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HomeMy WebLinkAbout08-12-2009 Planning Committee Minutes MINUTE S PLANNING CONIlVIITTEE August 12, 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, August 12, 2009, at 11:19 a.m., after which the following members answered the call of the roll: Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Tim Bynum 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 July 15, 2009 Planning Committee Meetings Upon motion duly made by Councilmember Kaneshiro, seconded by Councilmember Bynum, and unanimously carried, the Minutes of July 15, 2009 Planning Committee Meeting was approved. The Committee proceeded on its agenda items in order as follows: Bill No. 2317 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: Thank you. I am going to ask for testimony at the beginning of this Committee Meeting based on the fact that I will be making a short presentation so, do we have anyone signed up for testimony on this bill? Pat Gegen, you're up first. Is there anyone else in the audience that would like to speak on this? May I ask you just to sign up over here, if I could please. Oh wait is there only 2 hands I saw? That's alright I can deal with 2 or 3 speakers, thank you. There being no objections, the rules were suspended. PAT GEGEN: Alright thank you. For the record my name is Pat Gegen, I would like to thank Committee Chair, Council Chair and the rest of the Councilmembers for this opportunity to testify. As you probably recall from my testimony 2 weeks ago I do support Bill 2317 for small wind generation. I do believe it's a good idea, the bill itself was well thought out which is a tribute to the Council, Council staff, as well as the Planning Department. I think in it there are some very good protections for the citizens of Kauai, limiting the number of windmills that are allowed out there. The State does allow on Agricultural land, the Planning Commission is just going by the best guess right now, what is acceptable. It would be best for them I think to have some more stringent, stronger guidelines. And I also think it is reasonable, while it does limit some things, I think that the accommodations in there are reasonable for those of us who do like wind power and who want to generate some electricity that way. 2 weeks ago there were a couple of concerns brought up, one of um was a concern in regard to acting prior to the published (inaudible) sustainability plan. I respect that philosophically but I do not believe that holding off for that reason is good enough. A couple of things in response to that, there was correspondence brought out last week from a consultant saying that it would fit in, small wind generation, other alternatives at the site of use, do fit in with their plan so I think in a sense that's a green light. We also had some wonderful testimony from Laurel Brier with the Apollo Kauai supporting this bill, of course that's the number of well educated concerned citizens who like alternative energy and they do believe that it's a good idea, as well as the testimony we heard from the Honorable JoAnn Yukimura, who has background in the beginning of this study, knows more than most of us of the public about what was requested to be done and I too believe that it should continue. Quite frankly if the energy plan does not include small diverse and distributed energy, it's not worth the paper it's written on, personal opinion. The other concerns were brought up regarding KIUC, the rate structure penalizing those of you who are not into alternative generation... Mr. Furfaro: Excuse me just a second Pat, your first 3 minutes is up, I'm going to give you your second 3 minutes now. Mr. Gegen: Thank you very much. Um concerns regarding the rate schedules and that stuff, I'll tell you that some of us that do have alternative generation are concerned about the rate schedules also. I have provided KIUC with an average of over a 150 kilowatts per month, I use 10 and I am still paying them given their current rate schedule so some of you who don't have alternative energy are probably doing better than some of us who do, okay. Also at the last quarterly meeting, Randy Hee himself stated that KIUC is not in a leadership role-in many ways, they follow. And what he was specifically talking about is they follow, if there's more need for electricity, we need to respond to that, they're more on the responsive role. That was concerning coming from the co-op but if you take a look at past history, have they taken the leadership role in alternative energy? They have not. The history tells us, they are not the ones really to take that chance, okay. So I ask this Council please be willing to take that chance, be the ones with the vision and acting on that vision, moving forward, okay. Don't just sit here and let it go by. The County sustainability plan was brought up by the Chair, himself it was a 7-0 vote, you guys have a vision, you have a vision of a better Kauai, a place where we are more sustainable, where we do have renewable energy. A quote I'd like to bring you back to real quick by Joel Barker, it says "Action without vision is wasted energy, vision without action is just a dream, vision with action can achieve real results". I ask you not to be a bunch of dreamers, let's get something moving and let's go forward, thank you. Mr. Furfaro: Okay is there any questions of Pat? Mr. Bynum. 2 Mr. Bynum: Thanks for your testimony and just one regarding schedule, you're on schedule Q right? Mr. Gegen: I am on schedule Q yes. Mr. Bynum: And I believe HIUC was asking to, you kind of have a hookup fee to that right? You have to pay.. and that... Mr. Gegen: Correct. Originally, well the normal hookup fee, I'm in the process of building my house so I had to have the original connection, there's a $20 connection fee that everybody gets, no problem with that. Schedule Q originally for the first 6 months that I was on it I think I was one of the first ones on it, I was paying a meter fee. That meter fee was about $35 a month, when building my house I paid $20 because I am considered a commercial customer, even though my meter is where it's going to be permanently I do not have a permanent residence there, so they are getting me at temporary rates, commercial rates. So for awhile I was paying $50 a month to give them 150 kilowatt hours and use 5 or 10, so it has gotten better with a lot of prodding and going to the PUC, we did get that meter fee taken out. Mr. Bynum: So that did... Mr. Gegen: So. Mr. Bynum: That was my main question... Mr. Gegen: Yes. Mr. Bynum: The meter fee on schedule Q is gone? Mr. Gegen: The meter fee is gone. Mr. Bynum: And KIUC wanted that gone and I want to acknowledge them... Mr. Gegen: Yes. Mr. Bynum: ...for that that... Mr. Gegen: They saw that it was a hindrance for other people, hooking up and HIUC does have one of the best interconnection agreements for you know, the end user generators, so. Mr. Bynum: So thank you. Mr. Gegen: Thank you. 3 Mr. Bynum: You answered my question. Mr. Furfaro: Another questions of Pat? Thank you Pat. Mr. Gegen: Thank you. Mr. Furfaro: We have nobody else signed up, may I see a show of hands that... Bruce? BRUCE PLEAS: Bruce Pleas for the record. As I have gone through 2290 which is what was sent to the Planning Commission and it as come back 2317. I am greatly pleased this looks like a better product that came back. I will go directly to the new bill um the definition of S.W.E.C.S it now includes the term also applies to wind monitoring or meteorological towers, anemometers, wind vanes, and other equipment to assess the wind resources at predetermined height above the ground. This is not a S.W.E.C.S, this is just something that is going to cause problem down the line if somebody wants to put a tower up that's not a S.W.E.C.S. I don't think this should be in there, in the definitions. Section 8-28.3 which is page ah Generally Permitted S.W.E.C.S um generally we need to define that, what's Generally Permitted? It's either permitted or non-permitted in most of these documents um so generally is throughout the whole thing. Section (A) one I have no problem with, that's okay. And Sections 2 and 3 which is General Commercial and Industrial Commercial I was concerned about fall zones so I would ask that you put at both of those with Setbacks and in accordance to Section 28.5 (c) which does the fall zones because it should be noted in there. Um so on page 3 in the bottom, Open District, should not be permitted in Open Districts, period. Um my outlook is always Open is no buildings, it supposable conservation zone. If we're going to put it in Open lands, they need to have a permit. That is out and Section 8-28.4 number 9, I would delete this is... 9 says Open District delete when the lot is less than 5 acres in size because this would require a Use Permit in Open District. Section 28.5 (a) 20 feet above maximum height in the respective zoning district... um I have a question whether 20 feet is enough, sometimes the trees are a little higher and you need to be 30 feet, 20 to 30 feet above trees, I don't really like the height but sometimes for them to work efficiently they would be, it would be a co strength on them. Also on (b) which is roof mounted, is 10 feet high enough, I think some of the units are 14 feet high, some of the (inaudible) go like this, so 15 feet may be one for that. And (c) for set backs it's a 1.1 times its total height... (Timer goes off) Mr. Pleas: May I continue? Mr. Furfaro Yes. Mr. Pleas: 1.1 is total height, for your setbacks from property lines and overhead utility lines, I think we need to add in there that for guy-wires um a set back from the property line, there should be the normal set back for your 4 guy-wires, you have no mention of guy-wires. Some units do use those and it would be a travesty to have somebody install a tower that the guy-wires go into the neighbors, I think we need to address that so that would not happen. And with that that's what I have on the Ordinance there, I think it's a good Ordinance, I think we should go forward with this, something needs to be done, and I know they'll be testimony on bird strikes, in the future. I agree bird strikes will happen on your tower mounted but if that's the case I still think the roof mount systems should go through with the stipulation that they are covered with chicken wire or something that would keep the birds from hitting. If we're going to lose this, let's not lose it for our residential areas, for local residence. I would like to put one on my roof but if this is going to die, please don't let it die for residence because that can, that bird strike can be alleviated on roof mounted systems, it's simple to... I can put a cage around it and the birds are going to bounce off the cage, it's not going to go into my system, thank you. Mr. Furfaro: Okay any questions? Mr. Kaneshiro: I have a question for Bruce. Mr. Furfaro: Go ahead. Mr. Kaneshiro: Thank you Mr. Chair. Bruce your reasoning for not putting any (inaudible) open lot? I don't understand that because currently our (inaudible) Ordinance allows you to build 1 home on 5 acres of Open land, so what you're basically saying is that you have a house on the Open lot and you want to convert into energy efficiency because it's an Open land, you can't do it. Mr. Pleas: So my rationale behind that is when the CZO comes out again I will be again testifying that Open Land is conservation and there should be no buildings allowed on Open land. That is my rationale behind it. Mr. Kaneshiro: So currently... Mr. Pleas: it, it... Mr. Kaneshiro: though we're looking at a bill that's is before us, and I guess your testimonies specifically pointed to that section were stated that no tower should be build in the Open Area, what I heard is your testimony stated that. Mr. Pleas: Yes. Mr. Kaneshiro: So? So you're saying that currently the way it's written, you're stating that... we shouldn't have anything, it's not about changing the CZO because it hasn't been changed yet. Mr. Pleas: But I also have if you noticed it is a permitted structure in Open, so therefore it does not prohibit them from having one on Open 5 land, they would be able to go for a permit because Open, I've always felt is conservation land, Open on County law is conservation, so that was ah... That would be 28... Section 8-28.4 number 9, Open District would require a Use Permit, so not prohibit them completely but it would require a Use Permit. Mr. Kaneshiro: Okay. I just mention that because you referred to Section 5, in your testimony when you said that you know (inaudible)... Mr. Pleas: No, in the Section 5 was the a... was a... delete the Generally Permitted S.W.E.C.S from this Section 8-28.3 (5) that's what I would delete and I would change Section 8-28.4 (9) to Open District. So Mr. Kaneshiro: Okay. Mr. Furfaro: Mr. Kaneshiro, can I go to Mr. Bynum? Mr. Kaneshiro: Yeah. Mr. Furfaro: Mr. Bynum. Mr. Bynum: I just want to say briefly, I understand your testimony Bruce but I also agree with Councilmember Kaneshiro that you know this should be consistent with how we actually practiced on Open Land and we have allowed structures and housing on Open, there's a bill pending at Planning right now that would change the density issues relating to that but um so I just... but I do understand your testimony. Mr. Furfaro: Bruce were your comments written down somewhere? Mr. Pleas: They're on my sheet but I could go home and... Mr. Furfaro: Could I ask you to send me an email with your comments because... Mr. Pleas: Yes I will. Mr. Furfaro: the speaker before you said the bill was flawless and you just pointed out 12 items that you have concerns with so. Mr. Pleas: Yes. Mr. Furfaro Would you send me the email? Mr. Pleas: I will. Mr. Furfaro: Oh let me ask you something Bruce, when it comes 6 to the (inaudible) birds? Mr. Pleas: Okay. Mr. Furfaro: You're saying about framing some kind of screen there on the tower, but I guess my concern is with the bird strikes. Who would pay the taking penalty? If the County permitted it and you have a taking of a bird strike, who would pay that $25,000 fine? Mr. Pleas: I believe she just took my... the main bill that I have but I believe that would be addressed in the area where the person putting up the unit has to go through Fish and Wild Life and I think that would resolve at that point as to Fish and Wild Life would decide who would be responsible, I would assume it would be the applicant on that. Mr. Furfaro: So that... Mr. Pleas: And a clarification, I was not talking about the wind mills that are on towers, I was talking specially to um roof mounting systems which have a horizontal axis or maybe a vertical that you know has a 15 foot height that you may lose a little bit but to get through the take part of it maybe yeah, a way to get around it. Mr. Furfaro: So it might be a solution to the taking issue? Mr. Pleas: Yes it maybe. Mr. Furfaro: Okay. Mr. Pleas: Because I know my house doesn't take any (inaudible) Shearwaters but it should take my amount of doves during the year. Mr. Furfaro: Well and then we have a population, growing population of Nene as well. Mr. Pleas: Yes we've seen quite a bit of them around. Mr. Furfaro: Thank you. Mr. Chang: I have a question. Mr. Furfaro: Oh go ahead Mr. Chang has a question. Mr. Chang: Bruce just out of curiosity if you were to put up a wind mill on your home, have you discussed your possibility with your neighbors and maybe got some sort of reaction what they would think if you had one on your roof? 7 Mr. Pleas: Um no I haven't but my take on that is that the noise level is what the main concern usually with neighbors is, well I sit there at night and I listen to the wind go through the trees and all the noise that all the trees make in the neighborhood and from the windmills that I have witnessed, I think my trees make much more noise than the windmill on my roof will, when the winds blowing there is ambient noise from that event, so that is something that I don't consider it a problem if somebody put a windmill you know next to me, I went up to Kalaheo and stood by the one up there um when the winds blowing in Kalaheo, it's blowing so hard I couldn't hear the thing and I was directly downwind of it. I mean there's trees banging and stuff going around so it's not a factor to me but it maybe a factor to some. Mr. Furfaro: Yeah. Mr. Pleas: At that may have to be included in the bill is that you have to um require you notify a neighbor with an x- amount of feet. Mr. Chang: And the noise wasn't really that much of a concern but what I'm wrestling around a little with is that you live in Kekaha? Mr. Pleas: Yes. Mr. Chang: You know there's a lot of communities that you know people in respect to their neighbors would always notify them, hey I'm going to be doing this, I'm going to be doing that, so I was just speaking on a visual, visual outlook because sometimes people don't know that they're going to be affecting other peoples view plain and I think the view plain is a lot more important than perhaps the noise because there are communities throughout this island of Kauai that we have part time residents, we have residents that basically rent out or what have you and I don't know if they're properly notifying their neighbors as to what their plans are and I think that there are certainly other communities and neighborhoods that would necessarily expect but would really be asked if one would have any kind of concerns in regards to the site plain and I think that's the part where I'm wrestling with a little bit more are the view plain versus the noise because I think we've, we talked a little bit about decibel but without question when the wind is blowing, when the trees are blowing it will far supersede the sound of the windmills so I just... this is just in respect to communities that are very close and tight-nit and family oriented for 20, 30 years and all of a sudden somebody puts up a windmill it's almost like a... obviously bigger than a oversize direct t.v. you know dish that many people complain just because of those so I just was curious. Mr. Pleas: Yeah. So I could say if there could be you know something put in the bill for that, on the other hand when I look out my window those telephone wires are... 8 Mr. Chang: Correct. Mr. Pleas: sure a lot higher than all those structures in my neighborhood and they're not beautiful. Mr. Chang: Thank you. Mr. Furfaro: Bruce do you have any idea as to what noise standard do you believe to be acceptable? Mr. Pleas: No I wouldn't without having a decibel meter and actual on hands going on, in other words I would, I would, wouldn't be able to tell without a tree handy next to it and going on with the decibel I mean just do the decibels on an open field would be interesting but you need to have a... Mr. Furfaro: Well I was specially asking if you.... Mr. Pleas: I have no idea. Mr. Furfaro: (inaudible) as it relates to and I think you appropriately said you know the rights of your neighbors. Mr. Pleas: Yeah. Mr. Furfaro: Thank you. Anymore questions? Thank you Bruce. And Bruce would you send those 12 pieces? Mr. Pleas: Yes I will, I'll send it to you so you can read um, she took my copy, I was going to copy it for you but I doubt seriously if you could read it. Mr. Furfaro: (inaudible) my hand writing. Thank you, next speaker in the audience. ADAM GRIESEMER: Hello my name is Adam Griesemer, I'm with the Division of Forestry and Wildlife, I'm here to represent Forestry and Wildlife and Shearwater. I have a couple of handouts here. Mr. Furfaro: The staff can take um from you Adam. Mr. Griesemer: I just want to comment first on regards to some of the comments that were just said in the testimony. If there's a way to avoid any HCP potential or any, any take potential, the right way to do it would be to eliminate any tower mounted turbines in the Ordinance itself period and just do roof mounted ones and in particular types of turbines as well, which the illustrations that are being handed out right now will show 2 different types of turbines and I have an illustration for the camera as well. 9 Mr. Furfaro: You have an illustration for the camera? Mr. Griesemer: Yeah I do, I will hold it up here in a second. Is that? Can you see that? So there's 2 different types of turbines. One of the illustration is a Vertical Axis Turbines on the top and there's Horizontal Axis Turbines on the bottom. The vertical axis turbines on the top you can see there are wide, wide objects that are pretty visible to seabirds um and especially seabirds that are flying at night that have to avoid objects. If these types of objects are mounted on the roofs, there wouldn't be any problems, um Shearwater should be able to avoid the structure itself um the ones on the bottom are horizontal axis turbines where the blades spin very fast and they're tower mounted and up to I believe in the Ordinance 70 feet and then on top of that you have the blades as well so you're talking about 75 feet in the air, where the seabird won't be able to see the fan at all and can smack .right into the fan and that's where you have the take potential on those 2 types, on the bottom type of the horizontal axis turbine. I'm going to now (inaudible) my comments here. Wind turbines do pose known threats of collision to endanger seabirds and impacts have been documented on the island of Maui. (inaudible) provides a process of streamline County permitting of both types of turbines that was illustrated; however, the tower mounted turbines in such as the horizontal axis model with the blades shown in the handout shows a significant risk of collision to protected species due to the limited visibility of the turbine blades spinning at high velocity particularly for species that fly high speeds at night. Species that are high risk include the endangered Hawaiian Petrel, Newell's Shearwater, Nene, and the Hawaiian Hoary Bat. The harming of endangered species is considered take, as you know. Mr. Furfaro: That's your first 3 minutes, I will give you your second 3 minutes. Mr. Griesemer: Great thanks. Under the Hawaii Revised Statute 195-D it's considered take and under the Federal Endangered Species Act it's considered take. Incidental take may be authorized for otherwise lawful activities if certain condition are met under an approved HCP and Incidental Take License. Measures to avoid and minimize harm, mitigation that provides net benefit to the species and environment, and contribution to the recovery of the species are required, that's expensive. Just to let you guys know off the bat. You're looking at removing the cost efficiency for someone who's going to want to invest in (inaudible) energy to save cost of electricity in the long run and to be able to produce free electricity in the end. Um the current language in the Ordinance requires permit applicants to notify the agencies of their wind project, the language is not adequate and does not insure County compliance with endangered species laws. The State of Hawaii (inaudible) recommended the following language which is in the second handout, um and the language that's in there in compliance with state and federal regulations for the protection of threatened and endangered species. That tower- mounted SWECS operations shall comply with Hawaii Revised Statute 195-D and the Endangered Species Act. No SWECS system shall be installed until evidence has been provided to the permitting agency that the applicant has consulted with 10 the Department of Land and Natural Resources and the U.S. Fish and Wildlife Service verifying that the issues related to HRS 195 D and the Endangered Species Act have been adequately resolved. This type of language incorporates adequate consultation with the state and federal law life agencies for wind development projects to ensure the landowners are in compliance with the endangered species laws. The Division of Forestry and Wildlife reviews renewable energy projects that may have potential for endangered species impacts on a project by project type of basis. There's no one sheet of paper that's going to tell you to permit a turbine, what type of turbine and where. It's project by project because there's lots of different types of renewable energy projects and lots of plants and animal species. Um for further information because I know this is going to be a question on the County's liability or potential enforcement matters in the case of permitting turbines, the County can call U.S. Fish and Wildlife Service Enforcement as the most likely enforcement matter or most likely to have potential of enforcing this matter. Um their number is 808-861-8525, it's over in Honolulu, and I just wanted to thank you for hearing my testimony. Mr. Furfaro: Thank you Adam, let me see if there's any further questions. BC: mic. Mr. Furfaro: Thank you for testimony and you're correct I did raise that question as to without this verbiage is it possible the liability would be looked at as a County. Mr. Kawakami? Mr. Kawakami: Thank you Mr. Chair. Um hi Adam. My question is how much would it cost for our resident you know that's purposing to put up wind turbine to participate in your state HCP? Mr. Griesemer: Well right now the state agency... Mr. Kawakami: or actually you know what, yeah the Kauai Seabird HCP. Mr. Griesemer: Okay the Kauai Seabird HCP doesn't have a separate analysis for the impacts for wind turbines as of yet. It is only dealing with lights right now, if it would I, it would have to have a separate analysis including the potential of impact of permitting many turbines over a landscape level. This analysis would be lengthy and most likely expensive, as well as the mitigation for one seabird since the, since you have to have a HCP and you have a (inaudible) permit if your project is likely to take 1 or more species. So that's what I'm saying 1 bird so the cost for 1 bird would off the top of my head I would think it would be higher than what the cost of the efficiently installing that turbine and being able to get to the right type of electricity payback off of that. So when I brought up the original, my own opinion in the position of HCP's in the beginning is that if you can remove the threat completely, you won't have to deal with permitting any seabirds, 11 you won't have to deal with liability, won't have to deal with the issue at all and um the illustrations do show types of turbines that if roof mounted are solid are solid objects that would be visible to seabirds. Mr. Furfaro: Any other questions of Adam? Mr. Kaneshiro: I do. Mr. Furfaro: Mr. Kaneshiro. Mr. Kaneshiro: You mentioned that Maui had some numbers with significant numbers, can you provide those numbers to us or? Mr. Griesemer: I... Mr. Kaneshiro: Give us an idea of you know what was taken. Mr. Griesemer: Yeah I can give you the numbers, these are commercial applications, they're a little different, they're higher a much higher in the air except the blades are spinning much slower so they're not as fast as the smaller blades that are spinning. These are much slower in velocity, so the potential of strike and I seen pictures of Nene actually flying through the fans and not being hit by them because, because of its speed. Would be a little different, we can only say that the strike potential is there, the numbers wouldn't actually be relevant and they are lower for those projects. Mr. Furfaro: (inaudible) Mr. Kaneshiro: Oh because... Mr. Furfaro: Can you fullfil Mr. Kaneshiro's question? Mr. Griesemer: Yeah there's been 3 actually, I believe if I'm correct on that um since the project been permitted, they've been permitted for I believe 2 and a half to 3 years over in Maui, that's Kaheawa Pastures and they do have an HCP and they have a HCP for all the species I listed before and plus some of the water bird species like Hawaiian stilts and Koloa as well. Mr. Kaneshiro: And the reason for me is that what interest me is the Hawaiian Hoary Bat is on this. So you know my thoughts was always that the Hawaiian Hoary Bats do have some radar sensors and can pick up sounds and pick up you know not by seeing but by their senses so I was just interested in seeing... Mr. Griesemer: Yeah, yeah if you wanted to hear there's, I don't have the scientific name for it but there is actually something that happens with the Hawaiian Hoary Bats in the commercial applications that's when they're flying into them there's a vacuum pressure where the intestines come out of the bat 12 actually.. . Mr. Kaneshiro: Okay. Mr. Griesemer: and they drop straight down and in front of the turbine. Mr. Kaneshiro: Alright. Mr. Griesemer: so... Mr. Kaneshiro: That is what I was wondering you know... Mr. Furfaro: So thank you for that... Mr. Kaneshiro: That information would help if you could just give me... Mr. Griesemer: Yeah, yeah.. Mr. Kaneshiro: What birds we need to (inaudible) Mr. Furfaro: Are there any further questions? Okay. Adam remember we're 10 minutes before lunch so stay away from bat intestines. Mr. Griesemer: Sorry about that. Mr. Chang: You mean I can't talk about the bat intestines? No you know what, Adam I'm sorry I don't know if I heard correctly but and correct me if I'm wrong, did you talk about this vertical axis turbines are they're presently being used somewhere in Hawaii? Mr. Griesemer: I believe that National Tropical Botanical Gardens was going to put up a test site somewhere on the island so you would have to contact Chipper Wichman to find out more information... Mr. Chang: So presently, presently from what you know, there are no vertical axis turbines in the State of Hawaii? Mr. Griesemer: I actually personally not aware of any, there maybe. Mr. Chang: Okay because I guess with the (inaudible) that it is unlikely to pose threats to seabirds, it's probably unproven that if we don't have um, how do we know it's more unlikely to pose threats? Mr. Griesemer: Well it's actually 13 Mr. Chang: I mean the way it looks, the way looks usually... Mr. Griesemer: Yeah, yeah. Mr. Chang: I can understand that but I'm just thinking ahead because I've never seen them anywhere in the state so. Mr. Griesemer: Yeah... if the Ordinance would include the language that the Division of Forestry and Wildlife have commented on that that would require letters of concurrence from the agencies, and the agencies on a project by project basis would say this turbine would not cause a threat, and then you would eventually know by what turbines that the agencies are predicting to not cause threats or to cause threats regardless of the numbers on Kauai's or on another island and the I believe the significance of the threats are also the height and we do have publications from power lines studies that were done in the 90's on the height single post, single post structures and the impact of the single post structures um would have on the seabirds. Mr. Chang: And, and again correct me if I'm wrong did you clarify the speed of a vertical axis turbine versus the horizontal? Mr. Griesemer: I didn't. Mr. Chang: Okay so we don't know the difference between speeds? Mr. Griesemer: Right so I think the key thing is the actual visualization of what that type of turbine would look like because there are vertical axis turbines that do have blades, there are like single kind, metal blades that spin fast so those could pose a threat, so it's the type of... it's having a turbine that's like an obstruction that could be easily seen. Mr. Chang: I think that's important to see what the speed would be based on I guess the more speed, the more power, is that right? Mr. Griesemer: Right, yep, yep.. it is. Mr.Chang: Okay thank you. Mr. Furfaro: Did you say more speed, more vibrations too? Mr. Griesemer: Not aware. I know the National Renewable Energy lab is doing some testing on some vertical axis turbines, you could probably find some wealth of information at that, at some of their websites. Mr. Furfaro: Thank you, we'll check into their websites, thank 14 you. Adam, we have one more question. Mr. Kawakami? Mr. Kawakami: I think you brought up a good point about having to analyze these proposals on a project by project basis. Would you be able to answer if you guys would have the appropriate staffing to handle on a project by project basis if this Ordinance goes through if you start getting some proposals? Mr.Griesemer: Yeah, yeah and so that's the recommended language, is to submit them proposal by proposal in an area by area because each area is going to be different in terms of the numbers of seabirds. The type of turbine could be different as well, roof mounted to pole mounted to all different types. Mr. Furfaro: Mr. Bynum. Mr. Bynum: Sorry what staff would analyze these? Mr. Griesemer: This would be the state office, the um over in O`ahu... The state office for DLNR for Division of Forestry and Wildlife and then also the Fish and Wildlife Service Office, the U.S. Fish and Wildlife Service Office, the Ecological Services Division and I provided the numbers in previous presentation on seabirds and the attraction to lights but I don't have them with me now, the actual numbers for the... Mr. Bynum: So the state has a mechanism in place to process these? Mr. Griesemer: Right. Mr. Bynum: And they have an application form or? Mr. Griesemer: They would have... You would submit proposed project in the information on the proposed project to the state. And I would have to check.. . Mr. Furfaro: May I get some clarification on the question? Mr. Griesemer: Yes. Mr. Furfaro: The question was if you're now telling us the state has input on this, I think the question was, is there application? I didn't hear (inaudible) Mr. Griesemer: I thought there was one in development, I'm not sure if it's out there posted on the website in terms of this is for wind turbines, application for Kauai County. But I know the Kauai County Planning Department has been working with the state of, with the state agency as well as Fish and 15 Wildlife Service already to submit for review, without an application. Mr. Furfaro: So it's in the works? Mr. Griesemer: Yes. It's in the works. Mr. Furfaro: Thank you. Mr. Kawakami: Just one more quick question. Mr. Furfaro: Go ahead Mr. Kawakami. Mr. Kawakami: What would the final approval look like? Would it be a flat out "yes" there's no problem with you putting up a SWECS or would it be just you are in an area where it would be prudent for you to apply for an incidental take permit which would include formulating an HCP or what would the final approval look like? If it goes through the state agencies. Mr. Griesemer: Right and I don't know if this mic is working, is it on? Okay. The HCP for an approval it would be without a requirement of an HCP and then once you have an HCP, if you needed an HCP then you would have to submit incidental take license. So you would have an ITL, HCP in hand, for that tower mounted turbine. If you didn't need and if there was no threat to seabird to analyze then it would be, you would have something along the lines where the agencies would say that the conditions are met and that there's no proposed, no risk from the proposed operations. Mr. Kawakami: And just to clarify, we still don't have a even like a dollar amount that we're looking at yeah? As to how much, you know like a estimate, a cost estimate for people that are interested in this... in SWECS as far as approximate how much would it cost to do an HCP for a resident... if I'm one of the guys that's unlucky enough to get an answer saying that "oh you need an HCP to move forward." Mr. Griesemer: Yeah I don't have a specific dollar amount but I know you would have to hire a consultant to draft one and you would most likely have to do radar studies and find out what the number of birds that are coming through that area or use some of the state data if it's available and you'd have to pay for the consultant and also for the mitigation. Cost as well and I don't have anything off hand. Mr. Furfaro: That mean a lawyer, the mitigation person? Mr. Griesemer: No. The... in the HCP it spells out what mitigation to... Mr. Furfaro: Okay. You answered my question. So we have an 16 HCP, ITL and what was the other abbreviated? Mr. Griesemer: Ah. I'm not sure. So you need an HCP in order to get an incidental... Mr. Furfaro: To get an incidental taking license... Mr. Griesemer: Right and it would be... those would probably be attached to a letter of concurrence saying that these conditions are met and that yeah. Mr. Furfaro: Okay I'm sorry I thought there was another abbreviated step so, I'm sorry Mr. Kawakami, I wanted to get the (inaudible) Mr. Asing: So what is the alphabets now? Mr. Furfaro: It's HCP which requires an application for taking permit and then when you get the permit, you have to apply for an Incidental Taking License right? Mr. Griesemer: Right the... Mr. Furfaro: And getting the license you probably have to hire a... I guess someone to actually negotiate the terms of that license? Mr. Griesemer: No it would be to draft the biological plan. Mr. Furfaro: The biological plan? Mr. Griesemer: Yeah. The HCP, the Habitat Conservation Plan but that's only if that project proposes a threat to seabirds. Mr. Furfaro: But we still don't have an ideas of the fine attached to a potential taking? Mr. Griesemer: I believe last time we were here, Paula Harto was here. She had mentioned that for the under the under Endangered Species Act and I believe $25,000 per birds. For Newell Shearwater and Hawaiian Petrel, I believe has been $50,000. Mr. Furfaro: And that's per bird right? Mr. Griesemer: Per bird that's right. Mr. Kawakami: One more. Mr. Furfaro: Mr. Kawakami then we'll go to you Lani. 17 Mr. Kawakami: Have you identified any areas on this island that you wouldn't be required to do an HCP? Mr. Griesemer: Um. It would depend on more than just the area, it would depend on the turbine as well that's being proposed. Mr. Kawakami: Well what if it's horizontal then? Mr. Griesemer: It's a horizontal axis and it's roof mounted or? Mr. Kawakami: Let's cover both of them since, you know there's 2 proposals, one is tower and one would be roof mounted. Mr. Griesemer: Right. Mr. Kawakami: So let's say tower. The proposing tower, is there any area on this island that wouldn't require an HCP? Mr. Griesemer: I can't answer that question directly; actually the agencies have to go through the project approval process. Mr. Kawakami: Okay. Mr. Griesemer: Or the permitting process and the review process for those proposed projects. Mr. Furfaro: Lani the floor is yours. Ms. Kawahara: Thank you. Thank you for the information on that. You have previously said that the vertical axis turbines are unlikely to pose threats to seabirds so that most likely is a project that wouldn't need an HCP and cost an amount over what you would try to be making... Mr. Griesemer: Right. Ms. Kawahara: or saving right? Mr. Griesemer: And they're roof mounted and they're unlikely to pose a threat... Ms. Kawahara: Right. Mr. Griesemer: if it's roof mounted and a solid object yeah. Ms. Kawahara: Yeah those are the kind of projects that probably wouldn't need a HCP, an attorney, an ITL. 18 Mr. Griesemer: Right. Ms. Kawahara: I also wanted to... and when you first came up if you could tell me, you made a big... you made a differentiation between roof mounted and tower mounted, if you could just tell me what under, what applicability makes them totally different from each other from you didn't want that one in the bill, for the tower mounted. Mr. Griesemer: That was actually my own opinion in that they could both be in the bill; it's just that you're unlikely to get an approval for something that's tower mounted where's you're more likely to get an approval for something that's roof mounted and it's a solid object and that it wouldn't pose a threat to seabirds. Ms. Kawahara: Okay, okay. Thank you. So we're getting a little bit closer to what kind of projects would qualify and would not need an HCP which would make it probably prohibitive for most people. Mr. Griesemer: Right. Ms. Kawahara: So we have some guidelines as to which kind of projects would be likely to be successful and approved? Mr. Griesemer: That's right. However the current bill doesn't include any languaging, any language requiring any concurrence letters right now... Ms. Kawahara: Yes. Mr. Griesemer: the current bill only um requires notification from the applicant to the agencies. Ms. Kawahara: And I do want to thank you for the wording here. Mr. Griesemer: Yeah. Ms. Kawahara: That I think is a good point. That we do have to not just mail it in and they receive it but have some kind of compliance issues addressed. Mr. Griesemer: Right, exactly. Ms. Kawahara: Thank you. Mr. Griesemer: Yep. 19 Mr. Furfaro: Mr. Bynum. Mr. Bynum: One correction, I believe that the bill.. the maximum height in any zoning district would be 60 feet including the measurement to the very highest point to the tip of the blade, and in other zoning districts it would be much lower than that um. And then but basically what I'm hearing is that there is no established criteria by which you could say "hey if you do this type of place, this type of system in this area, it's okay." There is no criteria like that now? Mr. Griesemer: You're right in that it's each project would be handled in a project by project basis. Mr. Bynum: And there's no intent when the island wide HCP is done to establish that criteria then either? Mr. Griesemer: Not with the current funding we have now, no. Mr. Bynum: Thank you. Mr. Furfaro: (inaudible) If there's no more questions from you, I'm going to ask the County Attorney to come up for a moment. Ms. Kawahara: I might have one more question for Adam. Mr. Furfaro: You have one more question for Adam? Okay. Go ahead. Ms. Kawahara: So I'm looking at somebody's questions to me and I'm not sure if you're going to be able to answer. But if somebody wanted to put something on their deck, on their deck which is already raised and it's 10 feet above the finish grade level, is that something you guys can evaluate too? If they put it... Mr. Griesemer: It's definitely something that would be evaluated I can't tell you right now. Ms. Kawahara: Yeah. Mr. Griesemer: if it's like permitted or not. Depends on the area and again the type of turbine if it's vertical axis versus horizontal axis. Ms. Kawahara: Okay thank you. Mr. Furfaro: Mr. Kaneshiro? Mr. Kaneshiro: Thank you Chair. Just wanted clarification. The report that I would like to get from you would be in regards to this type of tower, 20 I'm not asking for the huge towers they do have on Maui and so forth, what I'm asking for is if you have some you know numbers of the endangered species of birds that were hit with this type of tower, maximum (inaudible) up to 60 feet so. If you could provide me with that information. Rather than the big, large wind turbine commercial towers, for now we're talking about residential and stuff like that, up to 60 feet. Mr. Griesemer: As I know, no one has studied the small wind turbines on the islands and particular to Kauai within the geographic areas of some of the currently permitted ones are North Shore in areas of high flight, passage rates, I don't know of any studies, there hasn't been any yet and since they're private landowners who own these turbines um if there was to be a study, you need access to and I'm certain you would need the appropriate type of language in the contract to um and I don't even know if this would be possible to remove the liability, I don't think that would be possible. I think that what is possible is a recommendation I made earlier not specifically to the Council but to the others in the agencies if that the county could provide a way of having, the current permit of wind turbines provide anonymous information on any take that's occurring at there turbines, it would help the agencies further understand and evaluate those risk. Mr. Furfaro: Did I just hear you say, .for the counties to provide the state with anonymous information because the state does not have the right of entry or an easement into private property, so you're putting the burden back on us through an anonymous source? Wow! I need the County Attorney. Mr. Kaneshiro: Yeah well. That is why I asked the question because we're talking about 60 feet now and especially if I read your recommendation, the recommendation you're saying here that Department of Land and Natural Resources wants us to put in this bill, looks like we're you know it looks like we're talking towers around 200 feet... Mr. Griesemer: Yeah. Mr. Kaneshiro: with the requirement (inaudible) and so I want to be clear. Mr. Griesemer: Sure yeah. Mr. Kaneshiro: As this is being presented to us, I want to be clear that we're talking apples for apples and oranges for oranges. Mr. Griesemer: Yeah and that's a really good point... Mr. Kaneshiro: And you know if you don't know of any... because right now your testimony specifically states that at high speed at night, it's a high risk for Hawaiian Petrels, Newell's Shearwater, Nene, and Hawaiian Hoary Bat. What I'm asking is that is the 60 feet towers apply to this because the way I read 21 your amendment is specifically relation to the testimony so I need to be clear. Mr. Griesemer: Yeah one of the things I mentioned earlier are that there are publications and I can send you on not wind turbines but on power lines that... Mr. Kaneshiro: We're not talking power lines here, I'm talking wind turbines. I mean this has nothing to do with power lines... Mr. Griesemer: Well the seabirds are found under the poles. Mr. Kaneshiro: Wait. Let me... to make this easier for us, to make this so we all can understand and move on and able to you know, help and support energy, wind energy and so forth. I need to understand when you write a testimony like that we're specifically talking about towers that go up to 60 feet, so is this testimony that you sent here specifically to that in relationship to that level, 60 feet and is the recommended amendment that you're making here is specifically to those types of towers, that's my question. Is it or not? Mr. Griesemer: Yes it is. Mr. Kaneshiro: Okay. But again you don't have the numbers to prove that this really took place, where it did endanger the Shearwater, the Nene, the Hawaiian Petrels, the Hawaiian Hoary Bat at this height right? You don't have that right now? Mr. Griesemer: Not from wind turbines. Ms. Kawahara: So. Mr. Kaneshiro: Okay that's all I wanted to know. Ms. Kawahara: So Chair? Mr. Furfaro: You got the floor. Ms. Kawahara: We're.. the Committee... we're doing a fact finding thing here right? So just this information that we're getting it has been helpful to myself so that I get an idea of what kind of species are affected at any rate, not specially by height or speed or vertical or horizontal. So I just wanted to mention that that maybe there isn't any stuff out there yet, most of it's commercial and that's the only information that we have so getting it um, I think what Adam was saying about having a study to do it and that is what he was talking about (inaudible) information it would be a voluntary (inaudible) information I thought, thank you. Mr. Furfaro: Adam, I'm not going to recognize you, your 22 summary... this is now being a dialog within the Council and I would like to have the County Attorney up so thank you very much. Mr. Griesemer: Could I have one comment to that? Mr. Furfaro: Okay you have given us today statements and testimony which quite frankly I appreciate Councilwoman Kawahara finding the silver lining in all that information that you had. But the silver lining basically says we need more information, we have test, we're under study, we're drafting applications, you know... there's a lot.... But what you gave us is really documentation under the logo of the State of Hawaii and you know currently you know you put us basically on some notice that you know all of those things have to be considered when you testify on behalf of the state. What I want to know is just a very quick observation by the County Attorney what kind of notice did you just put us on? So, we have no more questions for you at this point. Mr. Griesemer: Thank you. Mr. Furfaro: Thank you very much for your testimony. Mr. Griesemer: Thank you very much for hearing my testimony. Mr. Furfaro: Yes. Thank you for being here. Could I have the County Attorney? IAN JUNG (DEPUTY COUNTY ATTORNEY): Good afternoon Council Chair, Vice Chair and Councilmembers. Deputy County Attorney Ian Jung for the record. Mr. Furfaro: Thank you. Mr. Jung, I guess my concerns are focused around this testimony today where I didn't have real tangible procedures that said these are the things that should be in a bill based on the fact that there is a need for compliance with DLNR and you know any potential taking. You're you know... we are close to getting an observation of our strategies but our strategies need to take this testimony into consideration but it is a given under the state of Hawaii and stationery from the DLNR and there's a lot of uncertainties, could you acknowledge that we should be at least more cautious about this bill as this new information has come into light. Mr. Jung: I would have to agree with you on that, we have to be cautious but it... if I could just give you a little historical background on how this came about is when I first started with the County Attorney's Office, I was asked to look at this bill along with the Planning Department and when I was working to craft the language to kind of contemplate what Paul Connery the Administrator of (inaudible) put in his letter, I worked with the Planner to try to craft this language and we came up with what's currently in the bill under Section 1 F along with... let's see here give me a second... Section 8.28 4 point 4 (h). so I talked to Adam 23 who's very knowledgeable about this and you know granted his concerns for the avian population are warranted, it still is you have to look at our zoning permitting issues could potential be conflict to what they want to propose as their amendment. So if we as the County rely on them giving their approvals for us issuing our permit, we could run into automatic approval issues because if we have to wait on them to give us the green light and we have protocols in our rules that say we have to act on this particular time and if we're still waiting on them you know, if we don't take action then potentially it could be a automatic approval. On the other hand I did try to work with Paul Connery, I talked to him and I submitted our proposed language it's right now in the bill and I emailed that to him and I still awaiting a response, I didn't follow up with him but I did email him the response, he had me email it to him so he could take a look at it but I haven't heard back yet. But in looking at Section 1 (f) the focus is that this is a zoning permit, it is only a permit and any other further approvals that would require by other state or federal agencies has to comply with and inherent in this would be a condition on if it goes through use permit a condition that they have to get that approval. And if that approval means doing a Habitat Conservation Plan then it be on the applicant so the notice is on the applicant to go forward to get those approvals. So if they want to shell out the amount of money that it would cost to do the Habitat Conservation Plan then again it would be on them. Mr. Furfaro: I do believe you understand what my concern is coming because if it is a zoning planning issue and we're doing it on County permits, if we don't have that clarity in the future, you know my concern is could the County then be reliable for the 50,000 or the $25,000 in a taking strike. Mr. Jung: Well I mean if it's a issue with liability then I think it has to be thoroughly examined. I'm not prepared to answer that question right here on the floor and I don't think it would be appropriate to, but there are cases that have addressed bird strikes and remember the liability would only be for endangered birds, in itself. But there are also there's a migratory bird act as well that there are or have been lawsuits on the mainland specifically in California and Virginia but some of these lawsuits haven't been heard on the merit, so the issue of the amount of liability hasn't been thoroughly been examined by the courts, so a lot of them have been dismissed on the merits for standing issues and such. Mr. Furfaro: Nor today did we see anything that specifically told us what those fees and fines were. Mr. Jung: Correct. Mr. Furfaro: So. Mr. Jung: Or the court would issue as fees and fines. Mr. Furfaro: But I think you know where has this bill comes up from Mr. Bynum it raises a lot of questions about when we actually get to our 24 strategic plan when it's presented as the County, we certainly need to make sure we understand how this is going to interface between the different political subdivision, county law, zoning, state, federal regulations, protected species laws I mean that's where my concerns is. Mr. Jung: Okay. Mr. Furfaro: Is it a legitimate concern? Mr. Jung: It would be a legitimate concern. Liability is always a legitimate concern. Mr. Furfaro: Especially if we're writing the check? Mr. Jung: Correct. Mr. Furfaro: Mr. Bynum? Mr. Bynum: Thanks for being here today so and you've answered some of my questions with your presentation that when this bill was at Planning there was a Planner assigned and you've worked with that Planner and looked at the correspondence that Adam is referring to and between the Planning Department and County Attorney, your recommendation was the language which is currently in the bill, is that correct? Mr. Jung: That's correct. Mr. Bynum: And so in that point the message from the County Attorney was this is an appropriate way for the County to proceed, that was the communication to the Planning Department right? Mr. Jung: It would be but you know the .request from the Planner wasn't to thoroughly examine the liability and if... Mr. Bynum: Right. Mr. Jung: you know that has to be done. Mr. Bynum: But in terms of the County's responsibility provides permits for activities. Mr. Jung: Right. Correct. Mr. Bynum: And so based on that the bill passed at the Planning Commission? Mr. Jung: Yes. 25 Mr. Bynum: And so just so it's clear to anybody to be paying attention to this there is a provision in the bill that requires the applicant to notify appropriate state agencies who are responsible for the endangered species act. Mr. Jung: Right. Notified by certified mail so we are aware of their notification. Mr. Bynum: Right. Mr. Jung: And we wouldn't deem an application complete if this proposal goes forward, the application wouldn't be deemed completed until we get that receipt of that certified mail. Mr. Bynum: It requires that the applicant notify the appropriate agencies because this is really about responsibilities, County's responsibility for permitting, the state is responsibility for this endangered species act. So the County is basically saying, "you have to inform that notified parties and they can use whatever they have in place to address that issues", but for the county issues we need to see that you, we need the documents that you provided that notice and then it's between you and the state agency to resolve those issues. Mr. Jung: Right and that's why Section 1 (f) has the provision in there and you know if there are further approvals required then they would have to consult with the state and federal agencies. Mr. Bynum: So I appreciate that effort happened. I said here before I thought that the Planning Department the Planner, the County Attorney's Office did a really good job of reviewing all of those issues relating to this bill um and so and I think what we heard today is that it's the state level, they have no established criteria, they don't have science or data about what the potential risk are at certain heights and it's news to me this week that there's no intent in the island wide HCP that's occurring to address those issue either, so it's kind of an undone process on my point of view but I feel like the work that you did with the Planning Department addresses the County's concerns adequately so thank you. Mr. Furfaro: Mr. Chair? Mr. Asing: Yeah just a follow up questions. When you say "notify" any reason why meet requirements rather than, rather than notify? I mean notify is fine but what does it do, notification? Mr. Jung: Well... Mr. Asing: I would think you know meeting the requirements rather than notification would be a better way or am I wrong? 26 Mr. Jung: The thing with that is.. I mean whenever you have a dual system of planning where you need dual permits, you could run into the possibility of missing times and deadlines, under automatic approval so if we are... if someone request something from us and we don't act on that request within a certain amount of time, because we're being held up with another state agency, then that permit could potentially be automatic approved under Hawai`i's Automatic Approval Law. So if we're to rely on their consultation and meet their requirements then we could put ourselves at risk. Mr. Asing: Well then I would say then the better way to handle that is to amend the rules so that that would be taken into consideration rather than do it the way you're recommending you know because I would think that the remedy should be change the rules. Amend the rules to allow for this additional time that was not caused by the County but by the applicant in his process so that would be the method to take care of your problem. AL CASTILLO (COUNTY ATTORNEY): Excuse me. Excuse me. Mr. Furfaro: Go ahead County Attorney. Mr. Castillo: Al Castillo, County Attorney. With due respect Council Chair, if this is a matter concerning liabilities of the County... Mr. Asing: Okay. Mr. Castillo: exactly on point and if we should not at this point discuss the matter further. Mr. Asing: Thank you. I appreciate that. I will withdraw my questioning. Mr. Furfaro: Thank you. Mr. Kawakami did you have something? Mr. Kawakami: Um no. Mr. Furfaro: And I think you addressed my concerns by pointing out the potential risk with the dual permitting process. Mr. Jung: Thank you Councilmembers. Mr. Furfaro: Thank you very much. Is there anyone else in the audience that... Mr. Carl Imparato? Thank you Mr. Jung. CARL IMPARATO: Aloha Councilmembers my name is Carl Imparato and as you know I believe as written, this bill is an extremely poor bill. It lacks much needed balance and protections. First I would like to address 4 points that 27 were raised based on the previous testimony of the supporters of this bill. First of all written documents and I've provided some samples to you folks, the experience of resident's direct experience and common sense say that S.W.E.C.S can be very noisy. Bill 2317 claim that S.W.E.C.S are quiet, maybe they are but then opposed including any requirements to guaranty that there's no impacts on neighbors. The bill proponents there's no important visual impacts from S.W.E.C.S that we should care about but then they opposed allowing approvals through a public hearing process so that those supposed non-impacts can be considered on a case by case basis. The bill proponents say the S.W.E.C.S proposed implicitly no major threat to endangered species because and then they want to undermine the rules that protect endangered species as we just heard by having the bill allow the County to grant approvals before getting okay from the federal and state agencies that protect these species. In other words rather than deny approval because we haven't heard from the federal and state agencies, grant approval "I no care." Finally the bill proponents try to use examples from S.W.E.C.S by talking about them on large Ag parcels but they don't point out clearly that the bill would allow 20 foot towers on roofs, on even the smallest residential lots less then 10 feet from property lines and with no requirements that they'd be silent. These are real serious problems, they're so serious that you've received a letter, hopefully it's in your package, approval by overwhelming majorities of the Boards of the Thousands Friends of Kauai and Sierra Club that testimony, the testimony (inaudible) also notes these concerns... it says that the bill needs major changes if it should be even given further consideration and I hope you'll take that testimony and those concerns of these important environmental groups very seriously. Where do we go from here? On July 10th Barbara Robeson submitted amendments that were and there were substantial number of amendments that we believed were necessary to address even some of the problems that are noted above. In addition there are problems regarding such as defining S.W.E.C.S as a 100 kilowatt units that's very, very large over riding the North Shore development plan and not making consistent changes with the rest of the CZO. Now at this point I think it's clear at least to me that the bill's problems are so extensive and pervasive. They're trying to amend the bill to correct those problems (inaudible) it's like trying to patch a rotting rowboat with 50 leaks, it's much better I think to ditch that boat and spend time on building a new more sea worthy vessel built to the right specs. So I think that the most effective way to get a good S.W.E.C.S bill would be to kill Bill 2317, wait until Kauai Energy sustainability plan is done in order to get a better sense of how important S.W.E.C.S are... Mr. Furfaro: Excuse me Mr. Imparato that's your first 3 minutes I'll go and give you your second. Mr. Imparato: Thank you... wait until the energy sustainability plan to get a better idea of how important S.W.E.C.S are in the spectrum of renewable resources, do we need to make these major trade offs on noise, visual impacts for S.W.E.C.S or are they really not an important renewable resource in that spectrum, that's information that should come out of the plan. And after that's done, then draft a new balanced rational bill that's consistent to those policies and 28 supportive of protecting neighbors from noise, protecting Kauai from excessive visual impacts and protecting endangered species. I want to close by saying Chair Asing raised an example a few meetings ago about someone who basically had to move from his or her house because of noise and they had no recourse because of the zoning ordinance didn't protect them. That brings home the point that we need to make sure the CZO protects residents and the environment and the endangered species and we shouldn't be reckless or cavalier about change that leave residents powerless to stop projects. It doesn't matter if there's 99 Kauai S.W.E.C.S out there, as long as there 1 noisy one than the CZO has to have protection for residents so that it could keep that noisy one from destroying their ability to peacefully enjoy their homes. So with that you know I really hope that you'll take the time to do the job right, to get the right balance and to make sure that than residents, the land and environment are all protected, thank you very much. Ms. Kawahara: Based on your testimony here if say that S.W.E.C.S in the sustainability plan comes out and says it's only 3% you know, that the S.W.E.C.S can contribute 3% to energy needs, would you then want to ban anybody from having one because it's so little? Mr. Imparato: No I would say that... first of all when something comes out of the sustainability plan, I wouldn't think the percentage would be saying that when we look at those various resources for example, large wind turbines might be a higher priority, (inaudible) takes might be higher priority, so it's a question of priority list but whether it's a question list of 3% or whatever, I think then the issue then is to say, if it's not a critical resource to us, if it's not you know a large scale one, we have alternatives out there then don't ban S.W.E.C.S, and I've never said we should ban S.W.E.C.S, I said I support S.W.E.C.S... Ms. Kawahara: But you... Mr. Imparato: but... but I said they should be allowed with the proper protections-no noise on the neighbors and improper hearings for visual impacts so that I think is what comes out of the (inaudible) sustainability plan saying you know we're not desperate for this or we are desperate for it. If we are desperate then maybe you say too bad we'll deal with visual impacts because it's so, so important. That's what I see coming out of the plan. Ms. Kawahara: Okay thank you for clarifying. I also.. the Sierra Club (inaudible) and one of there issues was the endangered avian species... ah was the last one number 3 and with the explanation from Attorney Ian Jung would you say that that addresses the concern of number 3 in your letter? Mr. Imparato: No... Ms. Kawahara: Because he... Mr. Imparato: I'm sorry. 29 Ms. Kawahara: because he does say that it doesn't... it doesn't release the applicant from any of the state, federal or county laws that are required because it's a zoning thing and this other stuff is different. Mr. Imparato: Understood but compared to the alternative of the county saying we are not going to grant you the permit unless you've already got the approvals from the state and federal agencies, that's a much stronger stance on protecting endangered species than saying here's your county permit and we're going to look the other way whether you dealt with the state and federal government. If you know... like on other issues for example we have the voting issues in Hanalei... it's hell getting the Army Corps of Engineers out here to do anything. It's a federal agency and we're just small fry in there so I think it's incumbent of the county to basically reinforce the ability of state and federal regulations to be met and that's why I believe something (inaudible) Chair Asing mentions are appropriate. Ms. Kawahara: Okay thank you and I did I was wondering about what happens when we give the zoning half of the permit and then the federal or state comes in and says well you can't do it (inaudible) right? Okay thank you. Mr. Furfaro: Mr. Imparato, I do want you to know we're going to break for some lunch here. I'm sorry if it's during your time but I want to thank Thousand Friends as well as the Sierra Club for this testimony but I do plan to make a presentation after lunch on what is these stakeholders preference on alternative energy versus you know the overall strategic plan. What has been documented so far in the community meetings, I think you know the larger wind turbines are in the top 5 with many other things, where the smaller S.W.E.C.S are down around number 8 or something but I do have a presentation to that and it's not a priority list, it's based on the feedback from the community on preferences so we'll be addressing that after lunch. May I ask if there's anyone that has a question? Mr. Kawakami: Just a quick one. So if we were to require a class 4 zoning permit on a roof mounted and tower mounted S.W.E.C.S as part of the permitting process would that address major of your concerns about this bill? Mr. Imparato: Well it starts down the path but then the question is when it goes to that class 4 permit hearing what are the standards that are going to be there? And that's where it's important as well in that use permit hearing to be able to say this is not supposed to make any noise impact on the neighbors. If we don't have it in there then someone can basically say "well we're having a hearing and you have noise impacts, too bad, we have the S.W.E.C.S bill and it says it's a high priority to have renewable resources." We don't have the sense of the Council saying that it's high priority that neighbors not have to be impactrf noise wise so you have a use permit hearing but then standards say grant the permit so I think the process... the hearing is important but it's also important to have standards 30 that say no perceptible noise impacts on the neighbors. Mr. Kawakami: Just one more quick one. Mr. Furfaro: Go right ahead. Mr. Kawakami: Just for clarification. So is it the position of the Thousand Friends of Kauai and the Sierra Club that they would rather see this bill receive? Mr. Imparato: Um... No that's my position. Mr. Kawakami: Okay. Mr. Imparato: Theirs is that... I'll be very specific that these problems all need to be addressed if the bill is to move forward. Mr. Kawakami: Okay. Mr. Furfaro: Anymore questions of Carl? Lani? Ms. Kawahara: You know... I am... the undue negative visual impacts issue for the both yeah... Sierra Club and one Thousand Friends... I can understand that concern. I was wondering people bring up the power lines yeah? Do you notice the power lines anymore? After... if they're considered a utility kind of thing and do you notice them as you drive around? Mr. Imparato: You're asking the wrong person because I've got one in front of my house so yeah I do notice it but (inaudible) making your question more generic... no people do get used to certain things.... The question is whether we want to create a whole new class of impacts and that again begs well to what benefit, why should we do that? And that's where I think it's worth while to look at the energy sustainability plan to find that you know how far we go in doing that... Ms. Kawahara: okay. Mr. Imparato: but I also think to noise... to visual impacts what's important is to then to do it on a case by case basis rather than wholesale basis (inaudible) because there's lots of places where you might say fine build a 50 or 70 feet tower, it doesn't really create a problem. Ms. Kawahara: Okay. Thank you. Mr. Furfaro: We're going to break for lunch, we're going to be back at 1:40. There being no objections, the Chair recessed the meeting at 12:30 p.m. The 31 meeting reconvened at 1:45 p.m., and proceeded as follows: Mr. Furfaro: Aloha good afternoon. We are going to go back into session with the Planning Committee after the lunch recess and I believe we were finishing up with Mr. Carl Imparato and I will ask if there's anyone else would like to testify? Okay please come up. KEN TAYLOR: Chair, members of the Council my name is Ken Taylor. This bill as much as I'd like to be supportive of it is really troubling me. I think there was some good issues that were raised before lunch. I'm very concerned and really disappointed that we don't have the amendments so we could talk about them because after last hearing on this item of... I was very concerned about at least one of those amendments that may be coming forward today to address and so I hope as we move forward we'll have an opportunity to speak on the amendments, thank you. Mr. Furfaro: Mr. Taylor? Mr. Taylor? Ken? I will make an exception based on the fact that what amendments will be turned in today, I will wait until ALL amendments are available before I ask for any public comment. Mr. Taylor: Thank you. Mr. Furfaro: Okay. Anyone else in the audience that wants to speak? Ah... Mr. Mickens? GLENN MICKENS: Ah thank you Jay. I just want to say I completely support everything that Carl's said about this bill. Everything he says I think makes good common sense, I think the bill has and is now I think it should be received, I think anew bill could be written in much better... I thought (inaudible) in the leaking boat was good punch, plug up one hole and I said this boats in bad shape so I think you could write a better bill. I think the as Dickie was pointing out the (inaudible) issue I think is as big problem as the audio part of the thing but if one of those windmills happens to get a bad bearing in it, you got a bunch of them or something that's quiet to begin with, it gets a bad bearing or something somebody's going to have to repair it and you're going to have problems with the neighbors because it's going to be squeaking at night and stuff and you know as your guy with Fish and Game here pointed out somehow I think that whole thing is going to be incorporated as a priority rather than secondary. If permits are issued by the county and then all of a sudden they find out well hey we're violating the state or federal laws now you're going to have to go back to the thing.. your going to have to find somebody, oh I have a permit from the county... you're already giving permits to do it. I going to just overlook that. Then you're going to have to find the enforcement... anyway I just really appreciate all of that Carl had to say and thank you. Mr. Furfaro: Thank you Glenn. Is there anyone else that would like to give testimony? Okay I would like to call the Committee meeting back to... 32 I'm sorry I'm going to ask Mr. Kaneshiro if he could take over this Committee meeting as I have a short presentation to make on a Power-Point so.. Mr. Kaneshiro: Okay Mr. Chair. Thank you for that. You ready for your Power-Point? Mr. Furfaro: Yeah I'll just go right there. Mr. Kaneshiro: Take a couple seconds and Chair Furfaro is ready to... will be ready to make a presentation. Mr. Furfaro: Thank you. Mr. Kaneshiro: Okay you have the floor Mr. Chair. Mr. Furfaro: I wanted to clear up some information basically about the time I have been supporting to wait until we have a final presentation on the county's sustainable energy plan and to clarify you know what we went out to the public with was a series of questions... series of questions that dealt with... and the questions were designed to be understood in a sense of you know what people saw as probably not so much their priorities but their preferences on alternative energy and I wanted to share page 7 with you from the draft at this point and the first 14 items deal with electric possibilities and I have copies for the members here, I'm sorry I didn't pass it out... could someone pass this out to the members? And I do want to point out in this sequence this is on the first draft the basic preference to alternative energies by those who participate in community surveying indicated that solar photovoltaic was very much a high priority, followed by hydro followed by solar photovoltaic followed by... in a central large scale method followed by ocean current and waves type of energy followed by biomass combustion followed by concentrating solar power, number 7 on the list was wind, but this was wind in a centralized system on a large scale. 8 biofuel-powered turbine, 9 was wind of a small scale nature, 10 algae to biofuels.... So just to share this with you when it came to the overall preferences from the community the small wind was number 9 out of the first top 10 and it was very interesting... even in the top 5 large wind technology was 7 so I think this is very revealing on what some of our strategic plans should be working with the publicly owned co-op utility and where our investments should be driven and I'm having a hard time reading the screen because I left my glasses on the table but the reality is I'm finished with my presentation... so if I stumbled reading... please I just wanted to say that this is a very revealing energy sustainability strategic plan and it is the draft but I certainly feel it is worth taking it into consideration some of the comments today made, perhaps for some amendments but it would also in my opinion substantiates the fact that we perhaps we should wait the 7 months on this opinion of a small wind so thank you very much and I hope all the members have copies and I heard Mr. Taylor ask where he could get a copy so I'll hand him mine if the staff could make extra copies so thank you. 33 Mr. Kaneshiro: Thank you Mr. Furfaro any questions for Mr. Furfaro at this point? If not thank you. At this time I'll turn this Committee back to the Committee Chair Mr. Furfaro. Mr. Furfaro: Thank you Mr. Kaneshiro. Because I mentioned in my presentation that I thought there was 2 opinions here given the kinds of testimony we have today as well as the kind of concerns that could... came up with the overlapping jurisdiction of the different political subdivisions but I did want to ask if there were any potential amendments at this time, I know I have by request ask Councilman Kaneshiro, I'm sorry... Councilman Kawakami if he could assist me because as you know I cannot introduce amendments as the Chair. Are there any other amendments Mr. Kaneshiro? Did you have one? Mr. Kaneshiro: Not at this point, thank you Mr. Chair. Mr. Furfaro: Thank you. Mr. Bynum? Mr. Bynum: I have 2... whatever order you'd like to go... Mr. Furfaro: Well let's start with Mr. Kawakami then. Mr. Kawakami: Okay thank you Mr. Chair and as you stated this is by request the first Floor Amendment that I'll address is basically a house keeping amendment and it just changes some of the language um one of the numbers was wrong, referring to Section 28.5 it should be Section 8-28.5 and um under the first paragraph standards would be deleted and we would add in standards for S.W.E.C.S so... would you like to expand on that? Mr. Furfaro: Yes so especially referencing standards it actually references standards as it relates to S.W.E.C.S and I would like to ask the staff as we have these particular amendments that we could make public amendments available for viewing and this is so noted as I believe amendment number 5 that's up in the corner there? Mr. Kawakami: Yes. Mr. Furfaro: Okay and this is housekeeping piece. You still have the floor... Mr. Kawakami. Mr. Kawakami: .Thank you Mr. Chair and then going back in referring to amendment number 1 um basically it includes Use Permit and a Class 4 zoning permit process and allow I'll allow you to expand on that as you wish also. Mr. Furfaro: Thank you. Ah this particular amendment to... gives the public an opportunity to actually give testimony should the pursuance of a permit being requested at a Class 4 level which will trigger a public hearing, that's the first part. 34 Mr. Kawakami: And also limits the amount of kilowatts to 10. Mr. Furfaro: Yeah. So it changes it from 100 kilowatts to 10 and typical household I believe runs somewhere between 2 and a half to 3 and a half so. So that is amendment number 1 that's on the table. Mr. Kaneshiro: We're not going to get into discussion with the amendment yeah that I assumed because... Mr. Furfaro: No we're not. I'm just circulating... Mr. Kaneshiro: You're just circulating it at this point, alright. Mr. Asing: Can I? Oh I shouldn't ask. I was just going to ask you know the rationale behind the 100 to 10. I mean you know I'm saying "wow" that's a... what is the reason for this? Mr. Furfaro: Well I thought after reviewing the draft piece where small wind energy had really dropped to number 9 as far as the... the desire affects of it within the community I think... Mr. Asing: Oh that's the reason for... Mr. Furfaro: yeah that's the reason for the change... Mr. Asing: then I understand. Mr. Furfaro: and finding out that 2 and a half to 3 and a half kilowatts could handle a household, I thought it was no... not necessarily to need at a 100 based on the fact that in the surveying large wind farms are up at number 7... it would produce you know a larger portion of the alternative energy for KIUC. Mr. Asing: Ah yeah. I guess then... is your rationale designed for the premise that these small units would be for a household rather than to sell back? Mr. Furfaro: Yes. Mr. Asing: As an example. Mr. Furfaro: Yes and the rationale again in my opinion is... until we understand what the differential rates are where people will be you know using large ah components of energy being sold back on a (inaudible) to KIUC... when there is... the reality is when there is no wind... they actually have to draw from the system ah... and we don't have any real understanding of the rate differential. 35 Mr. Asing: Thank you. Mr. Kaneshiro: I'll save my discussions... (inaudible) Mr. Furfaro: We're good with that. Mr. Kawakami? Mr. Kawakami: Um... Yeah I would think so. Mr. Furfaro: Mr. Bynum the floor is yours to share your thoughts on any potential... Mr. Bynum: So I'm just a little confused by process... we're just going to lay out the things and then we're going to go back... Mr. Furfaro: Yes. Mr. Bynum: and introduce them and discuss them... Mr. Furfaro: As I had several people in the audience... Mr. Bynum: that's fine. Mr. Furfaro feel that the last time I circulated them, they had a chance to speak so. Mr. Bynum: Okay so I have 2 amendments, one is what's the word? Housekeeping, I think... by request of the Planning Department where one section they failed to add in Agricultural District, when the density of tower- mounted S.W.E.C.S proposed exceeds the density so it's labeled number 3 and it's under the section where it's require Use Permits and they failed to place in there the Agricultural District when the proposed exceeds the density of tower-mounted S.W.E.C.S permitted in a different section so it's a housekeeping one. The other one is the one I discussed last... 2 weeks ago and after discussion with the County Attorney's Office this removes this section that makes contrary covenants void so in essence that bill would not attempt to override contrary covenants... I wanted to retain that on Ag but I believe that because wind turbines are an allowable thing under 205 and there's a right to farm bill that the state's already taking care of that issue so we could just remove this section completely... it would allow private communities to still have their CC&R's be.. um enforced so those are the 2 that I have. Mr. Furfaro: Is there anyone else that has anything at this time? Ms. Kawahara: I have one but I'm still waiting for a reply um about what the difference was between the 1 year or 2 year for the discontinuance and how they came to that number so I didn't know if I should add it now or wait until I get a reply. 36 Mr. Furfaro: You're waiting for them to reply from? County Attorney? Planning Department? Ms. Kawahara: I think it was Planning. Mr. Furfaro: Okay. You probably want to wait until you actually have a response. Ms. Kawahara: Okay thank you. Mr. Furfaro: Okay so I would like to point out for those members in the audience we have actually 4 amendments circulating.. There are number... I'm sorry... 1,2,3,5... that is sometimes how you count rows of seats on airplanes... skip a row so... on that note I am actually going to suspend the rules but.. I'm going to suspend the rules for an opportunity to let people give 3 minutes of testimony before we come back to order, so the rules are suspended and are there any comments from the floor on any of these pieces being circulated? Mr. Taylor, come right up. There being no objections, the rules were suspended. Mr. Taylor: Chair and Councilmembers my name is Ken Taylor. Well we haven't had time to really study these issues. I do believe that first 2 amendments that were introduced by Derek, I believe I could be supportive of... although in the big picture I think this whole... whole issue should be taken back and redone but I'm concerned with amendment 2 in the back page... (i) contrary covenants voided. I happen to live in a higher cultural subdivision which probably shouldn't never been allowed but it's there. We have half acre lots. When the subdivider or the developer layed out the site, he took the time and effort to site each building location on each lot so that... and limit the height of the buildings of the covenants so that everybody had the views of the mountains and the waterfall and there would be no structures in those view plains... I think it's highly wrong to come now after the fact and allow something that would be put up in...in these view plains and in my particular case, out of a 22 buildings sites, 11 of those houses would be... if they all had windmills would have a major effect on my overall view and I wouldn't wish that upon anybody and certainly don't wish that upon myself but I think when you do things like this I think... if you're going to do um... to allow that to happen from this point on is one thing but to go back and tell people that have bought into developments for one reason or another and... I mean when we go to buy these properties we're asked to read those covenants and understand um and when we sign on to purchase those properties, we sign that we would live by those covenants and they are transferred with the property so.. it's really important to understand what the value is and in order for even the property owners to change ah the covenants it takes 78% vote of the property owners to make any changes so I just think it's wrong um... again on the smaller parcels I... I can support this bill if it was 4 acres lots and larger but I think when you get into smaller property sizes, 37 the visual experience... if a neighborhood where you have 6 or 8 houses per acre... each had one of these things on top of it, it would be a... not a pleasant site and 1 or 2 maybe but you can't... if you're going to let it happen, you're going to... everybody's going to have... to put one up. We heard testimony at the last hearing that people have put them up because they felt good about doing it but there was no economic value in doing what they have done and there are opinions.. other opinions that don't have the visual (inaudible) and I think... I think that's what has to be understood we... just because we say okay no windmills on lots smaller than an acre... those folks on the smaller lots have opinion to go solar and it has very little visual impact so I hope that would be considered when you moving forward with this but I certainly agree that we're going to have to slow it down a little bit and really take a really good look at all of these issues. Mr. Furfaro: So Mr. Taylor, I just wanted to reconfirm, amendment number 1 you can support because this actually ah requires a Use Permit... Mr. Taylor: Yes. Mr. Furfaro: that triggers a public hearing so that neighbors could gYVe testimony and so forth. Mr. Taylor: 1 and 5 I could support. Mr. Furfaro: Okay. Ah 2 your statement is basically people buy into areas with protective covenants, it is in the deed even for your own association... takes a large majority of your homeowners to change the protective covenants... Mr. Taylor: Right. Mr. Furfaro: and therefore you... you're saying that you feel (inaudible) it should remain as such. Mr. Taylor: Absolutely. Mr. Furfaro: Thank you, let's see if there's any questions, Mr. Bynum. Mr. Bynum: Mr. Taylor, I want to make sure you understand amendment number 2 agrees with your position, it takes out the provision that would have over road your restrictive covenants. Mr. Taylor: I'm sorry? Mr. Bynum: The amendment that I'm proposing agrees with you. It allows the restrictive covenants to remain, it's removing the provision that 38 would have over ridden your covenant. Mr. Taylor: I don't know if I... Mr. Bynum: The amendment is to remove the provision that would have over ride your restrictive covenant so the amendment agrees with your position. Mr. Furfaro: Okay maybe I should come back and revisit this with you on this Ken. As you see with on number 1 where it's underlined that's adding something, when you look at number 2 under Section (i) in brackets, that actually removes the condition and you are testifying that you prefer protecting covenants to remain in place. Mr. Taylor: That's correct. Mr. Furfaro: So what Mr. Bynum is saying is that's what this does. Mr. Taylor: Alright... Mr. Furfaro: It's actually hard to see... the bracket... but it's there. Mr. Taylor: Yeah and the fact that this has just passed out and we haven't really had time to... completely read it um... I would say in the future that at the beginning of a hearing of this magnitude of importance that these amendments be passed out at the beginning of this process so we can have time to read um and try to understand um so we could ask questions etc... so I hope in the future.. . Mr. Furfaro: Ken, I understand your point but I have to tell you... I probably if you check with the County Attorney, I probably stretching the rules a little bit now to stay with the confines, the amendments are based to be discussed by the members of the Council and I am circulating them now just to circulate so you could have a chance to look at it, we haven't voted on it but I'm trying the best I can to see... Mr. Taylor: And we appreciate that, thank you. Mr. Furfaro: Okay. Is there anyone else in the audience? Mr. Carl Imparato? I'm sorry Glenn, I'll let Carl go first if you don't mind. Mr. Imparato: Carl Imparato. I think both of the amendments that have been proposed are good steps in the right direction. I think though we need to look at as to what else might be efficient still in this bill with these amendments because there still is the problem that there are no noise standards 39 here, there still is the problem that height limits could be raised, there still the problem that there's clause that basically over rides the North Shore development plan, and then of course there's the issue of the endangered species questions that were raised earlier, procedural issues. So I think that again these are good steps as I read them, I haven't looked at all the details but again they need to be done I believe in contexts (inaudible) other steps otherwise we still have very major flaws, we have a Use Permit hearing that you'll always have the 8th ball on and I tend to still think that maybe this patch work will work, maybe it won't, but Kauai energy sustainability plan (inaudible) still very important to (inaudible) you might have 2 drugs that equally cure an illness but you pick the drug with the fewer side effects, the technology that's meet our energy (inaudible) or do we have one new drug that has terrible side effects, noise impacts, etc., and all that... then you might take it for cancer but you wouldn't take it for dermatitis and again that's a question of you know how much you want to give away in order to get the benefits of small scale renewable energy. So again I'll urge you to look at those other areas that I just mentioned (inaudible). Mr. Furfaro: Carl, I want to let you know I appreciate the fact that you indicated that a Use Permit and amendment number 2 is a good step but that's not to assume that you know we will amend this bill and then pass it today... I mean I still have the position and therefore I made the presentation on where small wind (inaudible) are in... the bigger picture and as you pointed out we still have the issues with the avian and the wazu, as well as the noise issue and the height restrictions in certain community districts so... those are things we still need to talk about. Mr. Imparato: I would like to say I'm very grateful by the way for you allowing us to speak to these... it's very customer friendly... thank you very much. Mr. Furfaro: You're welcome. Is there any questions of Carl. Ms. Kawahara: I have a question... If he... Mr. Furfaro: Let me relieve him first... Ms. Kawahara: It might be for him. Mr. Furfaro: Oh it's... directing at me but it might be for him? But let's do this... let's have you direct the question to him... Ms. Kawahara: Okay. Mr. Furfaro: and if I can help answer it, I will. Ms. Kawahara: Okay.. because you mentioned the noise and that there's no standard except for the Department of Health ones.... 40 Mr. Imparato: Right. Ms. Kawahara: that are in place. Did you... do you have a suggestion of how that is to be established? Do you expect it to be established by the County? By citizens? Since there's nothing out there besides the ones that we are given by the DOH. Mr. Furfaro: Okay Carl before you answer it... I have to be correct here... there's was no amendment on the floor... Ms. Kawahara: yeah so that's why I was going to... Mr. Furfaro: dealing with noise okay so... that's why I said you can ask him a question and then I'll make my interpretation since there is nothing here about noise and I'm giving people a second time, it's best that we leave... Ms. Kawahara: okay. Mr. Furfaro: that up to our own discretion if we need that or not at this point. Anymore questions of Carl? Mr. Imparato: Thank you again. Mr. Furfaro: Is there anyone else? Glenn? Please. Mr. Mickens: Also thank you Jay for allowing the public to speak on these things even though it might now be quite cushier but I'm very happy you're doing it. I too agree that the amendments are going in the right direction but I also agree with Carl that there's some more things that have to be accomplished before it's going to be a good bill. And I.. for me again the key thing here is the draft that Jay has shown... if this wind... small wind distributed thing is number 9 on the list, I mean you've got 8 things up here that we could go to, other than this particular bill. So I think these things... I think this is... how many Jay how many people did you... were interviewed for this? Mr. Furfaro: I... no... I want to let you know that there were community meetings. Unfortunately I would have wished that they were more regularly attended... I guess the overall attendance was an 164 people from (inaudible) but this question here is on the county website and so you didn't have to be present... Mr. Mickens: Sure. Mr. Furfaro: to give your... Mr. Mickens: Sure. 41 Mr. Furfaro: preference in alternative energy. Mr. Mickens: Well I... I... Mr. Furfaro: I know (inaudible) those who probably attended the public hearing but I don't have the exact (inaudible)... Mr. Mickens: Sure. Well I take extreme complement for you getting this particular pole and I think if you went to the whole island, I think you would get a pole that's very, very similar to this, I think the other alternate means would eliminate the noise factor and eliminate the blight factor with what you're trying to do here but anyway I do think this is highly important this draft that you showed Jay and I appreciate that, thank you. Mr. Furfaro: Thank you Glenn and that was the rationale to make people a little bit of more familiar with what the public sees as priorities to be. Is there anyone else that would like to speak on this at this time? Okay. If not I'm going to call this meeting back to order and I would like to say that um by approving or not approving these amendments today doesn't necessarily take me to the point that I want to vote on moving the bill out of Committee. I still think there's work to be done and I still by my presentation seeing that there needs to be amore comprehensive understanding of the actual overall plan as well as some of the permitting questions that have been a part of today discussion so if I could ask individual members to formally introduced these amendments, that is possible. If there is more favor to move to defer this and these amendments are out circulating so... Can I have some thought from Committee members? Mr. Kaneshiro: Looking at these amendments I don't... I can support having some discussions on this amendments today and I think it would be a good idea that at least if we have some of these amendments that we all discuss today and agree that this could be part of the overall Ordinance... then we don't need to take this up again... we can keep moving on and working on the bill... Mr. Furfaro: Okay. Mr. Kaneshiro: if the time comes when we're... there to work on the bill but I would love to have some discussions on some of these amendments in particularly on the... on number 1... Mr. Furfaro: Okay. Mr. Kaneshiro: if you want to take that up first and so forth but I have no problem as a Committee member moving this forward or voting this down on some of them if it doesn't go through Committee but I think at the same time it's a work in progress. 42 Mr. Furfaro: Okay thank you. Mr. Bynum? Mr. Bynum: I think I agree with Councilmember Kaneshiro that a this bill was...(inaudible)... Mr. Furfaro: Mic? Mr. Bynum: this bill was presented here at Council, it moved to the Planning Department, they did Committee work, and I would encourage members of the public and anybody who hasn't read the Planning Department's report on this bill which is quite extensive and addresses almost every issue we discussed there, including public testimony about how they advise the Planning Commission in terms of seeking balance relating to noise, setbacks, wind, you know all of the issues we've discussed... I'm ready to debate and... or to discus and vote on these amendments today and this is the time to do the work on this bill and.... So I'm ready to go. Mr. Furfaro: I understand your feeling on that... I do want to say although the Planning Department had made some notations dealing with issues with noise and height and so forth... there's no noise standard in the bill, you know at this point. It doesn't exist but I like what you and Mr. Kaneshiro has talked about, about maybe moving forward and looking at and voting on some of these amendments here today, but they have to be formally introduced. Councilwoman? Do you have a question? Ms. Kawahara: Because these are being amended I kind of do want people to be able to respond to me in emails, in general about... Oh but they have to be introduced? Mr. Furfaro: Yes. They have to be introduced and when they're introduced... we have an opinion to vote on it... Ms. Kawahara: Okay. Mr. Furfaro: So that's just the reality of the whole... Ms. Kawahara: Got it. Mr. Kaneshiro: So I'm ready to make an introduction for all 4 amendments... if you want... for discussion purposes. I would say you know for discussion purposes that we could get into each one individually. In particularly I have some problems on amendment 1. So I move to amend as... oh (inaudible) oh move to approve the bill at this time. Mr. Bynum: Second. Mr. Kaneshiro moved to approve Bill No. 2317, seconded by Mr.Bynum. 43 Mr. Furfaro: May I have a second? Thank you. Any discussion on the bill? Okay are there any amendments to... Mr. Kaneshiro: Yeah I move to amend as circulated and I believe there's 4 circulated amendments. Mr. Bynum: Second. Mr. Kaneshiro moved to amend the bill as shown in Floor Amendments 1,2,3, and 5, seconded by Mr. Bynum. Mr. Furfaro: It's been moved and seconded that amendments 1,2,3 and 5 are opened for discussion and I will call for vote individually on that one, Mr. Kaneshiro: Thank you Mr. Chair. May I have the floor? Mr. Furfaro: Yes. Mr. Kaneshiro: I guess I expressed... I had some concern on one. The reality is that if you look at this bill, this bill is not only for homeowners, this bill is for industrial, Agricultural use and commercial uses... so I have a concern about limited back to 10 kilowatts... I believe that you know as a farmer or a rancher... if I'm a dairy farmer or dairy rancher I probably need something more than 10 kilowatts to run my milking machines, I probably need more than 10 kilowatts to do a hog operations, to produce light for the new born babies and so forth so you know and I don't have enough statistics on that right now but limiting this just to home use is not what this bill is all about... this bill calls for small ones up to a hundred which you can run a successful operation, you can run a farm, you could run an industrial or .you could run a commercial operation based on the needs of kilowatts that you need and I'm afraid that if we move ahead and stick to the 10 kilowatts, then what we're doing... the bill serves no purpose for many of the commercial and industrial agricultural uses so that... I wanted to put that out. Mr. Furfaro: Point well taken but since you used the farm animals as the example this is one of those chicken or the egg first. I thought a 100 kilowatts for home use is excessive. Mr. Kaneshiro: Correct. Mr. Furfaro: So perhaps we want something in here that talks about up to 100 for commercial activities and restricted to 10... Mr. Kaneshiro: And I don't have any problems with that but I think that the way the amendment is currently reflects 10 kilowatts period. Mr. Furfaro: Okay so we can... we can massage that. 44 Mr. Kaneshiro: I have no problem with that but the way the amendment is currently... is I'm concerned about that. Mr. Furfaro: Okay Mr. Bynum? Mr. Bynum: Um just on that issue, I agree. I mean the... this is a small wind bill a 100 kilowatts is kind of a standard small definition around the country you know, certainly a homeowner would not want to go 30, and just pragmatically and practically they're not going to go there because it wouldn't be practical or... however you know one of the things I researched was the county facility that could use a 60 kilowatt wind tower that would save 100's... not a 100's... $60,000 a year. Mr. Furfaro: Let's be realistic and I already explained my position. Mr. Bynum: Right. Mr. Furfaro: I put the smaller use for residential. Mr. Bynum: Right and ah... so that you know I know certainly my intent of this bill was also industrial, commercial, agricultural and I mean I know of specific instances where it's in the 30 to 60 kilowatt range where it would be practical, and then it really is a very significant energy contributor, has a very significant return of investment and a very significant reduction on carbon into the environment so. Mr. Furfaro: I've expressed myself if either one of you gentlemen would want to look at amendment number 4 that amends this piece to reference 100 kilowatts for commercial activities and 10 kilowatts for residential, I could go with that. Mr. Kaneshiro: The ah... that was one point that I bought up. Mr. Furfaro: Yes. Mr. Kaneshiro: The second point is that... if you need to serve multiple houses, the question is that... would 10 kilowatts provide that because in certain instances if you look at the bill you're limited to only one per 5 acres or 1 per 5 for whole lot not to be more than 5 on the whole lot, so my question is that instead of having 5 (10)kilowatts, why not have 1 (50)kilowatt to be able to have all the residential with that one so...you know I mean things like that pop up but I don't have the answer for it... Mr. Furfaro: Sure they're going to pop up all the time... 45 Mr. Kaneshiro: I don't have the answer for it. Mr. Furfaro: and my research has said (inaudible) house could do 2 and a half to 3 and a half kilowatts, so at 10 you could probably do 3 homes off of one system and I just want to caution everybody again you know it's like you surf when there's no wind or do you wind surf when there is wind you know so... Mr. Kaneshiro: Yeah but I think we need to match that with what we have proposed here in the ordinance because the ordinance if that's the case the ordinance reflect exactly how many homes you could put on so many lots and so forth and if you're saying we can really do 5 at 2 and a half then maybe we should go up to 12 or what I'm saying... I'm just trying to get where we can make this bill work. Mr. Furfaro: Yeah. Mr. Kaneshiro: It doesn't make sense for us to... because basically if you look how much is permitted in a open district, how much we can really do in one 200 acre lot and so forth... you might be able to cover with just 1 for 5 so... you know in no way you know... I'm just trying to be able to address because we've heard today where people are saying too many cause of some problems and so forth so I just wanted to throw that on the table. Mr. Furfaro: So would be in content if we talked 100 commercial and 12 on residential? Mr. Kaneshiro: Or some nature like that... I think it makes sense. It makes sense for the commercial areas as we have pointed out because Mr. Bynum and I have pointed out that you know that there are circumstances... different circumstance when you do agriculture and (inaudible)... Mr. Furfaro: Sure. Mr. Kaneshiro: where the needs really helps and the benefits are tremendous so and I think the bill is to provide that... provide... Mr. Furfaro: Well again I have no problem with the 12 but I'm very... Mr. Kaneshiro: But I just... because... Mr. Furfaro: I want to make very clear here though I did not see if this being number 9 in the category of choices when we see affordable (inaudible) and other solar and other opportunities as being sometimes the commercial choice of the hospitals, and the hotels and so forth that you know it was necessarily actually identified a scale for residential and then a scale for commercial so. Mr. Bynum? 46 Mr. Bynum: And um Mr. Furfaro... I think that the way you're going with it about having 1 residential and a different standard that's fine with me and I think that you're correct that no resident would want to go above 3 to 4, 5 max and just you know... I don't... I don't have any objection to that I don't know that it's necessary just because pragmatic and practical application is going to dictate this to a large extent you know one of the mitigating factors is going to be what's practical and pragmatic and so... but you know to make that differential it would work. Mr. Furfaro: Well I'm looking for that differential because there's nothing in the bill right now that are actually modifies, mitigates or sets a standard for noise in residential areas. Mr. Bynum: Are we discussing noise because... Mr. Furfaro: No we're discussing (inaudible)... Mr. Bynum: Because... Mr. Furfaro: And I'm asking if you and Mr. Kaneshiro want to do a 100 kilowatt commercial and 12 kilowatt residential to put in here, I think I can consider that. Mr. Kaneshiro: Okay. Thank you for the opportunity Mr. Chair. Mr. Furfaro: Mr. Kawakami? Mr. Kawakami: Just out of curiosity do we have any idea like the difference in size between a 100 kilowatt wind turbine and a 10 kilowatt wind turbine because I'm a visual person and I mean one of the main concerns is visual blight so... out of curiosity I'm just trying to see what the scale is going to be. Mr. Bynum: I mean I can't give you a real detailed analysis but... um you know again the practical and pragmatic things in this bill... if you're going to do a 100 kilowatts you're probably going to go for a Use Permit because you're probably going to want to exceed the height limit that is allowed in this bill. The height limit in this bill is very conservative in my view and you know this bill contemplates saying where have we decided that you just you know this is permitted... you know you can do it... um and I believe it's pretty balanced conservative and so ah you're right a 100 kilowatt wind turbine is much bigger than a sky stream we've seen and it probably would not, without being an expert fit in the envelope of this bill in all locations because the heights not going to change... to the very highest point it can't be more than 60 feet at the most and in other zoning districts less so you know and it all depends on location that so you may not need to have it very high if you're in a high wind location and but if... regardless of size 10 or 30 you have to meet the (inaudible) of this bill which I see is being fairly 47 conservative because this is where the intent of the bill is to say... we done the analysis and I think Planning did a great job and this is where it's outright permitted but if you're going to have an impact greater than this then you need to go the Use Permit and I don't know if this answers your question. Mr. Kawakami: No it didn't... Mr. Furfaro: Let me do this I mean we often see in the cinema is there a Doctor in the house? Maybe for this particular piece we can say is there an electrical engineer in the house? Ms. Kawahara: There we go. Mr. Furfaro: May I suspend the rules and ask for an electrical engineer that might specifically be able to talk about 10 to 12 kilowatts? I'm going to let Mr. Kawakami direct the question... AL CASTILLO (COUNTY ATTORNEY): Excuse me, excuse me. Al Castillo County Attorney. Um we have to be very careful here. Mr. Furfaro: Sure we have to be. Mr. Castillo: Wait... The reason why we have to be extremely careful is... to call up a potential witness at this point in time... when you're discussing the amendments, this invades the procedure regarding your deliberations and that's not allowed. Mr. Furfaro: Okay. Mr. Castillo: I'm sorry. Mr. Furfaro: No, no... that's quite alright. Mr. Castillo: Those are the rules so that would be inviting somebody from the outside to... to participate in your deliberations and that is not proper. Mr. Furfaro: Al... I appreciate the guidance and all you do is you're only reconfirming the leeway I took earlier by letting people testify on the amendments so ah you know is there much difference between 10 and 12 kilowatts is fairly the question.. Mr. Castillo: I'm sorry but the problem you do is you... can't... no matter.. . Mr. Furfaro: I was directing the question at him you know. 48 Mr. Castillo: Okay, okay. Mr. Furfaro: If the opportunity posed itself... I was willing to push the envelope to get the right information but the envelope is closed. Mr. Castillo: Thank you. Mr. Furfaro: Thank you Carl. Mr. Chang: Thank you Doctor Imparato. Mr. Furfaro: Thank you Al, thank you and I knew... I knew that was coming but I... so we don't have an expert understanding of the difference in heights and so forth with 10 to 12 so... Mr. Kawakami: No and then.. may I have the floor please Mr. Chair? Mr. Furfaro: Yes, the floor is yours. Mr. Kawakami: Just so there's no misunderstanding of my question um you know I understand that the practical and pragmatic thing is going to dictate what size of system you're going to use to do but also from my stand point the practical and pragmatic thing to do is to find out the diameter of the blades between 10 and 100 so that we have a good idea of what kind of size. Mr. Furfaro: K. Mr. Kawakami: We're dealing with in the first place, because I don't think we have a good grasp as to you know how big a 100 kilowatt wind turbine is going to be you know... 50 and 12. Mr. Furfaro: I will ask the staff to send that question over to our Engineering Department if they could answer the question as it relates to blades size, any height requirements... or the difference between 100 kilowatt and 10 or 12. Yes Lani? Ms. Kawahara: Yes. When... it's about the size from 100 to... down to 10. Do... does... do any of the people that do it on their home want to generate more in order to sell back? Or how does that work? Will that hinder them from if they have this incredibly windy area that they wanted to contribute to the (inaudible) Mr. Furfaro: Yeah my, my... you know my concern here again is over sizing something that falls within the about item priority number 9 overall for the County but so much that we still don't know what you know the impact this will have on the grid, on demand when there's no wind you know all of those particular 49 and how KIUC is going to address the fact that I think they have something like 200 and $30,000,000 worth of debt. Every time you relieve somebody from the system, the reality, you spread the debt on the system farther across the board to the people that are not using any alternative... they actually start to pay a bill that reflects other capitol reserves, CIP and improvement cost so you know my question about dual rates is something I hope to address when we come to the energy sustainability plan. Ms. Kawahara: So.. okay... I understand the most of it... so would it be.. is it a way then to limit... limit the number of kilowatts so that the debt is not spread out more? That... could that be a factor to limiting it to a certain... Mr. Furfaro: I would... Ms. Kawahara: 12.5... Mr. Furfaro: I would look at the other way... Ms. Kawahara: Of the other users yeah? Mr. Furfaro: We want to get residential people an opportunity to reduce their energy bill but not necessarily at this time without my data, data I'm sorry... as to what effects that will have on the overall revenues and yet the revenue... remember that PUC requires the utility company to produce a redundancy for power especially if these people are off the grid. Ms. Kawahara: Okay. Thank you. Mr. Furfaro: Mr. Bynum. Mr. Bynum: We're still... I want to go onto a different aspect of number 1 if we're ready. Mr. Furfaro: Okay well let me close... let me close for this particular discussion am I assuming that you and Mr. Kaneshiro are in agreement about 100 kilowatt for commercial areas and willing to look at an amendment that talks about 12 kilowatts for residential? Mr. Bynum: Residential... I'm fine with that. Mr. Furfaro: Okay now we can move on. Mr. Bynum: And just the point which I didn't do very articulately apparently was that when you get into higher numbers this bill addresses when it's outright permitted and when you need a Use Permit and so when you get into large systems you're going to require a Use Permit because they're going to go beyond the you know the fairly conservative parameters for 50 when they're outright use and that's what I wanted to address which is I probably will not be in support of this amendment because again the intent of the bill was to say where are these outright permitted and under what circumstances do we require more extraordinary... not extraordinary.. a more complex permitting process that includes class 4 zoning and all of that because that's a time consuming, financial burden on the person who gets the permit, it requires often a use a consultants, it puts a lot of time unto our Planning Commission and in terms of the staff there working. So you know one of the major purposes of this bill is to say where is it a permitted use that we don't have to go through all of that and you know so portions of your amendment take that outright permitted... out of it and make it a much more complicated process and I thought that the intent... for me the intent of the bill is already there... I've already said too many times probably that I think it's conservative and that they struck that balance really well and so I probably would not be supporting that portion of your amendment. Mr. Furfaro: Well I appreciate your comment. As you know that's the beautiful part of democracy. There's 7 of us here and we all have a vote, someone ends up in the majority, someone ends up in the minority, I will end up in the minority if we don't get this into the bill because I need to be assure myself that there is a permitting process, if not I'm back to my original position that says let's move to receive the bill and wait until we have a full presentation on the energy sustainability but that's each of our own choices so. Is there anymore discussion along those lines? Mr. Kawakami: I'll like to discuss. Mr. Furfaro: Go ahead Mr. Kawakami. Mr. Kawakami: You know for me the class 4 zoning permit requirement had some value being that you know in essence we're charting a new course, I don't think um any other county is addressing S.W.E.C.S at this time and so it's new to us and so I figure there be value in getting the public input and um... you know as Councilmembers we're free to revisit any Ordinance and make amendments to it but you know by allowing the public to chime in and give their feelings about you know S.W.E.C.S initially until it becomes more accepted um I felt that there was good value in it and you know if later down the road it becomes something that's generality accepted once we've put it through the test of time, you could always go back and do amendments... and amended it so it's not require so.. I think initially um you know it's always safer to be more prudent yeah? And so I saw value in the class 4 zoning permit process. As far as cost, we heard from the state sea bird guy, that is going to be expensive to go this route I mean he couldn't answer most of our questions but he did make it clear that potentially you're going to be hiring a consultant to put a small S.W.E.C.S system on your property so... you know it's already gearing up to be very costly so. Mr. Furfaro: Is there any non-members that want to say anything on this particular piece? If not I'm going to move... 51 Mr. Asing: I, I... Mr. Furfaro: Yes Mr. Chair. Mr. Asing: I really would like to just defer this at this time. I think you know the discussion we're going on and on and on and what are we doing? The end result of this going on and on is we... what are we going to end up with because I am sure by all of the discussion that has taken place from when we first started this, is that I am sure you're going to be looking at noise, I'm sure you're going to be looking at the North Shore development plan. Mr. Furfaro: Yes. Mr. Asing: That is going to be over... possibly over ridden... this... there's going to be other areas in here which the Sierra Club and the Thousand Friends have brought forward and Mr. Imparato so if you go into.. attempt to address these problems then do it at one particular time with everything on the table but boy we piecemeal this and we're going to go through all of this discussion today and I will bet you that you will get nowhere at the end of this. Mr. Furfaro: Well let me make myself clear as the Chairman of the Committee. I am offering some compromise to the particular piece right now. My position has always been to wait for the energy sustainability plan because there are too many issues here. There is no standard for noise, there is no North Shore planning piece and that is my position and that is my vote but if we can't get there today, then as the Committee Chair, I'll look for a movement just to receive it. Mr. Asing: Well I'm not a Committee member so you know I expressed my opinion and that's it... and so you're back to your committee and you know that's your job as Chair, and Committee member as members it's your choice. I just expressed an opinion as anon-member so. Mr. Furfaro: Yeah and that's why I asked. Mr. Asing: Thank you. Mr. Furfaro: And I appreciate your manao but it's kind of where I'm at. Mr. Asing: Thank you. Mr. Furfaro: If we can't compromise on these today I will see if there's enough moves to receive this bill and revisited with the courtesy of letting Mr. Bynum revisit it when we have the energy sustainability plan. Mr. Bynum. Mr. Bynum: I just want to respectfully disagree, this has been in 52 the public process for a year... Mr. Furfaro: I do hope that I was respectful when I stated my position? Mr. Bynum: Yes. Mr. Furfaro: That was my position. Mr. Bynum: And this have been in the public process for over a year as I said... it's been through the Planning Commission, public hearing, public testimony, amendments, present through public hearing, we've had... we're addressing amendments now, I'm ready to vote on each of each of these amendments, and I'll accept the outcome... you know government is a very you know I don't think it's time to defer, we've been told repeatedly by well... you know you brought up noise 3 times which is not one of the amendments and I would disagree with you that there are noise standards... Mr. Furfaro: I hope respectfully? Mr. Bynum: Obviously. Mr. Furfaro: Okay. Mr. Bynum: But there are noise standards and the bill does mitigate noise through several of its provisions as the Planning Department had pointed out in their... in their staff report. There are noise standards with the Department of Health and so from the Department of Health that are in play in this bill part of the rationale for the setback was to mitigate noise um and so you know I think we need to act on this bill that's my opinion and I at least... and if there's a move to receive I'll be really disappointed but I'll accept the outcome because we are doing as you indicated the appropriate democratic process... Mr. Furfaro: And again I want to state that moving to receive is about resurfacing it and the courtesy would be yours to address that... at that time when we have the energy sustainability plan. Mr. Bynum: Well and if that's the choice I mean I hope that isn't the choice. I think the time to work on this bill and pass it is now. I think it was maybe through several years ago and that's what we're hear from all over the energy people that come here that say for years we need to move on these, you need to get rid of the obstacles to doing alternative energy... Mr. Furfaro: Mr. Bynum? Mr. Bynum: Okay. 53 Mr. Furfaro: I don't need to be lectured on those items, I have been a proponent of energy management systems. I'm just trying to add some value that this small wind energy... in our plan... first draft from the public's prospective that the... is a priority 9, it's not a priority 3, not a priority 5. There are many, many issues here that I also pointed out one of them is noise but also to have an understanding with KIUC how are they going to manage the grid as we go forward? How are we going to look at rate structure? How are we going to recover other cost? And I think those are responsible items. Mr. Bynum: And I don't think they have a lot to do with this bill, this is a permitting bill, those are separate issues that need to be addressed in different forms. Um but I just want to make the final point here is... I made it clear I would like to move on this bill and pass it, with amendments as the body decides. You're talking about receiving, there's also something in the middle which is deferring it, so if we're going to go to the extreme to say wait 6 months... I don't think we need to kill the bill, there's a lot of work... Mr. Furfaro: I wasn't planning on killing the bill.. (inaudible) Mr. Bynum: Well that's what receive is. Mr. Furfaro: of amendment which you made it very clear you won't support so. Mr. Bynum: This aspect of it which limits... because the whole purpose of the bill is to say where's it permitted, where do you need a Use Permit. Mr. Furfaro: Okay... Do we want to vote then on these amendments? Or do we want to defer? Mr. Bynum: I'd like to vote on these amendments and then let the cards fall where they may and... you know I would say defer until perhaps we need 2 weeks to get what I think we agreed an amendment related to kilowatts in residential as opposed to other zoning... Mr. Furfaro: So then we wouldn't vote on the amendment, we would only defer and take the 2 weeks time to work on these... Mr. Bynum: These other... some of these other amendments are housekeeping amendments, we can vote on them. Mr. Furfaro: Sure. You want to call them out, we'll vote on them and then we'll move to defer. Mr. Bynum: Sure. I have an amendment... amendment number 5 was put forward by Councilmember Kawakami by request, that housekeeping measure, I move to approve. 54 Ms. Kawahara: Second. Mr. Furfaro: Any discussion? Mr. Kaneshiro: (inaudible) We've did the approval on all 4 amendments. Mr. Bynum: We did the approval on x114 amendments? Mr. Kaneshiro: Yes. Mr. Bynum: (inaudible) We made a motion... Mr. Furfaro: So I'm going to... Mr. Bynum: So can we vote on amendment number 5? Mr. Furfaro: Excuse me... No, no, no... I'm going to call out as I said earlier, I'm going to call out the amendments to vote on it. The housekeeping amendment number 5, we already had a motion to approve and a second. Mr. Kaneshiro: Yes. Mr. Furfaro: All those in favor please signify by saying "aye". Committee members: Aye. The motion to amend Bill No. 2317 as shown in Floor Amendment No. 5 was then put, and unanimously carried. Mr. Furfaro: Amendment number 5 has been passed. We will go to amendment number 6, floor amendment number 6... Mr. Bynum: There's no number 6. Mr. Furfaro: I'm sorry... number 3... I still don't have my glasses on. Number 3 and this was by Mr. Bynum. It deals with agricultural districts when the density of the tower mounted S.W.E.C.S proposed exceed... You want to continue Mr. Bynum? Mr. Bynum: Yeah this also was housekeeping from the Planning Department and I think we can vote on it. Mr. Furfaro: Okay all those members in favor of number... amendment number 3 please signify by saying "aye". 55 The motion to amend Bill No. 2317, as amended, as shown in Floor Amendment No. 3 was then put, and unanimously carried. Committee members: Aye. Mr. Bynum: And then I had an amendment Mr. Chair... Mr. Furfaro: Number 2. Mr. Bynum: Number 2 to remove a section that would have overridden restrictive covenants. Mr. Furfaro: Yes. Would've left restrictive covenants in place... Mr. Bynum: Yes. Mr. Furfaro: for the purpose... Mr. Bynum: this amendment would leave them in place. Mr. Furfaro: Okay may I have a vote on amendment number 2, all those in favor? The motion to amend Bill No. 2317, as amended herein, as shown in Floor Amendment No. 2 was then put, and unanimously carried. Committee members: Aye. Mr. Furfaro: It was passed by 5 votes okay and now we're on number 3 which we seem to have.... Mr. Kaneshiro: Number 1. Mr. Furfaro: I mean number 1... which we seem to have ah a need to leave this for a deferral if we defer... or it can be worked on with the discussion that we had earlier and I would say that that item would be worked on by Mr. Bynum and Mr. Kaneshiro leaving 100 in for commercial purposes maybe going up to 12 based on the question that I'm sending over to Engineering, dealing with blade size and other momentum. So on that note would we like to defer the rest of the bill? Mr. Bynum: If we can't do the amendment today that's our option right? Mr. Furfaro: That's right. Upon motion duly made by Councilmember Kawakami, seconded by 56 Councilmember Kaneshiro, and unanimously carried, Bill No. 2317, as amended herein to Bill No. 2317, Draft 1, was deferred. Mr. Furfaro: Thank you very much. We're going to take a recess now before we go into the farmer worker bill. There being no objections, the Committee recessed at 2:51 p.m. The Committee reconvened at 3:12 p.m., and proceeded as follows: Mr. Furfaro: Planning Committee is going to come back to order, before we move on... before we move on to Farm Worker Housing in reviewing some of the recent materials with the County Clerk, I wanted to ask him to come up and procedurally we may have to do some follow up in 2 weeks. Mr. Clerk? PETER NAKAMURA, COUNTY CLERK: Committee Chair, members of the Committee, Peter Nakamura County Clerk. And my apologies, the bill has been deferred 2317 it's been deferred as amended and my apologies because I wasn't watching the amendments closely enough as the Committee was going through it but um just to let you know, Mr. Chair and members of the Committee, what we need to do... when the bill comes back when... after it's been deferred is to um have another technical amendment actually that amends the bill as it stands with the amendment number 5, because in essence. What happened is amendment number 2... both of which amended the same sections. Amendment number 2 over road the original amendments in amendment number 5 so we need to come back at the next meeting and do a technical amendment that now combines 2 and 5 so this is just for ah, for ah the Committee's information, and then staff will be working on that amendment and have it ready for the... when the bill comes back from being deferred. Mr. Furfaro: So Mr. Nakamura just to make sure that... so when we come back in 2 weeks that is the (inaudible) time for us to actually reconsider (inaudible)... Mr. Nakamura: Ah no. We would just have a floor amendment that would in essence fix what happened in Committee. Mr. Furfaro: So number 2 conflicted with the housekeeping portions of number 5. Mr. Nakamura: Correct. Mr. Furfaro: Okay. Mr. Nakamura: They both touched the same section of the bill so we 57 need to now come back and make sure that the amendments in 5 match the amendments in 2 and we'll work on this, my apologies Mr. Chair. Mr. Furfaro: Thank you very much. Okay we're going to go to item number 2 which deals with Bill 2318 and I'll have some general information pieces for this bill but can I first have it read? 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. This is kind of just general information that we received. First of all let me thank Mr. Kaneshiro for his particular piece dealing with the Water Department. We are querying this bill as it deals with the additional potential dwellings on a parcel and what we have assumed all this time was that farm areas without appropriate water could in fact look at the possibility of catchment system, but the Water Department through Mr. Kaneshiro's query has reminded us that those parcels either needed an existing meter, there were no additional meters available, and their current rules put a situation where those properties that have meters cannot both share a meter as well as a catchment system, so we seem to need to do some dialog with the Water Department on that. Mr. Kaneshiro since you pursued that do you want to share anything with the group at this point? Mr. Kaneshiro: Thank you for that Mr. Chair. I have circulated the response from Water Department. One of the big concerns I had was that in the wording of this ordinance if you look at the ordinance itself, it specifically states that after you use your density... so in other words I as a farmer would build a house... and also build a house for my son, I would therefore take 2 water meters in that time. Now we would come back in and say I need a farm dwelling. Under the circumstances if that's all the 2 water meters that the Water Department could adequately supply you because of the water system not improved to give you more meters, the farm dwelling issues completely dies. You cannot move ahead to get a, to get a farm worker housing dwelling because one.. first of all you need water. So that became a concern with me and I have some responses from the Water Department in that regards. They do have a policy that if you do have meters on (inaudible) you cannot use a catchment basin even though you want to strictly supply just the farm worker dwelling. So there are some policy issues also. So basically if I look at that and you look at the Water Department response... if we're moving the direction of moving this bill ahead today, we won't probably be able to accomplish much farm worker dwellings at all, so those are issues that we need to work on and ah and I would ask later that, that if the Chair, based on the response that we got from Water Department, would give us the opportunity at that time to query the Water Department on other ways of (inaudible) to get water or perhaps 58 you know other means of talking with the County Attorneys and so forth on how we can resolve this issues. Mr. Furfaro: Thank you. Mr. Kaneshiro, I want to thank you for pursuing that.. I do want you to know and the rest of the body I would like to send some correspondence over to the Water Department, I would like to ask the Water Department to give me some agenda time to speak with them regarding this conflict of catchment system mixed with meters and see what kind of response we can get from there Board. So if we could so request that time um for the Water Department and I can speak to them about this bill, I appreciate it. And I want to thank you Mr. Kaneshiro for your pursuit. The second item I want to share with you is and I do have response from the tax office. We have opinions about the impact of the additional dwelling as it relates to the farm workforce housing and any additional taxation that might come with that. I have Chapter 5 over here and as well as the dialog that I've had with the tax office, their preference is pretty much, I'm going to summarize in this comment here, they would prefer that any additional dwellings be actually put on the envelope or footprint of the first dwelling, farm dwelling and that from the tax purpose that is the only area that they are considering a taxable for the dwelling when it's in the 1 acre guideline of the home and their preference is to have clustering all close to the envelope that's earmarked for the actual residence. I have spoken to them about the need to have potentially on a 15 acre farm some loss prevention measure that allows these dwellings to be outside that envelope and you have some written correspondence from them on their preference but that too will require me meeting with the tax office and reviewing some of the interpretation in Chapter 5 so I wanted to get that out on the table because I don't have all the answers for that today so on those 2 issues water resources and clustering for the purpose of tax assessments on the additional dwellings, we've got a little bit of work to do. I also want to share with you that I'm considering in my amendment that I'm requesting to be introduced by Councilman Kawakami and that this bill focuses and it will be a lot easier for me to present this to the Water Department. Based on the fact that people have farm dedications in place now for this bill so I'm trying to work on some appropriate narrative there so those are 3 items that need to be... reviewed in this bill.. Mr. Kaneshiro the floor is yours. Mr. Kaneshiro: Thank you Mr. Chair and I believe you made a statement in that regards that under Ag dedication and I do have an amendment prepared in that regards that you know basically I'm not certain we're going to be circulating any of that today but my proposal as you stated you were looking into areas like that that no Use Permit for farm worker housing shall be granted unless the owner has dedicated the land to agricultural use pursuant to Section 5A-9.1 of the Kauai County Code. And this would therefore eliminate all those other conditions... Mr. Furfaro: Yes. Mr. Kaneshiro: that we have on there schedule (inaudible) doing this, doing that and so forth. Basically if this land is land dedicated... you qualify 59 now let's make the other requirements. Mr. Furfaro: Okay. Well I... Mr. Kaneshiro: So along the same terms... Mr. Furfaro: You and I were thinking along the same terms because... Mr. Kaneshiro: And we could wait or you know I have an amendment ready to throw out and I wouldn't mind circulating on it, we don't have to vote on it, I think we haven't voted on any amendments, I believe at this time and you know (inaudible) to give the Committee members the time to look at it if they want to... Mr. Furfaro: I would like to circulate your amendment. Mr. Kaneshiro: Okay. Mr. Furfaro: Simply because when I do get the appointment with the Water Board, I want to be able to say "we're dealing with people who have farm dedications." Mr. Kaneshiro: Okay... and, and, and well I don't want to discuss this right now because it's not on the floor so basically I'll save those discussions for later. Mr. Furfaro: Good. Mr. Kaneshiro: And there are reasons you know... but I would like to give the Committee men (inaudible) opportunity to view my amendment at this time which I think we shared some other amendments previously, I believe we've done A,B,C,D? So... Okay thank you Mr. Chair. Mr. Furfaro: Thank you. Now on that note I would like to just summarize again working out and trying to be in concert with the tax office pursuing some queries about catchment systems with the Water Department and a bill that really references the farm dedication is an actual requirement, we still got some work to do here but on that note, I would like to see if there's anyone in the audience that would like to speak on this bill today so, I'm going to suspend the rules. The memorandum from the tax office is being circulated to the members right now the one I briefly gave an overview on. Rules are suspended and Glenn? There being no objections, the rules were suspended. Mr. Mickens: Thank you Jay. For the record Glenn Mickens. First briefly before I read my testimony, over the years the council has recognized a 60 lot of the deserving people, I just want to give a big mahalo to our camera man BC for his years of dedication and service and I'm sure I can get a unanimous vote of agreement from you Councilmembers. Mr. Bynum: Aye. Mr. Mickens: Anybody opposed? Mr. Furfaro: You're getting good at this. Mr. Mickens: Well I am really sincere, nobody ever really says thanks to BC but you know he does a tremendous job and the hours he spends over here in this corner of the room... Mr. Castillo: I'm sorry... County Attorney Al Castillo. Mr. Mickens: You disagreeing? Mr. Castillo: No I, I, I...This is a County Council meeting and we should be serious about these matters and the item for discussion is the farm worker housing so can we stick on the subject matter please. Mr. Mickens: Al, I am very serious about what I said thank you. Mr. Furfaro: Excuse me, excuse me one moment I'll come back to that as a personal privilege... Mr. Mickens: Okay. Mr. Furfaro: The County Attorney is correct, the testimony although you have broader leverage than many of us do, I'll call for a personal privilege a little later. Do you want to testify on the bill? Mr. Mickens: Thank you, thank you Jay. You have a copy of it, I'll read this... this is just my opinion on this bill. Isn't the idea that we can somehow stop importing 90% of what we eat on Kauai by growing it here, more of a myth and a dream than a reality? I have asked 3 questions to some of our farmers. 1) Do we have enough land on Kauai to feed 65 thousand people? 2) Do we have enough people willing to farm this land if there is enough? And 3) Will farming be profitable enough for those willing to do this super hard work? The answer to number 1 was yes, we do have plenty of farming land. I presume even if it wasn't taking in the prime Ag land that we're trying to classify now, the answer to number 2 was no that there are not enough young or old people willing to farm this land. And the answer to number 3 was that there is not enough money in farming to make the back breaking work and long hours attractive enough for the labor force it would take. I have tremendous respect and admiration for those willing to farm our lands and grow the crops we need. I could never be a farmer nor do I believe that 61 anyone on this council except Daryl who I applaud could either. If any of these dedicated people who are willing to farm need housing as an incentive to get workers to help them, then I would certainly approve of bill 2318. But I still have doubts that this incentive will have the major impact on what these farmers need. I would though give every benefit available to those true farmers, tax breaks, etc., to make their jobs easier. Also and Jay will correct me if I'm wrong is Jay said, rules and regulations must be in place and enforced to monitor those who would use this Bill just to build rental units on Ag land. Any rental units built on that farm land should be for the use of those farm workers only if the units are not for free. Mr. Furfaro: I'm giving you your second 3 minutes. Mr. Mickens: Thank you I have only another paragraph Jay. Page 1 of bill 2318 says, "Despite the numerous benefits bestowed on the community by the agriculture industry, however agricultural work is strenuous and historically low paying" I totally agree. That's my testimony. Again it's my opinion so I'm trying to look at this on the realistic side whether you know this work on this farm bill for the purpose I presume and you know... certainly not for any of this Open Land I wanted it to stay Open... I don't want to see shopping centers built on it and more over development... I, I, I don't ever want to see that happen on Kauai and I'll fight for that but whether in farming... the farmers want to get out there and go ahead and farm I'm applauding them and 100% for it but I just don't see that we're ever going to be able to get off this farm enough here to be able to feed our people on our island. Anyway that's my opinion, I thank you Jay. Mr. Furfaro: Thank you. Bruce you can come up. BRUCE PLEAS: Bruce Pleas for the record, my main concern is this farm worker housing is for farm workers. I do have the same concern that these could be used for other rental uses or any other use. My suggestion is that um... you put in the farm worker housing definition that these are temporary non- permanent structures, so we don't... so... put wording in so you cannot put concrete on our Ag lands. When I talk about temporary non-permanent, I mean that's all the way up to Hicks Homes. Um you can move those around, you put steal beams underneath them and they're very comfortable for farm working all the way to Yurts which I have been at the Planning Commission and people have come in on farm land and they just wanted to put a yurt up as long as it meets the Health Standards but I think to make it harder to abuse this um bill, I think a temporary non-permanent structures would be helpful and maybe a deterrent and I don't think it would harm the farm workers because that mean you could put a Hicks home up, 3 bedroom you could do whatever. Because they're are movable, thank you. Mr. Furfaro: Bruce, I just want to share with you, most of the references in the bill are dealing with (inaudible) post moveable, trailer type and so forth but I think in all sincerity here some of these things that we're stumbling on now, for example the question about getting the second water heater with the Water Department you know those are in my observation... excuse me. You know kind of 62 controls that people... that's why we're going to go in front of them and talk about people actually having a farm plan before you know they can perhaps you know use a some catchment system. So you know there's a lot of pieces... the same on the tax the interpretation having some dialog with the tax office because you know you have to... you have a (inaudible) parcel, they take an acre of it which is taxing for the house where the rest is in a farm dedication, but their preference is to stay within the tax code now to make those other 600 square foot units or up to 12... within the same footprint so that you know we can get the right tax credits on the... not the... additional tax on the land, so it's tedious, it is the intent though to work all of those out. It just might take longer than we first thought. Those are some of the controls that are... Mr. Pleas: And my main concern is basically on making sure that the housing is for farm workers and it is not abused... Mr. Furfaro: Someone's going to get a catchment system about farm working housing (inaudible). Thank you Bruce. Come right up Ken. Mr. Taylor: Chair, members of the Council my name is Ken Taylor. I too see some benefits of having all of the units clustered. I think it would be cheaper in the long run for the Ag operator providing electricity and water and sewers and that kind of thing but what I was.. when you go to talk to the water district, over my 35 years in business I worked with a lot of properties where we had multiple water sources, including meters. And in all cases the water districts require some sort of backflow device um on the public water systems so that you couldn't have a cross connection from.. we had (inaudible) spring, I've worked with wells and so on and as long as that backflow apparatus is in place and it's properly tested every year so it's in good working order there should be no problem and if they don't have that policy in place there's the direction that they need to travel so, question that backflow device operation, because I don't see a lot of backflow devices in place... Mr. Furfaro: (inaudible) we need to change the tape, hold on... Mr. Taylor: I'm ready to wrap up but anyway it's I think it's a doable issue that can be easily corrected with some policy change, thank you. Mr. Furfaro: Just want to let you know since 9-11, backflow meters are required on all water systems. Mr. Taylor: Are they being tested annually? Mr. Furfaro: Well I'll raise that question when I get an appointment with the Water okay? We're going to take a... stay in our place... take 2 minutes to change the tape. I'm going to go ahead and take a 10 minute caption break now while we're changing the tape, Sammy if you heard that over in Honolulu. 63 Mr. Bynum: Hi Sammy. Mr. Furfaro: Sammy, we're going to take the 10 minute caption break while we're changing the tape. There being no objections, the Chair recessed the meeting at 3:35 p.m. The meeting was called back to order at 3:45 p.m., and proceeded as follows: Mr. Furfaro: Okay we're back after the tape change and the scheduled break. I'd like to suspend the rules and find out if there's anymore public testimony. If you'd like to come up, please come up. Just introduce yourself. There being no objections, the rules were suspended. SUE LITTLE: Good afternoon Council, my name is Sue Little. This is short notice but I did scan Mr. Kaneshiro's amendments and had a few comments um the comment about the... my first one is about the private water... or about the water meters and um his item (2) it says farms entitled to Agricultural rates provided by the Department of Water, there are some farms that do not have Department of Water meters, they have private owned... Mr. Furfaro: Private systems right. Ms. Little: so that maybe should be as well as catchment, should be addressed. Um the other is... his bill still reflects lot as opposed to farm or unit.. um which would prevent many condominium owners from applying if it still said lot. The 75% of subject farm should allow for um... um... Mr. Furfaro: This, this would address inclines and ah farm rotation of crops. Ms. Little: Yes... okay. Mr. Furfaro: It should be in there, there farm... Ms. Little: It should be? Okay. But it's... has it states it just says 75% as opposed to rotation and usable portions of your land. Okay the other was you mentioned cluster housing today too um... one of the other issues that came up that was testified on before with cluster housing, with cluster housing it doesn't protect the farmers from as well for pigs or... Mr. Furfaro: Just general security. Ms. Little: general security so. It would be nice to be able to leave that up to the farmer to decide where they think it's appropriate for the 64 housing still. Um... and let's see if there were others? Um... I also wanted to ask if there... I as a secretary of our association I wrote, Condo Association a letter to the Council and to the County Attorney and others regarding to law that is being used for to state that about um each owner being responsible for the other owners, condo owners violations, and I have not received a answer back on that and I was just wondering if there were any results or do we have a response from.. anybody? For that Mr.? Ms. Kawahara: I was just going to say... I remember the communication from her. Mr. Furfaro: We don't have a response. Ms. Kawahara: Yeah. Mr. Furfaro: We don't have a response yet. Ms. Little: Okay, are we still working on it? Mr. Furfaro: Yes. Ms. Little: Okay good because that affects all condo association owners too. Excuse me... (inaudible) anything else that... I believe that was the ones.. items that I saw. Mr. Furfaro: Sue, I appreciate your comments and as you know we've circulated some of these things stamped draft. Ms. Little: Yes. Mr. Furfaro: Rather than introduce them so.. I want to reassure you that things like the 75% including the rotation.. the intent is to actually introduce that as an amendment and so forth so... Ms. Little: And I think that many of the farmers are already dedicated agricultural... Mr. Furfaro: Yeah. Ms. Little: so that concern is a good one but. Mr. Furfaro: It is intended to be a control mechanism. Ms. Little: Yes. Mr. Furfaro: that they have to have an exsisting plan so. 65 Ms. Little: Okay. Mr. Furfaro: Mr. Kaneshiro? Mr. Kaneshiro: Just, just for clarification purposes my bill basically states that in order to get a Use Permit for farm worker housing you meet one requirement, that the land is dedicated to agriculture pursuant to Section 5A-9.1 which means 10 year, 20 year dedication, meet that then now we can go ahead and get a Use Permit so the part about 75% and all those things it's not the issue I have before here, mine takes away all that.. As long as the land is dedicated for 10 or 20 years now you qualify, now you qualify. Ms. Little: I do have a comment about that. Mr. Kaneshiro: That's fine. Ms. Little: Um... if the farm... there are places that that have been taken out of Ag dedication because they aren't growing something. Mr. Kaneshiro: That's correct. Ms. Little: um... as soon as that happens then the housing will be removed? Mr. Kaneshiro: That means they're not farming... that's correct. Ms. Little: Okay so then it's.. then it's again up to the tax department? Who, who... Mr. Kaneshiro: No the owner. The owner. Ms. Little: Yes but who, who... Mr. Kaneshiro: Monitors that? Ms. Little: Yeah. Mr. Kaneshiro: Real Property Tax. Ms. Little: Okay. Mr. Kaneshiro: We have one person that does that. Ms. Little: So they're going to have to come out every year then? Mr. Kaneshiro: They do that. 66 Ms. Little: Okay. Mr. Kaneshiro: Yeah they do that. Then there's some provisions in the bill you know that are strong penalties, if you take it out.. then without making the 10, 20 year period all the taxes can be (inaudible) back, there's some other penalties besides you got to take your house off as required by this bill, so there's pretty strong penalties in there.... It gives pretty much a 2 way watch through Real Property Tax and through Planning. Ms. Little: I'm looking forward to reading it more detailed. Mr. Kaneshiro: Thank you. Ms. Little: Thank you. Mr. Furfaro: Okay I do want to share something with you... although Mr. Kawakami is using mine piece as he's requesting and there are similarities on the Ag dedication, mine would be at least for the 10 year starting and... Mr. Kaneshiro: (inaudible) Mr. Furfaro: Yes... and meet other requirements and the reason I would like to stay with the meet other requirements is because depending on the type of farm activity you have is going to be... what's going to trigger how many farm worker units you need... you know where Mr. Kaneshiro is saying the dedication basically is it... I'm thinking it may need a little bit more information as it relates to you know a labor intense organic farm might have to plead their case on how many units they need for that dedication (inaudible) but that's yet to be seen. Mr. Kanshiro: Yes. Ms. Little: Yes. Mr. Kaneshiro: Those are all good discussion points that we're going to be having in this... Ms. Little: Good. Mr. Kaneshiro: in this Committee, I believe. Ms. Little: Good thank you. Mr. Asing: Jay, I have a question. Mr. Furfaro: Yes. Sue, the Chair has a question. 67 Mr. Asing: Are you the condo association representative? Is... am I correct? Ms. Little: I am for my association, yes. Mr. Asing: For your... Ms. Little: I am a Secretary, currently the Secretary of our condo association. Mr. Asing: Okay now when you make reference to condo association... is there more than 1 condo association there? Ms. Little: Where I am? Mr. Asing: Yes. Ms. Little: There are 2 associations. Mr. Asing: There are 2 associations so I'm going to assume then there are 21ots on record. Ms. Little: No. Mr. Asing: Wrong? Ms. Little: That's... there... Mr. Asing: Okay. Ms. Little: this is one of our issues that needs to be addressed for our particular area. We have 2 associations on file with the Real Estate Commission and yet the documents show us as one lot and the county sees us as one lot. Mr. Asing: Okay let me, let me get this straight. There are 2 associations. Ms. Little: Yes. Mr. Asing: that's a given. Okay that's number 1, number 2 you said you said that there is only 1 lot? Ms. Little: That's correct. Mr. Asing: Um... that's strange. 68 Ms. Little: Yes it is. Mr. Asing: 11ot and 2 associations? Ms. Little: Yes. Mr. Asing: Wow. How can that be? Mr. Furfaro: The developer might have phased in? The development on the one lot they might have done 121ots first (inaudible) association then they did 10... Mr. Asing: I, I, I don't believe you can do that. Ms. Little: No. Mr. Furfaro: I know you can't do (inaudible)... Mr. Asing: But anyway. Mr. Furfaro: You can do it with condominium properties. Mr. Asing: Okay well, okay I just to wanted to at least... Ms. Little: I haven't forgotten I, I am getting you our documents I have a meeting coming up... I have a meeting coming up um hopefully Saturday to meet with some more of the owners and get some more public testimony. Mr. Asing: Okay, okay those were the first 2 questions, the third question is... ah you say that some have county system water and some have private system water, am I right? Ms. Little: No, no. We're all on private water, no county water for either association. Mr. Asing: Okay so. Ms. Little: We're also in the process of working on a water cooperative to handle our private water system. Mr. Asing: Okay so there is a private water system only? Ms. Little: Yes. Mr. Asing: Okay. And the private system water is that potable 69 water? Ms. Little: No. Mr. Asing: No? Wow! Ms. Little: And there are houses... Mr. Asing: So there... Wow! So I guess you use some filtration system? Is that... Ms. Little: For those who have houses that is what I understand, yes. Mr. Asing: Yeah. Wow that's going to be interesting, okay, okay at least we know that, so there is no potable water. Ms. Little: That's correct. Mr. Asing: There's only farm type water. Ms. Little: We also have a situation where what... was my understanding to be part of lot 1 has now since been subdivided off as a... as a actual subdivision.. they also are on non-potable water. Mr. Asing: Wait, wait, wait now... I thought you said... Ms. Little: I know it's confusing. Mr. Asing: that there is no... Ms. Little: no potable water. Mr. Asing: there is no potable water.. Ms. Little: but there is a subdivision up by the fruit stand. Mr. Kaneshiro: yeah. Ms. Little: that is on non-potable water, houses. Mr. Asing: County? Ms. Little: No County water. Mr. Asing: So you have 2 systems there, private systems? You have one potable... 70 Ms. Little: It all comes from the same system. Mr. Asing: Oh my goodness, it's getting a little okay well we'll get the information from you later but ah it doesn't sound right, something don't sound right but... I understand. Mr. Furfaro: Yeah I mean... all Princeville provides the backup for Hanalei and `Anini is a private system. Mr. Kaneshiro: That's correct. Mr. Asing: No but I don't have any problem with the private system, it's potable water.. Mr. Furfaro: Potable water. Mr. Asing: Yeah but that's not the case here but what's troubling is that apparently there's both, there's potable and farm water. Mr. Kaneshiro: Not that I heard. Ms. Little: No, no. Mr. Furfaro: No. Ms. Little: It's all Agricultural water. Mr. Furfaro: No potable. Mr. Kaneshiro: There's no potable. Mr. Asing: We11 I thought I heard that in the beginning and at the end I thought I heard something else. Mr. Kaneshiro: No, no. Ms. Little: It's all Ag... Mr. Asing: Well when you say that there was a split.. Ms. Little: Yes but they still use the same water source. Mr. Asing: Okay now I got straight. So all farm water, all private period. That's all you have? Ms. Little: Yes. 71 Mr. Asing: Okay thank you. Mr. Kaneshiro: And that could be through wells, could be through catchment basin, could be through anything you know... Mr. Asing: Well let's... wait a minute now Daryl I think you're taking this to another level. Mr. Kaneshiro: No, no, no. What I'm saying is exactly right. They're not on the County potable water. Mr. Asing: Yeah okay. Mr. Kaneshiro: In which you know, you can do. Mr. Asing: So when you make reference to catch-basin? Mr. Kaneshiro: That too. Ms. Little: We do not have catch-basin. Mr. Kaneshiro: They don't but you can, is what I'm saying. Mr. Asing: Oh okay, okay... Mr. Kaneshiro: You can use that system. Mr. Asing: But they don't. Ms. Little: I think he's referencing the farm worker housing bill again and for the farm worker housing bill... to address everybody and I don't think we're would be the only ones that would have private water source possible... Mr. Kaneshiro: Correct. Ms. Little: other than... and that should be addressed in the farm worker housing. Mr. Asing: Okay. Mr. Kaneshiro: And, and if I may Mr. Chair? Just real fast. Mr. Furfaro: Yes. Mr. Kaneshiro: The problem I'm seeing is that if you have potable water system through the Department of Water for meters and you already have 72 the density and you built on that, they won't allow you to go... on pne of those systems. Ms. Little: That's correct. Mr. Kaneshiro: And that's the problem. You... it's a completely different circumstances because you're not relying on Department of Water water, so you have your own... you won't have any problem with this bill the way this bill is written now, you won't have any problem... I mean the water system and so forth but those who have water meters, those who have meters and meet their densities will have some problems on the water... Ms. Little: Well... the concern was that it... we have to have... it says in...if I read it correctly and again I apologize but... Mr. Kaneshiro: no. Ms. Little: because we just received it. Mr. Furfaro: No but your point is... Ms. Little: It should be. Mr. Furfaro: It should be included in there to be recognized by the water systems. Ms. Little: so that the Planning Department doesn't say that well you don't have this... Mr. Kaneshiro: Well and this is why my amendment which is strictly dedicate takes away all those requirements and that's why I was making a point that when you first came up and made that testimony, my amendment does not reflect your testimony because it takes away all of it. Mr. Asing: Okay I have one last question. Mr. Furfaro: Go ahead Mr. Chair. Mr. Asing: As the representative of the association, would you be able to give us information on how many lots have Ag dedication? Would you be able to get that information? Ms. Little: Would I be able to get that information? Probably I could get that information although it's harder to get if for... I could certainly get if from my association. Mr. Asing: Okay could you please. 73 Ms. Little: It's harder to get it from the other association. Mr. Asing: Okay and who is the representative of the other association? Would you know? Ms. Little: Um. The one that would probably be able to answer your questions is Paul (inaudible). Mr. Asing: Paul? Mr. Furfaro: Hewbert? Ms. Little: Hewber. Mr. Furfaro: Hewber. Ms. Little: He would be able to... I think he's... don't think he's president anymore but I think he's vice president. Mr. Asing: Okay thank you very much, I appreciate it. Ms. Little: Thank you. Mr. Furfaro: Anyone else that want to speak on this item, please come right up. Again my intention is to make a query with the Water Department and that will probably require a 4 week deferral till September 16th. Go right ahead. SCOTT NEWMAN: Good afternoon Council, Chair, my name is Scott Newman and I just had one comment that I don't see in this bill or present it. It doesn't address the total cap on buildable units or area for either the farm worker house or the additional farm worker units. For example in the state law they have up to 3,500 square feet. I think the way this bill is broke down is very good, that the 1,200 square feet for the single family is appropriate, 600 for workers; however, there should be some cap to put in limitations on some people going over board on unit after unit after unit and therefore kind of defeating the purpose of having too many housing on land. Mr. Furfaro: That's ah, that's where the differences where my amendment that Mr. Kawakami is handling, covers the same plan as Mr. Kaneshiro but than it expands it a little more where the fact of the matter is you have to justify the requirement in front of the Planning Commission so they ultimately determine based on your farm plan, what is the appropriate number to support your farm plan. Mr. Newman: My impression is that once you get above, let's say 74 that 3,500 square feet, your more than a family farm. You have a pretty large operation and your in to the commercial world really and should be actually applying for something different than this bill is intended for. Mr. Furfaro: Well and that's why I concur with Mr. Kaneshiro that it starts with them having an actual 10 years farm dedication. Mr. Kaneshiro? Mr. Kaneshiro: I just wanted to make a clarification Mr. Chair? Mr. Furfaro: Yes go right ahead. Mr. Kaneshiro: The current bill before us does have the amount. Specifically now it's 35,000. 35,000 you can... if you make $35,000 you can put up 1 dwelling. If you go $70,000, you can put up 2 dwellings that's in the bill currently but I assumed if you look at some of the amendments that have been floating around than maybe changed and you bought up a good point but the current bill does address that, how many are you really going to build, and I think your concern is valid because you can have 10 you know farm worker housing and yet you earn only very few dollars so... I mean currently the bill does cover with the $35,000 amount. Mr. Furfaro: Yeah. Mr. Newman: My concern to that would be if I owned a 1,000 acres and I was putting out several million dollars a year in produce, suddenly I have 30, 40 houses... Mr. Kaneshiro: You're correct also. Mr. Newman: Um. Well and that's probably not what you guys are intending here. Mr. Furfaro: Well actually that's the ideal situation... Mr. Kaneshiro: That would be nice. Mr. Furfaro: if we could have some thousand acre farms right? But the bill to control that says you have to have an exsisting farm plan so, I mean isn't that the whole idea is to get more acreage. Mr. Newman: I guess that is a bonus for (inaudible). Mr. Furfaro: So that's a double edge sword. Mr. Kaneshiro: And if they can make money, that's even better. But you brought up a good point. 75 Mr. Furfaro: Very good point. Mr. Newman: Any other questions? Mr. Furfaro: No. Thank you very much. Again if I can share with my Committee members, I'm going to go ahead and call the meeting back to order. We're going to have the Clerk's Office try and get me on the agenda for the Water Department and to give that kind of time, we need at least a 4 week deferral here, date specific September 16th, am I right Pua? The meeting was called back to order, and proceeded as follows: WILMA AKIONA: Yes. Mr. Furfaro: September 16th and hopefully the Water Department... the first meeting in September I can get on their agenda. Mr. Bynum: So are you looking for a motion? Mr. Furfaro: Yeah I'm looking for a motion. Upon motion duly made by Councilmember Bynum, seconded by Councilmember Kawahara, and unanimously carried, Bill No. 2318 was deferred to September 16, 2009. Mr. Furfaro: Thank you very much. We're going to move to item 2319 and I believe we're going to have someone here from the County Attorney's Office? So you want to read the item? 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. There being no objections, the rules were suspended. Mr. Castillo: Good afternoon. Mr. Furfaro: Good afternoon. Mr. Castillo: Al Castillo County Attorney. I was outside talking to some of the people that will be testifying on the next matter, so how can I help this body? 76 Mr. Furfaro: They... the Committee actually had asked about a interpretation a legal interpretation on potential conflicts between Earth Justice and the intent of this Shoreline Setback and I believe we do have, we do have something from Mr. Jung. Mr. Castillo: Yes and I'm fully familiar with the opinion... basically because I read it and I signed it which I, which I normally do or always do... all kidding aside um I don't... I am not privy to what Earth Justice... their work okay. All I know is um my understanding of what was written by Deputy County Attorney Ian Jung, so if the question is you want me to compare or you want me to reconcile the work of Earth Justice, I cannot do that. I would have to... you would have to communicate with Mr. Jung regarding that but I do know... Mr. Furfaro: I don't think we're asking to reconcile their interpretation, we want to have some assurances that the bill that came up to us from Planning at the request of the Planning Department and the Planning Director... Mr. Castillo: Yes. Mr. Furfaro: is in fact no way in any particular violation to the SMA requirements. Mr. Castillo: Well and precisely so you know I was here when the... this bill was testified on and I heard the um caution of the people that testified and those were primarily the points that I raised upon this opinion being sent to you. Ms. Kawahara: Somebody had (inaudible) Mr. Furfaro: I thought we circulated it earlier, we just got it this morning. Did you not get it? Ms. Kawahara: Oh okay. Could I get a copy, I might have filed it in... in another bills packet. I have the one for S.W.E.C.S. Mr. Castillo: And I'm sorry I don't have that opinion in front of me right now so. Ms. Kawahara: I have the small energy one from Ian. Mr. Bynum: I haven't seen anything. Mr. Furfaro: Okay I'm going to ask fora 5 minute recess so we can review this status of this communication. 77 There being no objections, the Chair recessed the meeting at 4:20 p.m. The meeting was called back to order at 4:32 p.m., and proceeded as follows: Mr. Furfaro: Committee is called back to order so it is possible that this review requires some additional amendments to the Shoreline bill before we.. should be considering it and therefore we would probably need some time to make the appropriate amendments, that's my interpretation. Mr. Castillo: And that's true. Any amendments that you make should be cleared with our office to ensure its legality, yeah? Mr. Furfaro: Is your office prepared to make some recommendations here on those amendments? Mr. Castillo: No we're not... I am not prepared to make the recommendations here, primarily because I haven't seen the work of Earth Justice. I know what this says here, I understand fully what it says; however, you know I would not want to hazard making a legal opinion right now. Mr. Furfaro: Okay. But I did... BC: Mic? Mr. Furfaro: Would help if I turned it on. I did make those interpretations that there are amendments recommended here. Mr. Castillo: Yes. Yes there are amendments to the bill. Mr. Furfaro: Okay. Ms. Kawahara: Chair? Mr. Furfaro: You want to ask the County Attorney a question? Ms. Kawahara: I want to ask you or him... I just want to be clear that we're not going to be looking at the Earth Justice opinion but we're... we're knowing that they're in questioning whether or not the HRS and this ordinance are in conflict, so I want to reassure myself that you're not going to have to worry about Earth Justice letter, just that you're going to be looking at... Mr. Castillo: No I, I realize that Earth Justice letter basically this is in response to that. Ms. Kawahara: okay. Mr. Castillo: So however I don't want to um guess what it says because I, I, you know that's not my duty. 78 Ms. Kawahara: Okay. Mr. Furfaro: You okay with that? Ms. Kawahara: Yes... yes. As long as it's just... thank you. Mr. Furfaro: So it seems to me that we need some time to work on this for the purpose of potential amendments. Mr. Castillo: Well all of the ordinances that you (inaudible) and pass is important and for especially on this one where it involves Setback so... it's a passion for a lot of us citizens here on Kauai. Mr. Furfaro: Yeah. Understood you know I have this document and you know I shared it with all members and we've got it from your office yesterday so, I'm satisfied with your answer. Mr. Castillo: Thank you. Mr. Furfaro: Okay while the rules are suspended I do want to make a note that we do have from Noelani Josselin some written testimony regarding this bill and if we could so note for the record that we have her testimony. Is there another? Bruce come right up. Mr. Pleas: Bruce Pleas for the record... BC: Mic? Mr. Pleas: Now it's on. County Attorney (inaudible) turning it off when he's done. I haven't testified on this but I have worked on the Shoreline Setback for the last couple years and was helpful in writing it. Um I like to go through the bill 2319 at this point, Section 8-27.1 Applicability in (b) (1) I would add um to it at the beginning for properties not abutting the shoreline um Section 1 is for those properties not abutting the shorelines, Section 2 is for properties abutting the shoreline um that would make it more clear that one is for these properties. Because it is not specific. On... the changes on page 8 of mine which is Section 8- 27.3 deletion of (d) is covered very well in the additions of (f) (1) and (2) and also in (g). I like the changing from (d) from may to (f) shall.. um it gives it some definition there. In Section 8-27.7 Permitted Structures and activities within the shoreline setback area, I'm on page 11 that I have.. the addition of 10 and 11 unmanned civil defense facilities installed for the primary purpose of protecting life and property and structures and activities necessary to be within the shoreline setback area for public health and safety, I would like to have those be required if they are added here to obtain a variance. An unmanned civil defense facility put in a setback area will probably be gone if an event happens and I don't know what structures and activities necessary in a shoreline area for public health and safety are needed, I 79 think they need to be reviewed and have a variance on them. Number 12 scientific studies and surveys, including archaeological surveys, I would agree to have added. As... as a use... Section 8-27.8 this is page 12 the deletion of Shoreline setback um, I do not agree with... that wording should be kept in this entire section. It's changed in a few sections on page 11, it's deleted I think the shoreline setback should be kept in there. Instead of... it's being replaced by Structure and Activity Determinations, the shoreline setback is the important part of what this is talking about. Mr. Furfaro: Go on to your second 3 minutes. Mr. Pleas: Okay... Also a correction I believe this is section 8- 27.8 number 4 this is on the bottom of page 12 um, (a) and (b) it is ah this is an article that the proposed activity or structure is permitted under Section 8-27.6; if you look up 8-27.6 that is prohibited activities um I think that needs to be changed to 8-27.7 which are the permitted activities, um that's (a) and (b). Section C is not permitted under 8-27.6 which is the prohibited activities. And I ran out of green slips and I thank you very much. Mr. Furfaro: Okay thank you. Anyone else who would like to testify on this? Mr. Taylor: Chair, members of the Council, my name is Ken Taylor. I too question on page 11, item number 11 top portion of page... structures and activities necessary to be within the shoreline setback area for public health and safety, I'm not quite sure ah what, what's being looked at there... I have a real problem with that being in there and I think it should be removed, unless you can show, show us the kinds of activities that we're talking about here, thank you. Mr. Furfaro: Thank you Ken. Bruce do you want to come back? I'll give you 3 more minutes Bruce. Mr. Pleas: Bruce Pleas for the record. I missed one at the bottom of the first page Section 8-27.1 (2) it states for properties abutting the shoreline, the Director's determination shall be based on a detailed report written by a Qualified Professional Consultant submitted to the Director outlining the specific reasons the improvements are not affected by coastal hazards, excluding natural catastrophes, um who is the qualified professional consultant? Hired by who? Hired by? Is this a hired gun that will pretty much put what the person who hired them out want? Um as a safety measure... I would um ask that there would be a response to the QPC report which is Qualify Professional consultant report, by the state or county shoreline specialist or expert. What this does is it means that whatever the hire gun, whether he is that or not if it's a.... even if it's a third party... is reviewed by our specialist that we have one in the county presently and we also have state. So that that can be reviewed so that we get both sides of it because there is erosion going on and reports, so this is just a safety measure to make sure that everything adds up thank you. 80 Mr. Furfaro: Thank you. Jim, is it possible I could ask you to come up? May I ask you to come up? Could I ask you to state your name and your um position as a consultant to the (inaudible). JIM O'CONNEL: For the record my name is Jim O'Connel, I'm a coastal geologist with the University of Hawaii here with the good gracious of county funding to assist the county of any technical coastal matters that I can. I didn't come here to testify, I came here to listen but I'd be happy to engage in any discussion. Mr. Furfaro: Well since I was one of the Council people that voted for the money (inaudible) we got you hired and I thought take advantage of your professional review, have you had an opportunity to look at this proposal from the Planning Department? Mr. O'Connel: Yes I have. Mr. Furfaro: Do you have any general comments about its particular value for public use versus some of the conditions that are being brought up here that you (inaudible) concerns where private groups may try to massage this particular (inaudible). Because we all worked so hard to (inaudible). Mr. O'Connel: Well your hard work is appreciated because I think it's one... it is one of the more progressive setback ordinances in the country. I have listen to... I have read it thoroughly many times... I have listened to all the testimony thus far and I think a lot of the testimony actually, have a lot of validity to it and if you want to just from the top of my head I'm not prepared with anything in front of me but I could provide some of the... some feedback on what I... on my opinion on some of the testimony that's taking place so far. Starting from the applicability section, I do think that structures that are abutting... excuse me proposals that are abutting... parcels that abutting the shoreline more than likely should be required to have a certified shoreline and I say that but there are circumstances where... where the setback ordinance may not be applicable for example if there's a well constructed revetment or seawall um there is no erosion rate, the erosion rate may go to zero so it may not apply but I think all structures are in close proximity to the shoreline should be setback as far mauka as possible and that goes for all the structures and activities that are allowed in the setback area by the ordinance. Perhaps there should be some language to require them to be as far mauka as possible and still meet their design objective. For example, a lifeguard stand that obviously should go as close to the shoreline for visibility of the safety for the swimmers but at the same time a shower or a BBQ pit or something like that that's not water dependent, perhaps should go back as far in the setback area as possible. I know a lot of the testimony has been criticism of allowing the Director the discretion of requiring a certified shoreline or not on activities permitted in the setback area. I do know that Maui County Director does have that discretion and according to a discussion I had with the Maui CZM planner, the 81 Director has used discretion on a number of cases and not required with certified shoreline certifications, so there is precedent on at least in Maui for that particular case. I do have a little problem with not requiring with certifying shoreline only in that these activities are allowed in the shoreline setback area by ordinance so they're already been reviewed by the number people and they would have minimum impact but I would have 2 suggestions for considerations, one would be to possibly allow activities to be permitted in the... activities and structures that are already allowed in the setback area to allow those activities and structures to be allowed in the setback area on public properties but necessarily private and the reason I say that is without some type of line on the... in the shoreline as a (inaudible) for certified shoreline or the certified shoreline itself do you.... We don't know whether the structure or activity is taking place in the setback area or in the public use area so I would.... We had discussed the potential of some (inaudible). What Maui does is they, somebody, some expert or Planning Department will go out, identify where they... The best professional judgment of where they think the certified shoreline would be and then they run that by DLNR land division or Seagrant agent for sort of a double check and then from that they make sure it's mauka of that particular line. The second alternative that you could consider would be to require a certified shoreline on private property but not on public property because if it's public property it's open to the use by the general population anyway, so it really doesn't matter whether or not it's in the shoreline setback area or not. But in addition I would suggest that there is language in the definition of minor structure that should be brought up to the Section of permanent structures for everything and what I mean by that is, in the minor structure definition any type of minor structure activity will not have a adverse impact of beach processes, will not have a adverse impact on the public access to and along the shore, so there are provisions in the minor structures that if you put if in there it will not have an impact physical or visual to the environment. So if you brought just those few sentences and brought them into the Section of permitted structures and activities I think that would go a long way in ensuring that if you did not have a certified shoreline, and something went into the setback area that at least it would have a review of not having any impact physically to the beach processes or to the public's use and enjoyment of the shore. It's a matter of just bringing couple of sentences up into the permitted use section. (inaudible) and the broadness of structures for public health and safety, it's so broad it, it could include anything. I mean I think the intent of the setback ordinance was to not have buildings go into the setback area that would not last for the life of the structure and that goes for civil defense buildings as well. Why would you put a building in the setback area knowing that it may not last for the life of the building; would it be cost effective? I don't know. Perhaps for the civil defense structures and activities that were added to it perhaps they had pile- supported structures I think the intent initially was to have sirens anywhere where the civil director wanted to go but I think, I think the civil director would have to answer that question but I'm not sure it would be appropriate for putting buildings in the setback area whether they be for civil defense or for public and health and safety. Because public health and safety is just, it's very, very broad and I think it should be at least the definition tighten up a little bit and lastly this is again off the top of my head.... Lastly in the variance section I think there's a conflict in terms of 82 allowing coastal engineering structures or erosion controlled structures to protect structures that would be permitted by variance. I read 3 different versions in the variance section one says in a erosion controlled structure including a structural erosion controlled structure or revetment could be allowed by variance if a structure is threatened by erosion, but if you go to another section in the variance section it says anything allowed by variance in the setback area can no... coastal engineering structure for erosion control cannot be permitted, so there is a conflict in the variance section. And then the section that Bruce brought up in terms of there is an error referring to prohibited structures when it should have been prohibited... permitted structures. I don't know the sections but I did read that as well. So off the top of my head that's all I can think of at present unless you have any questions. Mr. Furfaro: Well Jim thank you for focusing on this bill, that's why we have your expertise here but I want to reconfirm what I heard, you think it's possible to allow the Director some flexibility on public property? Mr. O'Connel: In my opinion I think that may be appropriate, yes. Mr. Furfaro: um... all private shoreline areas should be guided by a certified shoreline required? Mr. O'Connel: I think that's good consideration. Mr. Furfaro: Okay and well... is there a change in civil defense that they would want to have civil defense alarms that close to the beach anyway? Mr. O'Connel: Ah. Mr. Furfaro: I mean why is there so much intention for these annunciates for Civil Defense, I mean has there been a change at the state level about how they alert the people along the coastal zones? Mr. O'Connel: No not that I'm aware of. Mr. Furfaro: Because I would think if you build something inside a shoreline... it's a possibility you could have one event of Mother Nature and lose the facility. Mr. O'Connel: Precisely, right... precisely. And that was one of the reasons why I'm suggesting one I think an opinion from the Civil Defense Director, if they have something in mind and it's valid Mr. Furfaro: (inaudible) Mr. O'Connel: That's something you should consider, if not... and if there is something they would like to consider just a simple language I think this would be practiced anyway but having the language there to have it as far mauka 83 on the possible as far mauka as possible... you give it cost effectiveness in the life expectancy but you're right you would not want to lose something particularly of the sensitive nature of something related to civil defense. Mr. Furfaro: Okay any members have any questions for Jim? Mr. Bynum: Just...I can save it for when we have discussion. Mr. Furfaro: Okay. Lani do you have any questions for Mr. , O'Connell Ms. Kawahara: Yes. You went quickly through the minor structure versus permanent structure, if you could go back through it again. Mr. O'Connel: Minor structures versus... Ms. Kawahara: Yeah not having any impact on beach processes or public enjoyment of the beach. Mr. O'Connel: Yes. Ms. Kawahara: You said to link it yeah? Somewhere. Mr. O'Connel: If you look at the definition of minor structure, not only does it list a lot of specific things like lifeguard towers, picnic tables and so forth but it also has language before it list all those specific things, it has language that says anything that is allowed as a minor structure in the setback area and it names... and then it list certain things, will not have adverse impact of beach processing, will not affect public use and enjoyment to and along the shore, so the specific language there that is only under minor structure... Ms. Kawahara: Okay. Mr. O'Connel: if you did move that into the permitted structures and activities area I think that would go a long way as a performance standard to make sure anything went in there didn't affect the public use and enjoyment of the shore or physically affect the beach processes which would affect adjacent properties. Ms. Kawahara: Thank you. Mr. Furfaro: Jim thank you very much, we have no more questions for you. Thank you for being here. Ms. Kawahara: Thank you very much. Mr. O'Connel: That's why I came Jay just in case you had any 84 questions. Mr. Furfaro: That was very nice of you. Is there anyone else, not? So I'm going to call this Committee meeting back to order. Mr. Bynum? The meeting was called back to order, and proceeded as follows: Mr. Bynum: Thank you Mr. Chair, I appreciate Jim coming up here and I had lengthy discussions this week that covered most of these issues and because of the legal things we discussed earlier. I assume we are moving for a deferral for 2 weeks and you know I know that staff is working on some amendments you know most of which Jim discussed and so I just want to say that you know, he's been very helpful. As you pointed out this is a bill that came from Planning, some of the concerns that have been... addressed here by the members of the public are legitimate concerns and I think we can address those and the amendments are being prepared. Mr. Furfaro: So hearing that from Mr. Bynum, I think I mentioned earlier as the County Attorney was up here, I am looking for a deferral, so that we could work on some of these amendments. Upon motion duly made by Councilmember Kawakami, seconded by Councilmember Bynum, and unanimously carried, Bill No. 2319 was deferred for 2 weeks. Mr. Furfaro: Thank you very much, that ends the business from the Planning Committee and I think we're going up to Public Works now. There being no further business, the meeting was adjourned at 4:52 p.m. Respectfully submitted, aC~~/in.~UL~I~'~u,'Y~1~1o~.~ Darrellyne M. Simao Council Services Assistant I APPROVED at the Committee Meeting held on September 16, 2009: JA Chair, in 85 3 August 12, 2009 FLOOR AMENDMENT BILL NO. 2317, Relating to Small Wind Energy Conversion Systems (SWECS) Introduced by: Tim Bynum (by request) Section 8-28.4 is amended by amending subsection (a) to read as follows: "(a) Tower-mounted S.W.E.C.S. shall require a Use Permit in the following use and overlay districts: (1) Resort District (RR). (2) Special Treatment District, Public Facilities (ST-P). (3) Special Treatment District, CulturallHistoric (ST-C). (4) Special Treatment District, Scenic/Ecological Resources (STR). (5) Kapa`a Special Planning Areas A, B, and C. (6) Residential District (R-1 - R-20), when the lot is less than one (1) acre in size. (7) Neighborhood Commercial District (C-N), when the lot is less than one (1) acre in size. (8) General Commercial District (C-G), when the lot is less than 20,000 square feet in size. (9) Open District, when the lot is less than five (5) acres in size. ~10~ Agriculture District, when the density of tower-mounted S.W.E.C.S. proposed exceeds the density of tower-mounted S.W.E.C.S. permitted under Section 8-28.3(4)." (New material to be added is underscored. Material to be deleted is bracketed.) (V\CS OFFICE FILES\AMENDMENTS\2317fa-tb2.doc:ys) ~ 1 (August 12, 2009) FLOOR AMENDMENT BILL NO. 2317, Relating to Small Wind Energy Conversion Systems (SWECS) Introduced by: Tim Bynum Section 8-28.5 is amended to read as follows: "[Sec. 28.5] Sec. 8-28.5 Additional Standards for S.W.E.C.S. (a) Allowable heights for tower-mounted S.W.E.C.S. The maximum allowable total height for atower-mounted S. W.E. C.S. shall be twenty (20) feet above the maximum building height allowed in the respective zoning district in which it is proposed to be constructed and/or operated. (b) Allowable heights for roof-mounted S.W.E.C.S. The maximum allowable total height for aroof-mounted S.W.E.C.S. shall be ten (10) feet above the maximum building height allowed in the respective zoning district in which it is proposed to be constructed and/or operated. (c) Set back. Tower-mounted S.W.E.C.S. shall be set back from all property lines and overhead utility lines at least 1.1 times its total height. Roof- mounted S.W.E.C.S. shall be considered as part of the structure atop which they are mounted, and the setback standards established for each respective zoning district shall be applied to all roof-mounted S.W.E.C.S. (d) All S.W.E.C.S. shall comply with all other County of Kauai, State of Hawaii, and Federal regulations. (e) Signs. At least one (1) sign shall be posted at the base of the tower warning of electrical shock or high voltage. Advertising on any part of the S.W.E.C.S., including but not limited to the tower, rotor, generator or tail vane shall be prohibited. (f) Color. S.W.E.C.S. shall be painted anon-reflective color to be reviewed and approved by the Planning Director prior to Building Permit approval. (g) Lighting. Exterior lighting of any form of the S.W.E.C.S. shall be prohibited, unless required by the F.A.A. (h) All applicants proposing to construct and/or operate a S.W.E.C.S. shall notify the Department of Land and Natural Resources, Division of Forestry and x~ J 1 t. Wildlife and the United States Department of the Interior, Fish and Wildlife Service of their intention to construct and operate a S.W.E.C.S. on the island of Kauai. The applicant shall inform these two (2) agencies via certified mail of the proposed S.W.E.C.S. location and the respective property's tax map key(s) as well as design information, including but not limited to the proposed S.W.E.C.S. total height, blade length, pole or tower type (e.g. solid metal pole or latticed), and whether or not guyed wires will be used. The Planning Director or his designee shall not deem an application for a S.W.E.C.S. complete until the applicant submits to the Department a copy of the return receipt of the certified mail demonstrating that such notification took place. [(i) Contrary covenants void. Notwithstanding any law to the contrary, no person shall be prevented by any covenant, declaration, bylaw, restriction, deed, lease, term, provision, condition, codicil, contract, or similar binding agreement, however worded, from installing a S.W.E.C.S. on any real property that the person owns. Any provision in any lease, instrument, or contract contrary to the intent of this section shall be void as against public policy.] [(j)] Discontinuance of S.W.E.C.S. Should the use of a S.W.E.C.S. be discontinued for a period of two (2) or more years, the respective land owner shall inform the Planning Department and remove the S.W.E.C.S. and any associated equipment and/or structures from the subject property." (New material to be added is underscored. Material to be deleted is bracketed.) V:\CS OFFICE FILES\AMENDMENTS\2317fa-tb.doc:ys Z e r August 12, 2009 FLOOR AMENDMENT BILL NO. 2317, Relating to Small Wind Energy Conversion Systems (SWECS) Introduced by: Derek Kawakami (by request) Amend Section 8-28.2 as follows: "Sec. 8-28.2 Definitions. When used in this Article, the following words or phrases shall have the meaning given in this section unless it shall be apparent from the context that a different meaning is intended: "Blade" means an extension from the hub of the S.W.E.C.S. that is designed, in conjunction with other extensions, to catch the wind and turn the rotor to generate electricity. "F.A.A." means Federal Aviation Administration. "Horizontal axis wind energy conversion system" means a wind energy conversion system that employs a horizontal rotor shaft. "Hub" means the center of the rotor to which the blades are attached. "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 [one- hundred (100)] ten 10 kilowatts 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. "Total Height" means the combined height as measured from the existing grade at the base of the tower or structure to which the S.W.E.C.S. is mounted to the tip of the rotor blade when extended vertically ninety (90) degrees from the horizontal plane of the ground. "Tower" means the upright portion of a wind energy system to which the primary generator systems are attached, either at the top (i.e. generally for horizontal axis wind energy conversion systems) or the bottom (i.e. generally for vertical axis wind energy conversion systems). "Vertical axis wind energy conversion system" means a wind energy conversion system that employs a vertical rotor shaft." Amend Section 8-28.4 as follows: Sec. 8-28.4 S.W.E.C.S. that require a Use Permit. [(a) Tower-mounted S.W.E.C.S. shall require a Use Permit in the following use and overlay districts:] if~` ~ (a) In addition to the limits set forth in Section 8-28 3(a) tower- ~.-~ mounted S.W.E.C.S. shall require a Use Permit and a Class IV Zoning \ Permit in the following use and overlay districts: ~ 1 (1) Resort District (RR). (2) Special Treatment District, Public Facilities (ST-P). (3) Special Treatment District, CulturallHistoric (ST-C). (4) Special Treatment District, Scenic/Ecological Resources (STR). (5) Kapa'a Special Planning Areas A, B, and C. (6) Residential District (R-1 - R-20), when the lot is less than one (1) acre in size. (7) Neighborhood Commercial District (C-N), when the lot is less than [20,000 square feet] one (1) acre in size. (8) General Commercial District (C-G), when the lot is less than 20,000 square feet in size. (9) Open District, when the lot is less than five (5) acres in size. X10) North Shore Special Planning Area. [(b) Roof-mounted S.W.E.C.S. shall require a Use Permit in the following use and overlay districts:] fib) In addition to the limits set forth in Section 8-28.3(b), roof- mounted S.W.E.C.S. shall require a Use Permit and a Class IV Zoning' Permit in the followinguse and overlay districts: (1) Resort District (RR). (2) Special Treatment District, Public Facilities (ST-P). (3) Special Treatment District, CulturaUHistoric (ST-C). (4) Special Treatment District, Scenic/Ecological Resources (ST-R). (5) Kapa'a Special Planning Areas A, B, and C. (6) North Shore Special Plannin ag rea. (7) Residential District (R-1 - R-20), when the lot is less than one (1) acre in size. (8) Neighborhood Commercial District (C-N), when the lot is less than one (1) acre in size. ~,9) General Commercial District, when the lot is less than one (1) acre in size." (New material to be added is underscored. Material to be deleted is bracketed.) V:\CS OFFICE FILES\AMENDMENTS\2317FA-jf.doc/ys 2 August 12, 2009 FLOOR AMENDMENT BILL NO. 2317, Relating to Small Wind Energy Conversion Systems (SWECS) Introduced by: Derek S. K. Kawakami (by request) Amend Section 8-28.1 to read as follows: "Sec. 8-28.1 Applicability. The requirements of this chapter shall apply to small wind energy conversion systems (S.W.E.C.S.) when they are allowed as a generally permitted use or permitted with a Use Permit under the County Zoning Ordinance. Notwithstanding [Section] Article 2 of Chapter 10 of the Kauai County Code 1987, as amended, or any other law to the contrary, the design [standards,] standards for S.W.E.C.S., including but not limited to the maximum allowable heights and setbacks1 [for S.W.E.C.S.,] shall be as established in this Article." Amend Section 8-28.5 to read as follows: "[Sec. 28.5] Sec. 8-28.5 Additional Standards for S.W.E.C.S. (a) Allowable heights for tower-mounted S.W.E.C.S. The maximum allowable total height for atower-mounted S.W.E.C.S. shall be twenty (20) feet above the maximum building height allowed in the respective zoning district in which it is proposed to be constructed and/or operated. (b) Allowable heights for roof-mounted S.W.E.C.S. The maximum allowable total height for aroof-mounted S.W.E. C.S. shall be ten (10) feet above the maximum building height allowed in the respective zoning district in which it is proposed to be constructed and/or operated. (c) Set back. Tower-mounted S.W.E.C.S. shall be set back from all property lines and overhead utility lines at least 1.1 times its total height. Roof- mounted S.W.E.C.S. shall be considered as part of the structure atop which they are mounted, and the setback standards established for each respective zoning district shall be applied to all roof-mounted S.W.E.C.S. (d) All S.W.E.C.S. shall comply with all other County of Kauai, State of Hawaii, and Federal regulations. , l ` . YS/wa2009-10-15 ~ ` ' (e) Signs. At least one (1) sign shall be posted at the base of the tower warning of electrical shock or high voltage. Advertising on any part of the S.W.E.C.S., including but not limited to the tower, rotor, generator or tail vane shall be prohibited. (f) Color. S.W.E.C.S. shall be painted anon-reflective color to be reviewed and approved by the Planning Director prior to Building Permit approval. (g) Lighting. Exterior lighting of any form of the S.W.E.C.S. shall be prohibited, unless required by the F.A.A. (h) All applicants proposing to construct and/or operate a S.W.E.C.S. shall notify the Department of Land and Natural Resources, Division of Forestry and Wildlife and the United States Department of the Interior, Fish and Wildlife Service of their intention to construct and operate a S.W.E.C.S. on the island of Kauai. The applicant shall inform these two (2) agencies via certified mail of the proposed S.W.E.C.S. location and the respective property's tax map key(s) as well as design information, including but not limited to the proposed S.W.E.C.S. total height, blade length, pole or tower type (e.g. solid metal pole or latticed), and whether or not guyed wires will be used. The Planning Director or his designee shall not deem an application for a S.W.E.C.S. complete until the applicant submits to the Department a copy of the return receipt of the certified mail demonstrating that such notification took place. (i) Contrary covenants void. Notwithstanding any law to the contrary, no person shall be prevented by any covenant, declaration, bylaw, restriction, deed, lease, term, provision, condition, codicil, contract, or similar binding agreement, however worded, from installing a S.W.E.C.S. on any real property that the person owns. Any provision in any lease, instrument, or contract contrary to the intent of this section shall be void as against public policy. (j) Discontinuance of S.W.E.C.S. Should the use of a S.W.E.C.S. be discontinued for a period of two (2) or more years, the respective land owner shall inform the Planning Department and remove the S.W.E.C.S. and any associated equipment and/or structures from the subject property." (New material to be added is underscored. Material to be deleted is bracketed.) YS/wa2009-10-15