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HomeMy WebLinkAbout11-10-2009 Planning Committee Minutes MINUTE S PLANNING CONIIVIITTEE November 10, 2009 A meeting of the Planning Committee of the Council of the County of Kauai, State of Hawaii, was called to order by Councilmember Jay Furfaro, Chair, at the Historic County Building, Room 201, Lihu`e, Kauai, on Tuesday, November 10, 2009, at 9:39 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Bill "Kaipo" Asing, Ex-Officio Member Honorable Dickie Chang, Ex-Officio Member EXCUSED: Honorable Derek S. K. Kawakami JAY FURFARO: I would like to call to order the Planning Committee. Let the record please show that all members are present with the exception of Councilmember Kawakami who is in fact traveling on Council business. He is excused. May I have the first item please. Minutes of the October 28, 2009 Planning Committee Meeting. Mr. Furfaro: Thank you. May I get a motion to approve. DARYL KANESHIRO: So moved. TIM BYNUM: Seconded. Mr. Furfaro: Thank you very much, any discussion, any comments? If not all those in favor say "aye." Committee Members: Aye. Upon motion duly made by Councilmember Kaneshiro, seconded by Councilmember Bynum, and unanimously carried, the Minutes of the October 28, 2009 Planning Committee Meeting was approved. Mr. Furfaro: Thank you. We will then move to the next item. But before we do I... if there's anyone in the audience regarding the second item on today's agenda Bill No. 2298, I would just like to disclose that it is our intent to defer this at the request of the County Attorney's Office and the members recently got a circulated request. But could we now read PL 2009-2. The Committee proceeded on its agenda items, as shown in the following Committee report which is incorporated herein by reference: CR-PL 2009-13: on PL 2009-8 Communication (9/22/2009) from Jay Furfaro, Committee Chair, requesting that Dianne Zachary, President & CEO, of Kauai Planning & Action Alliance, brief the Committee on the top ten planning issues for Kauai. [This item was Received for the Record.) Mr. Furfaro: We're going to go onto the next agenda item please. Just want to re-state that at the Attorney request, we will have a deferral today but we will take public testimony. Could you read the item please. Bill No. 2298 A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE AND SINGLE-FAMILY TRANSIENT VACATION RENTALS [This item was deferred.] Mr. Furfaro: Thank you very much. I'm going to suspend the rules and ask if there's anyone in the audience that would like to speak. Please come right up, introduce yourself and I will give you six (6) minutes to speak. There being no objections, the rules were suspended. Barnett Finebloom: Thank you very much to be here, to testify before the Council on Bill 2298. My name is Barnett Finebloom, my wife Julie and I have property at 3529 `Anini Road. And we are here to support the adoption because we've been harmed by your Ordinance 864. Our properties on state designated Ag land (inaudible) July 4, we received a denial from the Planning Director, we had our appeal on Thursday last week before hearing officer Glenn Kusaka. My father, my wife's father were both Veterans; tomorrow we'll celebrate Veterans Day and they both served in the Navy. My wife's father was fortunate enough to be stationed at Pearl Harbor for three (3) years and our dream has been to build a retirement home on Kauai. Next month I will be eligible for Social Security. Twenty-five (25) years ago we purchased our lot in `Anini... you know you referred to in your Bill Ordinance 864 that there is supposed to be... to maintain the character integrity of communities within residential districts and to support residents in continuing to live and raise their families in these neighborhoods. When we bought our lot, it was only Mr. Fukuda down the road, east of the `Anini park. So there was no neighborhood, it was our lot, Mr. Fukuda house and maybe one (1) or two (2) lots on the mauka side of `Anini Road. Our lot as I understood the reason for a denial was that we built our house after June 4, 1976. The other issue is that there is under 205-6 we can get permits. When I had my conversation with the Planning Director, he was unable to confirm that anybody on this island had asl~ed for or received a permit under 205-6. When I went on-line and researched Hawaii Revised Statutes 205 which is referred to in Ordinance 864, 8.17.10(d), it requires your... the county ordinance requires the house be built by June 4, 1976. The ordinance that it cites it's pursuant to says that if you're on state designated Ag land that specific use of building a single family home is available on lots exsisting before June 4, 1976. I don't know if I was the first one to make you aware, I wrote a letter to Council on the 25th... a email to the Council on the 26th of July to inform you of that difference in the language. The issue is that... and then I received as you did also a hand delivered letter from Belles Graham Proudfoot Wilson & Chun from Lorna Nishimitsu that describes the language of Ordinance 8.17 10(d) as says although 2 the apparent intent was to conform the county's restrictions to allowable state uses, it should be noted that section 205 4.5 (b) HRS reads, construction of single family dwellings on lots existing before June 3, 1976; therefore, the touchstone should not be whether the dwelling was built before June 4th, but whether the lot existed before June 4, 1976. This is a housekeeping suggestion which in fairness to anyone who may fall into that situation should be made. I'm not aware of anybody but my wife and I, who happened to fall into that situation. You know the problem with this language is had the language of Ordinance 864 conform with the language of HRS 205 4.5 (b) as it is cited as pursuant to, then the Kauai Planning Director would have been required to approve our non-conforming use permit and not deny it. So because your ordinance doesn't use the language of the state, we've been harmed. And we've been harmed since April 1st when we've been not able to rent our property, our management property company informed us of this ordinance and we have not rented our property since April 1st. You know, we did go through the process of making our appeal to the Planning Department and our... you know you first had considered this motion on September 9th, our original hearing for the Planning Department was schedule... excuse me... you originally had a discussion on this from September 9th, our hearing before the Planning Department on our appeal was originally scheduled for September 8th, the day before. When the Planning Department requested us to give a stay of appeal, we did so because we had hope that you would consider ordinance 2298 and grant us relief from the harm we've been suffering, but you delayed it on September 9th. On October 14th, it was delayed again, and we had requested on around September 20th that we wanted to have our appeal because this continuing delay and now we're delayed another four (4) weeks, you tell me today. Our harm continues. You know we're not able to rent our property, we've been lawful. We've been lawful for twenty (20) years, we bought our land in 85 on a lot that existed in January 1971, have built our house in 1990 and have been lawful in our opinion ever since. Nobody has ever told us that we not... that we did anything that has not been lawful. We never received a complaint (inaudible) anybody regarding the use of our property and I'm here to ask you to help... I mean does it... does right have nothing to do with anything. Is the Planning Department, the Planning Director has to follow the law as written, the County Attorney said we have to come to you as the Council to get you to change the law. All we're asking you to do is change the law to the language of the state law you're citing that this law is pursuant to. Thank you very much. Mr. Furfaro: Let me see if there's any questions for you. I have one prior to your rental contract with the management company, was your rental contract with `Anini Vacation Rentals? Mr. Finebloom: No it was not. Mr. Furfaro: It was not. Mr. Finebloom: It was with Hanalei North Shore Properties for over twenty-five (25) years. I believe they've as a result of this ordinance had sold... have now just sold their management. Mr. Furfaro: I... (inaudible) Mr. Finebloom: I believe they were listed as one of the top (inaudible) businesses in the entire State of Hawaii. 3 Mr. Furfaro: Well Mimzy folks do need to be congratulated on that but my question was solely directed at the `Anini Vacation... Mr. Finebloom: They were not my property management... Mr. Furfaro: They're not managing your property. Mr. Finebloom: And I did not hire Lorna Nishimitsu at all, she was never... I am not her client and I did not request her writing this letter. Mr. Furfaro: So did I understand you correctly that your appeal that went before the Planning Commission or the hearing officer was denied. Mr. Finebloom: No. My... our appeal before the Planning Commission was held last Thursday. He is supposed to issue a ruling... Mr. Furfaro: Okay. Mr. Finebloom: shortly to the Planning Commission. Mr. Furfaro: So you have not gotten that ruling as of yet? Mr. Finebloom: As of yet, we have not. Mr. Furfaro: Okay. Thank you. Now let me ask you one more question. Do you know prior to 1971 if your home site was in fact a relocated kuleana as there are many in `Anini that were relocated... Mr. Finebloom: Right. No we were before that. Okay so our property as I tried to mentioned was that there was the Fukuda lot, our lot, this was before we allowed Stallone to develop the makai side of `Anini and create those eight (8) lots and it was before we created the relocation of the kuleana on our side of the road. Mr. Furfaro: Okay let me pose the question again. I was not privy to what we did allow and did not allow, let me ask you that again, was your lot a relocated kuleana? Mr. Finebloom: No it was not. Mr. Furfaro: It was not. Okay thank you. Are there anymore questions here? Mr. Bynum. Mr. Bynum: I just want to say that I'm aware of your issue and the testimony from Ms. Nishu... yeah from Lorna... and you know the Council was asked by this community to regulate vacation rentals and in the process of doing that we have created in my opinion a number of legal issues that have yet to be resolved. And I think that is unfortunate and you know but this ordinance that's before us is being delayed to try to get guidance to sort through this myriad of legal issues that the ordinance has created and I think that we are all anxious to do that and in the meantime I think that there are... your situation is unfortunate as a number of you know different individuals who are in my opinion you know acted in good faith. Acted in a way that they were advised was (inaudible) and lawful as you've eloquently put here today and you know I know this is painful for a lot of 4 people and I think this Council is going to work diligently, we can't undo some harm that's already been done and I think you addressed that but we can try to move forward in a lawful and legal manner on our own and we're seeking the guidance of our County Attorney's Office that is working very hard on this issue. Mr. Finebloom: And I appreciate that, the only point I want to make is that this one small point... Mr. Furfaro: Excuse me. Excuse me. After your six (6) minutes the Councilmember has to pose a question to you, rather than extend your time, so if you like to pose a question. Mr. Bynum: I just wanted to respond to your... you know... unfortunately there are a number of different circumstances that have been brought up by the way the ordinance was written and you know we became aware of the 205 about lots existing as opposed to the way the ordinance was written, houses built. And I assume that's one of the issues our County Attorney is going to advise us on so I just wanted to make that comment. Mr. Finebloom: Thank you. I appreciate the opportunity to speak before the Council and let you know how your laws affect people. Thank you. Mr. Furfaro: I have something for you as well. So I wanted to let you know the reason I asked about your... and see this is another piece that's not very clear for me, if your lot was a lot by design, by a subdivision, as a residential piece. Mr. Finebloom: No. As I understand it, there was you know... I did research but at the time we bought the lot to see if we could construct what we intended which was a single family vacation rental. This was a lot that I bought in 1985 from Patrick Harrington that existed, it was on Ag land but it existed as you know... you know it's not even two thirds (2/3) of a acre lot, and I purchased it from Patrick Harrington who I believed purchased from Princeville Development Corporation, so it was not a kuleana relocation. Mr. Furfaro: No, no, we have to be very careful here because many of the lots along Princeville were relocated kuleanas. Mr. Finebloom: Yeah... I don't know beyond that... Mr. Furfaro: That's what I kind of like query. Many of those were interior lots beyond the wetlands. Mr. Finebloom: Well our lot was fronting on `Anini Road. Mr. Furfaro: Now it is. Mr. Finebloom: It always has been. It was not a relocation. Mr. Furfaro: Okay good. That answers my question. Are there any more questions? 5 BILL "KAIPO"ASING: I have one. Do you have any idea when your appeal question might be answered? Mr. Finebloom: Mr. Kusaka, Glenn Kusaka from Maui was hired I understand by the Planning Commission to be the hearing officer. He's said he would make his... he's promised to make a written ruling I think this Friday. Mr. Asing: This Friday? Mr. Finebloom: Well he's only making a recommendation to the Planning Commission. Mr. Asing: Yes. Mr. Finebloom: But the hearing was last Thursday. Mr. Furfaro: So the recommendation you expect to be in to the Planning Commission is by this Friday? Mr. Finebloom: Hopefully. Mr. Furfaro: That's your understanding? Mr. Asing: Thank you. Mr. Furfaro: Did you have any more? Mr. Asing: No. Mr. Furfaro: Any? Lani, please go ahead. LANI KAWAHARA: Thank you. Hi Mr. Finebloom, yeah? Mr. Finebloom: Yes. Ms. Kawahara: Are you doing any Ag on that Ag lot right now? Mr. Finebloom: No I'm not a farmer, I never have been a farmer. Ms. Kawahara: Okay. Thank you. Mr. Furfaro: Thank you very much for your testimony, thank you very much for being here today and waiting for our other presentation, thank you. Dr. Clendennin did you have anything? I'm going to call the meeting back to order, is there any further discussion on this bill. I want to ask that question because once I ask for a deferral there's no additional discussion. Go right ahead Mr. Bynum. 6 Mr. Bynum: Thank you Mr. Chair and I'd certainly will support a deferral of this bill today for the reasons that are obvious, we are in receipt of some guidance or the beginning of guidance from the County Attorney's Office but I did want to say that you know we talked a lot about the General Plan today, I become a fan of that General Plan and it... this is just another area where it specifically asked the County of Kauai to regulate vacation rentals and during the process of creating that bill there were eloquent statements from our community, from our Council Chair in particular about the problem statement and I agree almost entirely with the problem statement that going... going down this route of having vacation rentals outside of the VDA was an issue that our community identified, the problems were apparent, particularly on the North Shore and I will never forget the meetings we had here when our Council Chair graphically illustrated the impact of the community that this unregulated activity caused and that's why the citizens asked us to regulate it. And I always been a proponent of regulating vacation rentals along the lines that the bill did so, I just want to point out to the members of the community that this Council did at a certain point in time said from this point forward no new vacation rentals will be created outside the visitor designation area and I agree with that and I'm glad we did that, I wish we would have done it sooner than we did as a community. What we are engaged now is what we do with the units that were created prior to us putting those regulations into effect and you know my concern all along was that when government says from this point forward new rules, I think we're on pretty solid ground. But when we say... when we try to go backwards and try to undo what's already been done, then I think we're on very shaky ground and what we do may be illegal, it may be in many instances I believe is unfair and I know it will be very difficult and painful and we are going through that difficult and painful period right now of trying to come to justice and resolve those issues for the vacation rental units that were created prior to our regulation. But you know I don't want our community to lose sight of that we did draw that line, we did say no new vacation rentals and we're just squabbling about what had already occurred so thank you for allowing me to make that comment before we defer. Mr. Furfaro: Councilwoman Kawahara, did you have anything that you wanted to add? Ms. Kawahara: No that was a good overall. Mr. Furfaro: If not I'm going to ask to move to defer. Mr. Bynum: So moved. Ms. Kawahara: Seconded. Mr. Furfaro: All those in favor say "aye." Committee Members: Aye. Upon motion duly made by Councilmember Bynum, and seconded by Councilmember Kawahara, and unanimously carried, Bill No. 2298 was deferred. Mr. Furfaro: Thank you. This concludes today's Committee Meeting. 7 Thex•e being no further business, the meeting was adjourned at 12:21 p.m. Respectfully submitted, GWI ~;~,ti'~"Ylil ~~'1'1 Cl ~ Darrellyne M. Simao Council Services Assistant I APPROVED at the Committee Meeting held on November 25, 2009: JAY F Chair, Planning 8