporate these visual or aesthetic issues, but this bill is not the vehicle, in my opinion. This is bill is to protect the coastal properties, people, family, lives, and so forth. I do not disagree with the...I am one of the stronger advocates of HRS Chapter 205A however, I believe that this is not related to the coastal hazard. It is more of an aesthetic issue and view plane issue. That is why. Thank you. Council Chair Furfaro: Mr. Bynum. Councilmember Bynum: I would hope to save this discussion about purpose for my amendment because...but this is the key thing, to me. This is absolutely key. I passed out the findings and purpose from the original bill that I voted on, and so what I am going to say is what Mr. Rapozo read, the original bill said, "proper siting of structures based on hazard recognition and long-term planning principles, and the preservation of coastal resources." Then it goes in and it says, "The shoreline environment is one of Kaua`i's most important economic and natural resources. Beaches provide scenic beauty and recreational opportunities for residents and visitors. They are culturally important." They are talking about economy, scenic beauty. These are all purposes of this Bill. It was a shoreline setback bill, not a coastal hazard bill. That is not even the name of it. Then, the purpose goes on to say, COUNCIL MEETING 51 OCTOBER 22, 2014 "Beaches, dunes, and offshore topographical futures also help minimize risk." It was all of these purposes and coastal erosion. Then it says, "In all of the above mentioned ways, beaches, coastal areas are part of the public trust, and it is a government's fiduciary responsibility to protect beaches and coastal areas." This is the fundamental problem with this whole discussion. We are trying to redefine this as a coastal hazard only bill. It never was a coastal hazard only bill and it should not be one going forward. It should have all of these purposes that were stated in the original intent. The bill that I voted for had all of these purposes. It says, "Also, coastal hazards." All of these things and coastal hazards. This amendment is totally consistent with the goals and purposes that were outlined. This effort to change this bill into strictly a coastal hazard bill and forget all of these things that were brought forward and the reasons I had voted for this bill, is the fundamental problem here. I could not disagree more with Councilmember Rapozo's premise that this is just a coastal hazard and none of these other issues belong in this bill. Well, they are in the bill now and they are in the bill that we voted for. Now, this was not an easy vote. This bill voted 4:2. It was barely passed into law. So, to take away all of these other things that this bill is intended to do and say, "No, it is only for these hazards," is just a false argument, in my mind and not something I am willing to support to take out all of these other purposes. We have already had testimony that HRS Chapter 205A is inadequate. The Planning Director said, "We could expand it to solve these problems." Why do we need to do all of that when we already have the one hundred (100) feet setback? We already have a bill that addresses these issues and are part of it. Thank you. Council Chair Furfaro: To the Clerk's Office, start timing the members at three (3) minutes as they go around the table, please. JoAnn, you have the floor. Councilmember Yukimura: I believe Councilmember Bynum is mixing the findings with the purpose. I wrote this language that he quoted, and it was to first establish the context of the importance of the coastal zone, but if you look at the purpose, it is "In order to protect life/property against coastal hazards. This Bill sets forth a procedure for establishing setbacks based on scientifically documented rates of shoreline change and the history of coastal hazards in a specific place." I am reading the two (2) paragraphs beyond what Councilmember Bynum read. So, you establish the findings about the importance of the coastal zone and the problems with coastal hazards. Then, if it was our intention to govern more than coastal hazards, we would have criteria for doing that, but we do not. As Councilmember Rapozo pointed out, the State statute which creates the framework is HRS Chapter 205A, and the SMA permit is one section and the shoreline is another section. They both have different functions and they establish different regulatory systems with different criteria, but both of them have permits or some kind of a case-by-case determination, but they have different criteria for each of those sets of frameworks. I thought when I started out the recommendation that we go to this amendment that the amendment was not any big change. I do not think it is because it deals with a section that is regarding permitted structures in the shoreline setback area and it is from State law. I think I am going to vote against it just to keep it really clean and simple that our main function of the Shoreline Setback Bill is to prevent and avoid coastal hazards including erosion and episodic events because that is what the criteria are in this Bill. Council Chair Furfaro: Okay. Before I respond to Mr. Bynum a second time, is there anyone who has not spoken a first time? Mr. Kagawa and then Mr. Hooser. COUNCIL MEETING 52 OCTOBER 22, 2014 Councilmember Kagawa: Yes, I agree with Councilmember Yukimura. My main reason is that I do not think HRS Chapter 205A is inadequate. I believe it is very complex and it took a lot of effort, and addresses perhaps more than it needed to. I would not say it is inadequate. It is more than adequate, but how we enforce it is the question. I think item 5 is clear. It is concise. It is, "All new structures shall be consistent with the purpose of this article in HRS Chapter 205A as amended," and just leaving it like it is, keeping it simple and it covers what we needed. We did not need to add in redundant language. I mean, just for the sake of adding redundant language to stress a point that certain Councilmembers may feel needs to be stated, is not keeping it simple. We have to keep it simple, keep it focused. Thank you. Council Chair Furfaro: Mr. Hooser, your second time and then Mr. Bynum's second time. Councilmember Hooser: Yes. Again, speaking in support. Again, I cannot understand why we would not want to have this one sentence in there. It certainly does not harm and only reinforces the values that we all say that we support, and does not harm. It is hard understand why we would not want to support it. Looking at the section that Councilmember Bynum and Councilmember Yukimura both referred to, it says, "Findings and Purpose." It is not separated between a finding or a purpose. It is my understanding that findings is looking at what is there, and then you say, "Therefore, this is the purpose." It is very clear to me that Councilmember Bynum is correct. I am not going to reread the whole thing, but I will reread parts of it. Before it gets to why we are doing this setback law, it says clearly, "Beaches, dunes, offshore topographical features help minimize risk and coastal hazards by dissipating wave energy that could cause damage." Okay, that is a given. "And beaches provide important habitat for sea bird, turtles, monk seals, and other animals and plants. In all of the above mentioned ways, beaches and coastal areas are part of the public trust, and it is government's fiduciary responsibility to protect beaches and coastal areas." Prior to that, it talks about cultural and other important reasons, not just coastal hazards. Clearly, the purpose is based on the findings. The findings are clear, that this is not just about where to site your home because a wave is going to erode the soil or not. There are a lot of things at stake here. I think this is just much ado about very little,but it is important. I am unwilling to vote against these words that merely strengthen that this should be located and designed to minimize alteration and natural forms and existing public views. Yes. I think the purpose and findings are very clear, what the intent was, is or should be, and again, the amendment does no harm and merely reinforces values that we all espouse to. Thank you. Council Chair Furfaro: Mr.'Bynum. Councilmember Bynum: I am going to read this list. "Long-term planning principles, preservation of coastal resources, important economic and natural resources provided by shoreline environment. Beaches provide beauty and recreational opportunities for residents and visitors. They also..." it says, "...have coastal hazards. For all of the abovementioned reasons," and then Councilmember Yukimura reads and says two (2) paragraphs down that it talks more about coastal hazards as if that means all of this is not part of it. You cannot have it both ways. I know very clearly what I voted for in 2007, and it was a coastal setback bill to address all of these concerns that were stated in the bill. To reframe this as just coastal hazard and say all of these things are no longer important because SMA can handle it, yet we have had extensive testimony, and we heard from the Planning Director today that the SMA would need to be amended to accomplish these goals that are already being accomplished in this Bill. I feel very strongly that this is the key issue. COUNCIL MEETING 53 OCTOBER 22, 2014 Is this a Shoreline Setback Bill, the one, I voted for or are we going to turn it in to a coastal hazards only and just forget all of these other things we said were important? Councilmember Rapozo: Process question, Mr. Chair. Council Chair Furfaro: Yes. Councilmember Rapozo: Again, if we are going to go into this kind of debate, then I would say we defer. I mean, this is turning into a political forum and I do not want to deal with that. Just state your opposition, state your support, and move on. I think this is going outside. Let us just get through this. Everyone has their own opinion and no one is right. Let us just state our opinion and move on. There is no need to be pointing at people. Let us just get through this. It is already 12:15 p.m. Thank you. Council Chair Furfaro: JoAnn, you already had two (2) times to speak. Councilmember Yukimura: Yes, this is my second time. Councilmember Rapozo: This is your third time. Council Chair Furfaro: This is your third time. You already had two (2) times to speak. Councilmember Yukimura: I am just going to say then to explain that I am going to vote silently for it because it only affects Civil Defense structures, unsigned structures by government agencies to address emergencies, et cetera. Where it is located is incorrect. Council Chair Furfaro: We have a motion on the table. I want to say that we are talking about things here, they are not the real objective. They are actually subjective. I mean, what color house you want, what kind of shingles are you going to put on there, those types of things. They become very subjective. That is a hard thing to legislate and those are usually done at the Planning Department when the plans are reviewed and so forth. On that note, I mean, we are not here to develop a protective covenants for the island, because for me, I like sleeping in a house with toton roof and hearing the rain at night. I would like to call for the vote on this amendment, please. The motion to amend Bill No. 2461, Draft 2, as amended, as circulated, and shown in Floor Amendment #3, which is attached hereto and incorporated herein as Attachment 2 was then put, and carried by the following vote: FOR AMENDMENT: Bynum, Chock, Hooser, Yukimura TOTAL— 4*, AGAINST AMENDMENT: Kagawa, Rapozo, Furfaro TOTAL— 3, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL— 0. Council Chair Furfaro: I want to get some clarifiaton on the rules here. Since JoAnn silent, her silent vote will go with the motion. That is the question that I am asking. Am I correct? Ms. Fountain-Tanigawa: Yes, you are. Council Chair Furfaro: Okay, then I vote no. COUNCIL MEETING 54 OCTOBER 22, 2014 Ms. Fountain-Tanigawa: It passes, 4:3. Council Chair Furfaro: JoAnn, you just had the bill pass 4:3. Okay. Now, it is 12:15 p.m. here. There are two (2) items we have just discussed in a set of eight (8) amendments. Is there still a feeling about deferring this for two (2) weeks? Mr. Bynum. Councilmember Bynum: I think we vote on the bright line amendment. If it passes, we know that Councilmember Yukimura's amendment becomes moot. Council Chair Furfaro: Okay. Or vice versa. Okay, you want to go there? We will go there next. Okay, let us start with Mr. Chock's amendment on the bright line amendment/exemption. Councilmember Chock: For the sake of not being redundant as we are expressing it is clear, we are taking out the exemption in my amendment. I would ask for a motion to approve as amended. Councilmember Bynum moved to amend Bill No. 2461, Draft 2, as amended, and circulated, as shown in Floor Amendment No. CM #1, which is attached hereto and incorporated herein as Attachment 3, seconded by Councilmember Chock. Council Chair Furfaro: Thank you. Discussion? I will go to the introducer first. Councilmember Chock: Well, the thing that comes up to me is...This is what has taken a year and a half for this Committee to really discern, and it has come to us to make a decision on. I for one, just wanted to see something that is as most protective as possible. I am not convinced that we have gone as far as we can in determining a rocky shoreline. I would prefer that if there was anything that we continue to do, is that we look at this more distinctly. I understand the case-by-case that is being requested. I think that is what we currently have by excluding the amendments we have, the Planning Director is still taking on that kuleana, that role to make a determination for us. I do not want to allow another criteria or another exemption to bypass what we are currently trying to protect. So, for that reason, I am supporting this. The other thing I would say, is that it is hard because everything is connected. I mean, it is difficult to say that things are not connected and that they stand alone because we are all connected. What affects one thing in one bill will affect another one. We need to take those things into consideration when we make decisions. Thank you. Council Chair Furfaro: Mr. Bynum. Councilmember Bynum: I will try to be quick. The original bill, the title was related to shoreline setback and coastal protection. The question has been raised several times and not answered. Who does this amendment serve? I do not know the answer to that question other than I know that it will allow a one hundred (100) foot setback to change to forty (40) feet. I know that Sea Grant did not recommend this. They pointed out in their testimony, and I will not take time to read it, that there were still problems and still unanswered questions. They did not make a policy choice. They just said, "This will help protect coastal hazards," but they also said, "But there are some other questions." The important key here is do we want to diminish the current setback we have? That is just simple, and why? For who? To me, it is simple. Just do not go there. The way the bill is written now offers more protection than any of these amendments. I do to think that is in dispute. I mean, COUNCIL MEETING 55 OCTOBER 22, 2014 removing this will allow the bill to offer more protection than keeping this or JoAnn's amendment. It will diminish the protections that we currently have. The only argument I can think of why we would want to do that is to say if this bill is not about these other things, but it clearly is. Thank you. I am obviously in support of this amendment. Council Chair Furfaro: Any other discussion? JoAnn. Councilmember Yukimura: I appreciate Council Vice Chair introducing this amendment so that we can really have a robust discussion about why and what we are trying to do. In terms of who does it serve, I believe when we create a bill, a law, or a regulation against certain adverse impacts to people and to property, the best that we can do, it is to have very clear lines about what is protection and what is not. This bright line exemption does not, I mean, it does not apply to most of the coastline. Most of the coastline that is at-risk from coastal hazards is actually taken care of because as was shown, to find a rocky coastline is very, very difficult. So, what we are saying and what we are doing is saving administrative time where there is not real harm and clearing those out as much as we should. Somebody brought to my attention, the Koloa Mill. Repairs to the Koloa Mill have to get a shoreline setback determination. That is clearly outside of the range of impact, so why would we make somebody go through that? When our laws can clearly require where there is going to be harm, the requirements for protection, but not when there is no harm. I think it is in all of our best interest to do that because it cuts down on extra time and money to go through this regulatory process, and it is not just developer's money. It is the time spent by our Administration, our Planning Commission, and our Planning Department. If we can find ways to make clear delineations without jeopardizing the main purpose of our bill, I think, it is the best way to draft a law. Council Chair Furfaro: Does anybody else want to speak? No? Okay... nobody raised their hand when I asked. Councilmember Hooser: I am raising my hand. Council Chair Furfaro: Oh, I see the finger now. You have got it. Councilmember Hooser: Thank you, Chair. I am supporting the amendment and I commend Councilmember Chock for putting it forward. There has been a whole lot discussion, there has been a lot of discussion today, and the woman who was here and asked that pertinent question was who benefits, who is this for? The bill before us is still not clear to me. Who benefits? The only people that have spoken for the bill are people in the development business. That is not bad thing, but that is the only people that have testified in support here today. The people who have testified, the numerous testimony that has been in opposition and in support of this amendment has been from community members concerned about loss of what we now have. That is what it really amounts to. We have an existing ordinance that gives greater protections than what we will have if the bill passes unamended. That impacts everything from view planes to nesting birds to cultural to lateral access. I mean, it has all kinds of unintended impacts. Does it make it easier for certain landowners to develop their property? Yes, it does. Does it give up important public protections? Absolutely it does also, in my opinion. I will be voting in support of this amendment and hope that we could pass it and move forward, and continue to maintain what was described as one of the best, if not the best, shoreline setback measure in the Nation. Thank you. Council Chair Furfaro: Mr. Kagawa. COUNCIL MEETING 56 OCTOBER 22, 2014 Councilmember Kagawa: Thank you, Chair. First of all, I would like to thank Caren and Barbara for being on that Committee. They were fighting for these things on the Committee as members of the Committee. Unfortunately for them, that did not have the votes to put in the full one hundred (100) feet, but like anything, we need balance. I think Councilmember Yukimura even got Ruby to tell us that perhaps moving from forty (40) to sixty (60) above a rocky shoreline is not a bad idea actually, and one that she could recommend us doing. I think that is what we are going to do today. So, there is compromise. It is not going back the full one hundred (100) feet, but going out to sixty (60) feet, which is a compromise. One could say, "Well, let us get no development on a cliffside. We do not want to see anything. We just want to see natural beauty." Is that realistic? I mean, to some degree, without development, we do not have jobs. As a teacher, I see a lot of students who finish school and they do not know what they are going to do, and a lot my students come from the North Shore. Like it or not, they are going to need jobs whether it be in construction, hotel industry, what have you. If we have this attitude like we do not want development, we are going to cut every right that they have, believe me, we will have large landowners just gobble up land, and not put anything on it, and how is our economy going to benefit? I mean, it is about balance. I fish a lot,just like Mr. Chock. That is what I did from when I was young. I am born and raised on the West Side. I do not see many developments on the rocky shorelines. We do not have developments on the West Side. We are primarily relying on farming, as we have, all of these years. At some point, as farming gets pressure, we are going to see developments come up. Do we want legislation that we did against certain areas like Pierre Omidyar's development to affect what comes up later on the West Side? I mean, that is what you call "targeted legislation and unforeseen impacts." Let us be mindful that we need balance. We need balance in all areas and we cannot just have things one way. That is all I ask today. Thank you. Council Chair Furfaro: Mr. Rapozo. Councilmember Rapozo: Thank you, Mr. Chair. Like Mr. Kagawa stated, I want to thank Caren and everyone that participated because this is a very complicated issue. I know Caren on one of the breaks said, "Oh, I this is one of the few times that I disagree with you." I would say that I do not think we are in disagreement. I think we agree on what needs to be done. There is just a disagreement on where these things should be put. Who benefits from this? I think everybody tends to look at the big developer, but I think as stated earlier by one of my colleagues, it is not just the developers. It is personal landowners, individual landowners that are in the same situation as developers. Every law, not every law, but majority of laws that we have on the books come with exemptions for whatever reason. Why would we require someone to go through a process that is not necessary? Why would we require someone, and for a moment stop thinking about the developer and think about the landowner who purchased the property that abuts the shoreline or maybe not abutting, but fall in that zone. That really is not required to go through the shoreline determination process. It has no impact on the coastal erosion or is not subject to coastal hazards. Why would we force them to go through that process? I do not know if any of you have gone to renew your license lately, but one of the exemptions should be that if you got your driver's license within the last five (5)years, you do not need to bring in your driver's license, marriage certificate, and all of those things. That is a stupid law, but that law should have an exemption that if you had just renewed your license and nothing changed, why are you required to bring another marriage certificate? That is the same situation here. Why would you require a landowner who is already dealing with mortgages and the cost to have to go through a process that is not necessary? On the other hand, and again, remember this exemption is only for properties that are on a rocky shoreline. That is all. Thirty (30) feet above sea level and outside of the flood zone, the Federal FIRM maps, a COUNCIL MEETING 57 OCTOBER 22, 2014 relatively safe place, and yet, in Councilmember Yukimura's...I would not support this. I can tell you today, if not for Councilmember Yukimura's amendment that is going to be coming up, only because of that amendment, I am comfortable that there will be a setback placed even on properties that are on a rocky shoreline. There will be a setback based on historical data. I do not believe the exemption is necessary in this case, because I think that again, we do not want to put people through processes that are not necessary. I think that just causes more problems than resolutions. Ms. Fountain-Tanigawa: Three (3) minutes. Councilmember Rapozo: Thank you, Mr. Chair. Council Chair Furfaro: Anyone else before I speak? No? Okay. I find myself sharing with you folks that being here on the Council, you always want to maintain effective relationships with individuals and you find yourself wanting to make sure you gain trust. I will say, this is one of the most difficult decisions that I have had to make because I am a Hanalei boy. I mean, that is my home outside of Makaha and that is my family's home. A lot these things have been targeted towards that one project, but I find myself also thinking about the situations we have like that at Kalapaki. We have situations like that at the lighthouse in Po`ipii, above rocky shorelines and so forth. I think I would say the same if I did not know that we had another option here with the work that JoAnn has done on the setback. I do not know where I would be on this one. Obviously, with an opportunity for this Council, future Councils whether I am on it or not, does provide an opportunity in JoAnn's amendment to constantly make improvements.. I just wanted to say, there has been great discussion here. I do not think we will find ourselves in a situation where we are always agreeing, but this was a tough one. As I talked about earlier, some of the other things the people want to have done on certain projects and so forth, this is a setback bill. This is not about protective covenance and objective or subjective reviews. That is done by project at the Planning Commission. I will not be supporting this piece here, and I will call for the vote. The motion to amend Bill No. 2461, Draft 2, as amended, as circulated, and shown in Floor Amendment No. CM #1, which is attached hereto and incorporated herein as Attachment 3 was then put, and failed by the following vote: FOR AMENDMENT: Bynum, Chock, Hooser TOTAL— 3, AGAINST AMENDMENT: Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 4, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: 3:4. Council Chair Furfaro: Okay, let us go to the next amendment, please. Councilmember Yukimura moved to amend Bill No. 2461, Draft 2, as amended, as circulated, and shown in Floor Amendment No. JY#la, which is attached hereto and incorporated herein as Attachment 4, seconded by Councilmember Kagawa. Council Chair Furfaro: I have a second. Mr. Bynum, you have the floor. COUNCIL MEETING 58 OCTOBER 22, 2014 Councilmember Bynum: I am going to state my opinion right now and if it makes people unhappy, that is life. This is a really sad day based on the last vote. This could not be more clear of what is in the best interest of the people of Kauai and the residents here. This is a watershed vote, in my opinion. This vote, the Councilmembers who chose to diminish our protections on the shoreline... Councilmember Rapozo: Mr. Chair, point of order. We are done with that amendment. We are on Ms. Yukimura's amendment Councilmember Bynum: And I am talking about this amendment. Councilmember Rapozo: I am calling a point of order, Mr. Chair. Council Chair Furfaro: Point of order... Councilmember Rapozo: The point of order is... Council Chair Furfaro: The floor recognizes Mr. Rapozo. Councilmember Rapozo: Mr. Chair, the motion on the floor is Councilmember Yukimura's amendment. If Mr. Bynum wants to talk about his disappointment with the vote on this Bill, he can do it during discussion. What is on the floor right now is Councilmember Yukimura's amendment, JY#la, and I would ask that we stay on that item or be allowed comments regarding how I believe the other side voted wrongly in this moment. I mean, I think that is part of the decorum that we need to restore, that is an agenda item, and the motion on the floor is not about the last vote. That is done. I would ask that you... Council Chair Furfaro: Thank you. Councilmember Rapozo: Thank you, Mr. Chair. Council Chair Furfaro: I would like comments to be focused on the item that is on the agenda right now, and that is Councilmember Yukimura's piece. I also want to talk about this, and this is something that we have to honestly...I hear it in your radio advertisements everybody. Respect, aloha, mutual agreement, and so forth, but my vote is my vote, Mel's vote is Mel's vote, and your vote is your vote. We are on the next item, and if you want comments towards the end, we will go to the end, but let us stay focused on this amendment. Mr. Bynum, you still have the floor. Councilmember Bynum: Have you made a ruling on the point of order then? Council Chair Furfaro: I will, but I need to go into recess, and when we reconvene I will make it. There being no objections, the meeting recessed at 12:36 p.m. The meeting reconvened at 1:43 p.m., and proceeded as follows: (Councilmember Bynum and Councilmember Yukimura were noted as not present.) COUNCIL MEETING 59 OCTOBER 22, 2014 Council Chair Furfaro: We are back from our break. First and foremost as the duty of the Chair, I want to go through as was announced to me, the particulars and the rules that I called. (Councilmember Yukimura was noted as present.) Council Chair Furfaro: These rules exist not only in our documents, but also are supported by Robert's Rules of Order, which is the fallback document for us. When a point of order is called, and in this particular case it was called by Mr. Rapozo, as long as it is directed at the Chair, the Chair can in fact make a determination as to a question on a rule being violated. In this particular situation, the reference I am making is on Mr. Rapozo's request, it is clarified in two (2) areas under Rule 13, that a member should speak directly to the Chair with any remarks that are confined to the question under discussion at the time. The item that we were discussing was Councilmember Yukimura's motion. As Mr. Bynum's remarks were not confined to the question, the question that Mr. Rapozo raised was appropriate. I would also like to reference if I can, the fact that this is also covered in our rules, 6J, and it is a point of order as it relates to the rules being violated. It is further covered in Robert's Rules of Order. I am going to ask Scott, to please read that section for us? (Councilmember Bynum was noted as present.) SCOTT K. SATO, Council Services Review Officer: For the record, Scott Sato, Council Service Staff. This is covered in Section 43, refraining from attacking a member's motives. "When a question is pending, a member can condemn the nature or likely consequences of the purposed measure in strong terms, but he or she must avoid personalities and under no circumstances can he or she attack or question the motives of another member. The measure, not the member, is the subject of debate. If a member disagrees with the statement by another, he or she cannot state in debate that the other's statement is false, but he might say, `I believe there is strong evidence that the member is mistaken.' Council Chair Furfaro: Now, along those lines, the fact of the matter is if there is a question about my interpretation of the rules, JoAnn, are you listening to Scott or are you listening to me or do you have something else you want to share? Councilmember Yukimura: Sorry. I was just signaling to Scott that I would like to see it. Thank you. Council Chair Furfaro: Yes. Also, identified in our rules as Mr. Bynum had asked, was that I identify the appropriate section in our rules, 12I as well as Rule 6J. There is also a third point to that. Only the Council Chair can make that interpretation. If Mr. Bynum wants to further discuss the ruling that the Chair makes, he may pursue it in Rule 7, via a majority vote of the Councilmembers to override the Chair. I will give the floor back to you, Mr. Bynum. Councilmember Bynum: That is why I asked if you were making a ruling because I wanted to know what it was. Clearly, I believe I can make the statement that I need to make in the spirit of everything that we just heard. Do you want to proceed? Council Chair Furfaro: You still have the floor as it relates to Councilmember Yukimura's questions. Councilmember Bynum: Thank you very much. I am trying to put in context, my upcoming vote on this amendment. Let me say that I am disappointed COUNCIL MEETING 60 OCTOBER 22, 2014 at the outcome of the previous vote. I believe it diminishes our shoreline protection; however, I have this amendment that I hoped that we did not need to entertain because if the previous amendment would have passed, this would be moot. However, I think that reducing the shoreline protection is egregious. This amendment makes it less egregious. Egregious nonetheless in my opinion, this amendment...we had one hundred (100) feet, it was amended to forty (40) feet, and this amendment will put it at sixty (60) feet. Sixty (60) is better than forty (40), but not as good as one hundred (100). I am going to vote for the amendment because it takes us to sixty (60) even though it diminished our current one hundred (100) feet. Thank you. Council Chair Furfaro: Councilmember Yukimura, do you want to continue on your amendment? Councilmember Yukimura: Yes. During the lunch break I went into my office, locked the door, and really looked at what this all about. I think it is the way I have looked at it in terms of my support of the bright line exemption as a matter of integrity of process because I guess I am of the opinion that everything in the Bill is based on erosion rates and hazards. I believe that is the role and function of the shoreline setback law as we have worked on it from the start. I came back into this room and measured this wall with a twelve (12) inch ruler. It is thirty-eight (38) feet and some. So, sixty (60) feet is one and a half times the length of this room. I am trying to think. Sixty (60) feet back from a ledge is more than enough protection; however, I have just been inquiring about how you measure from the shoreline. So, that is an issue which actually, I feel is not fully vetted in this proposed amendment. I want to say, going back to my point about the integrity of process, if aesthetics and wildlife habitat were really the issue, we would have criteria not just for rocky shorelines, but for Hanalei Bay, for Moloa`a Bay, and all of those areas that would say, if this is a potential Albatross nesting place, we should set it back this much or if aesthetics is an issue then we should judge whether the house color is correct or whether the setback needs to needs to be more. We have none of this in the Bill and that is because the main crux of the Bill from the start has been protection against coastal erosion and hazards. That is what I mean about the integrity of process because if you do it for reasons for which there is no criteria, that leaves a lot of discretion which can be abused either way. It can be abused against the developer or against the community. It benefits everybody to have clear criteria that are rationally related to what you are trying to protect. I must say that because of what I learned about how you measure shorelines during lunch... Ms. Fountain-Tanigawa: Three (3) minutes. • Councilmember Yukimura: Like at Kalihiwai Bay, there is a rocky area and then the wall. I am told that they way we measure the shoereline is we go up from the shoreline perpendicular, and then we measure sixty (60) feet. That could mean that the house is at the edge of the cliff. People can correct me if I am wrong, but that is not, I think, what we.intended. I actually feel based on what we are talking about, that we may need more work on this, but I am still saying based on coastal erosion rates, hazards, and protection. As we are all learning together, this thing is extremely complex and that is why we took eighteen (18) months and that is why the issues are still unsettled. I think we need to look at that. Council Chair Furfaro: Are you saying you think we are back to where we were at 10:30 this morning? Councilmember Yukimura: No, we passed Councilmember Rapozo's amendment. COUNCIL MEETING 61 OCTOBER 22, 2014 Council Chair Furfaro: Your microphone is not on, JoAnn. Councilmember Yukimura: We passed... Council Chair Furfaro: Yes, I understand we... Councilmember Yukimura: ...Mason Chock's amendment, but on the bright line, I think we have to do more work. Council Chair Furfaro: We are back to just working on the amendments that we can agree on and you are indicating that... Councilmember Yukimura: I can withdraw my motion or... Council Chair Furfaro: Gosh JoAnn, you get ahead of me sometimes. Councilmember Yukimura: I am sorry. Council Chair Furfaro: I do not even recognize you and you speak. Councilmember Yukimura: I apologize. Council Chair Furfaro: Please. So, you are recommending then that we go on to some of the other lesser amendments and when it comes to this amendment, you are asking that we defer because you need to do more work? Is that a correct interpretation? Councilmember Yukimura: Yes. Council Chair Furfaro: Thank you. Councilmember Yukimura: Yes. Council Chair Furfaro: Mr. Hooser. Councilmember Hooser: Yes, I am inclined to recommend to defer without further discussion, I mean, without further amendments given that the crux of the matter is the bright line and the purpose of the measure. While the Councilmember talked about what the issue was or was not, the issue is not aesthetics, the issue is not view planes. I would say that we make the issue, we set the policy, and we decide what the Bill says as a body, as a majority. It seems really clear the Bill is not ready for primetime and we should defer it until such time that it is. That would be my suggestion. Council Chair Furfaro: Okay, your position is understood. I just want to reiterate to everybody, that is exactly what I said at 10:30 this morning when I gave us three (3) choices, but because we have taken a couple close actions on a couple of amendments, I am going to go through all of the other amendments to see if there are any more we can close out today if we have the majority of the vote to defer. I am going to throw something else out here. Deferring it back to the Council or referring it back to the Committee is the question. Think about that for right now. Mr. Bynum and then Mr. Kagawa. Mr. Kagawa. Councilmember Kagawa: Yes, thank you. I urge that we stop working on amendments and just defer because I feel like there is a lot of heavy duty business on the Council agenda and my recommendation is that we go to Committee and please COUNCIL MEETING 62 OCTOBER 22, 2014 urge the two (2) members. I know Mr. Hooser has always shown up for the shoreline setback. We can urge the Chair to make himself available on that Committee day because I would like to have the general consensus of where the Bill is headed at that Committee level. I think we can achieve that because all members are invited to participate. If we could, I mean, we always, at least I do, always even if it is a non-Committee member, I take that non-Committee member's amendment just as strongly as a Committee members amendment. I think we should just end it and defer. Thank you. Council Chair Furfaro: Mr. Bynum. Councilmember Bynum: I have questions about if we refer it to Committee, when would that Committee Meeting be? Council Chair Furfaro: Let me refer to the staff for a Committee date. Ms. Fountain-Tanigawa: Chair, the next Committee date would be November 12th. The next Council date is November 5th. Councilmember Bynum: Well, then the 10th? Ms. Fountain-Tanigawa: Council is November 5th, Committee is November 12th. Councilmember Bynum: If I may continue, Chair. Council Chair Furfaro: Yes. Councilmember Bynum: This Bill has many provisions that are not controversial that I would really like to see happen. With all due respect, this bright line is something that they have been working on forever and at lunch, Councilmember Yukimura decides her own amendment is not ready. We could get the good provisions of this Bill forward and she can reintroduce a bill and discuss the bright line later. That is one (1) option. The other question I have is, will this Council that is currently sitting, bring this Bill to a conclusion or does the timeline take it into a new Council with a new Council sitting in, and we do not know who the members will be? Is there a desire for this Council that began this work and has worked on it this hard, to bring this to a conclusion during this term? What will these delays and how will they impact those decisions? Those are reasonable things for us to also consider. Council Chair Furfaro: Before I go any further, Mr. Rapozo, you have not spoken yet, then I will say something, and then I will go to JoAnn. Councilmember Rapozo: Thank you, Mr. Chair. I am not going to oppose a referral. I believe it needs to go to Committee. I do to think this should be at the Council. I stated that at the last meeting, but whatever the wishes are. I will not oppose a referral and for that matter, a deferral. I am just curious that not long ago we went around the table and I thought it was the decision of this Council that we are going to move forward. We have had extensive discussion. I understand Councilmember Yukimura's concern when she measured the wall, but the amendment does not pass and now we want to defer. I think the people deserve more from this Council that we were ready to vote not long ago and now again, another referral. Again, I am not going to oppose that, but I really wish we would just "fish or cut bait." Eighteen (18) months long. We have had a lot of discussion and it is not going to be perfect for everybody. We go through this every single Council Meeting, COUNCIL MEETING 63 OCTOBER 22, 2014 every bill that we vote for, somebody is not satisfied. At the end of the day, we are tasked with making that decision. Again, we are not always going to agree, but I think we have to have the dialogue, vote, and let the chips fall where they fall. I can understand some Councilmembers may want more opportunity to think this out and I am not going to oppose it. I am just saying I would prefer to finish this today. Thank you. Council Chair Furfaro: Okay, now I am going to say something here. If you want to defer this or refer this, do not send it to the full Council. I told you folks, I told you four (4) weeks ago, "The work is done in Committee." It comes out of Committee, it is prepared to be looked at by all of the members on the full Council. We had five (5) amendments two (2) weeks ago. Coming today, we have eight (8). I told you folks, "Keep the amendments clean and to the point, and those are the ones we are going to work on." Now, I personally find out that I am in a situation where I am going to support a sixty (60) foot setback. So, it had influence on me saying, "Do I think the amendment offered by Mr. Chock is ready?" I do not think it is because I gave you examples of other places, but we come back after lunch and we find that those that may have supported it, and I am saying this in all honesty. Those that may have supported Mr. Chocks' amendment are the same ones now that are saying, let us refer this back to Committee again. All I want to say is, if it is not ready to come out of Committee, it should not come out of Committee. I have said that my entire time as Chairman. I have said that in all open comment that Mr. Hooser referred to it again, the bright line amendment as being the issue. Is that what we are referring back? I ask that for a very specific reason. If you follow my train of thought and pay attention to what I am saying, then you might understand me. The fact of the matter is are we referring it back only for that item or are we going to clean up some of the lesser amendments? Help me understand what you folks want to do because this is the same place we were at 10:30 this morning. Mr. Bynum. Councilmember Bynum: Thank you very... Councilmember Yukimura: I believe I was next. Council Chair Furfaro: Oh, I am sorry. JoAnn. Councilmember Yukimura: Thank you. As the person who has been shepherding this Bill, I apologize that it has been so back and forth. I think when people were thinking about measuring sixty (60) feet, they were thinking from the edge of the bluff. I do not think people really understood that they may be actually sixty (60) feet from the shoreline, may have things at the edge of the bluff. I believe this needs more time because the measurement from the shoreline was not part of this amendment until recently. I also think it will give us time to maybe do the timetable reconciliation that was brought up in terms of time for substantial construction, and maybe the definition of substantial construction. I do hope that we can pass it by this Council, which means by the end of November because this is the body that has worked on it and that understands it. It is because of our understanding, we have narrowed it down. We should aim to pass it before then, before the end of November. Council Chair Furfaro: Mr. Hooser. Councilmember Hooser: Yes, since you brought up my comments and my vote, Chair. Council Chair Furfaro: I brought up how I interpreted your comments, yes. COUNCIL MEETING 64 OCTOBER 22, 2014 Councilmember Hooser: Right. I feel compelled to respond. For the record, Councilmember Yukimura raised concerns and questions about her facts and amendment, and suggested a deferral or a referral may be appropriate, then I spoke and said, "I agree with her" and also spoke with my concerns about the bright line. I think the only other Councilmember who said that they supported the deferral was Councilmember Kagawa. The statement that everyone who was supporting the bright line wants a deferral, I do not think is based on what the remarks were. I just want to be clear on that. It is not like everyone who wanted the bright line is not ganging up to defer because I think I am the only one who spoke supporting that deferral. Council Chair Furfaro: Well, like I said, that was my interpretation, and if that was not meant to be, you have my apology. Councilmember Hooser: Oh no, for me, that is certainly an issue. I am just saying for the body, I think I was the only one that spoke. Council Chair Furfaro: Okay. Councilmember Hooser: Thank you. Council Chair Furfaro: Mr. Bynum. Councilmember Bynum: I just want to first of all say I always understood what JoAnn just said, that is was from the shoreline to the bluff, and I said that on the floor in the past. That is one of the concerns I have about diminishing it. In terms of process here, this was at the Planning Committee that I am Chair of, I asked the Chair whether he wanted to leave it in Committee of move it, and he set the parameters —because we have identified these amendments, it is okay to bring it to Council, but there were additional amendments today. I agree that I would like to see this Council that is sitting down bring this Bill to fruition. If it goes to the Committee that is on the 19th, then it could conceivably... Councilmember Yukimura: 12th. Councilmember Bynum: I am sorry. If it goes to Committee, it goes...I am sorry. Could you help me, please? November... Council Chair Furfaro: 12th. Councilmember Bynum: 12th, so then it could be conceivably back to the Council on the 19th, correct? Okay. As the Chair of the Planning Committee, if the choice is to move it to Planning, that is fine with me, but that is Committee. There, we will entertain any amendments that Councilmembers want to bring in Committee on that day, with that goal being to complete that work in that Committee and send it to the Council on the 19th. Is that acceptable to members? Council Chair Furfaro: Well, that is acceptable if all of the facts were right. I did not request it to come to the Council. The group did. Councilmember Bynum: Well, on the public...may I respond? Council Chair Furfaro: Yes. COUNCIL MEETING 65 OCTOBER 22, 2014 Councilmember Bynum: On the public record that day, I said, "I am happy to keep it in Committee and I am going to defer to the Council Chair." I think it is on the public record. Council Chair Furfaro: Right. Councilmember Bynum: My memory of it was that you said, "Okay, send it to Committee if it is limited to these amendments." Council Chair Furfaro: Those three (3) amendments. Councilmember Yukimura: To Council. Councilmember Bynum: The ones that were announced. Council Chair Furfaro: Yes. Councilmember Bynum: Okay, but that did not happen. So, that is fine. I am just saying if it comes back to Committee, in Committee, I would entertain any amendments from members with the hope that we would conclude that day and send it back to Council so we could complete this Bill before the end of the term. As the Planning Chair if it comes back to Planning, that would be my intention. Council Chair Furfaro: Okay, well, I have already told you. I do not want it back. It currently has eight (8) amendments. Councilmember Bynum: Right. Council Chair Furfaro: It was you that asked the question, "Would I take it with three (3) amendments," now we are at eight (8) and it looks like... Councilmember Bynum: I understand. Council Chair Furfaro: ...we could be at twenty (20). Councilmember Bynum: Right. Council Chair Furfaro: It needs to go back to the Planning Committee. Councilmember Bynum: Well, then I am agreeing with that. Council Chair Furfaro: Okay. Councilmember Bynum: I also agree that we could have brought this Bill to a conclusion today by working on the amendments, but I think that opportunity has passed. So, coming back to the Committee is fine with me. Council Chair Furfaro: Okay. Any more here? Now, the other part of the question, the amendments that are in front of us, do you want to continue working on it or do you want to refer all of this? Councilmember Yukimura: I think we need to just defer. Council Chair Furfaro: Okay, is it defer or refer? COUNCIL MEETING 66 OCTOBER 22, 2014 Councilmember Rapozo: Refer. Councilmember Yukimura: Refer, excuse me. Council Chair Furfaro: I am asking the Clerk. Councilmember Yukimura: Refer to Committee. Council Chair Furfaro: Refer, right? Ms. Fountain-Tanigawa: We could refer to Committee. Council Chair Furfaro: Okay, thank you. Everybody understood the "r" versus the "d?" Refer back to the Planning Committee. Yes? Councilmember Bynum: Just one (1) other thing. I would have preferred to work a little more today, but given our agenda, I agree we need to move on to other things. Council Chair Furfaro: Our agenda is sizable. Councilmember Bynum: Yes. Council Chair Furfaro: Is there any more discussion here? If not, I need a motion to refer back to Planning Committee of November 12th. Ms. Fountain-Tanigawa: Chair. Council Chair Furfaro: Hold on. Yes? Ms. Fountain-Tanigawa: Just for clarification, do you intend to have the amendments approved, the bill approved as amended, and the amended version be sent back to the Planning Committee. Council Chair Furfaro: That is a good point. We should approve the amendments that we have done up to today and then refer the balance of them back to the Committee. Discussion on that point. Councilmember Yukimura: I believe we have already approved the amendments. Council Chair Furfaro: But we have not approved them to actually be part of the Bill that we are going to refer back to Planning. Councilmember Yukimura: But if we do that, we will be approving the Bill, would we not? Council Chair Furfaro: We approve the amendments that we have to go into the bill, and then the bill would be referred back to Planning. Ms. Fountain-Tanigawa: So, it would be referred... Councilmember Yukimura: I think if we just refer now, it would be the... COUNCIL MEETING 67 OCTOBER 22, 2014 Council Chair Furfaro: No, what we will do is we will take three (3) minutes to give the Clerk's Office the appropriate time. Three (3) minutes. Do not go far. There being no objections, the meeting recessed at 2:10 p.m. The meeting reconvened at 2:19 p.m., and proceeded as follows: Council Chair Furfaro: Stay right here, Scott. This is what is on the floor right now and I want to make sure I am very careful about the way I state this. If we want to refer this back to Committee on November 12th, those amendments that passed will be part of the Bill that gets referred back to the Committee, okay? Those that did not pass or have not yet been introduced will need to have dialogue and submission in the Committee to become part of the Bill that comes back to the full Council. I got that pretty clear. I want to make sure we understand that those amendments that passed are incorporated in the Bill today stand in the Bill that goes back to Committee in the referral. The referral would then be November 12th. I cannot make a motion. Councilmember Kagawa moved to refer Bill No. 2461, Draft 2, as amended, to the November 12, 2014 Planning Committee Meeting, seconded by Councilmember Chock. Councilmember Bynum: Disucssion? Council Chair Furfaro: Disucssion. Councilmember Bynum: I am in support of this referral. I want to request the members if they are anticipating amendments, that they work with staff and get them to staff as soon as possible so we have enough time perhaps to circulate them so we can have a very productive meeting on the 12th. Council Chair Furfaro: Okay, we have a motion and a second to refer back to November 12th with the amendments that passed as part of the Bill. You can see my point here is as it is now twenty (20) minutes passed 2:00 p.m. and we have been going at this since 9:00 a.m. and amendments kept on being added. This is one of the reasons we do not find ourselves wanting to amend bills in the Council. We want it to come with the work being done at the Committee level. Further discussion? If not, can I have a roll call vote on this referral? The motion to refer Bill No. 2461, Draft 2, as amended, to the November 12, 2014 Planning Committee Meeting, and carried by the following vote: FOR REFERRAL: Bynum, Chock, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST REFERRAL: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: Seven (7) ayes. Council Chair Furfaro: Thank you. Seven (7) ayes, and I am sorry. If we can now reset our clocks to 10:30 this morning, it would be perfect, but unfortunately, we have a full calendar to go forward on. We shall go where next, Jade? I am going to give everybody just a couple of minutes, those of you that are COUNCIL MEETING 68 OCTOBER 22; 2014 leaving so that the noise does not get transmitted. Thank you very much for being here. Let us go ahead. Ms. Fountain-Tanigawa: Chair, this is back to page 2. COMMUNICATIONS: C 2014-264 Communication (09/29/2014) from Councilmember Bynum, requesting the presence of Mona W. Clark, Deputy County Attorney, to provide the Council with an update on the Office of the County Attorney's investigation of certain properties receiving agricultural land dedication and their compliance to Ordinance No. 808 (Grading, Grubbing, and Stockpiling), specifically Tax Map Key Nos. (4) 3-3-018-002, (4) 3-8-004-001, and (4) 3-7-001-001. Council Chair Furfaro: Thank you. If I can, I just want to recap a couple pieces here. This item was deferred to this day, October 22nd, as it related to Mr. Bynum and Mr. Hooser's reference to a Resolution. They had an opportunity after that discussion to meet again with the Administration. The date we got to today as October 22nd was the outcome of a 4:2 vote with Mr. Rapozo and myself asking to defer it later giving the Administration the appropriate time to do a thorough investigation. Subsequently, Mr. Hooser and Mr. Bynum met with the Administration and I would like on that point, Nadine, if I can call you up and we will have Mona join you when she gets here. Councilmember Kagawa moved to receive C 2014-264 for the record, seconded by Councilmember Rapozo. Council Chair Furfaro: We have a motion to receive and a second. On that note, we have something to be passed out from the Administration. Nadine, the floor is yours. There being no objections, the rules were suspended. NADINE K. NAKAMURA, Managing Director: Good afternoon Councilmembers. Nadine Nakamura, Managing Director. Subsequent to our Council Meeting two (2) weeks ago when this item was deferred, we put together kind of an outline of how we would proceed with the investigation. As we mentioned two (2) weeks ago, there are three (3) Tax Map Keys (TMK), three (3) properties that we are currently doing an internal investigation on. These were the three (3) TMKs identified by Councilmember Bynum. Our plan that we mentioned two (2) weeks ago was to have County Attorney Mona Clark complete the investigation, we will have a draft report by November 17th, and then we will report to the Council on November 19th. If at that time there is an interest on the part of the Council, we also have outlined a Phase II which would be a more comprehensive look at small, medium, and large sized agricultural parcels spread throughout the island in various regions. We would do an in-depth analysis of twelve (12) additional parcels. The plan would be to create an Investigation Committee that would be made up of myself, Paula Morikami, Ian Jung or Jodi Higuchi-Sayegusa, and one (1) member of the Council staff to participate on the Committee. The role of the Committee would be to look at the investigative questions relating to the application of the law; to look at the questions relating to personnel qualifications, trainings, staffing, and procedures; and secure a contractor to conduct an investigation and manage that contract. COUNCIL MEETING 69 OCTOBER 22, 2014 The second page on the handout just identifies a more detailed scope-of-work on what that contractor would do to do the review and research, to look at the files relating to agricultural dedication, and grading and grubbing, the conservation plans, then interview personnel in the Department of Finance, Real Property Division, Department of Public Works, and to then prepare a draft report with findings and recommendations, present that draft report to the Administration and to the Council, and then prepare a final report. So, we have an estimate. We also added in expenses, travel, copies, taxes, and came up with an estimate of ninety thousand dollars ($90,000). This is for twelve (12) parcels. Council Chair Furfaro: So, that is the three (3)parcels plus the twelve (12) that the money covers? Ms. Nakamura: No, the three (3) parcels will be completed as planned right now, by Deputy County Attorney Mona Clark. Council Chair Furfaro: That will be done in-house, right? Ms. Nakamura: Yes. Council Chair Furfaro: If you recall from the last meeting, I agreed to post an Executive Session for that briefing on the 19th. Ms. Nakamura: Right. Council Chair Furfaro: That is what your plan is reflecting 'low? Ms. Nakamura: Yes, it is. Council Chair Furfaro: Mr. Bynum, you had your hand up, and then Mr. Hooser. Mona, just join us right up front. Councilmember Bynum: I just want to start by thanking Councilmember Nakamura and Mona. Councilmember Yukimura: Managing Director. Councilmember Bynum: Managing Director. Thank you. Ms. Nakamura, for engaging in a number of meetings. With some clarification of what you have just presented, I think we have a way to proceed that may eliminate the need for the Council to do a 3.17. Having said that, I want to say what those clarifications are to make sure we are clear. In May when I sent a letter to the Mayor, I said, "Basically, we have enough information to know that there is a problem, and that we need an independent look at that." We need to recognize that the three (3) parcels are just an example of a larger problem. I believe that this plan acknowledges that and says we need to look further and deeper beyond the three (3) parcels. They have already begun some of the civil remedies that are in the law for when there is a breach of a petition. We already brought this to the point where we know that there has been breaches and they are in the process of rectifying those. The key thing was independence. The proposal to bring in a consultant who would be independent and the proposal to continue to collaborate on this with Council Services is a very unique circumstance given our County in the past. What generally has happened is the Council and the Administration tussle back and forth and we focus on internal problems, and sometimes that allows the law to kind of get sidelined. This outreach and return of outreach from the Administration was to say, "Let us do this differently." Let us collaborate, share information, and then what we decide to do COUNCIL MEETING 70 OCTOBER 22, 2014 with policy may be different, but we will share a common set of information because we all have the goals of correctly applying the law. So, bringing the commitment on the Administration to bring in an independent Counsel and to bring that to the Council before the end of this term, brings in that independence that is needed. I really want to be very thankful that we are taking a different approach, that we are collaborating. Also involved in this is a waiver of conflict because Mona was initially assigned to do this investigation on behalf of the Council, and then when the Mayor said he wanted our Administration to drill down, the question was, could we work together, and we decided to do that. That is a different way of going. It is like we are going to share information, we are going to be transparent with one another, I am going to show you what I know, you are going to show me what you know, and then we will make perhaps different policy decisions. Because the initial response from the Mayor did not include that independent look, that is why we proceeded with 3.17. Now, if it includes an independent look and consultants and that collaboration, I believe that is unnecessary for the Council to take this 3.17 as long as we move forward with these plans. (Councilmember Kagawa was noted as not present.) Councilmember Bynum: The only thing I would add to that is that I have identified parcels, more than forty (40) that are likely to have these tax problems. We are not going to examine all of those now, but the Administration has a responsibility to apply the law. I believe that they will be systematically doing that and they will provide updates to the Council, but it is their responsibility to do those, not the Council's. There is a really clear distinction there, that they are responsible for applying the civil remedies in the law, and we are entitled to know that is happening on a judicious basis and provide oversight, but not be directly involved. This is something I think we should celebrate and I hope is a model for the future, that when we have difficulties and questions about how we apply the law, that we do not blame one another. We just accept the facts and work collaboratively to fix those systems if they need to be. I think that is the leadership I saw from Ms. Nakamura on the Council and that is the leadership I am seeing now from her and the Mayor when called to task, and I appreciate it. Thank you. Council Chair Furfaro: Mr. Hooser, before I recognize you, I do want to say that if we can try to encapsulate things with some brevity, and move this on because we have a full calendar. You have the floor. Councilmember Hooser: Encapsulation and brevity is my second name, Chair. I will do my best. Council Chair Furfaro: Can I call you that? Councilmember Hooser: Yes. Council Chair Furfaro: Okay, I will. Councilmember Hooser: Call me "brevity," just do not call me "late for dinner" as they say. I want to, to a certain extent, echo what Councilmember Bynum said. I just want to restate for the record so I understand and the public understands, so we are all on the same page, that primarily as a result of the year or more work that Councilmember Bynum did putting all of this information together, sharing with the Administration; the Administration, the Mayor, and your office are acknowledging the validity of the concerns, number one, and have agreed that Ms. Clark will take the three (3) parcels to completion or as far as she can within her parameters to conclude that investigation, and then the Administration will come in COUNCIL MEETING 71 OCTOBER 22, 2014 to the Council with a money bill around on or about late November after that has concluded asking for ninety thousand dollars ($90,000), and the intent of the Administration is to ask the Council for the funds to conclude the investigation and work in these other parcels to determine the extent of the issues whether or not it is wide spread, what to do about it, that kind of thing? Is that the intent of the Administration to come in at the end of November with a money bill and take this forward as.described in this piece of paper? Ms. Nakamura: That is the intent. I think we want to continue to have the dialogue. I think once we have the initial investigation complete, have the dialogue with the Council to make sure that is the direction that everyone is agreeable to. That is our intent, is to move in this direction. Councilmember Hooser: Okay, thank you. It is just a fine line, but it is important that this will be the Administration putting forward the proposal, not waiting for the Council to ask for it again. Ms. Nakamura: Yes, and I think that will be as a result of some dialogue that we have once we have the results of the initial investigation, the Phase I. Councilmember Hooser: Okay. So, you get the results of Phase I, but as we sit here today... Ms. Nakamura: Have the dialogue with the Council regarding their findings and the recommendations, and then this is on the table as something that we are proposing, and then say if this is really the direction that the Council wants to move in. Councilmember Hooser: Okay. I understand the Council at the time may decide they do not want to fund it, but I want to... Ms. Nakamura: Or to scale back or to do it differently. Councilmember Hooser: Right. Ms. Nakamura: There are different approaches to doing the investigation. This is one that we are putting on the table. Councilmember Hooser: Okay. Thank you for that and express my thanks to the Mayor and to all of the staff that has been working so hard on this. I think the important thing for me is that the Administration acknowledges that there is a problem at least in these areas, which the Mayor has already done in writing, and that they are committed to following through and dealing with it as a responsible manner. I think I agree with Councilmember Bynum in saying it was a refreshing relationship, and it is a good discussion to have moving forward. Thank you. Council Chair Furfaro: Mr. Chock and then Mr. Rapozo. Councilmember Chock: Thank you, Chair. Thank you for this. I had a few questions and thank you for using the moku. I appreciate that too. Was there specific reasoning when you created Phase II for those moku, the Polihale to Haiku? . The other question I had was, I thought there were more parcels in question. Are we just choosing twelve (12) in this Phase II? Ms. Nakamura: Yes. COUNCIL MEETING 72 OCTOBER 22, 2014 Councilmember Chock: Then my last question would be, in Phase II, is there a specific timeframe that you would look at to accomplishing those twelve (12) parcels? Ms. Nakamura: Yes, we have not put together a timeframe... Councilmember Chock: Okay. Ms. Nakamura: ...for selecting a consultant, but I think the first phase, the work that Mona is doing will present a pretty good outline of how to proceed and how long it is taking. We have been working just to make sure that coming up with the ninety thousand dollars ($90,000) seems like a reasonable number based on the work what she has put into this first phase. The moku, definitely, that is the way the Mayor wants to look at problems on this island and look at solutions. Also, we wanted to get a representative sampling from each of the geographical areas. Councilmember Chock: Okay. Ms. Nakamura: There is different ways to do that. Some people suggest targeting different landowners and getting a sampling that way. Another way would be a random sampling. There are different approaches and we can have that dialogue. Councilmember Chock: Okay. Thank you. I will just end because I do not have anything else to say. I am supportive of receiving it at this time. Amazing things can happen when we chose to work together. I thank you and appreciate that you have been able to do that in coordination with the Council, and the good work that Councilmember Bynum and yourself have done. Thank you. Council Chair Furfaro: Mr. Rapozo. Councilmember Rapozo: Thank you, Mr. Chair, and thank you for being here. I guess my concern is the cost, the ninety thousand dollars ($90,000). I mean, you said this is for twelve (12) parcels. It is going to cost us ninety thousand dollars ($90,000) to review the agricultural dedication and conservation plans for twelve (12) parcels? Ms. Nakamura: And to also look at the personnel issues; sort of the training, the qualifications, and the procedures that were used. Similar to the Transient Vacation Rental (TVR) work that was done. It is just kind of analyzing the whole system and then coming up with some recommendations that may also include some changes to both of those ordinances. Councilmember Rapozo: I guess I am a little confused because there is one (1) component is the investigation. We want to take each of these parcels and follow through what happened, the chronology of the application and the documents. Ms. Nakamura: Yes. Councilmember Rapozo: I can see an investigator doing that. You hire a private investigator, seventy-five dollars ($75) an hour or one hundred dollars ($100) an hour, whatever it is, but you are talking about another component which is more of a Human Resources (HR) component that the private investigator is not going to be able to do. COUNCIL MEETING 73 OCTOBER 22, 2014 Ms. Nakamura: I think there will be multiple skills needed to do the study. Councilmember Rapozo: Again, I do not want to sound like that because I support doing this. I do, but I support doing it on all parcels, not just twelve (12), number one. It would make sense to me, and this is just as an investigator, I mean, I am just looking what needs to be done. It is not that much work. I can see information gathering, that does not count. That is not billable. I mean, when you are waiting for a document to come in, that is not billing that. I mean, at seventy-five dollars ($75) an hour, it is like one thousand two hundred (1,200) hours of investigative time. I see you have travel, copies, General Excise Tax (GET) —GET meaning the tax? Ms. Nakamura: Yes. Councilmember Rapozo: Miscellaneous, but would it not make more sense to bring on a contract employee for a year? That is what we had proposed a while back, was you bring up a...oh. Council Chair Furfaro: Okay, we are going to take a five (5) minute tape change. Do not go far. There being no objections, the meeting recessed at 2:43 p.m. The meeting reconvened at 2:49 p.m., and proceeded as follows: Councilmember Rapozo: I guess, let me just say that I think right now, we have an issue with parcels. I guess the first question is, the Phase I, we are covering three (3) parcels and we are doing that in-house, and how is that coming along? Ms. Nakamura: Mona is here so she can... Councilmember Rapozo: Well, I... Ms. Nakamura: She has gone through the files, the letter was sent over to Grove Farm, we will be sitting down with Mike Tresler sometime this or next week, and Mona will be going out in the next few days to do the field interviews. Councilmember Rapozo: What kind of cost do we envision in Phase I? Ms. Nakamura: This is all being doing in-house. Councilmember Rapozo: Right. So, that is three (3) parcels and if we do in-house, I mean, there is a cost because Mona is not free. Ms. Nakamura: No, and the other thing we could do, Councilmember Rapozo, is not do all twelve (12). We could do fewer parcels, we could do one (1) large, one (1) medium, and one (1) small in different areas. There are ways to cut down on the cost. Councilmember Rapozo: No, I am not concerned about the cost. Ms. Nakamura: Oh. COUNCIL MEETING 74 OCTOBER 22, 2014 Councilmember Rapozo: Because I want to see all parcels looked at, I guess. Let me make that clear. Ms. Nakamura: I see. Councilmember Rapozo: I want to see all parcels looked at, but I do not think that ninety thousand dollars ($90,000) to look at twelve (12) parcels, I think that is crazy. I just think that is a lot of money. If what we are doing is trying to determine where in fact the breakdown occurred or if in fact a breakdown occurred and why do we have...and once we do twelve (12), I think at that point we are going to have a good idea of where. I think one of the big problems is we have one (1)person doing agricultural dedications. Ms. Nakamura: Actually, less than full-time. It is a portion of his time. Councilmember Rapozo: Okay, so listen, I can save you ninety thousand dollars ($90,000) right now. We need one (1) more or we need two (2) more. You do not need to pay a consultant to tell you that. Half a person to deal with, how many agricultural dedications do we have? Ms. Nakamura: One thousand nine hundred (1,900). Councilmember Rapozo: Okay, now again, you just saved ninety thousand dollars ($90,000). Let us hire someone, and I can tell you, at ninety thousand dollars ($90,000) we can hire probably two (2). I mean, even if it is half(%z) time or whatever the case is, but I think initially, even if we are just taking a look at the twelve (12) additional parcels, I cannot imagine that we cannot do this in-house even if we bring in a contract investigator. Do we still have that investigator for Bill No. 2491? Ms. Nakamura: Yes, we do. Councilmember Rapozo: We do. I mean, that bill is invalid, but we still have the body. Ms. Nakamura: I think his contract ends at the end of October. Councilmember Rapozo: Okay. Now, could we not use that person on a contract to go through these twelve (12) parcels? I am assuming that the agricultural dedication process is written out, right? You need to do A, B, C, D, and E. Ms. Nakamura: There is also various laws that was changed over time. Councilmember Rapozo: Right. Ms. Nakamura: And some of the rules were not changes along with the ordinance changes. Councilmember Rapozo: Okay, in the rules where? In the Finance Department? Ms. Nakamura: Yes. COUNCIL MEETING 75 OCTOBER 22, 2014 Councilmember Rapozo: Then somebody needs to be held accountable. We sit here every day, we talk about spending and ninety thousand dollars ($90,000). Nadine, I am just having a problem with ninety thousand dollars ($90,000) to investigate twelve (12) parcels. (Councilmember Kagawa was noted as not present.) Ms. Nakamura: That is why I have here that Phase I is to do the three (3) parcels in-house, then we come back to the Council with our findings, then we decide what to do with the next steps when you see the extent of the concerns, and then we can see how do we apply it to the rest of the parcels. So, that is a decision point. Councilmember Rapozo: That is fair. That, I can accept. Ms. Nakamura: This is a potential roadmap. There may be others, but this is one that we are just throwing out there as a possibility. Councilmember Rapozo: I guess there is a failure in the system someplace. Ms. Nakamura: Yes. Councilmember Rapozo: If rules have not been updated when laws have changed, that is why have Department Heads. That is why we pay Department Heads the money we pay them. Somebody has to be held accountable and not just okay, let us go hire a consultant. I mean, I cannot... Ms. Nakamura: There is also two (2) sets of rules; the agricultural dedication and then the Grading and Grubbing Ordinance. Councilmember Rapozo: I understand. Again, grading and grubbing comes under Planning. Ms. Nakamura: Department of Public Works. Councilmember Rapozo: Or Public Works. Somebody needs to be up on that. I mean, somebody has to be up on that, and I am just doing the math. I am just saying, man, I would quit the Council and go apply for that contract, ninety thousand dollars ($90,000) to go look at twelve (12) parcels. That is incredible. You can bring on a contract employee for fifty thousand dollars ($50,000). You get a whole year's work and they could cover it all. I understand why you folks are trying to do. You want to satisfy this Council to some extent, but understand that money is tight and we can do this in-house. I believe we can do this in-house even if we have to supplement the staff with, like I said, with the contract employee. Anyways, that is just my concerns. Do not take that as opposing the investigation because I think we need to do it. Likewise, I think we need to do all parcels and not just twelve (12). Thank you. Council Chair Furfaro: JoAnn. Councilmember Yukimura: I want to reiterate the thanks from this Council for working on this in a methodical way that makes me feel more comfortable in terms of solving the problem we have before us. I think it is a good idea to finish the investigation of the three (3) that will help guide us if we are going to do a second phase. I am hoping that we would use, I am using the wording of Councilmember COUNCIL MEETING 76 OCTOBER 22, 2014 Bynum here, apparent breach of petition as the standard by which to choose where to go on the second phase because I think to just do it randomly and then research a parcel that may not have all of the issues that we need to begin to address is not as an efficient way to go as just starting with apparent breaches of petitions. I would like to ask if we go into the second phase, that whoever represents the Council give the Council periodic briefings so this body can stay well informed as to the progress. I think certainly, this process is far better outlined then the 3.17 process thus far. (Councilmember Kagawa was noted as present.) Councilmember Yukimura: I certainly appreciate it and I think we are on the right track with the Administration and Council effort together, a coordinated and collaborative effort rather than a 3.17 which could get quite adversarial where we would spend a lot of time either hiding information from each other or just blocking each other. I think it would be much better if we can work together. Thank you. Council Chair Furfaro: Anybody a second time before I speak? Mr. Hooser. Councilmember Hooser: Again, just to be clear on the process because some of the other members have raised questions. There are three (3) parcels that currently Ms. Clark is working on and so that we would call "Phase I" and then Phase II is this kind of an overview Countywide, but from our previous discussion, and correct me if I am wrong, it is my understanding that depending on what those three (3) parcels yield, most of those parcels have adjacent parcels and have different uses. So, that would expand if there are apparent egregious errors or mistakes or things lacking. I am trying to pick nice words. If the report on those three (3) parcels is such that there is other very serious problems in that area in general, then we will look at those separate from these other twelve (12). Is that correct? I am sorry that I am not very elegant in my presentation with that. Ms. Nakamura: The scope of the investigation deals with three (3) Tax Map Keys. Councilmember Hooser: Right. Ms. Nakamura: So, that will be the scope of the scope of the first phase. We will see what the recommendations come out from Mona's report to set the direction for the next phase. Councilmember Hooser: The next phase. Ms. Nakamura: It may, let us say there are some red flags, then maybe that is where she might point us to in the next phase of work. Councilmember Hooser: Okay. Ms. Nakamura: I think we need to be patient and wait for that report to come out. Councilmember Hooser: Right. Ms. Nakamura: And then we can have this dialogue about the nature of the next phase. COUNCIL MEETING 77 OCTOBER 22, 2014 Councilmember Hooser: Yes, because I agree with I think what Councilmember Yukimura was getting at, that rather than just have random that there are certain parcels or that might warrant closer scrutiny because of their size, because of their potential environmental impacts, and frankly, potential budget impacts because we are really looking at the agricultural tax dedication application. If in fact there are errors in implementation, then the County stands to increase tax revenues for them. People pay what they are supposed to pay, and the same with the Ordinance No. 808, Grading and Grubbing. Those are potential environmental impacts. So, that is really, I think what we should look in terms of determining criteria at the end. Again, I just...we are not going to have another round of concluding remarks. Do you want me to make my concluding remarks? Council Chair Furfaro: No. After I dismiss everybody, we come back together, and I am going to allow for some discussion. Councilmember Hooser: Okay. Council Chair Furfaro: We are going around, I am going to follow our rules, you get two (2) times to speak, and this is your second time. Councilmember Hooser: Right. Okay. Again, then I will just thank the Administration for acknowledging the problem and the hard work that Councilmember Bynum has done and we can be able to move forward. Council Chair Furfaro: Any more questions for the Managing Director? Tim. Councilmember Bynum: I will save it for comments. Council Chair Furfaro: Any more questions? Nadine, I assume as you and I met and talked, this money bill is going to come over from the Administration because the Council, by our own rules;we cannot introduce another money bill until such time after we have reviewed the Comprehensive Annual Financial Report (CAFR) and that we know the status without your approval. I want to make sure we understand, this is coming over by the Administration without us having to request it. Am I correct? Ms. Nakamura: Yes, but I think it is important to have that dialogue on November 19th. Council Chair Furfaro: Okay, and the 19th is where basically, we are going to reveal what our County Attorney's Office and Mona has found which will probably lead to us having credible information on where the weak points are in the system if they exist, such as critical dates tracking and staffing. That will all be a part of that report. That will lead us up to a decision about moving forward from there. Again, I want to thank you folks for taking this very seriously and working closely with the Councilmembers. Please pass that onto the Mayor. I appreciate it. Ms. Nakamura: Thank you. Council Chair Furfaro: Did you have another question for her? Councilmember Bynum: No. . Council Chair Furfaro: No, okay, because we have to take public testimony too. COUNCIL MEETING 78 OCTOBER 22, 2014 Councilmember Bynum: Okay. Council Chair Furfaro: Do we have anyone for public testimony on this item? There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: I am going to give Mr. Bynum the floor. We will go around the table if anybody has any discussion. I will go to you, Mr. Bynum and then you, Mr. Hooser. Councilmember Hooser: Sure. Council Chair Furfaro: You will be next. Go ahead, Tim. Councilmember Bynum: As it has been clear, I have been working on this for more than a year, and what I just started with was just trying to understand the revenue implications of the Agricultural Dedication Bill. In the process, I found out that we do not know that. We do not have that data, we do not have it calculated, and we do not have it. We focused just on just three (3) parcels and in the process of that, it became overwhelmingly apparent that there had been breaches on all three (3) and that there were conservation plan issues on all three (3). This is just from public record. These are conclusions that are easy to come to and I told the Mayor in May, "This is as far as a Councilmember should take it." It is overwhelmingly apparent that there are multiple difficult problems that need to be examined. So, that we have got here before, I would have been coming here today to justify the 3.17 and I would be laying out how incredibly serious these issues are and how much we need to do this, and that is the way we have done things around this County since I have been here. It is like the Council and the Administration are adversarial in there, withholding information from each other, and the Administration does not know what is coming from Council until it gets posted six (6) days. We are trying to go with a different model and it has involved compromise. Councilmember Hooser and I would have suggested forty (40) and a consultant to do a scope-of-work recognizing, as Mr. Rapozo has said, that this is a pretty big issue that involves lots of things. The Administration said, "No. We know we need to expand beyond the three (3), but let us keep this to twelve (12) or thirteen (13)." Now in our dialogue with them —and so that is not the best way to go, but it is about compromise, in my opinion. It is an acceptable way to go because of the independence. It is not the Administration has internal people doing this. There is a consultant that is making it independent, and the Council and the Administration are competing with one another because we all want to uphold the law. We all want to make our systems work right. In the past, we focused on the things that Mel was talking about. How did that Department Head mess up and what were they responsible for? Well, that is important, but we used to always do that at the front end and never get to what was the responsibility of the landowner or of the applicant. We are going it differently this time. We are saying, "Let us look at the law and make sure it is correctly applied." Look at the documents that are passed out. Part of that is calculating rollback taxes, penalties, and interest. Yes, there is going to be a ninety thousand dollars ($90,000) bill and there will probably be more after that because I think the Administration knows based on the things that Mona has done thus far, that there is a bigger thing and that is why they are agreeing right now and anticipating that we are going to need to expand it because that will be very apparent to everyone in November. I just think that this is really important that we are focusing on the responsibilities of the landowners, we are focusing on the systems and how we need COUNCIL MEETING 79 OCTOBER 22, 2014 to improve them, and then we will get to where people may have made errors in the Administration because we are not going to make any. Instead of just fighting about that and never rectifying the problems, this is a solution oriented task that is collaborative. It was about compromise. I am very pleased about that. Now, the last thing I am going to say is, as I said earlier, in the process we have identified more than twelve (12), at least forty (40) parcels where there is likely to be tax issues. That is like any citizen saying, "Hey, it appears that you have to apply the law correctly." The Administration will continue to do that on these other parcels that we know have difficulties. Thank you. Council Chair Furfaro: Mr. Hooser. Councilmember Hooser: Just briefly. I have said most of this before. Again, a lot of what we do here, well all of what we do takes a lot of work. The amount of work that Councilmember Bynum put into this is incredible. Over a year, lots of documents. At the end of the day, when he goes to the Administration and says, "Listen, I found these issues. I have some of these concerns. What do you want to do with it? How can we fix it?" It is refreshing to see the Administration and the Council working together like this and having the Administration and the Mayor acknowledge number one, the work that was done, acknowledge that there are problems that need to be rectified, and make the commitment to move forward to find out what those problems are, seek accountability, and to fix it. That is really why we are here for. The 3.17 is a tool and it is an important tool that this Council has. Councilmember Rapozo and I put it on the table with the TVR issue and it gets attention. We are all busy, all of the Departments are busy, the Mayor is busy, and everyone would wish they could just do their work. So, sometimes we have to put it front and center, and using the 3.17 as the tool to do that is an effective tool sometimes. I want to again, thank the Mayor for recognizing the importance of this. I want to say that it is really important at the end of the day, and we will have this discussion at the end of November, that the investigation be independent, both truly independent and perceived as being independent, the public perception. The parcels and processes that are being investigated involve the largest landowner or the richest landowners and businesses in our County to a certain extent. It also includes actions by County employees. I think the public deserves to have an investigation that they can have faith and confidence in. I respect the opinions of my colleagues here, but I do not believe an in-house investigation would be the way to go. We are really looking at equity. Equity in the tax law. Equity in Ordinance No. 808. Some landowners comply, some landowners do not comply. Everyone should comply equally. We are looking at financial implications, people paying their fair share or their property taxes and the agricultural dedication law being applied fairly and equally to everyone. We are looking at potentially serious environmental impacts. There were floods and continue to be floods and big rains, which washes all kinds of things into our streams and ocean. If Ordinance No. 808 is not being applied properly, and I believe there are many instances where it is not, then that has environmental implications and those are criminal penalties as this Council amended the law to be. It also has health implications. Again, I applaud the Administration, applaud Councilmember Bynum and this Council for moving this forward. It is about determining the facts, it is about mitigating actions, and it is about moving forward to make it better for the future. Thank you. Council Chair Furfaro: Mr. Rapozo and then Councilmember Yukimura. COUNCIL MEETING 80 OCTOBER 22, 2014 Councilmember Rapozo: Thank you, Mr. Chair. I too, applaud the Administration for coming up with this plan. As Mr. Hooser talked about, the 3.17 proposal when the TVR debacle hit the floor, Mr. Dahilig came up, accepted responsibility, went back to his office, gathered the troops, came up with a plan, and we saw the results of the plan not long ago. He did not come up here asking for ninety thousand dollars ($90,000). He did not come up here asking for anything other than some time to work on the matter, and we gave him that time. I have no doubt in my mind that the planning process the Mr. Dahilig implemented, I do not have any reason to believe that it is suspect. I think that he is sincere in trying to fix the problem that is broken. Rightfully so, he should. He is the Department Head. I see nothing different in this proposal. Mr. Bynum had some concerns, came up to the Administration, for whatever reason he did not get a response that he was satisfied with. I do not think the response was satisfactory as well. He comes up with a 3.17 investigation, we get the Administration coming up and saying, "Hey, we do not want to go down that road. Let us fix it, give us some time and we had worked on that," and toady we are seeing a potential request for ninety thousand dollars ($90,000). Again, completely different from how Planning handled it. Although I agree that maybe the better way to do it would be a third party investigator, but nonetheless, they are hired by the Administration. We have seen how those things work. I believe it is the responsibility of the Department Head. That is just where I believe. If they cannot get it together, then the Council at that point, I think, should take action. I mean, ninety thousand dollars ($90,000), I mean, we talk about it like it is chump change and it is not, not in today's budget situation. I would suggest that maybe the Administration go see Mr. Dahilig and say, "Hey, I want to follow your model. I mean, the Council has us on the ropes and we want to make this right." At that point, if they need resources, then they can some see us, but to just hand it off to an outside agency who is not familiar with our conservation plans, our Grading and Grubbing Ordinance, you are going to pay a person one hundred dollars ($100) or two hundred dollars ($200) an hour to go understand what our conservation plans and our Grading and Grubbing Ordinance stands for? It is really plain and simple. You go on an application, A, B, C, D, and E. Okay, TMK 1 has A, C, and E. He is missing B, D, and F or whatever, then you find out why, and you correct it. That is why Mr. Dahilig did and it is taking some time, but it is done in-house. I think that if somebody misses the block, you accept the fact that you missed the block and you get better. I do not think we should be paying ninety thousand dollars ($90,000) to go do what our one hundred fourteen thousand dollars ($114,000) of one hundred seven thousand dollar ($107,000) Department Head should be doing. I am not going to support that number one, and I think we have already seen success with the Planning Department in the TVR issue and I am satisfied with that. So, with that, thank you. Council Chair Furfaro: Okay, anybody else wants the floor after JoAnn? JoAnn, you have the floor. Councilmember Yukimura: Thank you. Council Chair Furfaro: Then I will come back to Mr. Bynum a second time. Councilmember Yukimura: Yes. I want to commend Councilmember Bynum for his diligent concern and initiative over the last year, I guess, and also commend the Administration for their responsiveness and the creation of a workable process. I do believe the 3.17 was a useful tool in terms of getting attention, but I think this new way of Administration/Council cooperation is a more workable way and can be done with less time and money because we are cooperating. I do celebrate this new way that is being forged from both sides of the separation of powers divide. I think the idea of doing in-house is a good one, but I also want to acknowledge that COUNCIL MEETING 81 OCTOBER 22, 2014 I believe the Planning Director had additional resources through the actually fines process and also through other means. It may need some extra money, but I hope that we can actually discuss the second phase is more detail after we get the report on November 19th or December 19th. Council Chair Furfaro: November. Councilmember Yukimura: November 19th, I am sorry. Thank you. Council Chair Furfaro: Mr. Kagawa wanted a first time, then I will come back to you. Councilmember Kagawa: Thank you, Chair. The biggest concern for me in this whole agenda item and in the past meeting was that I think we need to be careful when we try to prosecute or accuse or what have you, Grove Farm, Pioneer, or any other company in the media and announce totals and amounts of how much the County could receive, again, with one (1) side of the story. I was pretty frustrated when I left the Council Meeting in that time because I had already gathered my other side of the story. As soon as the news article came out, I called Steve Hunt, Finance Director, I asked him, "These are the accusations. What is your side of the story?" I called Mike Tresler from Grove Farm. "Mike, these are the accusations. What is your side of the story?" I think while I was not totally happy that I had all of my answers, I knew that there was another side to the story and I believe that as Councilmembers, we represent the public. We should not present just one side of the story. It becomes a very dangerous precedent to use the media, to use what have you, one side of the story out to light. Again, Mike is sitting here. He is hearing comments, shaking his head, and again, I am concerned. Are we continuing this process of saying one side of the story when there is another side? Certainly, I think Grove Farm disputes a lot of the claims that are being made, and while they might not be totally correct, I think some of the blame might be due to the County taking too long or being inadequate in processing difficult things such as conservation plans or what have you because I watched that meeting twice. I found out that it is not an easy process to get those conservation plans or what have you. Can it be skipped? Of course not, but our County has to be able to also work with the developers, work with the agricultural industry because we surely cannot be stopping them from doing their agricultural production/operations. There is not only seed corn, there is a lot of people that we saw on the list that farm on our big landowner's lands. I think that is where certainly, we do not want to delay them from producing food and what have you. So, that is just my take. Thank you. Council Chair Furfaro: Thank you. Anybody for the first time? I will speak last. Mr. Bynum, you had a second time. Councilmember Bynum: Just wanted to say that the TVR, I supported the 3.17 and it did lead to, I think, a good outcome. The TVR what was the implications? Well, there were serious changes to the neighborhoods and financial implications. If we did not have this agreement on the table, I would be using it today to tell you why this is different. I will just do that very briefly. Ordinance No. 808 is a Grading and Grubbing ordinance that protects or community from farm nuisances, drift, agricultural nuisances, and runoffs. It protects the soil on the ground, it protects the environment by setting up parameters to keep environmental things from happening. We have a history in this County of not doing that very well, and we had Pila'a. As a result of Pila'a, Ordinance No. 808 was strengthened and we promised this community we would never again issue/support after-the-fact permits. Why is this different? Because people died because this law was ignored. Huge environmental problems have happened on our island because this law was ignored COUNCIL MEETING 82 OCTOBER 22, 2014 and we agreed that we when we found violations in the future, we would cite them and order mitigation because what we had was an environmental crisis happening. Without going into detail, it is overwhelmingly apparent that the expansion of the seed companies on this island, that they worked without conservation plans, without exemptions from the Grading and Grubbing Ordinance all over this island. Some for three (3) years, some for a year, and when the County found out about it, we did not cite them and we did not apply the law that we agreed to do. I was prepared to read quotes from Kaipo Asing, from Mr. Hooser, and Mr. Rapozo today about the commitments we made to the community in 2003, and the commitments that were not fulfilled. The reason that this is different is because it is much bigger, it has bigger financial implications, and it actually has health, safety, and life implications. This is going to take time to drill down on this because there are very serious problems and that will become overwhelmingly apparent to this Council and others as we move forward. The Administration is responding and saying, "Let us bring in independence." I hope for one reason it is because we have a question whether they responded according to the law or not. Those are sensitive questions that need to be done with sensitivity and with independence. The Administration is here today because they know, I believe like I know, we have more than enough evidence to know, that we need to take this further. This is a good way to go and I very much admire the Mayor coming around to a different process. I very much admire the leadership of former Councilmember Nakamura. I have to get your title correct. Managing Director Nakamura because we are moving forward with the things that we worked on together; the Mayor, Nadine, and this Council, and we are doing it differently. That is a good thing. Councilmember Chock: Thank you. I am looking forward to November 19th. I wanted to thank the Administration again, the work that Councilmember Bynum has done in bringing this to light. Without having to bring our Administration back up, what I heard was cost savings. I heard that there was also a response, but there may be some ways that we can work hand in hand, maybe some external and maybe some internal in terms of trying to create some of that cost savings. The other thing I would like to make a request for and it was not clear in what was presented is, financial implications. I was just assuming that was what we are going hear, but if I can just make sure that is part of what we hear on November 19th. I think it will help us to look towards Phase II. I do think that it might be, at this point, just a little bit premature for us to determine how we are going to do it until we get this first phase out of the way. Again, thank you for everyone putting it together and following through on this need. Thank you. Council Chair Furfaro: I will speak and then we will move to receive this item. First of all, yes, I want to thank the Administration and Nadine had an opportunity to meet with me last week. A couple things. On October 10th, I want to remind you folks that we sent over a communication to Al Castillo asking for the dates that we talked about. November 12th I am posting, as I have told you folks, an Executive Session to review and so that all of us have an understanding of what scope we have in our rule as it relates to a 3.17. We will be distributing to you folks, that copy of that request along with the fact that when we had an Audit Committee of Jimmy Tokioka, myself as Finance Chair, Jimmy as Vice Chair, and Kaipo Asing as the Chairman, Mr. Asing introduced the Resolution and the outline for how we go about covering our own investigations. Mention was made of procedurally, but you will see in this Resolution, it talks in terms of how to set up an Investigative Committee, how to approve financing and staffing, everything from voting quorums to subpoenas are all covered in there. This will be posted with Peter Morimoto and we will review as introduced by the Audit Committee and Mr. Asing on the 12th. COUNCIL MEETING 83 OCTOBER 22, 2014 The second part is, on the 19th we will be posting as Nadine just confirmed, we will be posting that first Executive Session to get information back on these three (3) parcels that were originally acknowledged, and from there, we would be able to acknowledge where we would go from there. Again, watch for the distribution on the protocol and procedures, and I thank the Administration for working with Mr. Bynum and Mr. Hooser. This item is not for receipt. Do we have a motion? Councilmember Bynum: Yes. Council Chair Furfaro: We have a motion. Councilmember Yukimura: To receive? Council Chair Furfaro: Okay. May I have a roll call vote...oh, on the receipt of...you want the floor again? Councilmember Bynum: Just a suggestion. This is the item that asked Mona to come, and had we been proceeding with the 3.17 she would be explaining that Resolution. Council Chair Furfaro: She will be on the 12th. Councilmember Bynum: Right, but we also have the 3.17. So, perhaps we could take that next and dispose of both of them. Council Chair Furfaro: Oh, we can dispose of both of them if we can so we do not have to have additional narrative. Councilmember Bynum: Right. Council Chair Furfaro: Good point. We have a motion first on the investigative piece, and then let us go to the 3.17 disposal as well. Ms. Fountain-Tanigawa: Do you want a roll call? Council Chair Furfaro: Yes, roll call. The motion to receive C 2014-264 for the record was the put, and carried by the following vote: FOR RECEIPT: Bynum, Chock, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST RECEIPT: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Seven (7) ayes. Council Chair Furfaro: Okay, and then we have the actual Resolution. Could we read that and look for a motion to receive that as well? Ms. Fountain-Tanigawa: This is on page 4. There being no objections, Resolution No. 2014-45 was taken out of order. COUNCIL MEETING 84 OCTOBER 22, 2014 RESOLUTION: Resolution No. 2014-45 — RESOLUTION ESTABLISHING A COUNCIL INVESTIGATIVE COMMITTEE TO INVESTIGATE THE IMPLEMENTATION AND MANAGEMENT OF SECTION 5A-9.1 AND SECTION 22-7.1 THROUGH 22-7.27, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE DEDICATION OF LAND FOR AGRICULTURAL USE, AND GRADING, GRUBBING AND STOCKPILING, WITHIN THE COUNTY OF KAUAI: Councilmember Kagawa moved to receive Resolution No. 2014-45 for the record, seconded by Councilmember Yukimura. Council Chair Furfaro: Okay, we have a motion to receive and a second. Do I have anybody signed up to speak on this one? Is there anyone in the audience that wants to speak? Ms. Fountain-Tanigawa: We have one (1) registered speaker. Council Chair Furfaro: No registered speakers? Ms. Fountain-Tanigawa: We have one (1) registered speaker. Council Chair Furfaro: Okay, I will call the meeting back to order then, and we have a motion to receive. Councilmember Yukimura: One (1) registered speaker. Ms. Fountain-Tanigawa: No, one (1) registered speaker. Council Chair Furfaro: We do? Who is that? Ms. Fountain-Tanigawa: Ka'aina Hull. Council Chair Furfaro: 'Atha Hull? Councilmember Bynum: Ka'aina. Council Chair Furfaro: Oh, Mr. Hull. Ms. Fountain-Tanigawa: Representing Hawai`i Government Employees Association (HGEA). Council Chair Furfaro: Okay. You are representing HGEA. I did not realize that you had signed up to speak, Ka'aina. There being no objections, the rules were suspended to take public testimony. Mr. Hull: Good afternoon, Chair and members of the Council. Just to be clear, aside from my duties with the County, I also serve as the Island Director for Kaua`i for HGEA. Gerald Ako, the Division Chief, is not available to speak right now. I am not sure if the testimony is really necessary given the discussion that just happened concerning the investigation being led by the County, but just for the record, I can read it on to the floor. Council Chair Furfaro: Okay. COUNCIL MEETING 85 OCTOBER 22, 2014 Mr. Hull: Aloha Chair and members of the County Council. This is Ka'aina Hull on behalf of HGEA. I am here today to speak on Resolution No. 2014-45. To be clear, the HGEA has no objection to the overall intent of this Resolution, which as we understand it, is to investigate the implementation and management of Sections 5A and 22 of the Kaua`i County Code, as those sections pertain to the dedication of agricultural lands, grading, grubbing, and stockpiling here on Kauai. Again, the HGEA has no objection to the overall intent of this Resolution or an associated legislation that seeks policy changes concerning agriculture dedication and/or grading, grubbing, and stockpiling. We do have an overarching concern with the potential conclusions and findings that such an Investigative Committee may ultimately adopt. In particular, Section 7 of the subject Resolution is concerned with alleged misconduct. Should this Investigative Committee be convened and should the findings of misconduct be established, a filings of misconduct against say an entire Department or a Department Head, we as HGEA, would not any objection or any position on the issue. A filing of misconduct against a Civil Service employee or employees; however, is where our concern lies. Any filings of misconduct against an employee or employees will not only be highly inappropriate, but it would be an action that clearly conflicts with employee confidentiality protections established under our collective bargaining contracts, and such an action would also conflict with those rights established under Chapter 89 of the Hawaii Revised Statutes. Further, to this point, HGEA has verified with both the Department of Public Works and the Department of Finance that not a single employee that administers these programs has been cited for misconduct concerning the implementation of these programs. You ultimately have a group of employees who have carried out their jobs dutifully and responsibly, and their Supervisors and Department Heads have found no error in their performance. To levy a finding of misconduct in this very public forum against an employee that has clearly performed his or her Department's standards would be reprehensible, and as previously stated, it would clearly conflict with their collective bargaining rights and HRS Section 89. Any such action may warrant injunctive action by a Civil Court or the Hawaii Labor Relations Board or both. The collective bargaining process affords employees a right to due process and any findings against an employee both officially and publicly by this body would be a circumvention of that basic right. Section 3.17 of the Charter authorizes this body to conduct investigations of the operation of any agency or function of the County and any subject upon which this body legislates. This authority is integral to the democratic checks and balances of any legislative body. Ms. Fountain-Tanigawa: Three (3) minutes. Mr. Hull: There may be a time when HGEA calls on this body to utilize that authority. Pertaining to this specific Resolution; however, we do have to express caution and concern in proceeding forward particularly pertaining to the application of this process on our members and employees. Thank you. Council Chair Furfaro: Ka`aina, I am going to ask Ashely to give you a copy of the Resolution that was passed in 2006 about the procedural piece. I certainly would encourage, and this is the one that covers our Audit Committee in 2006, but more importantly, if there are specific questions about our policy statements as it relates to this Resolution, employees being summoned, employee interviews, and so forth, I would like you to share that with HGEA because that policy statement is in place. Mr. Hull: Definitely. COUNCIL MEETING 86 OCTOBER 22, 2014 Council Chair Furfaro: Then we have a question from Mr. Bynum. Councilmember Bynum: I think it is a question. I just want to thank you for the testimony and I also want to let you know that both the County Attorney, the Administration, the Council, and our advisors are really well aware of due process and the distinction between say Department Heads and civil servants. I just wanted to assure you that I appreciate the testimony because we have not done this before. It is great for the union to chime in and say, "Do not forget this." I just want to let you know we have not. Mr. Hull: Definitely. Thank you, Councilmember. Councilmember Bynum: Thank you. Council Chair Furfaro: Thank you very much for your testimony. There being no further testimony, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: We have a motion to receive, do we not? Anny further discussion? If not, all those in favor... Ms. Fountain-Tanigawa: Roll call vote, Chair. Council Chair Furfaro: Roll call. The motion to receive Resolution No. 2014-45 for the record, was then put, and carried by the following vote: FOR RECEIPT: Bynum, Chock, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 7, AGAINST RECEIPT: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: 7:0? Ms. Fountain-Tanigawa: Yes. Council Chair Furfaro: Very good. Then we want to go to the Parks Department if we can, and I would like to deal with the Resolution that we have. Ms. Fountain-Tanigawa: This is back on page 4. There being no objections, Resolution No. 2014-47 was taken out of order. Resolution No. 2014-47—RESOLUTION RENAMING THE FORMER KAPA`A NEW TOWN PARK THE "MAYOR BRYAN J. BAPTISTE SPORTS COMPLEX" IN HONOR OF BRYAN J. BAPTISTE: Councilmember Bynum moved for adoption of Resolution No. 2014-47 on second and final reading, seconded by Councilmember Yukimura. Council Chair Furfaro: Thank you. I do have a motion to approve. Could I have someone just read a little piece of the Resolution? I think what I meant, you will probably do not want to cut off the paragraphs. We should read the Resolution. COUNCIL MEETING 87 OCTOBER 22, 2014 Councilmember Bynum: Please. Ms. Fountain-Tanigawa: Okay. "WHEREAS, Bryan J. Baptiste was a beloved public servant and former Kaua`i County Mayor and Councilmember who exercised his duties with kana ole—without flaw; and WHEREAS, in 1994, while serving as Manager of the Kauai War Memorial Convention Hall, Baptiste exemplified unity of purpose and harmony when he became instrumental in founding the Ho olokahi Program, which to this day continues to coordinate organizations and individuals to volunteer and provide clean-up and beautification projects within our community; and WHEREAS, Mayor Baptiste is remembered as a compassionate, honest, and effective leader, who was a good listener and carried a special place in his heart for kapuna and keiki; and WHEREAS, what is currently referred to as Kapa'a New Town Park is an 18-acre complex that offers Kaua`i's residents and visitors a football field, little league field, baseball field, lighted softball field, tennis courts, lighted roller hockey rink, basketball court, and comfort stations; and WHEREAS, until the 1970s, Pop Warner football games were hosted at the football field within the complex; and WHEREAS, in 2006, Mayor Baptiste set in motion his dream of improving the complex and securing a home field for Kapa'a High School, with the help of Leadership Kaua`i's adult class and countless others; and WHEREAS, Mayor Baptiste championed other outdoor recreation ventures, such as the world-renowned coastal path, Ke Ala Hele Makalae, which will continue to serve a range of purposes for generations—from a place of respite, to a means of healthy travel, to a destination for physical fitness; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF KAUAI, STATE OF HAWAII, that the Kapa'a New Town Park be hereby renamed the "Mayor Bryan J. Baptiste Sports Complex" to recognize and honor Bryan J. Baptiste for his vision to bring the complex to fruition for the benefit of the people of the County of Kauai. BE IT FURTHER RESOLVED, that a copy of this Resolution be forwarded to Mayor Bernard P. Carvalho, Jr., with a request that the appropriate plaque and signs be erected at the Mayor Bryan J. Baptiste Sports Complex to proclaim his name. BE IT FINALLY RESOLVED, that a copy of this Resolution be forwarded to the family of Bryan J. Baptiste, Director of Parks and Recreation Leonard A. Rapozo, Jr., and Mayor Bernard P. Carvalho, Jr." Introduced by Chair Jay Furfaro. Council Chair Furfaro: Now on that note, I would like to have Lenny to come up. There being no objections, the rules were suspended. Council Chair Furfaro: Give us an update on the sports complex. LEONARD A. RAPOZO, JR., Director of Parks and Recreation: Chair, thank you so much. On behalf of the Administration, we thank you for introducing this COUNCIL MEETING 88 OCTOBER 22, 2014 Resolution. I think it is, as was mentioned in the Resolution, a great honor and well-deserving of our former Mayor. Council Chair Furfaro: You have to introduce yourself. Mr. Rapozo: Oh, I am sorry. I missed that. For the record, Director of Parks and Recreation, Lenny Rapozo. Again, as was mentioned, Saturday, I think will be a really nice event. We also have to thank or partners at the Department of Education (DOE) for allowing us to participate in their football game where we will honor, rename, and rededicate that complex. We are working as the complex will continue to grow on the eleven and a half (111/4) acre soccer facility that has been budgeted in our current Capital Improvement Project (CIP) that would also extend the park and make it even more of a stadium complex in the honor of the former Mayor. Briefly, we are playing football there on Saturday. The kids of Kapa'a will have a field, I think will be better than Hanapepe and Vidinha. The field, they will have lights and they have locker rooms now that they can truly benefit from having all of these improvements. Again, it has been a partnership between the Administration and this body, the Council, what we have achieved out there. I think you are going to be really, really pleasantly, not pleasantly, really, really happy with the progress. We have spent to get it to this point just with those three (3) improvements that were mentioned, about one million one hundred thousand dollars ($1,100,000) in capital improvements for this facility. Council Chair Furfaro: This Resolution covers the extent of the whole complex as we add things that deal with soccer, tennis, improvements with lighting, and I have to tell you, the lawn is looking exceptional there. I want to thank the Parks Department for their work. Mr. Rapozo: Again, it is the whole Department. It is the golf course as we are having Seashore Paspalum there. Again, we will be using one-third (1/3) less water, no herbicides. We would be using salt as a fertilizer and as a weed control product. Public Works, we have had Public Works come with their three (3) ton roller to roll the field to make it as smooth and beautiful as it can be. They will be implementing an agronomics program that we have been instituting at all stadiums. I am really excited for the kids of Kapa'a who will benefit from all of our efforts, both on this side as well as on our side of the street for this thing. Yes, sir, as the complex grows with the addition next to the soccer field, that is going to be a pretty nice area for the community. Council Chair Furfaro: Some of those facilities, specific facilities, already have names attached to them. Mr. Rapozo: Correct. Council Chair Furfaro: But this is for the whole complex. Mr. Rapozo: Correct. Council Chair Furfaro: Do you want to expand on that? Mr. Rapozo: The football field actually in 2002 during Mayor Kusaka's Administration, dedicated the football field, the Wilfred Kaui Sr. Football Field. We will be putting something up there to identify it although there is already. If you go to our complex, on the north side of the complex, there are some trees grown in the corner of the complex. At the base of the three (3) trees there are these plates that identify it as Mr. Kaui who was a long time Kapa'a Keapana resident, gave a lot of time COUNCIL MEETING 89 OCTOBER 22, 2014 to the community, and was a long time football coach for the Kapa'a area. He is identified as one of those trees that were planted in his name. The other one that was planted and has a plaque there is Tom Harper. Tom Harper was a longtime volunteer for Kapa'a Pop Warner and then he became the Commissioner of the Kaua`i Pop Warner Football League. He died unexpectedly and prematurely, of course, but he was honored and there is a tree there. Mayor Baptiste was really instrumental in bringing football back there. I think Ross, Mel, and myself was probably there the day that they shut football down and he was really instrumental in getting Pop Warner there, and of course, the high school is there now. It is a facility that will be offered to the community, which would be awesome. Council Chair Furfaro: Well, thank you very much to the Administration and for all of the work. Lenny, I will see if there is anyone else that would like to give testimony before I call for the vote for this. Mr. Rapozo: Sure. Council Chair Furfaro: Do you have a question for Lenny? Go ahead. Councilmember Kagawa: Real quick, Lenny. I kind of know the answer, but I just want to make sure we that we ask this. Is the field safe for play? I mean, are we confident that it is in safe condition? Mr. Rapozo: I invite anybody right now who wants to go with me and I will take everybody to breakfast at 6:30 in the morning, meet at the field at 7:00 a.m., and you can look at the field. The field is unbelievable. Councilmember Kagawa: I will be there. Mr. Rapozo: It is going to be the nicest field on the island once the grass really settles in. That is the thing with Seashore Paspalum. Aside from the environmental friendlies, it is a grass that when it grows and you put the right agronomics —I mean, anybody that goes to a golf course sees it. We have converted the tees, we have converted the tee boxes. So, done properly, that is why we are having the golf course people train our stadium people there. We have a good crew there. It is going to be a nice facility. The field is in top shape, ready to play. Councilmember Kagawa: The second question, Lenny, I think we walked that field two (2) years ago. There was some heavy rains during that time and there were issues with a lot of ponding or puddling around the bleacher areas. Have we gotten to a solution to where we are trying to run it out to the ditch? Mr. Rapozo: Yes. Councilmember Kagawa: Is it going to be better when it pours? Mr. Rapozo: Well, we need to see the first big rain. Councilmember Kagawa: Okay. Mr. Rapozo: I was hoping the rain came with Hurricane Ana, but it really did not come. Councilmember Furfaro and Councilmember Nakamura met with the stakeholders and they were agreeable to have a one percent (1%) crown from the center of the field. We have a one percent (1%) crown with the swale moving water back towards the mountain side of the facility. COUNCIL MEETING 90 OCTOBER 22, 2014 Councilmember Kagawa: Okay. Mr. Rapozo: I want to see it. We made some improvements to the irrigation, we made improvements to the water lines in there. So, they have a really good facility. Councilmember Kagawa: I guess to clarify it. If it is moving it toward the mountain side, there is that big ditch on the back side, right? Mr. Rapozo: Back side, correct. Councilmember Kagawa: Okay. Thank you, Chair. Council Chair Furfaro: Mel. Councilmember Rapozo: Thank you, Mr. Chair, and thank you Lenny, for being here. I guess for me, are you inviting the coaches tomorrow 6:30 a.m. for breakfast? Mr. Rapozo: Anybody. I will invite anybody. Councilmember Rapozo: The only reason I bring that up is I am no field expert, obviously. I mean, I love football. It is my favorite sport. I spent a lot of time at the stadiums, but the two (2) coaches, Kauai High and Kapa`a, have told me that they have concerns about the safety of the field right now. I guess they looked at it. Who makes the determination whether or not a field is fit for play? Is that the State's call? Mr. Rapozo: Well, ultimately game call would be the officials. When that field first opened up in 2000 whatever it was, being a football official I walk the field. That field compared to the field today, this field is one thousand percent (1,000%) times better than what they had there. I put my money on the field in that condition that they said they had questions about. Four (4) weeks ago, I would say, "Yes, I had some concerns." Again, we are working with the contractor. It was not ready to play back then, but I can tell you with the finishing touches that we did this week, we did the first roll on Tuesday morning. First roll took out a good ninety-five percent (95%) of any imperfection that was in the field. By the end of that day, I think that field was better than Isenberg field that is in condition right now that kids practice on. They top dress the field. It is amazing what this grass will do, how quickly it recovers, and it moves in. The weather has been good, great the last two (2) days. We strung out lines. We made sure the goal posts were in their right position. Tomorrow, I have been told that they are so blown away that they are going to roll the field one (1) more time even though it is probably not needed, but it is in that type of condition, Councilmember. Councilmember Rapozo: Okay. Thank you. Like I said, I am not in any position to determine whether that field...you are a white cap. Mr. Rapozo: Yes. Councilmember Rapozo: Based on your experience, you walked the field, it is playable? Mr. Rapozo: It is beautiful. Councilmember Rapozo: Okay. Mr. Rapozo: I think the rest of the island is going to be very envious for the kids of Kapa`a. COUNCIL MEETING 91 OCTOBER 22, 2014 Councilmember Rapozo: Thank you. Thank you, Mr. Chair. Mr. Rapozo: Are you showing up at 6:30 a.m. tomorrow? Councilmember Rapozo: Huh? Mr. Rapozo: Are you showing up at 6:30 a.m. tomorrow? Councilmember Rapozo: No, I trust your judgment. Mr. Rapozo: Oh, okay. Councilmember Rapozo: Maybe for breakfast. Council Chair Furfaro: We do not have any more questions here. I would like to see if there is any testimony, then vote on this, and we have to take a real quick break. Is there anyone else that wants to testify on this particular item? There being no one to provide testimony on this item, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Mr. Bynum, you have the floor. Councilmember Bynum: I just want to say how thrilled I am to have this Resolution here. Thank you very much, Council Chair. I know Bryan's family. It is perfect that you are introducing this. Kapa'a New Town Park. That is the current name. It has been "new" park for a lot of years. I had the good fortune to work with Mayor Baptiste. I was on staff when we were meeting with Kapa'a High School, he was trying to press this vision, and we were working out all the details. Unfortunately I did not get to stay at the Administration to see it to fruition, but it got picked up by good hands. I am very appreciative of Lenny and all the effort from the Parks Department. I was also involved in Leadership Kaua`i and this was, at one point, a Leadership Kauai project. This is the best of our island coming together. The way come together, the way we malama each other and our public places. Bryan obviously deserves this recognition and its timing is great. I cannot wait to go to the game on Saturday and see the field. Thank you very much, Lenny. Thank you, Administration. Thank you, Jay. Council Chair Furfaro: Anyone else? JoAnn. Councilmember Yukimura: I just want to say I am thrilled also, and thank you, Chair, for introducing this, to Lenny, Parks, and all of the Departments that worked together to make this happen. I think it is a perfect thing to do. Thank you. Council Chair Furfaro: Anyone else? Mr. Kagawa. Councilmember Kagawa: Yes. Certainly, I am very happy with the Mayor coming forward with this suggestion and Chair Furfaro. It certainly honors a great man who really served humbly and did a lot of good things for the island that today is coming to fruition. So, I think it certainly sounds a lot better than Kapa`a New Town Park or Kapa'a Stadium. Congratulations to the Baptiste family. Council Chair Furfaro: Thank you. Okay, Mr. Chock. Councilmember Chock: Real quick. I just want to thank you as well, Chair. What a great honor for our late Mayor Bryan Baptiste. I also want to recognize our current Mayor and his involvement since the beginning. I think Councilmember COUNCIL MEETING 92 OCTOBER 22, 2014 Bynum talked about his role, I think when he was in Leadership Kaua`i as one of the project participants along with many others who had a vision, and that vision is now much more coming to fruition, one that we can celebrate. Thank you to our current Parks Department. Thank you. Council Chair Furfaro: Mr. Hooser. Councilmember Hooser: Yes, just want to add my aloha. Mahalo, Chair for introducing the Resolution. I served with Mayor Baptiste when he was on the Council and have many fond memories of that. It is my pleasure to help in a small way to honor his memory and his family. Thank you. Council Chair Furfaro: Before I call for a vote, I also want to take a moment to acknowledge at the time Vice Chair Nakamura who was very much involved with me, with Lenny, and with Mayor Bernard Carvalho. I remember walking the field with Nadine and looking at some of the mud worms that needed to be eradicated and some of the soil types. She was also very much involved even with the measuring and the placement of the bleachers as it went along. Nadine, thank you very much. Also, I thought it was very proper with Bryan and the Ho`olokahi Program as he cultivated that when he was at the Kaua`i War Memorial Convention Hall, and all of the projects that he tried to coordinated by volunteer groups. He was a real champion when it came to getting people together to start those kinds of things. This sports complex is only a small way to say thank you to him and his family for this contribution to our County. On that note, I think it would be right to do a roll call vote, and then we are going to take a short break. The motion for adoption of Resolution No. 2014-47 on second and final reading, was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chock, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 7, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Seven (7) ayes. Council Chair Furfaro: Seven (7) ayes. We are on a ten (10) minute break. There being no objections, the meeting recessed at 3:49 p.m. The meeting reconvened at 4:01 p.m., and proceeded as follows: (Council Chair Furfaro was noted as not present.) Councilmember Chock: Aloha. We are back from our break. Moving to Communications, if you could read that next item, please. C 2014-271 Communication (09/29/2014) from the County Engineer, requesting Council approval, to use the Self Insurance Fund, in the amount of $86,000, to replace the following as a result of theft and vandalism: 1) Office equipment, Ford F250 Super Duty Pickup with utility bed, and various tools/equipment, estimated at $50,000; and 2) 25kw Trailer Mounted Emergency Generator, estimated at $36,000. COUNCIL MEETING 93 OCTOBER 22, 2014 Councilmember Kagawa moved to approve C 2014-271, seconded by Councilmember Bynum. Councilmember Chock: Thank you. We have a motion and a second. There being no objections, there rules were suspended. Councilmember Chock: We have Larry. Do you want Sally to come up as well at this time? No, just Larry? Yourself. You are going to fare by yourself, are you sure? LARRY DILL, P.E., County Engineer: Good afternoon Councilmember Chock and members of the Council. For the record, Larry Dill, County Engineer. The issue is very straight forward. I think we had suffered a couple of thefts where we need to replace a truck and a generator. We were asked to be here today to discuss what things we are putting in place to see that sort of thing would be prevented from happening again. I wanted to share with you that those were two (2) distinct, separate events that occurred. The generator was a generator that we had provided for a community event and we had arranged with the event holder that we would drop off two (2) generators for them at a County Fire Station. The night before the event they were going to pick them up, this a practice that we have done a lot in the past, and then we would get them back after the weekend. Apparently, the person holding the event went to pick up the generators and found one (1) rather than two (2) waiting for them. Of course we filed a police report and we are awaiting that investigation. Hopefully, they will be fruitful. I am not overly optimistic, but nevertheless, we will follow up on that. What we have done since that time, we have been working with the Attorney's Office and the Mayor's Office to (inaudible) the way we handle these community events. As you probably know, we receive a lot requests for support, for generators, and use of the County stage. It is very appropriate for the County to support these good events that occur out there. We need to make sure that we protect ourselves and protect our equipment. We are putting in place, for instance, for use of generators the process/policy has not been finalized yet. It is still being reviewed and finalized. Some protocols whereby there will not be any more dropping off a generator at an interim location overnight that was not secure. We would make sure that the party borrowing the generator or whatever the equipment is, would be picking it up from us and be responsible for it until it gets returned to us. We are still finalizing that the details of that protocol. Generally speaking, we hope that we would avoid those sorts of thefts again with that sort of protocol in place. On the truck. The truck was stored at a County facility and the police did track it down, very badly burned and not usable, which is why we are requesting its replacement. The perpetrator had cut a lock in order to get in there. So, it had been secured, but we are looking at enhancing security equipment and facilities at that location. The immediate thing would be to—keep in mind that it is a very dark place. At night, it provides opportunities for folks under the cover of darkness to do their mischief. So, we are looking at adding some lights there immediately with some motion detectors to at least discourage thefts from happening. We are also looking at getting quotes for alarm and surveillance systems, and working with the police on some other recommendations they have that are still in the early phases. We take these thefts very seriously, we are doing what we can to address them, and hoping that the Council will support the replacement of these two (2) very important items for us. Thank you. Councilmember Chock: Larry, will this affect our insurance coverage in any way? COUNCIL MEETING 94 OCTOBER 22, 2014 Mr. Dill: That would be a question for the Finance Department. I do not believe it is because we are self-insured on these things after a very large deductible. Councilmember Chock: Councilmember Kagawa. Councilmember Kagawa: Regarding rental of the generator,you said we often let groups that hold functions use that generator? Mr. Dill: Correct. Councilmember Kagawa: That is the first time I have heard about it. Mr. Dill: It is not a rental. It is something we do free as a way to support community events. Councilmember Kagawa: We can either give them grants or we can let them use the generator or what have you? That is how we support them? Mr. Dill: Well, Public Work's involvement is our equipment. Public Works is not involved in giving any grants. I am not aware of any grants that we do on a regular basis for community events. Councilmember Kagawa: But certainly, there is a process in order if somebody wants to rent the generator, there is a process of paperwork, right? Mr. Dill: Oh, absolutely, yes. We do sign an agreement with them. They have to provide liability insurance and that sort of thing. Councilmember Kagawa: Because I have been involved with the Lihu`e Baseball Bash and when we need a generator we rent it from several service rental firms. I was never aware that we could have borrowed one free from the County. Mr. Dill: You need to speak to the Mayor's Office. They run all of those events. Councilmember Kagawa: Okay. Mr. Dill: Or they run all of those events for them. Councilmember Kagawa: But besides servicing that, what is the main purpose of Public Works having that generator? Mr. Dill: Well, the main purpose is a very real event happening, a hurricane. All of our generators or a vast majority of them are located at the automotive shop in Lihu`e. They take care of them, they maintain them, they keep them fuelled up, and they keep them ready to go. In the event, say, a Neighborhood Center is used as a shelter, we can go out there very quickly and hook up a generator to that facility to get it power, if power goes down. So, multiple County facilities exist out there that do not have a fixed generator in place. In those cases, we would tow a portable generator out there to provide support. Actually, one practical purpose that loaning generators out, gives us an opportunity to utilize them, which is important for our generators to make sure they are operating regularly and they are functioning when we need them to function during a crisis. COUNCIL MEETING 95 OCTOBER 22, 2014 Councilmember Kagawa: Okay. The second question about the truck. We have an office down at the Honsador base yard? Mr. Dill: Yes. Councilmember Kagawa: And it is a plumber's office? Mr. Dill: Correct, our plumbers and our carpenters, I believe, use our base yard. Councilmember Kagawa: At Honsador? Mr. Dill: Correct. Councilmember Kagawa: So, somebody broke into there and took the keys to that Ford, and then went out and... Mr. Dill: I apologize. I do not have the details. I believe what happened was they broke into the office, got the keys, and took the truck. Councilmember Kagawa: What measures are we taking so that does not happen again? Are we putting better locks? Are we moving the keys? Mr. Dill: We are working with the police and they are also giving us recommendations about a metal lock box to keep the vehicle's keys in it so that it would be secure. You could break into the facility, if you manage to get into the facility, you would still have a metal lock box where the keys are secured. Councilmember Kagawa: Thank you. Thank you, Chair. Councilmember Chock: You are welcome. Any other questions? Councilmember Rapozo. Councilmember Rapozo: Thank you. Which community event was that for? Mr. Dill: It was at the Po`ipu Beach Park. I cannot tell you what the event was exactly. (Inaudible). Councilmember Rapozo: I am sorry. Mr. Dill: It was at the Po`ipu Beach Park. I cannot recall exactly which community event it was. I can tell you that the generators were stored at the K51oa Fire Station by the roundabout. Councilmember Rapozo: Yes, I know, and that concerns me that they can steal something right out of the Fire Station. I mean, that just baffles me. Mr. Dill: Yes. Councilmember Rapozo: I think like Councilmember Kagawa, after this is aired, there is going to be a ton of requests for generators because I do not think too many people are aware that the County would loan it out...Yes, I do not think a lot of people are aware that we loan out those things out. I think the stage, that was one of the reasons, I think, nobody offers a stage. I mean, you cannot go to service rentals and rent a stage. I think that was the purpose when we purchased COUNCIL MEETING 96 OCTOBER 22, 2014 the stage, was to support community events, but generators? I do not know now what happens when someone calls next week and says, "Hey, we have a function at Lydgate. I want borrow one of your generators." Obviously, that needs to be addressed. When you sign the lease agreement or the borrowing agreement or whatever it is called with the person that is going to use it, I mean, when does the agreement start? Mr. Dill: That is one of the things we are cleaning up with updating and revising the agreements. Generally, it would be for the duration of the event. Councilmember Rapozo: Well, I am sure you folks are working on that. I mean, it would make sense to me that they need to come pick it up. I mean, I do not even know if what I am saying I even believe in. I do not even know why are even loaning those things out, number one, if something should happen with the generator, it burns or blows up, I guess I am just confused and concerned. The bigger problem is I am sure service rentals are going to find out about this and say, "Hey, wait a minute County. You folks are competing with our business." I envision the Mayor's Office will get a ton of calls requesting generators and I do not know how we stop that. Anyway, I am kind of concerned about that. I mean, to steal it right out of the fire station, that is baffling. By the way, was it mounted on a trailer? Mr. Dill: Correct. Councilmember Rapozo: And it is a 25 kilowatt (kw). I wish we had a picture because I think somebody knows where that generator is. Mr. Dill: Somebody does. Councilmember Rapozo: Thirty-six thousand dollars ($36,000). I think we can offer a one thousand dollars ($1,000) reward to get it back. I know someone knows where it is. I did not see anything in...I do not read the paper that much, but I did not see anything anyway from the Police Department or from anybody letting the public know that we had this missing generator. If there is a way you can get a picture out, put it on Facebook, and I will tell you, a one thousand dollar ($1,000) reward would probably get that back. Mr. Dill: Okay, thank you. I will follow-up on that as a suggestion. Thank you. Councilmember Rapozo: I mean, that is a big generator. Mr. Dill: Oh, yes it is. Councilmember Rapozo: I know somebody knows. So, if anybody knows, I cannot guarantee the one thousand dollars ($1,000) reward right now, but 25kw generator and trailer...do you know what brand it was? Do you know what color it was? Mr. Dill: I do not know off the top of my head, no. Councilmember Chock: Vehicle Identification Number (VIN) number. Councilmember Rapozo: Okay. Well, Ale Quibilan from KPD is in the back here. Ale, maybe you can send me a picture or somebody can send me a picture. I will put it on Facebook. COUNCIL MEETING 97 OCTOBER 22, 2014 Mr. Dill: Okay. Councilmember Rapozo: We will try to find it. Thirty-six thousand dollars ($36,000), I know somebody knows where that thing is right now. If you turn it in to the fire station tonight under the cover of darkness, no questions asked, we promise not to prosecute you. How is that? I do not know if I can even do that, but I just did. That just concerns me. Anyway, thank you, Larry. Councilmember Chock: Councilmember Yukimura. Councilmember Yukimura: Yes, it is pretty amazing and egregious that this thing happened. So, it was mounted on a trailer. They did not take the trailer? They moved the generator. How heavy is it? Mr. Dill: No. I am sure they just towed it away. Councilmember Yukimura: They took the trailer and the... Mr. Dill: Correct. Councilmember Yukimura: That is pretty hard to hide. I would like to know what the criteria are for a community event that enables the use of this type of equipment, and I would recommend that there would be some protocols established for defining that. I mean, is it a baby's birthday party? Mr. Dill: We just supply the generators in Public Works. I respect the question. I think you should forward that, I would say, to the Mayor's Office or I can convey that question to the Mayor's Office if you would like. Councilmember Yukimura: Yes, because this is public property that is not supposed to be used for private use. You should define "community," and what that means. Mr. Dill: Well, I can assure you that I have never seen them used for things like a private party. It has always been for a community event like the County Farm Fair or something like that. Councilmember Yukimura: I can see it being used with the stage if that is... Mr. Dill: The stage always comes with a generator. It needs a generator. Councilmember Yukimura: Okay. I trust that there are criteria for use of the stage, but that is not something a private party will generally ask for. There is kind of an easier dividing line on that, but I do think it would be good to get our house in order so that it is really clear what is qualified and what is not qualified. With respect to this Ford Pickup, where was it stored? Mr. Dill: At Honsador. Councilmember Yukimura: Oh, okay. Mr. Dill: I am not sure what the correct name is, but we all know where the Honsador site is. COUNCIL MEETING 98 OCTOBER 22, 2014 Councilmember Yukimura: But the key was not in the truck, presumably? Mr. Dill: Right. It was in the office. Councilmember Yukimura: The keys were obviously matched with the truck or was it someone who knew where the keys were? Mr. Dill: That is a possibility. Councilmember Yukimura: It was found burned. It was not actually reconstructed and used again. What was the motive? Mr. Dill: I have no idea. Councilmember Yukimura: Well, I trust our super-duper Police Department is looking at all of that. Mr. Dill: Right. Councilmember Yukimura: I commend the Police Department, by the way. I understand they did a very good investigation on that hit-and-run case. Alright, well, I am glad that you are developing some protocols to prevent this from happening again. It is an expensive mistake. Mr. Dill: Absolutely. Councilmember Yukimura: Thank you. Councilmember Chock: Councilmember Hooser. Councilmember Hooser: Just to kind of follow-up. The generator, as Councilmember Rapozo said, is sitting in someone's driveway or garage or carport or behind somebody's house. It is on a trailer. It is a big thing, right? Mr. Dill: Yes. Councilmember Hooser: So, that generator is sitting in somebody's house, whoever stole it or unless they sold it to someone. It is on the trailer. Is it four (4) or five (5) feet off the ground? Mr. Dill: Yes, five (5) or six (6) feet off the ground. Councilmember Hooser: Five (5) or six (6) feet off of the ground. I mean, obviously people in the community know. Somebody knows where it is. I would encourage people if a generator showed up in their neighborhood —when did this happen? I mean, I can look at the letter and read it. Mr. Dill: This summer, I believe. Councilmember Hooser: July? Mr. Dill: July/August, I believe. Councilmember Hooser: July 18th. The generator showed up at somebody's house around July 18th or so and hopefully we can get some leads on that. It is just crazy because it is not something you can hide underneath your pillow or COUNCIL MEETING 99 OCTOBER 22, 2014 something. During this recent hurricane warning, I would think that they would fire it up to get it going. Maybe there are some clues. If anyone knows where it is, they can call Councilmember Rapozo and he can guide them through the process. It is just crazy. We were talking earlier about ninety thousand dollars ($90,000) and how hard money is to come by. To have this kind of criminal vandalism, basically and theft, is pretty outrageous. These are public facilities. I share the concerns about the loaning of equipment. I guess my question would be, is there a log showing generators in and generators out and who they go to during the year? Mr. Dill: Yes, our automotive shop would keep records of all of that, yes. Councilmember Hooser: Okay. Mr. Dill: The Mayor's Office also keeps records of all of the events that we support with those types of uses of equipment. Councilmember Hooser: How common is this occurrence? Do you know if it is something once a month, once a year, or every week where someone comes and gets a generator? Mr. Dill: I would say once or twice a month. Councilmember Hooser: Okay. We could get some kind of report from you if we wanted to find out who is or was exactly using the generators and what the procedures were? Mr. Dill: Yes. Councilmember Hooser: Obviously, we can ask the Mayor's Office for what their policies are if they have any. Mr. Dill: Sure. Councilmember Hooser: Thank you. Councilmember Chock: If we could make that official. If we could get, as soon as you folks revise the policy, if you can share it with the Council that would be appreciated. Mr. Dill: Sure. Councilmember Chock: Thank you. Councilmember Bynum. Councilmember Hooser: Oh, I was just going to say maybe we can get staff to put something in writing and send it over. Councilmember Chock: Great. Councilmember Hooser: Thank you. Councilmember Rapozo: Or maybe we can have staff call over right now. It is killing me. Who gets to rent or borrow generators? If staff can call the Mayor's Office. I am just curious that happened. Again, the co-sponsoring events, the Farm Fair, the parades, those things that the County is actively co-sponsoring or co-hosting, that is one thing. I am just dying to find out what kind of people we are COUNCIL MEETING 100 OCTOBER 22, 2014 lending out generators to because I sure could have used one last week just in case. Thank you. Mr. Dill: Well, you would not have gotten one. Councilmember Rapozo: Yes, I know. I am not good enough with the Mayor. Councilmember Bynum: Larry. Mr. Dill: Yes. Councilmember Bynum: I am in support of this. Thank you for your testimony today. I just want to say that I applaud that we are making these generators available to community groups. I think it is part of long-term kokua that our County has done with many groups. The stage is a great example. I worked for the Administration and I helped select that stage. I really wanted that stage because Public Works employees would take a half a day to put it up and a half a day of work to take it down, right? The question is, it would seem to me that there is a benefit of having these generators. They have to be kept up. You do not want them sitting for two (2) years not operating, right? Even if they were sitting in our shop or facility we would want to fire them up and keep them warm. Am I correct? Mr. Dill: Correct. As I mentioned earlier, it is an opportunity for us to exercise an under load. We would like to exercise an under load to make sure that actually when the time comes, they will serve their function. Councilmember Bynum: There is actually benefit to the County's operation to use them periodically. Mr. Dill: Yes. Councilmember Bynum: Then community groups get to save funds. I can see the point where service rentals may not be happy about that, but this is a long-term thing that we have done for a long time, right? Mr. Dill: Well, as long as I have been the County Engineer anyway. Councilmember Bynum: Right, and I know before you were in the County. Mr. Dill: I am sure it was. Councilmember Bynum: I just wanted to say that there is a real benefit to the community and ancillary benefit to the County to make sure that those things are operable and in good condition. Mr. Dill: Yes, I would agree. Councilmember Bynum: Thank you. Councilmember Chock: Any other questions for Larry? Seeing none, can we ask for public testimony on this item? Anyone would like to testify on this? COUNCIL MEETING 101 OCTOBER 22, 2014 There being no one to provide testimony, the meeting was called back to order, and proceeded as follows: Councilmember Chock: Further discussion members? The motion to approve C 2014-271 was then put, and unanimously carried (Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Council Chair Furfaro was noted as silent (not present), but shall be recorded as an affirmative for the motion.) Councilmember Chock: Next Communication. C 2014-272 Communication (09/29/2014) from the Civil Defense Manager, requesting Council approval to receive and expend grant funds from the United States Department of Homeland Security, via the State of Hawai`i Department of Defense, in the amount of $555,552, to continue to enhance the capability of State and local units of government to prevent, deter, respond to and recover from threats and incidents of terrorism, as well as "all hazards" catastrophic preparedness initiatives: Councilmember Bynum moved to approve C 2014-272, seconded by Councilmember Yukimura. Councilmember Chock: Thank you. We have a motion and a second. Councilmember Rapozo: Mr. Chair. Councilmember Chock: Yes, sir. Councilmember Rapozo: I do not know what this involves. I am just looking at the clock, and I am not sure if this is time sensitive, but five hundred fifty-five thousand dollars ($555,000) is a lot of money and I was hoping we could move that over to the Committee and we can have a presentation from Civil Defense. Councilmember Chock: Okay. That is a great suggestion and I would also like to just call Glenda up real quickly if we can confirm that. Glenda, did you hear the request. Why do you not come on board? Introduce yourself please. There being no objections, the rules were suspended. GLENDA NOGAMI STREUFERT, Civil Defense Manager: Glenda Nogami Streufert, Manage, Civil Defense Agency, Emergency Management Agency. Councilmember Chock: Thank you. We understand you have a request here or actually, a communication about a grant. There has already been a request from a Councilmember to get more information on it. We do not have, I think, anything in this that really tells us what this is about. The request is that you might come back to give us more of a presentation on what it is. With that, if you can respond and I will entertain more questions about it. Ms. Nogami Streufert: I have some information here with me and I also have our subject matter experts with me. I have Assistant Chief Quibilan from the Police Department, Fire Chief Westerman, and Lieutenant Applegate, as well as Chelsie Sakai who is our Grant Coordinator. We might be able to answer the questions rather than waiting, but that is your call. Councilmember Chock: Do you have a presentation as well or no? COUNCIL MEETING 102 OCTOBER 22, 2014 Ms. Nogami Streufert: We can speak to it. Councilmember Chock: Okay. Is this time sensitive as well? Is there a deadline to make a decision on this? Ms. Nogami Streufert: We would like to expend the money as quickly as we can because it does take a while to get some of this expended and there is a time limitation, but we are at your disposal. Councilmember Chock: Okay. Members, I will entertain more questions on how we might move forward. Councilmember Rapozo. Councilmember Rapozo: Yes, thank you. Normally, Glenda, attached to the request is a spreadsheet or a breakdown of what the funds are to be used for. This is over five hundred fifty thousand dollars ($550,000), and I really do appreciate Federal money. I do. I like their money, but then again, I also want to...I think the public wants to know what these moneys is for. I am not sure I understand what "continue to enhance the capability of State and local units of government to prevent, deter, respond to and recover from threats and incidents of terrorism, as well as `all hazards' catastrophic preparedness initiatives." I do not understand what that is. Ms. Nogami Streufert: I can tell you what the projects are and the amount of money that is associated with it. Would that help you? Councilmember Rapozo: That would help. Ms. Nogami Streufert: Okay. The 800 MHz Radio System Upgrade was for three hundred thousand dollars ($300,000), Training and Exercise Program for Kaua`i County First Responders sixty thousand dollars ($60,000), Whole Community Resiliency — Community and Citizen Preparedness for Kauai County twenty thousand five hundred fifty-two dollars ($20,552), Kauai Police Department (KPD) Access Control eighty-five thousand dollars ($85,000), and Program Management for Homeland Security Programs ninety thousand dollars ($90,000). The total is five hundred fifty-five thousand five hundred fifty-two dollars ($555,552). Councilmember Rapozo: The 800 MHz system, we approved some grant money in the last—that came up before, right? Ms. Nogami Streufert: This is a continuing upgrade. Councilmember Rapozo: Where are we in light of the 800 MHz system? Are we near completion? Ms. Nogami Streufert: No, we are not near completion, but we are doing this in a phased process. This is the next phase of it, which is another three hundred thousand dollars ($300,000). It is for the trunk system. Councilmember Rapozo: Okay, so we are not getting any —the public's concern was the military attack vehicles. Ms. Nogami Streufert: The BearCat is rescue vehicle. Councilmember Rapozo: No, I am talking about this one here. Ms. Nogami Streufert: That is not here. No. COUNCIL MEETING 103 OCTOBER 22, 2014 Councilmember Rapozo: Just exactly what you said? The 800 MHz system, three hundred thousand dollars ($300,000); Training and Exercise —was that Training and Exercise? Ms. Nogami Streufert: Training and Exercise Programs. Councilmember Rapozo: Yes, the sixty thousand dollars ($60,000). Ms. Nogami Streufert: Whole Community Resiliency, twenty thousand five hundred fifty-two dollars ($20,552). Councilmember Rapozo: Explain that really quickly because I think we can get this through today. Ms. Nogami Streufert: For the Community and Citizen Preparedness. I have Lieutenant Applegate and Chief... Councilmember Rapozo: I just need an overview. Ms. Nogami Streufert: Oh. Councilmember Rapozo: Is it the Community Emergency Response Team (CERT) program? Ms. Nogami Streufert: It is partly the CERT program and is also the Citizen Corps Leadership, as well as the Neighborhood Watch programs. Councilmember Rapozo: Okay, and then KPD Access Control. I think that is self-explanatory. They are just going to upgrade their... Ms. Nogami Streufert: Access and control of the area. Councilmember Rapozo: ...to the building? Ms. Nogami Streufert: Right, that is correct. Councilmember Rapozo: Okay. Councilmember Chock: What was the ninety thousand dollars ($90,000)? Councilmember Rapozo: I am sorry. Councilmember Chock: Ninety thousand dollars ($90,000). Ms. Nogami Streufert: For? Councilmember Chock: The last line item. Ms. Nogami Streufert: The last line item was Program Management for Homeland Security Programs. That is the expenses for our Emergency Management Grant Coordinator. Councilmember Rapozo: Thank you. COUNCIL MEETING 104 OCTOBER 22, 2014 Councilmember Chock: This is an ongoing grant as well, this five hundred fifty-five thousand dollars ($555,000)? It is one (1) installment or is it over time? Ms. Nogami Streufert: We have had this, it is for this year. Councilmember Chock: Right. Ms. Nogami Streufert: Each year, we go in with an investment strategy and we hope we always get grant funding. Councilmember Chock: Okay. It is an ongoing grant that you seek out every year? Ms. Nogami Streufert: Yes, it is. Councilmember Chock: Further questions? Councilmember Yukimura. Councilmember Yukimura: Thank you. Glenda, for a very good list, I think, and of course I am totally in favor of upgrading the 800 MHz system. I did not quite understand. I know Councilmember Rapozo knows what it is. KPD access control. I am not sure what that is. Ms. Nogami Streufert: Perhaps I will have Assistant Chief Quibilan answer that question. Councilmember Yukimura: Okay. Councilmember Chock: Chief, can you come up as well? Sorry, if you could come up and introduce yourself, please. ALEJANDRE QUIBILAN, Assistant Chief: Good afternoon Chair and Councilmembers. For the record, Ale Quibilan, Assistant Chief, Kaua`i Police Department. Councilmember Chock: Councilmember Yukimura, do you want to ask the question? Councilmember Yukimura: Yes. Chief, thank you. What does Access Control and Identity Verification mean? Mr. Quibilan: What we want to do is we want to enhance the security for the Police Department. We have been looking at this for a number of years. We have tried to enhance security. If you are familiar with the building, anyone can just drive on property, whether you are a threat to the Police Department we do not have any control over protecting the facility from any act of terrorism or intent to harm the police personnel or "take out" the facility. If you look across the street at the Courthouse, they have gates. There is a berm around the property. We do not have anything. There is a curb, sidewalk, and our parking lot. It is just a small portion to try to control access onto our property. The best way to do it right now is to block off Ka'ana Street at the traffic light and down at the soccer field to prevent any vehicles from entering the property should we receive a credible threat to the State or island. Law enforcement would more than likely be your first target. COUNCIL MEETING 105 OCTOBER 22, 2014 Councilmember Yukimura: These access blocks would be only in time of need? Mr. Quibilan: We are looking at a controlled type of checkpoint at the two (2) entrances into the parking area to our facility where you have an access card to card in and allow the vehicle to enter the property. We can track vehicles coming into the property. It does not establish a perimeter to prevent vehicles from entering. It is only a controlled point like an automated arm type of mechanisms, like a controlled parking lot, similar to what you would see at the airport. This is something like that when you want to get into the parking lot. It does not establish a fence. Councilmember Yukimura: Okay. Is it at Ka'ana Street so you are not blocking any public access? Mr. Quibilan: No, we are not. Councilmember Yukimura: You are blocking access into the parking and premises of the Police headquarters? Mr. Quibilan: Correct. Councilmember Yukimura: Okay. Thank you. Councilmember Chock: Councilmember Hooser, you have a question? Councilmember Hooser: Yes. This is all for personnel, not for... Ms. Nogami Streufert: I am sorry. Councilmember Hooser: The majority of funds are going to be spent for people or for equipment? The three hundred thousand dollars ($300,000) for the... Ms. Nogami Streufert: For the Communications... Councilmember Hooser: Yes, is that for equipment? Ms. Nogami Streufert: That is for equipment. Councilmember Hooser: Equipment. Do any of these budgeted items exist already in the budget? Does this money free up other money for you? Ms. Nogami Streufert: No, this does not supplant anything that we have in our budget. Councilmember Hooser: Okay. Ms. Nogami Streufert: This is in addition to that budget. Councilmember Hooser: Okay. The Training Program, I believe we had an item a short time ago with the Asset Forfeiture Fund from the Police, exercise equipment I think. Is this in conjunction with that? Ms. Nogami Streufert: This is primarily for the Fire Department. It is for first responders. We have annual exercises that we have to conduct. Some of that are... COUNCIL MEETING 106 OCTOBER 22, 2014 Councilmember Hooser: Okay, so it is not exercises like jumping jacks? Ms. Nogami Streufert: No. Councilmember Hooser: Okay. Ms. Nogami Streufert: I am sorry. Councilmember Hooser: That is why I was thinking it was. Okay. Ms. Nogami Streufert: It is first responder exercises. Councilmember Hooser: We had a weight room that we were funding or something. Okay. Will any of these result in recurring expenses that may or may not be funded in the future? Ms. Nogami Streufert: Not to my knowledge. Councilmember Hooser: Except maybe the program management? Ms. Nogami Streufert: The program management, and that would be about it. Councilmember Hooser: The program management is an annual cost? Ms. Nogami Streufert: It is an annual investment that we have in our grant application. Councilmember Hooser: Right. - Ms. Nogami Streufert: Yes. Councilmember Hooser: Every year, you hope you get this grant also? Ms. Nogami Streufert: That is correct. Councilmember Hooser: Okay. Thank you. Councilmember Chock: Further questions? Councilmember Yukimura. Councilmember Yukimura: It is actually related to a personal privilege. Since Glenda is here, I just want to acknowledge and thank her for the recent work during the hurricane alert. Civil Defense, the Mayor, all of the team, the first responders, I think even our Chair was there, but coordinating communications was excellent and kept our community well guided, I thought, during a very difficult time. I am sure this has been like an eighty (80) hour work week for you. I would like to thank you and all of those who were a part of the effort. Ms. Nogami Streufert: Thank you. I will convey that. Councilmember Chock: Thank you. No further questions on the item. Thank you so much. Ms. Nogami Streufert: Thank you very much. COUNCIL MEETING 107 OCTOBER 22, 2014 Councilmember Chock: Anyone would like to testify on this item? There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: Councilmember Chock: Further discussion, Councilmember, on this item? The motion is to approve. Councilmember Rapozo: I just have one (1). Councilmember Chock: Yes. Please, go ahead. Councilmember Rapozo: I guess, in the future, Glenda, that spreadsheet that you just provided to us, where did she go? This spreadsheet, if you could just attach it to the...unless it is confidential, just attach it to the communication that you send over and then it makes it a lot easier for us. Thank you. Councilmember Chock: Thank you. The motion to approve C 2014-272 was the put, and unanimously carried (Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Council Chair Furfaro was noted as silent (not present), but shall be recorded as an affirmative for the motion.) Councilmember Chock: Motion passes. We will move to the next Communication. Ms. Fountain-Tanigawa: The next Communication is on page 3. C 2014-273 Communication (09/30/2014) from Councilmember Rapozo, requesting the presence of the Executive on Transportation, to provide the Council with an update on the buses acquired from the City & County of Honolulu, an update on staffing and overtime, and a breakdown of the cost to construct a bus shelter versus the number of bus shelters constructed in the last five (5) years: Councilmember Kagawa moved to receive C 2014-273 for the record, seconded by Councilmember Rapozo. Councilmember Chock: Thank you. Motion and a second on this item. Let us call up Celia. Is Celia here? There being no objections, the rules were suspended. Councilmember Chock: I will hand the floor over to Councilmember Rapozo since this was his communication. Councilmember Rapozo: Thank you, Mr. Chair. Thank you, Celia, for being here. I think you got the correspondence that we sent over, I believe, September 30th regarding some of the questions involving the Transportation Agency and I just got your written response, and I appreciate that. Maybe we can just go over that. The first topic I had wanted to cover was the buses that we have just received from Honolulu, and I kind of wanted to get an update on that. I guess I was under the impression that the busses were going to be—I know back in May 28th when we had approved the busses, it was clear to us that it was going to be, I thought anyway, that is was going to be utilized. I guess from your response, that it is going COUNCIL MEETING 108 OCTOBER 22, 2014 to be a while before we get to use those busses. If you can just give us an update on that. CELIA M. MAHIKOA, Executive on Transportation: Thank you. My names is Celia Mahikoa. I am with the County Transportation Agency. In response to your inquiry about the busses that the City and County of Honolulu very generously allowed us to have, you had requested, I guess, specific information as far as the quantity and the cost to ship. Whereas, we currently have them stored in what we refer to as the Honsador lot near the airport. We received four (4) of them from the City and County of Honolulu. They were shipped out the first week in August and we received them at that point and have had them stored. Since then, we are running them about every two (2) weeks in order to make sure that they are maintained and are in good operating condition. Additionally, the cost to ship all four (4) of them came to a total of six thousand five hundred twenty-two dollars ($6,522). Young Brothers was very generous with providing us a very good price on that. (Council Chair Furfaro was noted as present.) Ms. Mahikoa: As far as what it is going to take to get them on the road, I believe we have provided some general information in the past. As we have gone through and receiving it, we have done a pretty detailed assessment of what is needed from this point in order to get them actually placed in service. I have provided you that information as far as there is, regarding the personnel aspects that are involved, consulting with Department of Personnel Services as well as United Public Workers (UPW) regarding a new class of bus drivers because of the new size and the Commercial Driver's License (CDL) requirements that are involved in operating a larger piece of equipment such as these transit busses. Councilmember Rapozo: Okay, maybe if we can just as we go along, does that mean a new class of bus driver, meaning more pay? Ms. Mahikoa: Most likely, yes because it takes additional requirements in order to operate one of these vehicles, an airbrake requirement, plus they are a larger category of vehicle. Councilmember Rapozo: Okay. That is one of the questions I had asked back in May if it we were going to be able to take on these busses. Again, I did not get the impression from you that it was going to require more resources. Any idea of what that would entail? Ms. Mahikoa: At this point, we do not have detailed information on that. The offsetting factor that I see, is the fact that these vehicles transport quite a few more individuals so that would offset the amount of drivers needed to transport the same amount of people. (Councilmember Hooser was noted as not present.) Ms. Mahikoa: There should be an evening out of that additional expense it would cost to have more highly qualified individuals operating the vehicle. (Councilmember Bynum was noted as not present.) Councilmember Rapozo: Oh, not really because you still have to have the multiple pickups at the bus stop. You are not going to eliminate a bus stop or a bus route, a time. COUNCIL MEETING 109 OCTOBER 22, 2014 Ms. Mahikoa: If we can maximize efficiency with the larger vehicles, we will certainly look at doing that if we are able to. I mean, the more people we can transport on one (1) bus, I mean, the greater efficiencies that it lends to that route. Councilmember Rapozo: Okay, and then the CDL qualifications currently, your bus drivers today are not qualified to drive these busses? Ms. Mahikoa: I believe we may have just a handful of them who are qualified right now. We are taking down the detailed information on each of their CDL qualifications. Some of them do, but it is not required right now. Basically as long as they are required for the position that they currently have, they are qualified to operate the vehicles they have, but that is part of the assessment that we are doing in determining what is needed and what steps need to be taken. Councilmember Rapozo: Okay. Then the mechanics as well. Our mechanics currently are not qualified or certified to work on these busses? Ms. Mahikoa: They do have Automotive Service Excellence (ASE) certifications. There are different categories within the ASE certification similar to that of the drivers. We need to go through and do a detailed assessment with them and see where the gaps are that we would need to have filled in, for each of the individuals on our team. Councilmember Rapozo: Would that also incur higher compensation because they are working on different components of the bus? Ms. Mahikoa: Potentially. That all depends on the discussions that we have to go through with UPW. Councilmember Rapozo: One of the questions that I asked back in May was if we were going to send someone up to go and inspect the busses. Did that happen? Ms. Mahikoa: We had our "Driver Trainer" go over there who also has some background with heavy equipment as well, and he met with their team there at O`ahu Transit, and was able to go over the vehicles with them and the maintenance records as well. Then he was able to transport the busses to the dock and we had them shipped over. Councilmember Rapozo: Okay. I guess you can continue. (Councilmember Bynum was noted as present.) Councilmember Chock: Yes, there are some other questions too. We can come back to it. I do have one (1) question. Are these busses, can they serve disabled, wheelchair access as well? Ms. Mahikoa: Yes. Councilmember Chock: They all can, the busses that you are receiving? Ms. Mahikoa: Yes, they are lift compatible. COUNCIL MEETING 110 OCTOBER 22, 2014 Councilmember Chock: Okay. Alright, good. Councilmember Yukimura has a question as well. Councilmember Yukimura: On question number 3, the breakdown of cost to contract bus shelter versus number of bus shelters constructed in the last five (5) years. I mean, there has been a lot of talk about how expensive bus shelters are. You are showing a range here of—let us see. Current contract costs range from thirty-seven thousand dollars ($37,000) to fifty-eight thousand dollars ($58,000). Prior construction costs range from twenty-eight thousand dollars ($28,000) to sixty-eight thousand dollars ($68,000). (Councilmember Hooser was noted as present.) Ms. Mahikoa: That is correct. Councilmember Yukimura: So, it varies based on the site, and can you educate us about why there is this kind of variance? Ms. Mahikoa: The variance lies in the fact that each location is very different from others, and it takes different work in order to prepare the area to have the slab established in each location. So, the Princeville location, obviously, took quite a bit more work in order to prepare it properly in order to get it ready to have the slab installed. So, basically... Councilmember Yukimura: The Princeville one had the volunteer group help build that, right? Ms. Mahikoa: Yes. Councilmember Yukimura: The labor to build the building was volunteer? Ms. Mahikoa: Yes. To put the structure up, that was the North Shore Lion's Club. That was one of the two that they constructed; however, the slab and this expense, primarily was for the actual preparation of the ground, the laying of the... Councilmember Yukimura: The engineering? Ms. Mahikoa: Right. The laying of the slab. Councilmember Yukimura: And the foundation? Ms. Mahikoa: Yes. Councilmember Yukimura: Which has to be set up correctly so that wheelchair accessibility can be addressed? Ms. Mahikoa: Exactly, sloping and everything needs to be compliant. Councilmember Yukimura: This current contract cost for bus stop shelter improvements, which includes Ishihara Market, Hanapepe Armory, Lawa`i Mini Mart, Hanama`ulu, Laukona Road eastbound, Kapahi and Kilauea Food Mart, and Kapahi Food Mart, those had engineering done by the SSFM International, Inc. study that did the forty-nine (49) sites? COUNCIL MEETING 111 OCTOBER 22, 2014 Ms. Mahikoa: Exactly. Councilmember Yukimura: These costs includes the engineering costs? Ms. Mahikoa: No. These costs are strictly construction, what you are seeing on both categories there. Councilmember Yukimura: Wow, so that the actual cost, if you include engineering costs, was even more than what you have shown here? Ms. Mahikoa: Yes. Councilmember Yukimura: But these will have photovoltaic lights? Ms. Mahikoa: The new ones, yes. Councilmember Yukimura: The ones I just mentioned, which are current? So, there is the cost of the photovoltaic system that is included here? Ms. Mahikoa: Yes, photovoltaics and all of the other accessories are included in here. Councilmember Yukimura: Okay, and they will be larger than the ones that are on the main highway by the Community College? Ms. Mahikoa: These, if we —I am going to say no. They are going to be, I believe, each one of them is going to be the same size as that. As ideally as we would like to have expanded that after we saw the actual size of them, these are going to be the same size. If we were to expand it, it would have delayed the project another six (6) months probably to have it redesigned. Councilmember Yukimura: I am getting a lot of comments about how small that is. Ms. Mahikoa: Yes, we are too. Councilmember Yukimura: I know you told me the Mayor was concerned about it too. Are we making a correction so that —I mean, if we are going to expand the bus system and we are expecting a lot of people using that bus stop, it would be cost ineffective to put up such small shelters, I think. Ms. Mahikoa: I agree, and therefore, we are adjusting for the second phase of this project that we are in. Councilmember Yukimura: Okay. Ms. Mahikoa: We are making adjustments. Councilmember Yukimura: Okay. Thank you. Councilmember Chock: Council Chair. Council Chair Furfaro: Yes. Thank you. I am sorry I had to go downstairs to get some information. Let me ask you, on the busses we are acquiring, and if you already answered this question, forgive me. How big are they? How many passengers? COUNCIL MEETING 112 OCTOBER 22, 2014 Ms. Mahikoa: I believe they are forty-one (41). Council Chair Furfaro: Forty-one (41) passenger? Ms. Mahikoa: Yes. Council Chair Furfaro: And the largest busses we have now are? Ms. Mahikoa: Thirty-one (31), thirty-three (33) actually. Council Chair Furfaro: Okay. Ms. Mahikoa: They are very tight. Council Chair Furfaro: Okay. If I say to you, "can you give me a trip cost of a bus from Lihu`e to Po`ipu on a thirty-one (31) passenger and then give me trip cost of a bus from Lihu`e to Po`ipu on a forty-one (41) passenger," do we know what those trip costs are? Ms. Mahikoa: I would not be able to provide that for you right now, but we could calculate it. Council Chair Furfaro: Have we calculated it before we accepted these busses? Ms. Mahikoa: I did not, no. Council Chair Furfaro: Okay. I have to tell you that is a very, very important item before we acquire these things, is to find out if there are cost savings per rider per bus based on the Payroll, Taxes, and Employee Benefits (PT&E), the increases in the cost of the drivers because they are driving bigger equipment, the fuel consumption, the average number of drivers, and the staffing training of repair and maintenance (R&M). It is really important. I would strongly suggest that you do that. It is no different than a cost of an occupied room or a hotel for an airline or a bus. It is a cost of that seat when you fly somebody. What is that seat actually cost us? May I encourage you to do that please? Ms. Mahikoa: Certainly. Thank you for that excellent suggestion. Council Chair Furfaro: I will be glad to help you with it, but we need to do that. Thank you. Councilmember Chock: Councilmember Kagawa. Councilmember Kagawa: Celia, thank you for being here. These busses are forty-one (41) passenger busses? Ms. Mahikoa: Yes. Councilmember Kagawa: The busses that we have, the Kaua`i Bus, is thirty-three (33) passenger busses? Ms. Mahikoa: We have busses that range in size from fourteen (14) to thirty-three (33). We have a whole variety of different vehicles. COUNCIL MEETING 113 OCTOBER 22, 2014 Councilmember Kagawa: So, these busses that we got from O`ahu is not much bigger than the ones... Ms. Mahikoa: Actually, they are quite a bit bigger. They are much more —what we do in order to get thirty-one (31) seats in these cutaway busses is, I do not know how many of you have ridden in one of the thirty-three (33) passenger busses, but it is a very tight squeeze in order to get that many seats in one (1) vehicle versus if you have ever ridden with Oahu transit on their regular size transit busses, it is much more spacious. They are actually designed to have more standing room as well. It gives you a lot more flexibility as far as the interior and the capacity of the vehicles. Councilmember Kagawa: Yes, it is the big busses? It is just that the seating is made for forty-one (41)? Ms. Mahikoa: Exactly. Councilmember Kagawa: Because I remember riding those Honolulu ' busses when Iwas younger, and it was a while ago. I remember standing and holding onto that pole. Ms. Mahikoa: They can get quite a few people standing in there. Councilmember Kagawa: Yes, exactly. Ms. Mahikoa: Versus ours, is not as much space. Councilmember Kagawa: Using that number of passengers, is it really painting a good picture as far as trying to determine the size? The size of these busses are like maybe double the size of our Kauai Bus? Close to? Ms. Mahikoa: I would say maybe about thirty percent (30%) larger. Councilmember Kagawa: Thirty percent (30%) larger? Ms. Mahikoa: Yes. Councilmember Kagawa: Okay. Thank you, Celia. Ms. Mahikoa: Sure. Councilmember Kagawa: Thank you. Councilmember Chock: Anyone who has not asked question yet? If not, I am going to hand it over to Councilmember Rapozo, second round. Councilmember Rapozo: According to your response, you are going to take about a year before we get those buses on the road? Ms. Mahikoa: That is our ballpark guesstimate based on all of the steps that it is going to take to get them ready to be safely employed and serviced. COUNCIL MEETING 114 OCTOBER 22, 2014 Councilmember Rapozo: Okay. As far as this number 2, staffing and overtime, how are you working? Your substitute drivers are non-drivers. What is a non-driver? Ms. Mahikoa: It would be every other position within the Agency line, our Program Specialist, our accountants, our driver trainer, and our mechanics. Councilmember Rapozo: How you do incorporate the on-call drivers? Your full-time drivers are Civil Service? Ms. Mahikoa: Actually, no one in our Agency is Civil Service. We are all exempt-appointees within the Office of the Mayor. Councilmember Rapozo: Okay. So, you have fifty-two (52) drivers full-time and twenty-six (26) drivers on-call? Ms. Mahikoa: Yes. Councilmember Rapozo: Is it possible to increase the full-time drivers rather than rely on on-call drivers? Why do we use the on-call drivers? Ms. Mahikoa: We use on-call simply because of the fluid nature of scheduling within public transit because we are fully omitted to always ensuring that we have every route covered every day, and that goes for a fixed route as well as paratransit. We do not have the luxury of doing without a driver on a route. We need to ensure that one (1) is always filled. Now, we could convert to all full-timers, but that would mean that you would have days where you have drivers sitting in the office unused, and that is the last thing that we would want, is to have unused labor. Councilmember Rapozo: I am told that you have quite a few drivers on-call that are working full-time hours consistently, even working over forty (40) hours a week. Ms. Mahikoa: Over forty (40) hours? Councilmember Rapozo: Yes. Ms. Mahikoa: Okay. Councilmember Rapozo: It just seems to me that you would incorporate —I mean, it just seems that you would be able to create full-time. Ms. Mahikoa: We have done that regularly and continue to do that. As we reach a point where we see our drivers are nearing that position, we request to have them converted over to full-time. Typically, we tend to be very careful doing that because the last thing we want is to bring someone on full-time and do a restructuring or find that we are short on funding one (1) year, and then have to lay people off. That is the last thing we ever want to do. Definitely, if you look at the pattern through the years, we have been consistently converting individuals from on-call to full-time. Councilmember Rapozo: My concern is always with all the Departments is just the amount of overtime. I know in here you say you were COUNCIL MEETING 115 OCTOBER 22, 2014 approved for one hundred two thousand dollars ($102,000) in overtime of which seventy-five thousand dollars ($75,000) went to providing bus service on holidays. Ms. Mahikoa: Yes. Councilmember Rapozo: I think the Chair's question on the cost per route, I think, is critical and important when we do an assessment of the routes because if we are operating the holiday runs and the busses are empty and we are paying a higher cost per route because we are paying overtime, I am not sure if that is an efficient way to run the bus. I have no idea what the counts are, but without knowing the cost per seat or the cost per route, the cost per run, it is very difficult to do an assessment on what the true cost of the service is. I would assume that on the holiday hours, the usage is a lot less. Ms. Mahikoa: It depends. There are some holidays when we run into situations where it is like standing room only, same with some of the weekend times. Councilmember Rapozo: Right, and then there are time where it is empty. Ms. Mahikoa: You are right. Councilmember Rapozo: I think, again, it goes back to the Chair's —we need to have a grip on that. We need to know that on holiday "x," the cost is higher because we are running overtime, the busses are empty, and we are generating no revenue. I think that is critical. The other item that was brought to my attention was the ten (10) minutes breaks. How does that work and how does the overtime and the ten (10) minute break come into play—the relationship between the two. Ms. Mahikoa: Actually, they are all driven by the UPW Unit 1 Collective Bargaining Agreement. So, the overtime is anything beyond eight (8) hours a day, anything beyond forty (40) hours a week, and then there are other triggers, quite a few other triggers that will prompt the payment of overtime to our drivers. Additionally, the ten (10) minute breaks within the collective bargaining agreement states that we should be providing them a ten (10) minute break twice a day, basically. Councilmember Rapozo: Okay. Ms. Mahikoa: We do our best to do that. With public transit, sometimes you run into accidents on the road, traffic, and other delays that may hinder that. We have a system set up with our drivers whereby if they are not able to take their ten (10) minute breaks when they comeback, they fill out a form, and basically, they are compensated an extra amount for that inability to take that break. So, it results in them being reflected as working an additional ten (10) minutes for that day, which typically will give them an extra quarter (0.25) hours—if it is an eight (8) hour day they are working, they would be compensated for 8.25 that day. Councilmember Rapozo: Right. What percentage of, and it may seem minimal to some, but—the microphones are all on. Councilmember Chock: Oh, so sorry. Councilmember Rapozo: I am getting a very strong echo. How often does that kick in, that trigger in your estimation? COUNCIL MEETING 116 OCTOBER 22, 2014 Ms. Mahikoa: As far as driver's inability to take a break? Councilmember Rapozo: Yes, or how often is that —in other words, are our drivers getting the overtime every day? Ms. Mahikoa: Urn... Councilmember Rapozo: What percentage of our... Ms. Mahikoa: I would say maybe two percent (2%). Councilmember Rapozo: Two percent (2%)? That is it? Ms. Mahikoa: Yes. Councilmember Rapozo: So, rarely is it —two percent (2%). What do you mean two percent (2%)? Ms. Mahikoa: Two percent (2%) would be one (1) out of fifty (50) drivers. Councilmember Rapozo: On a daily basis? Ms. Mahikoa: Close, because certain routes are going to tend to have regular delays-the way they are structured. Councilmember Rapozo: Okay. Ms. Mahikoa: So, that is our way of compensating the employee for the inconvenience of not being able to take that break. Councilmember Rapozo: Okay, so it is not a problem? One percent (1%) is not a —or two percent (2%) to me, is almost non-existent. Ms. Mahikoa: I think for that employee who is unable to take a ten (10) minute break, that I believe, might be a problem. Ideally, we would love to give them every break and every meal period that they are warranted; however, just that nature of public transit is sometimes quite often you are going to get situations where —but the collective bargaining agreement is set up to where we have ways of compensating the employees for these situations. Councilmember Rapozo: Yes, I understand. I am just wondering at the end of the day, how many drivers do you have every day typically? When you look at the attendance sheets or the timesheets, you are saying... Ms. Mahikoa: Total of all, you are probably looking at about fifty-five (55) to sixty (60). Councilmember Rapozo: A day? Ms. Mahikoa: Per day. Councilmember Rapozo: You are saying just two percent (2%) of those would submit a... Ms. Mahikoa: Missed break? COUNCIL MEETING 117 OCTOBER 22, 2014 Councilmember Rapozo: Yes. Ms. Mahikoa: Yes. Councilmember Rapozo: Okay. Thank you. Councilmember Chock: Councilmember Yukimura, do you have second round questions? Councilmember Yukimura: Thank you. Celia, going back to the big busses. We got four (4) for the cost shipping. Is that correct? Ms. Mahikoa: Yes. Councilmember Yukimura: So, that is a cost of six thousand five hundred dollar ($6,500), basically? Ms. Mahikoa: Total to ship four (4) busses. Councilmember Yukimura: The whole intention here was to test whether they would actually work for a place like Kaua`i, to see in fact the answers to some of the questions that the Chair has been asking about passenger mile cost or whatever... Council Chair Furfaro: Trip cost. Councilmember Yukimura: Trip cost, thank you. So, for six thousand five hundred dollars ($6,500) we are going to be able to that, and whether we incorporate them as part of our regular system depends on what we learn? Ms. Mahikoa: Exactly. Councilmember Yukimura: Okay. Ms. Mahikoa: I mean, we saw this as such an ideal situation, the generosity of City and County of Honolulu in allowing us this opportunity because purchasing one (1) of these vehicles brand new is close to one million dollars ($1,000,000). I mean, before we even consider things like that, I would want to see if it would work here on Kaua`i before we even consider it. So, that is what this opportunity is giving us now. We are extremely grateful for the generosity of the money City & County of Honolulu as well as Young Brothers for making this minimal dollar impact for the County in order for us to see if this will truly work. If not, we will be out some as well as the time and labor that is going to research if this is going to truly work on Kauai, but not nearly what it would take to learn an expensive lesson by purchasing one of them and then having to realize that it really would not work. Councilmember Yukimura: I think that is very resourceful. It is hard to believe that a bus like that costs one million dollars ($1,000,000). I think you told me also that they last much longer than the smaller busses. Ms. Mahikoa: Exactly. Councilmember Yukimura: If they can increase our capacity, it may be worth it, but you still have to find that out. Ms. Mahikoa: Yes. COUNCIL MEETING 118 OCTOBER 22, 2014 Councilmember Yukimura: But for six thousand five hundred dollars ($6,500), that is a pretty good deal. You also say that with current staffing levels it is really hard to do the elven steps that you enumerate here. Ms. Mahikoa: Yes. Councilmember Yukimura: Those of us who are on the outside we think, get the bus, throw it on the road, and that is all. Ms. Mahikoa: I wish. Councilmember Yukimura: Yes, I know, but you are saying you have to consult with the union, take care of CDL qualifications, and assess the bus stop process for the larger busses. Ms. Mahikoa: Right. Councilmember Yukimura: So, there is a lot to go on. The limiting factor is the lack of staff at this point? Ms. Mahikoa: Right, to dedicate specifically to initiatives like this. That has been the challenge. Councilmember Yukimura: If you had staff, this process could move much faster? Ms. Mahikoa: Oh, yes. Councilmember Yukimura: Okay. Ms. Mahikoa: Certainly. Councilmember Yukimura: Thank you. Councilmember Chock: Councilmember Rapozo, do you have a follow-up question? Councilmember Rapozo: Celia, I do not think anyone of us said"get the bus and throw it on the road." I think my concern is we should do the research first and that is why I asked you in May to send somebody to O`ahu to check out the busses. I think we should do the research first. It is my understanding, correct me if I a wrong, that O`ahu, they have a normal rotation of busses. Ms. Mahikoa: Yes. Councilmember Rapozo: Next year, you could probably get four (4) more if you wanted them. All I am suggesting is, now my concern is that we took the busses first, now we are doing the research, and we are finding out now that it is going to cost us more money to operate the bus because of a different pay grade with UPW, because of a different pay grade for the mechanics. Again, to some it might seem petty, but it is going to take a year, based on your response, to get the busses on the road. For me, it would make sense to do the research first, get everything in line, and then get the bus. That is all I am saying because it is not just six thousand dollars ($6,000). We cannot use this bus. I asked the Police Chief if the Honolulu Police Department wanted to give us four (4) police cars that they were done with for free and all we had to do was pay for the shipping, would you accept them? He said, COUNCIL MEETING 119 OCTOBER 22, 2014 "No." I understand it is one million dollars ($1,000,000) versus six thousand dollars ($6,000), but the fact is if we cannot use the bus for whatever reason, and what is the life? I think in your May testimony, and if I am not mistaken, you said probably eighteen (18) years. I asked you how old the bus is, and you said, "Eighteen (18) years." I think I asked, "What was the life span of these busses," and I believe you said, "About that." The busses are at the end of their life cycle, right? I mean, that is what you said in May. I am thinking my approval was based on the fact that you folks would go to Honolulu first and if in fact it was not an efficient or cost effective way, that we would not accept the busses, but you got the Council approval like a preapproved loan, that if in fact it worked for us, we would accept it. I do not know if that occurred. I do not know what it would cost to dispose of these busses if we have to dispose of the busses, and that is, I think, my concern. So, I did not for a second think we were just going to take the bus and throw it on the road. I did feel we needed to do our homework and these busses will come with a higher operating cost than the busses that we have here today. I think that is a given. You look confused, but it makes sense, right? Ms. Mahikoa: I am not going to assume that, but logically... Councilmember Rapozo: Yes, I would think so. If it is going to cost more to run it and to maintain it, then it is going to come with a higher cost per route. Hindsight is twenty/twenty (20/20) and I am hoping we can make this work, but I guess we just have to wait and see. Ms. Mahikoa: I believe we did put good effort by going over there and looking at the vehicles and reviewing the maintenance records with the individuals who were responsible for maintaining the vehicles. There is always more we could do, but certainly we felt justified. Councilmember Rapozo: How much more life do we have out of these busses? Ms. Mahikoa: That is one thing we will learn as well. Councilmember Rapozo: You said your folks went over to go inspect the busses and look at maintenance records, so I would think they would have an idea. "Hey, Celia, we have ten (10) more years out of this bus," "We have five (5) more years" or "We have eight (8) more years." That was not done? Ms. Mahikoa: That is part of the learning. Councilmember Rapozo: Okay. Thank you. Councilmember Chock: Good. Any further questions? Council Chair. Council Chair Furfaro: Let me first say, thank you for your initiative on this, but let us start putting some terms together that will help understand this. Maybe this is really a pilot program and that these busses as a pilot program, we need to do the ridership cost as I laid them out for you. We have to do some kind of projections that deal with the actual depreciation of the bus. When we get them, it is going to have no value to the City & County of Honolulu, but if we get three (3) or five (5) years out of it, that would provide us some kind of value as an asset which would defer the purchase or leases of other busses because we are taking advantage of this pilot program. All I am encouraging you do is you really need to get together with Finance and lay something out for us on the pilot program that relates to the money we save with the acquisition of only six thousand five hundred dollars ($6,500), and COUNCIL MEETING 120 OCTOBER 22, 2014 that there is no schedule of expending of capital purchases whether it is over seven (7) years, ten (10) years, or whatever. That is a savings. Those are the things that actually contribute to lower ridership cost because there is no capital CIP with it. Then, I think you do have to get a reasonable idea of what kind of life cycle you are going to get out of the bus that they are going to give us even if it is only five (5) years. I would like to say to you, you need to do those pieces and we need to talk to them in terms of what we acquired as a pilot program. I also want to tell you about the ten (10 minute break periods and so forth. You have compliance with Federal wage standards. That is the seen (7) minutes increments. If somebody works more than seven (7) minutes in an hour, you have to pay the whole quarter. Ms. Mahikoa: Right. Council Chair Furfaro: I would encourage you to kind of work the ten (10) minute breaks into your actual trip schedules. Somebody has to wait three (3) more minutes because somebody has a ten (10) minute break. Over a period of time, it might save us a lot of premiums based on a quarter hour of pay. Ms. Mahikoa: Right, we can certainly look at that. Council Chair Furfaro: That is worth looking at too. Just suggestions. Ms. Mahikoa: Thank you. Council Chair Furfaro: Thank you. Councilmember Chock: Good. If no more questions, at this time what I would like to do is open it up for public testimony. Anyone in the public would like to testify on this item? Did you have something else to add, Celia in response to some of the questions? Yes? Did you have more to add? Ms. Mahikoa: Not for now. Councilmember Chock: Not for now? Ms. Mahikoa: Thank you. Councilmember Chock: Okay. Thank you. I thought Glenn, you would want to come up here. So, thank you for you... Councilmember Rapozo: I do have one (1). Councilmember Chock: Oh, I am sorry. You have more questions? Councilmember Rapozo: No. If you could explain or just go over the future plans for expansion. Just give us a general broad overview. One of the items we are going to discuss later is increase in the GET, specifically for transportation, the account for possibly eight million dollars ($8,000,000) a year to the Transportation Agency. I am just trying to figure out if you folks are ready for that. So, I read your response, but if you could just go over the response. Ms. Mahikoa: Okay. Basically as far as plans for expansion for transit, from the point when the post Hurricane `Iniki emergency funding was COUNCIL MEETING 121 OCTOBER 22, 2014 used up the Public Transit Agency, Kaua`i Bus, needed to basically downsize its operation to assist that the County could sustain. We are looking twenty (20) years later from the point when those funds were dwindled down and the General Fund had to carry the cost of the bus system on Kauai. From that point through today, almost a twenty (20) year period, we are looking at some extensive growth in the public bus system. For I would say, at least the first dozen years, I was gratefully part of that team with Ginnie Kapali and Janine Rapozo, seeing what was needed each year to justify our existence here in trying to make this a viable system that would work to provide an option for the people of Kaua`i to have a good cost effective way of moving about on the island. We have been in that mode for the past twenty (20)years and basically operating bare bones. If you look at the administrative layers in our Agency, you will see that there are not layers, that we are pretty much strictly just operations and a hands on crew. I mean, that puts us in a constant mode of looking for better ways to do things and to find more efficient ways of doing things, but by the same token, it prevents us from being able to take new initiatives in finding ways to better address the needs of this community. We have a team that is fully committed to wanting to do that, but we are constrained by the expense that it takes. Yes, it takes funding in order to provide this service to the community. However, as far as the guidance that we have been provided and where we go from here, we had the privilege of being the lead Agency in having the Kauai Multimodal Land Transportation Plan assembled and provided for the County in trying to find strategic ways to address moving the public around on the island in much more efficient ways. I see so much within there that so much good would come from applying these action items that have been recommended in there. Within there, there are six (6)programs actually. People just think about the bus when they hear that plan, but there are six (6) programs within that plan. If we all focus on chipping away at achieving these action items that are in there, I mean, I truly believe that we may not make this miracle of the final goal, but the closer we can get to the goal of being able to move people around more effectively on this island, I mean to me, that is the greatest reward. To be able to get people to more efficiently move around and save money while they are doing it is rewarding. In doing so, I just wanted to go over some of the action items that were provided in the Transit Program within the Multimodal Land Transportation Plan, which is ultimately what we view as the future plan for the expansion of the Kauai Bus and what would be the most effective in addressing the needs of the community. The first one would be adding more frequeny to the main line and shuttle routes. We get constant input from the public saying that they want more, they want it more frequently, and is not convenient enough. Basically, if we provide it, they will come. Same with weekend service, if we provide more weekend service, it will be used, as well as increasing the number of bus stops to serve more areas. We have had intermittent discussions with different groups on the island and with State Highways to try and find ways to better serve the communities that are out there. You have so many individuals who are having difficulty financially who would love to be able to use the bus to get around, but they cannot because we cannot get bus stops placed in certain areas just for safety reasons or for whatever reason that is presented. Ultimately, the more user-friendly, the more people are going to use it and the more money people are going to be able to save. Councilmember Chock returned Chairmanship to Council Chair Furfaro. (Councilmember Chock was noted as excused.) Ms. Mahikoa: To me, that is the greatest blessing with the ability for us to invest in the transit system. Additionally, we want to complete quality bus stop improvements that will provide safe, accessible user-friendly bus COUNCIL MEETING 122 OCTOBER 22, 2014 stops for all bus riders. Particularly, we look at our seniors, we look at our individual with disabilities, those who need to use wheelchairs in order to access these areas, and we are seeing that you are right, it is not cheap. In order to get these bus stops ready, and realize the benefit that it will provide for everyone, is beyond what I believe we see as a problem. We are also looking at establishing a Global Positioning System (GPS) based route and scheduling information system that provides riders and dispatchers real time information that will increase the efficiencies, also adding to the user-friendliness of the system. We are looking at working with employers develop and implement a discounted bulk rate commuter bus pass program as well, which will also encourage individuals and groups of individuals to utilize the public transit system. There are many other things beyond this that we see, that we really, really want to be able to implement in order to better serve the community. It takes resources, it takes personnel. Ultimately, that is where we are with this. Thank you for asking and giving me the opportunity to be here and share that with you. Council Chair Furfaro: Mr. Hooser has a question for you. Councilmember Hooser: I just have a few questions. I appreciate the discussion, your presentation, and the valuable service that you, your staff, and the bus, public transportation, brings to our community. I am fully aware that public transportation is a public service and whether it is schools or roads or lifeguards, none of them pay for themselves. That is why they are public. I do not believe any public transportation system pays for itself, that I know of. I certainly do not expect that, but I think it is reasonable to expect efficiency. My question is, how do we measure efficiency compared to other communities? Is it passenger miles? How does Kaua`i County's public transportation system measure up against other communities? Do you have that information, or possibly could you talk a little bit about that or get that for us? Ms. Mahikoa: Certainly. That information was provided within the Multimodal Land Transportation Plan where they did a comparison between similar size communities or similarly structured communities as Kauai. In actuality, Kaua`i did quite well compared to the others, we were one of the better, more efficiently run systems. So, I mean... Councilmember Hooser: Okay. Ms. Mahikoa: I am grateful for the support that we have had on that. Councilmember Hooser: I think it is important to remind us of that because it does cost money, but relative money. Again, lifeguards do not pay for themselves, highways do not pay for themselves, and police. I mean, all of our public services. I think as policymakers, on your budget, we need to know that we are running as efficient a system as reasonable. It sounds like from the last check anyway, comparative research, that the answer is yes. Ms. Mahikoa: Yes; however, I do not rest on those results by any means. We are always looking for other ways that we can refine what we are doing to find better ways to do it, smarter ways to do it. However, it does take people in order to restructure these types of things and to implement new programs/new initiatives that are going to lead to better efficiencies. Thank you. Councilmember Hooser: Thank you very much. Thank you, Chair. COUNCIL MEETING 123 OCTOBER 22, 2014 Council Chair Furfaro: Celia, in our last discussion we talked in terms of the National average on subsidies for public transportation, they were generating about seventeen percent (17%) of their operating costs from the fares and revenues. Ms. Mahikoa: Yes. Council Chair Furfaro: That eighty-three percent (83%) was actually subsidies on the operation. Do you know what we are operating in the way of not being able to have a profit or loss statement because we could only double underline the loss statement? What is our goal? Is it eighty percent (80%), eighty-five percent (85%) subsidized? Have we put pencil to that and kind of said, "This is our target?" Ms. Mahikoa: Ideally, to me, the target would be the greater the recovery rate we can get, the better. I believe right now we are probably at about sixteen percent (16%) to seventeen percent (17%) at the moment. Council Chair Furfaro: I think you are at seventeen percent (17%). Ms. Mahikoa: Right. Council Chair Furfaro: But what I am saying is, have you set a goal? Ms. Mahikoa: In all honesty, I have not; however, we are looking at ways to enhance revenue, looking for more creative ways to structure our revenue, the fare structure that we have right now as well. I mean, to me, ideally if we could aim for twenty percent (20%) that would be wonderful. Well, there is a balance that we need to maintain because the reach is a point where you end up having fares that will actually discourage the use of transit and we do not want to cross that line. Council Chair Furfaro: Well no, that is the whole point. We want to find the piece that works the best for us, the maximum ridership for the best possible price with the least subsidy from us. That is the formula. Ms. Mahikoa: Right. Council Chair Furfaro: But could we see that maybe by the end of the year? I will send a piece of correspondence over. Could we do something like that on what the actuals are? Ms. Mahikoa: Sure. Council Chair Furfaro: What are we actually doing? By the end of the year, we probably should have the first three (3) to four (4) months of actual numbers that you could put on something like that. That is the goal, to really find out how we can maintain ridership at the best possible price with the least or the less subsidy we can. Ms. Mahikoa: Right. Council Chair Furfaro: That should be the way the mission is written. Thank you very much. Ms. Mahikoa: Thank you. COUNCIL MEETING 124 OCTOBER 22, 2014 Council Chair Furfaro: On that note, there is public testimony, I think. So, I think we will excuse you. Ms. Mahikoa: Okay. Thank you. Council Chair Furfaro: Thank you very much. I think Glenn had his hand up. GLENN MICKENS: Thank you, Jay. For the record, Glenn Mickens. Jay, with your permission, I would like to go to Resolution No. 2014-46. I had a couple of questions here about these gift busses, but the other ones are on the bus too. I was hoping to do it maybe before dinner time. With your permission, I will just ask these questions and then go to my testimony if that is permissible with you. Council Chair Furfaro: Okay, just plan not to have a big supper. Go right ahead. Mr. Mickens: Okay. Thank you. Well, the only questions I have, and I appreciate Celia's fine testimony. I thought she was excellent putting it out. How many miles are on these busses and are they the new diesel type or the old polluting type? I did not hear that answer. Why did Honolulu give us these busses? I did not hear that answer. What will be the cost to make them operational? Are we getting an asset or are we getting a liability? I mean, these are very simple questions. Maybe Celia has the answer. Anyway, she can come back later if you want her to, and maybe she can answer those questions. Council Chair Furfaro: No, we will send those questions over in writing. Mr. Mickens: Okay. Council Chair Furfaro: Because what happens is in a third party situation, when Honolulu writes it off their books and so forth, it is depreciated but has salvage value. Mr. Mickens: Right. Council Chair Furfaro: The question to us is what happens with that salvage value and how many more miles? Mr. Mickens: Right. Council Chair Furfaro: I mean, that is from the accounting approach, but we will send those questions over. Mr. Mickens: Because obviously if it has three hundred (300,000) or four hundred thousand (400,000) miles and they are supposed to get three hundred thousand (300,000) or four hundred thousand (400,000) miles, what are we going to do? Rebuild those busses that is going to put another eight (8) or nine (9) people on, over the busses that are already here? Council Chair Furfaro: That was the question I asked in terms of R&M. Mr. Mickens: Yes. COUNCIL MEETING 125 OCTOBER 22, 2014 Council Chair Furfaro: That stands for repairs and maintenance. Mr. Mickens: Right. Council Chair Furfaro: But we will send those over. Mr. Mickens: Okay. My testimony, you have a copy of. This Resolution No. 2014-46. In the over twenty-one (21) years of service by the Kauai Bus that JoAnn claims to have created, over sixteen million dollars ($16,000,000) in losses have been incurred, but few if any vehicles have been taken off the roads. I say those losses because as I think your figures show, Jay, eight hundred thousand dollars ($800,000) a year is what we are subsidizing the Kaua`i Bus for. Each year traffic has worsened on Kaua`i, proving that busses and bikes is not the answer to alleviating traffic. There were two thousand seven hundred forty-three (2,743) registered bikes on Kauai in 2013 and yet only a very small amount of them are used for transportation. For the majority of the population who need transportation and can drive, the vehicle has been and will be their choice. We need public transportation for people who fall into the Americans with Disabilities Act (ADA) category, and for those who cannot drive, but there are sufficient numbers of busses to take care of these people if scheduling is properly done. You see where busses over here have two (2) or three (3) people leaving in it and you tell me that there are other places (routes) where people are standing up and waiting. I think that the scheduling is the part of it that can be improved. Why are we not contracting... Ms. Fountain-Tanigawa: Three (3) minutes. Mr. Mickens: Why are we not contracting with our taxi companies to pick people up who cannot drive? It is far cheaper and cost effective than using a huge diesel bus to pick up a lone passenger as was done as you heard, I think it was Deborah sometime ago talk about on the Big Island. She did this. She was the driver. We need alternate routes to lessen traffic on our one (1) highway and one (1) bypass road or having them for emergency use in case of accidents, hurricanes or any unforeseen incidents. The people have spoken. They do not want or need more taxes and fees added to their already overburdened households. A County Manger type of government would have addressed our traffic problems long ago with so many other issues that scream for attention. How many of you Councilmembers have ever looked into that type of system and have seen how well it is working everywhere it is used? Another very interesting article which you have a copy of, in the Garden Island. Other Voices by Lee Hamilton viewing political corruption more broadly adds strong credence to why we need a County Manager. George Mason is quoted as arguing that our Founders were resistant to public behavior promoting private interests. For instance, arguing against giving the President the powers to appoint key officials. All we need to do is substitute Mayor for President and we see how well this would work for Kauai and why a Mayoral/Council system of political appointees for Department Heads and Boards and Commissions does not work, whereas a Council/manager system would —qualified and competent people would be hired by the Manager or he could be fired if the job was not done properly. Yet, JoAnn wants to add three-quarters of one percent (0.75%) to our excise tax to fund more unneeded busses at a staggering cost to our citizens who are already being overtaxed eight million dollars ($8,000,0000) a year. We do not need more taxes. We do not need higher fees do we JoAnn? Really. If you are going to live in the real world, why keep on telling the people that we are going to tax them more? I mean, everybody you hear talked toady, everybody you have heard letters in the paper continually talk about being overtaxed. We do not have to have more taxes. I am sure they all know that. Anyway, thank you, Jay, very much for allowing me to have my testimony. COUNCIL MEETING 126 OCTOBER 22, 2014 Council Chair Furfaro: When we get those responses back, I will share them with you. Mr. Mickens: I appreciate it. Thank you. Council Chair Furfaro: Mr. Hooser, you had a question for Glenn? Councilmember Hooser: No. Point of personal privilege I suppose. Council Chair Furfaro: Certainly. Councilmember Hooser: We already had the discussion about decorum. I think the same applies when we have members of the audience addressing Councilmembers, that I would ask that they be requested to focus on the issue and not to personally go after individuals for things they may not agree with for whatever reason. Thank you. Council Chair Furfaro: Yes, I agree with that, and I would also like to point out when we have Councilmembers that go after other Councilmembers, it sets a tone that makes the public think that way. I think we all have to do a better job. I agree with you. Next speaker, please. JOE ROSA: Good afternoon. For the record, Joe Rosa. Council Chair Furfaro: You got it Joe. Mr. Rosa: Jay, I am going to ask permission also to speak on this item, on the busses, and Resolution No. 2014-46. Council Chair Furfaro: Okay. Mr. Rosa: I am totally against buying second hand things. You have to get the value of the busses like you mentioned Jay, and the depreciation of the busses. You have to go further, assess the overall condition of those busses. Each bus, I assume from my knowledge of busses, they need ten (10) tires. That is ten (10) tires on each bus. You have four (4) busses, that is forty (40) tires. What are the condition of these tires? Tires cost money and they are diesel operated busses, and they cost money, diesel costs money. To service those diesel vehicles and everything, I do not know how many filters that they have to change too. I am going to use an automobile as an example. I was told way back by some people that were working for the automotive company, they said that the life of a car is ten (10) years or one hundred thousand (100,000) miles, whichever comes first. Now, the busses, I do not have any figure on what the life span of those busses are. They should thoroughly look into it because when they use up their life, you are going to need radiators, you are going to have to do rear end jobs, brake jobs, and all of that. So what is the total condition of those busses? You do not buy somebody else's problems or troubles. So, to me, it should thoroughly be looked by a thorough mechanic. Your Head Mechanic from your bus company here should go down and they should look at it —the overall, everything. Is it worth it? Sure, it is JoAnn's dream of a bus, but right now, I do not think it is getting off of the ground yet. To add on, she wants the half percent (0.5%) to generate more money to buy the busses and how I see the bus system being run, it is not run properly. The bus drivers have to take time off to mount and dismount bicycles, put them on properly which cause delays. In a bus system, time is an element to success and delays do not help. How can people get to work or go to school on time if they want to use the bus? I went to high school on the bus and it was... COUNCIL MEETING 127 OCTOBER 22, 2014 Ms. Fountain-Tanigawa: Three (3) minutes. Mr. Rosa: ...on time. Council Chair Furfaro: Joe, that was your first three (3) minutes. Mr. Rosa: Yes. Council Chair Furfaro: You may continue. Mr. Rosa: Okay, thank you, Jay. That is the thing. Sure, I can come here and speak up for the bus system because, hey, I like that big nice paying job, a fat check, but you have to be realistic. The car of the future is here to stay. Jay and JoAnn because they are going to get hybrid cars, hydrogen cars, and cars that run on diesel, and in the end of this article it says you program your car and it will take you to your destination. The hydrogen car is supposed to be coming out this year. It is going to cost about sixty-eight thousand dollars ($68,000), but the automobile is here to stay. We should look into improving hour highway system. We need alternate routes to alleviate the problem, JoAnn, because in 1950 you were still a little girl. Council Chair Furfaro: Joe, please address your comments to... Mr. Rosa: Yes, I am, Jay. Council Chair Furfaro: To the whole body. Mr. Rosa: Yes, this goes for the whole body. Council Chair Furfaro: Okay, thank you. Mr. Rosa: She is a proponent of the bus system. Council Chair Furfaro: That is true. Mr. Rosa: I would like to see and present some positive points because in our day when we had a bus system here, I went to school with the bus system. Right now, this bus system is not working. Like I said, I have seen the bus (inaudible)to get out. It is time. The time element, they have to schedule a better time because if I had to take the bus when I was working, I would be late for work. That is why even JoAnn, when she became the Mayor, she made a survey because there was a parking problem at the State building. That is why I kind of address things to her because that is her past project. That is her dream. Anyway like I just said, you cannot be spending money, spending money, and just bleeding the people, the taxpayers. Social security is only going to get a measly two percent (2%) increase, not even a two percent (2%). We cannot be paying more taxes, we are up to our necks. Thank you, I leave you with that thought. Council Chair Furfaro: Thank you, Joe. Mr. Rosa: No more taxes. Council Chair Furfaro: Okay. Is there anyone else that wants to speak on this item? Ken, come up. COUNCIL MEETING 128 OCTOBER 22, 2014 KEN TAYLOR: Chair and members of the Council. My name is Ken Taylor. I think it is interesting that we were able to get some larger busses for a very nominal fee, and yes, it is going to cost a little bit to upgrade divers and that. I think the time has come where this has to happen. It is interesting that for whatever reason, Honolulu was able to give us those busses even though they are older. We could not afford to do a test run on one million dollar ($1,000,000) busses out of pocket. I think this is one opportunity. A couple of things. Yesterday I had to —not yesterday, Monday. Monday, I rode the bus from Kukui Grove to home. It took me about two (2) hours, which normally in bad traffic, is about forty (40) minutes and minor amount of traffic, I can do it in half an hour. So, we need to get the process so it works a little better. Also, recently I was at an event and when it was over at 9:00 p.m. an elderly person asked me if I would consider giving him a ride home or they would call the bus. As I thought about that, I said, "Gee, one (1) person would be able to" —I think the service is fantastic that somebody at 9:00 p.m. can call and get a bus ride home, but what troubles me is that we are dispatching busses for one (1) person when we have a fleet of Prius' sitting around the County that could be used for this kind of service. It would be a lot cheaper to dispatch a Prius than a larger bus. I hope as time goes along and in the budget, these are things that work out into the budget as we move along. Since most of the County fleet is sitting in the parking lot at night, there should be no reason why they cannot be used for this kind of purpose and not have to go out and buy a whole other fleet of vehicles which also brings me to another question about a County vehicle sitting up... Ms. Fountain-Tanigawa: Three (3) minutes. Council Chair Furfaro: That is your first three (3) minutes, Ken. Continue. Mr. Taylor: There is a County vehicle sitting up at the middle school in Kapa`a, it is a large van. It sits there day in and day out. Since the "Tropical Health" thing, whatever it was, it disappeared during that period and time. It had been there at the school about two (2) months when I noticed it sitting there day in and day out, day and night. A new nine (9) passenger van. Like I said, during the "Tropical Health" thing, it disappeared and then it came back, and it has been sitting there ever since. We have budget problems, but I would imagine a van like that would cost about thirty-five thousand dollars ($35,000) minimum, and why is it sitting up there at the school twenty-four (24) hours a day? It just puzzles me that we have budget problems and things like this are happening. A little off subject, but it is a budget issue. Anyway, thank you, and also to the Transportation Agency for their well-presented program today. Thank you. Council Chair Furfaro: Okay. Ken, you were referencing "Tropical Health." Mr. Taylor: Yes. Council Chair Furfaro: Not "Tropical Hell." Mr. Taylor: Whatever that... Council Chair Furfaro: Okay, I just wanted to get the record straight. "Tropical Health". Mr. Taylor; Okay. COUNCIL MEETING 129 OCTOBER 22, 2014 Council Chair Furfaro: Okay. The other one sounds like a comedy movie. Thank you, Ken. There being no further testimony, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Before I go any further, it is now at a point where I had held some of the tax bills to the end, but we have people leaving at 5:00 p.m., 6:00 p.m., and 6:15 p.m. I want to ask everyone, is there any thought here before I go into the tax bills to consider adjourning this meeting until 1:30 p.m. tomorrow? Councilmember Rapozo: I am not here tomorrow. Council Chair Furfaro: You are not here tomorrow? Councilmember Rapozo: I am off island. Councilmember Kagawa: It is not good for me. Council Chair Furfaro: Any other comments? Okay. We cannot go into Executive Session with less than five (5) people. I think that answers it. Let us see how much we can get done here at 5:00 p.m. Okay, I want to go until 6:00 p.m. I want to go to the tax bills. Ms. Fountain-Tanigawa: Chair, we need to dispose of C 2014-273. We have a motion and a second. We just need a vote. Council Chair Furfaro: That motion was made to receive? Ms. Fountain-Tanigawa: We have a motion to receive. Council Chair Furfaro: Yes, JoAnn. Councilmember Yukimura: I have a comment before we vote. Council Chair Furfaro: On receiving these items? Councilmember Yukimura: Yes. Council Chair Furfaro: Okay. Why do I not give you the floor then? Councilmember Yukimura: Yes, I think we all heard in Celia's presentation, the passion and the commitment that she and her staff from bus drivers and mechanics to office and dispatchers, bring to their task of providing affordable transportation. I just want to acknowledge and thank them. They do an incredible job with very little and have been very resourceful, and really deserve our thanks. I want to note that I feel Celia did follow Councilmember Rapozo's recommendation and did send someone up there to evaluate the busses, but there are some things that cannot be researched without busses on island. That is what we now have at a very low cost compared to other options. I think that was done —could not have been done in any better way. I look forward to hearing what we learned from this pilot, which I think the Chair is correct. It is a pilot project, but I know that those busses last longer, they will give us more flexibility, they also, I think, are more comfortable riding, and in all ways, if they do work, will help us improve our system. Thank you. COUNCIL MEETING 130 OCTOBER 22, 2014 Council Chair Furfaro: Mr. Hooser. Councilmember Hooser: Yes, Chair, just real briefly. I want to thank Councilmember Rapozo for putting this on the agenda. I think it is important that all of the programs, we need to monitor the cost and the efficiencies. I appreciate the testimony from Celia. Councilmember Yukimura deserves some recognition as truly the person who started the bus system, but it does bother me when members of the community come up and repeatedly—just give her credit. There are some other people here that support the bus too. I want to say for the record, I am a strong supporter of the bus. If the community wants to recognize people who are supporting the bus, they should recognize all of us and not just Councilmember Yukimura even though I give her credit for the hard work that she puts into this. Thank you. Council Chair Furfaro: I too support the bus. I ride the bus with Councilmember Yukimura, and if you ever want to go from Kilauea to Waimea and talk story with JoAnn, it is a long ride. Mel. Councilmember Rapozo: You should get a discounted fare for that, Mr. Chair. Thank you, Councilmember Hooser. Thank you, Councilmember Yukimura, Councilmember Bynum, Councilmember Furfaro, Councilmember Kagawa, and Councilmember Rapozo for supporting the bus. It may appear that I do not support the bus because of my questions. It may appear that I am trying to stop a good thing form happening, but I just have a problem with the "ready, fire, aim" scenario that this County constantly does. Granted, I would agree that we would need a bus here. I for some reason, envisioned the much larger bus, not ten (10) more seats. I thought it was a big bus, and maybe it is a big bus, but it is ten (10) more seats. I would agree that you need a bus. You do not need four (4). I supported the acceptance of the donation from Honolulu, but it came with some conditions that I do not believe was met. When the Chair asked how much is the cost per mile, or cost per route or whatever and we cannot get an answer today, we have to wait for that. I had a couple of questions here, Mr. Chair, 2c and 2d, which Ms. Mahikoa has requested two (2) weeks extension. I would ask that you add those to your... Council Chair Furfaro: To that list, yes. Councilmember Rapozo: Correct, and if your list is going to allow more time, that is fine, but those questions are important to me and they pertain to staffing and overtime. We as Councilmembers, and I know for me and I will not speak for the rest of you, but we often times get called by employees of various Departments and I have been called by a few employees of the Transportation Agency, and there are concerns. The picture that was painted today may not be the same picture that is perceived by some the employees of the Division. There are some issues regarding overtime. There are some issues regarding vacancies. There are some issues regarding workload. I am not at the liberty to discuss personnel issues on the open floor, but there are some concerns as there are in Public Works, Parks, Planning, and everywhere else. My concern is making sure that all of our Departments are running in the most efficient way possible, which requires me to ask these questions. It does not mean I oppose the Transportation Agency. It does not mean I oppose the bus. It does mean that I do not think we should be spending more money on a system that we need to. Granted, some of the busses are full and a lot of them are empty. Read the comments in the Garden Island the last couple of days. Just read that. That is coming from the public. That is coming from people out there that may not be as satisfied or may have some serious concerns about the efficiencies. So, that is why I ask the questions that I ask, much like some of you ask of the other Departments. I think it is our duty to ask the questions that we need answers to, and it does not mean I do not support the bus. I do believe that we have a lot. If you look at the list COUNCIL MEETING 131 OCTOBER 22, 2014 of priorities for our County, we have a lot. I mean, from roads, parks, and everything else. There is only so much money to go around. Like I always say, it is not a money issue. It is a priority issue and we have to start looking at our priorities and taking care of our high priority items first. I thank Celia for being here today. I appreciate what she is doing at Transportation, but again, we have to make sure all of our Departments are running in the most efficient way possible. Thank you, Mr. Chair. Council Chair Furfaro: Mr. Kagawa. Councilmember Kagawa: Thank you, Chair. I have not ridden the Kaua`i Bus yet; however, I do pay for it a lot. Many times my students ask me, "Mister, can I have two dollars ($2) to ride the bus?" "Can I have fifty cents ($0.50) to ride the bus?" I found out what the difference is when you have to pay a quarter and when you have to pay one dollar ($1). I think it has added to the ability of those who do not have wheels or an automobile that can go from place to place. It is not, I would say, a necessity, but it allows my students to say, "I am going to go to Kukui Grove and catch the bus there. My mom is going to pick me up after work." Instead of taking that free ride home to Kilauea or what have you, the mom can take the daughter shopping directly after work instead of having to pick her up at Kilauea. So, it is added to our quality of life. It made it easier for parents and I support the bus. I support our children having the means to go home from practice at Kapa'a High School to get back to the North Shore and not have to wait every two (2) hours. They can catch it at every intermittent hour. I am fine with the bus. All I am saying is before we expand financially, let us make sure that we take care some of the concerns that Councilmember Rapozo said. I have a friend that tells me the bus passes his house every half an hour and there is always nobody in there. He witnesses that every evening. Now, I mean, why is the bus still going that route if nobody is on those three (3) times every half an hour? If a bus stop sign is there and nobody ever catches the bus in the cul-de-sac, then remove the bus stop. I do not know how we would be more efficient because I do not work for the bus, but all I am saying is before we add more, let us make sure it is as efficient as possible. I am not saying perfect, but I am saying, we all have to try and make this County as we get into tough times, as efficient as possible. It is not picking on anybody. I think we have to pick on everybody. That is where we are at right now. Thank you, Chair. Council Chair Furfaro: Mr. Bynum, then JoAnn. Councilmember Bynum: I just want to say I did not ask a lot of questions today, but I really appreciate that the questions are being asked. I think it is appropriate. I believe Mr. Rapozo supports the bus, he should ask these questions, and I applaud that. Also, my observation is that our Transportation Agency has done a remarkable job with not a lot of great resources, but with lots of creativity in meeting the demands of the community. All of the things you hear about the bus is true and we have an increasing number of our citizens who rely on it to be active participants in our community. That is why we had to add weekends and nights. We just had to. It was a social justice issue. We cannot leave a group our citizens behind. Most of the bus drivers are not there because they have to be there. They are there because they choose to be there because it helps with efficiencies, because it makes life better. I ride the bus more now than I used to, not very often because I have a very diverse schedule and I have to be here and there. If the bus in the Homesteads came up another mile and half, I probably would ride it more, and eventually we will get there. This agency has had to kind of slap things together and make it work when the changes of the economy made this just essential for people. It will always be something that we have to contribute to from various sources. The State said they are not going to build the mauka highway for us that everybody else got. Well, we have known that for years, but they finally admitted it. We have COUNCIL MEETING 132 OCTOBER 22, 2014 adopted a transportation plan that relies on increasing transit and more efficiently using the lanes that we have. We need to go down that path, we need to find solid funding for the bus in the future, and I really want to applaud the leadership I have seen. Of course there are issues, of course there are these things. It is a tough thing to deal with, keeping all of those schedules, transit, and overtime. I think Celia and Janine before her, have done a remarkable job overall, and I appreciate it. Thank you. Council Chair Furfaro: JoAnn. Councilmember Yukimura: I just want to say that empty busses are not necessarily the sign of inefficient transportation. By its nature, a transportation system will collect people from the outlying areas where there will be few people and then as it gets closer in, you will have fuller busses. Even those at night, there will not be as many as during commuter hours, but you still have to serve those needs in order to make the whole system work. If we have more options and more funding, we will be able to create more efficient shuttle systems that will maximize the use of our resources. I hope I have not implied or said anything about not asking these questions. I do appreciate that Councilmember Rapozo has asked these questions. I do not take it as a sign that he does not support the bus. I think they are legitimate questions and they also enable the agency to tell its story. Then lastly, I just want to say there has been so much talk this election season about the high cost of living. Well, this is one of the main ways that we can help families lower their household costs and that is why it is so important to keep it in operation and to expand it. Council Chair Furfaro: Okay, I just want to summarize this real quick. We have limited facilities and equipment, we have high expectations from riderships, we have reasonable deliveries as they are right now, and we are trying to get to the best possible subsidy margins by using this test program. So, we have a lot of good things going on. On that note, I would like to see if we can receive this. The motion to receive C 2014-273 for the record as then put, and carried by a vote of 6:0:1 (Councilmember Chock was excused). Council Chair Furfaro: Very good. Now again, I want to go to the tax bills. Mr. Bynum is leaving at 6:00 p.m., Mr. Kagawa needs to leave at 6:15 p.m. or so, but I want to address... Councilmember Kagawa: 6:30 p.m. Council Chair Furfaro: 6:30 p.m. okay. I want to address Bill No. 2558, Draft 1 and Bill No. 2560 as they stand right now. Yes, JoAnn. Councilmember Yukimura: Could we do the next one, which is the excise tax because I do not expect, at least from the Council, discussion, just the vote to set a public hearing? Council Chair Furfaro: Okay, just to set a public hearing. That is fine. Let us do that. Councilmember Yukimura: Shall we have it read? Council Chair Furfaro: Let us do that very quickly. There being no objections, Resolution No. 2014-46 was taken out of order. COUNCIL MEETING 133 OCTOBER 22, 2014 Resolution No. 2014-46—RESOLUTION REQUESTING THE LEGISLATURE OF THE STATE OF HAWAII TO AMEND HAWAII REVISED STATUTES CHAPTER 46 TO GIVE THE COUNTIES THE AUTHORITY TO ENACT A GENERAL EXCISE TAX SURCHARGE TO FUND PUBLIC TRANSPORTATION: Councilmember Yukimura moved to schedule a public hearing on November 12, 2014 at 8:30 a.m., and refer to the November 19, 2014 Council Meeting. Councilmember Yukimura: Can I have a second? Councilmember Bynum seconded the motion to schedule a public hearing on November 12, 2014 at 8:30 a.m., and refer to the November 19, 2014 Council Meeting. Council Chair Furfaro: We have a motion and a second to schedule a public hearing. JoAnn, I will give you a few minutes, but please, I want to get to the tax bills. Councilmember Yukimura: One (1) minute. Chair and members of the Council, this is a matter of great public interest and a far reaching impact on the future of Kauai. It is a tough choice involving commitment and a certain degree of sacrifice, but if expansion of bus services is important to our County, then the excise tax may be necessary. Generations before us have made tough decisions to benefit their children and grandchildren, and this is it. The bottom line, however, is the community needs to be involved in the decision. We need to hear from the community from both sides of the community on this issue. It will be an issue in the next legislature. We have already proposals to propose a half percent (0.5%) excise tax for general purposes. So, I think we need to have a full discussion on this matter, and I feel that a public hearing on it will be the way to go. Council Chair Furfaro: Okay. Mr. Bynum. Councilmember Bynum: I will try to be really brief. I could not have been clearer in the past that I oppose this measure; however, I am not willing to kill it on first reading. The public has a right to chime in... Councilmember Yukimura: It is not first reading. Councilmember Bynum: That has happened to me before where bills that I had never even made it to public hearing. I just wanted to say I am opposed to this, but I do want to support Councilmember Yukimura in terms of going to public hearing. Council Chair Furfaro: Mr. Kagawa, Mr. Rapozo. Councilmember Kagawa: I find myself agreeing with Councilmember Bynum. I am totally opposed to it. I think it sends the wrong message to the State that our top priority is not the Transient Accommodations Tax (TAT). I think we should just solely focus on that and not even talk about GET or any other type until we know for sure we have that ten million dollars ($10,000,000) in our hands. So, that is my pure focus, but allowing the public to speak is always a good thing. I will support the schedule public hearing. Thank you. Council Chair Furfaro: Okay. Mr. Rapozo. Councilmember Rapozo: I do not agree. I disagree. I heard from the public loud and clear already. We have had this discussion, I guess, when it was up COUNCIL MEETING 134 OCTOBER 22, 2014 for the Hawai`i State Association of Counties (HSAC) package, the discussion was already had. As a result of those discussions, I was not present at that meeting, but I heard the backlash from the community. As far as I am concerned, I have heard that and I am going to be voting no. I do not support this measure at all. I appreciate Councilmember Yukimura's —but I always coin the term "the world according to JoAnn" and that is fair. She has that right and so do I. I just disagree that number one, that the GET should be increased for the sole purpose of any specific function. I think if that tax is increased, it should be available for whatever the County needs it to be. Second, I also do not subscribe to the practice of having the discussion, having it fail, then putting it back on the agenda, and reliving that discussion another time. I will not be supporting it. Thank you. Council Chair Furfaro: Okay, Mr. Hooser, did you want to say anything? Councilmember Hooser: Yes, I do. While I appreciate the need for a public discussion, I am not able to support this. I think it is dead on arrival. We have had the discussion before. It is clear to me that there is no support on the Council. I have not seen any great outpouring support from the community. All I have heard from the community these past couple of months has been just the opposite talking about the high cost of government and talking about lowering taxes. I think there are other ways to have the discussion. I think we could have a workshop in the Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee and spend some quality time looking at the various methods which revenue can be produced in the future including lobbying for part of the TAT tax or lobbying for part of the car rental tax or other conveyance types of taxes. There are other revenue potential and I think it would be a lot more useful, productive use of our time to have that kind of discussion. Invite the community, invite the Administration, and let us brainstorm revenue producing ideas rather than going through the motions, if you would, on this. I am not able to support it somewhat regretfully. I appreciate the persistence of Councilmember Yukimura and her dedication to finding a revenue source for public transportation, but I cannot support this. Thank you. Council Chair Furfaro: JoAnn. Councilmember Yukimura: So, people cannot come to a Council Meeting and wait for the item to come up. Yes, we have the session beforehand, but it is only a few people can speak in the early...what is it is? Rule 13(e) time. So, by having a public hearing, we can actually give people a time when the item will be taken up. I do not believe we have heard from everyone about this. I think you will find that the community really needs a public transportation system and the very people that we worry about being burdened by the tax are going to be the ones who say so, but we will see. All I am asking is for an opportunity to have a set point and time when people can come and speak. Council Chair Furfaro: Okay, I wonder if the Councilmember would consider the fact that in our rules, and I may be a little guilty of this in the past, but if you get a vote right now because it is your Committee, to have a workshop on this, JoAnn, then you can in fact schedule in the near future a workshop with the public here in the Chambers, but you would need a motion and a second, and it has to be recorded because I have reviewed the rules. Now, we can actually approve a workshop for something that may become a future bill, which is considered legislative activity. That is what is required to have a workshop. Would you prefer to have a workshop in your Committee scheduled in the near future? COUNCIL MEETING 135 OCTOBER 22, 2014 Councilmember Yukimura: I do not mind having a workshop in addition to this, but I would like to have a public hearing specifically on this issue. Council Chair Furfaro: Mr. Kagawa. Councilmember Kagawa: I reserve the right to change my vote. Hearing Councilmember Hooser comments surprised me and I really want to go with my gut. If I say I do not support it at all, then I should just vote my conscious. So, at this time, I will vote to receive. Thank you. Council Chair Furfaro: Okay. You always have the option to have a workshop, JoAnn. You have to get the Council/Committee approval to do that, but you could always have a workshop. Do you want to say something again, Mr. Hooser? Councilmember Hooser: Yes. I think it is good that we all look for options for each of us to kind of work through this. Another option might be to defer it, do some community outreach, and then come back again. That is my other thought. Council Chair Furfaro: Okay. We would defer until November 5, 2014, is that correct? Councilmember Yukimura: I would prefer that. Council Chair Furfaro: You what? Councilmember Yukimura: I mean, to defer this Resolution. Ms. Fountain-Tanigawa: The next Council Meeting would fall on November 5th. Council Chair Furfaro: Okay, so those are the options for us, and we are burning time here folks. Councilmember Yukimura moved to defer Resolution No. 2014-46, seconded by Councilmember Kagawa. Council Chair Furfaro: Now, there is a motion and a second to defer. The motion to defer Resolution No. 2014-46 was then put, and carried by a vote of 5:1:1 (Councilmember Rapozo voting no; Councilmember Chock was excused). Council Chair Furfaro: One (1) no. Now, let us go to our tax bills please. Ms. Fountain-Tanigawa: Chair, do you want to handle the bills in any specific order? Council Chair Furfaro: Ma'am, you have been here all day and I am sorry that you have been. Is there any part of Bill No. 2558, Draft 1 or Bill No. 2560 that you wanted to hear in particular? Bill No. 2560? Okay. Let us read Bill No. 2560. There being no objections, Bill No. 2560 was taken out of order. COUNCIL MEETING 136 OCTOBER 22, 2014 Bill No. 2560 — A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, ARTICLE 6, SECTION 5A-6.4, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAXES (Commercialized Home Use Tax Classification): Councilmember Kagawa moved for adoption of Bill No. 2560 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Yukimura. Council Chair Furfaro: Now, I want to make sure we all understand, this Bill, Bill No. 2560 came over from the Administration. It is dealing with Commercialized Home Use as was discussed last week. This probably has no blended rate attached to it at present. The rate would be determined later by the Council itself. So, is there anyone that wants to say anymore on that before I take public comment? Mr. Bynum. Councilmember Bynum: Just that I do have a housekeeping amendment when it is appropriate. Council Chair Furfaro: When we get back, okay. Did you want to speak, ma'am? No? Okay. Kaipo, did you want to speak on Bill No. 2560? There being no objections, the rules were suspended to take public testimony. BILL "KAIPO" ASING: Wow, it has been a few hours. Oh my goodness. Well, let me first start. Good afternoon Council Chair Furfaro and Councilmembers. My name is Bill "Kaipo" Asing, former Councilmember with twenty-eight (28) years of experience. The reason I say this, there are people that might not know that. I will appear to be rushing through my presentation because I do not want to be cut off from completing my presentation. Wow, it is not as good as I thought it would be. Anyway, Real Property Tax represents nearly eighty percent (80%) of our revenue source. Let me repeat again. Real Property Tax represents at least eighty percent (80%) of our revenue source. I will be prefacing my remarks on the effects of all of these "temporary fix" tax bills, as it relates to our overall financial well-being. First of all, I just want to show you this slide here. This slide was shown by Mayor Carvalho in January/February of 2010. Mayor Carvalho went to do a bond presentation with Finance Director Wally Rezentes, George Costa, Dave Spanski, and Darryl Kaneshiro who was the Council's Finance Chair. I think it is very important. Let me just state that this is one of slides he presented. I want you to picture that you are sitting in the meeting with Moody, Standard & Poor's, and Fitch. Those are the kinds of people that you are facing when you do a bond presentation for a possible bond float. I just want to simply read "Kaua`i County has developed a solid track record of generating surpluses from 2001 to 2009." Next slide, please. Let me read the top portion. "Kaua`i County has managed its financial cushion well." Look at it very well. Let me read this and tell you this. "After this presentation was made and if you look at the chart, you see the fund balances that we have created and the financial cushion. We did extremely well between 2001 and 2009. The end of the presentation was made by Mayor Carvalho, Wally Rezentes, Costa, Spanski, and Daryl Kaneshiro. Let me read you the end of the presentation. "San Francisco — Fitch ratings assigned and AA- rating to Kaua`i County for its one hundred twenty million dollars ($120,000,000) General Obligation Bond Series 2010. The bonds are expected to sell well. In addition, Fitch upgrades the seventy-eight point two million dollars ($78,200,000) of outstanding bonds from the AA- to an A+." What I am saying here is that we did well, we knew what we were doing, and we were financially, in excellent shape. Now, I want to fast track to 2005. In 2005, Mayor Baptiste, Mike COUNCIL MEETING 137 OCTOBER 22, 2014 Tresler, Beth Tokioka, Dave Spanski, and myself as Council Chair went to San Francisco and did a bond presentation for a proposed forty-nine million one hundred thousand dollars ($49,100,000) bond float. Let me tell you what happened. Let me read it to you. "End result. October 19, 2005. Fitch rating raised the County of Kaua`i's... Ms. Fountain-Tanigawa: Six (6) minutes. Mr. Asing: "...forty-nine million dollars ($49,000,000) general obligation from A to A+." Very well. Council Chair Furfaro: Kaipo, I need to share with you that your six (6) minutes has expired, but I am going to give you the courtesy. Mr. Asing: Oh, my goodness. Council Chair Furfaro: I have to tell you, I have great respect for you as the past Council Chair, but I have to be real consistent about presentations. Please, go right ahead. I will give you some additional time. Go right ahead, Kaipo. Mr. Asing: I appreciate that. Thank you very much. Now, what I would like to do is fast-forward to 2014. Look at it. 2001 to 2009, those figures that you see there are the same figures that was used when the Mayor went over, Mayor Carvalho...exactly the same figures. What do we look like today? Look at it. It is horrible. Those figures are not my figures. Those figures are from the CAFR and it is horrible. Now, when I say it is horrible, let me do this. Next slide, please, the next slide. Fitch downgrades to AA-, outlook stable. This is Fitch's ratings. Fitch rating San Francisco April 2014 from AA to AA-. Let me read some of the highlighted items. "Key rating drivers, persistent operating imbalance. The downgrade to AA- is based on the County's reduced financial flexibility following a substantial reduction in reserves over the past several years. Expenditure growth has repeatedly outpaced revenue gains resulting in recurring operating deficits and drawdowns in fund balance." Next. I am not going to read the whole report. I am going to read just the ones that I felt were extra sensitive. "Rating sensitive. An inability to restore the General Fund's structural balance after Fiscal Year 2014 would likely add downward rating pressure, the operating imbalance continues. The downgrade to AA- from AA reflects the County's diminished financial position and prospects for further declines. Unrestricted Fund balances fell by more than half between 2010 and 2013 from sixty-two percent (62%) to twenty-seven percent (27%) of General Fund spending and appears likely to decline further in 2014 and 2015. Based on management projections, Fitch considers unrestricted fund balance a key credit factor for the County given its narrow economic base and vulnerability to declines in discretionary consumer spending. Reduced reserves also leave the County less equipped to manage future budgetary pressures. Fund balance drawdowns have resulted from an ongoing imbalance between General Fund revenue and spending trends, which remains unresolved. General Fund expenditures increase at a compounded annual rate of three percent (3%) between 2009 and 2013 compared to annual declines of two point eight percent (2.8%)." Look at that. We are spending more money than coming in. What is happening? Something is happening. You are not in control. You are not doing your job. That is my take of it. Next slide, please. Can you go back and show the...no. Back. That slide. Go back one (1) more. The next slide. What I am showing you here is basically this, from 2009 all the way back to 2001, we seem to be doing COUNCIL MEETING 138 OCTOBER 22, 2014 very, very well. The question is what happened? Look at it. Look at 2010. Fifty-six (56)...I am sorry. That is fifty-eight million six hundred thousand dollars ($58,600,000). What happened to that? Is somebody going to answer that? Is somebody going to give you an answer? I do not think that we are in good shape. As a matter of fact, I think we are in very, very bad shape. You tell me by looking at this chart, that we are in good shape. I do not feel that, this is not my report. This is simply the report from Fitch, the company who downgraded us. It is their report, not mine. I would suggest if you have any questions, you do not ask me the question, ask Fitch the question, because it is their report. This is your report card. I can say that the report card from 2001 through 2010, I was a part of it, I am comfortable with it, I think we did okay. Look at it, from 2010 to 2013, what has happened to us? Something is wrong, Fitch is telling us that, nobody else. So, I would suggest if you have any questions, do not ask me; ask Fitch. Council Chair Furfaro: I will be prepared to give you the answers, Kaipo. Mr. Asing: Thank you. Council Chair Furfaro: After the presentation. Are you finished? Mr. Asing: Thank you. Yes, I am. Council Chair Furfaro: Thank you for the presentation. I think it was a good one, reminding us of where we are. Your question was, in reading profit and loss statements (P&L), we can never have a P&L or statement of financial balance, you can never have it scare you, but the questions regarding what happened are very simple. Charter Amendments that passed added in the last five (5) years, forty-one million dollars ($41,000,000) of additional operating expenses, these Charter Amendments alone. The TAT, which was—that is the truth, Kaipo. If you would like to spend some time, I can show you those worksheets because I have been presenting them year after year. We also had twenty-seven million one hundred thousand dollars ($27,100,000) taken from us. Transient Accommodations Tax (TAT), we also have another eighteen million dollars ($18,000,000) in the next two (2) years, that we could lose, and we have had bargaining unit increases this year alone, which was seven million seven hundred thousand dollars ($7,700,000). Now, because of the size of those reserves, we were also pushed by many people to say, "Why do we need a reserve that high?" I am just giving you an explanation. I am not asking you for anything, but I would be glad to sit down with you and show those things to you. Those are facts, Kaipo. ' Mr. Asing: Yes. Council Chair Furfaro: Those are facts. Mr. Asing: Councilmember Furfaro, you do not have to try to convince me. This is not my report. Council Chair Furfaro: Understood. Mr. Asing: This is Fitch's report. They are telling you that they are concerned, they downgraded us, it is not me. You do not have to convince me. You do not have to tell me, Fitch is doing the report, not me. Council Chair Furfaro: Kaipo, but when you put numbers up like that, the public deserves an explanation. That is what I am trying to say. COUNCIL MEETING 139 OCTOBER 22, 2014 Mr. Asing: The public also deserves the right to know that this is the report prepared by Fitch, they call the shots. They upgraded us in 2005, they upgraded us in 2009, very good. Now, from 2010 to today, where are we? Fitch is telling us that, I am not telling you that. Council Chair Furfaro: I understand, Kaipo. Mr. Asing: Do not convince me, convince Fitch. Council Chair Furfaro: Kaipo. Mr. Asing: On top of that... Council Chair Furfaro: You forgot to put in the report, that in 2012, I was part of the group that visited San Francisco at that time, and I am aware of all of those things, and those things that I just shared with you are things that we shared with them. Fitch was one (1) of three (3) bond companies that downgraded us, and that was the rationale that we gave them. Mr. Asing: So, you do not feel that there is a problem? Council Chair Furfaro: No, sir, do not misunderstand me. I just said people have to understand reading a P&L. I am saying to you what happened with those red lines. Charter Amendments, TAT being taken, and negotiated settlements. They required us to use money that was in our various accounts and reserves. That is all I am telling you. Mr. Asing: I am trying to... Councilmember Yukimura: May I ask a question? Mr. Asing: ...that does not convince me. I am just a person, I am merely sending you and the public the report that was provided by Fitch. Council Chair Furfaro: I appreciate it. Mr. Asing: That is all I am doing. So, you do not have to convince me, you convince Fitch that they may be wrong. Council Chair Furfaro: No, what I am saying is I shared with them a couple of things that they had to understand regarding our bond rating. Number one, we have stronger occupancy on our island, we have stronger average daily rates, we have opportunities to tax our time shares, and I just want to share that you forgot to say that we had a visit in 2012. JoAnn had a question for you, Kaipo. Councilmember Yukimura: Thank you. Mr. Asing: Before you go, let me reply first. Councilmember Yukimura: Mr. Asing. Mr. Asing: I also have in front of me, a communication, and maybe what I just presented to you is from April of 2014. That was the Fitch report. I will not confirm this, but I will say that maybe Standard & Poor may also be doing something to our bond rating. COUNCIL MEETING 140 OCTOBER 22, 2014 Council Chair Furfaro: Okay, JoAnn... Mr. Asing: Standard & Poor revises County of Kauai geo-outlook to negative dated September 16, 2014. All I am trying to do is put out real facts. It is Standard & Poor, it is Fitch, these are their reports. That is all that I am trying to do. Council Chair Furfaro: Okay. Mr. Asing: Nothing else. Council Chair Furfaro: Kaipo, I would love to meet with you because the letter you read from was something we asked for in 2013 that went back to our Finance Director at our request. I would love to meet with you to revisit that, but JoAnn has a question, and we need to move on to a couple of other things. Mr. Asing: Thank you. Councilmember Yukimura: Yes, thank you, Mr. Asing for showing all of the things that you showed. Some of us have mentioned the Fitch report and we have also raised rates to address some of their issues. So, my question is, what is your stand on the bill that is at hand and also, what suggestions do you have to cure the problem? Mr. Asing: The reason for my testimony is that all of the bills that you are working on, the tax bills, reflects on our financial capability and our financial problems. That is the reason for my testimony. Councilmember Yukimura: Thank you. Are you in favor of the bill or against it? Mr. Asing: I have no feeling on the bill itself, because when you get right down to it, when you ask me that question, I could tell you this. (Councilmember Rapozo was noted as not present.) Mr. Asing: I went and got this from... Councilmember Yukimura: Can you just say... Mr. Asing: ...the office here. This represents twelve (12) Real Property Tax amendments. Councilmember Yukimura: All I am asking is whether you are for or against the bill. Mr. Asing: Well, I trying to answer that. You do twelve (12) bills (amended tax bills). Look, Real Property Tax, Real Property Tax, Real Property Tax. Twelve (12) bills in about two (2) years. Twelve (12) bills, you have dismantled the system, that is what you have done. Like Councilmember Furfaro says, the walking mummy is all bandaged. I mean, that was your comment, that is what we have. Council Chair Furfaro: I still believe we need an overall review of the tax bills. COUNCIL MEETING 141 OCTOBER 22, 2014 Mr. Asing: It is horrible, look at this. Council Chair Furfaro: Okay, we have no more questions. Mr. Asing: You have amended and dismantled the whole system. Council Chair Furfaro: Kaipo, we have no more questions and the agenda item is this tax bill... Mr. Asing: All of these are related to the tax bill. Council Chair Furfaro: I understand. Mr. Asing: What I just reported to you and the public is related to the tax bill. (Councilmember Rapozo was noted as present.) Mr. Asing: Taxes represent eighty percent (80%) of our revenue, eighty percent (80%) is due to real property taxes. What can we expect in the future? It looks as though people may be paying through the nose. Council Chair Furfaro: Thank you, Kaipo. I am going to end the meeting because we need to go to dinner break. Mr. Asing: Thank you. Council Chair Furfaro: End this session, I wanted to call for the question if there are no more questions being asked of Kaipo. Shall we call for the question on these two (2) tax bills? • There being no further testimony, the meeting was called back to order, and proceeded as follows: Councilmember Yukimura: Yes. Council Chair Furfaro: Tim. • Councilmember Bynum: Oh, I am sorry. I had a housekeeping amendment. Councilmember Bynum moved to amend Bill No. 2560 as circulated as shown in the floor amendment, which is attached hereto and incorporated herein as Attachment 5, seconded by Councilmember Yukimura. Council Chair Furfaro: Excuse me, Kaipo, I will be glad to meet with you later to go over those numbers with you. Thank you. Okay, we have a motion and a second. Tim you have the floor. Councilmember Bynum: These are housekeeping amendments that were prepared by the staff to make the bills consistent. Council Chair Furfaro: Okay. COUNCIL MEETING 142 OCTOBER 22, 2014 Councilmember Bynum: For further explanation, you would have to ask them. It is not a substantive change, it just makes the bills consistent. Council Chair Furfaro: I think we really need to make sure that the bills are consistent. There was a situation where these two (2) bills were talking at the same level to each other. So, that is what this amendment is. Any further discussion? Councilmember Yukimura: I thought we passed this. Councilmember Rapozo: I am a little confused, Mr. Chair. Councilmember Yukimura: Yes. Council Chair Furfaro: Let me ask Scott to be at the chair, please. Councilmember Bynum: Sorry. There being no objections, the rules were suspended. Mr. Sato: For the record, Scott Sato, Council Services Staff. The floor amendment that is before you is to make Bill No. 2558, Draft 1 and Bill No. 2560, along with the Residential Investor Bill that the Council previously approved and was signed by the Mayor consistent. These amendments that you will see, both in this bill and in Bill No. 2560 is to get everything consistent, otherwise, if you pass Bill No. 2560 without the amendment, it is going to trump what you just did in Bill No. 2558, Draft 1. Councilmember Bynum: Right. Thank you. Mr. Sato: All of the changes that you see before you is truly housekeeping. It is not anything additional that you did not already vote on. Council Chair Furfaro: Thank you, Scott. Councilmember Bynum: Thank you. Councilmember Yukimura: Question. Council Chair Furfaro: Question of Scott. Councilmember Yukimura: We did not pass Bill No. 2558, Draft 1 yet. Councilmember Rapozo: Right. Mr. Sato: Correct, that is why we are taking this housekeeping amendment to incorporate what is in Bill No. 2560, otherwise, we would need to take a recess and then... Councilmember Yukimura: No, but this is Bill... Mr. Sato: ...get the bills consistent. Councilmember Yukimura: This is Bill No. 2560. COUNCIL MEETING 143 OCTOBER 22, 2014 Council Chair Furfaro: Yes, but Bill No. 2560 has to have continuity with Bill No. 2558, Draft 1. Mr. Sato: Both bills touch the exact same sections. Council Chair Furfaro: They touch the same subject. Councilmember Yukimura: Should we first not pass Bill No. 2558, Draft 1? Mr. Sato: It is one in the same. We are doing both amendments... Councilmember Yukimura: Well, if you are assuming that we are passing Bill No. 2558, Draft 1. Mr. Sato: Correct. If not, then we would need to go back and... Council Chair Furfaro: Do me a favor. Hold this housekeeping item on Bill No. 2560. Let us read Bill No. 2558, Draft 1. As you know, I went to Bill No. 2560 because someone in the audience was particularly interested in Bill No. 2560. Councilmember Yukimura: Bill No. 2560. Council Chair Furfaro: Is everybody okay with that? I will have Scott come back. Read Bill No. 2558, Draft 1, please. There being objections, the meeting was called back to order, and proceeded as follows: Bill No. 2558, Draft 1 — A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAXES (Retroactive Real Property Tax Measures and Extensions): Councilmember Kagawa moved for adoption of Bill No. 2558, Draft 1 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Bynum. Council Chair Furfaro: We have a motion and a second. Yvette, do we have more housekeeping on that one too? Councilmember Bynum: Now we are on Bill No. 2558, Draft 1. Council Chair Furfaro: Now a question for the Clerk. Question for the Clerk. We have two (2) items pending on the floor, now everybody can see this, we are trying to answer a particular Councilmember's question —what is the relationship of the two (2) bills? So, everybody is seeing what the connection is, Jade. So, procedurally, how should we proceed? Ms. Fountain-Tanigawa: Well, you can take either bill. You can take Bill No. 2558, Draft 1 vote on that, and move on to Bill No. 2560. Council Chair Furfaro: That is the plan. Mr. Hooser. Councilmember Hooser: It is all good. It is all easy to fix, but I believe that on Bill No. 2558, Draft 1 that was just passed out, I believe we would need to COUNCIL MEETING 144 OCTOBER 22, 2014 delete number 10 because we have not passed that yet, then we would pass what is left, and then we pass Bill No. 2560 because we have not passed the Commercialized Home Use yet, right? Councilmember Yukimura: Maybe we should take a break. Councilmember Kagawa: We should try and finish. Council Chair Furfaro: I would like to finish this because if we take a break, we are losing another Councilmember. Councilmember Hooser: If I may continue. Council Chair Furfaro: Yes, go ahead. Councilmember Hooser: We need affirmation from staff whether we can simply strike the Commercialized Home Use from this floor amendment, vote and pass this, then we amend Bill No. 2560 as presented already, and then we vote because the only difference is we have not passed the Commercialized Home Use yet. Right? We have not passed this. We do not need is because Residential Investor is already there. Okay, so then we do not need that amendment. I mean, some of us may not want to vote on both bills the same way. So, then we would vote on Bill No. 2558, Draft 1 not amended. Council Chair Furfaro: Yes. So, do we need five (5) minutes to fix this? Councilmember Yukimura: I mean, if we have to come back anyway... Council Chair Furfaro: We will not have more than five (5) people if we come back in half an hour. Councilmember Yukimura: We are not going to take a dinner break? Council Chair Furfaro: We will not have Tim here when we come back. Councilmember Bynum: Or Ross. Council Chair Furfaro: Or Ross. Councilmember Kagawa: I will stay to finish. Let us finish though. Council Chair Furfaro: If we stay now to finish... Councilmember Bynum: That is why I am still here. Councilmember Yukimura: Are we not going to have Executive Session? Councilmember Bynum: Nope. Councilmember Rapozo: Mr. Chair, I would suggest a five (5) minute recess so we can clear up that part. Thank you. There being no objections, the meeting recessed at 6:38 p.m. COUNCIL MEETING 145 OCTOBER 22, 2014 The meeting reconvened at 6:42 p.m., and proceeded as follows: Council Chair Furfaro: We are back in session. First thing I want to make sure is we have some understanding from the Clerk's Office on these two (2) bills and the amendment. Mr. Hooser, you have the floor. You are recognized. Councilmember Hooser: Yes, thank you, Chair. It has been a long day and we are all a little tired, but we did get it figured out. So, I am not sure if any motions have to be withdrawn. Yes, so, whoever made the motion to amend... Councilmember Kagawa withdrew his motion for adoption of Bill No. 2558, Draft 1 on second and final reading, and that it be transmitted to the Mayor for his approval. Councilmember Bynum withdrew his second. Councilmember Hooser moved for adoption of Bill No. 2558, Draft 1 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Kagawa. Councilmember Hooser: Is that unamended? That is Bill No. 2558, Draft 1, the same thing we passed in Committee, which allows —might as well state it for the record, any owner allowed to submit a new use survey form to the Department of Finance, Real Property Tax Assessment Division by December 31st. Should the Director determine that a property was designated incorrectly, tax credit for the difference shall be applied to the owner's 2015 tax bill and all penalties and interest will be waived. So, this is retroactive to 2014 if it was deemed incorrect and were paid for with a credit in the following year, 2015. That is all. Councilmember Rapozo: Call for the question. Council Chair Furfaro: Okay, JoAnn, real quick, and then I am going to call for the question here. Councilmember Yukimura: Well, we did not pass this in Committee, the underlying part. Councilmember Hooser: Yes, we did. Councilmember Yukimura: Did that not come out as Draft 1? So, what are we amending with this... Councilmember Hooser: It is not an amendment. Councilmember Yukimura: Oh, it is just the main bill? Councilmember Hooser: Yes, it is not the document you are holding, the amendments. Councilmember Yukimura: Got it. Council Chair Furfaro: It is the main bill as Mr. Hooser summarized... Councilmember Yukimura: Unamended. Council Chair Furfaro: ...with the dates and extensions... COUNCIL MEETING 146 OCTOBER 22, 2014 Councilmember Yukimura: That makes sense. Council Chair Furfaro: ...letting the taxpayer have a credit if a credit is due. Councilmember Yukimura: Alright, thank you, I am ready to vote. Council Chair Furfaro: Okay, is everybody ready? Roll call vote, please. The motion for adoption of Bill No. 2558, 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 ADOPTION: Bynum, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL — 6, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: Chock TOTAL — 1, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: Six (6) ayes, one (1) excused. Councilmember Hooser: If I may, Chair. Council Chair Furfaro: Yes. Councilmember Hooser: Now we go back to the same amendment that Councilmember Bynum introduced initially, which incorporates what we just voted on. Councilmember Yukimura: We are on Bill No. 2560 now? Councilmember Hooser: Yes. Right. Councilmember Rapozo moved for adoption of Bill No. 2560 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Kagawa. Councilmember Hooser: As amended. Councilmember Rapozo: Now you can do the amendment. Councilmember Hooser: Okay, you want to do the amendment? Council Chair Furfaro: Now, Mr. Bynum... Councilmember Yukimura: There was a motion... Council Chair Furfaro: Hold on everybody. Mr. Hooser has the floor, but Mr. Hooser has to recognize Mr. Bynum for the amendment, please go ahead. Councilmember Hooser: Yes, we are on track. Councilmember Bynum moved to amend Bill No. 2560 as circulated as shown in the floor amendment, which is attached hereto and incorporated herein as Attachment 5, seconded by Councilmember Yukimura. COUNCIL MEETING 147 OCTOBER 22, 2014 Council Chair Furfaro: Discussion. Councilmember Hooser: Okay, this, just to be clear, this amendment clarifies the vote we just made, incorporates that into Bill No. 2560. Bill No. 2560, since I have the floor, established Commercialized Home Use which is essentially a blended rate on owner-occupied properties that has other uses attached to it. Since I continue to have the floor, I did not support this measure in Committee. I think I was a silent vote. I continue to believe it is not the right solution, but it is a better solution than we have now. Thank you. Council Chair Furfaro: I do want to note that at present, there is no rate attached to that. Everybody understands there is no rate attached to that blended piece? Further discussion. Mr. Kagawa. Councilmember Kagawa: Yes, thank you. I am a proponent for overall tax reform that really looks at everything and incorporates all aspects instead of passing amendments here and there. At this point, we are at a point where we are patching up areas where there is a need for a fix and this is one of them. I think for now, I find myself wanting to just stop the bleeding, I guess, and fix what is needed. If that property tax reform comes soon, I will also support that. Thank you, Chair. Council Chair Furfaro: Mr. Bynum. Councilmember Bynum: I just wanted to say, reflecting on what Steve Hunt said, that this was not a perfect solution, but it was a move forward, it really does resolve a lot of people's concerns and issues about use of their homes as Diane is nodding. So, I am in support of this. Council Chair Furfaro: JoAnn. Councilmember Yukimura: Yes, I too, will be supporting this. This is tax relief. It may not be perfect, but I think it will be good as an interim measure if we are going to do major reform, it still helps even if we do tweaking. So, either way, I think it is a good bill. Council Chair Furfaro: Okay, I am ready to vote on it. It is new gauze on the mummy. Do we have any further discussion on the amendment? Everybody is laughing. It is new gauze on the mummy. Okay, let us vote on the amendment first. The motion to amend Bill No. 2560 as circulated as shown in the floor amendment which is attached hereto and incorporated herein as Attachment 5, was then put and carried by the following vote: FOR AMENDMENT: Bynum, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 6*, AGAINST AMENDMENT: None TOTAL— 0, EXCUSED & NOT VOTING: Chock TOTAL— 1, RECUSED & NOT VOTING: None TOTAL— 0: (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Councilmember Hooser was noted as silent, but shall be recorded as an affirmative for the motion.) Ms. Fountain-Tanigawa: Six (6) ayes. COUNCIL MEETING 148 OCTOBER 22, 2014 Council Chair Furfaro: Thank you. Going to the main motion. The motion for adoption of Bill No. 2560 as amended to Bill No. 2560, 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 ADOPTION: Bynum, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 6*, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Chock TOTAL— 1, RECUSED & NOT VOTING: None TOTAL— 0. (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Councilmember Hooser was noted as silent, but shall be recorded as an affirmative for the motion.) Council Chair Furfaro: I voted aye but with reservations. So, we are 6:0, right? Ms. Fountain-Tanigawa: The next bill is Bill No. 2555, Draft 1. Bill No. 2555, Draft 1 — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2014-781., AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2014 THROUGH JUNE 30, 2015, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND (Real Property Tax Relief Funding — $1,927,000): Councilmember Bynum moved for adoption of Bill No. 2555, Draft 1 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Rapozo. Council Chair Furfaro: Discussion. I will go to JoAnn, then Mr. Kagawa, and then back to Mr. Bynum. Councilmember Yukimura: This bill gives substantial relief as an interim measure. I think it is a good bill, but it will take one million nine hundred thousand dollars ($1,900,000) from our reserves, and the point that Mr. Asing made is well taken, which is why I voted to remove the cap because that limited revenues and also why I voted for some pf the fee measures because again, we have to be responsible for the overall state of our budget. They were hard decisions, but the option, really, was to move toward bankruptcy, and that is not an option, in my mind. Even the proposed excise tax earmarked for the Kaua`i Bus is an effort to increase revenues, for a future service that is urgently needed. So, in all of these ways, I have been trying to balance our budget. I think we have to do it to offset things like this type of real property tax relief. Council Chair Furfaro: Further discussion? Mr. Bynum. Councilmember Bynum: I am in support of this bill. I just want to point out that the Council assured, and I think we all agreed with this during budget, that we maintain an adequate fund balance. The Mayor's proposal had we have accepted it, would have left our unrestricted fund balance at less than five hundred thousand dollars ($500,000). We would not have had the money to do this kind of relief, but the Council, I believe in its wisdom, did just what Mr. Asing was talking about. It would have been irresponsible to leave a five hundred thousand dollars ($500,000) surplus, but instead, we left about four million four hundred thousand dollars ($4,400,000). Now we have this one million nine hundred thousand dollars COUNCIL MEETING 149 OCTOBER 22, 2014 ($1,900,000) to use to provide immediate relief and I am in total support because I have been trying to put more money in the pockets of local taxpayers since 2008, and this does just that. So, it is the right thing to do, we are preserving an adequate fund balance. Council Chair Furfaro: Anyone else? Councilmember Kagawa: Thank you, Chair. When we removed the cap and we saw what happened, it did not come out the way the Administration had said it would. They said that there would have been some inequities, but they did not anticipate the case like the Haraguchis, like Mr. Palmeira, and like Ms. Lopez. They came in here and just really did not anticipate what the impact of removing that cap was. We have a relief here. It is not a percentage cap, it is a two hundred fifty dollar ($250) cap and rest assured, I believe that this has really significantly helped the Lopez family, Mr. Palmeira, and other in similar situations. We have not gotten calls from people saying "thank you" and that is because we do not deserve to be thanked. We should have known that there would have been some big impacts out there. We are not the Administration, they need to evaluate case-by-case what would happen to our local people that cannot afford it. It was the Administration that should have notified the Palmeira's and the Lopez family that they are going to get these big increases and this is what you need to do to avoid them. There are some remedies, but that did not happen. Until today, I still cannot figure out why the Administration just does not say that the reason why they did not want us to put the cap on was because in their minds, it was not a good idea. Instead, they tell the public "It is going to be a three million dollar ($3,000,000) fix" and then later, they say it is a six million dollar ($6,000,000) fix. I mean, everybody knows when we took the cap off, it was a one million two hundred thousand dollars ($1,200,000) offset. Now, this dollar cap is a one million nine hundred seventy thousand dollars ($1,970,000) offset. I mean, we are seven hundred thousand dollars ($700,000) worse than putting the cap back on. Yes, I could have amended the bill, but I did not have the votes to do it. Furthermore, Steve Hunt stood here and said that it could not be implemented; putting back the cap. That just really, I think, frustrates me. I mean, if that was the real reason, just say "That is the real reason." Do not make up a three million dollar ($3,000,000) figure or a six million dollar ($6,000,000) figure, I am done. Thank you, Chair. Council Chair Furfaro: A couple of things I just want to touch on. I hope everybody caught on to the fact that there were variables in our reserve that were touched by some of the things. We did not shift gears after we lost twenty-seven million one hundred thousand dollars ($27,100,000) in the TAT. We did not have enough time for that. We also found ourselves in a situation where people in bargaining units did not have raises for several years. Then, more importantly with the fact that the cap was in place and it gave substantial relief, that relief came from our fund balances. Where are we with fund balances after this bill? Mr. Asing had a question mark there. We will end up with the six million nine hundred thousand dollars ($6,900,000) made up of approximately three million nine hundred thousand dollars ($3,900,000) in our emergency reserve piece and the four million seven hundred thousand dollars ($4,700,000) will be reduced to three million eight hundred thousand dollars ($3,800,000) with this bill. The reserve will be there at six million nine hundred thousand dollars ($6,900,000) after we vote on this. May I call for...oh, Mr. Hooser. Councilmember Hooser: Yes, I apologize for not raising my hand sooner, Chair. I did want to make some brief remarks. I am clearly going to vote in support of this. It is the Council, I think, acting responsibly. There were consequences and we said, "How do we fix it?" The Administration made a proposal and we amended their proposal. So, people are going to get significant relief if they COUNCIL MEETING 150 OCTOBER 22, 2014 live in their home. It is a combination of removal of the cap and poor communication between the County and taxpayers, the change of use, and people not being aware of that impact. There are many moving parts with this. This is a temporary fix. There is no question about it. I support the mindset that says we need to take a long hard look at this and look at the big picture. I personally believe we need significant work, but I am open to hearing what people have to say in terms of further exemptions or whatever. I also want to say that what former Council Chair Asing brought up was a very real issue. There are reasons for it. You laid out many of those reasons, but I think it is also a reality that the problem is not solved simply with raising taxes and fees. It cannot be. The other reality is it is hard to cut, but I think we need to look at those cuts. Councilmember Chock and I have requested from the Administration for them to present to this Council, a review of their proposed budget changes in terms of how they propose to increase efficiencies or cut costs, these kind of things. It is important to remind all of us that we do not have to wait until the budget to save money. Just like we can have tax bills anytime, we can have budget bills the same way. If any Councilmember sees an area where we can save money, I think we should start turning our attention to that and frankly, I think it will be small numbers. It will not be a huge number because none of us are willing to engage in significant layoffs. I think we can look at ways to save money and we need to turn our attention to it. The formula is not just raising taxes and fees, but looking at efficiencies and cutting costs as well. Thank you, Chair, for allowing me to come in kind of late on this discussion. Thank you. Council Chair Furfaro: Well, you are going to Tahiti, right? Councilmember Hooser: I wish. Council Chair Furfaro: We have an opportunity. I will also plan to speak with Mr. Asing when I have more time just to revisit his particular pieces. I would like to again, say that this will leave us between the two (2) forms, six million nine hundred thousand dollars ($6,900,000), and let us do a roll call vote, please. The motion for adoption of Bill No. 2555, 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 ADOPTION: Bynum, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Chock TOTAL— 1, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Six (6) ayes. Council Chair Furfaro: Now, let me ask a question here. We have the two (2) attorneys here, neither of these items, when I am reviewed them, needs a super majority vote because none are dealing with the hiring of Special Counsel and so forth. Is it possible that four (4) of you, myself and three (3) others, can stay and we can go into Executive Session? Councilmember Yukimura: Without a dinner break? Do we not have to give our staff a dinner break? Council Chair Furfaro: You have to let me plead to them. COUNCIL MEETING 151 OCTOBER 22, 2014 Councilmember Rapozo: I will stay. Council Chair Furfaro: I will stay. Councilmember Yukimura: Yes, I have already missed my event. Councilmember Rapozo: So, have I. Councilmember Hooser: I missed. Saint Michael's we can all say aloha to all of the people there that are meeting tonight talking about domestic violence, that kind of thing. I can stay Chair. Council Chair Furfaro: Sure. Councilmember Hooser: There has been discussion over these last few weeks about whether being a Councilmember is a full-time job or not. We have been here for eleven hours or is it, ten and a half hours or something. Council Chair Furfaro: Ten and a half today. Councilmember Hooser: The staff has been here and there is still a whole lot of more work to do. So, just for the record, I applaud everyone here, but also the public, I think, needs to realize, that it takes a lot of work. There is a lot of issues and we made that commitment to do the work. So, I would be happy to stay. Council Chair Furfaro: Well, I think I answered the question once. I come to work every day. It is a full-time job. Mr. Bynum, do you have anything to add about staying for the... Councilmember Bynum: I cannot stay. Council Chair Furfaro: You cannot stay. Okay. Councilmember Kagawa: I will stay. Council Chair Furfaro: Okay, we got enough to go in now. Let us read the item. Ms. Fountain-Tanigawa: We have another bill. Bill No. 2553 — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2014-782, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2014 THROUGH JUNE 30, 2015, BY REVISING THE AMOUNTS ESTIMATED IN THE BOND FUND (Bond Fund— CIP, Fuel Tanks Hanalei Baseyard - $9,755) Council Chair Furfaro: Excuse me. Gentlemen, did you hear? We are going to go into Executive Session. I see you are putting your coats on because you want to look buffed out in there? Is that what...you are not leaving? Okay. I am sorry. Councilmember Yukimura moved for adoption of Bill No. 2553 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Rapozo. Council Chair Furfaro: We have a motion to approve with a second. COUNCIL MEETING 152 OCTOBER 22, 2014 Councilmember Rapozo: Call for the question. Council Chair Furfaro: May I do a roll call? The motion for adoption of Bill No. 2553 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 ADOPTION: Bynum, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Chock TOTAL— 1, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Seven (7) ayes. Six (6) ayes, excuse me. Council Chair Furfaro: Six (6) ayes. Ms. Fountain-Tanigawa: Did you want to just take the rest of the business? Councilmember Rapozo: Please. Councilmember Bynum: Please. Council Chair Furfaro: How much do we have? Ms. Fountain-Tanigawa: We just have Claims and Committee Reports. Council Chair Furfaro: Let's do it. Ms. Fountain-Tanigawa: Page 3, Claim. CLAIM: C 2014-274 Communication (10/08/2014) from the Deputy County Clerk, transmitting a claim filed against the County of Kaua`i by Karen Tangalin, for personal injury and loss of wages, pursuant to Section 23.06, Charter of the County of Kaua`i: Councilmember Yukimura moved to refer C 2014-274 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Councilmember Bynum, and carried by a vote of 6:0:1 (Councilmember Chock was excused). Council Chair Furfaro: Let the record show there was no one that wanted tp testify on this claim in the audience. Okay, very good. Ms. Fountain-Tanigawa: Committee Reports. COMMITTEE REPORTS: PLANNING COMMITTEE: A report (No. CR-PL 2014-09) submitted by the Planning Committee, recommending that the following be Received for the Record: COUNCIL MEETING 153 OCTOBER 22, 2014 "PL 2014-02 Communication (07/23/2014) from Councilmember Rapozo, requesting the presence of the Director of Planning to provide a briefing on the Planning Department's efforts to enforce the Transient Vacation Rental ("TVR") ordinance and deal with the various enforcement issues raised by the public and Council," Councilmember Kagawa moved for approval of the report, seconded by Councilmember Yukimura, and carried by a vote of 6:0:1 (Councilmember Chock was excused). FINANCE & ECONOMIC DEVELOPMENT (TOURISM / VISITOR INDUSTRY / SMALL BUSINESS DEVELOPMENT / SPORTS & RECREATION DEVELOPMENT/ OTHER ECONOMIC DEVELOPMENT AREAS) COMMITTEE: A report (No. CR-FED 2014-35) submitted by the Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, recommending that the following be Approved on second and final reading: "Bill No. 2553 A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2014-782, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2014 THROUGH JUNE 30, 2015, BY REVISING THE AMOUNTS ESTIMATED IN THE BOND FUND (Bond Fund — CIP, Fuel Tanks Hanalei Baseyard - $9,755)," A report (No. CR-FED 2014-36) submitted by the Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, recommending that the following be Approved on second and final reading: "Bill No. 2558, Draft 1 A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAXES (Retroactive Real Property Tax Measures and Extensions)," A report (No. CR-FED 2014-37) submitted by the Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, recommending that the following be Approved on second and final reading: "Bill No. 2560 A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, ARTICLE 6, SECTION 5A-6.4, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAXES (Commercialized Home Use Tax Classification)," Councilmember Kagawa moved for approval of the reports, seconded by Councilmember Yukimura, and carried by a vote of 6:0:1 (Councilmember Chock was excused). Council Chair Furfaro: Next item. Ms. Fountain-Tanigawa: Chair, we have your Resolution. • COUNCIL MEETING 154 • OCTOBER 22, 2014 Resolution No. 2014-48 — RESOLUTION PRESERVING THE CHARACTER OF HANALEI BAY BY RESTRICTING USE OF LARGE VESSELS WITHIN THE BAY Council Chair Furfaro: Actually, I would like to receive that item and start with a new resolution after looking at Hanauma Bay and the surf spot, Waimea Bay. Councilmember Kagawa moved to Receive Resolution No. 2014-48 for the Record, seconded by Councilmember Yukimura. Council Chair Furfaro: I would like to start from scratch. The motion to Receive Resolution No. 2014-48 for the Record was then put, and carried by the following vote: FOR RECEIPT: Bynum, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST RECEIPT: None TOTAL— 0, EXCUSED & NOT VOTING: Chock TOTAL— 1, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Six (6) ayes. Now we can move into Executive Session. The County Attorneys. Council Chair Furfaro: Can I have a County Attorney up, please? We only have two (2) more minutes on the tape to end the day. There being no objections, the rules were suspended. STEPHEN F. HALL, Deputy County Attorney: Good evening Council Chair and Councilmembers. Stephen Hall, Deputy County Attorney. I will be quick with our Executive Sessions. We have two (2) items. EXECUTIVE SESSION: ES-764 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Kaua`i County Charter Section 3.07(E), the Office of the County Attorney requests an Executive Session with the Council to provide a briefing regarding EEOC Charge Nos. 486-2013-00066, 486-2013-00345, 486-2013-00047, 486-2013-00343, 486-2013-00005, 486-2013-00342 concerning the County of Kaua`i, Kaua`i Police Department, to obtain settlement authority, and related matters. The 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-766 Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), and Kaua`i County Charter Section 3.07(E), the purpose of this Executive Session is to provide the Council with a briefing and request for authority to settle the claim against the County by Farmer's Insurance Hawaii, Inc., filed on June 24, 2014, 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. Councilmember Yukimura moved to convene in Executive Session for ES-764, and ES-766, seconded by Councilmember Rapozo. COUNCIL MEETING 155 OCTOBER 22, 2014 Council Chair Furfaro: I have a motion and a second. Any discussion? Mr. Hooser. Councilmember Hooser: Yes, just real quick. I understand the first item, ES-764 is a personnel issue with employees of the Police Department and the County. Mr. Hall: Yes. Councilmember Hooser: What is the nature of the Farmer's Insurance Hawaii, Inc.? Mr. Hall: The Farmer's Insurance Hawaii, Inc. slightly delves into personnel matters, but it is mostly an offer of settlement in an automobile accident involving a County employee. Councilmember Hooser: Okay. Thank you. Council Chair Furfaro: Satisfied with that? Yes? I have to do a roll call vote, please, real quick. The motion to convene in Executive Session for ES-764, and ES-766 was then put, and carried by the following vote: FOR EXECUTIVE SESSION: Bynum, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST EXECUTIVE SESSION: None TOTAL— 0, EXCUSED & NOT VOTING: Chock TOTAL— 1, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Six (6) ayes. Council Chair Furfaro: We have six (6) ayes, very good. The staff can call it a day, will call it a day now at 7:00 p.m., please. We are going to move right into —what did he just say? Councilmember Kagawa: Does B.C. have to stay? Council Chair Furfaro: No. We are done. ADJOURNMENT: Councilmember Rapozo moved to adjourn the October 22, 2014 Council Meeting, seconded by Councilmember Yukimura, and carried by a vote of 6:0:1 (Councilmember Chock was excused). There being no further business, the meeting was adjourned at 7:04 p.m. • • - submitted, • JAJ ' FO NTAIN-TANIGAWA Depu y County Clerk :aa Attachment 1 (October 22, 2014) FLOOR AMENDMENT NO. MR#1 Bill No. 2461, Draft 2, Relating To The Comprehensive Zoning Ordinance (Amendments to the Shoreline Setback Ordinance) Introduced by: MEL RAPOZO 1. Amend Section 2 of Bill No. 2461, Draft 1, by amending subsection (a) of Section 8-27.9 to read as follows: "Sec. 8-27.9 Variance application. (a) A written application for variance shall be made in a form prescribed by the Director and shall be filed with the Director. The application shall include plans, site plans, photographs, and any other plans, drawings, maps, or data determined by the Director to be necessary to evaluate the application. The application shall also include: (1) A non-refundable administrative application fee of three hundred dollars L$300.001. [There shall also be an administrative fee shall be seven thousand five hundred dollars ($7,500.00) if the application is made after the structure is partially or fully built without the required approvals.] (2) Certification from the owner or lessee of the lot which authorizes the application for variance; (3) An environmental assessment prepared in accordance with HRS Chapter 343, and the environmental impact statement rules and applicable guidelines of the State of Hawai`i; (4) The names, addresses, and the tax map key identification of owners of real property situated adjacent to and abutting the boundaries of the land on which the proposed structure and/or landscaping is to be located; (5) A site plan of the shoreline setback area, drawn to scale, showing: (A) Existing natural and man-made features and conditions within; (B) Existing natural and man-made features and conditions along properties immediately adjacent to the shoreline setback area and proposed improvements; (C) The certified shoreline and the shoreline setback line; (D) Contours at a minimum interval of two (2) feet unless waived by the director; and (E) Proposed development and improvements showing new conditions with a typical section (if a structure). (6) A copy of the certified shoreline survey map of the property; (7) Detailed justification of the proposed project, which addresses the purpose and intent of these rules and the criteria for approval of a variance; (8) Analysis and report of coastal erosion rates and coastal processes; and (9) Any other information required by the Director." (Material to be deleted is bracketed. New material is underscored.) V:\FA\2014-Term- Bill No. 2461, Draft 2, Relating to Shoreline Setbacks-MR-PM_lc.doc Attactrnent 2 (October 22, 2014) FLOOR AMENDMENT#3 Bill No. 2461, Draft 2, A Bill For An Ordinance To Amend Chapter 8, Kaua`i County Code 1987, As Amended, Relating To The Comprehensive Zoning Ordinance Introduced By: MASON K. CHOCK, SR. Amend Section 2 of Bill No. 2461, Draft 2, by amending Section 8-27.7 to read as follows: "Sec 8-27.7 Permitted structures within the shoreline setback area. (a) The following structures are permitted in the shoreline setback area. All structures and/or landscaping not specifically permitted in this section are prohibited without a variance. (1) Existing conforming and nonconforming structures/activities. (2) Structure or activity that received a shoreline variance or administrative approval prior to February 26, 2008. (3) A structure or activity that is necessary for, or ancillary to, continuation of agriculture or aquaculture existing in the shoreline setback area on June 16, 1989. (4) "Temporary structures" as defined in Section 8-27.2. To ensure that there will be no irreversible or long-term adverse effects, the Director shall require as a condition of a permit the restoration of the site to its original condition or better, and the Director may require a bond to ensure such restoration. (5) A structure that consists of maintenance, repair, reconstruction, and minor additions or alterations of legal boating, maritime, or water sports recreational facilities, which are publicly owned, and which result in no interference with natural beach processes; provided that permitted structures may be repaired, but shall not be enlarged within the shoreline setback area without a variance. (6) Repairs to a lawfully existing structure, including nonconforming structures, provided that: (A) The repairs do not enlarge, add to or expand the structure; increase the size or degree of non-conformity; or intensify the use of the structure or its impact on coastal processes; 1 (B) The repairs do not constitute a substantial improvement of the structure; and (C) The repairs are permitted by the Comprehensive Zoning Ordinance, Development Plans, building code, floodplain management regulations, special management area requirements under HRS Chapter 205A and any other applicable rule or law. (7) Beach nourishment or dune restoration projects approved by all applicable governmental agencies. (8) A structure approved by the Director as a minor structure. (9) Qualified demolition of existing structures. (10) Unmanned civil defense facilities installed for the primary purposes of: (i) warning the public of emergencies and disasters; or (ii) measuring and/or monitoring geological, meteorological and other events. (11) Scientific studies and surveys, including archaeological surveys. (12) Structures built by a governmental agency to address an emergency as declared by the Governor of the State of Hawaii, the Mayor of the County of Kauai or any other public official authorized by law to declare an emergency. (13) Structures relating to film productions that have received a County Revocable Film Permit. Structures undertaken for film productions must be removed within thirty (30) days following the completion of the film production. (14) Structures required for remedial and removal actions undertaken pursuant to Chapter 128D of the Hawaii Revised Statutes. (b) The following conditions shall apply to any new structure permitted in the shoreline setback area: (1) All new structures shall be constructed in accordance with the standards for development in Chapter 15, Article 1, Flood Plain Management, Kauai County Code 1987, as amended, relating to coastal high hazard districts and FEMA guidelines regarding 2 construction in areas mapped on Flood Insurance Rate Maps as flood hazard areas. (2) The applicant shall agree in writing that the applicant, its successors, and permitted assigns shall defend, indemnify, and hold the County of Kauai harmless from and against any and all loss, liability, claim or demand arising out of damages to said structures from any coastal natural hazard and coastal erosion. (3) The applicant shall agree in writing for itself, its successors and assigns that the construction of any erosion-control or shoreline hardening structure and/or landscaping shall not be allowed to protect the permitted structure during its life, with the exception of approved beach or dune nourishment fill activities, and landscape planting and irrigation located more than forty feet (40') from the shoreline. (4) Unless otherwise provided, all new structures and/or landscaping shall not (i) adversely affect beach processes, (ii) artificially fix the shoreline, (iii) interfere with public access or public views to and along the shoreline, (iv) impede the natural processes and/or movement of the shoreline and/or sand dunes, or (v) alter the grade of the shoreline setback area. (5) All new structures shall be consistent with the purposes of this article and HRS Chapter 205A, as amended[,], and shall be designed and located to minimize the alteration of natural landforms and existing public views to and along the shoreline. (6) The requirements of this Subsection (b) shall run with the land and shall be set forth in a unilateral agreement recorded by the applicant with the bureau of conveyances or land court, whichever is applicable, no later than thirty (30) days after the date of final shoreline approval of the structure under Section 8-27.8. A copy of the recorded unilateral agreement shall be filed with the Director and the County Engineer no later than forty-five (45) days after the date of the final shoreline determination and approval of the structure and the filing of such with the Director shall be a prerequisite to the issuance of any related building permit." (Material to be deleted is bracketed. New material is underscored.) V:\AMENDMENTS\2014\Bill No. 2461, Draft 2, Chock. consideration of scenic resources PM:dmc.doc 3 I Attachouent 3 (October 22, 2014) FLOOR AMENDMENT NO. CM#1 Bill No. 2461, Draft 2, Relating to Comprehensive Zoning Ordinance (Amendments to the Shoreline Setback Ordinance) Introduced by: MASON K. CHOCK, JR. Amend Section 2 of Bill No. 2461, Draft 2, by amending subsection (a) of Section 8-27.3 to read as follows: "(a) Except in either of the following two cases [or as permitted in Section 8-27.7], a shoreline setback determination shall be required for all structures and subdivisions proposed on lands covered by this Article. (1) [In cases where the proposed structure or subdivision satisfies the following three criteria: (A) In cases where the proposed structure or subdivision is located outside of the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map (FIRM) V or VE flood zones; (B) The proposed structure or subdivision is located at an elevation which is thirty (30) feet above mean sea level or greater; and (C) The applicant can demonstrate to the satisfaction of the Planning Director that the property is clearly adjacent to a rocky shoreline such that it will not affect or be affected by coastal erosion or hazards.] In cases where the structure is permitted under the provisions of Section 8-27.7. (2) In cases where the applicant can demonstrate to the satisfaction of the Planning Director that the applicant's proposed structure or subdivision will not affect beach processes, impact public beach access, or be affected by or contribute to coastal erosion or hazards, excluding natural disasters. Factors to be considered shall include, but not be limited to, proximity to the shoreline, topography, properties between the shoreline and applicant's property, elevation, and the history of coastal hazards in the area." (Material to be deleted is bracketed. New material is underscored.) V:\AMENDMENTS\2014\CM Chock Delete Rocky Shoreline exemptionl0-22 PM_dmc.doc Attachment 4 (October 22, 2014) FLOOR AMENDMENT NO. JY#la Bill No. 2461, Draft 2, Relating to the Comprehensive Zoning Ordinance (Amendments to the Shoreline Setback Ordinance) Introduced by: JOANN A. YUKIMURA Amend Section 2 of Bill No. 2461, Draft 2, by amending subsection (a) of Section 8-27.3 to read as follows: "(a) Except in either of the following two cases [or] and except as permitted in Section 8-27.7, a shoreline setback determination shall be required for all structures and subdivisions proposed on lands covered by this Article. (1) In cases where the proposed structure or subdivision satisfies the following [three] four criteria: (A) In cases where the proposed structure or subdivision is located outside of the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map (FIRM) V or VE flood zones; (B) The proposed structure or subdivision is located at an elevation which is thirty (30) feet above mean sea level or greater; [and] (C) The applicant can demonstrate to the satisfaction of the Planning Director that the property is clearly adjacent to a rocky shoreline and that it will not affect or be affected by coastal erosion or hazards[.] ; and (D) The shoreline setback shall be sixty (60) feet from the certified shoreline which has been established not more than twelve (12) months from the date of the application for the exception under this section. (2) In cases where the applicant can demonstrate to the satisfaction of the Planning Director that the applicant's proposed structure or subdivision will not affect beach processes, impact public beach access, or be affected by or contribute to coastal erosion or hazards, excluding natural disasters. Factors to be considered shall include, but not be limited to, proximity to the shoreline, topography, properties between the shoreline and applicant's property, elevation, and the history of coastal hazards in the area." (Material to be deleted is bracketed. New material is underscored.) V:\AMENDMENTS\2014\CM Yukimura#la rocky shoreline 60 feet PM_dmc.doc ri- Attachment 5 • (October 22, 2014) FLOOR AMENDMENT Bill No. 2560, Relating to Real Property Taxes (Commercialized Home Use Tax Classification) Introduced by: TIM BYNUM Amend SECTION 2 of Bill No. 2560, by amending subsection (a) of Section 5A-6.4 to read as follows: "(a) For purposes of tax rates, real property shall be classified into one (1) of the following general classes according to the property's actual use unless otherwise provided in this Chapter: (1) Residential. (2) Vacation rental. (3) Commercial. (4) Industrial. (5) Agricultural. (6) Conservation. (7) Hotel and Resort. (8) Homestead. (9) Residential Investor. (10) Commercialized Home Use. Vacant property shall be classified as zoned until actual use is established[, except for vacant property previously classified as apartment shall be classified as hotel and resort until actual use is established. If a property has multiple actual uses, it shall be classified as the use with the highest tax rate.] For the tax year 2014, any owner shall be allowed to submit a new "Use Survey Form" to the Department of Finance, Real Property Tax Assessment Division by December 31, 2014. Should the Director determine that a property was designated an incorrect tax rate classification for tax year 2014, a tax credit of the difference shall be applied to the owner's 2015 tax year bill and all penalties and interest for delinquent payment shall be waived." (Material to be deleted is bracketed. New material is underscored.) V:\AMENDMENTS\2014\Bill No 2560 Amendment 10 22 14 AB_dmc.doc