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09-16-2009 Planning Committee Minutes
MINUTE S PLANNING CONIlVIITTEE September 16, 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 Wednesday, September 16, 2009, at 9:10 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 Derek S. K. Kawakami Honorable Bill "Kaipo" Asing, Ex-Officio Member Honorable Dickie Chang, Ex-Officio Member Minutes of the August 12, 2009 Planning Committee Meeting. Upon motion duly made by Councilmember Kawahara, seconded by Councilmember Kaneshiro, and unanimously carried, the Minutes of the August 12, 2009 Planning Committee Meeting was approved. Minutes of the August 26, 2009 Planning Committee Meeting. Upon motion duly made by Councilmember Bynum, seconded by Councilmember Kawahara, and unanimously carried, the Minutes of the August 26, 2009 Planning Committee Meeting was approved. The Committee proceeded on its agenda items as follows and as shown in the following Committee report which is incorporated herein by reference: Bill No. 2317, Draft 2 A BILL FOR AN ORDINANCE TO ESTABLISH A NEW ARTICLE 28, CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO SMALL WIND ENERGY CONVERSION SYSTEMS [This item was deferred.] JAY FURFARO, Planning Committee Chair: As the Committee Chair, I do want to again repeat my suggestion and that suggestion is to defer this until August 28th, obviously I did not have a seconded nor the support to defer from August 28th... to October 28th. I do want to point out again my thinking of this, we have a strategic Energy Sustainability Plan being discussed with a (inaudible) Committee and a consultant. This County has a very, very important need to have a strategic plan on energy. I think it is also important for me to point out, without a plan, this County has very limited resources. Whether we now attempt to do these pieces independently, I believe is not favorable to us, especially with our limited resources. Now that is my opinion. And my opinion comes from my business thinking that a plan is very important so that we can implement the appropriate amount of resources. And we've seen some preliminary numbers that indicate other technology such as photovoltaic, solar, photovoltaic steam has many, many benefits as well to our overall energy plan. But I wanted to restate my thinking that I'm hoping for a deferral. Now on that note I will open this discussion up to other members. The date I would be able put this back... oh okay. I was correct on my assumption the 28th um. Mr. Bynum. TIM BYNUM: I appreciate your sentiments Committee Chair, I support this bill as it's written right now. I... you know we've discussed these issues and I... you know not wanting to repeat it over and over again but you know small wind energy is part of a mix that we need to do for alternative energy. It's the stated policy of the State of Hawaii to encourage these systems, they give tax credits, they give financial incentives for these systems to be placed. It's this policy of this Federal Government to move towards renewable and to do decentralization of distribution and (inaudible) of that to allow people to do wind energy, photovoltaic, other types of things so this is the policy of the Federal Government, the State Government and I believe this bill is an appropriate bill that gives a message that the County of Kauai also is committed to allowing citizens to generate alternative energy to reduce our dependence on foreign fuels and fossil fuels, reduce our carbon (inaudible) and all of the reasons that I could go on and on... You know the people who are doing our Energy Sustainability Plan have indicated in writing that there's no inconsistency with moving on this bill. In fact Mr. Kaya who did a presentation that was very well received here last year spoke eloquently about the sense of urgency we need to have about this issue and that one of the biggest obstacles is government getting in the way. This is the opportunity for government to get out of the way. I believe that the bill addresses concerns in the community about visual impacts and noise in the way that strikes a real balance. Many people believe that the bill is too conservative and I want to remind people that the bill not only allows the additional height limit of 10 feet in residential and 20 feet on larger lots, but it also restricts the placement on wind systems by requiring that tower mounted systems only occur on larger lots and that the setback from the property line be 1.1 times, those are restrictions that are more restricted than the current status quo. So I'm prepared to vote on this bill today, I'm supporting it in its current state, thank you. Mr. Furfaro: Any members? Mr. Chairman. BILL KAIPO ASING: I am not a member of the Committee so if you want to recognize other Committee members prior to my making any comments, I'd be open to that. Mr. Furfaro: Okay. Let me see are there other Committee members that would want to speak before I recognize Mr. Asing? LANI KAWAHAR.A: I want to recognize Councilmember Furfaro and his concern about the plan that's coming up that has been funded. My question is one other... Is whether or not do you know something that would make in the report that would make this our ordinance harmful or would put the county in some kind of bad situation? Mr. Furfaro: Okay. Thank you very much for that concern. You know I think although our colleague Mr. Bynum talked about moving towards renewables and reducing the carbon footprint and so forth, nowhere in any of my testimonies have I said, "I'm not for that." 2 Ms. Kawahara: Yes. Mr. Furfaro: What I am for and I'm going to be very clear is a strategic plan on energy for our county. I thought the recent response that we got from KIUC was a very weak one. In fact the response basically said they support that component. But there's no plan. In football we know that in Waianae, you got your back to a certain place you punt. That was a punt. I want something that we can adopt that says "it's going to be here whether I'm reelected next time or not, it's a strategic plan dealing with energy," that's what I'm saying. The second part I'm sharing with all of you is we have not even begun to see the weakness in the county's financial strength until next year. We still have several pieces that need to in the plan that says "what is the county as a large consumer going to do?" Currently KIUC has the capability of generating I think 117... Ms. Kawahara: Mega watts. Mr. Furfaro: Is that correct? 117, do you know sir? (Inaudible): Not at the top of my head right now. Mr. Furfaro: Okay and we currently use about 76 but those are resources that have to be converted as well. The fact of the matter that as I'm saying we're going to have limited resources if the large consumers such as the hotels that are moving to photovoltaic steam, they know they can store steam. They can store steam from 3 to 5 hours after the sun goes down. Therefore, for the peak demands of use, they can still provide water and steam for food and beverage activities in their restaurants at night for hot water for bathing, when the demand is there, until after 10 when the demand starts to slow down. Those are the types of things the County should be looking at as well and we need to hear and please forgive me, I didn't know any other way other to describe it until we have a plan, we're going to just keep punting. We're going to try a sweep off the tackle, we're going to try a pass. We need to have a game plan and you know this goes back to my understanding of what I think is very important in business that does apply to government here. We need to adopt a plan. Am I not for small wind energy? Never said that. Am I not for large wind farms? Never said that. But I think we need a plan that when I'm no longer on the Council because of not being able to retrieve a seat, there's a plan in place that we can follow that has the continuity that we need in the overall energy crisis in this Nation and I hope you know I've made myself clear about the strategic thinking we need and the allocation of resources. With that plan we can now go to KIUC and say "how can we mutually work together on something that works for our total island." That's where I'm coming from, I hope I've answered your question. Ms. Kawahara: Yes. Thank you. Mr. Furfaro: Mr. Kawakami. DEREK KAWAKAMI: Thank you Mr. Chair. And I think you know the traditional way that I was taught on how to deal with this energy situation was always to address efficiency and conservation first and I have a 3 feeling that this Energy Sustainability Plan is going to address a lot of those types of issues as far as efficiency and conservation. You know I don't think anything... I mean I'm pretty positive on the testimony from Mr. Kaya, but there's nothing in the plan that's going to say that small wind energy conversion systems are going to be detrimental to achieving energy sustainability, moving forward. But at the same time you know I just want to inform the public because there may have been a miscommunication that a deferral doesn't mean that the work stops. I mean I have never seen a deferral happen and everybody just drop everything and forget about it. I mean it moves forward, whether it's a deferral or whether it gets called back to I mean whether we pass it on today but the work never stops and so I just want the public to know that when we deferring items, it doesn't mean that we're stalling it out but we got to do our due diligence, I mean there's 2 sides to this bill that have been clearly presented and it's from the environmentalist group. I mean not even that group can agree whether this is appropriate or not. Now I'm all for small wind energy conversion systems but there is even testimony from contractors that said, "even this height allowance to go above the height ordinance still wouldn't be enough to efficiently capture all of the wind opportunity that is out there." So you know there still needs to be some work done to it. I have an amendment to this bill that I'm going to ask for a short recess for but basically the amendment is to address some of KIUC's liability concerns with bird strikes. I mean just so people know, I mean I don't know where the thought of a deferral means that we stop our work but it doesn't, we move forward and it gives us actually more time to do more meaningful work towards this bill, so Mr. Chair I do have an amendment, I would like to ask after I guess after everybody has made some comments, that we could take a short recess so that I could get it together and introduce it properly. Mr. Furfaro: I will honor that request at the appropriate time, I think (inaudible) having patience is extremely important. Ms. Kawahara: I wanted to say that I support this plan and I understand... I understand the chairman's concerns about the strategy and about the plan that's coming up, however I really... I don't want to be in... I don't want to be having to say that we're going to continue the way we're going. I believe this bill acknowledges that there is an issue with energy and that we are supporting renewable energy which all of us do. I believe stating a support... I'm just stating my support for it because we're talking about KIUC and we're talking about efficiencies. For my opinion efficiencies and KIUC are not here on the table. The efficiencies and KIUC are not here on the table, it's up to the public and the people that want to use wind energy to be able to utilize it. I don't want to be the one that's going to be making it harder for them to utilize a legitimate renewable energy. Holding it off for... for the plan, I can see the chair of this committee's concern. From what I heard and what I've read, I am confident that the strategy plan will have wind energy in it that us doing this now does not preclude from doing anything more to follow the strategic plan. It's a step forward that we can make now, it's something that the public has asked for and that actually they're already doing so to... I want to recognize that the public is asking for this, I'm not here to tell that whether or not it's efficient, whether or not KIUC is going to figure out what they need to do, I am here to say that if they want this renewable energy and we can write an ordinance that protects the public, protects the environment and gives us something the power to use 4 that, I fully support that and again I don't want... I want to make it easier for the people to make a decision, what type of renewable if they want to do that, personally I think solar is much more efficient but people want to use all different kinds, they can use a combination and this bill allows them to do that in a reasonable manner that would be authorized by the county so I do plan to support this bill and I hope we vote on it today. I also wanted to mention that I have a amendment too so if we go into the same recess at the same time, can we do that? Mr. Furfaro: Certainly and it certainly sounds like perhaps I do not have the time again or the votes to get a deferral. I think you know the fact that citizens don't want to hear the problem with HIUC and so forth, I mean that's a good one Lani, but that's part of the problem. They're not here and part of the problem is we don't have a plan to say this is our strategic thinking, where can we collaborate? And there's many moving parts with that for example, you know what are we going to do if we have some commercial activity that deals with wind, or solar, or photovoltaic and we can't... they acquire land and we can't leave it tax revenue neutral, we could be pricing them out of even the investment portion and that's no different than the portion you're saying is, you don't want to hold up citizens who say "well I can invest in solar because of the return of investment is less" and then there's the other group that you know they want to invest in wind because you know they want to be more independent but you know it takes financial resources for different individuals so I do recognize your comments. Ms. Kawahara: Okay. Thank you. Mr. Furfaro: Let me go to Mr. Kaneshiro. DARYL KANESHIRO: Thank you Mr. Chair and I thank you for giving the members the opportunity to speak on this before any motion is thrown on the floor. You know if that's the will of the committee, I'm ready to move ahead and do that and defer until we have the plan. My thoughts was that you know because of the many testimonies we've had lately, my focus is mostly with agriculture and of course with the industry side and you know I was even coming up with a proposal that you know let's just amend this bill and just focus on having this take place on agriculture lands and industrial areas but being that this committee you know may choose to look at the Energy Sustainability Plan first and from that garner some ideas and I would like to see it also in the residential districts if that could happen, but as I said you know we had many debates on this and I think it's really important that we do have this wind energy in place and more so especially for when you come to agriculture lands, we are finding today that we don't have enough water resources. The Department of Water cannot and a lot of times give us enough water or move ahead to be able for us to have sustainable agriculture, with wind energy we can drill our wells, we can use these to be able to have sustainable agriculture. So for me it's just as important for residential, saving energy and so forth but I think we need to look broader and open our minds up and look what are we really doing for agriculture, what are we really doing for the industry also so you know let's look at that and wait for the plan to come through, I can support that and at the same time if it's not going to work I mean I would like to move ahead so at least we can get something on the table to help the agriculture or the industrial areas so that's my feeling and you know I will go with the committee as such but like I 5 said it's just as important if we could get it in the residential areas so with that. Mr. Furfaro: Mr. Kaneshiro, I'm kind of sensing that you're indicating that if we made a date specific to October 28~ for a potential deferral, we could work on these amendments on interest you have in the Ag areas and so forth during this period of the deferral but you're saying, "we need to act on that when we get to that scheduled date?" Mr. Kaneshiro: Yes. I think it's important that we act on it because by that time we should receive our Energy Sustainability Plan. Mr. Furfaro: Or at least the first draft. Mr. Kaneshiro: And that's what I'm seeing is that what we're trying to do is defer this to we get that and once we get the Energy Sustainability Plan, at least move on some segments of this bill and then if there is still debates you know in certain areas, we can always work on it but I think its still important for us that we look at it overall you know the big picture and like I said you know I know how important it is for residential areas too but if you look at it right now, I mean the agriculture areas are in dire need today and I don't think we've heard too many you know objections of having wind energy in agriculture areas especially for this height you know this additional height limit of 20 feet. I've heard it a lot in the residential and a little in the industrial but I haven't heard much in the agriculture areas so I just wanted to put that out on the floor and I thank you for that Mr. Chair. Mr. Furfaro: Thank you. Mr. Bynum, I'm going to recognize you and then go to Mr. Asing as anon-committee member. Mr. Bynum: I appreciate the leadership that Councilmember Furfaro has offered in the whole energy field, he bought about the... at least one of 2 members.... Mr. Furfaro: I was the co-author of the Sustainability... Mr. Bynum: (inaudible) with the leadership of the Sustainability Plan which we're all looking forward to which had unanimous support you know Mr. Furfaro brings up other important energy issues because he's someone that does his homework and he knows that there is concerns about connectivity but many of these issues are things that we need to discuss but are in my opinion unrelated to this bill. You know this... it's true that small wind energy is not the solution to our energy problems, the solution is doing a lot of everything. We need all of the little pieces... you know so we can make a very strong argument that small wind is not going to be a large contributor but it's going to be a contributor and if we take 4, 5 small contributors, it adds up to something significant, it's not this or that, it's both. And you know Mr. Kawakami talks about energy efficiency, we're working on that in terms of our building code and I think that will come before the Council soon and that is the biggest bang for the buck in the energy field no question, and I totally support that sentiment but that doesn't mean we don't do the other things as well. We are now more than 90% dependent on fossil fuels for our energy and we have a stated goal in a short 6 period of time to get to 50% that's not going to happen unless we move with the sense of urgency on all of these issues. This bill is ready to go. I think some of the amendments that we're going to discuss today, if I understand them are probably appropriate but I would... but I'll accept the judgment of the committee. Just to say something about deferrals, I don't want deferrals to have a bad name because we're going to be deferring things regularly to make sure we get it right and that's appropriate. But the community also knows that sometimes deferrals are open ended. This binder right here that we bring in for Committee's is our Committee binder. I welcome anybody to look at this and look at the bills that are deferred since 1996, since 2002, so it's also true that sometimes deferral is a tactic to get something off the public agenda, and I don't think that's happening in this case, I believe that Councilmembers... Mr. Furfaro: Mr. Bynum, I do want to say though, you know we're talking about deferral of this piece and not the history of deferrals but I want to apologize for interfering with your document but you know 2 weeks ago we deferred the plastic bag bill and it was reported that there were 4 no's and 2 yes's, I had to call the radio station who was reading the article and say, "no they didn't vote on the plastic bags, we voted on the deferral and the deferral, unless date specific, automatically comes back." I just wanted to make sure I was clear with the public in my Committee. Mr. Bynum: May I continue? Mr. Furfaro: Yes you may and I did apologize in advance and I wanted to make sure that we get that clear because when we go back to 1996 and I was busy surfing Hanalei at 12 foot, you know I don't know what they deferred but the reality in this Committee, we deferred and it comes back in 2 weeks or date specific. Mr. Bynum: Right and I was just about to say I don't think that you know any request for a deferral here is to do it indefinitely. Mr. Furfaro: Thank you. Mr. Bynum: But I made my position, I mean I could make a whole bunch of other points but I think they've been made by members of the public and others. You know we need to get serious about alternative energy and addressing it at the County level. Right now in this instance the county is the obstacle you know. The State and the Feds have made their position clear and in the testimony we've received from experts from the mainland and from Hawaii, they've begged us to basically not be an obstacle to doing what is now National and State policy, well thank you. Mr. Furfaro: Mr. Kawakami. Mr. Kawakami: Thank you Mr. Chair. You know I just want to address something. You know when we talk about the Federal Government and the State Government making their intentions that we need to move towards this direction, I just like to say you know at the same time they tend to speak out of both sides of their mouth and when I say that you know at the Federal side yeah they come up with a lot of word play to say, "we're moving in this direction" but have you loosened up any environmental 7 restrictions to permit and allow these types of renewable energy sources? My answer would be "no." We still have a huge issue with Shearwaters, on the State side they say we have an energy sustainability goal that we're supposed to hit, at the same time we have a PUC who almost restricts the negotiation from renewable power contractors with the utility at you know avoided costs. So have they loosened up any of their restrictions to allow this to move easier and my answer would be so far I haven't seen any. So at the same time we bring up you know the Federal Government and the State saying we're going to move towards these directions but nothing has loosened up to ease these kinds of process. I mean so if I'm wrong, let's get the discussion going so. Ms. Kawahara: (inaudible) Mr. Furfaro: Yes? BC: (can't hear you) Ms. Kawahara: Or a point of yeah (inaudible). I believe the State has indicated along with the county that they are moving towards that and I think the biggest recognition of that would be the solar energy bill that passed. The first one ever in the Nation for... that was introduced by Senator Hooser, it was introduced and it was passed and it became the first one in the Nation that requires that new homes be used solar... solar energy for water heating. So yes it does take a move and that's what we are doing, we're legislating and we're making moves I believe so I don't want to disagree with you but I do think that that should be a big recognition that that was a big step for the State in recognizing that we have a abundant source of renewable energy and recognizing it and capturing it. Mr. Furfaro: Okay Mr. Kawakami, I'll give you a moment to respond to that, if you like. Mr. Kawakami: No. Thank you and I have nothing to... I mean that is a true statement but what I'm talking about is the PUC has a mission and that mission is to protect the consumer and that mission means that they will look for the lowest cost option. Now the problem with that is say a wind contractor comes in yeah, it is almost impossible to compete at the lowest cost possible with the other options that are out there, and so has the PUC changed its mission to allow you know a renewable contractor to come in and negotiate and actually make money? I mean you know we keep on blaming KIUC. I think in this case we're kind of blaming ourselves because you know we're just not going to pass this S.W.E.C.S. bill you know at the drop of a hat but you know there are obstacles and there are real obstacles and that is just what I was trying to point out. Thank you. Mr. Furfaro: I took that in the spirit and I do want to say that you know that only reinforces why this county needs a plan. We need a plan that we can go to PUC, other political subdivisions and say, "we need the collaboration." I also want to say you know when I vote for writing a county check for $200,000 for sustainability Plan, I'm serious. That's a big investment. Mr. Asing, we can recognize you now. Mr. Asing: Yes I wanted Councilmembers to address the concerns raised by Councilmember Furfaro. I think they're appropriate you 8 know I'm looking at the funding of the $200,000 and you know let me just read it, of the General Fund CIP and appropriated to a new item entitled Energy Sustainability Study and Plans, Study and Plans. We have something that is in the works that we paid $200,000 for, why can't we wait until October the 28th? What is so difficult with that to have a plan that at least you could look at? What is the big rush, now? We need to do it now. I think it's a reasonable request that has been made by the Chair and I would hope that the Committee would take that into consideration. I would have a difficult time you know supporting a move to just do it now without the plan. I think we're talking about you know a very short time as the Chair has indicated October the 28th, it's a reasonable request let me put it that way so I am hoping that the Committee can support the Planning Chair to you know defer this item until that time but I also recognize Councilmember Kaneshiro's request also that do some work and then we can defer until the 28th so I can understand that and I can agree to that also, so with that thank you. Mr. Furfaro: Thank you Mr. Chair. I'm going to move to take some public testimony now, after the public testimony if we find ourselves wanting to move on the suggestion I made for the date specific deferral I'd like to hear from members before we actually make a motion or if we decide to recess because members want to work on their amendments, we can make that after public testimony so on that note, I'm going to suspend the rules I believe Pat Gegen, you wanted to speak on this item the rules are suspended please come up. There being no objections, the rules were suspended. PAT GEGEN: Thank you Committee Chair Furfaro. Council, thank you for this opportunity to testify again. I would just like to say I want to thank you all. I think this morning's conversation that has occurred up here has been one of the most enlightening comments. Good to see these issues brought out in the public and being talked about. Councilmember Kaneshiro, I want to thank you for supporting the agriculture as well as saying that it is necessary for some of the urban areas, I appreciate that. Councilmember Kawakami, I agree the PUC does tie KIUC's hands in many ways, it does make it difficult which also reiterates my concern that we cannot stop a bill like that that empowers the people to go forward and try to get those renewable. KIUC was recently recognized as being one of the best providers of interconnection agreements in the United States as far as a real cooperative. I think that's partially because our frustration as community members, as KIUC members at not having our utility be able to go into alternative generations. So we want to step up. Right now the passage of this bill I believe is very important, okay. I want to thank Councilmember Kawahara also for pointing out that there is a distinction between KIUC, the County and this bill in my opinion. KIUC does have things they need to do along with the County and I agree with you Chairman Furfaro, I would love to see the county adopt a sustainability plan for all of your assets, that would be fabulous. You guys are some of the largest users of electricity, please do follow that up. What I am asking you is please not to restrict us. This bill is a good compromise, it does give a little and it takes a little. I think it's very well protecting as far as the people are concerned and I ask for the passage of this bill. We've had a lot of testimony that says wind is not the catch-all, it isn't. How I look at it is the old proverb 9 of the boy that sitting on the beach throwing out the starfish, and somebody comes up and says, "how come you're throwing those starfish out because there's thousands of them on the beach?" and he says, "I'm making a difference" and the person looks at him and says, "how can you make a difference, there's thousands of them, you're just throwing 1 or 2?" and he says, "I'm making a difference to that 1 or 2." That's what we want to do out here in the public. We want to make that individual difference that we can and I ask this Council please to look forward at supporting us and support this bill as it's written. I don't like a lot of the amendments that have been added, I don't mind the housekeeping ones. But even the State when they were looking at doing a wind bill, they were not going to override the covenants because they thought energy policy was more important than covenants in the neighborhood. So I thank you very much for this opportunity to testify again on 2317. Mr. Furfaro: Pat let me see if there's anybody that has any questions for you. Mr. Gegen: Thank you. Mr. Furfaro: There are no questions, thank you very much for your testimony. Mr. Gegen: Thank you very much. Mr. Furfaro: I have testimony here that was submitted from, was this... Carl did you submit testimony? Okay. Did you wish to speak today? You do. May I call you up then? CARL IMPARATO: Aloha Councilmembers, my name is Carl Imparato. I just want to briefly go over the written testimony that I submitted; it had 2 purposes. One was to respond to the question whether the bill would be improved if we took out the residential districts from the bill and the other is that the testimony proposes 3 amendments. I don't believe that deleting the residential districts from the bill would resolve any of the problems in the bill because the significant deficiencies in Bill would still have to be addressed. Specifically the bill would have to have credible noise standards to protect the neighbors who live next to Ag lots for example, would still need to deal with the precedent-setting piecemeal dismantling of the North Shore Development Plan that's in this bill. It would still have to deal with the increasing height limits for S.W.E.C.S. regardless of case- specific visual impacts and it would still have to deal with the fact that the bill undermine compliance with state and federal environmental protection rules. And in the testimony I gave you, I go into the issue of the noise standards that they would be a major problem, the testimony demonstrates that there's a need, there's indeed a potential S.W.E.C.S. noise problem that DOH standards are insufficient to deal with that and it's a relatively simple solution that can deal with the "do no harm to thy neighbor" criterion which I believe you should adopt. In terms of the North Shore Development Plan ordinance overriding that would be a serious problem, it's protected us for almost 50 years and to basically start taking that apart piecemeal, I think would be a definitely bad precedent. In terms of visual impacts on neighbors, we still have the issue that the bill basically allows tower-mounted and roof- mounted S.W.E.C.S. very, very close to lot lines and that's true whether 10 you're in Ag districts or residential districts. And lastly, the Bill again has the end-run around the environment protection regulations, so I think all those issues would still have to be dealt with even if you take the residential pieces out of the bill. Now I think that the bill's problems could be solved without creating obstacles to the citing of S.W.E.C.S. and I propose for your consideration 3 amendments. One is to protect residents from undue noise impacts and it goes back to all the literature and basically says that... Ms. Kawahara: Before you continue. Mr. Imparato: Excuse me. Ms. Kawahara: Because I didn't hear. Are you testifying on your behalf personally? Mr. Imparato: On myself. Ms. Kawahara: Personally? Mr. Imparato: Correct. Ms. Kawahara: Okay thank you. Mr. Imparato: There are... if you go through the literature you'll see that basically there's a standard that says that noise that's 3 decibels greater than ambient is noticeable by neighbors, noise that is 5 decibels greater than ambient provokes public comment and concerns, so the proposed amendment on noise impacts is one that would basically enshrine that but also allow basically sign waivers that say we're not worried about that noise and therefore don't worry about the noise impacts. The amendment to protect the North Shore Development Plan ordinance and to address visual impacts on neighbors is the second of the amendments I proposed. It basically says that the North Shore will continue to be protected through the development plan but that S.W.E.C.S. would be allowed the same way they're allowed today. Mr. Furfaro: Excuse me Carl that's your first 3 minutes, I'm going to extend to you your second 3 minutes. Mr. Imparato: Thank you. Still be allowed to cite S.W.E.C.S. in the North Shore Development... in the North Shore Development Plan area but with hearings so that's and variance so that would be reasonable. And secondly it would also say that to the extent that someone wants the privilege of putting up a private generating facility at a height that is greater than the current height limits, that they can do that as long as the immediately surrounding neighborhoods don't have a problem... "neighbors" don't have a problem with it. So basically strikes a balance that says you want something special, great make sure you're not impacting your neighbors. And the last of the 3 amendments basically deals with the skirting of the endangered species protections, this is drafted consistent with the testimony that you had from the DLNR fellow who was here several meetings ago. Basically you know... it's one thing to say that the federal and government have a policy in favor of S.W.E.C.S. Their policies don't say S.W.E.C.S. at any cost, S.W.E.C.S. that make noise, S.W.E.C.S. that do this, 11 they're in favor of renewable energy but reasonably implemented. And so the issue you've heard from the DLNR folks that the language in the bill right now is deficient so this third amendment addresses that. So in conclusion, I think that these 3 amendments would substantially correct the major problems in the bill without undermining its goals and so if you do vote to defer to October 28th which I think is reasonable, then I urge you to use that time to consider the merits, possible merits of the 3 amendments that I'm proposing there. I think that passing a bill that would create foreseeable harm to neighbors and to the environment, passing the bill that would create foreseeable conflicts between neighbors, would not be good public policy, it's not state policy, it's not federal policy and hopefully it's not this council's policy. So I thank you again for your consideration and if you have any questions I'd be happy to deal with them. Mr. Furfaro: Thank you Carl. Let me ask are there any questions of Carl? Mr. Kaneshiro. Mr. Kaneshiro: Thank you Mr. Chair. Carl, I have a question for you. Currently tower-mounted wind energy is allowable currently up to building height so if we go up 20 feet more, wouldn't that reduce the noise that we currently have? Because currently I can do one right now to the building height. Mr. Imparato: Um let me note personally and the person doesn't really wanted to be cited on this but if need be we can... I can give you that information privately. People who have lived next to some of these Ag lots with a S.W.E.C.S. on it and there was a real problem, the problem is that even when you talk about a large lot, Ag lot, someone could choose to put the tower right at the edge of the lot... Mr. Kaneshiro: No, no my question is... "My" question is not that. My question is that currently you're allowed to do one up to 30 feet and up to 50 feet I believe in the Ag lot, now if I go up 20 more feet, would that reduce the noise level to your residents if you're this way or that way or whatever way you are? From the current bill. That's my question. Mr. Imparato: Correct if you go 70 feet you can because you have an extra 20 feet then the noise at given point would be... Mr. Kaneshiro: Okay. Thank you that's my question. Mr. Imparato: Fair enough. Mr. Furfaro: Thank you. Anymore questions of Carl? Mr. Bynum. Mr. Bynum: Just a follow up on that Carl. As Councilmember Kaneshiro points out currently you can put atower-mounted system as all as don't... on small lots and within the standard setback, 10 or 15 feet of the property line. So you recognize that this bill requires tower- mounted only on lots larger than an acre and increases that setback to 70 or 80 feet, aren't those also things that will mitigate noise? Mr. Imparato: Well first of all the bill says that you can put 12 roof-mounted ones, you keep staying away from that issue. The roof-mounted ones on residential lots of any size, the smallest residential lots, I don't see much difference between a 50 foot tower that's mounted... a 35 foot mounted on a 15 foot roof, creating a 50 foot tower, I don't see much difference between that. And atower-mounted ones so I don't believe the bill provides the protection you're alluding to. Secondly by allowing them to be higher one is allowing them to be greater capacity as well and this goes somewhat to Mr. Kaneshiro's issue as well. And so once you say you can put a higher one and you can put a higher kilowatt rated S.W.E.C.S. up there, which will create more noise so if you were saying you can still put a small one and make it higher is one thing but just by saying you can make it higher and as your S.W.E.C.S. bill allows 100 kilowatts outside the residential area or 12 kilowatts inside the residential area that's still going to be more noise today. A 12 kilowatt S.W.E.C.S. has a diameter... a blade diameter of 22 feet typically. And you know when people try to compare S.W.E.C.S. to telephone poles, telephone poles don't have 22 foot wide profiles. Again I don't oppose a lot of the things that you're trying to do with this bill Councilmember Bynum, I do think that we still need to deal with this fine-tuning to deal with the noise and the visual and the endangered species impacts. Mr. Bynum: Thank you for that comment and I thought we were talking about Ag lots in particular so I don't want to obfuscate this bill does allow roof-mounted smaller S.W.E.C.S. you know that would be closer to the property line because they'd be mounted on the roof. You might have seen an article in the Garden Island recently or even seen the individual... a contractor entrepreneur on Kauai who has bought in a S.W.E.C.S., anew design S.W.E.C.S. that would be amenable to roof- mounting and we have a opportunity to see it, hear it, view it and you know I don't want to pretend like there's no impact about us moving to wind energy and allowing people to do that, you know obviously if you put a system on your roof, you're going to see it and that's an impact, I recognize that. And I've been clear that in my judgment because of the world-wide energy crisis and because of our need, that's... personally I'm prepared to make that trade- off. You know and it's a policy, that's a choice that individual Councilmembers will make and I recognize that so I want to make sure that I wasn't trying to obfuscate you know the impacts of this bill because there are certainly some impacts. My own judgment is that they're not major impacts and the wind systems that I have seen in... particular on roof-mounted because residential discuss now, you know there's a merging technologies. Many of these S.W.E.C.S. are virtually noiseless and you know and I also appreciate your testimony discussing the difference between ambient noise and so you know I see a... yeah I understand those issues. I think you and I both have read volumes about noise because of many of things you share with us are things that I already read and so it's a pretty complex thing this issue with noise. Your most recent testimony really recognizes that. Mr. Imparato: To say that they are noiseless than having noise standards wouldn't hurt. Mr. Bynum: Right good point. Mr. Imparato: The noise standards are for the noisy ones and I think this goes to Councilmember Furfaro's concern as I interpret it and as mine as well, that this is the public policy decision, there are impacts, 13 there are noise and visual impacts and hopefully a better crafted bill or an improved bill could deal with those impacts and minimize them. If there are impacts then I think what we need to do is say well what is the potential benefits and if the... if for example the Energy Sustainability Plan said that the benefits are manini but the impacts when we see them are great, then that says (inaudible) public policy, this is not the way to go. I don't say that that's going to come out that way but that's why I think that it makes sense to have that information for your policy decision. Mr. Bynum: Thank you for your testimony. Mr. Furfaro: Councilwoman go right ahead. Ms. Kawahara: Carl thank you for all this more testimony in addition. Can we... can we agree that it's a utility? A form of utility the wind energy? Mr.Imparato: One could make that argument I mean utility has many different definitions so I wouldn't go... Ms. Kawahara: Yeah. Seems like... well if we're talking about it being linked to KIUC, I'm pretty safe to think it's a utility. If we were to enact or look at these suggestions that you've put forth, would that be putting a penalty above already the standards of what is allowed for utility? Mr. Imparato: I don't think so. Ms. Kawahara: Like the poles are allowed to be at a certain height, they're visual things maybe an issue but they have been... been supported as a standard and they're utility so if wind energy is going to be in that category I think it could be seen as a penalty beyond what is a standard already. Mr. Imparato: That's why I couldn't answer your question yes or no because you know I think if you look at the current ordinances like the North Shore Development Plan ordinance which says that utility structures can go beyond the height limit, you know I think that when people drafted that their concern was, utility structures oh that means telephone poles... poles it didn't mean that if KIUC wanted to put a large power plant for example in Kilauea, that it could go above the 25 foot limit so you know there's telephone poles, there's the largest power plants and there are utility structures and so if we want to argue that S.W.E.C.S. are utilities, I would make the argument that they're closer to a power generated facility and less like a telephone pole, so I don't think it's really a penalty. Ms. Kawahara: Okay. That's just part of my reasoning for my support for the bill as it is so I just wanted to see if you could clarify for me something different. Thank you. Mr. Furfaro: Thank you. Any other questions for Carl? If not Carl thank you very much. Is there anyone else? Mr. Mickens. GLENN MICKENS: Thank you Jay. For the record Glenn Mickens. I just want to say I completely agree with Carl's assessment on 14 what this thing has to be. I think the bill has to be tweaked I think if you're going to make it work. I agree 100% with what Jay said and with what Derek has pointed out. The 2 biggest things I appreciate what Jay said find out what resources will be needed to implement this thing. I think that's one of the biggest things you're going to have to say, don't lets... using your term again "ready, fire, aim" I'm sorry Jay but I think... Mr. Furfaro: I'm never going to walk away from that. Mr. Mickens: it's the truth. I think it's very true and I think you now have gone into the direction that you're trying to prohibiting this from happening. We're not just trying to jump into something without going ahead and investigating and find out. The other thing I thought was so true Jay, we need a strategic plan for this bill. And I don't think a strategic plan for this bill is now in place. Kaipo pointed out, I cannot see the problem with deferring this and I'm not a proponent of deferring. I don't like see something going on and on and on but in this instance you're talking October 28~ I think you've said but I see no problem in deferring this things until you do get the thing right, put your ducks in the row, cross your is and dot your i's, before you go further. Like Derek said you heard that gentleman that is an expert in alternate energy sit here and he made the statement that there is no contest between wind and solar and he said you know that's his business, and he's a strong advocate of that. Jay points out this latest thing about steam, yeah I guess the deserts in California are doing the same thing. There's new technology continuing but before jumping into this thing blindly and finding all the problems that Carl has enumerated so well, the blight, there's going to be noise, let's put it in place before we do it. There's no reason in my mind... there's no reason to just go ahead and say do it and find out we done it wrong, we're going to have to redo it over so anyway I do appreciate what you're saying Jay and I hope you Councilmembers will weigh all these things before you vote, thank you. Mr. Furfaro: Thank you. Any questions of Glenn? Bruce, I saw your hand up then I'll go to Barabara. Can I see anyone else that would like to speak on this? Okay Barabara, you'll be the last. BRUCE PLEAS: Bruce Pleas for the record. My testimony is a resident of Kauai. As a disclosure I am a member of the Kekaha Community Benefit Community Action Committee. I am not a member or a representative of any non-profit or profit group or any lobbying group registered under the State of Hawaii. As for the discussion we had today, a deferral to a specific date, that is fine. But I would also like you to think of maybe if you have amendments coming until that date to keep it on the Committee Agenda so we can have discussions and maybe do some work before it comes up to you know a workable date when the study is out. I would like to see the residential kept in it, especially the roof-mounted. As for Carl's concerns, the noise levels should be addressed especially in the residential roof-mounted areas so we keep the noisy ones out. For visual impacts, trees are sometimes higher than allowable building heights and you'll have probably minimum to no pole mounted S.W.E.C.S. in those areas, that was from Charlie Cowden testimony that he brought last time about turbulence. The... some horizontal and vertical roof-mounted systems work in variable and turbulent winds. I've looked into that because Kekaha does not have... is not a wind generated area. Our wind swirl around so I looked 15 and I found that there are some that do work in a residential area and you know (inaudible). They're fairly quiet from what they say like the ones in the newspaper so I think we need to go forward with this. We need some guidance in our laws on what's going to happen in this area and I think we've been working on it and I've been pretty impressed as to what's going on but I think... I'd like to see it worked on every 2 weeks so as new things come up so when the 28th comes and the study is out, we just haven't sat around and not done anything, thank you. Mr. Furfaro: Hold on Bruce let me have some questions and you know although every 2 weeks I want to reassure you there's members here in the council here that we don't sit around and do nothing. Mr. Pleas: I understand but then when it comes to the public... Mr. Furfaro: Just wanted some clarification. Mr. Pleas: So that the public has input coming in and you know we can add to what has been bought... what has been worked on during those 2 weeks. Mr. Furfaro: Councilwoman. Ms. Kawahara: Thank you Chair. Mr. Furfaro: And just the housekeeping maybe somebody needs to turn your name tag around to the Camara. Ms. Kawahara: Oh I'll get it later, thank you. Mr. Furfaro: Thank you Mr. Bynum. Ms. Kawahara: Bruce thanks for always coming up. Are you under the impression that the plan... that the Sustainability Plan that we're waiting for is going to be able to construct ordinances and laws when you ask for guidance? Mr. Pleas: I went to the meeting they had in Kekaha and we got the whole (inaudible) and checked everything out and I checked out their website. I don't think it's going to give you everything you want but as for spending money, county money 30, $40,000 whatever its cost... I think... Mr. Furfaro: $200,000. Mr. Pleas: $200,000 oh geeze... I should become a consultant. I think it's worth waiting for to see what they have come up with and if it's helpful or not either way, spent the money might as well read the darn thing and use what you can out of it. Ms. Kawahara: Do you think we're going to not read it at all once we pass this bill? 16 Mr. Pleas: No but if you... Ms. Kawahara: You know what I'm worried about is that you know people are thinking we're going to... once we do this that we're just going to ignore the Sustainability Plan, to me it builds on the Sustainability Plan so I'm wondering if you think it's going to build ordinances for us more specific than we're already doing and... Mr. Furfaro: Excuse me, I want to tell you. I want to go on record in saying that when I voted for that money I was very clear and it's in the minutes that they are going to make recommendations on certain ordinances. I just want to make sure we understand that that is my expectation as some of you signed off on that money. Mr. Pleas: And whether that comes you know that's what the fruit at the end of the vine is going... that's to be seen. I believe all what you have right now is maybe a draft at the most and whatever comes out in October maybe helpful and may not but for the 6 weeks to wait for it I think constructive work could be done until that point and I think it's worth waiting. I don't think it's going to solve anything but it may give you... even just one paragraph that is helpful may save us if you pass this now to have to go back and spend the 6 to 8 weeks it takes it to go introduce it, go through Committee to do an amendment to a legislation you've already done. Mr. Furfaro: Thank you Bruce. And may I apologize I spoke with a lihing mui in my mouth. It wasn't quite appropriate. Barbara? BARBARA ROBESON: Barbara Robeson for the record. Thank you Councilmembers. When you were talking about the plan that's coming out in October 28th it kind of reminded me of the frame work and that float chart that was in the General Plan of 1982 I think, where the General Plan was at the top and then you had the Development Plans and then you had the functional plans such as energy, housing, transportation and that kind of thing. And that they need to work together and you need to consider the functional plans with the development plans and the General Plan. As I testified before, my focus is really narrow and it's about the North Shore Development Plan so in terms of planning I urge you to look beyond this bill. As I previously testified, I don't believe the bill considers the importance of the North Shore planning area. Since 1974, when the first North Shore Ordinance was enacted, there has been recognition of the importance of the Special Planning Area designation area that is the North Shore and that limiting the heights or structures to 25 feet was part of the 1974 plan unless it was a Use Permit and a variance, and 11 years later when the North Shore Plan was updated in 1985 the 25 foot height limit was still a important component of the plan and the resulting ordinance. It was then and it is still is today a goal of the plan which by the way incorporated into the ordinance to preserve the unique natural beauty of the North Shore planning area. Please do not weaken the foundations of the North Shore plan. Please don't dismiss the work of the community over the past 35 years. And please include in the Bill a requirement consistent maintaining the integrity of the North Shore Plan and the ordinance and that is requiring a Use Permit and a Variance for any structures that exceed 25 feet in height and that meet the standards for the North Shore Plan Ordinance and the CZO goals, thank you. 17 Mr. Furfaro: Thank you Barbara. Let me see if there's any questions for you. Lani? Ms. Kawahara: Barbara thanks, you always give very coherent testimony. Ms. Robeson: I'm a little shorter than Carl. Ms. Kawahara: My question is... as a person of the North Shore you're willing to... make more hoops for people to jump through in order to do wind if they're interested? If you're asking to get a Special Use Permit instead, just outright permitting it because of your 25 foot standard. Ms. Robeson: I think if you allow the S.W.E.C.S. to go forward without Use Permits and Variances as proposed in the bill... that it's undermining the North Shore Plan, I think it's an extra hoop but I think that you have to balance out the goals and the priorities and the policies in the North Shore Plan with the proposed bill and you need to have it in the public forum so those things that are in the North Shore Plan can be discussed and identified and probably a lot of the S.W.E.C.S. would be given permits but there may be particular circumstances where it's not appropriate, such of those in the SMA for example. Ms. Kawahara: Okay. What about... what do you think about the utility and the exception rule that we already have in... you know that utilities are allowed to do certain heights and this would... Ms. Robeson: In the North Shore Plan... Ms. Kawahara: (inaudible) greater penalty on it to do. Ms. Robeson: I think there's a definition of utilities in the North Shore Plan... utility structures. I don't have it in front of me. Ms. Kawahara: And you consider the wind conversion system of structure than rather than... Ms. Robeson: It doesn't meet the definition in the North Shore Plan. Ms. Kawahara: Okay. So I was just curious if there were people out there that did want to do it on the North Shore that if we did what you're requesting then they would have to get a Special Use Permit and a Variance, do you know how long it takes now? Ms. Robeson: Nope. Ms. Kawahara: I'm not sure. Generally? Other Special Permit things? Ms. Robeson: Probably a couple of months. Ms. Kawahara: A couple of months? Okay thank you. 18 Mr. Furfaro: Anymore questions of Barbara? If not Barbara thank you very much. I'm going to call the Committee Meeting back to order. I do not want to make reference to any motion. So that everybody is very clear when the motion is made for a deferral, it's seconded, that also terminates discussion. So I would like to get a feeling from the group on the preference here. I want to first say that on the 28th I'm expecting a draft... an additional draft of the plan, not the final plan. The final plan may not come out until February. I think also Carl mentioned and using some local terminologies the investment might be substantial while the outcome is manini. That's a terminology that Carl indicated and those are the kinds of things that could be in the plan. Where are we going to get the best investment results. Secondly I do expect some draft proposals of some ordinances as Barbara pointed out that really will map out you know the functional plan and the development plan, it's like the Lihue Town Center, people don't realize we actually have the development plan and the Planning and the Building Department and then we have the Core Town Plan in the Planning Department but they need to be in place. The design elements and those things need to be in place to complement the actual development plan. Now on that item we just received 1 amendment to be circulated but I'd like to hear from a couple of the members, I think I'm pretty clear on Mr. Bynum, he wants to take a recess and move on some amendments so that it could be voted on today. I suspect from Mr. Kaneshiro's dialog that he's okay as long as it's date specific we come back October 28th, I think I sense that from Mr. Kawakami and I sense that Lani Kawahara would like to vote on the bill today so there are those options and that seems to put me in decision making as the Chair so we could go either way. I do want to make note if we don't get a draft plan by October 28th, I'm going to make sure that I have a request to Mr. Costa to have somebody from the consultant agency here and to present what we have to that point. If we decide that we don't want to defer and we take action today, I will call a recess so you can work on your amendments. Lani, you had your hand up, yes? Ms. Kawahara: I'll do it before we take any action on this. I do want to say as a new legislator, the... it makes me nervous to put a bill that I feel is good to defer it because weird thing... I've learned that weird things happen to bills when we put it in deferral or... when we bring it back it looks totally different. That is my concern and I don't know how to get assurance is that this bill will not be dramatically or drastically different when it comes back so because I think it's a good bill and because I am learning as a new legislator that bills come back really funky sometimes after they're deferred, I recognize that you want to wait for the strategic plan but I don't believe it precludes us from making a statement and passing this now because the bulk of the plan of course is something that we're going to use and if wind is going to be manini then it's going to be manini and just this small movement would qualify also. So my concern is that that there's something in the wings that's going to happen and the bill that I like is here so thank you for that... for allowing me that privilege to state. Mr. Furfaro: My assumption is correct you would probably want to move on the bill now? I do want to say something though with your adjectives of the bill comes back "funky" is that what you said? Ms. Kawahara: Yeah. 19 Mr. Furfaro: I would like to say what you have to go on is me as the Chairman and I try to speak truthfully. You know in Polynesia a man that wears a (inaudible) is someone who speaks the truth. The truth is that I'm giving you as members those options, Mr. Kawakami, I will recognize you and I have stated what I would do as Chairman. And I think I made it very clear in leaning towards a deferral so that deferral will be date specific and I would suggest that the amendments as I said are introduced then so that the bill doesn't go out as Mr. Pleas is suggesting and come back looking as what you describe "funky." Mr. Kawakami. Mr. Kawakami: Thank you and I mean I'm just confused as to how a bill would be deferred and come back looking like anything like what the bill looked like when it was deferred because I mean we do all our business out in the open. I mean if it's going to change, we do it out on the floor. So I mean I don't know if you're implying that things change behind the scenes but they don't. We are well documented, any amendments to change the bill is introduced on the table, we take a vote out in the public and so I don't know or understand how a bill could be deferred and come back looking any different than the day that it was deferred on. Secondly you know man, I'm trying to work with the authors of this bill by introducing amendments and you know I apologize for moving too slow but there's concerns that I have so I just want to ask if you guys have a problem, I mean with us working with you and addressing some of our concerns. I mean I know you want to pass it out and you know we're asking for a deferral and it continues to be a big issue that "no I think we should pass it now, the bill is fine now" but you know we're all trying to work this bill so that it addresses all of our concerns so I mean if you're going to push the issue that you know you have a problem with the deferral because we're trying to work with you towards getting some kind of an agreement, let's be clear with it because our intent or at least my intent you know of moving forward is you know to introduce amendments to address some of my concerns. You know there is still some unanswered questions that I'm still getting stopped on the side of the street about this S.W.E.C.S. bill in support and in not support so I mean we're trying to move forward so what's the big deal with a deferral? It's not like we want to kill it. Mr. Furfaro: Thank you Mr. Kawakami and that is some of the clarity I try to give it to earlier. Mr. Kaneshiro, I'll recognize you... you had your hand up. Mr. Kaneshiro: Thank you Mr. Chair. As I stated before if Committee members want to move and push this bill I can tell you right now, I will not support the bill the way it's written. As I expressed you know I would like a deferral so we can look at it and look at the residential areas also, come up with a good bill because if this bill is not deferred, put on the floor I will certainly put out an amendment where we only include agriculture and industrial in this bill today. So as the bill is written today I won't be able to support it, so what I encourage my Committee members to do is have this bill be deferred so we can come out with a very good bill that would address residential, industrial and agriculture. That's all I'm asking. Mr. Furfaro: Thank you Mr. Kaneshiro. So Mr. Bynum, I recognize you. 20 Mr. Bynum: Thank you very much. I just want to answer Mr. Kawakami, that's exactly what I want to do is work the bill, I see your amendments, I just say... let's do, put on the floor, I see your amendments I have no objection so I mean I don't know how you got the sense that I didn't want to work with all of the members. I didn't just want to defer it 3, 4 or 2 or 3 meetings ago without doing the work and you put forward amendments, Councilmember Kawahara has put forward some amendments you know... so I just wanted to respond to that. Mr. Kawakami: (inaudible) Mr. Furfaro: Okay well I would like to say that we appreciate your commentary, let us find ourselves focusing on these amendments whether it's today by recess and/or by the deferral that I'm requesting. I'm not going to be taking anymore dialog, I'm looking for motions. Mr. Kawakami: I'd like to ask for a recess so I could get my amendment together. Mr. Furfaro: Okay I would like to do that in a moment or two, we will take a recess but I'm going to actually make a move... we have people that want to testify on the next bill in the room so I'm wondering and I would look across the table to Mr. Watanabe can I move this item to the end of the Planning agenda? RICKY WATANABE: Yes. Mr. Furfaro: And then that will be my request moving this to the end of the Planning Committee and I would like to read the item dealing with... the next item if we can have that item read and I'm going to take some public testimony first because people need to leave by 10:30. There being no objections, Bill No. 2317, Draft 2, was moved to the end of the agenda. Bill No. 2318 A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Farm Worker Housing) [This item was deferred.] Mr. Furfaro: Thank you very much. I would like to say at this point we're... we've changed gears smoothly I would say. We are at Bill 2318, I'm going to ask for public testimony. Is there anybody who would like to speak on this bill? Councilwoman Yukimura? There being no objections, the rules were suspended. JOANN YUKIMURA: Thank you Chair Furfaro. Good morning Councilmembers, Council Chair, actually I want to speak on the next bill but I have been working with the farm worker housing group and I just want to say that they designated 3 meetings in the next 2 months to really thrash through the specific provisions and hopefully get consensus on them and it 21 includes the farm bureau members as well as the original group under Malama Kauai that started the bill and so actually a deferral would be appropriate until maybe the last Committee meeting in October to give us a chance to do that and we are working with the Planning Department as well, Kaaina was at our last meeting and we hope that we will be able to stay in dialog with them as well. Mr. Furfaro: Okay so there is a desire from the groups, the ADHOP Committee as well as the Farm Bureau to continue to work on the issues within this bill and it is being suggested that and I do want to point out that JoAnn Yukimura was the co-author at the time, she was on the Council request for a deferral, is there anyone else that would like to speak on the farm worker housing bill right now before I come to the Council Committee Members? Okay I'm going to call the meeting back to order, there's a request to defer this to date specific late October. Mr. Bynum? Mr. Bynum: I can make a motion to defer this bill to October 28th Committee meeting. Mr. Furfaro: Thank you, we have a motion. Do I have a seconded? Ms. Kawahara: Seconded. Mr. Furfaro: Is there any further discussion... Mr. Kaneshiro: No discussion. Mr. Furfaro: That's right it's a deferral thank you. We are going to call for a vote now all those in favor of the deferral date specific October 28th, say "aye". Committee members: Aye. Upon motion duly made by Councilmember Bynum, seconded by Councilmember Kawahara, and unanimously carried, Bill No. 2318 was deferred until October 28, 2009. Mr. Furfaro: Any opposed? Hearing none, let's move to the next item please. Bill No. 2319 A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Amending Article 27, Chapter 8, Kauai County Code 1987, relating to Shoreline Setbacks and Coastal Protection) [This item was deferred.] Mr. Furfaro: Thank you. Again we have people that are going to leave the audience that would like to testify specifically on 2319, may I suspend the rules and ask JoAnn Yukimura to come up. 22 There being no objections, the rules were suspended. Ms. Yukimura: Again good morning members and Chair Furfaro thank you. I believe you have copies of my testimony. I'm speaking on... JoAnn Yukimura for the record, I'm speaking on Bill No. 2319. I did have the opportunity to review a couple of sets of amendments and appreciated that opportunity, I believe they're going to be looked at today and I wanted to make a few comments. The way that I'm identifying them as far as I know it is proposed amendments by Councilmember Bynum and proposed amendments by Councilmember Kawakami by request. And I think each proposal has certain strengths and weaknesses and if the strengths could be merged, I believe you would have a bill that protects the public interest, it doesn't create loopholes inadvertently. While at the same time making the administration of the Ordinance more workable which I think was the Planning Department's intent and they are the ones applying or administering the bill so I think we need to really hear their concerns. As I have... for section 8-27.1 applicability, I've testified repeatedly that the amendments proposed by the Planning Department under this Section which are included in Representative (sic) Kawakami's amendments would create a substantial loophole. I don't believe that the Planning Department intended this but I also believe they were not aware of the overall of the structure and framework of the bill in proposing changes there to so I explained that it was the intention of the framers of the Shoreline Setback ordinance including this committee of experts that there would be 2 categories of property that the Shoreline Setback law would apply to, abutting properties that is properties abutting the shoreline and non- abutting properties that could possibly be affected by coastal erosion like a property that's right across a road that abuts the shoreline or a very narrow piece of property. And so in the second category we define them as lands not abutting the shoreline but located within 500 feet of the shoreline unless the applicant can demonstrate to the satisfaction of the Planning Director that the applicant's proposed improvements will not be affected by coastal hazards, and we envisioned that there would be some properties that are so obviously not affected but the Planning Director and his discretion could ably exempt those properties. But that if there was any doubt then coastal studies might be involved. Admittedly our law, the Ordinance 863 was not as clear worded as it could have been and the Planning Department did come upon the ambiguity and so we have suggested amendments that would clarify that and that is in Councilmember Bynum's proposed amendment, I would urge you to adopt that particular wording. And I address and I'm not going to go into detail on how some of Planning's concerns might be addressed. The Shoreline Setback determination and establishment of Shoreline Setback line, that's 8-27.3 on page 3 of my testimony. With one exception the proposed amendments by both Councilmembers are alike and they're good amendments and should be approved. It's only in Councilmember Kawakami's amendment if the applicability section is changed, then there one section that section (e) that needs to also be altered in this particular section. I hear the beeper Chair Furfaro. Mr. Furfaro: Yes you're right and that's your first 3 minutes but I'm going to extend to you your second 3 minutes, go right 23 ahead.. Ms. Yukimura: Thank you. And then in the permitted sections there's also essentially... the amendments from both Councilmembers are the same and I believe are good amendments. It's in Section 8-27.8 Structure and activity determinations and I'm on page 4 of my testimony that there's a substantial difference and I may not have read Councilmember Kawakami's correctly but one section does seem to contradict the other and so maybe I'm mistaken in my interpretation but at minimum these sections need to be maybe be clarified. Councilmember Bynum's amendments in (c)-(2)(a) and (b) proposed a interesting way to draw the line as to where shoreline certification are discretionary and where they would be mandatory and he is suggesting that they would be discretionary for public improvements and facilities and for repairs to lawfully existing private structures. So where there's already a structure in place that's lawfully permitted and they're just making repairs to it, you wouldn't have to figure out where the shoreline... newly where the shoreline is. And so this seems to be logical, remember we're only talking about a limited number of uses and activities, only those permitted uses and they're very limited in the previous section there identified. And your permitted structures and activities, that are public when they're needed for health and safety in the shoreline setback area such as lifeguard stands or American Disability Act sidewalks to already existing public facilities and it seems to me in those cases it's not necessary to go through a shoreline certification, I mean lifeguard stands? You know and if there's like in Anahola, there was a public bathroom already there and permitted and needed ADA sidewalks to it, doesn't seem really necessary that's why it seems so logical to leave it in the discretion of the Planning Director. But wherever private uses are permitted a shoreline certification will be required... except where it's repairs to an existing lawful structure so that makes a lot of sense to me and I would urge strong consideration of that logical place to draw the line. The last Section 8-27.10 is in the Section that's called criteria for approval of a variance. And Councilmember Kawakami doesn't have any proposed amendments in that section... (beeper goes off) Ms. Yukimura: May I just finish this last paragraph Chair Furfaro? Mr. Furfaro: Yes. Ms. Yukimura: Councilmember Bynum makes what I think is a reasonable suggestion that you would allow public projects to get variances as well as private projects. They... Councilmember Bynum has done nothing to change the standards for granting of variance except in one case he makes it a little bit more stringent but so you're not affected... you're not watering down the criteria for a variance, you're just saying that public projects should be allowed... qualified for variance if they make those criteria. And you know private projects you would think are public interest projects so, I think they should have a chance as well as private, and that's my testimony and I'm really appreciate this opportunity to testify before I have to leave, thank you very much. Mr. Furfaro: I do just want to clarify too that you know 24 the bill was a request from Planning... Ms. Yukimura: Yes. Mr. Furfaro: Mr. Bynum's amendments reflect discussions from the Planning Department. Mr. Kawakami by request reflect a number of suggestions made by the County Attorney's Office. So I'm appreciative that you point out towards the end of your testimony that both amendments seemed to have good wording and the cross-references to different sections in Mr. Kawakami's may have been suggested by the County Attorney's Office so just for clarification. Ms. Yukimura: Thank you. Mr. Furfaro: Are there any questions for Councilmember Yukimura? Ms. Kawahara: Thank you for coming and being here and helping of the bill you introduce... actually helped introduce. In the section on "unmanned civil defense facilities... Ms. Yukimura: That's permitted uses. Ms. Kawahara: for primary purpose of protecting life and property". Ms. Yukimura: Yes. Ms. Kawahara: Would it be useful to have it say warning, measuring or monitoring instead so that ambiguity? Ms. Yukimura: Um are you... Ms. Kawahara: as protecting life and property? Ms. Yukimura: taking language from Councilmember Kawakami's? Ms. Kawahara: You know I'm taking it from Ian Jung. Mr. Furfaro: That's Kawakami's. Ms. Yukimura: Oh okay. Yeah so it's included... Mr. Furfaro: Ian Jung is from the County Attorney's. Ms. Kawahara: Oh is this part of... Ms. Yukimura: That only difference between Councilmember Bynum and Councilmember Kawakami's which is the County Attorney's as I understand it, is a few additional words, so "unmanned civil defense facilities installed for the primary purpose of protecting life and property" is the one in Councilmember Bynum's and then "unmanned civil defense facilities installed for primary purpose of warning or measuring" is in Councilmember 25 Kawakami's. I don't know that those words are necessary but maybe somebody from Civil Defense thinks they are and so you can check with them. Ms. Kawahara: Okay. Ms. Yukimura: But I think in general you want to allow unmanned civil defense facilities installed for the purpose of protecting life and property. Ms. Kawahara: Okay. Thank you. Ms. Yukimura: Yes? Mr. Furfaro: Mr. Bynum. Mr. Bynum: Thank you JoAnn for your testimony. When this bill came from Planning, I said that you know... I didn't think the Council or certainly not myself would entertain any amendments that would undermine it... the integrity of the bill that we passed last year and so the 2... many of these 2 potential amendments have similar goals. The 2 areas where you know in my looking at this bill I wanted to make sure we don't undermine the integrity was the "Applicability" section and then also I thought that as you agree that some level of discretion is appropriate so we don't have absurd kind of situations. But when I looked at it I thought that that discretion should apply primarily to public projects. Ms. Yukimura: Right. Mr. Bynum: That are in the public good and also private projects that are repair and maintenance but that new activities or new structures by private entities should... the Director shouldn't have that discretion so you kind of characterize that okay, I just want to know in your opinion, if we made these amendments as I proposed would that undermine the integrity of the bill we passed last year? Ms. Yukimura: I don't believe so and I think that's exactly... I think your mutual goal is to make the amendments to avoid observed results and make the administration of the law more reasonable but not create inadvertently unintentionally loop-holes that could really undermine the basic structure of the bill and I mean that's the... you know that's the narrow path you're trying to walk here and I appreciate all the work that you've all been trying to do to achieve that goal. Mr. Bynum: Okay. Thank you very much. Mr. Furfaro: Any more questions of JoAnn? If not, JoAnn thank you very much. Ms. Yukimura: Thank you Chair Furfaro. Mr. Furfaro: Bruce? Mr. Pleas: Bruce Pleas for the record. Since there has 26 been a lot of discussion on amendments that have not made public and I can't talk about them because I don't know even know what they're about. Mr. Furfaro: No let's get very clear. Mr. Pleas: Yeah. Mr. Furfaro: If you pick up on a discussion that you're hearing about amendments, you the public can speak to them; until they're actually introduced the Council cannot speak about them. Mr. Pleas: Yes. Mr. Furfaro: So you can make suggestions, etc., the Sunshine Laws are very restrictive of the Council unless it's actually on the table but does not restrict the audience. Mr. Pleas: Well since I don't know what the amendments say, I cannot comment on them so therefore I request that the Council once the amendments are released to the public, that the public is allowed to be able to come up and comment on them. Because sometimes we... the amendments come out... floor amendments we are not allowed to speak, I'm making the request now that when these come out that if there is something I have to say on them that I would be able to be allowed to come up with the rest of the public. Mr. Furfaro: Bruce, I want to answer that question because I think your questions and concerns are a very good one but over the recent months you may have followed some of the interpretation of what Councilmembers can share with each other and so forth which has really mandated to us that we in fact should be practicing these parameters. I know at the same time it puts you in a more challenging form of dissecting and delivering information but until we have some clarity, you need to be able to know that you have a much broader area to comment on any narrative that comes out on the table than we do and that's the best that I can offer you right now. Mr. Pleas: I'd just like to say... Mr. Furfaro: I sympathize with you and my comments have nothing to do with your time, we'll start your time from now, go right ahead. Mr. Pleas: Well I have nothing to say because I have nothing to read. Mr. Furfaro: You have the bill to read. Mr. Pleas: I have already commented on that and that is my testimony and it has not changed... Mr. Furfaro: Thank you. Mr. Pleas: But it could have changed with the 27 amendments so therefore I am requesting that when these amendments are made public that the public be able to come up and comment on them if there is a comment to be... you know from the public. Mr. Furfaro: Understood. Mr. Pleas: Thank you. Mr. Furfaro: Now Councilwoman Yukimura may have been privy to some of Mr. Bynum's pieces, the commentary from the County Attorney was made in a relative internal memorandum but I can assure you that I would allow you if you so wish to make comments when those amendments are introduced and circulated, I'll give you your time then. Mr. Pleas: I hope you give the public time too. Mr. Furfaro: You are a member of the public, I am a member of the Council. When I refer to you as your time, I am referring to the public. Mr. Pleas: Okay thank you. Mr. Furfaro: If you want me to get very specific... Mr. Pleas: No. Mr. Furfaro: about first person plural and third person plural I will... Mr. Pleas: No. Thank you. Mr. Furfaro: I will give the public time as I choice as Chairman. Mr. Pleas: Thank you. Mr. Furfaro: Mr. Bynum. Mr. Bynum: Just regarding process or just a question, perhaps we could introduce the amendments and circulate them and I'd be happy to introduce and you know I really applaud your efforts to have the public engage in the dialog and so as process if we introduce the amendments, we can always withdraw them later or amend them, emerge them so I'm more than prepared to introduce the amendment that I've prepared. Mr. Furfaro: Understood. No other questions for you, Bruce thank you very much. And those prerogatives of when things get introduced I'm trying to be as flexible as I can, I appreciate Mr. Bynum willingness to put that on the table now and maybe I will call the meeting back to order so that his amendment could be put on the table, I do want to say so state now though the reality is do not know if the request of the other amendment, since they're so similar, so parallel make sense to introduce both of them at this time but since you're willing to introduce that then I will ask 28 the staff "do they have your prepared amendments?" They do? Mr. Bynum's prepared amendments, do we have them? (Inaudible) Mr. Furfaro: Ah you know we're going to take the caption break now and we will be out for 10 minutes. There being no objections, the Chair recessed the meeting at 10:44 a.m. The meeting reconvened at 10:59 a.m., and proceeded as follows: Mr. Furfaro: I'm going to call the Planning Committee back to order and on that note Mr. Bynum, you had a amendment to introduce so that it can be circulated. Mr. Bynum: Yes. Should we have a motion on the main bill? Mr. Furfaro: I can't make any motions so I'm looking to you folks. Mr. Bynum: On the main bill, move to approve. Mr. Kaneshiro: Seconded. Mr. Bynum moved to approve Bill No. 2319, seconded by Mr. Kaneshiro. Mr. Furfaro: Okay and now you have a seconded. Mr. Bynum: Move to amend and circulate this proposed amendment. Mr. Furfaro: Is there a seconded to the amendment to... Ms. Kawahara: Oh seconded. Mr. Furfaro: introduce on the floor. Ms. Kawahara: Seconded. Mr. Bynum moved to amend the bill as circulated, seconded by Ms. Kawahara. Mr. Furfaro: Okay there is a seconded. Mr. Furfaro: So as the Chair has pointed out, this bill came to us from the Planning Department and as I understood the intent, it was for projects in the shoreline that we know are likely to be in the Setback and are already authorized and allowed and to avoid doing a certified shoreline and the expense of that when we know it's going to... and there's really no need for that in terms so the bill was rigid in it's requirement for a certified shoreline but there are instance where it's really not necessary but 29 as Councilmember... former Councilmember Yukimura pointed out there was provisions in the bill that potentially gave loop-holes and were very I think supportive, universally supportive of the idea of providing better stewardship of the coastline and so the amendments that I have worked on in consultation with our Sea Grant Ocean Specialist and our County Attorney and other Councilmembers, are a attempt to have this bill worked with its intended purpose. The changes that I'm suggesting are to the "Applicability" section. In order to accomplish this goal I didn't think it was necessary to change to "Applicability" in terms of properties that abut the shoreline and so that section has been clarified to make the original intent clear. The other substantive change was that the bill... the discretion would apply to private projects or private lawfully exsisting structures for repair and maintenance, so let's give an example where there is a say a resort building that's very close to the shoreline, been there for many years and it's time to re-roof that structure. Under the bill that was currently written, they would have to do a certified shoreline, when we know it's already in the proximity of the shoreline but it's a legally exsisting building, so this would allow in those instances on private projects to give the Director the discretion to not require a certified shoreline for repair and maintenance on lawfully exsisting structures. Remember this bill as written gives the Director limited discretion but in every instance requires the Commission's approval and so a public forum where any decision that the Director makes is giving public scrutiny and scrutiny from the Planning Commission so there are other changes in here that are more... kind of housing keeping and I apparently are in... are consistent with another amendment that I haven't seen but the substantive changes here are changes in the abutting shoreline provision or keeping it basically the way it is in the current bill and not making a change there and then allowing the discretion in public projects and private, repair and maintenance. But other private projects that would be new activities would still require a certified shoreline so I would like to submit this for consideration and discussion by the Council. Mr. Furfaro: Thank you. So I want to make sure I have a moment to reflect on what happened here for the audience and Mr. Pleas, I would like you to make special note that up until that time this bill has not been introduced but because there was an anxious audience to be able to see the amendments discussed by past Councilmember JoAnn Yukimura, we actually introduced with a seconded with the whole bill, we then circulated an amendment introduced by Mr. Bynum with a seconded, now that is appropriate procedures under the rules that we're all seeing it at the same time and when I mean "all" I mean "we at the table" first person plural is not applicable under these... it's Sunshine rules. This is "we" third person plural "all of us" now it is on the table and Mr. Bynum is suggesting that we have discussion for the Council. My point is the whole motion of introducing it was so that we could fulfill a request which is very unusual from our typical methodical process so that the public could comment so I'm going to suspend the rules and now that we've been able to see the amendment that is proposed by Mr. Bynum, we will take public testimony. Because there are so many parallels on the other amendment, the other amendment has not been introduced at this time as JoAnn Yukimura has pointed out there were a lot of parallel changes and I'm sorry if I'm getting tongue tied. So with that note, is there anyone who would like to speak on these amendments and I'm very sorry to say I can't extend you more time because I'm just looking at it for the first time too so Bruce would you like to come up? 30 Mr. Pleas: Bruce Pleas for the record. Well I'm on page 2 of 8... 8 I believe. So I can only comment as far as I've gone and I hope later on I would be able to comment or they'll get passed and I won't be able to comment. The first amendment on "applicability" section 8-27.1 that's... I agree with that one, that's good. In the second amendment section 8-27.7 this (a)(1) you add conforming, this is permitted structures and activities within the shoreline setback area it read existing non-conforming slash activities, you have added existing conforming and non-conforming structures slash activities, um I would think that adding conforming is fine but to continue to have the permitted structures on anon-conforming structure is not right. If it's anon-conforming structure, this is a structure that was... had to go through the process to become non-conforming so therefore this should be reviewed. I would rather see the change just existing informing structures and activities and address later on that non-conforming structures and activities have to be reviewed and should go through a permitting process again. If we go down to 10 and 11, it's the there was discussion on this before and these are the unmanned civil defense facilities structures and activities necessary within the shoreline setback for public health and safety, both of those I feel the (inaudible) which these are written, they could be anything and that these should need to obtain a permit or a variance. If you get more specific and say "lifeguard towers" and that I would agree that those could go through but the vagueness of unmanned civil defense facility, what is that, radar site? I mean it's just vague so as long as this stays vague, this needs to go through the permit variance area. Mr. Furfaro: So you're referencing number 10? Mr. Pleas: Number 10 and 11. Mr. Furfaro: Well 11 deals with other items, 10 specifically deals with Civil Defense. Mr. Pleas: Civil Defense yes and number 11 is vague too. Structures and activities necessary to be within the shoreline setback for public health and safety, what are they? Unless you define them, they can be anything, that's a broad brush and that's has far... number 13 the addition of that "structures built 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," that's good addition at this... at that point. (beeper goes off) Mr. Furfaro: Bruce this is your first 3 minutes, you can go on. Mr. Pleas: And I'm done because that's as far as I read and if there is time later on I would address whatever else I read in the... Mr. Furfaro: Okay I do want you to know, you do understand the exceptions I made... Mr. Pleas: Yes. 31 Mr. Furfaro: to get this circulated. Mr. Pleas: Yes. Mr. Furfaro: And that is the dilemma that people need to understand it puts the Council in a very... we can't share amongst more than 2 people the amendments without violating the Sunshine Law, when we make it available at the table so that the public can comment, your then as you pointed out I only got to page 3 top paragraph, okay? It is work to be done in Committee and I'm glad we're able to circulate it but that is very unusual procedure (inaudible). Mr. Pleas: And I would hope you would defer this until the next Committee meeting so that I could present it complete... my complete view on it. Mr. Furfaro: So Bruce is requesting a deferral and I would hope that you would understand that a deferral is for 2 weeks or date specific. Mr. Pleas: Yes. Mr. Furfaro: Okay. Any questions of Bruce? Lani. Ms. Kawahara: You actually got to the part where I'm interested in hearing from you. The unmanned Civil Defense facilities installed for the primary purpose of protecting life and property and the structures and activities necessary to be within the shoreline setback area for public health and safety, you are asking for more specificity? Are you asking that for each... that we list each item... you would prefer to have each item listed and how would the Council do that? Would we just hold a meeting for each one of those specific items and add it to the allowed and permitted structures? Because that is kind of like we're asking... we are asking for each structure you want to know what it is specifically, right? And it is an ordinance so and it goes under the permitted structures within the shoreline setback, it has a list of what's already permitted and we're wanting to add 10 and 11 and it's not specific enough so to me it seems as though we'd be having the Planning Department come up and say "well this is what we want specific for this site, I want it on the Applicability or the Permitted Structure list". Mr. Pleas: Okay for the Civil Defense, I would suggest having Civil Defense here and ask them specifically what they had in mind and what facilities that you know for the primary purpose, what facilities did Civil Defense had in mind? And then you can either make a list that the Council feels that's applicable to go through without a permit and ones that may need a permit. If you put ones that are just permitted from Civil Defense then all the rest should need to get a permit, so if you list specifically and you can come back and amend that later on as Legislative goes through. Ms. Kawahara: Each time? Mr. Pleas: Well no not each time. If it ends up to be a problem once or twice maybe it will come before the Council. But if you put a 32 list from Civil Defense an idea of what they want to put in, now if they want to put in a... one of the sirens in a shoreline area, I would say "well what happens after the first time" it's gone and how much does it cost to replace it if they need to be put back. Mr. Furfaro: See Bruce and I don't want to interrupt but I want to (inaudible) (Mic? ) Mr. Furfaro: We're not going to call Civil Defense over to... you know we had an earlier discussion about manini and poho you know for you in the audience that don't know you know manini is something very small, you get a very small return on it and poho is waste, well anything you put inside the shoreline setback for the purposes of Civil Defense and it goes out with the wave that's real poho, that's really wasteful. It's only good for one time so clearly we need to have an understanding that you know that could actually go away as far as I'm concerned. Mr. Pleas: And that's where Councilmember could... instead of having Civil Defense come in, a Councilmember could go out and ask those questions and get the information and bring it back to the table. For the structures and activities necessary to be within the shoreline setback for public health and safety, again as it was brought up, a lifeguard tower, that's easily acceptable, that needs to be there. A bathroom, does that really need to be there? Can it be across the street where it's safe? So you need to look at again what is really needed within the damage zone and what... you know because you can't have a lifeguard tower on the hill across the street, it doesn't work, so you just need to look at that and just become more specific and just be careful as to what you want to put in that does not need a permit, make sure it is something that it is needed and that's just something for Councilmember to work on. Mr. Furfaro: Okay Bruce, we have a question from Councilmember Bynum for you. Mr. Bynum: Just a clarification this bill is not about issuing permit, it's about discretion on whether you require a certified shoreline as part of that process. You know I looked at this exactly what you said you know should we have more specificity here? The amendment that I'm proposing allows its discretion only for public projects and it has to go before the Planning Commission right? So it somebody you know... the public can comment on it and it's for public project, I didn't think we had to get too specific here because Civil Defense... it's not allowing structures or activities necessary within the shoreline for setback area for public health and safety to private entities and only the public entities so but his does not allow them to just give a permit, right? It just so... it's a limited bill. Mr. Pleas: Um as for certified shorelines my stance on that... Mr. Furfaro: Excuse me. Because your time has come up, did you ask a question of him, Mr. Bynum? 33 Mr. Bynum: Yeah the question was... you understand this isn't for permit. Mr. Pleas: Yes I understand (inaudible) it's for certified shorelines. All projects, any project within the shoreline area, shoreline setback area should be required to do a shoreline certification for the future information, for the future. This is something I am adamant on, I will... that is the biggest gap I see in this, all... everything needs to have a shoreline certification so we have a absolute record of that date, that is where the shoreline is, this date this is where the shoreline is for our future reference. If you only use the erosion maps that the County has paid for, you will go very wrong, you need to have that data, hard data from people walking on the shoreline, the surveyors going out being looked at by public and then being certified every time to have data so you know where your shoreline is. I live on the shoreline, I know what it does in my areas and I tell you... you need to have shoreline certification. Whatever this bill covers, do not let shoreline certification go, it is a very important tool that this county needs. Mr. Bynum: I'm sorry I just thought I would ask this question, a very... areal specific project right now is to put in a sidewalk to an existing shower, we know it's in the shoreline, should the tax payer money been spent certifying the shoreline in front of that shower when we know it's in the shoreline, we know that the walkway needs to be put in by Federal law... you know the purpose of this bill is very limited it's to not spend an expense for a needless purpose so and that instance should we do a certified shoreline? Mr. Pleas: As I stated when you do a ADA project at Kekaha Beach, you will need a certified shoreline if it is within the shoreline setback area. Mr. Bynum: So my answer is yes that we should spend the tax payer money. Mr. Pleas: It is important data and I think it's worth the money. Mr. Bynum: Thank you for the answers. Mr. Furfaro: Bruce, I have a question on your earlier comment, are you saying that in Mr. Bynum's amendment a dealing with existing and conforming and nonconforming that you would rather have some verbiage there that says "existing permitted" whether it had a variance 10 years ago when the shower went in or not and that protects us from repair and maintenance items, you're repairing the shower versus you're expanding the bathroom, would that be more clear for you? I think that's what he's attempting to do... Mr. Pleas: Yes. Mr. Furfaro: it already existing... the structure was existing and permitted, whether they got that permit from a variance 10 years ago now but it had to be in place and permitted. 34 Mr. Pleas: As long as there's no expansion. 11~Ir, Furfaro: Yeah and see there's where the confusion comes in, where you talk about R&M repair and maintenance, you're repairing a shower, you're replacing a broken concrete step but now we say well why don't we ex and the shower area and put some seating" and it actually expands the facility, that's an improvement, that's not repair and maintenance, and I think the ward, the term already permitted because the expanding benches weren't permitted, that might trigger a new survey but repair and maintenance would not. Mr. Pleas: Yeah and maybe repair and maintenance of existing permitted... (inaudible} because it does I mean we go to the beach all the time the showers fall dawn all the time because everything's rots in the salt. Mr. Furfaro: I understood your point. There is a difference between repair and maintenance and expansion. Mr. Pleas: Yes. Mr. Furfaro: Okay any other questions for Bruce? Mr, Asing; I have a question, Bruce in your answer to Cauncilmember Bynum's question on the shoreline certification, do I understand that you're saying that no matter what structure is being placed a shoreline certification line must be established? Mr. Pleas: If it was a... 11rIr. Asing: Axn I correct? Mr. Pleas: If it is within the shoreline setback area. 11rIr. Asing: Okay. So you're not giving any leeway then, it's all structures as far as you concern that is placed within the area, the shoreline certification line must be established? Mr. Pleas: Yes. Mr. Asing; Am I correct? Mr. Pleas; Okay. Thank you. Mr, Furfaro: Thank you Mr. Asing. I don't think we have anymore questions for you, Ms. I~awahara: Ida, Mr. Furfaro; Oh you do, go right ahead. You know before we do, may L Mr. Kaneshiro as Vice Chair of this Committee may I turn the Committee over to you because I just need to step out for a moment and we're taking testimony on the amendments, an that note. 35 Mr. Kaneshiro: Okay. Ms. Kawahara: Thank you. Mr. Furfaro: The Committee is being run by Mr. Kaneshiro. Mr. Kaneshiro: Okay I will recognize Lani, Councilmember Kawahara go right ahead. Ms. Kawahara: Thank you Councilmember Kaneshiro. So in your discussion with Councilmember Furfaro where he clarified that these were improvements or repairs, you did say "well that's okay". Mr. Pleas: I would agree with repair and maintenance because nothing new is being added. Ms. Kawahara: Uh-huh no expansion. Mr. Pleas: But if there is an expansion then we need to... Ms. Kawahara: Right. Mr. Pleas: go through the whole process. Ms. Kawahara: But if there's no expansion then we're good with the certified shoreline as it is? Mr. Pleas: Yes unless the shoreline happens to be behind which your repairing and maintaining and then you want to do it... Ms. Kawahara: It's already been permitted and everything else in the past and we're just... Mr. Pleas: I think the only exception would be in if the repair and maintenance being done because of the shoreline has gone past the permitted structure that you are going to repair. Ms. Kawahara: Okay thank you. Mr. Asing: Let me follow up on that question. Mr. Kaneshiro: One more follow up question. Mr. Asing: Bruce, your answer to that question though unless you do the certification, you have no idea where it is. You have no idea, zero. What you're really saying is that in the past this structure was okay, now we're going to do... let's say 10 months pass, now we're going to do repair and maintenance on this structure here and because in the past, the shoreline was okay we don't have to do anything but you don't know where the shoreline is in the first place because 10 months has passed and supposing the shoreline is here now rather than here and the structure is now nonconforming, so I don't... is that your feel? It's okay. 36 Mr. Pleas: With the shoreline being past the structure that requires repair and maintenance and that is the reason that the repair and maintenance is being done, that would automatically trigger a shoreline certification because even so it's repair and maintenance it obviously the shoreline has caused the problem so to me because you didn't know where it was before, if you're going back to do repair and maintenance... Mr. Asing: No you knew where it was before because it was approved. Mr. Pleas: With what... Mr. Asing: So 10 months ago it was approved, it was okay. 10 months passed I don't know where the shoreline is, the certified shoreline now, it used to be here, I don't know where it is, the building is here now 10 months past and the shoreline because you don't know where it is, it maybe here which is okay, it maybe here which is not okay but unless you do it, you will never know. Mr. Pleas: And that is the importance of doing a shoreline certification on all new structure you put up because then if you do... Mr. Asing: Forget the new, for the new, we're talking about existing. Mr. Pleas: Existing are before this... before this bill came into existence (inaudible) shoreline certification was not required so that is why I'm saying all should have shoreline certification so that scenario does not happen again because if you require shoreline certification for everything put in the shoreline, you would know where that shoreline was when you put that structure in and therefore 10 months later because it's back here you would know the erosion rate for that 10 months is 50 feet for a year but and also you have to remember it can go 100 feet 3 years later but that's why it is important to have a shoreline certification of everything that goes close to the shore so that you would know instead of not knowing as the scenario you put out. Mr. Asing: Thank you. Mr. Kaneshiro: With that do we have any other speakers that wanted to speak on this Bill No. 2319? Mr. Mickens. Oh! Mr. Mickens: Karen do you want to go first? Mr. Kaneshiro: Thank you Mr. Mickens. Thank you for your testimony Mr. Mickens. You have the floor now. CAREN DIAMOND: Caren Diamond. I did prepare some slides for you that I hope you would allow me to show you. Because then you can see what we're talking about. But before I get into that I just want to stress that a certified shoreline is State law and the county doesn't have any ability to violate State law or to make laws less strict than the State law. And 37 certified shorelines are really important in determining the public trust from the private lands and I urge this Committee to really look at the public trust and the benefits to the public and to... when you're looking at this to think of the public and the public trust and not just a private developer. It's really important that certified shorelines are done so that improvements are being located and without a certified shoreline that's current, we would never know if the improvements are being made in the public domain or on private property. Whether it's done by... and I guess I'd like to say that I'll reserve my right to comment on these amendments later on aside from that and show the slides that I have prepared if that's okay. So this will be a reoccurring theme where the ocean has washed up to the vegetation and there's very little beach period. This is a slide... you can see the plants that were planted in the middle of the beach there and they kind of lined up to other be the white fence that was further down the beach but what happened was this was done without a certified shoreline, this was the spot that ended up going all the way to the Supreme Court. This is that very same spot just a few years later where the Naupaka that was planted has grown way taller than myself standing there. The light is kind of bad there but the ocean is washing up and through this and sorry these are out of order so this one should've been right before the slide that I just showed you, where you can see just a few years after that vegetation was planted, there was no longer access along the coast. This is that same spot and this was in 2007 when the waves came and they did take away all that... most of that vegetation and knocked it down. I don't know if you want to put public... public facilities in spots like that while waiving a certified shoreline because that same thing can happen to those public facilities. This is what was left of our beach. Moving a little further down as you can see as they were doing construction and again in this spot they waived a certified shoreline and I think this was 2001... (beeper beeping) Ms. Diamond: where they used a 1995 shoreline instead and so as soon as they put up the orange fence on that 1995 shoreline the waves came and washed them out. Mr. Kaneshiro: Excuse me for a second Caren, your first 3 minutes is up so I'll go ahead and give you another 3 minutes to continue your presentation. Ms. Diamond: Thank you. So even though the waves had come and washed it out you can see that the land owners with county permission installed naupaka and lots of soil and planted grass and you can see the sprinkler head there. But that wasn't enough so the landowner came and put a fence there next, under this bill all of this would be legal so that the public would have no recourse anymore and our beaches would be fenced off. You can see the end... the end part of it was an addition to the fence, this is along the a public access way. No longer could you have public access when the waves... these weren't even specially big waves, many times during the winter and all times during high-tide, seasonal waves, there's no longer access across our beaches. Instead we see walls, landowners cut down the trees. Not only that, they then plant the beach, they bring in soil, they bring in plantings. And then that's what it looks like now, there's no beach left there at all. You can't walk there. Plantings should not be allowed them 38 without certified shorelines, this was a property that did no certified shoreline and in fact the last certified shoreline was 1980 and so I... I seen or I heard some talk where people were talking about using... allowing landowners to use the last certified shoreline, that results in the lost of our beaches. Here you have another smiley face watering what was our beach. And now the naupaka grows there instead, you can see by the sand build up it's starting to build up deep and the waves washed in and get stuck in that naupaka. This is the advertisement for the vacation rental where all that used to be beach is now... is now landscaping, you can golf there and you can find the golf balls in the ocean as well. I had passed out some advertisement, this is the Blue Lagoon vacation rental and the advertisements that you have and the website wouldn't print out, I couldn't get it to go on this so I printed you out a hard copy but it advertises the beach as private beach and all this man's vacation rentals has advertises "private beach" along with it and in fact he has privatized the beach and he's done it with plants. No, you can't go there anymore. Again we have fences off our public access ways unto the beach where the waves wash them. I think this was why we had the setback bill to begin with because we do have erosion and it's kind of a serious thing and waiving certified shorelines, I'm not sure why... (Beeper beeps) Ms. Diamond: when we have erosion, we have sandbags that come up to protect our beaches and the structures that would be allowed in this bill that doesn't have much clarification but when they say for public health and safety, is that public health and safety to protect a building when it's falling in rather than moving the buildings? And you might look at changing some of the wording in these building for "relocation", relocation, relocation, it's the sensible thing to do. We're either going to armor our coast all along Kauai or we're going to relocate the buildings that are at risk. The sandbags are now floating in the ocean, they're part of the reef. There's more plantings of the beach where people just take our nice sandy beach, this is the sand spit in Wainiha and you have these grass sod parts that were put right on top of the sand and now where those sod parts were put is way up by those trees and all this has been the grass just keeps running down to the ocean, it's made a scarp, the beach is really ugly there instead of a beautiful sandy beach. The fishermen can no longer fish there. Whatever is put on the coast gets washed into the ocean, if you allow any improvements to be seaward of a certified shoreline, seaward of the high wash of the waves, you're going to... that stuff is all going to float in the ocean come the high- tide. Again there's more plantings, your bill will legalize these kind of thing. Rather than a beach, we have landscaping, it's hard to see the ocean there but that the ocean all the way up. Again it's a reoccurring problem in Wainiha, our beaches have been planted to the depth of them. We have facing beach loss, the public have no where to go because we have luxurious wonderful plants on our beaches now. This picture when you see the tall ironwood trees all are seaward from those tall ironwood trees have been planted in the last 5 years. Little by little by little the landowners put more plants, more plants. Ironwood trees full grown ones, not big ones but the smaller sized ones appear over night. Lilies, spider lilies come by by the truck loads and get up in by the dark of the night, and when those grow in they keep planting more and more and more seaward. I don't know about you but the beach is the most valuable thing we have here. And I don't understand why the County doesn't protect the public trust and I don't 39 understand why bills like this is before you. And I don't understand why after spending over 3 years of a lot of public money to do the coastal erosion studies, that changes to this bill have not been waited until that data is ready to be implemented. I ask you to defer this bill indefinitely, I ask you to come back with a different bill and not even try to amend such a flawed changes. The original bill was very was good. I don't understand why this county wants to break State law and I hope that the County Attorneys don't urge... or allow State law to be broken. Mr. Kaneshiro: Okay thank you for your testimony. Any questions? Councilmember Kawahara go ahead. Ms. Kawahara: Hi Caren. I just want to thank you for the work that you put in to a State law because I remember being there with you. Ms. Diamond: It's always been a state law. The state law was clarified... Ms. Kawahara: Yes. Ms. Diamond: As it being at the highest wash of the waves. Ms. Kawahara: For clarifying that then because I remember that. So any of those pictures that you have now would they be allowed under HRS Chapter 205A? Ms. Diamond: It's all happening... all this is happening right now. It's happening with no enforcement. But what the changes to your bill does is allow them to happen legally. Ms. Kawahara: Okay because actually I was wondering about that... because there's a thing in here it says all structures shall be consistent with the purposes of this Article and HRS 205A as amended. So. Ms. Diamond: This is the practice that's happening on the ground. And so... Ms. Kawahara: So it's still happening... Ms. Diamond: It's still happening right now. Ms. Kawahara: Even though it's an exsisting law? Ms. Diamond: Yes. Ms. Kawahara: Okay but this law also says that you can't do it, this one, our county law says we would only be allowing things that follow HRS 205A. Ms. Diamond: The changes that I saw to this bill that waive a certified shoreline, in waiving the certified shoreline you are not agreeing with what you just said because if this bill was compliant with 205A, you would have a certified shoreline before any development is being proposed. What this bill is being... is asking you guys to do is to say we don't care about 40 where the certified shoreline is, people are allowed to plant or allowed to put fences as a result as minor permits so that we should allow them to do it. What we're saying is you... even though it's allowable uses the details and where they are allowed to do that gets determined by a certified shoreline. The county doesn't have the ability to waive that and as I look at the amendments from Tim where it says the Hawaii Seagrant college programs specialist will do it, they have no legal authority to site... to do shorelines either. It's really specific state law and shorelines are not done the delineation and the certification is not done by Seagrant. Ms. Kawahara: Okay thank you and I wanted to also ask because I really want your input and where do you stand on the public improvements facilities repairs to lawfully exsisting private structures? Ms. Daimond: I think the county should be an example so if you have something that you have a shower that was existing and you just need to replace something, I think that's fine, if you're going to make additions to things then the county should lead by example and get a certified shoreline. It's not that big of a deal. Ms. Kawahara: Okay so there's about $3,000 to $5,000 in the minimum and I'm just wondering... Ms. Diamond: I don't know that they're that pricey? Ms. Kawahara: Okay I think I read testimony that that's how much that was but I won't hold you to it. Just curious, we... because I definitely honor the bill that guys... that was put through originally and I'm... I am worried about making changes to it and weakening it so I'm looking at it very carefully and I am not sure and I don't know which way I'm going to go but it does seem to correlate to 205A, I worked it so that it complies with 205A but allows the public... public things that need to be done for safety... Mr. Kaneshiro: Excuse me, Lani did you have anymore questions for Karen? Ms. Kawahara: So I guess my question is (inaudible) all new structures or activities shall not adversely affect beach processes, artificially fix the shoreline, interfere with public access or public views to and along the shoreline, impede the natural processes and or movement of the shoreline and/or sand dunes or alter the grade of the shoreline setback area, are those... are those reasonable enough and powerful enough to keep it aligned with 205A? Ms. Diamond: I think those are all good additions but if you look at the SMA rules and regulations you how Planning checks off those things when they really don't fit the criteria, it doesn't give me any sense of security that this is an addition to this bill. I think that the certified shoreline needs to occur. Ms. Kawahara: Okay thank you. Mr. Kaneshiro: Okay thank you for that and with that I'll 41 turn the floor aver to our Planning Committee Chair, Mr, Furfaro, Mr. Furfaro: Thank you Mr. Kaneshiro for filling in far me. Mr, Bynum. Mr, Bynum: So the images you have showed are very powerful and I think we're all unanimously concerned about that activity. The amendments that I am proposing would not allow discretion an private property, you recognize that? Ms, Diamond: I do. But I think.. , Mr, Bynum: C?kay sa this bill if it were amended as I'm suggesting would not allow any of those things to happen, right? Ms, Diamond: It's a do as I say not as I do thing so that if the county says you can't have seawalls an private property but you can have them on public property, what does that say to the private developer? Mr. Bynum: The bill as amended would not allow those things to happen, is that correct? Ms. Diamond: Would not allow what to happen? Mr. Bynum: Weli you said your testimony was the bill that we're endorsing this that it would allow that to happen. The bill as amended does not apply to private property. Ms. Diamond: Well I just got these amendments so I'll have to look at this and see because what was an the agenda, was not the amendments, what was on the agenda was the bill as it was written and that's what I have read and that's what my comments were to. Mr, Bynum: Well even the bill as written would have potentially allowed the director discretion about certifying a shoreline but that would have had to gone to Commission for public knowledge and content but you know. Ms, Diamond: The way this is written it's hard because it's not written with the amendments that were... that were already introduced it's hard to see and sa I'd like to come back later and lank at it. Mr. Bynum: So let me ask one final question, Ms. Diamond; Sure. Mr, Bynum: This is real situation the county has a shower at Anahola Beach Park; federal law requires us to make that shower accessible, we have to put a sidewalk, we know it's in the shoreline setback, should we spend tax payer money to da a certified shoreline to put that sidewalk in when we already know that wherever the shoreline is, that its going to be in the setback. Ms. Diamond: Well you might want to consider if the 4~ certified shoreline is landward of that bathroom, you might want to move the bathroom. You might want to consider not putting public constructs at risk. So you would... it would be to the county's benefit to see where that shoreline is and if it doesn't... I mean are you saying that the ocean washes past it on a regular basis... Mr. Bynum: I didn't say that, I said it's an existing shower that's been there long time serving the public and federal law says we have to make it accessible. Ms. Diamond: With sea level rise the county is going to continually have these problems and we're going to have to have good policy and good planning where we address what happens... Mr. Furfaro: Excuse me Karen, I need to interject you. A question was posed, the question dealt with this situation as you call it (inaudible) in Anahola and I guess that's the dilemma you know, what should the county do? Should we fix it and be in compliance with federal law or I think you said spend a $100,000... Mr. Bynum: No I didn't say an amount. Mr. Furfaro: Or something well... Actually to redo it to be in compliance. A $20,000 study fora $5,000 repair, or I guess that's the rationale I just throw out there. Is that your question Mr. Bynum? Mr. Bynum: Well I mean this bill was sent to us because... Mr. Furfaro: Mr. Bynum, I asked you a question... Mr. Bynum: Yes. Yes that's basically the question. Mr. Furfaro: Was that the intent of your question? Okay. Mr. Bynum: Should... I mean should we spend tax payers money you know doing a certified shoreline when we know that this will be in the shoreline setback and it's already a permitted activity in the shoreline setback. The purpose of this bill is very limited, it's to not create situations that are wasteful. You have real concerns about what private landowners would do, I share those concerns and that's why I put this memo... this amendment forward that would... this would apply only to public projects that are in the public interest and to repair maintenance of lawfully existing structures because I also felt like if you have a you know... I was at a resort recently and they were re-roofing the building that's been there for 20 years, and we know it's in the shoreline area, I don't think that that private entity should have to get a certified shoreline to re-roof, now if they wanted to expand that by one foot and new construction, get a certified shoreline, that's the amendment that I'm putting forward. Mr. Furfaro: Thank you. Anymore questions of Karen? Thank you for your presentation. Ms. Diamond: Thank you. 43 Mr. Furfaro: Do we have another speaker on this? Mr. Mickens. Mr. Mickens: I was going to thank Daryl but I'll thank Jay now. Just have that question on that number 4 that Lani spoke about. All new structures and activities shall not adversely affect beach processes, artificially fix the shoreline, interfere with public access or public views to and along the shoreline, impede the natural processes and/or movement of the shoreline and/or sand dunes, or alter the grade of the setback bill, I just wondered how is that going to affect or how that proposed Boardwalk will come under this particular amendment? Mr. Furfaro: I'm not the introducer of the bill or the amendment so... Mr. Mickens: Okay. Mr. Furfaro: I assumed your question was directed at Councilmember Bynum or? Mr. Mickens: Yeah. Mr. Bynum: (inaudible) absolutely no impact at all because we you know that wall... this is... this bill won't apply to that at all. Mr. Mickens: It won't interfere with public access or public views to and along the shoreline? Mr. Bynum: This bill will... this bill won't apply to that at all because they didn't ask for... they did a certified shoreline... a whole EA so it's not applicable. Mr. Mickens: But according... if your amendment passes then isn't that going to supersede what their EA had done? Mr. Bynum: No. Mr. Mickens: Why wouldn't it? Mr. Bynum: And I've answered your question. Mr. Mickens: I didn't hear the answer I'm sorry Tim. Mr. Bynum: No. That's the answer. It's not applicable. Mr. Mickens: So you're saying that your amendment will in no way impede the natural process of moving of the shoreline and sand dunes, that's what you're saying right? Mr. Bynum: I'm proposing adding that language to this portion of the bill. Mr. Mickens: But if you add that language to the bill that's 44 going to change the EA that was done on it. Mr. Bynum: I can't... I can't answer that. Mr. Furfaro: It looks like we do not have a complete answer right now. Mr. Mickens: Okay. Mr. Furfaro: I want to say that we have to take a recess not from video to the camera people, we have to take a Committee recess, we're about 15 minutes delinquent in a scheduled presentation so unless there's any other questions of Glenn, I'm going to ask that we take a recess from the Committee only but that the Councilmembers stay for this presentation. Glenn thank you very much. Mr. Mickens: Thank you Jay. Mr. Furfaro: This Committee is in recess, please do not leave the Council Chambers as we have a presentation. There being no objections, the Committee recessed at 11:49 a.m. The Committee reconvened at 12:11 p.m., and proceeded as follows: Mr. Furfaro: I'm going to call the Planning Committee back to order and just to give the audience, we have about 15 or 16 minutes on this item that we're dealing with on the shoreline at the moment, we are going to break for lunch at 12:30... (Can't hear you) Mr. Furfaro: Okay. At 12:30 we will break for 1 hour for lunch at 12:30. We had request from the Committee after mine Public Works to actually get a Capitol Improvement presentation from the Public Works Department and I also want to remind everybody that the first agenda item dealing with energy in my Committee as it deals with the small wind energy bill has not yet been completed and that will be taken up at the end of my Committee. So when we had ended, we had ended after public testimony from Glenn. Is there anyone else in the audience that would like to speak on this item? Jim, please come right up. JIM O'CONNELL: For the record my name is Jim O'Connell, I'm a coastal processor specialist with the Seagrant program with the University of Hawaii stationed here on Kauai. This is a county funded position, I thank the county for being here and allowing... allowing me to provide technical opinions and analysis. I did want to testify on the bill but what I want to do first I'd like to go into the sort of the heart I think one of the major issues are with these proposed amendments and that's section 8- 27.8 relating to requiring (inaudible) requiring a certified shoreline for a certain... for certain types of activities. In that section in (c)(2) when it's broken down between (c)(2) and (c)(3) broken down between private improvements and facilities or public, I do agree I think that that's a reasonable suggestion for consideration and the reason being public property 45 that's owned by the public that has beach access and it's beach accessible to the public, the certified shoreline I think is much less important than a privatizing or private parcel. First of all I think what has not yet been bought up today is that that section (c)(2) is at the discretion of the Planning Director, the Planning Director has the discretion to require a certified shoreline on public properties if he or she so thinks that is necessary. And if not the suggestion is to have a Hawaii Seagrant agent go out and provide a surrogate location for what may have been the certified shoreline. The Seagrant agents do not have regulatory authority but the Seagrant agent on Oahu who's presently Chris Conger, in every insistence on every island in Hawaii, delineates the proposed location of the certified shoreline and he's accompanied by the State surveyor. They come... they work as a team on every single certified shoreline on every island. I'm not aware of any case where the suggested location of the certified shoreline by the Seagrant agent, who acts in that capacity with the State's surveyor... where the State's surveyor disagreed with them. They are in the field, they talk together and the State's surveyor rely on the expertise of the coastal processes Seagrant agent to provide that location but again even that's at the discretion of the Seagrant Director. Number 2 the suggestion came up what if this (inaudible) island was eliminated with the funding was limited and the coastal processes agent was no longer here. The coastal processes agent within Seagrant is the core position with the program. There will always be a coastal processes agent on Oahu. At the present time there's 2 on Oahu, 1 will be on Maui, Zoe (inaudible) just recently left but she will be replaced with another agent, there's another agent just hired for the Big Island and myself for this island. Before I came here a little over a year ago when there was a technical issue that related to coastal processes or question, there was always the ability to call up the Seagrant program in Oahu (inaudible) Zoe would come over from Maui but there was always the availability of a Seagrant coastal processes agent to provide a technical opinion, and an unbiased technical opinion I will add to that... (Beeper Beeps) Mr. Furfaro: Excuse me. Your first 3 minutes are up, I'm going to go ahead and extend your time and don't worry because of your special skills and position, I might go beyond that time. So please go ahead. Mr. O'Connell: Thank you. So those are pretty much my points about that. Since I've been here a little over a year ago, I have accompanied the State's surveyor and the Seagrant agent who works in concert with the State's surveyor to delineate the certified shoreline, I have accompanied them on every single case that they have delineated on Kauai since I been here a little over a year ago so I know their process well. They look to me sometimes because I've done delineations in other states try to delineate where the high wash of the wave is or delineating (inaudible) so I feel like I have the background to be able to do that and we could always... it could be appealed if the Seagrant were to provide a surrogate shoreline, it still has to go before the Planning Commission and at that processes they are any question could be raised about the delineation and could be discussed. What the Seagrant agent would do, would be identical to what they do now in the certified shoreline. We take photographs and write a report on why you think that certified shoreline location is in that particular spot and therefore the public could read that and have the ability to challenge that on any point 46 in time. That's my primary... one of my primary concerns. I'd like to also go back to Section 8.27-7 the permitted structures and this is not the amendment, this is actually part of the Planning Commission's approved submitted to you but as it was brought up by other folks earlier today, in that Section number 10 unmanned civil defense facilities and number 11 structures and activities necessary to be within the shoreline setback area for public health and safety, I do still feel that is... it's very, very broad and undefined. Two things, one the... again the Director has the discretion to require a certified shoreline and in the review process in the Planning Department and the Planning Commission, they could always require that facility to be as far mauka as possible on the property. So at least you can provide some protection but again we're only talking about things that are already permitted in the setback area. In addition, if... if the language stays the same for example structures and activities necessary to be within the shoreline setback area for public health and safety, you could... you could consider adding some language perhaps making it a temporary nature and then require to go through the full review process. Something for consideration. Something that Bruce has brought up earlier in his testimony was that we need the certified shoreline to look back and do a check I guess on the University of Hawaii shoreline (inaudible), the certified shoreline will not give you accurate shoreline change information. But if you would like to consider if this bill passed and there was a surrogate certified shoreline location allowed by a Seagrant agent or some of the unbiased individual, we could provide GPS coordinates of that line so that you would have that on record and that... if you wanted to use that for some purpose to look at how the shoreline was moving, you would have the GPS coordinates to be able to do that analysis but I would never use a certified shoreline to determine shoreline change rates anywhere, it's just not technically appropriate. I think the additions to the amendment for example number 4 in 8-27.7 number 4, I think the addition all new structures for activities shall not adversely affect beach processes, artificially fix the shoreline, interfere with public access or public views to and along the shoreline... that was language that accompanied... presently accompanied the minor structures and activities that's already in the original ordinance in the definition... under the definition of minor structures. I think by taking that exact language and putting this and covering everything that would ultimately or possibly be allowed in the shoreline setback area is a really good fallback to ensure that what you put there will not affect the public use and enjoyment of the shore or the views or affect beach processes so I think that was a very good addition and a good fallback to ensure that it will not have adverse impacts. And I feel compelled just because of my technical background in coastal processes and having traveled a lot around the country and seeing most shorelines in every state and in Ms. Diamond's testimony, or her pictures, I feel compelled to say that those more than likely.., violations. Those are people going out doing this without a permit so I can't say that you can blame it on the county saying that they're not doing their job. Those are the things that were put out there without permits, without any recognition, without really anybody's knowledge. And also by saying that those are violations, where's the certified shoreline in those photographs? I think there's an assumption made that they are makai of the certified shoreline, we don't know that. I think a reasonable person could look at the photographs and say "more than likely they are" and if they are makai of the certified shoreline, it's not county jurisdiction, it's state jurisdiction and the DLNR recently in the newspaper article that they have so many projects that they can't deal with minor 47 plantings, I think that's a real shame but that's the reality of the situation. Mr. Furfaro: Thank you Jim, on that note for re- identifying the challenges we have with the State DLNR and you know perhaps going forward we can encourage more enforcement and that's why I made reference to 8-27.7 (a)(1) existing versus having existing permitted because if those fences are illegal and so forth, if they want to replace the fence or repair the fence, they would never be able to come back and say they had an approved permit in the first place. Mr. O'Connell: Good point. Mr. Furfaro: And that's the whole piece that I'm saying rather than talk about conforming and nonconforming and so forth, that's precedes them as they could move forward and apply for a nonconforming permit when we should be saying "your fence was there, fine. Show us the permits that you had for that, if you don't we are asking you to remove it rather than let you repair it." Couple other particular pieces here GPS coordination, what is the Department perhaps doing now as we try to build some definition and some records of global positioning of the shoreline... the certified shoreline every time someone turns something into certified... are we kind of piecemealing it together like a puzzle? Do you know what we're doing? Mr. O'Connell: Well the Department doesn't do it, the DLNR does it but yes... when the certified shoreline is delineated by the Seagrant agent, approved by the state surveyor, then a private surveyor hired by the homeowner or applicant will go out and actually survey in the location of that certified shoreline and they will put it on a plan so we do have all those records. Mr. Furfaro: So we are putting these pieces together slowly but surely? Mr. O'Connell: Yes. Yes. The surveyors data are more than likely more accurate than a handheld GPS unit that I have. My GPS unit is accurate within about 2 meters, the surveyors is within centimeters so there is that consideration. Mr. Furfaro: Okay would you have a problem if we removed any reference to something that civil defense might need to have in item 10? I can't understand what they would build inside of the shoreline setback that makes financial sense to even put that capital improvement there. Mr. O'Connell: Other than perhaps and this is just a suggestion... other than perhaps sirens that may want to reach a certain population. Mr. Furfaro: Right. Mr. O'Connell: Other than that I'm not sure, it is overly broad and it could be a massive facility but again the Director has the discretion to require a certified shoreline if it's on public property and go 48 through the whole entire process and see whether or not there is an alternative to that. Mr. Furfaro: I guess my point is... it's a lot of public money going into something that could be gone after one natural disaster. Mr. O'Connell: Sure. Mr. Furfaro: I'm not even sure if we want to be able to put that in there to give the Director the discretion. Mr. O'Connell: Right. Mr. Furfaro: I would think that State would come forward and say "hey we got this great new measurement system that measures you know ripples on the surface or you know oncoming shock waves and you know we want a permit rather than put it in there. And number 11 it's just way to vague to me. Mr. O'Connell: Yeah that's why I'm suggesting that perhaps make it a temporary or emergency basis and then have it go through the process to see whether or not it is in fact necessary. Mr. Furfaro: Okay what can we do about documented violations with the DLNR in your opinion? What can we do... this Council... the political sub-division called the County of Kauai, I mean some of them are pretty vagrant. Mr. O'Connell: In terms of plantings for example? Mr. Furfaro: Yeah. I mean is it recommended to keep shorelines that they plant and then people turn them into private yards and so forth based on the fact that... it's encourage to plant to save the shoreline but there is that gray area of planting so you can expand your yard or portray it as a private beach when that is completely against the you know... public trust and even in the statehood laws. Mr. O'Connell: Right. Having come from a recently before I came here... having come from a State that's a high water state where the property... excuse me low-water state where the private property landowner owns to low water. Having come from a state and then to come here to see all the beaches open to the public, I think that we do need to seriously consider the major problem of private property owners and maybe public. I'm not sure of artificially planting and artificially fertilizing plants and taking up that public use area. I think it's a serious problem and I think we have to address it but the problem is are you going to (inaudible) has a county decided to take action, are we taking action on state jurisdiction property or county property? I think it's a legal question we need to answer. (inaudible) a couple of years ago there was an ordinance passed by the Council to remove artificially planted vegetation that was makai of the certified shoreline. The certified shoreline is only legal for 1 year then there is no certified shoreline legal... legal certified shoreline so I would suggest perhaps that it's a serious enough question that we should pursue it and probably put together a small committee and decide what action we can take because I think it's a serious 49 problem that we as a county do need to address. Mr. Furfaro: Well I want to point out like the book was passed out today "lucky we live Hawaii" the shoreline here is public access, very different from the State that you come from. But would you be willing to sit on the a Committee that reviews potential enforcement? Mr. O'Connell: I would be happy to do that. Mr. Furfaro: Do you see anything that might be added in this that references what... and a stronger position of what the private community could do about the difference between repair and maintenance of something that exist versus expanding improvement that actually (inaudible) beyond where it should be. Is there anything in here that you think we could make stronger? Mr. O'Connell: I'm not really clear on your question Jay. Mr. Furfaro: Here's the question. Should we be even addressing private landownership in this bill? I mean everything that I saw and hear should reference for public good, for public safety, for public use, but it also implies sometimes about public and private. Mr. O'Connell: Well I think that was stated in here only to be able to suggest that for a public property that's open to the public for beach access to try to separate that out and as Tim was saying as the amendments are suggesting to make that a less expensive, easier process to go through because it's already publicly owned and the idea of a surrogate shoreline hopefully will keep it safe. Mr. Furfaro: Okay well maybe I'll talk with you after. I guess perhaps I didn't make myself clear. Mr. O'Connell: Yeah. Mr. Furfaro: But I'm a product of public school in Hawaiian, we value our shoreline big time and I'm just wondering why we would make reference to anything that might involve a private landowner and his improvements inside a shoreline. Mr. O'Connell: Oh I see... I see the improvements interior or just (inaudible) building without any expansion. Mr. Furfaro: Yes. I agree the hotel that re-roofs a hotel I mean that's normal repair and maintenance that needs to happen. Mr. O'Connell: Right. Mr. Furfaro: But if the repair and maintenance on the roof now extends a veranda or walkway that's ultimately ends up as a pier in the water for sight seeing or fishing you know. Mr. O'Connell: But my read of this... is only... my read of this and the original ordinance only states that you cannot enlarge a 50 structure that's presently in... within the shoreline setback area conforming or nonconforming, private or public. Mr. Furfaro: So you feel... you feel there's enough verbiage in there that addresses that? Mr. O'Connell: I think so but I'd be willing to sit with you and go through it line by line. Mr. Furfaro: We've had many request for deferral today and I've shared a couple of my point 10 and the 11, getting more definition from civil defense, some of these particular things having a definition about repair and maintenance versus expansion and improvements, the kind of... to me trigger a little stronger verbiage but let me see if there's other questions here. Mr. Bynum. Mr. Bynum: I just kind of a general question, the bill... if the bill were to pass with these amendments, do you feel like the bill undermines the intent of the original shoreline bill? Mr. O'Connell: No. No I do not. I think the protective measures to continue to ensure that the public has use and enjoyment and access of the shoreline and it does not interfere with coastal processes, I think those protections are still there. Mr. Bynum: Thank you very much. Mr. O'Connell: Just if I could just one last thing. I just want to ensure that you know that Maui does have a process that they go through where the Planning Director there, has the discretion to require a certified shoreline or not and they exercised that right in a number of cases and you can talk to the CZM planner on that island to determine how they do it. But if they do not require a certified shoreline, they do run it by one or more people they claim in the DLNR but those people do not have the authority as Ms. Diamond said, they don't have the legal authority to do that either, it's at the Planning Director discretion, but they do exercise that discretion as well. Mr. Furfaro: Could you get us something that references that extra step? Mr. O'Connell: I could I do have something in my possession now actually. Mr. Furfaro: Okay just so that we have something to comp are. Mr. O'Connell: Okay. Sure. Mr. Furfaro: Mr. Chair. Mr. Asing: You know after the shoreline has been certified, how long is that good for? Mr. O'Connell: 1 year. 51 Mr. Asing: 1 year. Okay that's under State law, 205? Mr. O'Connell: Under DLNR regulations. I'm not sure if it's 205A, I think it might be under a... I'd have to check, I'm not sure if it's under DLNR specific regulations but I do know... Mr. Asing: But it's only good for 1 year? Mr. O'Connell: To my understanding, yes. Mr. Asing: Okay I just wanted to make that plain, thank you. Mr. Furfaro: Thank you very much. Mr. O'Connell: Thank you. Mr. Furfaro: It is 12:35 this body plans to take a recess for lunch, I hope we can finish up very quickly before Mr. Heu comes over to talk about CIP but I'd like to recess for lunch now. Is that fine with everybody? We're going to recess then. There being no objections, the Committee recessed at 12:35 p.m. The Committee reconvened at 1:40 p.m., and proceeded as follows: Mr. Furfaro: We are dealing with the shoreline modification... BC (inaudible) Mr. Furfaro: Is it on? Yeah we're rolling, we're rolling I'm sorry. And I want to say that we have received correspondence from the Native Hawaiian Legal Corporation that raises some new questions regarding the shoreline bill, we also have references here on page 188 of what is not prohibited regarding the public amenities and structures within the shoreline area that I would like to have reviewed and circulated so there's many parts here still coming together on this bill and therefore I'm thinking we need the Native Hawaiian Legal Corporation's letter to be seen by the County Attorney, I want to make reference to the items on Chapter 205, 844 on page 188 what is legally permitted inside a shoreline area and therefore I'm going to be asking for a deferral until October 14th of this bill. Can I have a... Mr. Kawakami: So moved. Mr. Kaneshiro: Seconded. Mr. Furfaro: It has been moved and seconded on the shoreline bill to be deferred, date specifically October 14th, thank you members. Upon motion duly made by Councilmember Kawakami, seconded by 52 Councilmember Kaneshiro, and unanimously carried, Bill No. 2319 was deferred to October 14, 2009. Mr. Furfaro: Now before we go to Mr. Bynum and his agenda item for Public Works, I would like to go back to the Bill that we had been working on Wind Energy earlier and ask if there's any further discussion on that particular committee agenda item and any motions on action or not, we had circulated the particular information associated with this, I'm still asking that we defer until October 28tH. Ms. Kawahara: Can I get a point of personal privilege? Mr. Furfaro: You want a personal privilege? Sure. Ms. Kawahara: To address what was addressed to us... to me anyway about from Councilmember Kawakami, I'm sure you didn't imply that we're not working with you at this point, I think... Mr. Furfaro: Okay I'm going to end the... recognizing you on the floor as the Committee Chair. What was said was said, we have 2 opinions here, we can vote to defer until October 28th or we can vote to approve the bill, okay? That's what we can vote on, I don't want to go back and discuss publicly what could in fact be discussed between members separately. Ms. Kawahara: Okay. So what... we're discussing the bill now? Still? Mr. Furfaro: Yeah if you... we're discussing the bill, do we have a motion to approve or a motion to defer until date specific October 28th. Ms. Kawahara: I do have also... I have an amendment that I wanted to submit. Mr. Furfaro: Go ahead. Ms. Kawahara: It was to add a section for... for progress report... the Planning Director shall submit a progress report to the Council 12 months after the effective date of this ordinance. And it changes section 4 to section 5 as a in house type of thing, so that was my motion to have a amendment. Mr. Bynum: I'll second that amendment. Mr. Furfaro: Okay there's been... let me go back here, we're not in position to amend that present... we don't have that main motion on the bill itself or we do? Mr. Bynum: No I'm sorry I'm getting my bills confused. Mr. Furfaro: Okay Mr. Bynum so the 2 of you know... we had a main motion on the shoreline bill which we introduced amendments, okay? 53 Ms. Kawahara: Oh okay. Mr. Furfaro: So you want to circulate an amendment, okay it is possible but to move and seconded without a seconded without a motion on the original item is not permissible at this time. Mr. Bynum: Move to approve. Mr. Furfaro: So there's a motion to approve the bill, we need a seconded. Ms. Kawahara: Se... which one are we on now? Mr. Furfaro: We're on the windmill, and we need a seconded. Ms. Kawahara: Seconded. Mr. Furfaro: Okay we need a seconded before you can introduce your amendment. Ms. Kawahara: Okay we're on wind. Seconded. Mr. Bynum moved for approval of Bill No. 2317, Draft 2, seconded by Ms. Kawahara. Mr. Furfaro: So we have a seconded on the main motion. We now need to ask if we can circulate your amendment. Ms. Kawahara: Oh is it circulating the amendment? (inaudible): Yeah we already have it. Ms. Kawahara: Okay so you guys already have it. So I'd like to ask to move to amend to circulate. Mr. Bynum: Seconded. Ms. Kawahara moved to amend the bill as circulated, seconded by Mr. Bynum. Mr. Furfaro: Okay there's been a motion to move as amended and a seconded, is there any discussion before we take a vote on that? Mr. Kaneshiro: I would like to see the amendment. Mr. Furfaro: Okay it has not been circulated yet. Ms. Kawahara: It was circulated. Mr. Furfaro: Could we get a copy? Thank you. Mr. Kaneshiro: I would like to have some discussion on the 54 amendment if possible Mr. Chair. Mr. Furfaro: Go ahead Mr. Kaneshiro. Mr. Kaneshiro: What is the purpose of the progress report? Ms. Kawahara: The progress report is so that they can tell us how this ordinance if passed is impacting the community and what is... what has happened since that passed. Because this is a new type of utility I'm asking that we have some kind of report at 12 months to see how it's working. Mr. Kaneshiro: How would the progress report be implemented? Mr. Furfaro: His question is what are the measurable... Mr. Kaneshiro: Correct. Mr. Furfaro: components of this progress report and... Mr. Kaneshiro: who's going to... Mr. Furfaro: and is it the utility company doing it, is it Planning, is it Building? Ms. Kawahara: What is the normal process for a progress report? Mr. Kaneshiro: I'm asking you. Ms. Kawahara: I'm asking because I don't know. Mr. Furfaro: I'd be glad to deliver you some particulars... you pretty much would have a custom report... Ms. Kawahara: Right. Mr. Furfaro: Fitting the ordinance that you're trying to measure. You could have things like, how many applications came in, how many were approved, what was the net effect on kilowatt... Ms. Kawahara: So do you mean... Mr. Furfaro: additions, those types of things and I think Mr. Kaneshiro's question is... is you know in your plan for this amendment what are you wanting to measure? Ms. Kawahara: Yes. I want to measure the impacts of the ordinance and if that includes all of those items then that's what it would be. Mr. Furfaro: Okay. Ms. Kawahara: And I... I would defer to anybody who has suggestions about what the progress report is but it is items like you 55 suggested. Mr. Furfaro: Well no I was giving you an idea on what a custom measurement would be depending on you know I mean you would measure... you know what the population is of Kauai chickens based on how many eggs they lay, how many hatched... Ms. Kawahara: Well I want to know how many were... Mr. Furfaro: you know but since it's your amendment, you have to give us kind of the perception... Ms. Kawahara: Okay. Mr. Furfaro: I was just giving you an idea. Ms. Kawahara: Okay. So Councilmember Kaneshiro... so shall I come back with a specific list... Mr. Kaneshiro: Well I won't be able to support the amendment that's presented on the floor because the progress report basically states that the Planning Director shall submit a progress report to the Council 12 months after the effective of this ordinance and what is he to judge the progress report on? Where's the guidelines? What are some of the standard of the progress reports? I don't see any of these so at this point I'm not able to support this amendment you know... as circulated. Ms. Kawahara: Okay. Mr. Kaneshiro: So that's my opinion. Ms. Kawahara: Okay. So I asked you a... Mr. Furfaro: Excuse me. I think he asked you a question, you responded, he responded... Mr. Kawakami. Mr. Kawakami: Thank you Mr. Chair and I just want to ask Councilmember Kawahara when she's coming up with her, I guess benchmarks in the progress report, for me, my main concern would just be how many S.W.E.C.S. were permitted within a time frame so for me that's all I'd be looking for so if you could include that into your progress report. Ms. Kawahara: Okay. Mr. Kawakami: I'd be appreciate of that. Ms. Kawahara: Definitely. Thanks. So do I withdraw it to make it to make it so we can... Mr. Furfaro: Well I want to say where we're going with this, if we're going to defer until October 28th, then in fact you can work on these amendments... Ms. Kawahara: Okay. 56 Mr. Furfaro: Because it's work in progress and it can come back at that time. If you want to pursue putting it on the table now, I would think that without the measurable and the benchmarks as Mr. Kawakami is looking for, chances are that it will not pass. Ms. Kawahara: So I welcome all the Councilmembers to submit to me, I'm not going to put this on the floor right now but I do want you to have aheads-up is this is what I'm hoping for because of the ordinance and the importance it's going to play in our renewable energy actions. Mr. Furfaro: So then I need you to remove your motion and... Ms. Kawahara: Okay. Mr. Furfaro: and get the seconded taken off as well from Mr. Bynum. Ms. Kawahara: I withdraw my motion. Mr. Bynum: I'll remove my seconded. Ms. Kawahara: And this will come back later. Mr. Furfaro: Okay members... Mr. Kawakami. Mr. Kawakami: Thank you Mr. Chair, you know I guess since there's a main motion on the table right now I think this would be the appropriate time to introduce any proposed amendments but I'll leave it at your discretion as to which direction you want to take this, I can introduce it now and or you know we can you know... I can work on it concurrently but I think I'm ready to introduce it now. Mr. Furfaro: Okay if that... if that is your choice I will accept that. Mr. Kawakami: Okay thank you. So... I want to move to amend as circulated, I believe every Councilmember has my amendment. Mr. Bynum: Seconded. Mr. Kawakami moved to amend Bill No. 2317, Draft 2, seconded Mr. Bynum. Mr. Furfaro: Okay gentlemen, Mr. Kawakami the floor is yours to discuss the particulars of this amendment. Mr. Kawakami: Thank you Mr. Chair. In my amendment there's basically 3 changes, it's all technical changes. I met with KIUC to address some of their concerns, in section 1 paragraph (f) the amendment would be to include the electrical utility, specifically let me try to cut out a piece of this language here, standards that maybe required by County, State, or Federal agencies and it includes the electrical utility (inaudible). The 57 second amendment redefines S.W.E.C.S. and this was kind of brought up because there was a concern about what about the farmer who's not tied into KIUC and so one of their answers would be you know an easier way to avoid confusion is to delete the section that says [and is intended primarily to reduce on-site consumption of utility power.] So that was the recommendation from KIUC also. The third amendment adds in sub-section (j) to read as follows All applicants proposing to construct and/or operate a S.W.E.C.S. in parallel with the utility shall have an executed Interconnection Agreement with KIUC prior to operation of a S.W.E.C.S. Basically this is to address any liability issues, I mean there was a concern that you know if we're going to be starting to permit these S.W.E.C.S., and if they're tied into KIUC's system, exactly who would be liable for bird striking, I think the opinion came across that because they're tied into KIUC system, KIUC would be liable so it just... it clarifies that if you are going to be operating within KIUC infrastructure that you execute a interconnection agreement and that also serves to clarify the scenario with a farmer that is off the grid and exactly who would be liable in that case, in which case KIUC because they are not interconnected would not be held liable. Mr. Furfaro: Okay any discussion about Mr. Kawakami's amendment? Mr. Bynum. Mr. Bynum: This appears to be a follow up of our discussion 2 weeks ago and addresses all of the concerns I had about you know not (inaudible) to interconnection but recognizing that some are not. I think these are all reasonable and good amendments, I can support this. Mr. Furfaro: Okay any further discussion? Ms. Kawahara: You know.... Mr. Furfaro: Any further discussion? Ms. Kawahara: Yes. Because KIUC is not here I guess I wanted to ask you because you spoke with them, could you tell me what an interconnection agreement would require for KIUC, are you able to tell me or do we need to have KIUC come? Mr. Kawakami: You know I think that the appropriate thing to do is if there's a question on that maybe you'd like to send over a communication to KIUC clarifying that, I just I wouldn't want to just wing it and give you a false statement but yeah I think that would be the most prudent way to do that is to send over a communication. Ms. Kawahara: Okay. May I request... Mr. Furfaro: I will ask the staff to further follow up on that question that came from Lani Kawahara about some definitions of the Interconnection memorandum of agreement. In particular it would probably be by some reference of co-insurance, limiting liabilities and so forth but we'll get clarity on that. Ms. Kawahara: Thank you. 58 Mr. Furfaro: So we have an amendment to vote on, all those in favor say "aye". All Committee Members: Aye. The motion to amend Bill No. 2317, Draft 2 as shown in Councilmember Kawakami's Floor Amendment was then put, and unanimously carried. Mr. Furfaro: That amendment has now passed. Now I am asking members if they would again and Councilmember Kawahara has some particular amendment that perhaps can be revisited on, on a deferral and that's what I'm looking for now is deferring this bill until October 28th. Mr. Bynum. Mr. Bynum: I just wanted to clarify a couple things before we entertain that motion, if I may Mr. Chair? Mr. Furfaro: Yes. Mr. Bynum: First of all prior to today I had heard the Chair ask for a deferral on a number of occasions until the end of the... until we receive the draft of the Energy Sustainability... or the Energy Plan. I made my position clear that I thought I was ready to move on this bill and today I heard other Councilmembers say that they were perhaps interested in a deferral as well, that's the first time I heard that from members other than from the Chair. If that's the... if that's the wish of the majority of the Committee, I'm not going to disagree with that. Because significant time has gone by but I would like to talk about the timeline on this bill for a minute. Last year, previous year before that I attended like many of you, many energy forums because it's an important issue for us to address and I listened carefully as experts from the mainland and Hawaii told us that we needed to kind of get with the program in a number of areas and all during last year, I was researching and doing work on not only wind energy but building codes and other issues and trying to (inaudible) where the county needs to play its role to move forward of renewable energy. As a result of that there was a committee... you know asub-committee including KIUC that wrote the first draft of this bill that was submitted to the Council on October 22, 2008 and was to refer to the Planning Commission, the Planning Commission heard the bill on January 13, 2009, February 10th, March 10th, April 28th and on April 28th approved it with substantial changes based on the recommendations of the Planning staff, then the bill came to us, was received here on May 4th was put on the reading for agenda on June 3rd and you know that scheduled the public hearing which was held on July 8th and so to me in our process here, the bill's before us then we need to start working on it because Committee's where we do the work. I believe that it was July 15th the first Committee meeting I put forward an amendment and was... and had that amendment prepared regarding covenants because I had been in dialog with Princeville and other planned communities and so to me in the process now the bill's before us and we do amendments and we figure out what we're going to do. This will be the 1, 2, 3, 4, 5th deferral of this bill. It was here on July 8th, July 15th, July 29th, August 12th and August 26th so you know my full intention is for us to work on the bill and I, you know I've stated my position that I'm ready to go with this but I didn't mean to put pressure on 59 anybody to not to put amendments forward, there's been 4 opportunities, there will be a 5th opportunity you know, I have a sense of urgency about this and other issues and so I wanted to apologize if I... if there was a sense that I was being critical of other Councilmembers in terms of not wanting to work together on this. The way we work together on this is to put things on the floor and so every amendment that's been put on the floor you know I`m more than willing to address and so you know if there's a motion to defer and my sense is that is now the desire of the majority of the Committee, I'm not going to resist that. Thank you for letting me say this. Mr. Furfaro: Any further discussion? At that point I am looking for a motion to defer to October 28th. Mr. Kawakami: So moved. Mr. Kaneshiro: Seconded. Mr. Furfaro: All those in favor say "aye"? Committee Members: Aye. Upon motion duly made by Councilmember Kawakami, seconded by Councilmember Kaneshiro, and unanimously carried, Bill No. 2317, Draft 2 was deferred to October 28, 2009. Mr. Furfaro: Thank you very much. Mr. Bynum, I'm going to put my Committee at recess, we have the Administration here, you had an agenda item that I'll turned over to you for the purpose of expediting time with the Administration. The Planning Committee is in recess. There being no objections, the Committee recessed at 2:00 p.m. The Committee reconvened at 4:10 p.m., and proceeded as follows: Mr. Furfaro: Okay I want to reconfirm something with the Clerk's Office, we... before we go into the Planning Committee again it is my understanding that the business that we haven't addressed yet includes item 2298, all other items have been accounted for, thank you for that confirmation. On that note my I ask the clerk's office to read the item as we reconvene Planning. 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 Mr. Furfaro: Thank you very much. I think... I see that we have Imai Aiu here from the Planning Department, I did want to share with the group my thinking is because there is a need for additional research into this is to ask for a deferral today. I did want to comment before we go too far into it some clarity in what I believe is happening in these different areas that deal with transient vacations before the Commission, before the Department and before the County Attorney's Office. I wanted to 60 also take a motion to recap what I believe what has transpired up to this point. It was a goal in the General Plan to move forward and find ourselves regulating transient vacation rentals and that goal was committed in a mission into the General Plan. We had funded a stakeholders session, we brought in Elizabeth Freeman to facilitate that and I'm sorry... Mr. Bynum: Kent. Mr. Furfaro: Kent, I'm sorry... Elizabeth Kent. To facilitate that. Through that process, we had an opportunity to kind of do some benchmarks and earmarkings on what transient vacation rental activity on our island was like through a report commissioned by Mr. Ken Stokkes, again the mission was to regulate. Through the process we found ourselves hearing that there was possibility 900 plus transient vacation rentals on our island. The transient vacation bill that passed, dealt with the fact that there were certain requirements that the applicants would have to pursue, those being they had to prove that they were in business prior to the passing of the bill, they had to show that they paid their GET taxes, their transient accommodation taxes and more importantly they had to show that they were not currently under any citation and/or irregular codes relating to building and others. The process went on of the 900 plus units about 550 actually applied, about a 100 of those seemed to have been in agricultural districts. So we had about 400 (inaudible). We then had review of the 550 applications or so and I'm just talking in rounds numbers of approximately 200 of them were put on a list that... as not being approved but they could in fact apply for a review of their permit. I wanted to summarize all of that because in those counts originally was the transient vacation units on agricultural land and when the bill was first designed it was in fact talk about controlling all transient vacation units that had been identified the survey so what we have today is referencing the co-authors of the bill which was in fact Councilwoman Yukimura at the time and myself, that basically said those that meet the tax code, they meet the general excise tax, they have proven record that they had taken advance deposited reservations, should understand that at a parallel time the County is dealing with the important Ag lands bills and any consideration for this bill would be subject to the final important Ag land classifications and if people found their units were actually in an important Ag land designation, they would be terminated. The termination was first subject to meeting building codes, prepaying their taxes and it was also running parallel with the fact that they needed to actually apply for a special use permit. That's kind of where we're at. When it comes to the challenges, the reviews and so forth, that kuleana, that business is at the Planning Commission, this is where people appeal their issue, okay? This is where they file if they were invalidated because of a challenge with their building code and so forth, that's where they needed to go. Secondly I also want to say that the idea here again is about not letting vacation rentals proliferate, this is about finding a place where we start and I know there's a lot of circumstances that you know are catching our attention for example to me if somebody enclosed the vacation rental in Haena, which it was not legal to actually enclose a bottom unit, putting a kitchen and a bathroom and basically say they could find themselves transferring that piece by removing the lower apartment and using the upstairs unit to me that's a rewarding negative performance, you violated a building code in the beginning, you should not have been authorized to move forward and your appeal is heard at the Planning Commission and I use that because there's people who had done 61 that but then their upstairs apartment in fact has a permanent home use exemption on it which was the next piece, there should've been able to verify that they were paying transient accommodation taxes and not being able to shift that violation. Those are the kinds of things I use as an example for building code. Now today I think there's a lot more for us to hear from the County Attorney's Office and I'm going to be asking for a deferral and I wanted to say that (inaudible) but it is on the agenda today for the Ag land units, there are I believe like I said earlier less than a 100, maybe around 70 that fall in this category and there is a appeal process that exists for the regular transient vacation rentals and I don't want to mix the 2 at this point. There's clearly an administrative procedure for that. Now on that note if anybody... if you don't mind I would open up for public testimony but I will ask for a deferral today. Mr. Bynum: We'll still have a chance to comment on the deferral? Mx. Furfaro: Oh yes. That's why I'm only indicating where I would like you to know I want to go... I want to move to a deferral but I will accept comments before we make that motion so on that note, Bruce do you want to come up? Mr. Pleas: Bruce Pleas for the record. I was a member of the stakeholder group, I was active in the this legislation. What I would like to bring forward to you is what we... why Ag was not... Ag land, state Ag lands was not included in the TVR. bill was because... Mr. Furfaro: Excuse me, Bruce I do want to... when it first got to the Council it was included then there was ask for a reconsideration but the original bill passed 7-0 unanimously following week there was a reconsideration. Mr. Pleas: But on the stakeholder group what we came up with... at least my impression I'll put it that way, was that State law HRS 205 did not allow a transient vacation rental on state Ag land. One of the documents that came through was from Tony Ching of the LUC, JoAnn sent a letter to Tony and the LUC and the response was that they were not allowed. That I don't have a copy of that letter, I... Karen has it on her email and I believe it may be on the website if it's still on the county website of the transient vacation rental, I think all the emails are in there. But if I find it, I will send it to you. Also to... what I would like to point out to the Council is 205, HRS 205 and (inaudible) beginning I think that the State law needs to be changes before the county can address this. The state law is the state law and if the county to do a nonconforming use permit to ignore the state law or circumvent it, I believe is not the proper process. The state law should be changed first then the county can go. In HRS 205, 205-4.5 deals with (a) and (b) class lands, section 4 covers farm dwellings says farm dwellings, employee housing, farm buildings or activities or uses relating to farming and animal (inaudible) a farm dwelling as used in this paragraph means a single family dwelling located on and use in connection with the farm including clusters of single family farm dwellings permitted with an agricultural parts developed by the State or agriculture activity provides income for the family occupying the dwelling. So the moneys comes from farming for the residents. In (c) this is sti11205-4.5... 62 (Beeper Beeps) Mr. Furfaro: Bruce that's your first 3 minutes, I'll go ahead and give you your next 3 minutes. Mr. Pleas: In (c) within the agricultural district all lands will (inaudible) classifications of the land studies bureau detail classifications is overall master productivity rating classes (c) (d) (e) or (u) which covers the rest of the lands. So (inaudible) restricted to use permitted for agricultural districts is set forth in Section 205-5 (b). In section 205-5(d) zoning, 205-5 zoning section (b) number 2 requirements and restrictions for accessory facilities connected with the farming operation including gift shops and restaurants; provided that overnight accommodations shall not be permitted. That is the wording right there and that's what we hinted on said "overnight accommodations shall NOT be permitted." Mr. Furfaro: Excuse me Bruce, (inaudible) of the stakeholders group started in 2002 that addition was passed in 2006. Mr. Pleas: Yes and we were still... Mr. Furfaro: Understood I just wanted to point out how things are moving parallel. Mr. Pleas: Yeah. So that was there and by the time this bill came that is the law as it stands in this point. So the Council to consider this is going to be trying to circumvent State law as it stands now so I would suggest to this Council that this be received for the record and that the State is the one... is where the changes should be first and then it should come down to the County before we can change on Ag lands. Mr. Furfaro: Thank you for your testimony. Bruce in case... in case you didn't hear my summary and my references to JoAnn, what this county's duty is none of us went to law school, you know I went to hotel school, I can tell you about my liability as an innkeeper till my face is blue, I can tell you that the intent here as reported by Councilwoman Yukimura, the intent is to reference a holding status until the important Ag lands are done. She also in her testimony pointed out that at the time of the constitutional considerations for these things, a number of types of lands with various soil types were kind of thrown in to agriculture, you know that is what we're doing, we have asked the Planning Commission to set up certain Administrative rules that here that particular issues associated with an appeal, a denial and so forth and between them and the County Attorney's Office I would hope they would be able to make those kinds of interpretations for us. What I just want to cover is, the original intent of the bill. And that's what we often forget, what was the intent of the bill? And as you know I was part of that stakeholders group and I was criticized for being on the stakeholders group because I was in hotel, the vacation rental real-estate people thought I... right out of the box, I was not in favor of any vacation rentals because I handled zoned hotel inventory so I graciously stepped down but the mission that was compelled to us in the General Plan, since the Kobayashi opinion was released in 99 and Kobayashi's opinion said until you actually regulate a vacation rentals that you specifically say to us that they 63 are prohibited, they are legal. That's basically what... and that was released to the public. That's what was drove what was in the General Plan and I was a member of the General Plan as well to say okay we need to stop the proliferation, we need to stop the growth, we need to basically say how do we regulate them. It must be in compliance with taxes with building permits and so forth but there was a whole application process which is a different issue right now. That the Planning Commission, Planning Department and the County Attorney's Office in my opinion need to work on. This bill as pointed out, as JoAnn pointed out was also about finding a starting point by not creating an environment that says contrary to General Plan... we're not here to terminate the process but we're certainly want to make sure it doesn't proliferate, it doesn't grow and I do understand your concerns and I had similar concerns but I see some of the things that are being approved now and people perceive that they're supposed to have a second chance even though they're performance was to enclose the bottom of their unit where it says their supposed to build higher than 42 feet but they built a rental down below, they should be disqualified. Not being able to take out the unit and go back and reapply you know it's called rewarding for negative performance. I just wanted to make sure I understand your parts but in the original bill that was in front of the Council it was really dealing with not growing, focusing on the important Ag lands and put these units in a holding position until that is so determined. Mr. Pleas: And I think with this bill... Mr. Furfaro: I know what you think but I didn't posed any question. Mr. Pleas: I know I was kind of hoping... Mr. Furfaro: I know you were hoping that I would pose a question but I just want to make sure that you know that we understand the duty of this body is to pass legislation, the duty of the group across the street is to manage, review, create administration rules and yes unfortunately and I asked this question a couple of times already... extend time from the council on meeting certain council deadlines, they felt they had it under control. They also have to do a major improvement in enforcement and that requires coming to this council and asking for the appropriate staffing to do the enforcement, no different than the shoreline bill. We have to enforce, I don't disagree with you Bruce. Thank you. Again I said I'm planning to move for a deferral but do we have anybody else that wants to testify here? Caren. Ms. Diamond: Aloha, Caren Diamond. Thank you for letting us know that you will be deferring this bill. I agree that it needs to be deferred and I also want to say I don't know how you can even consider giving the Planning Department, any more responsibility and I know in your summary Mr. Furfaro, you're talking about some of the failures that have happened and some of the challenges that have happened but nonetheless we had a mass amount of vacation rentals on the North Shore that have been approved with ground floor enclosures that have been approved even though their multifamily dwellings in violation of the North Shore ordinance. We have a lot of them that have been improved without seeming to be in compliance with the law as your ordinance had required before they were approved and I... as the oversight body and I know you just hired an Auditor 64 and I ask you to consider having that auditor review that implementation of this ordinance and to do that before any more responsibility is given to Planning Department because I think clearly they're in overload and clearly they shown from the way that they have enacted the ordinance, that they have failed. And our neighborhood has disappeared and now I live in a resort. And that really pains me a lot and I would really hate to see that our agriculture lands are then given approval as well. You know 205 (a) is pretty clear so I would ask for your County Attorneys to review that with you. Also those were farm dwellings and as people moved into those, they signed an agreement that they were building a farm dwelling and so if they were instead building a resort, I don't understand how this body can then come in and say that they deserved to be grandfathered in as a resort just because they did so. Because they signed up that they were building farm dwellings and a lot of the places that are on the list have really good soils, there in Kilauea farms, there in Kilauea, there in Kalihiwai, there in areas that have the only good soil on the North Shore because you know Wainiha, Hanalei, Haena those areas have sand and not soil and so our Ag lands are really important to us on the North Shore and if you turn them into a resort, that's really hard and when you give that ability to some people then everyone else is going to come in and want it as well and so I really caution you and I really ask you to please have the Auditor look at the vacation rental implementation. It's really critical and thank you. Mr. Furfaro: Thank you Caren. Caren, I just want to say I did the summary that I did because this council is committed to find a starting point and this council has previously testified by others, feels that important Ag land bill is extremely important. Clearly there's places in Waikoloa and Koolau that are quality soils, are no different than almost all of Kekaha and that side in (a) and (b) soils but you know we're trying to find a way that we can parallel this and I share your concern about the performance in Planning and I do want to let you know that I will be having discussions with the Administration. Ms. Diamond: Thank you. Mr. Furfaro: Thank you for the suggestion... Mr. Kaneshiro: I have a question for Caren. Mr. Furfaro: Caren, Daryl has a question for you. Mr. Kaneshiro: So under the current bill... one of the big concerns that I hear is that the enforcement agreement. Ms. Diamond: Yes. An un-enforcement agreement. Mr. Kaneshiro: So, let me ask you this question, what if a requirement of a special permit or use permit is required? Ms. Diamond: I think there's already a process under 205 that use permits... you can go to the Land Use Commission and request and get a permit from them. I think that's the process that's set up under state law and I think that anybody could have already done that. 65 Mr. Kaneshiro: So if the process includes that then you won't have too much of a problem as compared to what we call an enforcement agreement, is that what I'm hearing? Ms. Diamond: It depends on what it would look like because the... I'm not sure what a use permit looks like. Mr. Kaneshiro: Okay thank you. Mr. Furfaro: Thank you Caren. Do we have any other speakers? Mr. Hempey. DAN HEMPEY: Good afternoon, Dan Hempey, representing Kauai Alternative Vacation Accommodation Association and generally speaking we support the amendments that are before you as a good start. Actually support deferral today too because I think a lot of people are doing a lot of research on this and there's been a lot of sort of brain storming and creative solutions being (inaudible) and frankly I think times probably a good move rather than rushing into something that could be problematic later. Generally speaking my clients support both approaches and (inaudible) amendments before you. Allowing (inaudible) to continue until an important Ag land study is done has my client support. Similarly creating a process by which people could have some time to apply for a use permit pursuant to the rules of HRS 205 that allow counties to develop those rules, that's a good idea and I think both those are reflected in the amendments that are before you. We're not... my clients... they're not waiving their claim that the original underlying Bill 864 as it applies to Ag land violates certain property rights and constitutional rights... we're not saying, I just want to be clear for the record, we're not saying that the amendments would save the underlying law but for the... certainly for the majority of the people of this association, the amendments would fix it for the majority of them, just not all of them so we do think that some amendments are a really good start. We do have some... we're working on some more proposed amendments which we will be submitting that we think create... there's an opportunity would both protect my clients' rights and agriculture on Kauai. Just one of the things we're looking at, we've been researching is that and certainly there's nothing before you now but one of the things we were researching is a possibility should the council go for a temporary use permits for people on Ag who would otherwise qualify for a TVR in other words if they were paying their taxes, they're lawful, their permitted. Perhaps they could get a temporary use permit that expires in a couple of years and within those 2 years, they would then have to go through the process to get it regulated properly under 205 and if a couple years passed and they didn't get a proper certification that they were working with you know doing agricultural tourism as it's contemplated in 205, they lose their temporary permit if they got it done within the 2 years that turned into a permit. We would just suggest that the most pressing is the development of the process to regulate and recognize agricultural tourism as contemplated in 205 and so again... (Beeper beeps) Mr. Hempey: generally speaking I'm just here to say we support the amendments and frankly we also support the deferral today. Thank you. 66 Mr. Furfaro: Your first 3 minutes is up, if you want additional? Mr. Hempey: No. That's all. Mr. Furfaro: I just want to make sure you... you're not misinterpret what I feel the intentions here are putting those that come... had compliance in and fact that the criteria of the bill of putting them in a holding position. This is not a bill that would open up any new application process. Mr. Hempy: No. Clearly we understand that. Mr. Furfaro: You clearly know that? Mr. Hempey: I think everybody on this island knows that as of October 2008 you can apply for a TVR, permit... Mr. Bynum: March. Mr. Hempey: outside of a VDA. I think the Council did a very good job at stopping proliferation and that certainly does protect Ag. Mr. Furfaro: Thank you. I just wanted to clarify my point, this is about a holding action up until such time that we have a important Ag land. Are there any questions for Mr. Hempey? Chairman. Mr. Asing: Dan should the dwelling unit now on Ag land be found to be in the important Ag land category in the future, you foresee that unit to be terminated? Am I correct? That's your view. Mr. Hempey: Well my understanding the law is it would be terminated unless the applicant could still establish that it was a prior lawful nonconforming use. They would have that opportunity, now whether that can be done or not is another question. Mr. Asing: That's your view? Mr. Hempey: Right that's all I can offer you right now. Mr. Asing: Oh okay well I just wanted to get your view because I had the impression that you felt that it was... it was found to be in the category in important Ag land then it would be terminated. That's what I thought but I'm in error because you put in another (inaudible) which is... but if you can show that you were legally... you had a legal right to be there then you would be able to continue. Mr. Hempey: Right and I think that's consistent. With basic law of nonconforming use and that may very well be a very difficult showing to make but I would say... of the people on Ag land as I can see it I actually I think 41 applied for permits. Mr, Furfaro: 70 were in the original survey, down to 40 67 something. Mr. Hempey: Okay and just really roughly and this is just from what I'm seeing on the outside having some of these cases... you maybe a third of those on Ag think that they're going to be when the IAL studies done, they're fairly confident that their land is not going to be deemed important so this will help them. And then another third of them actually have had operating fully functioning farms and that's the other part of this amendment so you know potentially about 2/3 of the people could be satisfied, hopefully. Mr. Furfaro: Well I like your optimistic thinking but that is also probably what you have to do in representing your clients because the county could not find ourselves even after the important Ag land passed, I would think we couldn't find ourselves not allowing somebody to appeal, it would be their right but now this rule would be in place so I want to make sure we understand what I'm thinking. Mr. Hempey: I think I understand what you're thinking and certainly I can tell you at least as far my clients are absolutely to seek compromise and work in good faith to protect their rights and agriculture on Kauai. Mr. Furfaro: Mr. Chang, you had a question? Mr. Chang: Thank you. Ah Dan. Mr. Hempey: Yeah. Mr. Chang: Are you able to tell us how many clients you represent? Approximately. Mr. Hempey: Well I have this organization, I represent this organization right now, so that's 1 client but it's comprised of many different people in the vacation rental business, some people have B&B's and they're worried about how it's going to affect them later. Mr. Chang: So how many of them... ballpark would be in agriculture land? Mr. Hempey: Of the association? Mr. Chang: Of your association. Mr. Hempey: I can't say I mean I would ballpark it about 25% of the association, separate apart from that, although I'm not speaking on behalf of them today, I have 16 people who applied for nonconforming use permits, they're on Ag land and they were denied and so I'm working for them, they got appeals pending in the... over at Planning and you know I'm working with them to try to find solutions and options. Mr. Chang: Would it be an assumption to say that most of your clients are not residents of Kauai that are basically part-time. 68 Mr. Hempey: Of the 16 that I have that were on Ag it's about... roughly about 50/50, roughly. Some are... some of them are really quite sad stories. I mean one family lives here were farming for 30 years, they were selling food to Esaki's Produce but now they're retiring and when they travel they rent it out to make ends meet you know so... some of them are in that box of off-island owners and some of them are... we range all the way from them to people who are here that have been farming all along. Mr. Chang: So help me out. I mean what is the expectation of somebody buying agriculture land and wanting to put up a house or a home, what are they thinking about in terms of making money on a monthly basis while farming. I mean you know a lot of the debate is that they can't make a living, they're not doing it right on farming and we know it's difficult to farm and we know it's difficult to make money farming but when somebody buys Ag land and they want to put a TVR, on that Ag land whether they're actively farming or not, what's the expectation as far as how much money they wanted to try to make or off-set on a monthly basis? Mr. Hempey: Oh I don't know I mean I think some people want TVR, use just to support the farm because you know, we all know farming often doesn't make... can't make a living of farming. I was actually watching a... just coincidentally a PBS show last night and they were talking about you know how creative certain farmers were in Hawaii and allowing some sort of a vacation rentals on their farms that allowed and not enable the farm to keep functioning and producing even though the farm might have been losing money or making very little money. So you know and I think other... different people had this expectations I mean you know it's possible that some people did buy thinking this is an opportunity to get one over and get a permit and make some money... I can't say people didn't do that. Mr. Furfaro: Mr. Hempey, we all know that that can't happen now because... Mr. Hempey: Can't happen now. Mr. Furfaro: you can buy something and nobody can come in, get all of their permits, their taxes in line and file an application since March 15th. That has sunset. Mr. Hempey: Can't happen now that's right. Mr. Furfaro: That is what I'm saying about this bill is about stopping the proliferation, it's not about going forward. Mr. Hempey: No, I agree. I think you very much done that, I'm talking about... I'm talking about... my people have once previously applied and to go back to your question... Mr. Furfaro: Well maybe I tried to clarify that from Mr. Chang as well. Nobody can buy anticipating going into the future... Mr. Chang: Yeah and thank you. And I appreciate that because this is very difficult and we're all tossing and turning, we're moving forward but you know there was a young lady that came here last week with 69 her you know with her story about the sadness and the difficulty and with everything else and it... you know to me the perception is when somebody's coming here and you know just pleading if you will and you have somebody taking care of the lawn, and somebody taking care of the Jacuzzi, you know I kind of find it very difficult if you're going to be on farm lands and you come back and your avocado, your tangerine tree or your mango trees are died... you know in my opinion if you're going to be on farm land, the priority is to take care of your crop. And if your crops aren't... I mean are died and that's the life line of getting some sort of a income you know that's what rubs a lot of people the wrong way I mean honestly because you know when you start talking about it's a dream to retire here, you want to live here and everything else... Mr. Hempey: I saw her testimony. Mr. Chang: it's all of Kauai's residents dreams you know... people that don't live here they maybe far and abroad and then their goal is to come over here and to live and they worried about being foreclosed, we got people right on this island that live and work here 2, 3, 4, 5, jobs and they're worried about being foreclosed and they live here. And I think it's every resident that lives on Kauai, their dream is to come back here and so that's the difficult part that I'm wrestling around with it's because as we all know there's been some extreme abuse in the past and that's the kind of stuff that we unfortunately got to deal with right now because whatever decision we make and calculate, it's like flip a coin. You're right if you're right, you're wrong if you're wrong and that's the part that I want to get very knowledgeable is I don't understand when people buy things and they think okay well we're going to do this, we're going to do that, we're going to do that and then the saving grace is you know they don't have to farm and then they want to cry and say I need help or this and that, I don't want to sound so rash but you know when people come up to us and talk and this is the majority of the local people, are coming up and say hey you know we're struggling ourselves too and we try to do what was right and lawful and I'm just saying that because I'd like to ask that to everybody else that are representing people because I think that's a big question in this community. Mr. Hempey: I couldn't agree more and frankly I think that's going to be your challenge is sort of to protecting the rights of the people who try to do the right thing. Maybe they were farming or maybe they just you know read the Kobayashi opinion and the General Plan and thought that this was allowed and I think that's going to be your biggest challenge is separating those people out... separating out the people who were trying to get one over on this system without catching the legitimate people and that too wide of a net. I actually completely agree with you that's the challenge but there are people caught up in the net right now who at least I would argue don't deserve to be. Mr. Chang: Thank you. Mr. Furfaro: So Dan, I just want to summarize, you believe there's about 41 of these units that are in Ag land and have applications in front of the planning process and you are supporting a deferral today? 70 Mr. Hempey: Correct. Mr. Furfaro: Thank you. Another questions for Dan? Go ahead Mr. Chair. Mr. Asing: Would you support a deferral pending the legal issues being addressed at the Planning Department first? Because you are amending... we are going to attempt to amend a bill that is flawed, evidentially because of the challenge but after the challenge has been completed then we will know whether the bill is flawed or not flawed so amending a flawed bill, a possible flawed bill would not be reasonable, wouldn't you think so? Mr. Hempey: I'm not actually sure, I just understood the end of your question. I mean generally speaking we are supporting the deferral, well potential corrections are being made. Mr. Asing: Are your group is challenging the present bill? Am I correct? Mr. Hempey: Yes my group has challenges to the present bill. Mr. Asing: So you're saying that the bill is flawed, right? Mr. Hempey: Yeah. Mr. Asing: Okay so. Mr. Hempey: Well the one that passed. Mr. Asing: Yes. Mr. Hempey: The one that passed. Mr. Asing: The existing bill today. Mr. Hempey: Yes. Mr. Asing: Okay so if that is a flawed bill, why would we want to do anything at the present time to a flawed bill until the legal issues are taken cared of first, then we do amendments accordingly. Mr. Hempey: No I mean I think it makes perfectly good sense. Mr. Asing: And that's the reason why I ask the question to you, would you agree to a deferral pending the legal issues being handled at the Planning Department first? Mr. Hempey: And my answer to that would be that for the 41 that applied on Ag and certainly I think I can speak for the 16 that I represent, they would support that deferral if they could continue their previous use in the interim. I mean that's the problem a lot of these people 71 are out there canceling contracts right now. Mr. Asing: Even if they could continue or couldn't continue, the fact that we would be amending a flawed bill is... Mr. Hempey: Hopefully amending it to fix it. Mr. Asing: is not... not in the interest of any body. Mr. Hempey: I agree unless the amendments fixed it. Mr. Asing: Okay well I think you've... Mr. Hempey: I don't know if I'm answering your question, I'm trying to answering but. Mr. Asing: Okay. Thank you. Mr. Furfaro: Thank you Mr. Asing. And I just want to make sure on the other half you know although there is a lot of frustration about the appeals processes and so forth, the reality... the county can not deny anybody from appeal. I mean they would certainly find us upfront saying that we have you know violated their rights by not being able to file an appeal. So Dan on that note, thank you. Ms. Kawahara: I have a question. Mr. Furfaro: Yes. Ms. Kawahara: Please. Thank you. Maybe I don't. Mr. Furfaro: Well it's your decision. Ms. Kawahara: Oh okay. In speaking with you on some of this stuff I came to understand that there was another reason that we were trying to put it on a holding kind of pattern because there were pressing issues that were currently affecting the people that have the Ag land that are being affected by the ordinance now and it's being pressured and pressed that those be... those laws be enforced now. So... or prosecuting those people. Is that right... Mr. Hempey: Oh. Oh. I think... I think I understand what you're saying. Ms. Kawahara: Is that why... Mr. Hempey: I know this is probably going to sound vague but my understanding is that the Prosecuting Attorney is going to try to enforce whatever she believes to be a violation of any law, state or county and I don't know that... that's certainly her kuleana to do that. Ms. Kawahara: Okay I just wanted to... Mr. Hempey: It certainly adds a certain amount of 72 pressure I believe. Ms. Kawahara: Right. So I just wanted to see if that was... Mr. Hempey: to the situation if... Ms. Kawahara: part of the externalities that are you know that this is coming up and that why these bills are looked at now. Mr. Hempey: Well I can tell you that's an externality that some of my clients are very concerned about, they're canceling contracts because of the what they perceive to be the risk of prosecution while they're in limbo. Ms. Kawahara: Okay. Thank you. Mr. Furfaro: Mr. Kawakami. Mr. Kawakami: Thank you Mr. Chair. Would you agree or disagree that I guess one of the flaws that I can see is that we're even addressing TVR,'s on Ag land when to me it's clear in 205 that Ag tourism is allowed on even (a) and (b) lands, on the most important Ag lands I guess. But the only thing that you know kind of makes me say that this whole process is flawed anyway is that it says that agricultural tourism conducted on a working farm or a farming operation is defined in section 165-2 and I wouldn't want to torture you with the whole thing but provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5. So before we even address TVR,'s we're supposed to I mean have an ordinance regulating Ag tourism in general so we go to 205-5 and it kind of gives you an outline on what we're supposed to be regulating. Mr. Hempey: And that's actually... Mr. Kawakami: And I understand in 2006 they added in the provided that overnight accommodations shall not be permitted but I mean the first step in this process is that we're supposedly suppose to have adopt an ordinance regulating Ag tourism in general. Mr. Hempey: And that's why I... one of the first things I said was that we suggested the most pressing issue right now is the development on a process to recognize and regulate Ag tourism. Mr. Kawakami: So would you be in support of a deferral until we come up with an ordinance regulating Ag tourism? Mr. Hempey: Again I think it's a great idea for my clients... the immediate concern is where do they stand during the period of the deferral? And that to us is a critical issue. Mr. Kawakami: Wouldn't you say because it's a tourism activity on Ag land that they would stand... that they wouldn't be able to operate until we get an ordinance going. 73 Mr. Hempey: And so this is the thing. I mean I think I can say safely, if they can't operate, they want this to go as fast as possible. If they can operate and in the mean time with an idea that that's not a free pass to you know unlimited TVRing in the future while this all gets worked out that would be great. Mr. Kawakami: Because I want to make it clear that... I'm not against somebody going out and making money, I think that's a great thing you know... it's just you know there's some flaws I mean and if I'm going off track feel free to stop me, I won't be offended but I mean say for example hypothetically you got a real farmer, this ordinance basically locks him out of the opportunity. Mr. Hempey: (inaudible) Mr. Kawakami: You know. Mr. Hempey: (inaudible) Mr. Kawakami: And so to me it shouldn't even be tied into what kind of lands they're on, it should be tied into what kind of Ag use are they doing. Mr. Hempey: Again that's why... Mr. Kawakami: Nothing would make me happier to see some farmer who's actually farming come up and say, I need a TVR, to subsidize my farming operation. Mr. Hempey: If this process resulted in my 16 clients all having farms, that would be great, I think that would be great for the island, it would be great for my clients, it would be great all around. And regardless on who's sleeping upstairs in the bedroom. Mr. Furfaro: Okay if there's no more questions for Dan, I will ask if there is anymore speakers? JoAnn did you want to speak? Ms. Yukimura: Thank you Chair Furfaro. Good afternoon Councilmembers, Chair Asing. JoAnn Yukimura for the record. I first want to say that I was thrilled to hear you say Chair Furfaro as I walked in this afternoon, your points about the need to establish a threshold qualification for grandfathering before you even get to the question of whether they should be in some holding acton or some special use permit because I think that is a point we've been trying to emphasize over and over again. That they have to really qualify for grandfathering in every aspect except that the fact that they are on Ag land and there's a question as to whether vacation rentals are allowed on Ag land so thank you for being so clear about that. I want to say that the bill before you would not grandfather in vacation rentals on Ag land. The present bill would just have a holding action that first would wait for the IAL's study to see whether they're even on Ag land in the first place. And so if they're not on Ag land, if it's determined that they're not on Ag land like those lots at `Anini that are 4 lots and the only reason they're different from the lots on the makai side of the road, is that they're on the mauka side of the road. I mean and if they actually go through the planning process and are 74 determined not to be Ag land then they might qualify for grandfathering if they meet all the other grandfathering requirements, whereas those on prime Ag land or maybe even secondary Ag land, depending on how we're going to regulate those Ag lands, would either be allowed or not allowed and so it's a holding action. Now you're talking about use permits and if you go that route, you're giving them a right. You're really giving them an additional right and I actually if you're going to go that route, temporary permits sound much more reasonable to me because then they become sort of like a holding action until you figure out what's prime Ag land and what's not. But otherwise you're going to be giving permits to people and they may end up on important Ag lands and then... and then that goes to Councilmember Kawakami's point about Ag tourism you know I think it would be very dangerous to do an Ag tourism bill without the larger Ag planning. Because you can't just do one bill, you have to know what your purpose of Ag land is and what are the kinds of regulations that will encourage agricultural activity. (Beeper Beeps) Mr. Furfaro: Continue. Ms. Yukimura: And thank you. And so Ag tourism and I say that if you have a real farm, you may be able to have a little bed and breakfast that is an ancillary use. But if you have mansions, you know and a barn that is actually a dwelling unit the tail can wag the Ag dog... the vacation rental tail, you'll have all these (inaudible) farms and then you'll have these vacation rentals and they raise the value of Ag lands so that farmers can no longer buy Ag land and sometimes they create conflicts, they'll... they'll grumble about the noise about the water pump or the you know the spraying or whatever so you know there's has to be a lot of thought about how to do the Ag planning and it can't be just tourism Ag planning, it has to be the total Ag planning and where does tourism have a role in that and in what form and under what control so that it doesn't take over the Ag lands. So and you know and that's why I'm very worried about the important Ag land process that the Planning Department is embarking on because nowhere in the sequence is there the development of rules and regulations to govern Ag lands and what we're going to do is identify Ag lands and then what are we going to do? So you know I think there needs to be some parallel processes here but anyway I just wanted to try to give... I think your questions and your... the discussion here is very, very good. You're thinking about the right things and I'm hopeful that you know we can find a good path. Thank you. Mr. Furfaro: Thank you. Does anybody have a question? AL CASTILLO: I have a comment. Mr. Furfaro: Yes. Mr. Castillo: County Attorney, Al Castillo. For the Council and especially Councilmember Kawakami, all of these issues that have been discussed today coincidently you know I sat down with our deputies Ian Jung and Mike Dahilig, all of these issues we are considering, we're analyzing. In addition to that there is a resolution at the Legislature 75 that requests the Attorney General to come out with an opinion regarding having TVR's on Ag land. I have the resolution on my desk, I haven't gone over it, I don't know what is the timeline for that, so I just wanted to let all of you know that. Thank you. Mr. Furfaro: Mr. Kawakami go right ahead. Mr. Kawakami: Are you free to say who the resolution is from, I mean who generated this resolution? Mr. Castillo: I don't know. I have to look at the resolution.. . Ms. Yukimura: It was Representative Sagum, I believe who introduced it and you know I mean a resolution is good but I mean you could just ask the Governor to ask the Attorney General or even I think Mr. Castillo could ask the Attorney General to give an opinion. The thing is you still at some point going to litigate it in court probably and so I mean one of the strategies decision for the County of Kauai is, if you feel you can prevail on the notion that vacation rentals are not permitted on Ag land, or any and all state district Ag land you know one of the strategies is to go to court and establish that but you want to know that there was this Hokulia decision on the Big Island... Mr. Furfaro: And on that... on that piece I would. Ms. Yukimura: Okay. Mr. Furfaro: I thank you for your input but I am going to put us in a status quo. Ms. Yukimura: Okay. Thank you. Mr. Furfaro: Let me see if there's any additional questions of Councilmember Yukimura... former Councilmember Yukimura. Mr. Asing. Mr. Asing: I don't have an additional question but can I make a comment or would I be out of order? Mr. Furfaro: No. Go right ahead. Mr. Asing: I just want to let you know that we just had this CIP projects list, I want to just inform you... I think something's wrong with this but I'm going to just tell you that Ag land study mapping priority 3 completion date March 2011... 2011 I, you know 2011 and we're trying to do something with the bill? I mean something don't jive someplace... Ms. Yukimura: Well. Mr. Asing: This does not make any sense if we're anticipating doing anything to the bill. Ms. Yukimura: And, and that's why Chair Asing, you know I 76 would recommend... I actually felt that the development of rules and regulations should have been part of that half a million dollars that we allocated for this Ag land planning process because the identification of Ag lands has been done actually on many levels and I don't know how much... I really don't feel that half a million dollars is needed just to do that part but what's really needed to complete the process and if it's going to take 2011... Mr. Asing: Well JoAnn... Ms. Yukimura: I understand what you're saying. Mr. Asing: Okay I just wanted to let YOU know maybe you did not know... Ms. Yukimura: I kind of had a sense. Mr. Asing: of this schedule. And if this schedule is accurate I just want to let you know that it is March of 2011. Ms. Yukimura: And that's why I was so concerned about where in that process the development of ordinances or rules and regulations would come and I felt it should be part of it. Mr. Asing: Okay thank you. Mr. Furfaro: Okay thank you for your commentary. Are there any questions of JoAnn? No? JoAnn thank you very much. Ms. Yukimura: Thank you. Mr. Furfaro: Is there anybody else in the public that would like to speak? No? I'm going to call the meeting back to order. (inaudible) got some good commentary here, I have a sense that the 2011 date that you shared with us is probably be a realist one, in they being able to complete the study, it's a very thorough study. I also happen to believe that JoAnn's comments about we should be working on the rules and regulations in advance is extremely important, I also did like Mr. Kaneshiro's comments about the fact that perhaps these permits should be on a temporary basis and we also have things that are moving along dealing with larger planning strategy Ag lands as we are mandated or not mandated as we are... as it was recommended by the state which includes you know having a good mission and a vision for our Ag lands and part of that could quite frankly be issues that deal with some of the European cottage type farming you know vineyards and specialty herbs and so forth within a kind of cottage community but right now we're dealing with 41 applications on Ag lands, I think we've got to do a lot of research and I would be asking to defer this to October 14th. Mr. Bynum? Mr. Bynum: I said earlier I just wanted to make some comments before a deferral and again we spend the better part of the year discussing all of this before the ordinance was passed and I just wanted to make a few comments and where I think we have agreement, and I hope in that as we proceed with this process we don't lose site of this that you know during the debate for the origrinal bill when the Council Chair put big graphics about the proliferation of vacation rentals in particularly the North Shore neighborhoods, and we discussed about how in that very hot economy even local you know rentals were being... people were being ejected from rentals to turn them into vacation rentals not at the high end on the ocean but in our neighborhoods that I think we all knew unanimously agree with the problem statement that we had... it had gone so far that it had some very many negative impacts. I don't think there's any disagreement with that, I don't think there's was any disagreement with the idea that we needed to quickly and I personally wish it would have happened in 2000, draw aline in the sand and say "no new vacation rentals outside the VDA" let's stop this bleeding because the bleeding was bad. Mr. Furfaro: Mr. Bynum just for a second I just want to let everyone know, if we can summarize this deferral in a few minutes it's fine, I'm already delinquent 10 minutes going beyond the caption break. Mr. Bynum: Okay I didn't know that. Well I'm only going to be 1 more minute I think. I promise Councilmember Kaneshiro 3 minutes, I don't know if they're timing me but... you know whatever we discuss now we drew that line last March, no new vacation rentals outside the VDA but we have potential legal exposure on numbers of levels. I'm encouraged that and as Councilmember Furfaro has pointed out in the past we had a lot of turnover at the County Attorney Office and other places, I'm hopeful and prayful for a period of stability. The County Attorney has assigned 2 very young and capable individuals who are working over time I'm sure to try to go through these issues but you know if have to do this with Aloha for everyone, the (inaudible) is very emotional on both sides of this issue and the bottom line for me, these are all community members on Kauai trying to do the best they can so I appreciate Mr. Hempey today saying his clients want to work towards compromise and resolution as a first line agenda. But we all know another potential line are (inaudible) of lawsuits and so in which they may have grounds and that they're stopping their work now so you know the agreement is we did regulate and nobody should get the idea that we're going to change that now and allow for new permits to occur, we're talking about those folks that are been engaged in what was the status quo and I hope that we can find a way through all of that, thank you very much. Mr. Furfaro: Mr. Kaneshiro. Mr. Kaneshiro: Thank you Mr. Chair. Real fast you know if you reflect back to the General Plan and look at the area where we talk about 4.2 visitor industry designation area, there's a policy standards and the specifically states under (4) (2) (8) (2) what we talked about alternative visitor accommodations specifically the policy states that the County shall enact clear standards and permits process for regulating alternative visitor accommodations structures and operations in residential, agriculture, open and resort zoning district. So this reflects exactly back to your comment that we started this dialog so there is standards that been set forth in the General Plan that was adopted in 2000, in the year 2000. Also I just wanted to touch real fast on this is what under the (4) (2) (9) (2) alternative visitor accommodation it specifically states that the Planning Department shall prepare amendments to the comprehensive zoning ordinance set in development standards and permit process for regulating alternative visitor accommodation and operations in residential, open, agriculture and resort 78 districts so it specifically states that and it also goes on to say that the Planning Department shall prepare CZO accommodations to facilitate the permitting of exsisting, nonconforming alternative visitor accommodations. So it's clear that there was a guidance that was set forth in the General Plan. The interpretation of whether it's legal or not is for the Attorneys to debate about. I have a different interpretation on that, if I read what they're saying right now that each county shall adopt such ordinance as such and that for agriculture tourism activities and in order to have that agriculture tourism activities, no overnight accommodations shall not be permitted. I can see that, if you're a leg7slator sitting in your seat and seeing a bus load of people come in to a farm area and all of a sudden that same bus load of people would have overnight accommodations to stay there, I can see why they passed a law like this. So there are some misinterpretation about that but I see no big problem in a car load, just one car of people coming over, especially if you got a big land in agriculture 100 acre or so with 1 TVR, on it, the impact is completely different so I think you know it's good that we're going to defer this, we need some interpretations of how this is done but for me as a farmer, as a rancher, I know what Ag tourism is about. It's about bus loads of people coming in to tour your property, to give them a good view of what agriculture tourism is all about and I certainly wouldn't want to see a hotel accommodations on Ag land to accommodate those kinds of types of tourism activities but I can see you know what the General Plan is set forth to said about that it's alternative vacation rentals in providing perhaps 1 lodging or 2 lodging on a hundred acre property or even a 50 acre property to do that so I mean there's different interpretations and I really you know I got to tell you Mr. Chair, I really got to thank you for giving all of us the opportunity to be able to do that and to get into this kind of debate because I think it's a real good debate, nothing is a real clear shot as to what the ruling is really about so hopefully as we move along through this we can have some other interpretations and so forth and even the General Plan says here one more I just wanted to point this out these implement and actions relating to alternative visitor accommodations shall be a top priority and shall be (inaudible) forth with the Planning Department. So it specifically states this also in the General Plan so with that thank you Mr. Chair. Mr. Furfaro: Thank you Councilmember Kaneshiro and as we started this meeting I was reflecting on a mission outlining the General Plan but we now are 17 minutes past caption time, I'm asking to defer until such time of October 14tH. Mr. Kaneshiro: Move to defer. Mr. Bynum: Seconded. Mr. Furfaro: We asking for a vote now on the deferral to October 14th all those in favor say "aye". Committee Members: Aye. Upon motion duly made by Councilmember Kaneshiro, and seconded by Councilmember Bynum, and unanimously carried, Bill No. 2298 was deferred to October 14, 2009. Mr. Furfaro: Thank you very much there's no further 79 business on the Planning Committee, we are adjourned and I suggest that we now take a caption break. There being no further business, the meeting was adjourned at 5:18 p.m. Respectfully submitted, ~ ~~~~,~m~w?-a ~ Darrellyne M. Simao Council Services Assistant I APPROVED at the Committee Meeting held on October 14, 2009: JAY Chair, 1 e 80 {September 16, X009} FLOOR AMENDMENT BILL NO. 217, Draft 2, Relating to Small Wind Energy Conversion Systems {SWECS} Introduced by: Derek Kawakami Amend Bill No. X317, Draft 2, as follows: 1} SECTION 1, paragraph {f}, is amended to read as follows: "{fj This ordinance is concerned solely with the regulations and requirements far the issuing of those permits established under Chapter 8 of the Kauai County Code, including but not limited to Zoning Permits and Use Permits. Approval of said permits does not constitute an approval of other permits or imply the meeting of other standards that may be required by County, State, or Federal agencies[.] and the electrical utility." 2} Amend the definition of ~`S.W.E.C.S." to read as follows: ""S.W.E.C.S." means a small wind energy conversion system which is an apparatus for converting kinetic energy from wind to mechanical energy in order to produce electrical energy of no more than ten {10} kilowatts in the residential district and no more than one-hundred {100} kilowatts in all other districts. [and is intended primarily to reduce on-site consumption of utility power.] The term S.W,E,C.S. applies to tower- and roof-mounted small wind energy conversion systems as well as horizontal and vertical axis small wind energy conversion systems. The term also applies to wind monitoring or meteorological towers used for supporting anemometers, wind vanes, and other equipment to assess the wind resource at a predetermined height above the ground." Section 8-25.5 is amended by adding subsection {j) to read as fellows: "(j} All applicants proposing to construct and/or operate a S.W.E.C.S. in parallel with the utility shall have an executed Interconnection Agreement with Kauai Island Utility Cooperative {KIUC} prior to operation of a S.W.E.C.S.>' (New material to be added is underscored. Material to be deleted is bracketed. All material is new,) V:\CS oFFICE FILES\AMENL}MEI~ITS\2317fa-dskk3 {9-16 mtg}.d©c 1