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Home My WebLink About07-29-2009 Planning Committee Minutes MINUTE S PLANNING CONIlVIITTEE July 29, 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, July 29, 2009, at 9:48 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Bill "Kaipo" Asing, Ex-Officio Member Honorable Dickie Chang, Ex-Officio Member EXCUSED: Honorable Derek S. K. Kawakami The Committee proceeded on its agenda items 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: I would like to call to order this committee meeting and notice of our agenda for Wednesday, July 29~. I would like to also make note that for the Planning Committee, all members are present with the exception of Mr. Kawakami, who is on an excused absence and traveling on council business. May I have the first item read please? Wilma Akiona, Council Services Secretary: Yes, 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 Systems. Mr. Furfaro: Thank you. For the...for my colleagues, I have asked Mr. George Costa to come this morning and give us an update on the process that is happening with the Energy Sustainability Plan funded by this council. I also want to make a correction that I think at the...the last meeting we were talking about wind energy, hydro and others, and I confused the amounts that we allocated, and I would like to clarify that we have funded a $200,000 study on energy sustainability. That was the correct amount. Is Mr. Costa in the audience? Mr. Costa, thank you for being here. And on that note, I will suspend the rules. There being no objections, the rules were suspended. Mr. Furfaro: Mr. Costa, can I ask you to come up? Thank you for being here and may I ask if you could just give us, the body, an update on the process with the sustainable energy plan for the county as...as well as some estimated date that we might see a draft. GEORGE COSTA, Director of the Office of Economic Development: Okay. Is this on? Aloha and good morning, everyone, Councilman Furfaro and committee persons. The energy...the county's Energy Sustainability Plan timeline and I...I'm sure a lot of you were involved in the initial process where we had the kickoff meeting and the various community meetings and the stakeholder meetings, 15 to be exact. Right now, according to the timeline, by the end of this month, so within a few days, a draft of the outline for the Energy Sustainability Plan should be completed by our consultant, Sentech Hawaii, and that should be forwarded to the...to the county administration and as soon as we get that, we'll...we'll provide that, you know, for...for the committee to review as well. According to the timeline, from August to mid-October the draft of the project report is to be developed and during this development and review, the community and stakeholder input plus energy analysis will equal that...that draft report analysis. And right now one of the options is...is to look at presenting the report to the community through a webinar and public rollout, and then have another one-month period for feedback. In my association with Sentech Hawaii over the last, I would say, two months since the public meetings and stakeholder meetings have been completed, they've been compiling a lot of the feedback that was received during these meetings and...and also there have been numerous renewable energy coming...companies coming forward to present what they have to offer and what they'd like to see as far as being part of the plan and being part of the...the overall county's renewable or the Energy Sustainability Plan. In...anyway, that's the...that's the timeline that we're working on and October 15 is the completion date of the draft of the CSP report and then between October and November roll out the draft plan to the Kauai community and then the one-month period that I had mentioned from Nov...mid-November to December is the feedback and comment period. And then the final project report will be done in January 2010. Mr. Furfaro: Thank you, Mr. Costa. So, Mr. Costa, is...is it possible when the recommended plan and the strategies are rolled out to the community, they will include some potential recommendations? Mr. Costa: Yes. Mr. Furfaro: Thank you. Okay. That is...bringing us up to date. I want to make certain that I share with my colleagues that the purpose of asking Mr. Costa here was to give us an update, not to delve deeply into the wind sustainability issues that relates to the Energy Sustainability Plan because the Energy Sustainability Plan is not fully disclosed on the agenda. But they are related when they potentially would come out with recommending some ordinances. So, thank you for the update on the dates. Any questions of Mr. Costa? BILL "KAIPO" ASING: Yes, I...I have. I...I want to hear again the date that it'll possibly come up to the council for the council's review. Mr. Costa: I don't have the...the exact date and I... Mr. Asing: Wha...what's the estimated, guesstimated time? Mr. Costa: Well, the...the draft outline for the CESP or the County's Energy Sustainability Plan is scheduled to be done by the end of this month and then from August through October is when the draft is to be worked on utilizing all of the feedback that was gathered during the...the first two to three months. Mr. Asing: And...and then the final would be approximately October? Mr. Costa: October...between October 15 and November 13. 2 Mr. Asing: Thank you. Mr. Furfaro: Thank you. Are there any more questions for Mr. Costa? Mr. Bynum: Thank you, Mr. Costa. Mr. Costa: You're welcome. Mr. Furfaro: Thank you very much. I would like to make reference to material that I have in front of me. I hope it's been circulated. We have testimony from PHC Community Association. We have a testament...testimony drafted on some suggested changes to the bill itself. We have testimony from Apollo Kauai submitted July 29. We have testimonies...additional testimony from Carl Imparato submitted July 28, and we have Pamela Lightfoo...Lightfoot Burrell's testimony regarding small wind energy dated today, and I think those packets were made available to you. Can I acknow...get acknowledgements? Mr. Bynum: I...I'm missing one piece, but... Mr. Furfaro: Okay. Mr. Bynum: They're looking for it. Mr. Furfaro: Could we suggest that the clerk... Mr. Bynum: He...he's...he's doing that. Mr. Furfaro: Very good. Okay, on that note, do we have individuals that have signed up to give testimony today? Ms. Akiona: Yes, we do. We have seven of them. Mr. Furfaro: Okay. Ms. Akiona: Shall I begin? Mr. Furfaro: May I ask you first to read all seven names... Ms. Akiona: Okay. Mr. Furfaro: ...and ask if your name is not there and you plan to testify, please come up by Yvette here and sign up so we can... Okay, read the names... Ms. Akiona: Okay. Mr. Furfaro: ...all together, please. Ms. Akiona: Okay, the first one will be Patty Kaliher, second Marielle Ponce, third Vincent Cosner, four Michael Cox, five Patrick Gegen, six Dean Liskum, seven Gabriela Taylor. 3 Mr. Furfaro: Okay, if you plan to testify and your name has not been read, please come up and fill out your intent by the podium. Okay, let's call the first speaker. The rules are still suspended. Ms. Akiona: The first speaker will be Patty Kaliher followed by Marielle Ponce. PATTY KALIHER: I, Councilmembers and Chair, I would like your indulgence, please, and...and permission. My neighbor has a... Mr. Furfaro: Excuse me, Patty. You need...for the record, you need to introduce yourself even though... Ms. Kaliher: My name is Patty Kaliher. Mr. Furfaro: Thank you. Ms. Kaliher: My neighbor who's going to be testifying later has a doctor's appointment. Would it be allowable for me to switch with her? Mr. Furfaro: I can make that arrangement. So, if you'd like to call out her name, I will do that. Ms. Kaliher: Gabriel Taylor. Mr. Furfaro: Gabriel Taylor. Ms. Kaliher: Yeah. GABRIELA TAYLOR: Thanks, Patty. Hi, my name is Gabriela Taylor and good morning, Councilmembers and Chair. I have a windmill. I have a Skyscreen...Skystream 40-foot high windmill sitting on my hill where I live in Keapana Valley. And I would just like to talk about its merits. I've only had it for two months, but the only...it's 75 feet in front of my house...75 feet away from my house and 50 feet away from the property line of my neighbor. I cannot hear the windmill from my house when the windows are open. What happens is, when the wind blows, there are a lot of leaves and...and different noises that happen that actually cover up the sound of the windmill. If I go out on the lanai in front, I can hear it only when it's spinning really fast. Now, I'd like everybody to understand that the wind isn't always blowing, so there's a lot of times that it's just sitting there and nothing is happening or it's just barely going around and there's absolutely no noise at all. I'd say that that's the majority of the time. And when it is spinning really fast, it's a whirring sound that is...is minor. I mean, it's...it's like, you know...it just...like I said, it blends in with all the other noises that happen when the wind blows. I have a couple of statistics here. First of all, the...the company, Skystream, reports from a study done by the U.S. Department of Energy, National Renewable Energy Lab that it can, at high speeds, go between 40 and 65 decibels. Ag...g...gain I say, you know, it's not doing that very often, so mostly you don't hear anything. And they...there's statistics that I got from somebody that says the radio playing in the background is 45 - 50 decibels. The dishwasher in the next room is 50 decibels, normal conversation 55 - 65 decibels, and background music 50. Well I don't see any decibels for the roosters crowing. But I'm telling you that all of these things I've listed, the radio, the dishwasher, the conversation, and background music and the roosters are much, much louder than the...than the windmill when it's spinning at...at the highest speeds. And... 4 Mr. Furfaro: Excuse me, Gabriel. Ms. Taylor: Is my time up already? Mr. Furfaro: No, no. Your first three minutes are up, but at my discretion I'm going to give you your second minutes...three minutes. Ms. Taylor: Thank you very much, I appreciate that. So, okay, now here's the second part. The...the fear that some people seem to have about this proliferation of windmills in everybody's yard is...is...is almost ludicrous. First of all, it's a huge investment of money to put this up. And, you know, I'm not even sure that I'll live long enough to...to get my returns. I'm...I'm going to be 69 years old next week, so...I mean, who knows? But I'm willing to invest in it because I believe that we have to play our part in the renewable energy process. And I would also like to commend the council at this time for the Energy... Mr. Furfaro: Sustainability. Ms. Taylor: ...Sustainability Plan that you have in process. I think...I really, really am proud of you for putting this in place because government needs to step in and help at this point and individuals need to step in and help. But you know, if you look at...at how many people have actually purchased solar water heaters, it's only 25%. I took a survey many years ago and it was 25% and even with all those incentives over the years from KIUC, I mean it's really inexpensive to get a solar water heater. It has remained at 25 or 30% of the houses on Kauai. So, it's not like people are jumping forward to buy and that's the best bang for the buck. This windmill certainly isn't. The other thing is that the windmill has to be on a hill, which, you know, I said I live on or someplace that's going to capture the wind. And trees and other buildings have to be 20 feet below the blades, okay. So, if you were in a residential neighborhood, the likelihood of being able to put up a windmill that would even be effective is very, very small. I'm in a ma...I'm in a very good location and mine isn't spinning, you know, maybe, you know 50% of the time or something like that it's spinning at all and at least at...at this time in the summer. Maybe in the winter it'll be different. But the likelihood of people investing in this expensive thing for...for a minimal return, you know, because they're in a neighborhood with atwo-story house next to them, they...they would have to cut trees down 20 feet below the windmill in order to even make it effective. So...and...you know, so I mean it just seems almost preposterous that people would be rushing out to buy these things and sticking them in their backyard or putting them up on top of their roof. So, I would like to just encourage the council to think about the fact that some of us and some people in the future would like to help the alternative energy situation here by investing in these windmills and that should be encouraged and...and definitely supported by the government. Thank you very much. Are there any questions? Mr. Asing: Yes, I... Ms. Taylor: Yes. Mr. Furfaro: Usually I say if there's any questions. Ms. Taylor: Oh, I'm sorry. Mr. Furfaro: Then I recognize the person... Ms. Taylor: I'm sorry. I...I was a teacher. I'm sorry. 5 Mr. Furfaro: Very good, very good. And I...I can say I'm learning well. Are there any questions for Ms. Taylor? Mr. Asing: Yes, well, I guess if you're the teacher, I'm the student. With...with that, I...I have a question now. You mentioned that the re...return on investment appears to be quite long and extensive and expensive. That's the impression you give me... Ms. Taylor: Yes. Mr. Asing: ...by what you've said. Now that is not the impression that I got from others who relate to the return on investment is reasonable and you can get it back soon. So, there is some difference between what you feel and what you say versus others in the field who say the entirely different story. So, I'm, you know, a little confused. Ms. Taylor: Okay. Mr. Asing: I need some help because I believe we will have some professionals that'll tell the story that is completely different. Ms. Taylor: Okay, well I'm just... Mr. Asing: So I...I heard your side, so I want to thank you, but I want to say that. Ms. Taylor: Can I just respond to that briefly. Mr. Asing: Sure, sure. Ms. Taylor: I think that when you're talking about a commercial venture like wind farms, that's absolutely true. They have them in the optimal places. They have them very high on hills like on Maui, for example. They get a very good return. They have a large number of them and, you know, it's obviously contributing a...a major amount to the grid. But as an individual, just looking at my electric bill... You know, first of all, it...I didn't get in the...the first group. I don't know whether it was 100 people or what it was; I can't remember. But I'm on Q metering. So that means that when I sell back the electricity to KIUC, I sell it back to them at retail. You know, if I'm producing extra electricity, let's say at night, I sell it at retail and then I have to buy it...I...I sell it at wholesale, ex...excuse me. Which...which way is it? Mr. Bynum: You got it, you got it, wholesale. Ms. Taylor: I...I sell it to them for a lot of money. I sell it to them for a little bit of money and I spend a lot of money getting it back. Thank you. Okay, so...so...so that's, you know, and then there's other charges. I'm also paying for the...the...gas, you know. What's the thing called that they add onto the energy adjustment. I'm paying for that for whatever I use. So when you look at the bill, you've got all these things added on, you think, oh boy, I'm really going to...because the windmill was spinning I'm really going to do well, but the truth is that you should add all these things up and it's, you know, it's...it's obviously going to get better when the wind blows more in the winter, I think, but we'll see. Mr. Asing: Thank you. 6 Ms. Taylor: So that's...it's the difference, I think, between commercial and individual. Tha...that's what I would say. Mr. Furfaro: One moment, let me see if there's other questions. Ms. Taylor: Okay. Mr. Furfaro: Mr. Bynum. Mr. Bynum: Thank you very much for your testimony and so, you know, you're saying that your primary motivation was really about renewable energy and the environment, those issues that... Ms. Taylor: Mm-hm. Mr. Bynum: ...you as an individual wanted to make that investment that...the return on investment in terms of dollars wasn't the primary motivating factor. Ms. Taylor: That's right, yeah. Mr. Bynum: And then, you know, you are on what is called Schedule Q. Ms. Taylor: Yes. Mr. Bynum: Not...not net metering... Ms. Taylor: Not net metering, but Schedule Q. Mr. Bynum: ...which our utility has capped at 1% and so Schedule Q is I think what they call a voided cost. So it's like your neighbors are not subsidizing you at Schedule Q and most of your...your investment will...you know, your savings will come from electricity you don't use, not the electricity you might sell back. Is that correct? Ms. Taylor: Well, the electricity...but the savings that come from the electricity that does come into my house... in other words if I get it directly during the day when I'm using a lot of things, my computer and so forth, the refrigerators are obviously running all the time, but there are certain things that you use more during the day or lights at night or something, but it's after I go to bed when it's going back into the grid. Mr. Bynum: And in order to get your windmill, how did... Did you have to get permits to do...how did you... Ms. Taylor: Yeah. Mr. Bynum: What was the process for you? Ms. Taylor: It was...it was pretty easy. It was just a matter of first of all going through Kauai Electric and buying...buying the, you know the company Kauai Electric and buying the windmill. And...and just, you know, signing the papers for the...for the...the permit and going through that, which I've done a million times for building permits, so it's not a big deal. 7 Mr. Bynum: And the lot you live on, is it greater than one acre? Ms. Taylor: Yes, it's three acres. Mr. Bynum: Thank you very much. Ms. Taylor: You're welcome. Mr. Furfaro: Thank you. (Inaudible.) We have no more questions for you. Ms. Taylor: Okay, thank you. Mr. Bynum: Thank you. Mr. Furfaro: Could we have our next speaker? Ms. Akiona: Next is Marielle Ponce followed by Vincent Cosner. MARIELLE PONCE: Good morning, Councilmembers. My name is Marielle Ponce and I'm here in support of wind energy and wind turbines. We're building a new home right now and we have a permit for a wind turbine. It's on ag land; our home is on ag land. The turbine is not up yet, but it will be before the end of the year and we look forward to that. Our purpose in having a turbine is to not pay exorbitant electric bills. We're also, like Gabriela, we're also on the Q metering, not the net metering, and so it's a really minimal return. In hearing people have questions about it, I've heard people say that they think that it is a visual blight. For us, we feel that it's...I feel that it's a very personal thing. Satellite dishes for televisions and TV antennas and...I mean maybe some people think other kinds of things on roofs are visual blights. The sound is not something that is going to concern us. We have heard other people's turbines and don't feel that it's going to be a problem for us. I mean, you hear about decibels for different kinds of noises and I'm quite sure that our snoring is going to wake each other up more than anything else. So, you know, I...I...I'm really not worried about that at all. I can't see making it harder for people to pursue alternative energy. It is expensive, but it's an investment for the home for the life of that home, not just our lives. And I just can't see making it harder for people. When this turbine is up, my husband Ken has said that if you folks would like to come and see it and listen to it, please let us know. So, thank you. Mr. Bynum: Thank you. Mr. Furfaro: Let me see if there's any other questions. You know, I...I have one. Ms. Ponce: Okay. Mr. Furfaro: I think many of us here on the council really value renewables. We value the whole issue that deals with reducing our fossil fuel usage. To me, and I want to make it very, very clear, I was the co-initiator of the island-wide sustainability plan. The purpose, I felt, for that was to have a wind, solar, photovoltaic, ocean study from point to point and get recommendations then on what are suggestions in changes of our current law, our current CZO (our Comprehensive Zoning Ordinance), how and what changes need to be made with our neighborhood plans because those are existing laws, and hopefully we could come up with one strategy. So, I just want to share. You know, I have...I have 8 worked in the South Pacific, Roratonga, Aitutaki, places that you almost had to find your own energy. But my concern is again, we've spent a substantial amount of money to have a policy that goes out to the community to get feedback from all the stakeholders and then how it would apply against our current ordinances and our current height limits. So, I just need to share that. I...I'm a big proponent to al...alternative energy. I just...the timing is kind of critical, so. But thank you and I...I will want to come and see your wind turbine, so. Any other questions? Let me see if there's any other questions. Mr. Asing: I...I don't have a question, but...but I have a comment that I'd like to make in response to your comment. Mr. Furfaro: Sure, go right ahead, Mr. Chair. Mr. Asing: Yeah, what I'd like to do is just expand on Councilmember Furfaro's statement about, you know, I...I think you...you said some of the councilmembers, you know, here feel strongly and share the same program on the...the energy piece and I just wanted to expand a little by saying all of the councilmembers, the vote went 7 to 0. So we all at this table support that. Ms. Ponce: I understand. Thank you. Mr. Asing: I wanted to make that very clear. Mr. Furfaro: That is correct. Ms. Ponce: Thank you. Mr. Furfaro: Although I was the co-sponsor, the reality... Mr. Asing: Yes. Mr. Furfaro: It...it was 7-0 to spend the money for a master plan. Ms. Ponce: Yes. Mr. Furfaro: Thank you. Next speaker, please. Thank you very much. Ms. Akiona: Next is Vincent Cosner followed by Michael Cox. VINCENT COSNER: My name is Vincent Cosner and I live in the Ulu Mahi Subdivision of Lihu`e. The sponsors of Bill No. 2317 state, "Regulation of the placement and installation of wind turbines is necessary for the purpose of protecting the health and safety of neighboring property owners and the general public." I absolutely agree that we don't want anyone getting hurt or anyone's property damaged by some wayward wind turbine, but I don't agree with the sizing formula used in this proposed bill regarding residential zone lots R-1 through 20. Specifically, if you want to install atower-mounted wind turbine, your lot must be at least an acre in size. If your lot is any smaller, which is usually the case, you must obtain a use permit which is more involved and costly to obtain. My other concern is the limitation on how many wind turbines you can have. As this bill is written, you can only have as many wind turbines as you have acres of land. I strongly disagree. Addressing the lot size issue first, one acre is equivalent to 43,560 square feet, yet this bill only requires 20,000 square feet if it's in a general 9 district or a general commercial district. I suspect it has something to do with noise levels and the peace and tranquility of your kingdom should...you should enjoy at home, but perhaps not at work. I don't know. I suggest the regulation focus on a specific safety distance between the ground and the wind turbine spinning components and use the bill to propose a setback rule of 1.1 times the total height of the device from a utility or property line. This achieves the level of protection the bill intends to provide by preventing any wind turbine from injuring anyone on the ground and by making sure that should a turbine fall accidentally, it won't fall on any live wires, any neighbors or their property. Therefore, if a wind turbine is installed within the established safety zone, then there should be no limit on how many you can have unless even one of them exceeds the current noise control law already on the books. This bill also wishes to impose a height limitation of between 30 and 40 feet. For one thing, a large turbine is not very efficient at that height and in some situations, fewer and smaller turbines, up to 30 or 40 feet, are much more efficient. In conclusion, if you've got the space to be safe and your turbines pass the audible sound test, why set a specific height limitation and number of wind turbines a person can have unless there's some kind of visual blight test you must also pass. This issue, the more valid issue, is not currently part of this bill as proposed, so I see no point in discussing or trying to express my opinion on that at this time. Thank you. Mr. Furfaro: Excuse me. Mr. Cosner, your three minutes are up. I can let you have an additional three minutes as the choice of the chairman or, if you'd like to come back a second time, but if your testimony has ended, I will ask members if they have questions for you. Mr. Cosner: I may want to come back another time. Mr. Furfaro: Okay, so let me first see if there's any questions for you. Is there any questions? Mr. Bynum. Mr. Bynum: Mr. Cosner, thank you very much for your testimony and I want to make sure I understand it correctly. In Ulu Mahi...the way the bill is currently written, you're correct that tower-mounted small wind energy systems would not be allowed in the vast majority of residential neighborhoods because as the bill is written, it requires one acre for atower-mounted... Mr. Cosner: Correct. Mr. Bynum: But there are provisions in the bill for a residential neighborhood for roof-mounted where the variance above the height limit is 10 feet, right. Mr. Cosner: Correct. Mr. Bynum: So...so I understand your testimony as being go with a setback and you also are feeling like the height limit is too conservative that perhaps it should be higher. Mr. Cosner: That is correct. Mr. Bynum: Okay, so I want to make sure I understood your...you know, because this has been through the Planning Commission and, you know, there's a spectrum of opinions from yours that says this should be more liberally construed... 10 Mr. Cosner: Correct. Mr. Bynum: ...to those who want no height increases, no, you know, requiring a use permit for every single one, that kind of thing. So, I think the Planning Commission and the planning department tried to seek those balances and came up with variances of height that are not that great, in my opinion, and with these kind of trade-offs, so. I appreciate your testimony. I just want to kind of put it in perspective and we'll see what the council's sense is on it. Mr. Cosner: Yeah and just one last comment on that is even though where I live... Mr. Furfaro: Excuse me. Would somebody...let...let's have somebody pose you a question before you go on because... Mr. Cosner: Okay. Mr. Furfaro: ...you're not expand...you...you can't expand your time like that. You have another question for him on...on...on any height restrictions in residential areas? Mr. Bynum: Did my comments bring up any other thoughts in your mind? Mr. Furfaro: Thank you. Mr. Cosner: Thank you. Mr. Furfaro: You can answer his question. Mr. Cosner: I'm sorry. Mr. Bynum: Did my comments bring up any other thoughts or any clarification of my questions that you'd like to... Mr. Cosner: Now when...when...it's just that when you mentioned about the...the height, my testimony today is not necessarily for myself because given that I'm saying the 1.1, of course, that wouldn't even...my lot wouldn't even play in that, so. According to what you said is where I would have to go. Mr. Bynum: Right, okay, I understand because, you know, one could ask the planning department for atower-mounted...you know outside of the parameters of this bill, say under an acre, or even a variance on the setback, but it would require a hearing and a use permit. Mr. Cosner: Correct. Mr. Furfaro: Thank you and we'll hold your three minutes if you choose to come back at the end. Mr. Asing: I...I have a question. Mr. Furfaro: Mr. Chair. 11 Mr. Asing: Yeah, by the way thank you for your testimony. Evidently you've done quite a bit of work by the testimony that you've given. There's a lot of thought process that went through it. I...I just heard something that I...I thought was kind of interesting. You're my neighbor down the street, so I... You're not under the impression that you could put a windmill there, are you? Mr. Cosner: Yes. Mr. Asing: Are you? Mr. Cosner: Yes, yeah, I...I would love... Mr. Asing: Yes. Mr. Cosner: ...to put one in my backyard. Yes, I would. Mr. Asing: So you're under the impression that you could. Mr. Cosner: Oh, well I...right now I am. But if this law passes the way it is currently written... Mr. Asing: Yeah. Mr. Cosner: I'd be knocked out of the ballpark. Mr. Asing: Okay. Mr. Cosner: I wouldn't be able to do so. Mr. Asing: So, you...you feel that it's not right that you don't have the same opportunity as others would have? Mr. Cosner: Not the right. It's just a...you know, as long... Mr. Asing: No, I'm not saying right, I'm saying opportunity. Mr. Cosner: Yeah, I have the opportunity, maybe not the same opportunity, but I do have opportunities. Mr. Asing: Okay, that...that's...that's fine, thank...thank you. Mr. Cosner: You're welcome. Mr. Furfaro: Thank you, sir. Next speaker. Ms. Akiona: Next Michael Cox followed by Patrick Gegen. MICHAEL COX: Good morning. My name's Michael Cox. I'm with Kauai Electric Inc. I'm the installer for the SkyStream 3.7, which is the turbine that actually Gabriel Taylor has in her property right now. We also are the installer for a couple other ones. If I may pass these out to you. Mr. Furfaro: Is it promotional material for your... Mr. Cox: No, it's just for your information only as far as the heights that are offered and different to specifications. 12 Mr. Furfaro: Very good, we'll take that. I'm sure you can appreciate my question... Mr. Cox: Yeah, on the last page is a...a full page of different decibel levels as far as appliances and everything else. Mr. Furfaro: Jade is right there. She'll take it from you. Mr. Cox: I'm basically here to support wind energy. I'm here to answer any questions or concerns that you may have with this wind energy. My boss Kevin Hurst and Chris Jensen are unable to be here today due to illnesses. So, I'm here to represent and I'm the project manager of Kauai Electric. Mr. Asing: I...I have a question. Mr. Furfaro: Go ahead Mr. Chair. Mr. Asing: I have here, I guess, the brochure on this particular modeUbrand of windmill system and how are you connected to this? Are you part of the...you get some commission through sale or how...how are you connected to this? Mr. Cox: No, sir. I am... Mr. Asing: I...I'm...I'm trying to get a connection between you being KIUC and...and your connection to this. Is there any connection at all? Mr. Cox: We're in no connection... Mr. Asing: It appears like you have some connection, but I don't know what it is, if it is in fact. Mr. Cox: I have no connection with KIUC other than I deal with Steve Rimshaw about alternative energy and our company is totally separate from KIUC. We took over the old name of Kauai Electric to offer an alternative power. I am just a project manager. I am paid by the hour. I'm a normal working community citizen and the only thing I'm here to do is offer the alternative for different residential folks, farmers. I'm here to represent them to offset their energy cost. We're here to offer clean energy, you know, independence from, you know, fossil fuels. That's... Mr. Asing: Okay, great, thank, thank you, thank you, appreciate that. Mr. Furfaro: Any more questions for Mike? Mr. Bynum. Mr. Bynum: The SkyStream that has been discussed here is a...is atower-mounted kind of traditional windmill, correct? Mr. Cox: Yes, sir. Mr. Bynum: And...but this bill anticipates a different type of windmill, a vertical axis that might be mounted on a roo£..a roof of a structure, and I...I just had a couple questions. I mean, you've shown us a model that's available, right. And what is the height of that model? Do you know? 13 Mr. Cox: There's two different types right there. The helix offers two different types. One is the 5322 and the D361. Both of those units are pole mounts. Now, the roof mount that you're actually talking about is a different system. It's made by a company that we're inquiring in, but we're not yet fully incorporated with them as far as being the reseller or installer of the system. But it is a rooftop-mount system that allows you to have a rooftop turbine mounted to your roof. We're still exploring that part. We're seeing what modifications; what structural engineering would have to be done to individual homes; the cost, you know of having it done versus, you know, the payback of the system. There's a lot of different, you know, things that we're still investigating as far as the system itself. Mr. Bynum: So that's not commercially available from your company at this time. Mr. Cox: Not at this time. Mr. Bynum: Okay and...and I understand that because from my own research it seems that there are a dozen manufacturers of those types and, you know...and so it's kind of a...an emerging technology. So, thank you. I don't have any other questions. Mr. Furfaro: Okay, thank you very much, Mike. Mr. Cox: Thank you. Mr. Furfaro: Next speaker, please. Ms. Akiona: Next is Patrick Gegen followed by Dean Liskum. PATRICK GEGEN: I'd like to thank the Chair and the Council, the Councilmembers for hearing my testimony this morning. I do have some photos of a windmill that I currently have, if we could pass those out. Mr. Furfaro: Sure. Mr. Gegen: Okay. Again, my name is Patrick Gegen. I am a resident of Kauai in Kalaheo. I am presently building my house there. We have installed our wind generator. It's been in operation for about a year. I believe I was the second one legally permitted on the island. The planning department did a very wonderful job of getting things through relatively quick without having any guidance or any formal means of doing it. I did even get a couple of visitations by different planning department members and, you know, when I had to go over to the water department to have them sign off, they were pretty quick too, so. A couple of things that I'd like to address about this, I...I like the legislation that's out there. I do believe that it is a good balancing act. I think they've done a very good job writing it. A couple of things: If you take a look at the pictures in front of you, picture one and two are my actual neighbors' view lines; so that's what they see. You can see in picture one, you know what is the predominant thing you see there. It is a type of visual blight, but I don't believe it's my windmill, okay. In picture two, you can see the...the windmill very clearly. Yes, it is, you know, there in front of the mountains. I don't think it's too ugly. When you look at picture two, I ask you, are you noticing the power lines there? Because you know what? We get so used to seeing power lines, power poles that very often you do not see those while you're out looking at things, okay. We've gotten used to that type of visual blight. Three and four are pictures from the valley from different areas. I am on a two- and-a-quarter acre ag lot. You can see what it does look like from a little bit further 14 distance. From the pictures you can see I am not fully above the trees, okay. I did not push the limits of where I could put it. This legislation or this bill that's in front of you does limit the number and density allowed. I do believe that is good, okay. Take a look at picture one or two, how do you think my neighbors would appreciate seeing five or six windmills only 20 feet from the roadway, which under current regulations I could put them within 20 feet of the roadway, okay. Twenty feet of the roadway would only put me 17 feet away from the power lines, probably not a good place to be. There are some concerns if you do not pass this around the safety that we currently have, okay. My windmill is 90 feet off the roadway. I put it there because it made the most sense to me. I was concerned about my neighbors. I'm planning on living there a long time. I wanted to get along with them. So, I put it back off the road a little bit. I do get some very good winds up the valley so I'm compensating for it that way, okay. I also am down the hill a little bit, you can see. So I'm not at the full 50 feet from the roadway by any means. I am the 40-foot or 35-foot tower plus the blade line. A couple of other items there, I...I like the setbacks. I like how it does limit the...the heights. I believe it's reasonable. Yes, if my windmill was another 30 or 40 feet taller, it would be more efficient. There's no doubt about it. But it is not always the money that we're going after. It is looking at the alternatives which I appreciate the council also agrees with. Some of the concerns you've heard: visual blight. You know what? Mr. Furfaro: Excuse me just a second, Patrick. That's your first three minutes. I'll be glad to extend you your second three minutes. Mr. Gegen: I appreciate that, Chair. All right. Visual blight. You have pictures in front of you. I too welcome you any time to come out, take a look at it, and make your own determinations. And by the way, if it's next Tuesday, I'll be putting up my trusses, I'd love the help, so. The noise created is very minimal, often not overheard over the other noises as you've already heard testimony. Danger to birds, I've heard that. These small windmills are not a danger to birds at least in my experience and I think part of that is because they do make just a little bit of a whirring noise and that whirring noise is within 6 feet of where the blades are. I don't see birds flying near it, okay. I've never found a carcass there. My neighbor's cat, where I'm renting, is much better at getting birds than my windmill. There's no doubt about that. A year ago, I became quite famous in the county because they did a little picture of me on the front page-it must have been a very slow day-about my windmill going up. Since that time, I have had well over a thousand people stop by, okay. Some of them get out, want to talk. Some just drop...stop by, pull right into my driveway, roll down their windows. They're trying to hear what it sounds like, okay. I have not heard any complaints .from anybody. I've heard people say, my gosh, I thought it would be louder, that's not as ugly as what I was expecting, okay. So those are the types of things I've heard. The other thing I just want to recognize is HIUC has been very good about allowing interconnection with small systems. They've receive a number of awards lately and HIUC did a very good job coming out and doing this, and I just want to recognize that because they have been very much a partner in that. The flip side of that is guess what? We've been recognized as having some of the most energy being done by the consumer on this island than anywhere else in the...the United States and I think that's because of the lack of renewable resources that we have been provided by KIUC or other entities here on this island. So, the people are taking their...their...you know, money and voting the way they want to. On a lighter side, David Letterman has his top 10 list; I've got my top 5-61ist of things louder than my system. Any teenager playing an MP3. I've got seven kids; I can tell you they're loud. My neighbor's commercial AC compressor. I'm currently living on Papalina Road right across from Medeiros Farm. When...when their compressor unit goes off at night, that wakes me up. My windmill doesn't. It does not wake me 15 up when the wind is blowing because there's enough other noise around the area, I don't hear that compressor. Helicopters flying overhead. I'm working at my property, I can tell you when a helicopter is coming. The cars driving by on Waha Road. When a car drives by it is making more noise more than my windmill. If you would stand right in-between the two, you will hear the cars; I guarantee it, especially if it's raining. There's a little extra noise there. And number two, my neighbor's race car being tuned in his garage almost nightly. Let's take a look at some of those State noise levels, okay? And of course, it was already brought up, the chickens, much louder than that. A few things that create more visual blight for me living in Kalaheo? Anytime I drive to Kapa`a and see that line of cars in front of me, that hurts my eyes, okay. If I may just, Chair, finish the four things I have left. Mr. Furfaro: Actually, I'll give you an opportunity to finish that, but your six minutes went up, so go ahead and finish. Mr. Gegen: All right, thank you very much. Number four, seeing old mills and results...resorts sitting around in disrepair. I mean, seeing those sit out there, that hurts my vision more than anything. Helicopters flying overhead, especially if you're in Na Pali. When I drive from Kalaheo to `Ele`ele, I see the Port Allen stack sitting out there; I would love to see those replaced with windmills. That would be beautiful, okay. And the KIUC transmission lines. Something we've all become used to, something that's there, a necessary evil some people say. I'm glad we are putting some of them underground, but it's...it's more of a blight than the windmill, in my opinion, so. I thank you, Chair, for the extension of the time, so. Mr. Furfaro: Okay, Michael, let me see if there's any questions because I have a few, so. I'm sorry. Mr. Gegen: That's okay. Mr. Furfaro: Michael was before you, Patrick. I apologize. Mr. Gegen: I...I won't take that too hard. He's a nice guy. Mr. Furfaro: Patrick, let me see if there's anyone. Mr. Gegen: Okay. Mr. Furfaro: Anybody have a question? No? Patrick, I have a couple of questions. Mr. Gegen: Yes (inaudible). Mr. Furfaro: At this visual piece that I'm looking at here... Mr. Gegen: Yes, sir. Mr. Furfaro: You said the pole height plus the blades, what is the total. Mr. Gegen; 41 feet. Mr. Furfaro: 41 feet. 16 Mr. Gegen: 41 feet from the base, yes. Mr. Furfaro: To go to your David Letterman top 10 things... Mr. Gegen: Yes, sir. Mr. Furfaro: Let me ask you, does this...this SWECS, any effect on dogs? Mr. Gegen: Have not noticed that. We have a Chihuahua that we've taken there, have not seen any...any adverse behavior or anything like that. I've got a neighbor's dog who runs away once in a while and he doesn't favor coming to my property or anybody else's from what I can tell. Mr. Furfaro: Okay, thank you. Mr. Gegen: Okay. Mr. Furfaro: Thank you very much for the visuals as well. Mr. Gegen: Yup, thank you and that truly is an open invitation. Any time you want to stop by, you have my address. Mr. Furfaro: Thank you. Next speaker, please. Ms. Akiona: Next Dean Liskum followed by Patty Kaliher. Mr. Furfaro: Thank you, Mr. Costa. DEAN LISKUM: Good morning. My name is Dean Liskum. I live in Kalaheo. Mr. Chairman and Councilmembers, there are two very important reasons to encourage the use of wind turbines on Kauai. The first and most obvious is to help put a cap on the ever-escalating cost of power. Replacing just 10% of the current fossil fuel generated power with wind turbines would save KIUC and the owner customers millions of dollars a year. At the same time, wind turbines will enable KIUC to eliminate 10% of the pollution created from those four smoke stacks in `Ele`ele. And it's hard to imagine that there's anything uglier than the smoke that comes out of those smokestacks-talk about blight. The second, perhaps the most important reason to encourage the use of wind turbines on Kauai, is related to the systemic problem of sustainability. Although Kauai is capable of producing more food than the population can consume, it hasn't done so. The reason is sustainable agriculture just isn't profitable. The cost of land, fuel, and fertilizer make agriculture a risky business on Kauai. Think about what'll happen when the...when a barrel of oil once reaches $100 again. Food prices will go up again for two reasons: transportation costs will escalate and the cost...it will cost more for farmers to grow crops because fertilizer costs will also escalate. If Kauai produces more food sustainably, i.e., without the use of fertilizers, farmers will need to supplement their income. The added advantages of locally grown produce will be lower food prices and fresher and more healthy food. The synergy of sustainable agriculture coupled...coupled with the use of renewable energy will go a long way to encourage the development of more agriculture on Kauai. If farmers and prospective farmers know some of their costs will be covered by renewable energy, they will be more inclined to produce more food. Wind turbines can thus aid our community by assisting in placing a cap on energy and food costs. The people of Kauai will be less vulnerable to the fluctuations of fossil fue...of the fossil fuel 17 market and high prices of food from the mainland due to increased shipping costs and the potential interruptions of supply. Thank you for your opportunity...this opportunity to testify. Mr. Furfaro: Dean, let me ask if anybody has a... Is he up to three minutes, yet? Let me ask if anybody has any questions of Dean. Mr. Bynum: Thank you very much. Mr. Furfaro: Okay. I...I have questions. Wait, he just said thank you. Do you live in an area of Kalaheo that might have neighborhood density plans or any protective covenants? Mr. Liskum: No. Mr. Furfaro: When we had talked about earlier, you...you currently have a wind system? Mr. Liskum: No. Mr. Furfaro: Okay, great, thank you. Next speaker. Ms. Akiona: Next Patty Kaliher followed by Elli Ward. PATTY KALIHER: Hello again. I'm Patty Kaliher and Councilmembers and Chair, I appreciate the opportunity. I have a wind generator and I just wanted to make a couple of comments. I understand that the previous hearings there's been comments about visual blight. My...the wind generator is painted sky blue. So, when you look at it with the sky in the background, unless you focus on it, you're not going to see it. And the blades, when spinning, become invisible. The tower is really all that you're seeing and in my case, it's a 30-foot tower, but it's set about 10 feet below the level of the house because it's down the hill from the house, so. There was a letter to the editor in the Garden Island a few weeks ago when someone...I guess they were...I guess letters to the editor were discussing visual blight of windmills and someone commented that they overlooked...their home overlooked Keapana Valley and they could see two beautiful wind turbines. And as you see it spin and hear it hum, and you cheer on the wind, and you think there goes my electric bill, it does become beautiful. And I'm also on Q-metering and the last time I checked with all the surcharges and so on, I was paying about 29/30 cents per kilowatt hour and Kauai Island Utility Cooperative is paying me 9 cents per kilowatt hour. And I'm not...like Gabriel, I'm...I'm doing this for the planet. I mean, you...you're so frustrated with all the global warming stuff, it's like, is there anything I can do? Well, I can buy a hybrid, I can put in a wind generator, and I feel better because I've...I've done that. But the more of us that do this and that's....if this bill encourages people to do it, the more of us who are selling electricity to KIUC for 9 cents a kilowatt, eventually the price is going to have to come down for everybody if there are enough of us out there selling it for this low price. The final thing I...I have, you know, also on visual blight, you might...you might think of the...the middle America landscape, the farm, rural, middle America landscape with all the windmills that the farmers had for the last hundred years. My cousin in Minnesota is still building those windmills. They pump water up from the wells so that when they lose power, they still have water and they're considered a beautiful item in the...in the rural landscape. So I think, you know, it's...it's really an attitudinal thing. But one anecdote from middle America is about a farmer who put up a wind turbine. to... 18 Mr. Furfaro: That's your first three minutes, but I'm going to go ahead and extend you your second three minutes. Ms. Kaliher: Thank you. A farmer in the Midwest, who put up a wind turbine to put...to generate electricity and the neighbor who enjoyed looking and seeing when the wind was blowing and how the wind turbine was going and...and then noticed that it had stopped. And the next time he ran into the me...neighbor in town he said, what's happened with your wind turbine? And the farmer said, had to turn it off, the chickens stopped laying. Now, in my neighborhood that would be a benefit. Thank you. Mr. Furfaro: Good point. Is there any questions of Patty? Go ahead, Mr. Bynum. Mr. Bynum: Patty, thank...thank you for your testimony and, you know, I think it's important for people to understand the difference between net-metering and Schedule Q because net metering...if you were one of that 1% that had it, when you sold the power back...when you had excess power, you'd get the full 30 cents, the cost that you're being charged. But you're getting the 9 cents on the Schedule Q which is what the oil surcharge part is. So, you're getting...all you're getting back, right, is the oil that we did...all didn't have to buy. Ms. Kaliher: Right. Mr. Bynum: But, you know, when you're genera...most of the time when you're generating energy, you're using it in your home. Ms. Kaliher: Right. Mr. Bynum: So that's also- oil and cost at 30 cents. So, you're getting the 30 cents, you know, that you didn't spend, right, when...when you're using it. When you have excess, you're getting back the oil cost that we would have all paid and we're avoiding purchasing that oil, right. Ms. Kaliher: Yeah. Mr. Bynum: And, you know, so I appreciate that your motivation is for the planet, for our sustainability. You know, my wife and I invested in a Prius. We did all the research. I didn't see a return on investment, you know. Now she's driving from `Ele`ele...I mean from Wailua to `Ele`ele averaging 51 miles per gallon. I'm thinking maybe we are getting a cost benefit. But it was the ultra low emissions, the importing less, so our motivations were similar and I think most people that own Prius' don't expect it to have a great payback, but they feel good about putting less pollutants into the atmosphere and burning less oil and importing less. So, thank you very much. Ms. Kaliher: And the county is helping, you know, in that...in that now the permitting process is...is...is much quicker and easier, I think. There were some startup concerns and anything that can be done to...to help people who are motivated in this way is...is a good thing. Mr. Bynum: Thank you very much for your testimony. Mr. Furfaro: Any more questions? Thank you. Thank you for giving up your earlier time. Next speaker? 19 Ms. Akiona: Next speaker is Elli Ward followed by Joseph Thomson. Mr. Furfaro: Thank you. ELLI WARD: Good morning, gentlemen and one lady. My name is Elli Ward. And I will be making statements or quoting statements that I'm sure you've heard before, but I think they're critical enough, they bear repeating. I am in support of the small wind energy Bill 2317 to allow for the construction of small locally-owned renewable energy systems. Our county, our entire state cannot afford to delay the transition. The need to accelerate the process towards this goal grows critical in every community. Two facts that we must all bear in mind are: on any given day, the State of Hawaii only has enough oil to last approximately 14-21 days, and the State spends $7 billion to import 45-50 million barrels of oil a year. Both these factors dictate that we must aggressively pursue alternative energy sources and county government must allow and assist such attempts by individuals and businesses. Concerns regarding aesthetics and noise pollution are understandable. It is difficult to accommodate the wide variety of standards and opinions. After all, we live here because of its beauty and semi-rural character. But the world is changing in ways that are inconceivable to most of us. For example, the wild spikes in the price of oil in one year, the bankruptcies, the foreclosures, the forced mergers of financial institutions, the implosions of institutions like GM and Chrysler, and in our own state the failure of Aloha Airlines, the pineapple and sugar plantations, and for my vegan friends the closing of the popular Blossoming Lotus restaurant. You know, who would have thought, you know, that they...they weren't doing the business that they needed. No...not...now speaking of changes, who would have thought that major cities like Houston, Chicago, Seattle, Portland, Oakland, San Francisco and even New York City would allow residents to raise chickens in their backyards. Imagine how those board or council hearings must have been like, the objections to noise, feathers, disease, filth, and aesthetics or architectural guidelines set for chicken coops. In my own neighborhood, my senses are assaulted daily by roosters, barking dogs, leaf blowers, screeching cars, and motorcycles. In fact when we moved here, we had trouble sleeping and we live...used to live in a major city. We had trouble sleeping at night and were constantly awakened, not just by the roosters, but by the loud talking of our neighbors. I do admit that there are quiet periods in my neighborhood. We are not talking about a 24/7 occurrence. We'll have to rely on the findings by technicians who measure noise levels objectively and can show the impact of wind turbine noise on a neighborhood. I have a copy of an article here that talk...small wind generators and noise. And they talk about, you know, decibel noise, the location of the device... Mr. Furfaro: Excuse me, just one second. That's your three minutes. But I'm going to go ahead and extend you your other three minutes. Ms. Ward: Thank you. Ms. Kawahara: I'd like a copy of that article. Ms. Ward: I will leave this copy. And... Mr. Furfaro: May I...may I suggest that I have someone from the staff pick up that testimony so that all members have it, so. Ms. Ward: And it talks about decibel noise from any...ranging from like vacuum cleaners to jack hammers and jet engine noise, and they do have 20 their ways of measuring, and their conclusion was that noise was not a significant issue when it came to small wind generators. Members of our community are starting the problem-solving process in small steps. We are learning to conserve, recycle, appreciate locally grown produce, and now transition to small renewable energy systems like solar panels and windmills. These are all sensible and valuable solutions to our dependency to oil. We must move forward. We cannot afford to delay any longer. Thank you. Mr. Furfaro: Let's see if there's any questions for you, Elli. Any questions for Elli? If not, thank you very much. Next speaker? Ms. Akiona: Next we'll hear from Joseph Thomson followed by Carl Imparato. JOSEPH THOMSON: Greetings to the Council. For the record my name is Joseph Thomson. I've owned three wind generators and I've operated off of two solar systems. Number one, I wanted to thank you for the unanimous vote for the bill. I've read it. It does make sense. It's going to be nice that there's going to be a possibility if somebody wants to sort of go for a higher tower (inaudible) that they can appeal that process through the planning, which bri...leads me to say the non- . redundant topic of noise and views. My systems that I installed were independent of anything with the power grid. Yeah, in my location there was not even an option. Something you guys might want to be aware of is that for those people who are so far removed from the grid or choose to be so independent, efficiency becomes a more important issue or, you know, how much power you get because the people who are on the...the buy back or the Q-Plan, they obviously have power. I mean if they really need the juice, they just flip a switch and it comes. But if you're out in the country and you don't have that option, then...then the issues of height become important because then you are factoring in an improvement and there is a difference between 30 feet and say 60 feet. Location will obviously warrant a lot. You can put it on top of a hill or in a certain draw or in a certain valley, that's great. So, I would just put forward, you know, somehow maybe trickle that through to the planning department...to be aware of that as an option an...and a consideration because that's the kind of independence that a lot of people, if they could afford it, would do that. I guess that's kind of it. Beyond that, I think I'd be redundant. So, thank you again for you considerations and letting this go forward and have a good day. Mr. Furfaro: Joe, let me see if there's any questions for you. Mr. Thomson: Please. Mr. Asing: Yes, I... Mr. Furfaro: Go ahead, Mr. Chair. Mr. Asing: I have a...excuse me...a question. I take it that you live in an area that power is not accessible? A...am I correct? Mr. Thomson: Yeah, that's correct. When I installed the generators, the wind generators as opposed to mill, it would have cost more to put in the power because it would have been...it would have had to go underground because of the ordinances where I lived, and this isn't on Kauai by the way. Mr. Asing: Oh, you're...you're...you don't live here? 21 Mr. Thomson: Oh no, I live here and I'm actually running on a solar system right now and I am far removed from the...the... Mr. Asing: Okay. Mr. Thomson: ...power grid and if I was to put in power, I'd have to trench it. So, it was, you know, you just look at the basic cost and the realization that yeah, I can live within my means. I will cut back. I will scale back. I will not have two refrigerators, you know, and a high definition TV and stuff like that. That makes a world of difference right there. By way of inference, I had a neighbor where I'm at in Pila`a who on the mauka side of the highway he...they petitioned for a larger tower. I think it was something in the neighborhood of 60/70 feet. What his problem was is he didn't assess his energy needs from the get-go before he set everything up, you know, built the house or what. I mean he was...he was...he's farming and he needed refrigeration to keep his food. So he can take it to market. Mr. Asing: Okay, thank...thank...thank you. I understand it and I...I want to especially thank you because you put a different spin on everything. Mr. Thomson: Right. Mr. Asing: And the different spin is that in your case, what we're talking about is that you do not have power at all. Mr. Thomson: Correct. Mr. Asing: So there's...there's a difference between your particular situation and problem... Mr. Thomson: Correct. Mr. Asing: ...versus...and other individuals because in your case just no power. There's no alternative. What do I do? I don't have any power, you know. So the consideration should be a little different. That...that's what I'm saying. So I want to thank you for... Mr. Thomson: Sure. Mr. Asing: ...your testimony because it is an important part of the bill... Mr. Thomson: Yes. Mr. Asing: ...that should be addressed. So, thank you. Mr. Thomson: And to close on that, where the...say the main difference comes in is you have to spend more in say your battery controllers, your...possibly your... Mr. Furfaro: Joe, let me... Mr. Thomson: ...in...inverters. Mr. Furfaro: Since nobody posed a question, let me give you your other three minutes, so go ahead finish. I'm giving you your other three minutes. 22 Mr. Thomson: Well, I'll finish on this. That there's...and the battery cost. So, instead of just jacking in through a...a...a unit into the power grid, you have to spend more money to be more independent. Thank you. Mr. Bynum: Wai...now you've peaked my interest. Mr. Furfaro: Mr. Bynum, you have the floor now. Mr. Bynum: So, if I understand your testimony correctly, you could have paid the cost to trench in and hook up to the grid, but you chose to go...an off-grid system and you already mentioned requires storage. It also, I think, would require a lifestyle decision as you've mentioned that... Mr. Thomson: Yes. Mr. Bynum: ...to...to keep your energy usage overall to a minimum, right. Mr. Thomson: Correct. Mr. Bynum: So conservation is a big part of your effort. Is that correct? Mr. Thomson: Yeah, it...if you...look at it from the premise of say the normal power that we're all used to, it's shocking how much that really costs in terms of energy use. Having been through alternative systems and living on sailboats where, you know, it's...you really scale down and you're at the mercy of a lot of elements, that sort of conditioned me to go, okay, well I'm not going to be able to do it...to the...you know...the modern conventional way. So, you rethink the process and you really start from what you think you're going to need, sort of map that out, and then you start bringing, you know, your energy alternatives into play, and that would actually be for anybody, just putting in an alternative system. That really is a good sort of frame of mind and something the planning department is probably well aware of, I would think by now. Mr. Bynum: You know and I appreciate those comments. You know, Councilmember Kawakami, you know, made similar comments that, you know, that kind of awareness that you're talking about on conservation is probably where we'll get the biggest bang for the buck and...and this bill's not an answer to the energy problem. It's just one piece of a bigger answer, so thank you very much. Mr. Thomson: That's a necessary piece and thank you all. Mr. Furfaro: Thank you, Joe. Ms. Kawahara: Thank you. Mr. Furfaro: Next speaker? Ms. Akiona: Next speaker will be Carl Imparato followed by Laurel Brier. CARL IMPARATO: Aloha, Councilmembers. My name is Carl Imparato. I think we all agree that there's a right place and a wrong place for just about everything. Supermarkets and auto repair shops are all very important, but they shouldn't be located in residential neighborhoods. And there are ample 23 locations on Kauai that are appropriate for SWECS. But the problem is that this bill would allow wind turbines in too many of the wrong places. I don't think it's right to allow 22-foot tower mounted...tower mounted on the roofs of houses in Lihu`e or Hanama'ulu just a few feet from next door neighbors, but this bill would allow that as roof-mounted devices, no Use Permits required. I don't think it's right to allow people to put noisy wind generator equipment on roofs or on towers near their neighbors if that would create any noise for neighbors, 7 by 24. But this bill would allow that. It refers to DOH noise standards implicitly, 55 decibels...55 decibels. A radio playing in the background is 45 to 50 decibels, background music 50 decibels, dishwasher in the next room 50 decibels, normal conversation 55 to 65 decibels. That's DOH standards. Now, is that acceptable to have...to hear that at 3 a.m.? Is that acceptable to hear that 7 by 24? I don't think so. I offered you supplemental testimony which gave samples of some of the noise problems that small wind turbines can create if they're allowed in the wrong places: sounds like a goddamn UE taking off in your yard; sounds like the propeller of a small airplane, normal, loud and howling; can't sleep when it's windy, it's too annoying. Noise is the number one complaint. If the tower's not sized right, the outcome can be very noisy to neighbors: whomp, whomp, whomp sound, etc., etc. Now, indeed, there are many wind turbines that may not create those problems and maybe the ones that are offered by Kauai Electric don't create those noise problems, but the issue is that the CZO when you amend it would allow any types of wind turbines unless you put in a noise standard that says the neighbors will not have to put up with any perceptible noise. So, it's just not good enough to say, I have a quiet one here, because anybody can build a homegrown one under these rules that you're proposing and put that next door to the poor person living in Lihu`e who's got then to listen to that 7 by 24. So, it's not good enough to say that there will only be few of these, as Gabriela mentioned, because they may be uneconomical. Because the fact is even if one bad one gets built next to your house, there's a problem. And the purpose of the CZO is to protect neighbors from abuses. So, I think once more that we're not talking here that SWECS should not be allowed, but that the bill needs to be refined so that where SWECS are allowed, they will not create any noise impacts on neighbors. I don't see what's wrong if these are such quiet devices with actually saying that the standard is no perceptible noise at the lot line. If there's no percep...if these are quiet enough, then that standard won't eliminate anything but poorly designed ones. Mr. Furfaro: Excuse me, Carl. I'm going to give you your other three minutes. Mr. Imparato: All right, thank you. I'm just about done. I...I think that...let's see. I do also want to mention one more thing, which is the issue of beyond the noise impacts and on neighbors is visual issues. And I think the other thing to keep in mind here is that when we're talking about KIUC's load, the maximum that they could (inaudible) take in on intermittent resources is about 24 megawatts. Twenty-four megawatts is equivalent to 16 of these large 1.5 megawatt turbines that you see, the large turbines. It's equivalent to 16,000 of these small 1.5 kilowatts turbines. So, I think there is a question about what the county wants to encourage in renewable resources. Do we want...do we prefer to encourage 16 large wind turbines or 16,000 small ones, which I...I know beauty is in the eye of the beholder, but I and others also believe that this would be a visual blight. So I think there's a policy question and it does tie to the issue of this Energy Sustainability Plan. So again, I thank you for all your time and attention. Mr. Furfaro: Thank you, Carl. Are there any questions for Carl? Go ahead, Mr. Bynum. 24 Mr. Bynum: Carl, I...thanks for coming and I...I very much appreciate the...your testimony on a number of issues here and, you know, I've spent a lot of time and energy looking at the noise issue and I looked at the materials that you provided and, you know, I...I've already some of those documents in their entirety and, you know, but the...the thing you just said at the .end peaked me, peaked my interest about...you know, HIUC has already said in their view, 1% was what was an appropriate for net-metering and that's a separate discussion and debate, you know, and I assume...and you're correct, they can only accept so much intermittent sources and I'm sure that they will have a...an opinion about that if Schedule Q ever got too high, regardless of the source, whether it was solar or wind or others. But I don't think there's a limit on the amount of energy you don't draw down from HIUC in the first place. The...the a...the vast majority of the benefit for the individual consumer of these alternative systems is the energy that they don't draw down from HIUC. It's not the sell back and say it's Schedule Q of 9 cents. And so, you know, I'm sure those are separate discussions we have to have. What's the appropriate mix o£..of intermittent sources? But I think Senator Hooser wrote a really good article about the democratization of energy, you know, generation and so I just wanted to make that distinction because I...I really enjoy the dialogue that you and I have around all of the issues because I know your comments are always really well thought out and documented. But, you know, I think those are separate issues for my view that what percentage net-metering should take, what's the overall intermittent sources that KIUC can receive from which sources, those are all important discussions, but I don't know that they apply in terms of what people generate on their own and don't draw down. Does that make sense what I'm saying? Mr. Imparato: Okay, but I think I need to clarify. Mr. Furfaro: Excuse me, before you answer. Pua, how much time before camera break? Ms. Akiona: Nine. Mr. Furfaro: Nine minutes? Okay, go right ahead, Carl. Mr. Imparato: I think I need to clarify the last comments then because the issues on the amount that KIUC could take are not related to net- metering or Schedule Q. It's related to operational issues. Utility can only absorb and it...it's aggressive to say can absorb 25% of its peak load with intermittent resources and that's an aggressive number. Beyond that, it needs to bring on other resources for spinning reserve, for frequency regulation, for load following, all of these other operational issues. So when I spoke to the maximum amount that could be absorbed, it was really based on operational aspects of running an electric company. So that's...that's what that issue is. Mr. Bynum: Thank you very much. Mr. Furfaro: Carl, your...your background? Mr. Imparato: I'm an electrical engineer. I worked for a large electric utility for about 25 years. Mr. Furfaro: You said...I just want to summarize this again, HIUC, you said, brings about 24... 25 Mr. Imparato: Well, their...their peak load is somewhere below 80 megawatts. I think it's about 75 megawatts and if you were to say that we wanted to be really aggressive and try to put 30% renewables, excuse me, intermittent.. . Mr. Furfaro: (Inaudible.) That's where you got it, so the... Mr. Imparato: ...that brings you down to 24. Mr. Furfaro: Twenty-four is 33% of the 75. Mr. Imparato: Basically, right. Mr. Furfaro: And in your electrical calculations, that's roughly 16, one-and-a-half... Mr. Imparato: Right, because those big wind turbines are usually between 1 and 2 megawatts. So, say 1.5 megawatts, that leaves you 16, so. Mr. Furfaro: And you...you...you are concurring that the Energy Sustainability Plan that the council has approved and committed to is probably the right piece for us to get policy from as it affects current zoning laws and...and ordinances. Mr. Imparato: I think that there are these two aspects. One, I think based on noise issues, I think that should be...can be done here and now. There should be no noise impact on neighbors. As to the issues of say visual blight or beauty, that I think is an important policy question and, you know, what do we want our island to look like and that does tie to the policy questions that come out of the Energy Sustainability Plan because that will say, well, you know, we could go in one direction focusing on large renewable resources and it would have these visual implications or/and other implications or we could go small or hybrid. So, I think that the policy ramifications associated with the visual issues certainly tie to the plan. Mr. Furfaro: Okay, and from an operational standpoint, say we're able to produce 10% of the island's demand. In the event there is not any wind and so forth, operationally, what does the public utilities commission require KIUC to have in the way of redundancy to support these customers? Mr. Imparato: See, that...that's the issue because for all of the intermittent resources you have...you need to have a certain number... a certain level of standby capacity. Some of it that's just sss...sit...sitting there, you know, idling. Others that's...that's hot, that's really online, that...the...you're operating at say 20 megawatts and you basically have...you have to be able to move it from 19 to 21 and back and forth depending on whether the wind or the sun is in or out. Now the standards differ from state to state and I don't know what Hawai`i's standards are, but typically you'd have to do the analysis to say, well, if I had seven megawatts of intermittent resources, there's some decent probability that it will drop to...on...on...well, just looking at on a...on a longer term basis to zero when on a real calm day. And so I re...we need to make sure I have at least another additional 7 megawatts of conventional resources or energy storage, you know, pump storage units or whatever it may be... Mr. Furfaro: Whatever it is. 26 Mr. Imparato: ...there for those days when it's cloudy or those days when there's no wind. That all...the...the reason the utility can typically absorb 20% given its existing portfolio of resources is because the existing resources do have enough flexibility in them today that's not being used that can be then attributed to supporting the (inaudible). Mr. Furfaro: Okay, so from an operating cost, whatever the redundancy factor is mandated by the utilities commission, that is actually an operating cost that's going to have to be distributed. Mr. Imparato: Right, once you exceed certain .levels and that's why once you get to higher and higher levels of intermittent resources, you can...you...the...the associated cost of backup capacity, energy storage and all become higher and higher, and at that point then what the utility can afford to pay customers under Schedule Q gets lower and lower because now it's not just a question o£..of avoiding fuel costs. It's a question of actually going out and spending capital for extra capacity that's sitting there in reserve. And that's all the stuff that should come out in...in this Energy Sustainability Plan. Mr. Furfaro: No and I...I...I've been to a couple of `em and they...and I'm sure they...they will, but the reality is it's good for the public to understand that those kinds of questions and some recommendations to changes and ordinances and so forth we hope would come out of the Sustainability Plan and people need to know the fact of the matter is if they are mandated to produce some redundancy when these alternatives sources can't be used, there is a cost and they're in the middle of a rate application that could drive maybe two-tiered rate, a two-tiered rate that says if you have wind or alternative energy that's on a Q-Schedule or net, the reality is you still have to pay for the CIP or the Capital Improvement cost in a second rate. category. Mr. Imparato: Correct, correct. Mr. Furfaro: Okay. Lani, did you have a question? Ms. Kawahara: No, no. Mr. Furfaro: Mr. Chair. Mr. Asing: Yes. Carl, in reference to the Energy Sustainable Plan, you seem to feel that the visual impact area. would be included in part of the plan. Am I correct? Mr. Imparato: Well, I'm hoping that if the plan is going to be useful in creating information for you to make policy decisions as to what the island should...the trade-offs that the island has to make for sustainable energy versus other areas, I'm hoping that the plan will speak to those issues. Mr. Asing: Okay. Mr. Imparato: I don't know from the scoping whether it actually will. Mr. Asing: Okay. Now, I...I was a little confused because you felt that and then you felt that the noise level area would not be, and it's a policy question that should be answered here. So, I...it didn't seem like it's reasonable 27 that if you consider the...the visual as part of the plan that would be covered, why wouldn't the noise area be covered also? I would think they would be hand-in-hand. Mr. Imparato: Well, I guess the...the reason I...I look at the two differently, one, I guess, you know, on visual impacts what we want our island to look like. We've heard from a number of people who believe these are beautiful and there were a number of people who believe they're a blight. And when we talk about noise impacts, I haven't heard one person testify that they believe they should be allowed to put a noisy wind turbine that annoys their neighbor. Most of the testimony has been, I have an ag lot and it's...it's far away from my neighbor or I have this quiet one. So, I don't think there's much of a policy question. I hope there's not much of a policy question to answer regarding whether we agree that we shall impose no harm on our neighbors' peace and quiet. So, I don't view...I personally don't view that as a policy question. I view that as sort of the...the...the first commandment: Do no harm to thy neighbor. If people want to view that as a policy question that maybe we need to make trade-offs between sustainability and people hearing noise at 3 a.m., then I suppose you could argue that that goes in the sustainability plan. Mr. Asing: Okay, thank you, appreciate that. Mr. Furfaro: Okay, I'm going to...I'm going to take a 10-minute caption break here, Carl. I don't think we have any more questions of you. Thank you for your testimony. Mr. Imparato: Thank you. There being no objections, the Committee recessed at 11:16 a.m. The Committee reconvened at 11:30 a.m., and proceeded as follows: Mr. Furfaro: The Planning Committee is back in session. There being no objections, the rules were suspended. Mr. Furfaro: We have our next speaker, please. Ms. Akiona: Next will be Laurel Brier followed by Ken Taylor. Mr. Furfaro: Thank you. (BC, Videographer: Check your mike, Jay.) Mr. Furfaro: Check my mike? Here we go. LAUREL BRIER: Hello. I'm Laurel Brier and I'm representing Apollo Kauai this morning and you have our testimony, so I'll just kind of summarize it. But Apollo Kaua`i...our mission, through advocacy and education, is to assist our island in becoming more sustainable through conservation and more socially and environmentally responsible, renewable alternatives to fossil fuel, and we support system changes and public policy that will aid individuals in the community in making choices and taking action to conserve and implement alternative energy, such as solar and water. We did have...we put on...and...and...some of you were there, we put on a wind workshop last August and there was standing room only and there was particular interest from individuals, what could they do because so many people are...you know, we're 28 looking at the big picture and we really appreciate the county's energy plan that they're working on and we don't think that this is in conflict in any way and that we should run parallel. But so many individuals are looking as you hear what they can do, you know, within their own sphere of influence to impact their own carbon footprints and to make changes in that way. And I...and I appreciate this bill...we appreciate this bill that supports that, supports individuals. I think that one of the reasons that we're finding that people don't have solar water power...I mean...I mean solar water heating which is such, you know, an easy thing to do and really helps people cut down on their usage is it's just...it's tedious, the forms and things that people have to fill out for the rebates and the tax...I mean the tax credits. And so to streamline that process whenever we can to make it easier for people to do...to do what is right, and that's what this bill represents. And so I...and...and that we don't want that...we want to continue encouraging people to do that, and we...we like the bill as it is written. I...I don't understand because the...the Health Department's requirements as far as noise are still in place, so I don't see where this is going to open like a can of worms for all kinds of noisy windmills to come in. We still have those...those things in place. And so, we see it is a good bill and we support it and we invite any of you to attend our monthly Apollo meetings and work together with us. Thank you so much. Mr. Furfaro: Laurel, thank you for the testimony. Are you an officer of Apollo? Ms. Brier: I'm one of the four co-chairs, yes. Mr. Furfaro: Okay, could...could I ask you to sign this testimony then so that we know it's more than just the logo. Nobody identified... Ms. Brier: Okay. Mr. Furfaro: ...who... Ms. Brier: Certainly. Mr. Furfaro: ...who is submitting it on behalf of your organization. So, could we pass this on to... Ms. Brier: And it was discussed with our group and it was in agreement with our...with our core organization. We have about 40 active members and then there's about 200 on our... on our.. . Mr. Furfaro: I've been to a couple of your meetings. Ms. Brier: Yes, thank you. Mr. Furfaro: I went to the last August meeting and in particular I went to the hydro meeting. As you know my family has a long history... Ms. Brier: Yes. Mr. Furfaro: ...with Wainiha Powerhouse, so, yeah. Thank you, but we needed to have a name for the testimony, so thank you. Do we have anybody who has questions of Laurel? No? Mr. Bynum: Thank you very much. 29 Ms. Brier: All right, thank you. Mr. Furfaro: Okay, thank you, Laurel. Next speaker? Ms. Akiona: Our next speaker will be Ken Taylor followed by JoAnn Yukimura. Mr. Furfaro: Thank you. KEN TAYLOR: Chair and Members of the Council, my name is Ken Taylor. Although I do have a strong support for alternative energy, I do have some concerns about this bill. Starting on page 2 in the first paragraph below the midsection of the page under Kilowatts, this bill allows up to 100 kilowatts. What we've been hearing today is testimony that people are installing 1.5 kilowatts. If...it seems to me that 100 kilowatts would be enough power to power up to 40/50 homes and I don't think that that kind of overkill is...is needed without a full Class IV Permit. In fact, I really believe that all of these should require a Class IV Building Permit and...and I...I will explain a little bit. The...I don't know what it was like here on Kauai back in the 50s and 60s, but in southern California where I grew up, every house had a TV antenna, a very large TV antenna. It didn't move, but it was a blight on the visual neighborhood and fortunately progress took them out with the in...in...input of cable. But there's not going to be any replacement for windmills once they're up, and especially in smaller neighborhoods or neighborhoods with smaller lots, every household potentially having a windmill, it would have a visual ef...e£..e£..effect. We've heard today that a windmill doesn't make a lot of noise, but what's the cumulative effect of having five windmills per acre in a...in a residential neighborhood as a possibility. Well, five lots in...five...five lots per acre, which is not an unusual number for developments has the potential of having five...five windmills. Anyway... Mr. Bynum: Just to clarify, Ken...you mean, 5 one-acre lots is what... Mr. Taylor: Huh? No. Mr. Bynum: You're saying five separate one-acre lots. Mr. Taylor: No. Five lots per acre. A lot of developments are five and six lots per acre. Mr. Bynum: Well, under this bill, the lot size is a minimum of one acre, so just to clarify. Mr. Taylor: Right here, residential lots R-1 to R-20 when the lot is less than one acre in size. What does that mean? Mr. Furfaro: Okay, excuse me, excuse me. On that note, I'll ask for any questions. When we finish Mr. Taylor's testimony and during the...the time, let's reset Mr.Taylor for an additional three minutes, please. Mr. Bynum: Sorry. Mr. Taylor: Thank you. The other question that I have in...in reference to the height, are we talking about the height to the tip of the blade or the tip of the pole? I think that needs to be addressed. I don't quite understand why we have 10 feet above maximum building height if it's on the building and 20 feet if it's 30 on a pole. I think it...should be...the whole sum should be 10 feet at maximum. The other...the other issue is...is an economic issue for the whole community and if you check...if you check before you move forward with this bill with KIUC, I believe what you'll find is that this...this most recent income numbers for and...and sales of electricity are way, way down compared to the same period last year. And it's down to a point where it's going to create more consideration for increasing the rates and the more and more people that go off-grid create a bigger and bigger problem for the folks that can't afford to get off-grid and I think that this really has to be looked at and this is why I...I really strongly believe that as a community, rather than have little bits and pieces scattered around, we should have and work with the utility company to...to develop the greater systems and so everybody gets treated equal. Now, getting back to the blight issue, again it's not that there's not an alternative. Solar is an alternative to windmills and it certainly can be used and I know a number of people that have them and are very happy with them, and they don't blight on the neighborhood as much as a series of windmills would be, so. Thank you for the opportunity to testify on this item today. Thank you. Mr. Furfaro: Mister...Mr. Taylor, I do want to say, during the time that Mr. Imparato was here that was the question I was raising, my concern without this master plan. People may not be realizing as we have people and encourage people to find alternative uses, the reality is we also have to be aware of the operating constraints that as you lose customer base you still have to spread out the same operating cost unless you have alternatives to that, as well as continue to input capital to maintain a facility's base. So that discussion did come out at that time. Councilwoman, you have a question for Mr. Taylor? Ms. Kawahara: No. (Inaudible.) Mr. Furfaro: Okay, well we'll get into discussion if your question is for me at a later point. Any questions for Mr. Taylor? Mr. Bynum. Mr. Bynum: Just a comment. Just to answer your question. The height is clearly defined as to the tip of-the blade and the...this bill would allow tower-mounted on a...you have to have a minimum lot size of one acre for atower- mounted SWEC. Just clarification, that's all. Mr. Furfaro: Okay, you want to repeat that one more time because I see some members in the audience that... Mr. Bynum: My...Mr. Taylor questioned how the height was measured and the height is measured to the tip of the blade. So the entire height, pole and to the very highest physical point. And this bill...this bill's really intended to say what parameters do you need that it's just...it's permitted? You can go beyond those parameters, but then you have to get a Use Permit. So...and under this bill, a tow...any tower-mounted on any zoning would have to have a lot size minimum of one acre. Now, you know, other people testified and said, well, I should be able to put a tower on even if I'm less than an acre. Then that would require a Use Permit and a review by the planning department, so. Mr. Taylor: Can I...just raise one more question, please? Mr. Furfaro: No, Mr. Taylor, let me check how much time he has left? None, okay. I'll go ahead and give you one question. Mr. Taylor: Right, on page 5, again below the middle of the page, item f where you require that the applicant proposing to construct one of these 31 (inaudible)...shall notify and you have all this list of government agencies. I really believe in all fairness that the neighbors within 500 feet of this residence should also be notified. Mr. Furfaro: Thank you. Next speaker? Ms. Akiona: Our next and last registered speaker is JoAnn Yukimura. JOANN YUHIMURA: Chair Furfaro, Chair Asing, Members of the Council, good morning. JoAnn Yukimura for the record. I'm not here to make comments on the details and workability of Bill 2317. You've received a lot of well- informed and knowledgeable comments on that already. I want to speak as co- sponsor of the Energy Sustainability Plan. I would really hate to see this proposed bill deferred until the plan is finalized because I don't anticipate that the plan will produce ordinances or guidelines of any specificity for ordinances. I think it will probably say something like develop laws that will facilitate and streamline the permitting process for renewable energy projects because that is what is needed as you can see from the fact that windmill applicants are being sent to the water department right now, you know, and...and that we...these renewable energy projects are...are of a different character than we're used to in the past. And so now as we move into an energy sustainability world where these projects are coming up, we need to adjust our laws to look at the issues that they raise and not necessarily just permit them but as this bill does, try to regulate appropriately what you want to permit and under what conditions. And I...I think we can be doing it, as Laurel Brier said, parallel because time is of the essence and Elli Wa...Ward eloquently detailed the urgency of getting off of oil. A year ago, gas was almost $5 a gallon and electric bills were skyrocketing. We got a reprieve, but gas is going up again and we're...we're going to be back in that corner again. So, we can't delay trying to get off of oil and we...we are already late in doing the plan. So, I don't think we should use a late plan to further delay laws that would appropriate...appropriately facilitate renewable energy projects. This bill would be one very small step toward getting off of oil and... and should... shouldn't be delayed, in my opinion. Mr. Furfaro: Thank you. Any questions of JoAnn? JoAnn, if not, I...I do have one for you. Ms. Yukimura: Sure. Mr. Furfaro: I believe you and I were together when we met with the winners of the Energy Sustainability Plan in Conference Rooms A and B over in the Moikeha Building. Ms. Yukimura: Yes, in fact, we are both sitting on an advisory committee, yeah. Mr. Furfaro: And...and I have made it very clear to them that on specific short-term projects I would like to see them make some recommendations so that we could move towards ordinances. And I think you know my sensitivity there, you know. Grandpa Gomes, you know, he sat on the council when we passed the height ordinance. He also was very instrumental in confining any resort zoning on Hanalei Bay, you know, those types of things. But yet we have in our community plans, North Shore included, some restrictions that are in place right now and I think we just need to have the public feedback when we go out to these various communities in the five different districts and...and hear from them, you know. I mean are there concerns when it comes to the mountains at Namahana and, you 32 know, ITihimanu, and...and these other visual aids that contribute to the sense of place. And...and I thought I made a very good point with...with our contracted energy planners. Ms. Yukimura: Well, I would like to have some specificity. I actually have been disappointed by the generality of the early drafts I've seen and the lack of hard data. I hopefully...hopefully that will be...that will change based on our input, but...and...and certainly I appreciate your concerns about how the beauty of this island is going to be affected. I think there's a general concern about that and that kind of concern can be inputted right now. In fact, it's...it's more productively inputted when you have this kind of sp...specifics. You know otherwise, it just becomes, yeah, we have to protect the beauty of our island. Mr. Furfaro: Oh, wait a minute, JoAnn, let's be very honest. Right now the bill says, there's no permitting process. I think Mr. Taylor came up and said he would feel comfortable about a Class IV Permit. I mean, there is no condition for that and I want to make sure I'm not driving this from the standpoint of the visual issue. I'm driving this for somebody who used to write a check every month for a quarter of a million dollar electric bill. Ms. Yukimura: Yes. Mr. Furfaro: I'm somebody who sees the $7 million electric bill for the County of Kauai. We need to look at these (inaudible), but when you go out to districts out in Halele`a and you have something presented to the people and you know, this is the trade-off. This is the trade-off, energy for some of these other things that they hold very dear, very dear to their sense of place. I feel comfortable to have that kind of feedback. But, I'm just breaching that as it comes to waiting or not waiting, stakeholders' comments or not. I think it's im...it's an important part of this. Ms. Yukimura: Chair Furfaro, I think your idea of getting input would be good. In fact, you might want to take this bill on the road and do that. The...the...the thing about a Class IV Permit is that it will be required. I me...I mean this one as I understand is dealing only with very small wind. It will be required for larger wind projects as I understand it, either a Use Permit or a Class IV Permit, either one requires a public hearing. And that's the kind of gradations we're going to have or discriminations we'll have to make in the permitting process. You let small low-impact stuff be a permitted use under very specific conditions, but the more impactful things you re...you require Class IV or a Use Permit and a public hearing. Mr. Furfaro: So I...I just want to make for the record... Ms. Yukimura: Mm-hm. Mr. Furfaro: ...you feel that there are enough controls in this bill that you're satisfied that if issues come up within the communities dealing with some of the issues we've just been discussing, you feel comfortable enough that the bill should move on? Ms. Yukimura: Well I think that... Mr. Furfaro: That's my question to you, JoAnn. 33 Ms. Yukimura: Yes, okay, yes, I...we11...I think you need to...you're the decision makers on the specific details of the bill and you need to weigh those things about view and noise and so forth, but I don't think the plan... Mr. Furfaro: .That's why I posed the question to you because... Ms. Yukimura: And I'm answering it, if I may. Mr. Furfaro: ...I...I honor your comments... Ms. Yukimura: Yes, thank you. Mr. Furfaro: ...because you have made a lot of contributions to this community. Ms. Yukimura: Thank you. Mr. Furfaro: So, you are part of the decision process as well. Ms. Yukimura: Right and if I may just finish my answer... Mr. Furfaro: Yes and I apologize if I interrupted you. Ms. Yukimura: The...sorry, I lost my train of thought now, but. Oh, y...yes, it...the...this kind of weighing and the issues you have raised need to be part of this discussion. I don't think the plan is going to clarify those issues for this particular bill. It's not going to get that specific. And that...and so if you wait for it, it'll say something more general like you need to streamline the permit process and then you're going to have a bill like this introduced and then you're going to then deal with all those issues you have to deal with. And all it does is delay your doing what has to be done. And...and that's why I'm saying, please, go with it, go at it, grapple with all these issues now, but don't use the plan because I don't think it's going to bring any more clarity or direction for this particular bill, which is very small wind, you know. And that's... Mr. Furfaro: Well, thank...thank you for your testimony... Ms. Yukimura: I just...I just want to share my opinion. Mr. Furfaro: ...and if we don't get anything more specific, I sat right here and said then, you know, we didn't get what we needed to get out of a contracted bill. Ms. Yukimura: Well... Mr. Furfaro: I mean, there are... Ms. Yukimura: I think there are larger issues that hopefully the bill... Mr. Furfaro: There...there are... Ms. Yukimura: ...the plan will address. Mr. Furfaro: There are opportunities when they take that show on the road and get feedback, so. But thank you very much for your comments and 34 I appreciate your view as that...and it is very sub...it's not objective, it's kind of subjective here and, you know, it's like taking a risk. But that...there could be some lack of enforcement eventually too, but we clearly need some general guidelines. Ms. Yukimura: Well enforcement is a whole other issue... Mr. Furfaro: Yeah, I... Ms. Yukimura: ...but I don't think that's going to be solved by the plan. Mr. Furfaro: No, I...I don't, I don't think so, but you know what? Ms. Yukimura: Yeah. Mr. Furfaro: The rules are going to be defined, you know. I would he1p...I would hope they would say something about how they feel, what is the trade-off, you know. And...and let's leave it at that, JoAnn, for now. I'd love to have a coffee with you and talk about that some more. Ms. Yukimura: Okay, I...I...I think they... Mr. Furfaro: Because we need these... Ms. Yukimura: They'll talk about the trade-off, but they won't get that specific about how you make the trade-off and if you look at the Hawaii Plan, they didn't have that kind of specificity. Mr. Furfaro: I...I think you know I went to the Big Island to look at the planning. Ms. Yukimura: Yes, I know. Mr. Furfaro: You and I are going a bit too far on this. Ms. Yukimura: Okay, I'll stop. Mr. Furfaro: The fact of the matter is I would have liked at least to see some recommendations from them. I think we paid for that. So, let's leave...let's end it at that. Ms. Yukimura: Okay, all right, all right. Mr. Furfaro: Are there any more questions? Ms. Yukimura: Thank you. Mr. Furfaro: Thank you very much and thank you for all you've done on the sustainability plan. Ms. Yukimura: Well, you've been a partner, a very wonderful partner. Thank you. Mr. Furfaro: Next speaker? Ms. Akiona: That's all we have registered. 35 Mr. Furfaro: Okay, do we have anybody who spoke the first time that would like to speak a second time? Mr. Bynum: First time. Mr. Furfaro: Or do we have anybody who didn't sign up and wants to speak a first time. Mr. Mickens, please, I'm sorry your hand was behind the camera. GLENN MICKENS: Thank you, Jaya For the record, Glenn Mickens. We've heard some great testimony here today. I've...I really appreciate all these people's ideas. I don't think anybody has any doubt that we do need alternative energy. I particularly appreciated Carl's testimony. It's like a...I think he's an expert in what he's talking about. It's like listening to Ted Williams talk about hitting; I love that. And I really appreciate what Carl had to say. The two biggest things I think he said, which have to be looked at, the blight and the audio of these things. And I don't disagree that I think a...a Class IV Permit should be a part of the bill. I'm not sure that it is. I haven't read the bill. But I think a Class IV Permit should be a part of it. So on an individual basis, if somebody wants to erect something, it has to pass certain things. And, Jay, you were talking about the enforcement mechanism-maybe JoAnn was-I think that anything that's put in place you have to look at the enforcement mechanism because without enforcement everything you do is practically worthless. You can pass all the laws in the world, but unless you have an enforcement mechanism, I don't think it'll happen. But anyway, I...I really appreciate the testimony I've heard today and again, I don't think anybody disagrees that we have to...we have to do something to get off this oil kick and get into energy. Hydropower, I haven't heard anybody talk about hydropower and I...I think that could be, you know, Jay, I've heard you talk about it before. It think it's a great alternative, but I've never heard anything. Voltaic, I think that's a...a great system also. But I have no problem with wind or any other alternate energy. Thank you, Jay. Mr. Furfaro: Yeah, we...let's see if we have any questions. And I do want to say that there is the bli...the blight and the audio issue, you know, the aesthetics, it's only a sma...I'm also concerned, which you didn't mention (inaudible), is how do we pass on the cost of the utility company who has to re...maintain a plant and yet at the same time they may want to have two rate levels for people that contribute to the facility improvements going forward while at the same time take credits for using and doing the right thing with alternative energy. If not, those that don't have new rate increases may actually be contributing to facility improvements going forward. I think that's a big part too. Mr. Mickens: I agree. Mr. Furfaro: And I also have to say you first have to have rules before you can enforce them. Mr. Mickens: Yes, that's true. Mr. Furfaro: If not...it's just subjective and not objective. You can report to the...refer to the rules... Mr. Mickens: Yes. Mr. Furfaro: ...that need to be enforced. Then actually doing it is a...a whole different scope (inaudible). 36 Mr. Mickens: Well, like you say too the enforcement of those rules...you put it in there, but you're going to have to have some...somebody or someplace that's going to enforce them, right? Mr. Furfaro: Yes. Mr. Mickens: Thank you, Jay. Mr. Furfaro: Manpower. Thank you. Any other individuals that wanted to speak for the first time. Anybody want to speak the second? Okay, we have circulated a piece of correspondence from the administration via the planning director asking for some additional recommendations to Bill 2290 regarding wind energy conversions, and they're asking for an amendment to be considered. But at the same time I would like to circulate that and there are other amendments that have not been prepared, but I think people do plan to circulate them. So, I would like to call the meeting back to order and see if we can defer this bill for another two weeks. There being no one else wishing to testify, the meeting was called back to order, and proceeded as follows: Mr. Bynum: I thought we would...I have am...amendments prepared and so if there are other things we need to do, I am not opposed to a deferral, but I thought we'd work on it today some too, not... We already had a public hearing, so if we just... Mr. Furfaro: Okay, would you like to circulate those versus actually introduce them? Mr. Bynum: I was hoping we would have some discussion because I'm interested in what my colleagues' take is on this. (Gallery: Can't hear you.) Mr. Bynum: I'm interested in what colleagues' take is on this bill. I'm...I'd like to share my take and... Mr. Furfaro: So, let me...let me just give...let me...let me just give you the floor. Mr. Bynum: Okay, that'll work for me. I've been working on this issue for some time because constituents had concerns that they didn't know how to do what is largely being asked of them by...from the President of the United States on down, and we go to a lot of energy meetings and talk about the sense of urgency that we need to have about renewable energy and when citizens took that in their own hands, they felt like they ran into obstacles. So I thought it was time for us to have a dialogue to begin to say address the issues that we talked about today. What is the balance between encouraging and allowing citizens participation in alternative energy? As we all know a number of large companies on Kauai have put large energy systems online or alternative energy systems online and I think we all applaud that and those efforts. You know, that's the Marriott with cogeneration, Pioneer Seed with photovoltaic, Wilcox Hospital with photovoltaic and they've expressed that on that same print...footprint they'd like to consider wind because wind is, you know, has some advantages and some disadvantages. And one of the advantages is it's not, you know, it can work at night. And so...and if you're using a footprint for solar, you may be able to use it. So, I don't want to get into a lot of 37 technical things, but I think my energy at first was to respond to my constituents who said, you know, show...tell us what the parameters are. Le...it's...we're all...long overdue to have this discussion. So, I worked on a draft bill with staff help. James Itamura, who was here on staff, helped. We had a small committee, we worked, including KIUC and other people. I sent that draft to...was introduced here, sent that draft to the planning department. And the planning department did, I think, an outstanding job and I'd like to recognize Ka`aina Hull who was the planner who was assigned to this. And it's been...so this has been part of the public process. It's been at planning. I've said recently that our staff around here is really crack. This is the, you know, the...one of the files that they put together on this and it has all of the staff report from the planning department, all of the .public testimony that occurred at the planning commission, and the planning department made many changes to the draft bill that I sent over there because they're planners. They have to deal with this and their job is to...to strike that balance plus they went through this public process and based on the public input that they got. And we saw a spectrum of that input here today from people who feel that the bill that we're considering is too restrictive and should be more liberal and allow greater use, higher limits, higher...and people who are concerned that it's too...too liberal or it allows too much. So, that's the balance that we're trying to seek. I...when I read the...when I read the bill as it came and the staff report, there's a rationale for all of the choices they made and so just real briefly, I'd say that this bill...the intention is to say and give guidance to the planning department about what are the parameters that we should set where we just want to allow these things to happen, like we do other things in our society. You know, there's parameters if you want to put in an...an air conditioning system. There's parameters if you want to put in a building. That you don't have to go to a special hearing and get a Class IV Zoning and hire an attorney and...and go through all of those processes. And so that's the whole point of our comprehensive zoning ordinance. Small wind systems are something that we haven't addressed as of yet and now we're in that process of addressing it. The planning department said, hey, we, you know...some of the testimony was, and you heard it, some of it today. Well if I...I should be able to go 130 feet, that's where the wind's more effective, right? You know, why are you limiting me to that? They looked at that issue and said, you know, practically you need to get above the surrounding buildings in order to catch the wind and we have a util...we have a variance already for utilities that allows a 20-foot variance above the building heights, and that seemed like a rational and a...and a good balance and that's what this bill says. There was the question about...you know some people testified, well, I'm getting a building permit and its...this tower's engineered, why do I have to put it so far away from the property line? And so that's one element of it. The other element said, well, no matter how well it's engineered, it has the potential to impact my neighbor and so this bill says it has to be 1.1 times the total height, which means, as we heard today, if it falls down, which is unlikely, it's not going to touch my neighbor's property. That also helped address some of the concerns about the noise impact because it would be that far away at least from the... So the purpose of this bill is to say where is this permitted where you can just go in and get a building permit. That doesn't mean it's not reviewed. It has to be engineered properly, it gets reviewed by public works and engineering, it gets sent to the Health Department to make sure that it fits noise standards just like any other utility that you might put. And then what are... Mr. Furfaro: (Inaudible.) Excuse me, Mr. Bynum. Mr. Bynum: Yes, sir. 38 Mr. Furfaro: Will you be planning to introduce... (BC, Videographer: Mike.) Mr. Bynum: Yes. Mr. Furfaro: Will you be planning to introduce an amendment? Mr. Bynum: Yes. Mr. Furfaro: So if we're talking about the merits of the bill and so forth, maybe that should occur after you introduce your amendment because I'm not planning to let others kind of stray away from the amendment portion first, so. Mr. Bynum: I thought we were in discussion about the bill right now. Mr. Furfaro: I thought we were entertaining amendments. Mr. Bynum: Oh, I wanted to comment on all of the testimony I've heard. Mr. Furfaro: Well you...you will...you will get that chance as all of us will after we find out if we have an amended bill or not. That was my thinking, so. Mr. Bynum: Well, perhaps I could move to introduce the bill because we need to do that before amendments. Mr. Furfaro: That's correct. Mr. Bynum moved to approve Bill No. 2317, seconded by Ms. Kawahara. Mr. Furfaro: Are there any amendments? Mr. Bynum: Yes. Mr. Furfaro: Okay. Mr. Bynum: And if I can just ask prior to that, we had...at what point in this dialogue and discussion can we address noise, heights and the things... Mr. Furfaro: You know, there might be some amendments that address that since I haven't seen it yet. But the reality is we can do that after we know there's no more amendments and see where the amendments fall. I still haven't changed my position on asking for a deferral, especially since I got this information from the mayor's office and the planning department. But go right ahead. Mr. Bynum: Well, I was a...so first of all, I have an amendment. It's about an aspect of the bill that we haven't really discussed here today, but I think staff has prepared that and the...in terms of the correspondence we received from the administration, Iasked that we prepare that amendment as well because it's kind of a...kind of an oversight in what... 39 Mr. Furfaro: Mr. Bynum, I...I don't know, maybe you can pull your mike a little closer or something. Mr. Bynum: Yes. So if staff has the first amendment, you want me to address that? Mr. Furfaro: You may, yes. Mr. Bynum: Okay, as I said, one of the provisions of this bill overrides restrictive covenants. It basically says that in neighborhoods where there are...or private communities that have their own boards and their own parameters for that...for their neighborhoods that this bill would override that restriction. I have a couple of issues with that personally. One is that I believe people move into those kind of neighborhoods with full awareness and knowledge of the parameters of the covenants that they do...that they have. They sign them off and then I think...my impression is that most people that live in those neighborhoods want there to be those community standards which are kind of over and above the county standards and so I am offering an amendment that would...for that restriction to not apply in resort and residential zoning. So those neighborhoods, as like Princeville or others that say, hey, we have our own set of CC&Rs, I don't...I'm not seeking that those be overridden, so. And... Mr. Furfaro: So there are several communities that have CC&Rs, Grove Farm, Po`ipu... Mr. Bynum: Right. Mr. Furfaro: And so you're...you're suggesting that the covenants portion that was in the bill from the planning department... Mr. Bynum: Yes. Mr. Furfaro: ...be amended to be removed. Mr. Bynum: No, it'd be amended to not apply in resort and residential zoning, and I'll explain that because... Mr. Furfaro: Go right ahead. Mr. Bynum: ...on other lands like general commercial or...there's unlikely to be those restrictions. The other place those restrictions exist are on ag land. And under state law, when power systems and wind energy systems have been a permitted and, you know, they're listed in state law as a permitted use on agricultural lands, and so I don't...I do want those restrictive covenants to not be in play on agricultural lands. So, the best way that I know how to do that is to say leave the provision in, but say it does not apply to resort and R...R...R and R zoning, but it would still apply on agricultural land. And we've had issues with that where, you know...I mean, we...we know that many agricultural subdivisions are not really about agriculture; they're resident...large lot residential and people who want to be engaged in agricultural activities should be allowed to do that. So, my amendment would limit that restriction or...or have it not apply in resort and residential. And I...did staff pass this out or? (Inaudible.) Mr. Bynum: I'm sorry. 40 Mr. Asing: Can I ask a question? I'm not a committee member. Mr. Furfaro: May I yield the fl...let me yield floor while you look at your amendment for (inaudible). (BC, Videographer: Check your mike, Jay.) Mr. Bynum: Yeah, staff has. Mr. Asing: Yeah, I... Mr. Bynum:. Absolutely. Mr. Asing: The question that...that I have is since we're making reference to covenants, is...is it a legal question that needs to be answered by the legal department? I...I don't know and I'm asking the question. Mr. Furfaro: I...I plan to ask that question. I plan to ask that question. Mr. Asing: Oh, okay, okay. Then I...I won't... Mr. Bynum: Right. Mr. Asing: ...fine...I won't proceed. Mr. Furfaro: Point well taken. Mr. Bynum: I concur. I mean we're...we're addressing a bill that came to us from planning. I don't know if they addressed those legal questions while it was in the planning process and that was my second reason for being somewhat uncomfortable is...with this issue. I believe there is state law related to agriculture and I would also be seeking the guidance of the county attorney's office. Mr. Furfaro: So do you want to introduce this amendment or do you want to send it to the attorney's office? Mr. Bynum: I would...I mean I thought we would introduce it and... Mr. Furfaro: Okay. Mr. Bynum: It doesn't mean we have to vote on it, maybe get it on the public record. Mr. Furfaro: (Inaudible.) I would rather we circulate it rather than introduce it, though. Mr. Bynum: Okay. Mr. Furfaro: ...for that specific reason. Mr. Bynum: As the chair of this committee, I would defer to your judgment about that. The other amendment that I would suggest that we do perhaps act on today is the one that came from the administration as really an 41 oversight and I don't know if staff has prepared that amendment. Okay, so they haven't prepared that amendment, but we do have it in writing and it basically, you know...do you want to wait on that, Mr. Chair? Mr. Furfaro: I...I...I would because I have questions for the planning department just as it relates to that, so. Mr. Bynum: And so for myself, the amendment that's coming from the administration, Ithink, is technical in nature as an oversight and it doesn't change the overall parameters of the bill. And this amendment, however, is the one that I would introduce and other than that I'm...I think the planning department's done a really good job at striking that balance that we talked about earlier as demonstrated through its unanimous approval by the planning commission. And also...but I would like to talk about some of the issues that came up here today in dialogue when you feel that's an appropriate time. Mr. Furfaro: Okay. So you are in agreement that the question regarding protective covenants CC&Rs and so forth will be sent over...is being circulated but will be sent over to the attorney's office for review and comment. Mr. Bynum: Absolutely. Mr. Furfaro: So...so, we'll go ahead and prepare that question for the county attorney's office and circulate Mr. Bynum's floor amendment or that's being introduced. Okay, may I give the floor to Mr. Chang for a moment? Mr. Bynum: Absolutely. Mr. Furfaro: Mr. Chang. Mr. Chang: You know I'm an...non-voting here...here... committee member, but I...I just wanted to get something clarified. You used the Princeville Association, the community as an example. Mr. Bynum: Just as an example. Mr. Chang: Okay, just an example. So, as an example, were you saying that you would give the association the...the leeway to determine within that association who can... Mr. Bynum: Well, I'm not familiar with the...the covenants in every organization, but if we wanted to use that example, you know, there...I don't...it's that in our society we have these private neighborhoods. People move into them. When you have...when you buy a home in those areas, you get...you sign a deed. You sign an agreement, yes, I understand that there's these covenants, I agree to abide by them. Princeville's a...a particularly large community and they have, you know, an executive director and a staff, and so many things that if you wanted to do in Princeville you have to meet the county's requirements, but you also have to have a review by the neighborhood association. You know, I know in Princeville in the past there were, I believe, and if I get this wrong I'm sure I'll get corrected, but there were restrictions on solar and they chose as a community to lift those restrictions and set their own parameters by which solar would be allowed. And so, you know, these are common things in our society. There are some issues where the public policy need is so great that government may choose to override them. For my...in my judgment and resort and residential, this doesn't meet that standard that I would want to interfere or, you know, pass a law that says, no, you 42 cannot have a neighborhood association that sets parameters that are greater than the county ones. Did I answer your question? And so that was just my judgment. That's why I offered this amendment. The only reason I'm not saying let's take the whole section out is I think it's...that safeguard is important to be there on agricultural lands in particular because...and I think...because I think people need to be allowed to do agricultural use and wind power systems and...for pumping or electricity are part of what is, for many years, I believe, in state law, permitted. Mr. Chang: Thank you. Mr. Furfaro: And I'll just say...I mean that's...no matter where the CC&Rs are at, that's why they need to be rew...reviewed by the county attorney because they are actually recorded in the deeds, those that have them, and the deed also reflects that the fact that you probably need a percentage, a very high percentage of those deeded owners to remove something from the CC&Rs. So that's why it needs to go over to the county attorney's office. Okay. Mr. Bynum: So, that's... Mr. Furfaro: The floor's yours. We have no amen...amendments introduced. Mr. Bynum: Okay. Mr. Furfaro: We have what you put on the table being circulated. Mr. Bynum: Well, I'm hopeful that we would address these legal questions, have a vote on this amendment. You know, we're in committee now so I thought if there were other amendments that we would see them today because, you know, we've been through the public process and we have plenty of notice. So, I do want to address the concerns about noise from my perspective and if I could just make some comments about that. Mr. Furfaro: I'11...I'll grant you some time to make some comments about the audio issues. Mr. Bynum: So the...you know, most of the testimony here was about visual blight and/or noise. Visual blight, I've already stated, I think that the balance that we've sought in this is good and I stand by the testimony of the people that were here today. In terms of noise, that's obviously a concern. It's a concern about lots of things and we have lots of utilities that people put in their homes that make...potentially make noise. And we have already established state standards about that and in this bill, you still, with a building permit, you would have to get that permit reviewed by the Department of Health. And if for any reason the system made too much noise, there's a way to deal with that. And so...but, you know, we have air conditioning is the most common utility that someone would put in their property. And it may be feet from the property line and it is...generates noise. Noise is a very interesting thing. I've read volumes on this issue and some of the citizens here addressed it about when does noise become a nuisance and it's usually when it goes beyond and above the background noise, right. And so we have established...and so I'm saying...and I wanted to see if there was a difference between mister...what Mr. Imparato has suggested as imperceptible which is like no noise at all. Well, I think if we applied that standard to dozens of other utilities like air conditioning or...or an air compressor or, you know, automotive tools or conversation, you couldn't permit anything. We'd have to say no, you can't do 43 anything. This is a utility that may generate noise and we have standards set for it. Why would we set up a standard different for this utility than every other utility that is out there because I believe the current standards are sufficient. We've had testimony that these windmills make less noise than many of the other things that occur in homes. It's being mitigated by the setback rules and so I...I feel pretty good with that...with that rationalization or that...rationalization...that rationale and feel that those are...are acceptable. It's also a legal issue that if the county was going to apply noise standards for this one utility, I have...would have lots of questions about our authority to do that, how we would do enforcement, you know, and I...so I believe...many states have no standards at all, I've learned, and then we could get into more lengthy discussion about, you know, but I think Ms. Taylor who has a wind system says she basically doesn't perceive it because of the background noise. It's no question that when the wind is blowing really strong, they're going to make more audible sounds than when the wind isn't. But there will be...the background noise will also increase from the wind blowing across your building and trees and shrubs and so I've read volumes about this and I don't think it's a significant issue that would preclude us from moving forward with this. So, thank you very much, Mr. Chair. Mr. Furfaro: Councilwoman Kawahara. (BC, Videographer: Check your mike, Jay.) Mr. Furfaro: Sorry about that. Councilwoman Kawahara, I think we have some understanding here that on the CC&Rs, we do need a legal opinion before we would actually vote on anything here. That's going to go over to the county attorney's office, so. I think we are on a track towards a...a deferral. Do you have anything to add as a committee member? Ms. Kawahara: Just comments that were made in relation to the HIUC, Chair Furfaro. Mr. Furfaro: My comments? Ms. Kawahara: Yes, yes and... Mr. Furfaro: Oh, sure, you want... Ms. Kawahara: The...the rate structures. Mr. Furfaro: Sure. I...I believe and this...this is one of the reasons I'm very concerned about this that the consequences of this decision are yet to be seen going forward. The public utilities commission, and I'm sorry Mr. Imparato didn't understand the law in Hawaii, but he did concur that all states have this mandate about redundancy. And so my concern is that those of us that are not participating in some of these renewables, because despite what everybody says, renewables will be more expensive, it is going to be the cost of doing the right thing for the environment, you will need to maintain a certain redundant level or backup system. As you take people off the grid, like the hospital, like the reductions that I had at the Outrigger with cogeneration, the reality is the utility company then loses its revenue base, a percentage of it, but its operating cost, its R&M (repair and maintenance), capital improvements and so forth are still there. So, subsequently, I would...wanted to hear from KIUC if they are going to have an application that actually has two rate schedules. One set of schedules that are saying when you actually are on the system, you will have this rate schedule because there isn't any wind or its been...you know, you haven't had the solar 44 results that you would hope. When they do connect you to the system, they charge you a rate that was previously approved by the utility commission so that you are contributing to the overall. And then on the others and those that have not moved this quickly and maybe only have solar or are on a small enough lot that they can't find other alternatives, they get a rate that is set because they are consistently drawing on the power, and built into that rate is the R&M for the operation. So, I...we have not heard from KIUC here, at least I haven't. Maybe some of you individually have, but I'm wondering if they are looking at this differential rate that...that addresses as people get weaned from the system, they still contribute their fair share to the infrastructure. Ms. Kawahara: So, I thank you for that. My question was is that a policy decision that comes from the council or is that a policy decision that's done at KIUC and whether or not that's something that we...we get involved with as a council, a policy decision. Mr. Furfaro: Yeah, I think...I think we all know that the council does not get involved in it, but what I'm saying is with the fact that as we approve alternatives and we have some understanding in our Energy Sustainability Plan, I would hope they would give us some recommendations. One of those recommendations, let's say when Kauai Island Utility Coop does go in for a rate increase, which they're doing now, there is discussion about, you know, atwo-tiered rate system. You know, that's something that we need to be thinking of. If not, those that have the ability to deviate from the system but yet still need the system at peak demand, and peak demand isn't when the wind going...is going. Peak demand is when everybody is pau Nana and you come home to take a shower and, you know, you cook dinner and so forth. That's peak demand. When everybody gets up in the morning and...and gets the kids off to school and so forth. Those are the peak demands. Regardless of what's happening with the wind and the sun. They may have to...they may have to really consider that. Ms. Kawahara: Right, as a...as a...as a utility company. Mr. Furfaro: As a utility company. Ms. Kawahara: Right. And then the individual, I guess, as they build their own...KIUC builds their own policy on this type of energy, then it would become the individual's decisions with that knowledge of KIUC's policies, about what they were going to use, if they were going to take advantage o£..of other alternative energies. So, I'm just...my concern was that we were going to wait to hear for something about policies that we don't...we don't drive, that we don't do, and then also wait because, you know, the individuals are actually going to make their own decisions on whether or not to participate in alternative energy and KIUC programs. Okay, so that was just my concern about the holding... Mr. Furfaro: I think...I think that Mr. Imparato had expressed it earlier. Those that...that are on the Q Schedule and they're getting 9 cents back, make sure they know it's possible three years from now, they maybe getting 3 cents back. Ms. Kawahara: Okay, thank you. Mr. Bynum: Regarding this rate issue, I, you know, I think you've, you know, quite...you've put the issue out quite clearly and I think that rate...but those rate questions are separate and they are being addressed. I know right now KIUC is looking at a standby charge for these larger commercial folks. 45 Mr. Furfaro: And that's another way to do it, a standby charge. Mr. Bynum: Right and so that is being addressed in other arenas outside of the county council and I don't think KIUC or anyone that I know is suggesting that we should delay implementation of renewable energy in order to wor...work out these rate issues and so, you know, I would not want to delay our consideration as a county about our permitting, you know, where what I see is a separate rate issue. So that's just my position. Mr. Furfaro: But I...I thought I would answer my commentary earlier. It looks like I'm in the minority of wanting to wait because of our quarter million dollar investment in other strategic plans and I do disagree with JoAnn Yukimura that I mean if that's all we're expecting of them then maybe we paid too much. Maybe we paid too much. We've got to start making sure that what we have and the direction and the specifications and the expectations, we're getting every dollar value we can. But today, it seems like, you know, we're going to wait for a legal opinion anyway on your proposed amendments, so maybe I should ask if there's any other members that want to make comments here, there's just four of us today. And maybe we are back to the deferral. Ms. Kawahara: I do have one question. Mr. Furfaro: Go right ahead. Ms. Kawahara: If...if we could send a communication to planning about the...why they chose the two-year to be able to take...to have to take it down by instead of a one-year. Mr. Furfaro: Sure. Ms. Kawahara: Plan of take down, okay. Mr. Furfaro: So note, we will make a query... Ms. Kawahara: Yeah, a quick one. Mr. Furfaro: ...on the planning department's recommendation of the... Ms. Kawahara: Thank you. Mr. Furfaro: ...two-year removal. Ms. Kawahara: Thank you, Chair. Mr. Bynum: Mr. Chair, be... Mr. Furfaro: Sure. Mr. Bynum: Before we defer, I have one other issue I wanted to discuss but I want to give anybody else a chance. Mr. Furfaro: I do too and we are almost at 12:30 for lunch, but it doesn't look like anybody has anything, so you've got it. 46 Mr. Bynum: Okay, I'll go quickly. Concern's been raised about the Energy Sustainability Plan, although that is not...that discussion is not on the agenda today, but in terms of whether moving ahead with this effort is related or should be delayed and so I addressed those questions to our consultants who are working on the plan and I'd like to put on record their response, which I circulated previous...prior...previously to other councilmembers. So I'd just like to read their response. It should be pretty quick. Mr. Furfaro: Could you...could you name which individuals... Mr. Bynum: Yes, Douglas Hinrichs, who's the vice president, who's the kind of our primary consultant with Sentech, responded to an email which I have circulated. I just wanted to weigh in here real quickly saying that any legislation that promotes clean energies such as the SWECS does, certainly dovetails with the Kauai Energy Sustainability Plan, in my humble opinion. Some of these technologies are fully commercialized, so it makes sense that they come online earlier than say for example ocean wave technologies. That, of course, is on the technical and economic plane. I'll leave it up to you guys/gal to figure out the politic. I also was able to communicate with Maurice Kaya. Maurice Kaya is the Hawaii subconsultant on our Energy Sustainability Plan, and did a presentation here on...in September 2008 at the Future Renewable Energy on Kauai that KEDB put together. And in his PowerPoint, and I won't go into details because of the time, but, you know, he talked about the need and the sense of urgency and so I...I, you know, both of these folks were supplied a...a copy of the bill in order to comment. Dear Councilmember Bynum, thank you for the opportunity to review the SWECS proposed ordinance for county of Ka...for Kauai County. This appears to be a reasonably sound attempt to develop policy that will help encourage customer-sided wind energy systems on Kauai. In doing so, electricity companies will be offered a more straight-forward policy to utilize small wind energy systems on their property provided they conform to the standards governing their installation and use as provided in the draft ordinance. Such an ordinance will give electricity users on Kauai the benefit of more clear-cut guidelines to use winen...in an...to use wind energy, an under utilized resource at the small wind scale. With the advancements in small wind technology, these systems are becoming more competitive and may be particularly beneficial in high cost areas like Kauai. It is consistent with the state policy to encourage the use of wind as a renewable energy resource as evidenced by the availability of state tax credits for wind energy. Proceeding with such a policy is expected to be consistent with the intent of the Kauai Energy Sustainability Plan currently under development. Besides utility sca...scale renewable energy technology, small scale customer-sided renewable energy systems are expected to be an important part of a broad strategy to achieve greater energy independence. Wind energy, like solar thermal and solar voltaic systems, can be encouraged at the customer level as prudent public policy. Sincerely, Maurice Kaya. Mr. Furfaro: So, I am going to also ask that he...he be present in two weeks because, you know, everything in his email that (inaudible), it's consistent with state policy and so forth, and we all know the value of it. But I'm trying to find out how does it fit into what, I believe, is an important issue about rates, about quality control, and the challenges we have in our five regional neighborhood plans that have different height restrictions. So, I'm going to ask that...if Doug can be available, so. Mr. Bynum: Hinrich. 47 Mr. Furfaro: Yeah, Doug. Mr. Bynum: Or...or Mr. Kaya. Mr. Furfaro: I'm going to ask Doug. He...he's the one we contracted to. Mr. Kaya is subcontracted by him. So on that note, it is lunchtime and I would like to see if we can get to a deferral for two weeks. Mr. Chair? Mr. Asing: Yes, you know, I...I suspect that we're going to...you're going to defer it. I am not a member of the committee, so I have no say. But I just want to comment first of all that I agree with...with you that a deferral should be in order and the Energy Sustainable Plan is a good area... (Gallery: Mike.) Mr. Asing: ...to...to be looking at to tie into this...this bill. I also wanted to make some comments prior to the deferral, but it is lunchtime now and I think everybody has heard enough, but I have also some I think good information that I'd like to present, but I will honor the deferral and make my comments the next time around. So, I just wanted to put that on the table, so thank you. Mr. Furfaro: Thank you, Mr. Chair. Okay, Mr. Kaneshiro? DARYL W. KANESHIRO: No. Upon motion duly made by Councilmember Kaneshiro, seconded by Councilmember Bynum, and unanimously carried, Bill No. 2317 was deferred. There being no objections, the Committee recessed at 12:35 p.m. The Committee reconvened at 1:37 p.m., and proceeded as follows: 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, we're back from our lunch recess. I believe we are going to go into the ag workforce housing bill. May I ask the Clerk's Office to read the item. Ms. Akiona: 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). Mr. Furfaro: Thank you very much. May I just see how many people here are to testify on this bill? Okay. Do we have asign-up list? Ms. Akiona: Yes, we do, Mr. Furfaro: Why don't we suspend the rules and take the first speaker. 48 There being no objections, the rules were suspended. Ms. Akiona: The first speaker is Mike Dyer, followed by Scott Pomeroy. MIKE DYER: Mr. Chairman, councilmembers...is this on? (BC, Videographer: Yeah.) Mr. Dyer: My name is Mike Dyer. I probably shouldn't be the first one going; I guess I signed up too soon. In reviewing this bill, I'm...I'm in support of farm workforce housing. I think there are a couple of things, definitions perhaps, that need to be tightened up a little bit. And maybe I'm not reading it right, but...the...in the definition of a lot, which is sort of the basis of this thing, the term unit is used within the definition and I've found, in my own practice in real estate, that because of the prevalence of CPRs in the ag district on this island, there's a need to distinguish between a whole lot, which is often a subdivided property that the county zoning ordinance allows more than one house on, as opposed to a CPR unit, which a lot of times is used to separate the interests within a given lot. So, you might have planning or somebody look at, you know, refining the language because you're going to find that a lot of your farms are CPR parcels or CPR units. The bill calls for the property being eligible for farm worker housing only after the original permitted house is allowed, which you know I think to a certain extent makes sense, but I think we may come on reasonable situations where the farm owner may not live on the farm property but may still need farm worker housing. I'm thinking of one major farm that's being developed on the North Shore right now where the...the owners live elsewhere. They live in Princeville and they're developing a property that's big and that he's going to have a big farming operation on it. They probably would have some farm...need for farm worker...worker housing, but- they may or may not ever build a...you know, their initial residence on the property. So you might think about allowing some leeway for that. Other than that, that's...that's my...those are my main points of concern. Again, I think farm worker housing is a very potentially useful thing. We had a need for it during the 25 years that we were in farming and, you know, we had to do it under the radar. We did it anyway, but it's better, I think, to have it formalized and done in the...in the sunlight, so to speak. Thank you. Mr. Furfaro: Let me see if there's any questions for Mr. Dyer. Mr. Asing: Yeah, I...I have a question. Mike, I...did I hear right? You said you did it...did it under the radar? What do you mean? Mr. Dyer: Well, the fact of the matter is that if you have a...a big farm and we were part of a big farm operation when we worked with Mike Strong and Candace Strong, and...and you know, we would just let people camp on the...none of my properties it happened. We had atwo-parcel property, but we didn't do it on mine, but there were tents all over the place. And there are...you know, there probably are in other areas too. I don't...I don't know. Mr. Asing: So, you're not saying you did something illegal, did you? Is that what you're saying? Mr. Dyer: No, I was completely ignorant at the time. Mr. Asing: Well, I mean, you know, I hear under the radar and I hear camping and... 49 Mr. Dyer: I'm not sure that camping's against the law to be honest with you. Mr. Asing: Well, no, I'm just saying, you know, the term you used, you used under the radar, you used camping... Mr. Dyer: Okay, so I'm an out...I'm an outlaw. Forget whatever I said. Excuse me. Mr. Asing: Thank you. Mr. Furfaro: Excuse me, Mike, I had questions. Mr. Dyer: Oh, I'm sorry. Mr. Furfaro: And this is...this is more kind of a review for history. I'm going to share an exhibit with my colleagues a little later about current agricultural district parcels and the density they're allowed under the current CZO. But were...were you a partner with Mike Strong when he developed? And what people don't reali...what he developed in Moloa'a was actually a kind of travel to farm that didn't have any density because he took a remnant parcel and subdivided it into CPRs that didn't have density but could be farm worker housing...I mean, could be farms that could be worked with housing elsewhere. Mr. Dyer: Correct. I...first, I...I wasn't a partner. I did work with Mike, represented him when we bought the a...what was the old leasehold Amfac Ag Park and converted it into a fee simple ag park. And it's true, there was very limited density there. There were...there was limited infrastructure. Many of the parcels we sold were CPR units that didn't have density assigned to them. So, it was kind of a...a special case. On the other hand, they...they were sold at extremely low prices compared to what was going on in the market at the time. Yes, so I did participa...pate in it. I helped plan it, but I had no financial interest in it. Mr. Furfaro: Okay, because I think that's one of the things we have to, you know, understand here, what...what this bill is. This is about us giving density to farms that are actually bona fide enterprises as farming activity exists. But a lot of the area and how we got there in Moloa'a was based on...this parcel was then CPRd and whether it was Boy Akana or Rodney Yadao or...or any of those others, you know, lived elsewhere and...and traveled to their papaya farm and so forth. Could you...I...I'm sorry I got a little frog here, but could you give me an idea just to revisit that, how big that CPR parcel was? Could...do you recall? Mr. Dyer: The whole property was about 800 acres as I recall. There were three or four existing grants within the...within the Moloa'a Hui Lands, and so we did the individual grants as CPR units. So, we basically in general matched the units up with where the existing fields were. Remember, it had been an ag park, so it had windbreaks already all set up. So a lot of times we just followed the existing field roads and the...and the windbreaks that existed there. And, you know, again in terms of keeping the price down, everything was just done with existing roads. There was a water system there from a well that's a...across the highway, mauka of the highway, and a water tank onsite and, you know, keeping the cost down meant no paved roads, you know, no underground utilities, any of the stuff that goes with a normal subdivision. 50 Mr. Furfaro: But I had...I had the...the history of that correct. I mean, many of those that bought that knew that there was no density, but they...they could farm it. There was water; there were... Mr. Dyer: Right. Mr. Furfaro: ...harvesting roads, etc. Thank you, Jade. That...what that was push...pretty much the original. Mr. Dyer: Yeah, I think...I think we made it clear when we were selling there was some density. There...it wasn't that there was no density, but it was extremely limited density given the size of the...the area. So, you know, there may be some people in this room that bought large parcels that had a house permitted and they...they're living out there in kind of rustic circumstances and they may need...have a need and a...you know, a need for farm worker housing. It gets a little trickier on the ones that don't have a...a...didn't have a right to an initial house and, you know, I guess that's one of the things you guys have to deal with. Mr. Furfaro: Do you recall of the 800 some acres of ag park, how many units...I don't know, units or CPRs were actually created? Do you recall just roughly. Mr. Dyer: I mean I've got all the files, but I don't know it off the top of my head. There...there probably were a...there are probably people in the room that are in the association that know that. You might ask them. I don't remember. Mr. Furfaro: And that...that Amfac Ag Park, they did have an association. They were an association, right? Mr. Dyer: Yeah, the original...our...our first goal was to...to sell in fee simple to the people who had been leasing all these years. So when you talk about, you know, Rodney and people like that, they were already in the...in the coop and we gave them, you know, as good a deal as we could, a better deal than later buyers got to get them into the properties that they had been farming. Mr. Furfaro: And...and may I ask, I...I hope you don't mind me asking these questions because it's important that my colleagues have the history in the Moloa'a area as well. We...we would assume that those that leased from you, they were given first right of refusal on a purchase of their farms? Mr. Dyer: Yeah, yes. That...you know, there were still some members of the coop still working out there, hanging in there and they had...had first option. Mr. Furfaro: And was there anything in the leases and/or the fee simple deeds that indicated that the pricing was based on the fact that there was...there was no implied density? Was there something in the deed? Mr. Dyer: Well, you know, we...we set prices and then we said whether. they had a house...you know had house density available. You know, we had a lot of meetings beforehand with the farmers, talking about how we were actually going to pull this off. So, there was a lot of discussion about it ahead of time. 51 Mr. Furfaro: But the...but the bottom line is that most of that area remained active in farming, only a handful of them actually had density. But they've been...some people have been farming there 25 years? Mr. Dyer: Yes. Mr. Furfaro: Easy 25 years, so. And for that Moloa'a piece and so forth, do you know if they actually formed a coop to maintain the water system there, the well and the tank? Was that something that was in the deed? Mr. Dyer: I can't remember how we set that up. There was...you know, there was a guy who actually owned the well-site across the way. Strong, himself I think, kept the tank site. And I'm not sure exactly how the water situation is administered right now, but again, there are people here that, you know, contemporary users in that area that know more than I do about it now. Mr. Furfaro: Okay. Well, I just want to thank you for allowing me to get some history on that, but it was always an ag park and you would concur with me that people have been farming there more than 25 years. Mr. Dyer: Yes. Mr. Furfaro: Thank you. Any more questions of Mr. Dyer? Mr. Asing: Yes, I...I have. Mr. Furfaro: Yes, Mr. Asing. Mr. Asing: Yeah, thank you for clarifying that. I wasn't sure, but I guess then, so this was the former ag park parcel that...that was issued by Amfac. Mr. Dyer: Yes. Mr. Asing: Is that true?. Okay, when...then when Amfac, I guess, took back the lease, then after a period of time is when Mike bought the property. Mr. Dyer: Yes. Mr. Asing: That...that's what happened, okay. Now, so everyone who bought property there knew that some of their properties that they bought had no density. Mr. Dyer: Yes, in the initial sales. There have been resales. I'm not sure what happened during those periods. Mr. Asing: Okay, good, thank you, appreciate that. Mr. Furfaro: Yes. Mr. Kaneshiro: I have a question for Mike. Mr. Furfaro: Go ahead. 52 Mr. Kaneshiro: Given those circumstances then, would you...you...I would almost say that...well, I'm going to ask you this question and see how you would answer. Would you support then, in those areas, having, I guess, farm worker housing, especially if they are farming, they are legitimately, you know, in ag, being that there's no density allowed, but would you support the concept of that? Mr. Dyer: I, yes I would personally. Mr. Kaneshiro: All right. Mr. Furfaro: Yeah and I think that was one of the reasons I...I...I wanted to point... (BC, videographer: Check your mike.) Mr. Furfaro: That was one of the reasons I wanted to point out that was an ag park and many of those people have been actively farming for over 25 years. Mr. Dyer: Yes. Mr. Kaneshiro: Okay. Mr. Furfaro: Any other questions? Mike, thank you very much. Next speaker, please. Mr. Asing: I... Mr. Furfaro: Oh. Mr. Asing: I kind of want to clarify that, though. I think when you say actively farming, I think you had a period of time that they were farming under Amfac's lease... Mr. Furfaro: Yes. Mr. Asing: Then when Amfac said, cancel, there's no leases, which means that there is no farming activity allowed because there's no leases. Mr. Furfaro: I...I guess you could... Mr. Asing: So... Mr. Furfaro: You could make that assumption, but where I was getting to was at some point the leases were converted to fee simple and that's why I asked, did the...the people that were leasing, did they have the first choice. Mr. Asing: Yeah, all...all I'm saying is that Amfac breaks the lease, the land is sitting there, no...no one has access to that. So there is no farming activity. If it was, then something is wrong because there is no lease. Okay, I wanted to get... 53 Mr. Furfaro: No, no, I understand what you're saying. They could have actually been illegally on the land. Well, they could have. But what I wanted to clarify is when they set it up as an ag park to sell it fee .simple, those applicants had first...first opportunity. Mr. Asing: Okay, okay, I understand, yeah, you're right. Mr. Furfaro: Okay. Next speaker? Ms. Akiona: Next is Scott Pomeroy, followed by David Makana Martin. SCOTT POMEROY: Hello, my name's Scott Pomeroy and first of all I would like to say that I do really appreciate your sincere efforts in creating a farm worker housing bill that works. So thank you for that. Mr. Furfaro: Scott, you may have to speak up a little bit more (inaudible). Mr. Pomeroy: Okay, having...having said that, I'm feeling very frustrated with a system that seems to be so convoluted that we just can't infuse common sense into it. It's really... Anyway, about...I don't know how...many years ago I leased a 1...I leased a piece of land in Kilauea Farms and the county inspector came up to my property and said, whoa, Scott, this is beautiful, you're growing a lot of food here because unfortunately you're living in an illegal structure and I go, I know that. And he goes, let me call you in the morning, and he called me in the morning and he said, I talked to my boss, what you're doing is absolutely what we want to see done on ag land, we've classified your building as an ag structure and thank you very much for taking good care of our ag land. And I said, well, thank you and, you know, I thought okay, here's county...a county employee, you know, dealing with something with common sense and so I...I realize those days are over. Okay, now we're trying to, you know, make a law that incorporates common sense into our...into farming and it's...and it's very difficult. I just spent...two days ago I spent three and a half hours in a meeting with a bunch of very knowledgeable people and they spent the entire time telling us how this farm worker housing bill can be abused, and I couldn't disagree with them. I mean, you know, I...it's true. I mean, but I kept asking them, okay, what is there...is there a solution and you know, all I got was people kind of rolling their eyes and saying, well, yes, but you know, it might take...we have to pass three more bills before the farm worker housing bill may be actually viable. You know, it was very depressing. I'm sorry to tell you this and...but it's true. And so, I don't know how to...I don't know how to write a bill, you know...I...a workable farm worker housing bill. But I do know this, that us, I'll include myself, I'm in that illustrious group, we folks who have been living on the land in small affordable structures, you know, not wasting our natural resources, by that I mean living with composting toilets, gray water systems that feed our trees, and maybe one solar panel for a little bit of electricity, we grow our own food and we grow quite a bit of food for our community. I just want to say this, we are not the problem; we're the solution. And...you know, it's my job to grow food and protect the soil, and in my opinion, it's your job to write a law that actually, you know, supports us and makes it legal to do what we're doing. I think that in the future it's possible that you may be mandating what we do on our land to other people who want to live on ag land because what we're doing is nothing more than just good common sense, and I think that's about all I really have to say and...except for I just sincerely hope that you act on this sooner rather than later because I really don't want to have to write you letters from jail, okay. 54 Mr. Furfaro: Are there any questions of Scott. Go ahead. Mr. Bynum: Scott, how...how long have you been farming on Kauai. Mr. Pomeroy: Twenty years. Mr. Bynum: Twenty years? Mr. Pomeroy: Yes. Mr. Bynum: And what...what do you grow? What...what kind of food do you grow that... Mr. Pomeroy: I grow mixed vegetables for the Farmers' Market, which includes probably 15 varieties of vegetables: beets, carrots, broccoli, beans, blah, blah, blab. I have over, probably three to four hundred fruit trees on my property that are not exactly producing full. So I'm selling fruit but that will increase as I...as they do more production. I have about four or five hundred hardwood trees that I've used as windbreaks that I planted when I first got there. That's about it. Mr. Bynum: That's a really long-term investment that someday the hardwood will...will have value, right. Mr. Pomeroy: Yeah. You know, I'm not planning on myself actually harvesting these trees. I may...I probably won't live that long. Mr. Bynum: Thank you very much. Mr. Pomeroy: Okay, thank you. Mr. Furfaro: Any other questions? Well, Scott I have a question or two for you. Everyone at this table, when we won office, we took an oath to obey the regulations in the Charter of Kauai. So, we...we can't just look the other way. Mr. Pomeroy: Yeah, I...I understand that. Mr. Furfaro: Okay, I just want to make sure. Mr. Pomeroy: Yeah, no. Mr. Furfaro: I...I sense your frustration... Mr. Pomeroy: Yeah. Mr. Furfaro: ...but I also want you to see, you know, the line we're attempting to walk to fix this. And...and that's the word, fix. Mr. Pomeroy: Right. Mr. Furfaro: Okay, it's also important for us to point out that those people that were in the Moloa'a area for 20 years like yourself, you're doing exactly what we would like to see that land produce. I think there is a real understanding of that intent. I wasn't at whatever meeting that was for three hours, but I can tell you what...we're trying to get to a point that is reasonable to 55 support the effort of the agricultural community on ag lands within the boundaries of the rules we have to deal with now. And if we have to change those rules, we need to do it in this bill. And I think that's what we're committed to do here because we want to see agriculture successful on this island. But we have to look at the existing rules. We...we need to...I...I have to tell you, people bought land 25 years ago, as Mr. Dyer said they knew they had no density. They knew it was intended to make low affordable agricultural land available to them that had secondary roads and water systems so that they could farm, but if...it...every...they knew it had no density. We're now saying that that ag park, I'm going to use the term, in Moloa'a is producing a lot of food for this island and we're going to try and make a bill that recognizes the enterprise for farming there and recognizes the hardships which are only one part of the hardship for the farmer, that is workforce. We're not even touching on marketing. We're not even touching on water. We're not even touching on getting products to...to market. So, I just want to make sure that... You sound frustrated and, you know, I'm still committed to ha...making this happen somehow. Mr. Pomeroy: Thank you. Mr. Furfaro: Okay. Next speaker...oh, Lani. I'm sorry, Scott. Ms. Kawahara: Scott, Scott, can I just ask a quick question. Can you tell us a little bit about the soil that you inherited when you bought that land and what you had to do because I think it's important that people understand different types of agriculture and that the type of agriculture you're doing really does sustain the land and foster it, and steward it. So why don't you tell me about what the...what that land was like bef...when you...when you got there. Mr. Pomeroy: Okay. I knew the previous farmers that had been out in Moloa'a, Johnny Akana and some of those folks. And I asked them when the prices were very low-by the way I didn't...be ab1e...I wasn't able to get it at those really low prices-why don't you want to buy it. And they said, well, because I can't grow anything on there anymore. They had already used the vitality of the soil up for so many years that they couldn't. Their papayas failed for various reasons. You know, I don't need to go into all the reasons. And the previous farmer on my farm tried to grow vegetables and you know what, he couldn't do it. He said, I c..., he gave up. And so they walked away and they didn't want to buy that land. What do I have to do to make that land... Ms. Kawahara: Viable. Mr. Pomeroy: ...work. Is that part of the question? Yeah, well, I have to do a lot of cover cropping. I have to do a lot of...I add a lot of organic matter to my soil for... For me to grow a crop of vegetables for six months that maybe two or three crops in a row, I have to cover crop on that land for at least a year, which costs me money. I have to water it; I sometimes even have to fertilize the cover crop. It's...it's a restoration project from a previous era of farming and I don't want to put those guys down. They're hardworking guys. I mean, I really like them and stuff, but they didn't know how to take care of the land well. And what we have to do is go in and go the extra mile every day to take care of the land so it doesn't continue down that road. We're...we have to build the soil up and I'm hoping and I'm pretty sure that my farming practices are actually addressing that. But it's a long-term thing and it's not real fast when you live in the tropics that the growing season is 365 days a year. It's...it's harder than in the Midwest where they have six months of snow and they have rest all that time. So, anyway, it's a difficult thing. 56 Ms. Kawahara: Yeah, and one last question. The number of families that...that farm feeds...your farm could feed. Mr. Pomeroy: Well, you know, it varies from year to year... Ms. Kawahara: And your next door neighbor. Mr. Pomeroy: Yeah, I got that. I would say that my farm consistently feeds 100 families a week. Ms. Kawahara: A hundred families per week. Mr. Pomeroy: And it could do a lot more if I had more help, but I don't think I really want to put that kind of pressure on my farm in terms of taking care of the soil. So, I limit it to the amount of produce that I grow so I can just support myself and continue to support the soil and build the soil. I'm not out there just to...you know, make my bank account grow. I know...I know that's hard to believe to a lot of people, but that's the truth, so. Ms. Kawahara: Thank you, thank you. Mr. Asing: I...I have afollow-up question. Scott, you use the term...use the vitality of the soil and you need to do a lot of cover crop, restoration, they didn't know how , to take care of the soil. Are...are you...what kind of background do you have? Are you an...some kind of... - Mr. Pomeroy: Expert? I hate that word. Mr. Asing: ...specialist, expert. Mr. Pomeroy: Expert. Mr. Asing: You know, to know exactly what is in the soil and what you can grow, can't grow, I mean... Mr. Pomeroy: I don't think... Mr. Asing:_ Whe...where's your background? Do you have some background? Mr. Pomeroy: Okay, yes, I do have background. Mr. Asing: Okay, well, wha...what's your background? Mr. Pomeroy: Well, I have been farming for 25 years. Mr. Asing: Okay. Mr. Pomeroy: I went to UC Santa Cruz with the UC Santa Cruz Farm and Garden Project where I was an apprentice and I also taught at that program the next year. And I have a certificate in biological horticulture from UC Santa Cruz. I...there's no expert. I'm not an expert. I...I learned... Mr. Asing: But you have these... Mr. Pomeroy: I learned every time I do it. 57 Mr. Asing: ...certificates and... Mr. Pomeroy: Yes, I have quite a bit of experience and certificates. Mr. Asing: Yeah, maybe if you can provide those certificates it would help. Mr. Pomeroy: You want to see my certificate? Mr. Asing: Well, it would help. Mr. Pomeroy: Sure, I don't...I think I got it hidden away in some box. I mean, I don't know. I'm...I'm not making fun of you. I'm just, you know, I never...haven't looked at it for... Mr. Asing: Yeah. Mr. Pomeroy: ...twenty something years. So I don't know where it would be. Mr. Asing: Okay. Mr. Pomeroy: But I think I might have it. Mr. Asing: Thank you. Mr. Pomeroy: Yeah. Mr. Furfaro: Oh, go ahead. Mr. Bynum: (Inaudible). I'm a novice, I don't know that much about it other than a lot of stuff I've read, but is it that previously there was mono- cropping with...with petrochemical fertilizers and pesticides and you're doing it different or... Mr. Pomeroy: Well, that's part of the equation, but, you know, I think that these soils in Hawaii especially are really fragile. They use heavy machinery over and over and over again. They didn't understand that you couldn't just go in and plow and disk a field and let it bake in the sun for months at a time until you got all your other stuff together. You can't let the sun...the soil bake in the sun. It's just...it needs to be covered with something because it just fries the fertility of the soil. It fries the microorganisms that are in the soil. Therefore, you have to add more and more petrochemicals to grow the crop you want. It's a vicious circle, you know. It just keeps going over, more plowing, more chemicals, more pesticides until finally it fails, which... Mr. Bynum: So a cover crop is... (Gallery: Can't hear.) Mr. Bynum: I don't know what else I can do. A cover crop... (Gallery: That.) 58 Mr. Bynum: I have to eat the microphone. A cover crop are plants that aren't necessarily edible or have a commercial value, but they help bring organic and nutrients to the soil... Mr. Pomeroy: Right. Mr. Bynum: ...in the process of growing them, right. Mr. Pomeroy: Exactly. You don't harvest these crops. You just grow them to incorporate back into the soil, to feed the soil, to feed the microorganisms.. . Mr. Bynum: So... Mr. Pomeroy: ...that enhances the soil and...anyway, yeah. Mr. Bynum: So a given piece of land, you said, you would have it with cover crops for up to a year to get six months of vegetable production. Mr. Pomeroy: Well, that's where I'm at at this point, yeah. And actually, I actually have my vegetable areas in cover crop for more than that often, a year...up to a year and a half. And that...it all costs money and I get no money in return to do that, just for your information. Mr. Bynum: Okay, thank you. Mr. Pomeroy: Yeah. Mr. Furfaro: Mr. Chang, go ahead. Mr. Chang: Yeah, thank you. I...I would just like to say, if you don't mind, maybe you can invite some of the councilmembers-I know some of us have been out there, but I think it would be great if you did take the excursion out there because what Scott has is an area that he teaches, actively teaches a lot of the kids and the children and it's very interesting because the way you have this system set up, there's like zinnias and flowers and there's, you know, all these other...every place you got something scientifically somewhere that...that works better than the other. But I...I think what Mr. Bynum was asking, you know this...this was like these big beds that it looked like wheat, you know like these little straw-like wheat. That's the stuff that you cut, drops, replenishes the soil... Mr. Pomeroy: It's called...yeah. Mr. Chang: Let it grow. Mr. Pomeroy: Sudan grass. Mr. Chang: Suda...yeah, the Sudan grass. Mr. Pomeroy: But that's the type. Mr. Chang: The one that you had the Kamani trees or the Kou trees, like the windbreaker. I...I think it would be a real good educational thing to sh...to...to explain that because I think other farmers at different parts of the island may want to use that technique because perhaps the soil on the West Side or, you know, different parts of the island could use that kind of education to be able 59 to...to...to grow successfully how...how you were able to because that classroom that you had, that area was very impressive and...and I think people can learn a lot about renourishing the soil because when you spoke the last time about taking care of the soil, I don't think a lot of people realize what you were talking about until we...we get...get...go there to realize how you have to take care of the soil. So, I...I think it would be of great interest that many people would like to go out there because it'll be a very, very big educational hands-on experience. Mr. Pomeroy: I would be happy to do that. Mr. Chang: Thank you, Scott. Mr. Furfaro: Okay, Scott, I have a few more questions and I've been out to your place with Royal Young and so forth. I...some of the...some of the amendments we circulated as potential amendments, I just...I would like to kind of see how y...your operation matches up, if I could, just. Would...h...how big is your total operation? Mr. Pomeroy: Well, I have 15 acres, but I also have four land partners. So, myself and my life partner and land partner have 8 acres that we pretty much do ourselves. Mr. Furfaro: But 15 total. Mr. Pomeroy: Fifteen total acres. Mr. Furfaro: Okay. Would you say that at any one time including your windbreaks and your, if I can use the term orchards, your fruit trees and so, would you say and including crop rotation, would you be using 75% of the land? Mr. Pomeroy: Oh yeah. Mr. Furfaro: Yeah. Is there any portion of your land that is on a slope greater than 30%? Mr. Pomeroy: It's all usable. Mr. Furfaro: All usable. Okay. Do you participate in any kind of a coop for your water, the maintenance of your water source? Mr. Pomeroy: No, but we are putting together a coop as we speak to get that implemented. Mr. Furfaro: I assume that's the Moloa'a Makai tank and the well source up mauka. Mr. Pomeroy: Right. Mr. Furfaro: Okay. On the 15 acres total right now, what density do you have? Mr. Pomeroy: That's a...that's a can of worms right there. We have... Mr. Furfaro: Is it...is it zero? 60 Mr. Pomeroy: We have no... Well, we have no density, but we bought along with that property a guest house site. I didn't even want to bring this up because everyone... Mr. Furfaro: Okay, let's only stay with the... Mr. Pomeroy: How... Mr. Furfaro: ...15 acres and (inaudible) what you bought. Mr. Pomeroy: And no density. Mr. Furfaro: You have no density on the 15 acres. Mr. Pomeroy: Better off saying that. Mr. Furfaro: Yeah, okay. And on the 15 acres, if you could qualify for your farming plan, what kind of housing density do you need to support a workforce? Mr. Pomeroy: I've thought about this and I think a fair number (and that's just for me, I'm not going to represent anybody else) would be three part- time workers of vegetables per acre plus myself as the kind of overseer, fulltime, all- time. So I have two acres devoted to vegetables, so I could use, you know, four to six people working the vegetables and then I have orchards where I have to mulch, prune, harvest, sell, so. I mean, it's...it's labor intensive. But I would say this, that I...my operation is extremely labor intensive. I do not have a tractor. You know, it's...I have machines. I hear the shhhh. I have machines, I just don't have a big...a big tractor. So, I do a lot of work by hand. Mr. Furfaro: And let's say you got one house and three cottages of 600 square foot, just say. Mr. Pomeroy: Mm-hm. Mr. Furfaro: And that would be reflected in your farm plan that you briefly describe to us. Would you prefer to have them clustered so that there's shared infrastructure or would you prefer to have them spread out so you have some, excuse me, so you have some loss prevention/protection? Which would you prefer? Mr. Pomeroy: That's an excellent question. Although I do understand the value of infrastructure, if you're using, you know, telephone lines, plumbing, you know, the whole thing. On the...my farm that I would like is that I wouldn't be using that infrastructure. I would be using composting toilets, gray water systems, like I said before. I wouldn't need that infrastructure. So cluster housing is not really...because Idon't need that, those added infrastructure, Iwould prefer to have people in various parts of my land because I have pigs, chickens, pheasants and thieves all the time. And if I have them all clustered in one place, that leaves 14 acres for them to steal from. Mr. Furfaro: I just wanted to weigh out if, you know, common, you know common source of power, solar for your...your workforce or whatever had more impact than loss prevention and having people throughout the farm in these cottages that could keep an eye out... 61 Mr. Pomeroy: (Inaudible.) I would prefer to have the people spread around and I think I've asked this of all the farmers I know and all of the farm workers that I know personally. We're not importing people from a third world county. They would prefer to have a little separation. Because we work hard, we don't want...I don't want to wake up next to a 20-year-old college student. I may love that college student, but I'm 57 years old. When I want to go to bed, I gotta go to sleep. It would be...be kind of hard for me. Mr. Furfaro: Understood. Mr. Pomeroy: Thank you. Mr. Furfaro: But you can see the... Mr. Pomeroy: Oh, absolutely. Mr. Furfaro: ...the question, you know which... Mr. Pomeroy: ...I...yeah, yeah. Mr. Furfaro: If...if we have a condition like that, which would be... Mr. Pomeroy: You know what, there is a...a thing in important ag lands that addresses that specific thing. Are you familiar with it? Mr. Furfaro: Yes, I'm very familiar with it. That was a previous subject because we're moving ahead on energy, but... Mr. Pomeroy: Yeah. Mr. Furfaro: ...on the farm thing we decided to wait for the important ag land piece... Mr. Pomeroy: Well, it says cluster housing maybe considered. Mr. Furfaro: Yes. Mr. Pomeroy: I love that word. Mr. Furfaro: Okay. Mr. Pomeroy: Okay. Mr. Furfaro: Thank you. Mr. Pomeroy: Thank you. Mr. Asing: Can I... Mr. Furfaro: Oh, did you, oh, Scott, Scott. I'm sorry. Mr. Pomeroy: This is hard, I'm sorry. Yes. Mr. Asing: No, I...I...I just wanted to...more comment... 62 Mr. Pomeroy: Sure. Mr. Asing: ...and say that I did have the opportunity to visit Scott's farm. So, again, thank you. I did thank you. Both Dickie and I went to your farm and looked at the operation, so I just want to say that up front and thank you for showing us the area. Mr. Pomeroy: It was a pleasure having both of you. Ms. Kawahara: Thank you too, Scott. Mr. Chang: You forgot...you forgot the Nene when you went through your list. Mr. Pomeroy: Let's not go there. Ms. Kawahara: Thank you for allowing me to go too. Mr. Asing: And...and then the other comment that I wanted to make is...I guess the question that you raised about one house and three farm worker units, so I, you know, I'm not sure whether it...that's the direction that we might be going and I didn't know. I thought we were talking about farm worker housing, so I didn't know the difference between one house and three farm worker units. Mr. Furfaro: Let me... Mr. Pomeroy: Jay... Mr. Asing: It's not yours. I...I...I just wondered. Mr. Furfaro: Yeah, but...but I'm thinking that the bill...when you actually go to the planning department with your application, you have your farm plan and you identify, you know, how intense you are because you're an organic farm, how much equipment you have and so forth. And that justifies, you know, what kind of housing you need versus the way we have the draft. I think it was one unit per $35,000 of revenue. And I'm not sure we're still thinking of connecting it with revenue. Even though in the bills that we circulated in the past, Mr. Chair, we talked about dropping that number. I'm almost thinking now that we have to look at it based on what kind of farming enterprise it is. Mr. Pomeroy: I think that's a much more reasonable way of looking at it. Mr. Asing: Okay. Mr. Furfaro: And that's why I used that example. Mr. Asing: Okay. Mr. Furfaro: Thank you, Scott. Mr. Chang: Thank you, Scott. Mr. Furfaro: Next speaker? 63 Ms. Akiona: Next David Makana Martin, followed by Lisa Wooton, I mean Louisa Wooton. DAVID MAKANA MARTIN: Aloha. Thank you for this opportunity to share my thoughts on the farm worker housing bill. I'm going to address my comments most directly to some of the amendments that were circulated. They definitely raised some areas for comment from me. The area... (Inaudible.) Mr. Martin: Oh, David Makana Martin. And I've lived on Kauai since 1998, have been taro farming, more recently I'm farming in Moloa'a and really working on soil building as the primary activity that we're doing, vermiculture and vermicomposting. The subject of this...some of these amendments and the topic that was raised I heard in our...in the last meeting here was the subject of the dollar amount of gross sales and I know there's some up and down with that and how do we get to the right number. I don't have a...a real answer for this, but I do feel that there needs to be some accommodation made for farmers that don't deal in US dollars. We're moving into an era where ex... exchange and trade is...possibly a more likely form of the actual direction of the goods that are sold. So I feel there should be some accommodation made to identify values of crops other than in US dollars. Mr. Furfaro: So are you referencing some type of bartering? Mr. Martin: Barter, trade, exchange, there's many...several systems that are... Mr. Furfaro: (Inaudible) but with record keeping. Mr. Martin: Yes, yes. There are systems, online systems, various systems of exchange, LETS (Local Exchange Trading Systems). There is an accounting process so that there...it...it's not something that disappears to nowhere, but I think it should be beyond just the straight US dollar designation. The other area of concern was in an amendment that a farm plan to the planning department to demonstrate the feasibility of the farm's commercial agriculture production. I have some real serious concerns in...in that area. I don't necessarily see that the planning department is qualified or capable of developing farm plans by any sense of the imagination and at one point where they're talking about the planning department having some authority to tell somebody where to put their housing is, to me, absolutely out of the question. Now, the farmer must be able to do that, to decide what he's going to grow where and where the housing is on the...on the parcel. Mr. Furfaro: That's the first three minutes. I owe you a minute for my question on bartering, but I'll give you your other three minutes plus one. Mr. Martin: Okay, thank you. Another point of concern is the point in the area the farm is entitled to agricultural rates provided by the department of water. I think that's a very narrow requirement that most farms aren't even on department of water system and that you need to integrate other systems, whether that's ag irrigation systems, catchment, stream or riparian flows, and actually that's something that to me would show up in any viable farm plan 64 anyway. So I don't know that you need a specific requirement or language in that area. But if you have a farm plan, it's going to have to have something about your water supply. Mr. Furfaro: Mr. Martin, I...I just want to tell you that that piece was actually to encourage farmers to come up with some alternates. You know, because...I mean since the delta in Egypt, people have been maintaining water for farming. Mr. Martin: Yeah, yeah. Mr. Furfaro: So, we understand no water, no farming, but the idea was to encourage some cooperative effort... Mr. Martin: Well, my real... Mr. Furfaro: ...outside the department of water. Mr. Martin: My real concern in that area is this whole subject of conflict of interest. I think there's a definite conflict of interest between the department of water as a water...ag water supplier and in any other form of water supply that the farmer might develop. I also sense. that there's a conflict of interest in the planning department having a strong role in this because to me, their only...their primary interest has...has been enforcement and basically moving farmers off the land. I haven't seen them doing much to get farmers on the land, so I'm very nervous about any strong role that they might have in administering these plans or even the enforcement of it. And just as a final point, I'm hopeful and I really want to support Scott and his testimony and I understand his frustration. I know that when those lands were bought, it was under one sort of paradigm and one situation. Everybody knew that maybe you weren't supposed to have, you know, housing on the land, but really times have changed. There's so much change. We have to adjust and adapt. Hopefully, we don't have to wait for a crisis when somebody's like requiring people to do things the way it's...Scott is describing. But I...I...I really want to encourage and support the initiatives that are being taken here. But at...at this point, I'm not...still not seeing this elevation and strong support of the farm...farmer. We're still...seem to have more concerns about enforcement and tying up loopholes. So, that's...that's my biggest concern. Let's get rid of these agencies that are making life difficult for farmers in terms of are they going to be sitting on top of them, are they going to be giving unannounced inspections. You know, this sounds more like a...a...a policing mechanism than it does...as a promotional supporting effort. And I know what you're trying to do and why you're having to do it, but the...when it all falls out, the farmer living on the land is going to be the one that may or may not get pushed around by the next department of planning sweep, are you legal or not, you know. And each time that happens, the farmer that's farming, the crop that they have in the ground, you know, if they push their farmers out, what happens to that crop until we finally get it back together and somebody can go on that land and take care of the crop. That farmer lost it, you know, just because there's been some enforcement initiative from who knows where, you know. Is that the prosecutor's office, planning department, but it's still really not getting the farmer farming and growing vegetables and helping our community. Thank you. Mr. Furfaro: Okay. Any questions of Mr. Martin? If not, I have a few. Mr. Chair, go ahead. 65 Mr. Asing: I...I...I just have more of a statement than...than a question, but I make the statement because of your concerns. I will tell you that I am not a member of the committee. So I really don't have any say on the committee's actions, but I will have a say when it gets to the full council, but I know that the way the chair runs his committee, he welcomes input from even people like myself, who is not on the committee. And he has run it that way all the time and he's very fair. So, I will have an opportunity to even give input, although I am not a committee member. But I want you to know that this bill is so important, and I cannot emphasize that, so important that the rest of all of Kauai is going to be affected by whatever we do there. Very, very, very, I cannot emphasize how important it is because whatever we do there, will affect every piece of property aside from Moloa'a, very, very, very important. So you may not understand that. I know that it...it will, a definite...a definitely huge, huge, huge impact on all the lands that is on Kauai now, especially those that are...are designated as ag-zoned land, very, very important. So, you may not be aware of this, others may not be aware of this, I know. I've been around a little bit. I know what happened to Kilauea when the lands were taken out of ag. I know what happened to those lands and I know the effect it had on the entire island. So, I want you to know that it is not simple. It is not just Moloa'a. It is not just farmers. The impact is tremendous. So, just to let you know. Thank you. Mr. Martin: Yeah. Mr. Furfaro: Mr. Bynum. Mr. Bynum: Yeah, I...I really appreciate the comments the Chair just made because everything that we're saying here today is true. His concerns I share. He's...they're legitimate and they're real and the things that you said about the impact of, you know, not getting this right are also true and I think Scott talked about the...the...the frustration that came from athree-hour meeting that I was in attendance at and it was part of that, I assume, was some of us sharing what those concerns are that the Chair's talking about that are real and have very significant, you know, potential impact for the island and for the future of farming and a lot of other things. But everything you've said and Scott said is true as well. And in terms of us not...of needing to find a way through this maze and finding a way to support the people who've given their heart and soul to a new paradigm-I like what you said-a new paradigm that we, you know, are trying to recognize and to wrap up this comment, and I very much appreciate the comments from our Committee Chair that this is so important that even though we know that there are these difficulties in this maze, that he and others are providing the leadership to get it...to take us there. So, at the end of that three-hour meeting, I tried to bring some hope back and say, hey, we're focused on it. We've been, you know, see no evil, hear no evil for too long, so I don't know if these comments are helpful at all, but I think what...what Chairman Asing said is right on the money and what you and Scott have said is right on the money as well and we've got to find a way to marry those. Mr. Martin: Yeah, I...I arrived here with that understanding. It's not something that I've just received. It's...I know how complicated it really is and...and at the same time, you know, some of the directions and the manner in which we're addressing some of these concerns I...I feel are in many ways falling on the farmer, the farm worker, and...and their sense of security and even their constitutional rights. There's questions like that that are, you know, right in here. You know... Mr. Bynum: Well, I appreciate your very thoughtful testimony. 66 Mr. Martin: Yeah. Mr. Bynum: So. Mr. Martin: Thank you. Mr. Furfaro: I just want to clarify a couple items. The...the planning commission is not the people that we intend to create the farm plan. The farmer creates the farm plan. The farmer puts in enough detail into the plan that substantiates his request. That's what we're hoping for. The ag piece, there are parcels on Kauai, total, that do have some resources with the department, but the intent of that was to really encourage farmers in...in ag areas to work together on creating their own water source and nothing is more relevant to that than what we did in Ka Loko and the Koolau area with the failure of that dam trying to encourage the farmers to create that...that coop. I...I also want to say your point about potential bartering, it's a good one and perhaps something in the bill should just be able to, you know, calculate the value of those products. Mr. Martin: It's just needs...to me it just needs to be the door has...can't...shouldn't be closed on that as a possibility. Mr. Furfaro: But...but I think you agree whatever you trade for can be converted into a value. Mr. Martin: Yes, I...I certainly would agree with that. Mr. Furfaro: Thank you very much. Mr. Martin: Okay. Mr. Furfaro: Next speaker, please. Ms. Akiona: Next Louisa Wooton. LOUSIA WOOTON: Thank you very much for the opportunity to talk today and I would like to speak to some of the amendments that we were given last time. Mr. Furfaro: That's why we circulated it. Ms. Wooton: And that's what I thought we would be talking about and I have comments on farm plans because I'm also very familiar with those because I am the chairman of the certification committee for the Hawaii Organic Farmers Association. I just submitted my own farm plan for recertification. It was 18 pages long. I also used that for my farm plan to rededicate our property for 20 years to the real property tax division here. So I know what a farm plan is and so...but that's not what I really wanted to say. I wanted to go over some of the amendments.. . (Inaudible. ) Ms. Wooton: Oh, I'm sorry. My name is Louisa Wooton and I'm representing my family farm in Kilauea. In the amendments that we got from both Mr. Kaneshiro and Mr. Furfaro, you spoke to clustering. And I think clustering is...is certainly an idea that has its merits, but it may not have the merits on an already established farm because if you've already got your orchards planted, etc., 67 etc., your animal housing, your...all of those things, irrigation systems. Well, it wouldn't work in our case, so that's why I wanted to bring it up because I'm a case in point. And so that was one thing that I wanted to talk about too and the other was in regards to the enforcement of this. I think there's enough criteria here that we can certainly figure out those points that would make adequate enforcement. And what a...whether there's a gross sales or a dollar amount or not, I think we can derive a figure that is reasonable for, you know, for the situation and again pertain to particular farms, it may be more or less or whatever, but I don't think that it should just be something that we can't come to terms with. It's really important. I mean, for a farm, you've got to make some sort of income or barter exchange or whatever your...your...your unit of measure is and we don't... I think it will also keep the abuses down. I'm...I'm all for all of these...these different criteria: the gross amount, the 75%, ag rates or some sort of agricultural water system that you're on, you know, and then you are a bona fide farmer. I don't think any of the farmers in this room would have problems going and telling you who is a fake farm and who is not a fake farm. I wouldn't have any problem. And if you want to do a...a farmer committee to do these enforcements, I'm sure that some of us would sign right up. So, those were the points that I...we didn't really discuss at our marathon meeting the other day, but that I think are really valid. And I think that, you know, in the interest of protecting the farmland and I understand all the things we...that especially, Kaipo, you said it so well. We've got to look at the big picture here and protect the land. But let's not forget to protect the farmer too. And I would...I guess I'm out of time. Mr. Furfaro: No, no, I'm...they're giving me the next break time. Ms. Wooton: Oh, okay, I also would like to comment on Daryl Kaneshiro's amendment and...and also what Mike Dyer said earlier, how to look at CPR property as not a unit, but a farm. Let's look at these individual entities as a farm. Mr. Furfaro: Excuse me. You...I'm giving you your second three minutes. Ms. Wooton: Oh, okay. Well, I'm...I'm pretty...I'm pretty much through what I was going to say in that respect. But I did really, really like the grasp that Daryl Kaneshiro had on that particular thing which we were all kind of fretting about: How would we...how would we look at this and if...if unless...he gave an excellent example. His farm is not built to density in housing, but he needs farm worker housing. I mean it just makes so much sense to me to run the farm and the farm needs farm worker housing, so. I think that's what this bill is really, really about. Mr. Furfaro: Okay, so Mr. Kaneshiro circulated his draft proposaUamendment. Ms. Wooton: Yes. Mr. Furfaro: And you agree with it. Ms. Wooton: Absolutely, especially in that part where it defines, you know, how you're going to look at farm and the farm worker housing and the density that might be there. You don't have to build all your housing that you might have on a larger piece before you could get a smaller farm worker housing. This is temp...we're talking temporary housing that, you know, may have to be removed if it ceases to be a farm. 68 Mr. Furfaro: Let me ask you. With your ad hoc committee that reviews certified farm plans, do you have any criteria that you can give to us that we might send over for the planning commission to put in their administrative rules as to what to look for? Ms. Wooton: Well, certainly. A farm plan should have something in there on conservation. We have to look at how they're using their water, what kind of fertilizers they use, how they apply them, everything needs to be documented in an organic system. You can't even use seeds unless you document where they came from because you're supposed to use organic seed. I mean, these farm plans that we have to do are...are very, very extensive... Mr. Furfaro: I... Ms. Wooton: ...including the gross sales and how...how much you harvest off per acre, you know. And then you start getting some of these figures that the statistics come out. You know, how are the...how are your yields? Mr. Furfaro: I...I only ask that question if it is available so it's something we could send over to... Ms. Wooton: Oh, abso.. Mr. Furfaro: ...be incorporated... Ms. Wooton: ...well, I can... Mr. Furfaro: ...in their administrative review of your farm plan. Ms. Wooton: Well, what... Mr. Furfaro: What to be looking for. Ms. Wooton: Absolutely. Mr. Furfaro: Seed, water... Ms. Wooton: Absolutely. I can send you a copy of the yearly organic system plan that every certified organic farmer for the Hawaii Organic Farmers has to fill out and it's very detailed and it...it's a good plan. I mean, it's... Mr. Furfaro: I would really really appreciate a copy of that. Ms. Wooton: I'd be happy to. Mr. Furfaro: Thank you. Ms. Wooton: And you know, people like Scott that have done this, I've inspected his farm. And he's calling a lot of them, you know, there's also something that's called a green manure crop where you're actually planting something that you will turn in and get a lot of nitrogen from. He's building up organic matter. He's also, with some of that Sudan grass, getting rid of some of the nematodes and other microorganisms that he needs to get out of the soil. So, you know... 69 Mr. Furfaro: And...and I would like to have that simply because it obvi..it's obvious those organic farms are more labor intense... Ms. Wooton: Absolutely. Mr. Furfaro: And if they're more labor intense, it needs to be applied to their farm enterprise plan that supports the number of units they're looking for. Ms. Wooton: And if I can just take a couple more minutes. Mr. Furfaro: You've got it. Ms. Wooton: Our farm is very small and I am happy to have had Dickie and Bi11...Kaipo come out and I want all of you folks to come out. I really do. When you come out and see Scott or just come see us, we're a very tiny little farm. But if you're talking about how many farm worker unit housing we need for farm workers, four. And our whole system is five acres, no I'm sorry, six acres, just about six acres. And, you know, we need that many people because I told you that ours before that...it wasn't even all of it. Mr. Furfaro: Well, I look forward to your criteria. Ms. Wooton: Okay. Mr. Furfaro: And I had been to your farm a long time ago... Ms. Wooton: Oh, okay. Mr. Furfaro: ...when we were dealing with CC&Rs and the trees, comparing your application of agriculture versus... Ms. Wooton: Actually, you were...you...you're doing what everyone else does, Jay. That's John and Nandie Wooten. Mr. Furfaro: Ahhh (inaudible). Ms. Wooton: You're talking to Louisa and Bob Wooton and we're in the Waipake subdivision and John and Nandie... Mr. Furfaro: No, then I have not been to your farm. Ms. Wooton: Well, you haven't, I know you haven't. Mr. Furfaro: Okay, okay. Then I'd better do that. Ms. Wooton: You haven't seen the dairy, the only dairy on the island. Mr. Furfaro: But my daughter went. She was with the State Agriculture Leadership Program. Ms. Wooton: Leadership Program, that's right. Mr. Furfaro: She talked about your goat cheese. 70 Ms. Wooton: That's right, that's right. Mr. Furfaro: That's right, okay. Ms. Wooton: Yup, yup, yup. Mr. Furfaro: Thank you very much. Ms. Wooton: Yes, you're welcome. Mr. Furfaro: I stand corrected. Ms. Wooton: That's great. Mr. Furfaro: Any questions here? Thank you very much. Ms. Wooton: Okay. Mr. Furfaro: I look forward for that criteria. Ms. Wooton: Okay. Mr. Chang: Thanks, Louisa. Ms. Kawahara: Thank you. Mr. Furfaro: Next speaker? Ms. Akiona: She was the last signed speaker. Mr. Furfaro: Oh, she was the last speaker. Okay. I would like to... Oh, JoAnn. We have JoAnn Yukimura as the next speaker. JOANN YUHIMURA: Thank you, Chair Furfaro. I... Mr. Furfaro: And before I give you the floor, can I ask...could someone ask if Mr. Nakamura could be available because for the committee, I want him to explain farm density as an exhibit. Go right ahead. Ms. Yukimura: Thank you. I...I wasn't planning to speak but I just wanted to clarify a couple things that came up in the discussion and the previous presentations. I...I just want you to know that I, as co-sponsor of the bill, or as co- sponsor of the bill, I just want to say that the bill was not initiated or originated to help Moloa'a specifically. I actually have a memo on file from Bob Grinpas of five years ago asking me to work on this problem and then later on Louisa Wooton about a year and a half ago called and said this was a problem. And then independent of any of my contacts, the mayor's advisory committee on agriculture, and Mr. Oyama is here and can testify to that, determined that farm worker housing was one of the major problems facing agriculture on the island. So, just so you know that the intention from the start was the larger picture of agriculture on this island and how we could support and facilitate them. Moloa'a is part of that ag community. They have special issues. Nonetheless, the way the bill is structured that gives density above zoning density, it would...it would assist them too. And then the only other point I want to make is to the chair's very insightful point that, you know, the bill, if not structured properly or not enforced properly, could potentially impact the whole island in a negative way. I...that...that's very true 71 and that's the challenge for all of us who are seeking awell-working law because the law...with the law, we have to be able to distinguish between the real farmers and you've heard many real farmers today and the non-farmers. And if we can do that, you can stop or prevent negative impacts on the entire island because you will be giving extra density only for farm worker housing under very stringent conditions and that takes me to the second issue. We need a law that's written well that enables us to distinguish between the real farmers and the non-farmers and then we need enforcement of that law so that the non-farmers are not granted any new density or if they cease to...if they get the density and then they turn out not to be real farmers or the farming ceases, there is enforcement to remove the dwelling unit. That's...that's what we need in order to prevent negative impacts on the entire island and to be able to really help the real farmers. That's all I want to say. Mr. Furfaro: Thank you, JoAnn. Yes, I do also want to say, thank you for your...your leadership on getting this bill started. Ms. Yukimura: Well, that was you and I, councilmember. Mr. Furfaro: The history...well...but the...the history on Moloa'a, I thought was important for my upcoming exhibit that I'm going to ask Mr. Nakamura to give when we call the meeting back to order, so everybody understands the current density given and then... Ms. Yukimura: Yes. Mr. Furfaro: ...you know, how important is the criteria to the plan... Ms. Yukimura: Yes. Mr. Furfaro: ...when we give additional density and I...I wanted to just point out the...the special history within Moloa'a. Ms. Yukimura: I think it's wonderful that you have been drawing out that history of Moloa'a because Moloa'a was an attempt to promote real farming and it was an approximation of a policy, you know, that has worked in some respects but hasn't worked in other respect. So, we need to learn from that very much. Okay, thank you. Mr. Furfaro: Any questions for JoAnn? No, thank you. Well, Mr. Chair. Mr. Asing: Yeah, just a comment. JoAnn, thank you for your comments. That is exactly what I was trying to say... Ms. Yukimura: I know, I know. Mr. Asing: ...about real farmers, non-farmers, enforcement and the impacts for future land use decisions. Ms. Yukimura: Right, right. Mr. Asing: That's exactly what I was trying to point out. 72 Ms. Yukimura: Well, I...I know how...how long the breadth of your...your vision and history is, Chair, and so, I know you would know that, yeah, thank you. Mr. Asing: Thank you, appreciate that. Ms. Yukimura: Thank you. Mr. Furfaro: Thank you. Charlie, come on up. CHARLES BRAUN: For the record, I'm Charles Braun. I'll try to only take less than three minutes. I was thinking over the...the way of evaluating the gross value of crops and one thing is that farms take awhile for .the crops in the ground to develop from seeds to edible plants, another one is they might fail. I don't know if there should be...could be some protection mechanism or not to protect from failures and expenses. And so, you know, I also worry about getting the laws to be too complex so we're short of making the laws and understanding the same time. So I'm wondering if we could have kind of allowance for swarm behavior which is a new kind of administration where we kind of believe that the collective understanding is adequate for most of the things that happen. Mr. Furfaro: Thank you for that point, Charlie. Let me see if there's any questions. No? Thank you very much. Ms. Kawahara: Thank you. Mr. Furfaro: Is there anyone else that would like to give testimony on this bill? We're getting close to... (Inaudible.) Mr. Furfaro: Okay, please, come right up. SUE LIDDLE: Hi, I'm Sue Liddle. I...I have a farm in Moloa'a and I am not good at this, so, but I would like to say if you would like to have some more history of Moloa'a and what has happened to Moloa'a, I would love to have a committee of people get together and speak with whoever is really interested in the full history of Moloa'a and the farms and what the owners have experienced there and the sequence of changes from the original... Mr. Furfaro: Ag park. Ms. Liddle: ...ideal ag park that was presented to what every year happened with the documentation, and how we all have been heavily affected by that. So if you would like to...anyone would like to speak to that, we have stacks o£..of information regarding Moloa'a. Mr. Furfaro: Sue, thank you for that and I might see if any of my committee members have any desire to take you up on that, but I just wanted to point out there was some special history in Moloa'a. Ms. Liddle: And that's what I would like to discuss further. I know this isn't the time to do that and it...it...Moloa'a keeps...keeps coming up because we are so heavily affected with this farm worker housing. And, you know, it's affected all of our lives. So, I would love to...to discuss it at another time. 73 Mr. Furfaro: Okay, and I will put that on my radar screen for the committee. Ms. Liddle: Thank you. Mr. Furfaro: Thank you, Sue.. Mr. Asing: Jay? Mr. Furfaro: Yes. Just Sue? Mr. Asing: No, you...you really don't have to come back. I just want to let you know that you have a taker and that's me. Ms. Liddle: Thank you. Mr. Furfaro: Okay. So Mr. Asing will...is the first one signed up. Mr. Asing: Thank you, we will be...I will be contacting you. Ms. Liddle: Thank you. Mr. Asing: And we will be sitting down. I'll have someone work on that. Thank you. Mr. Furfaro: Okay. Mr. Roy Oyama, did you want to speak? ROY OYAMA: I didn't want to say anything, but I guess it's been pointing out that...I'm Roy Oyama, Farm Bureau. Like I said, I just wanted to hear what was .going on, but I think the Farm Bureau needs to express our concern and we have worked diligently to help the farmers. And I have other people calling me too about the problems of worker housing on the west side, but they didn't want to appear. I have another person that's trying to acquire land at Maha`ulepu to move and farm about 50 acres of taro, and he is concerned about that too, but he didn't want to say anything or mention his name. And quite a few people didn't want their names mentioned, so. Just...I want to speak up for the Farm Bureau that we are in support of it and yes, we are concerned also because abuse of agricultural lands has gone on for my lifetime as I farm. So I just want to let you know, we cannot let that go on because every time there's an abuse, it's always tighten the...the belt and have only the farmer suffer more. It's like the pest that we deal with while we're farming. You know we have so many issues in farming, ag theft, very, very bad on the island now as well as insects,. disease. There's so much new insects coming in and I can mention some of those because it affects a lot of the other farmers. I know...I just know of one just called me too about mites on the lime trees, which, you know, they have about 200+ lime trees, and...so you can consider that a farm because you have quite good volume to sell. They have mites, but they don't know how to spray it. They don't know what to spray, you know. And they are concerned about ag worker housing because I questioned them, are you really going to increase your acreage or if they could, they would because they need workers. So, all in all, I just want to encourage you to continue, but yes, we are also concerned about enforcement. You know, it is a big...we started from the beginning and I know it rocked a lot of farmers that didn't like what we said. And so it kind of put us on a bad footing and at this point I'd like to say that we'd like to make a good footing with the farmers in agriculture worker housing. And we are not trying to hurt anybody, but we got to do the right thing in the right form to protect the farmer itself. You've got to understand if you don't do it right, the 74 farmer might be an endangered species. I'm not joking now. That...that's a fact. How many people own a farm today because it's getting so difficult. And...and yet to cover their social needs, you know, medical, retirement. I mean, plus, you know, people want to have time to play. The farmers don't have time. I'll be honest, I'm retired. I don't have time. I had to leave my harvest and come here just to hear what you had and I...you know, I try to do a lot of public things because that's to encourage agriculture. Mr. Furfaro: Roy, I'm going to give you your next three minutes. Mr. Oyama: Sure. Mr. Furfaro: So, you still have... Mr. Oyama: Oh, no, no. I...I think I can...I can cut off. Okay, because I know you need to cut your meeting short too instead of going to past one o'clock at night. Mr. Furfaro: Actually that was 1:30 a.m. Mr. Oyama: One-thirty? Well, I know about it because... Mr. Chang: One-thirty-five. Mr. Oyama: ...I try...I tried to listen, but I fe11...I fell asleep. Well, anyway, that's...that's it. I cut it short, but I...I just want to make sure that the farmers understand that we are trying to help the best we can, but it is for agriculture for each farmer not to have the penalty. That's what I'm saying, okay. Mr. Furfaro: Mr. Oyama, I just...as...very active with the Farm Bureau, I just want to let you know where I think we're at. Mr. Oyama: Okay. Mr. Furfaro: I sent correspondence over and we want to do it right, but I sent correspondence over to the finance department because the question we haven't addressed is taxing. Mr. Oyama: Right. Mr. Furfaro: Okay. So, I hope to have them at our next meeting for them to give us some understanding. Mr. Oyama: Yeah. Mr. Furfaro: When I call the meeting back to order, I'm going to ask Mr. Nakamura to go over the current densities with us. Mr. Oyama: Okay, okay. Mr. Furfaro: And then in two weeks, I hope some of the differences, you know, you've seen some of the introduced amendments, for example I had some similarities with Councilwoman Kawahara. I still had questions versus density versus clustering versus loss prevention and spreading it out, but I'm sure over that period of time, we could work some of those pieces out because besides hearing on taxes, and the finance department's position, I would like to start 75 finalizing some of those amendments and actually get them introduced. And also making sure that everybody has a good understanding on what current density is allowed so that when people apply, they know what their current entitlement is and what they're asking for... Mr. Oyama: Okay. Mr. Furfaro: ...to support the enterprise. Mr. Oyama: Okay. Mr. Furfaro: So, I...I think we're getting closer here... Mr. Oyama: Okay, good. Mr. Furfaro: But we will have a deferral today for those two reasons. Mr. Oyama: Okay. Mr. Furfaro: ...I would hope. Mr. Oyama: Okay, very good, thank you. Mr. Furfaro: Thank you. Ms. Kawahara: (Inaudible.) Mr. Oyama: Yes. Ms. Kawahara: Mr. Chair? Mr. Furfaro: Go right ahead, Lani. Ms. Kawahara: Thank you, Chair Furfaro. Mr. Oyama, I'm really happy to see you here and I'm also really glad that you were able to come and represent the people that are kind of shy or no like come talk in front of people. So, thank you for doing that and bringing their voices here with you. Mr. Oyama: Yeah, okay. Ms. Kawahara: Yeah, appreciate it. Mr. Oyama: Yeah, and...and...I'm trying to be open-minded and try to hear from all of the farmers, of their concerns and that's what I'm...we're trying to put together because one is a CPR, but there's others on lease land and they have remaining densit...density to be used. Now, the land owner will not permit that density to be for the worker housing because I questioned because I questioned already the land owners. So, we got to think about that area too....we're trying to satisfy the farmer itself. It's not...excuse me...it's not for real estate. Okay? Mr. Furfaro: Point well taken and I also want to second Lani Kawahara's comments. Thank you for... Mr. Oyama: Sure, okay. 76 Mr. Furfaro: ...speaking for those that can't be here today. Mr. Oyama: Okay, thank you. Mr. Furfaro: We're going to do a tape change. I think that was our last speaker, and when we come back to order, I'm going to have a...a short discussion with Mr. Nakamura for the benefit of the members and then we'll see where we go from there. So, I'm...we're on a 10-minute tape break. (Inaudible. ) Mr. Furfaro: Might as well, we're half an hour out. So, let's take a 10-minute caption break. There being no objections, the Committee recessed at 2:57 p.m. The Committee reconvened at 3:19 p.m., and proceeded as follows: Mr. Furfaro: Okay, I'm going to call the Planning Committee back to order and I also want to share, you know, there are two small pieces-this is really directed at the county attorney and the finance department-that we need to have more information on and that is (1) any potential application when it comes to property tax, and (2) there is...there seems to be some confusion about the use of portable house trailers by removing the wheels. And...and I've been told that that could be in conflict with State Code. So, I'm going to send that question over to the county attorneys as well, and so, Mr. Castillo, you just...heads-up another question coming your way. On that note, I would like to call our meeting back together and before we have any discussion, I would like to ask Mr. Nakamura to share some information that I wanted us all to have equally. If I could pass this over to you folks, Tim. This is how the ag density works right now. I want to thank Mr. Nakamura. I asked him to do this a couple weeks ago so that we're all understanding the current code. So, Mr. Nakamura. There being no objections, the rules were suspended. PETER NAKAMURA, County Clerk: Vice-Chair Furfaro, Peter Nakamura, County Clerk for the record. You asked that staff look at the existing CZO, Comprehensive Zoning Ordinance, in particular in relation to agricultural...the agricultural district and the...the kinds of standards and criteria that apply for subdivision of agricultural land, and also for density of agricultural parcels. The caveat would be probably the...the best source for doing this would...would probably be the planning department. I'm also looking around to see if Mr. Dyer is here because he would also be a good source. He probably knows... Mr. Furfaro: But I think you're a pretty good source too, so. Mr. Nakamura: He may be better. So what we did was we basically looked at the Comprehensive Zoning Ordinance and particularly at two sections of the Comprehensive Zoning Ordinance: Section 8-7.4(b)(1) and Section 8-7.5. And I think when...when you talk about the subdivision o£..of agricultural land, there's...there's two components. The first component is the actual subdivision of a...a piece of agricultural land into parcels and then the second piece would be the density, the number of dwelling units that are associated with each of the lots that...that come out of the subdivision. So, the way the current Comprehensive Zoning Ordinance reads is that it breaks...when they're talking about subdivision of agricultural land, it breaks it into two categories. One is 300 acres or less and the 77 second category is 300 acres or more. In the category of 300 acres or less, there are certain types of standards and criteria. It talks about a minimum lot size. It also talks about some exceptions when you do it. So, the way the...Section 8-7.4(b)(1) applies to 300...parcels of 300 acres or less, if the acreage of the parcel is 10 acres or less, the minimum lot size that you can create from the subdivision is one acre. When it goes from 10 to 20 acres, the minimum lot size is two acres; that's the smallest lot you can have; however, there is an exception in the code that's...that states that four lots may be one acre. When you go from 20 to 30 acres, the minimum lot size is three acres and that same exception that applied previously applies here, four lots may be one acre. From 30 to 50 acres, the minimum lot size is five acres, and from 50 to 300 acres, the minimum lot size is five acres, but the restriction in the code is that you can have a...the maximum number of lots you can have are ten (10) lots. So that's for parcels that are 300 acres or less. That second portion, if it goes to parcels that are 300 acres...larger than 300 acres, which is 8-7.4(b)(2). Now once you go there, there's a different formula that applies. The f...the...and there's basically three parts to that. The first part is that you can take 75 acres and subdivide it into 10 lots and there's a 5-acre minimum size to those 10 lots. Secondly, 20% of the parcel or 300 acres, whichever is less, can be subdivided into 25-acre lots, and then the balance of the parcel cannot be subdivided. I think that's how you end with rather large remnant pieces of lots. Now, once...once you've subdivided the...the parcel into these lots, associated with each of the lots is a density figure and those densities relate to the number of dwelling units you can build on...on a single-sized lot. So, the way Section 8-7.5 of the Kauai County Code reads is that if the lot size is from one to four acres, you're allowed one dwelling unit. If the lot size is between four and seven acres, you're allowed two dwelling units. If the lot size is between seven and ten acres, you're allowed three dwelling units. If the lot size is ten to thirteen acres, you're allowed four dwelling units, and from thirteen acres on up, to all the way up, you're allowed a maximum of five dwelling units. So that's basically when you're talking about ag subdivisions, there's two parts. You're looking at the actual subdivision and the second thing you're looking at is the residential densities on each of the lots. And that's kind of a real basic rundown. I think, it...it gets...it...depending on the zoning of the lot or what areas are in the...what kinds of districts are in the lot, the formula changes, but that's probably better addressed by the planning department. Mr. Furfaro: Thank you, Mr. Nakamura. Go ahead, Mr. Bynum. Mr. Bynum: Thank you for this overview. (BC, Videographer: Check your mike, please.) Mr. Bynum: Hello. I got a new mike. The...thanks for this overview. I just...the density on one lot being three, can be addressed with a CPR, right? That's why a lot of the subdivisions you see, the three lots are in the seven- to ten-acre range. Mr. Nakamura: Correct. Mr. Bynum: Because they made a choice about how to subdivide to maximize that, right. Mr. Nakamura: Good point, councilmember. Mr. Bynum: And the other...and so I know this is a pretty complex formula and I hope planning at some point, because I think we're going to 78 have a lot of land use bills over the next year, comes and does a workshop because you've dealt with both how the lots are created and the density, but then it gets convoluted because if there is...on the same parcel open space, it changes yet again. Mr. Nakamura: Correct, there's a different formula that's applied. It depends on how much of that...that parcel is split-zoned, but, yeah, good point, councilmember. You're exactly right. I think when you apply the Condomin...Condominium Property Regime, that's...you're looking at for residential densities, it's...it's exactly what you were talking about. I mean, people will look at the number of units that are on the individual lot and that's where the Condominium Property Regime is applied. Mr. Bynum: So, this is a helpful...this is...this is helpful. Mr. Furfaro: I'm glad you think so since I asked him to prepare it for us, but I also want to make sure you were leading up to another piece. This is county ag over state ag, Peter. Mr. Nakamura: Yes. The...the assumption is the underlying State Zoning, State Land Use District is agriculture and then the county overlay is also agriculture. Mr. Furfaro: So, I just want to make sure we understood. This is ag over ag. Is there any more questions of Mr. Nakamura? Lani, did you have a question? No? Thank you very much. Mr. Nakamura: Thank you, Vice-Chair. Mr. Furfaro: Okay, our meeting is back in order. There being no further questions, the meeting was called back to order, and proceeded as follows: Mr. Furfaro: You've got some density district information for you. And I had already voiced, you know, the two pieces that I feel that are missing, especially the...the tax piece and I'm looking for us to be back here in two weeks and prepared to introduce the circulated draft amendments, actually introduce them after we've gotten all this additional information and what might be the final amendments actually being introduced. Is there any discussion amongst the members? Mr. Kaneshiro. Mr. Kaneshiro: Thank you, thank you, Chair. But it's not a discussion, but I think we need to check with the building department into what regards the water department comes into play as we ask for additional dwelling farm units. Oftentimes, they are very restrictive. So I'm not certain how this would affect the bill, but I think as we have some time, you know, atwo-week period of time, I believe we need to get some answers on that. Mr. Furfaro: Okay. Mr. Kaneshiro: Especially, you know, on areas that don't have any density and if we allow them to go ahead, put up a farm dwelling, what about the water system? Usually the department of water base their meters on density, following the planning density, so. We need to...probably as chair, maybe Mr. Furfaro: I'll send... 79 Mr. Kaneshiro: ...(inaudible) to the water department or to the building department. Mr. Furfaro: I'll send that question over. Mr. Morimoto, if...i£..could you make a note of that? I don't know where Peter went, so, or the staff, if you can... Mr. Kaneshiro: Because any determination that comes down from the water department can adversely affect this bill. It might even not make this bill work, so, you know, unless you have a drilled well or different places, but if you need to rely on the department of water or county water, we need to get some answers from them. I can see the circumstances where you have a well drilled or you do catchment basin and so forth because you're...this won't affect that. But there's a lot of places, there's a lot of farms that are still coming off the housing requirements require them to be on county water. Mr. Furfaro: Very good point. We may have to look at the possibility of accepting catchment systems and so forth rather than hold it up. Thank you. Lani, did you have a question? Ms. Kawahara: No, this is a discussion. Yeah, I just wanted to echo some of the speakers' frustration with something that is so important to all of us in having...being food secure and being sustainable and...and I want to echo that frustration is that I feel that frustration too and I think a lot...I won't speak for the other councilmembers, but I know we're all really trying to figure out how to work it out because the real fear for me is that if we do this bill and we don't do it right, we're going to lose ag land. And that's my major fear is that we lose ag land in the process of trying to get...trying to help farmers but lose ag land more than what we've already lost. So, that's my main concern that I'm looking at, but I...I want to say that the frustration is shared because it's so obvious that the...I...I visited all of...most of the farms represented here and I went to several meetings and it's...everybody wants to end up in the same place, but...but getting there is truly...is like somebody mentioned earlier, really is a maze and because of the regulations and the laws as they are now, so we're...we're working on it and trying to figure...figure it out to make sure that we don't lose the farmers that we already have that are working...working their hearts out and also don't lose any more ag land to...to speculators or, yeah, speculators. Thanks. Thank you, Chair. Mr. Furfaro: Thank you. Any other discussion before I ask for a motion to defer? May I seek a motion to defer? Upon motion duly made by Councilmember Bynum, seconded by Councilmember Kawahara, and unanimously carried, Bill No. 2318 was deferred. 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: We're going to move to the next item. Ms. Akiona: Bill number... 80 Mr. Furfaro: And if you could read that bill for me I'd appreciate it. Ms. Akiona: Sure. Mr. Furfaro: But I am expecting a visit from the planning department. I asked them to be here. Would you call them? We may have to take a short recess, but go ahead and read the bill. Ms. Akiona: Sure, 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). Mr. Furfaro: Thank you very much. I was in contact with the planning department yesterday. I'm a...I did make a request for them to be here to talk in terms of the challenges we have with the interpretations of certain SMA areas, the Earthjustice piece and their justification for submitting this bill to us. So on that note, I'm going to ask that we take a 7-minute recess. We will come back at 20 minutes of four. There being no objections, the Committee recessed at 3:34 p.m. The Committee reconvened at 3:47 p.m., and proceeded as follows: Mr. Furfaro: I'm going to call back to order the Planning Committee for the next item, the last item on our committee meeting today is 2319. I also want to take the time to thank Mr. Asing and Mr. Chang as they are non- committee members, but their participation is greatly welcome. On...on this item, I do want to share with you in my last discussion, we were waiting for comments on the discrepancies that may exist between Earthjustice and the SMA area with the bill. I have been informed by the county attorney's office, the gentleman that is working on that from the county attorney's office is...has...his family, his wife just had a baby and so he's unable to join us. So, we do not have the legal commentary on the conflict possibly there. But I did ask the planning department, Mr. Imai Aiu, to come up and give us an overview of their rationale in these proposed changes in the shoreline bill. And on that, I'm going to suspend the rules and if you could introduce yourself, and thank you for coming over. There being no objections, the rules were suspended. IMAIKALANI AIU, Deputy Planning Director: Thank you, Chair, and members of the Council, Imaikalani Aiu, Deputy Planning Director. To begin with, this bill is basically to streamline and remove unnecessary procedures which we have discovered in...while implementing the shoreline setback bill. In particular is the requirement that a setback determination be made .prior to an activity determination. To go a little backwards for those of you who weren't here for passing the original bill and just to kind of refresh those of you who were, the bill does set forth a...a number of procedures including a variance procedure which really isn't germane to what we're doing today, but there is the two procedures that are...are one, the setback determination which basically says what it is, it's how far you have to be from the certified shoreline. And then an activity determination which there is a whole list of permitted activities, included amongst them minor activities and structures which you are allowed to do in that setback area. What we've found is that the bill does require that before you get an activity determination, you get a setback determination. What that has done to some 81 projects is said, basically for activities that were out-rightly allowed within the setback area, examples of that would include lifeguard towers, movable lifeguard towers, absolutely allowed within that area by the bill, yet they first have to go get a certified shoreline, get the setback determination for that, then they can proceed to be allowed within that setback area. You know, the...determining that shoreline and that setback does not inform your decision in any way of whether that's a permitted activity or not. It just basically has you do extra time and cost. And that is in a lot of cases going to be cost that is borne by this county for projects we need to do within that area. And that is the basic reason why we proposed these amendments. Mr. Furfaro: Could...could you give us, for the purposes of this discussion, an example that could trigger additional cost to let's say...let's say building a walkway to a public shower... Mr. Aiu: Yeah. Mr. Furfaro: at the beach. Mr. Aiu: Yeah, that's...that's in fact an example we do have is, you know, the shower is already there, the restroom facilities are there. By ADA we have to make these things compliant and give access to them. So, you know, we know the walkway has to go between the shower and the existing bathroom. They're not going to go anywhere else, that's what they have to do. In this case, you know, the first thing is get a setback determination. The walkway, I mean I'm not the building expert, but maybe if I estimate from my past life as an architect how much that's going to cost you, it's going to cost you in the neighborhood of five grand. If you go back to getting the setback determination and the...and the certified shoreline, the surveyors costs and that will probably tack another five grand onto that...that services there, you know. But in the end we are by law going to determine from...from straight what the law lays out that that walkway is allowed. We are going to determine that. So, we...you know, to get to the same place the cost has doubled. Mr. Furfaro: Okay, it is...it is unfortunate that, you know, we have that difference in opinion from Earthjustice and your office that initiated this bill and hopefully we will have a...a clearer legal answer to these, what you refer to as small amenities within the c... But...but let me ask you, let's say that shower is in somebody's yard who's on a cove or a beach area and so forth. Does the exemption from doing the study, the shoreline setback. study, to determine what's allowed and not allowed, is...is it...is it good for a public project? Mr. Aiu: It would...it would be good in this...in the case of a public project or private project, it would apply the same. So, we would still have to determine in...in either case, public or private project, that the activity is allowed. We did put in a provision that when...that the director can but is not required to but can request a certified shoreline. So, it's not going to be required in every case. If you consider another minor activity, somebody puts up, you know, let's...we'll go with yours, puts up...wants to put up a shower in the shoreline setback area, determined to be... Mr. Furfaro: Let's...let's make sure we all understand. I'm not putting up a shower... Mr. Aiu: Yeah. Just a proposed example so I don't move all over the place on it...is a...in this case, you know, we...i£..if it is after whatever we 82 see in the construction plans it's determined to be a minor activity, you know, there's a number of ways that minor activity could occur. If it's down in the pine trees by the naupaka and there's some sand nearby and it's possible that that's the certified shoreline. In that case we would exercise our discretion to say, get us a certified shoreline, make sure you're not on the State jurisdiction. If it's well within...because in many of these cases that setback area is within the realm of 70 feet, you know, you could be 30 feet from where, you know, best judgment says the shoreline is and in that case again, why put that extra time and procedure on this for what is...we've already said is fine to be in that area. Mr. Furfaro: Okay, questions? Mr. Bynum. Mr. Bynum: So this is cir...this is circumstances where no matter what the shoreline determination is, whether it's here or here, it's still a permitted activity that you're going to allow... Mr. Aiu: Exactly. Mr. Bynum: ...whether that says it's here or here. Mr. Aiu: Exactly. Mr. Bynum: And, you know, we heard testimony that there's giant loopholes that would, you know, allow people to put up walls or plant plants in, you know, extending the shoreline seaward, are you concerned about that? Mr. Aiu: I would be concerned about any loopholes we s...we see in the bill. We, in our review, did not see any loopholes that said that, you know, we expanded the amounts that someone can plant seaward. We never added any language of that into there. If those are there, they exist as they are, now. Mr. Bynum: Okay and... Mr. Aiu: So. Mr. Bynum: And in order to make this determination is...what are the checks and balances? If you're going to say, okay you don't have to do the setback determination, who makes that decision and is there a way to challenge it, is the public aware of it or Mr. Aiu: All of these...the setback, any setback determination and any activity determination has to be finalized by the Commission, so it does come before a public forum. Mr. Bynum: So it gets on the Planning Commission agenda... Mr. Aiu: Yes. Mr. Bynum: ...for review by all of the commissioners and they have to okay it? Mr. Aiu: They have to, so to speak, ratify. Mr. Bynum: So there is a public process, it's not anything that could happen without public awareness and without the fine individuals that we've elected to the Planning Commission having a chance to ask questions and... Okay. 83 Mr. Furfaro: I just want to reconfirm that. So, every one of these you anticipate coming in front of the Commission? Mr. Aiu: Every one of these, we have to. We have to have it ratified by the commission. Mr. Furfaro: Mr. Asing. Mr. Aiu: Every setback and activity determination has to be ratified. Mr. Furfaro: That...that's your interpretation. Okay, Mr. Asing? Mr. Asing: Okay, wow, excuse me. Permitted activity, give me a definition for permitted activity. Mr. Aiu: A permit... Mr. Asing: What is that definition? Mr. Aiu: Permitted activities are defined in the ordinance under Section, if you allow me to take a look, 8-27.7 of the ordinance is Permitted Structures and Activities Within the Shoreline Setback Area... Mr. Furfaro: 8-27.7? Mr. Aiu: Yes. Mr. Bynum: Page ten. Mr. Aiu: Yeah, and there is a list of roughly twelve items there. Which one is it? Mr. Asing: I'm sorry, what was the section again? (Inaudible.) Mr. Furfaro: 8-27.7. Eight twenty-seven dot seven. Page ten. Top of page ten or the flipside of page 10. Mr. Asing: Okay, now the...the reason I say that and I'm, you know, not familiar with the...the CZO is, are we saying that when you make reference to a permitted activity that there is no ifs, no buts, it is...it's permitted period, so we're going to be building it anyway. Am I correct? Mr. Aiu: In the end, yes, if it meets this criteria. There is a judgment process to see if whatever you're proposing does meet this criteria. Mr. Asing: Ah! Mr. Aiu: So. Mr. Asing: Then...then you're saying it's not outright, then? 84 Mr. Aiu: No. I...I mean there are standards here. If we look at, you know, what...probably the best activity to look at is number 8, a structure or activity approved by the Director as a structure as a minor activity and then there's a whole another set of what are minor activities. So... Mr. Asing: Okay. I...I...I think the...I needed to make it plain that when you use the term permitted activity, it is not something that is automatic. Mr. Aiu: No. Mr. Asing: So there is something else that triggers that? Mr. Aiu: Yes. It has to be determined to be a mi...a permitted activity and that determination has to be ratified by the commission. Mr. Asing: Okay and...and that brings up the...the question o£ ..let me do it this way. Jade, put the... Mr. Furfaro: Do we have the portable mike for Mr. Asing? And so we're going to...we're going to focus on what you gave us as item 8, a structure or activity approved by the Director as a minor structure or activity. Am I correct? Mr. Aiu: Yes. Mr. Furfaro: Let me...let me push myself back. Mr. Asing: Okay, let me...let me explain it this way. This happens to be the shoreline, the ocean and there...there is someplace...let me have black, please. Between the shoreline here and the SMA area here, there's going to be a structure or we use the, what did we say this one is going to be? A... Mr. Aiu: Minor structure? Mr. Asing: Yeah, which is going to be what you referred to as a permitted activity. Mr. Aiu: Yes. Mr. Asing: And we can use as an example the lifeguard tower. Mr. Aiu: Yeah. Mr. Asing: Yeah, permitted activity. Okay. Now, we're going to place a lifeguard tower in here someplace, okay? Now, in order to place the lifeguard tower, you're saying, well it's permitted anyway, so we don't need to do the shoreline. Let me ask you this then. We don't know where the shoreline is here. Is it here? Is it here? Is it here? We don't know where it is, right? Mr. Aiu: We don't know where it is officially until the State determines... Mr. Asing: Well, we don't know. I mean, let's get factual now. Mr. Aiu: So. 85 Mr. Asing: Let's not say I think it's over there, I think it's here, I think it's here, it may be here. I don't know, factually, but I think it is here, and therefore, because I think it is here, if the tower is built here, it's okay. Mr. Aiu: So. Mr. Asing: Right? Mr. Aiu: Not exactly. I...I...I wouldn't necessarily, in all due respect, Chair...Chairman, Iwouldn't necessarily agree with that we would do that if there is that much variation in what... Mr. Asing: Yeah, but... Ms. Aiu: ...can be perceived to be the shoreline... Mr. Asing: ...but you don't know. Mr. Aiu: ...we'd call for the certified shoreline. Mr. Asing: You don't know factually where it is. Mr. Aiu: That's... Mr. Asing: And...and I...and I think that is the reason for the questions that is being raised by Earthjustice, okay? Mr. Aiu: Okay. Mr. Asing: That's the reasoning, I believe, that they're using. In other words, if you don't know, then how can you allow something? Because if the plan was to put it here and you...and you find, wow, the actual line is right there, that's the true line. Why, in fact, do you let that go then? Unless you know this line, you will never know. You need this line first and it has to be factual. And the only way you can get it factual is certification. So I bring up this point only to say, I believe that the reason for Earthjustice's comments is something like this, what if, and that is the question. So I leave that to you and my comments, thank you. Mr. Furfaro: Thank you, Mr. Asing. Mr. Bynum, you have a question for the planning department? Mr. Bynum: I do, and...and using this example because I want to make sure I understand. Could be any one of those four lines. I think what you're saying is we already know where we want to put the lifeguard tower no matter which line is real, it's permitted, it doesn't really matter. Mr. Asing: Ahhh, ahhh, listen to him when he...when he gave the interpretation of the permitted activity. Mr. Bynum: That was my question though. Mr. Aiu: So. Mr. Furfaro: Did you...did you understand Mr. Bynum's question and could you answer it? 86 Mr. Aiu: Yeah. The...no matter where those four lines are, basically, the...the lines that Chair Asing drew on there are...are certified shorelines, if I am to understand your illustration correctly, right? Mr. Asing: Yes. Mr. Aiu: So if those are certified shorelines, then it does raise a question of where the lifeguard tower is allowed. If it's past the certified shoreline, then they have to go through DLNR processes to get that permitted, not through us anymore. So that does raise a question, yes, of where that certified shoreline is, and the way we have answered and addressed that is to say that when there is a question like that, we will call for the certified shoreline. My contention is that not every case looks like that. There are many cases that look clearly beyond and, you know, that is one of the reasons we got a Sea Grant specialist to help us make that determination, to say that, you know, by what I see here, you are safely outside of the certified shoreline; there is not a risk of this situation happening. Mr. Furfaro: How...how would you incorporate him in any particular application? Mr. Aiu: We...we co...we comment with him all the time, on every determination. Mr. Furfaro: But I mean, is there a block that we check off that it says this application which is in question has been reviewed by the Sea Grant people? Mr. Aiu: Usually it's...it's written comment that goes along with the application. Mr. Furfaro: Go ahead, Mr. Bynum. Mr. Bynum: Oh just...and thank you for answering the question. So if we continue with this example because the Chair has put it up there, what you're saying is well maybe the shoreline is the first line, but it certainly is no way, 99.9% sure not any further than the second line, and we're going to put this lifeguard stand behind that and so we...we're 99.9% su...certain that we're in good shape. Mr. Aiu: Yeah. Mr. Bynum: Okay. Mr. Aiu: And that...that is...that is our contention of why we are asking for that discretionary call. Mr. Bynum: Okay. Mr. Aiu: And giving fair due to...to the Chair's concerns, yes, these situations can happen and, yes, you are putting a discretionary call here with us so. To put fairly on the table to what you're debating that is, you know, that is the issue... Mr. Bynum: But if it's even a close call, you can say, no, in this case we're going to require the determination. 87 Mr. Aiu: Yes. Mr. Bynum: Okay. Thank you for answering those questions. Mr. Furfaro: Mr. Chair? Mr. Asing: Yeah, just to follow up and I, you know, I'm not trying to make it difficult for you. I...I'm trying to point out the fact that there are legal issues that we need to contend with. If we are taken to court, as an example, we lose period. I mean if there is going to be a legal opinion on certified shoreline and the question is we don't know how...we lose. It's an automatic loss if the question is asked, do you know the...the certified shoreline. Do you have that information? You're going to have to say, no we don't. So what happens then? We lose. So I...I agree with you that, you know, the...the so-called 99.9%, but the fact that legally we don't know and, you know, I...I don't think that, you know, we sit on this table and we make laws, and we cannot go by the 99.9%. We...we have to protect the county and everything we do on this table is to protect the county, and that's the concern. And I believe that Earthjustice is coming from that...that side, that angle and that view, you know. And I understand where you're coming from and I really agree with you, but legally do we have a leg to stand on? I do not believe that we have. So that's just my comments. Mr. Aiu: I...I respect your concern absolutely, Chair Asing and I won't even try and answer it because that's one I'm going to wait for the county attorneys to try and address. Mr. Asing: Okay, thank you. Mr. Furfaro: Mr. Bynum. Mr. Bynum: I just want to clarify real briefly, I just...I wasn't making a judgment by what I was saying. I was making sure I understood what your position was and I concur that we need to get a response from the county attorney about both what Earthjustice and citizens came here and testified to, because they said very strongly, you know, this is illegal. Well, you know, I...I don't know the nuance of the law, but that's why we have the county attorney. So, we'll be anxious for his response. Thank you. Mr. Furfaro: Mr. Chang, go right ahead. Mr. Chang: Ha...how do you categorize the... (BC, Videographer: Mike.) Mr. Chang: Hello, hello. How do you categorize the activity of planting of trees clearly on the makai side of one's property? Mr. Aiu: On the makai side of the certified shoreline you speak of? Mr. Chang: Yes. Mr. Aiu: Right. That would be an issue for the DLNR to address because at that point that becomes their jurisdiction. 88 Mr. Chang: A couple weeks ago we saw pictures, excuse me, that Caren Diamond provided us to take a look at-thank you, Councilmember Kawahara-and I...I think this picture was like she mentioned it was taken like in the 90s, so `98 or `99 or what have you. So clearly the naupakas are now like 3, 4, 5, 6, 8 feet tall with the heliothorpes or the spider lilies, but it's like way clearly off of one's property and I had the pleasure of taking a walk along different areas on the North Shore with her and, you know, I guess you have a couple of tables, a couple of chairs, I mean it looks as though that's for the homeowner or their guests, and therefore, you know, you really run out of beach. And I think a lot of the concern is if you're going to take a tour right now, it's clearly summer, but we haven't had a major big, big, big swell in long time, and that swell is going to take away everything because at one time you had all these ironwood trees and the roots maybe keeping most of the foundation in, but I can assure you once that surf starts to come in it's going to go right under these poles of these residential areas. So I just wanted to see...I'm glad you clarified it's DLNR, but I think that's also a real big concern that many people have and like I was glad that I was able to walk out there firsthand because I would have never know what's going on within that area and I...I...I think it's the Wainiha subdivision area which was supposed to be zoned, in my understanding, as residential and I could be wrong on that. Mr. Aiu: So, to kind of respond to what you're saying, it depends, you know. Illegal plantings makai of the shoreline, obviously that's not even a matter for permit. That's a matter for DLNR enforcement, you know, whether...I think the more concern is, you know, would we permit such plantings? And the answer is of course we wouldn't. If we see...you know, as I represented, if we see that what they're saying is you're going close to the shoreline, we're going to call for the certified shoreline and make sure. Furthermore, you know, there are standards of what kind of planting you can do in here too. That would have to be reviewed under permitted activities. Mr. Chang: I...I'm sorry what would be the kind of plantings? What can you plant? Mr. Aiu: You know, I'm going to have to look at the...I'm going to have to read from it to tell you that. Mr. Furfaro: Imai, do you have a page number for us? Mr. Aiu: Well, I'm looking first at 8-27.7. Mr. Furfaro: Okay. Mr. Aiu: And then, you know, not seeing anything there, what I would do is refer to 8-27.6 to see if those are under the prohi...under the prohibited activities. And then lastly, I would look under the minor activities. And see...what we would have to judge there is, you know, (1) does that landscaping cost less than $125,000; (2) does it adversely affect the beach processes, you know. So that's the case where, you know, if you are artificially watering them, that leads to the hardening of that shoreline, then you'd have to answer, well, yeah, it probably does. And this is where, you know, we...we rely on the expertise of our coastal geologist to help us say, you know, the planting they're putting there, is that...one that's naturally occurring and is not going to affect the beach processes, or is it? Mr. Chang: Thank you, Imai. Mr. Aiu: Sure. 89 Ms. Kawahara: I...Imai? Oh, Chair. So you...you just said you rely on the expertise of your coastal Sea Grant guy? Mr. Aiu: Yes. Ms. Kawahara: Now that guy is just here by...on a grant, right? Mr. Aiu: Yes, he is. Ms. Kawahara: So he's not actually an employee that we know we're going to permanently have, so that expertise may not always be there. Mr. Aiu: (Inaudible.) Ms. Kawahara: Is that right? Mr. Aiu: Mm-hm. Ms. Kawahara: That's right? Mr. Aiu: Yeah. Ms. Kawahara: Oh, okay, okay. Mr. Aiu: So we hope to keep him here as long as we can, but... Ms. Kawahara: Right, okay. Mr. Aiu: ...you know. Ms. Kawahara: That example there I see, but I also heard of another example where a shoreline setback was established or the shoreline certification was established, the thing was built, like whatever it was a bathroom, right, and then you needed a path along to that bathroom. So the bathroom's already beyo...behind the shoreline certification because you know that you already got it, but the path is...is accessory to the...the bathroom, right? Is that kind of project what you're talking about? That would qualify as something that's minor? Mr. Aiu: You know, I guess, clarify to me where you see the path going. Because... Ms. Kawahara: Say the parking lot to the... Mr. Aiu: Yeah, the parking lot would generally, you know... Ms. Kawahara: You would already know that. Mr. Aiu: It depends on the circumstances, you know. I mean, if they're there already, they're considered preexisting, right, you know. And then their, you know, their...repair and maintenance to those facilities is permitted and the pathway, when constructed in accordance with this ordinance, would also be permitted. Ms. Kawahara: Right. 90 Mr. Aiu: I have a hard time foreseeing a situation where the pathway to the bathroom for some reason would have to go makai of where the existing bathroom is. Ms. Kawahara: No, right. It's going to be... Mr. Aiu: ...or where existing improvements are for that matter. I mean, yeah, it would rarely go from an unimproved area to improved, even if you're... Ms. Kawahara: For like your ADA thing you have to put in. Mr. Aiu: Yeah, you know, so. Ms. Kawahara: Okay. Mr. Furfaro: Are there any more questions of Mr. Aiu? No? I...I do want to thank you for being here. I do want to remind everybody that, you know, we are waiting for comments on the Earthjustice letter and we probably will defer this today because of that. But the rules are still suspended and I will ask others if they would like to come up and testify. You...you certainly are thanked by this body for being here for us today. Ms. Kawahara: Yeah, thank you. Mr. Aiu: Thank you, appreciate the opportunity to explain our position of what the department's trying to do. Ms. Kawahara: Thank you. Mr. Furfaro: I have two speakers already signed up. Carl, do you plan to speak? Is there anyone else that plans to speak? Okay, if not the first speaker I have is Mr. Joe Rosa, followed by Mr. Glenn Mickens. And I do want to remind the gentlemen, you know, we certainly honor your testimony, but if you take this into an area that specifically talks about the bike path or something of that nature, you're more than welcome to testify, but I would like to remind the members of the...the body here, the item that we have on the agenda is 2319 which is specifically speaking on the Comprehensive Zoning Ordinance amendment to shoreline and coastal protection. That's the agenda item. Mr. Rosa, the floor is yours. JOE ROSA: Good afternoon, members of the Council. For the record my name is Joe Rosa. I'm here...in specific about the bike path passing in front of the Coco Palms area in the SMA zoning area where the existing ironwood and naupaka plants are growing, which is something that is critical for the shoreline's protection there. Those trees practically are about from 49 to maybe 55 years in existence now and you want to destroy something that's protecting the shoreline? You know- those trees don't grow easy along the shoreline because there's the salt air element that burns them at times. When you have those big winter swells, you look at all the foliage along the shoreline. A lot of them get burnt from the salt air. So those are the things to recognize. Like, you know, right now in the SMA area there, there's not much area left from the...from the state right-of--way to the shoreline; there's probably maybe 30 feet of sand. Then winter months it gets less because the shoreline comes in with the rough seas. It might get only about 20 feet or 15 feet of sand. You put a 10-foot boardwalk over there, you going get 5 feet of sand. Where's the beach for the pa...for the public and the people? Right 91 now that segment there I think should be just left blank until the future highway they...they need there because the state at one time had a plan going maka...mauka. Right now, you're going to take the existing because I know when I was working there was just a 50-foot right-of--way fronting the Coco Palms and the ocean, and that 50 feet would be 25 feet makai to the ocean, 25 feet mauka to Coco Palms. Now there's two lanes of road on the makai side of the center line, that's 24 feet. There's not much left for the state right-of--way. Now the state is going to improve that when they come across the Wailua Bridge. Now, where's the...the Broadway. (sic) or the pathway going? It's going all in the sandy area and the vegetation area. So, it's against the law to even cut an ironwood tree. I take my power saw and need an ironwood tree for the imu. I cut the tree and I'll be in the court next week. DL...DLNR will take me to court for destroying the vegetation and yet the county is going ahead and ask the planning department to destroy that vegetation line? They're not any different than the public. Sure they make the laws, but it doesn't give them the right or the permission to break laws. What's good for the goose is good for the gander. That's why I come before this board time and time again to ensure things that I know about that I'm familiar with the government. I worked with DOT for 36 years, and I'm familiar with that area there working. From all that beach erosion and to the...whatever happened and even the retaining wall that they put in is just about...I think it's just right on the state right-of--way that (inaudible) wall. Mr. Furfaro: Mister...Mr. Rosa? Mr. Rosa: Yeah. Mr. Furfaro: Your first 3 minutes is up, I'm going to give you your second 3 minutes since there's only three of you signed up to speak on this. Mr. Rosa: Thank you. As I was saying, the...the retaining wall that the state put on from Coco Palms there, assumingly it's right...within the state right-of--way. They ain't going to put it, the one-foot wall, into the DLNR property. They'll stay within the 50-foot right-of--way boundary that they had there, and from what I understand, when they come off the bridge like as I said, they're going to take additional land, I guess, to provide the so-called bikeway or bike path also. So I don't know how it's going to work in there. (inaudible) plans, there's no definite plans because when I called DLNR also, they said they don't have no plans. I was asked by members of DLNR, do you know where the existing bike path going, is it going behind Coco Palms? Is it going down to (inaudible) and go behind back... I said, I don't know. But according to Mr. Tim Bynum, he said don't worry about it, that's all taken cared. But yet, they don't know; DLNR don't know. So how can you say that it's set? That's what I'm driving at. There's a lot of questions or hearsay only. There's no facts, no plans, nothing. They leave a lot of doubt in people's minds, that's including me, myself, DLNR, anybody that comes up here testifying, a lot of them don't even know where the actual route is going. That's the blank spot from Lydgate to Lihi Beach over there. So that's about what I have to say and a lot of the things like I don't know Mr. Bynum, I have to refer to his name because a lot of hi...his things is on hearsay. Committees this Committees that but who are those Committees that's all I want to know about. Mr. Furfaro: Mister...Mr. Rosa. Mr. Rosa: Yeah. Mr. Furfaro: I want to remind you... 92 Mr. Rosa: Yeah I know. Mr. Furfaro: The rules are we are limited to speak on the item that's on the agenda. Mr. Rosa: Right. Mr. Furfaro: Mr. Bynum will not be allowed to respect or respond to you on comments made about the bike path because for the councilmembers the bike path is not the agenda item. Mr. Rosa: Yeah. Mr. Furfaro: The agenda item is shoreline setbacks and coastal protection. Mr. Rosa: Yeah, I tho...I...I'm understanding that too, but that's why I say it has to do with where is it so that people can come and really testify about it too. There's no su...set complete route, Mr. Furfaro. I'd like to know that because how can you members of the council decide whether it's within that SMA area? Do you know actually? Let me ask you this question too, Mr. Furfaro. Do you know the way the actual route is going? Mr. Furfaro: Mr. Rosa, I just explained to you that... Mr. Rosa: Yeah, I know, but... Mr. Furfaro: I cannot answer you. Mr. Rosa: Yeah, so... Mr. Furfaro: But I'm going to be answering you and if I get cited from OIP because that's not the agenda item so be it because I don't want to be rude. Mr. Rosa: Right. Mr. Furfaro: I have the opportunity to know where the plan is and where the contingency plan is, yes. Mr. Rosa: Let me ask you this question then. If I go to the...the county engineer's office... ALFRED CASTILLO, JR., County Attorney: Excuse me, excuse me. County Attorney, Al Castillo. I...I...I... Mr. Furfaro: You don't need to explain, his time is up. Mr. Castillo: Okay, that's good, thank you. Mr. Furfaro: Your time is up Mr. Rosa. And I don't want to be rude, but you need to understand... Mr. Rosa: Yeah, I do, but... Mr. Furfaro: The bike path is not the agenda item. 93 Mr. Rosa: It's the shore management. I understand that but it has to do with the plans. Mr. Furfaro: But I didn't answer your question, and I don't want to be perceived as being rude. Mr. Mickens? So, Mr. Mickens, again, I just want to say if you...on this shoreline setback and coastal protection, your comments drift into bike path, that's fine. You have a broader parameter than we do. GLENN MICKENS: Okay. Mr. Furfaro: The floor is yours, and I guess you gave us written testimony? Mr. Mickens: Yes, you have a copy of my testimony. I'll read it or you can go along with it, and if you have any questions, I'll be happy to try and answer them for you anyway, and thank you, Jay, my...for the record Glenn Mickens. I am highly against Bill 2319. You Councilmembers heard at least 12 members from the public testify against the proposed route of this bike path going along the Wailua Beach, a boardwalk along the sand. Some of you members were present when Dr. Chip Fletcher sat in this seat and told you that hardening of the shoreline in any shape or form was a no-no. At the time he was basically referencing to the path in front of Pono Kai and the pavilion by the Kapa`a Beach Park that slid into the ocean. Now we hear our administration tell us that this same Dr. Fletcher is on the Path Committee that is proposing this path walk along Wailua Beach. How can Dr. Fletcher... Mr. Castillo: Excuse me, excuse me, Al Castillo, County Attorney. You know, I...I...the...the public has been informed that what's on the agenda at this point in time is the amendment. Could we, please, stick to that subject matter because we are going away from that. Thank you. Mr. Mickens: I'm trying to stay to the setback rule, Al... I'm trying to stay with... Mr. Furfaro: To the best of your ability, Glenn, go ahead. Mr. Mickens: To the best of my ability. It seems that we have a...a large disconnect here. To amend Article 27, Chapter 8 Kauai County Code 1987 relating to shoreline setbacks and coastal protection would be insane, in my opinion. I believe that Caren Diamond fought this issue through our courts and got the shoreline protection law in place. So why would we even think about tampering with it now, especially for a path that everyone with common sense agrees belongs mauka and not makai if money and need are absolutely necessary. And when it comes to funding of this section of the shoreline path, why would the federal government even think about using $4.2 million of reinvestment act money to fund a bike path, and I believe that Doug said the total segment would cost something like $8 million, when our highways are screaming for repair. TE money which as I found out...this is TE money, the $4.2 million, or not...why not lobby to get it for the highest priority needs? The phrase unintended negative consequences came up a number of times at the last meeting in relation to the boardwalk; in hardening of the shoreline, it fits perfectly. That wall along Kuhi`o Highway was put there to keep tides and surf from flooding and tearing up the road, as well as to protect Coco Palms. The negative impact on the path will be even greater from storms and high tides, so why not go mauka or stop it now? We've also heard many times from Tim and the administration that an EA and FONSI... 94 Mr. Castillo: Excuse me, Mr. Mickens, Al Castillo, County Attorney. You know, I...I hate to interrupt you, but if you can stick to your testimony regarding the amendment, it's specific to the amendment, then you'd be okay. Mr. Mickens: I am not really that sure what the amendment is on this thing, but I know this is the... Mr. Kaneshiro: Mr. Chair? Mr. Mickens: This is the...this is the setback... Mr. Furfaro: One moment, one moment, Mr. Mickens. Mr. Mickens: Yes. Mr. Furfaro: I will take this time from you. Mr. Kaneshiro: Thank you, Mr. Chair. Mr. Furfaro: Go ahead, Mr. Kaneshiro. Mr. Kaneshiro: As Vice Chair of this Committee, obviously the amendment specifically states that anything under one hundred twenty-five thousand. Your testimony already mentions you're in 4.2 million, so you're completely out of order. You're completely not on the subject... Mr. Mickens: What...wait a... Mr. Kaneshiro: ...that we're discussing. The bill we're discussing right in front of us... Mr. Mickens: Right, right... Mr. Kaneshiro: ...is any structures... Mr. Mickens: Minor. Mr. Kaneshiro: ...that are minor and under a hundred twenty-five thousand. Mr. Mickens: Well then there you...they're going to take $4.2 million to build this thing... Mr. Kaneshiro: Well then... Mr. Mickens: ...isn't that a violation? Mr. Kaneshiro: ...then obviously, you're...this not...it's not relating to this bill, because this bill has nothing to do with that kind of money at this point. Mr. Mickens: Is it all to do with the shoreline setback bill, Daryl? Mr. Kaneshiro: I think, you know, he needs to have some conference with the attorney already. 95 Mr. Furfaro: You're a...okay, let me... Mr. Kaneshiro: What I'm saying is that this bill specifically is to projects hundred twenty-five thousand or under. Mr. Mickens: But they're asking for $4.2 million to build this thing, so we're... Mr. Kaneshiro: (Inaudible.) Mr. Furfaro: Okay, let's take a 5-minute recess and I'll talk with the other side, Glenn. Thank you, Mr. Kaneshiro. Mr. Mickens: Thank you, Jay. Ms. Kawahara: Thank you, Daryl. There being no objections, the Committee recessed at 4:32 p.m. The Committee reconvened at 4:37 p.m., and proceeded as follows: Mr. Furfaro: We are back in session and I do want to caution us but at the same time please, you know, note that the first page of this ordinance that is on the agenda talks about applicability and the articles that we are reviewing are dealing with all lands (inaudible) County of Kauai that are abutting the shoreline. Therefore, if you can focus on that I would certainly appreciate it and thank you for the side bar we had. There being no objections, the rules were suspended. Mr. Mickens: Thank you, Jay. On page 1 of this ordinance for the amendment, it states that if the applicant can demonstrate to the satisfaction of the Director that the applicant's proposed improvement will not be affected by coastal erosion or hazard excluding natural catastrophes. Now I presume that means anything that's going to be affected on that particular thing. We're talking about the beach again and I know, Al, I heard you say don't talk about the bike path, but that...isn't that the proposal that we're talking about here. Isn't that what's...what we're...that's going along the beach and so... Mr. Furfaro: Actually, it...it could be that, it could be a shower, it could be a... Mr. Mickens: Yes. Mr. Furfaro: ...lifeguard stand... Mr. Mickens: Right. Mr. Furfaro: ...and some of the other examples that were shared today. Mr. Mickens: So, you know, okay. I'11...I'll save my other testimony. I'm sure this thing will come up again, but...do I not understand then that...that in this thing that it...whatever is put on that, in that particular area, on that beach is going to be affected by coastal erosion? 96 Mr. Furfaro: You're a...you're correct. That is the reference and it's also dealing with minor structures, Mr. Mickens, but... Mr. Mickens: Yeah, factors to be considered shall include but not limited to proximity to the shoreline to properties between the shoreline etc., etc. Any...anyway, I...I...I think you see the gist. You've got my...my testimony. Jay, again, I...I appreciate your leeway, letting me get some things in there. But I...I think just basically ending up that I'm...I'm only saying that the shoreline setback law that I...I think Caren Diamond worked her rear off to get put in place should be adhered to and that's why I'd like a, do you have a copy of that Earthjustice thing by chance? Mr. Furfaro: I can get a copy. We sent it over to... Mr. Mickens: I'd appreciate that. Mr. Furfaro: ...the county attorney's office and I do want to let you know there are members on this council, including myself and Mr. Bynum and Mr. Kaipo Asing, we all worked just as hard to get that done and there's members in the audience, including JoAnn Yukimura, that worked just as hard, so. Mr. Mickens: Yes. Mr. Furfaro: I would like to think it was a team effort. Mr. Mickens: They...they...they said something about it was the Caren Diamond...bill... Mr. Furfaro: They or who...the reality is there was a legal challenge in... Mr. Mickens: Right. Mr. Furfaro: ...Ha'ena, Wainiha, and those two ahupua`as of which she did win a legal case. But the ordinance was passed by this...this past county council. Mr. Mickens: Yeah, true. Well, it was passed and I think it was passed wisely, and I just think that should stay in place. Thank you, Jay. Mr. Furfaro: Thank you and thank you for staying on the subject matter, the agenda item. I think Mr. Carl Imparato is next. Is he here? Oh, there we go. CARL IMPARATO: Aloha, Councilmembers. My name is Carl Imparato and I'm speaking to you today or now on behalf of the Kauai Group of the Sierra Club. We submitted very detailed written testimony about what we regard is the major flaws of this bill last week. So what I really want to do right now is just put that testimony into context with three points. First of all, we don't believe that the county has the legal authority to waive shoreline certifications and other requirements for any projects, whether they're public or private, and we support Earthjustice's testimony in that regard. Second though, if for the sake of argument you don't agree with that lack of legality, so if for the sake of argument the county does have the authority to waive certifications for some de minimis county projects-the example that's always thrown out is the ADA accessible concrete path to the bathrooms or lifeguard tower-if...if you believe that, then the 97 modifications to the existing shoreline protection ordinance should be finely crafted, finely tuned, rather than creating enormous loopholes that would give the planning director the discretion to waive shoreline certification requirements for every project, big or little, private or public, that comes up. The proposed changes would seriously weaken the existing ordinance by giving the planning director the unfettered latitude to make determinations for all types of structures and activities, not just minor, major...for activities permitted in the shoreline setback areas without requiring shoreline surveys, coastal erosion information, information about proposed plantings, and environmental assessments. Now waiving the rules for an ADA path is one thing, but waiving those rules for any structure that's necessary for the so-called public welfare includes seawalls, bicycle paths, concession stands, anything that the county does, and waiving those rules for private projects is a real, real concern. You've heard from Caren Diamond and others that it's our contention that discretion has been abused in the past in allowing things to go into the shoreline setback area up in Ha'ena. So, please don't focus on the lifeguard tower, don't focus on the ADA path, focus on the blanket discretion that would be given to any planning director, not this in particular, but any planning director by opening up the bill...open...changing the shoreline setback bill the way this is proposed. The third point I wanted to raise is the...the definitions that have been added here. Basically, the...there's proposed...this proposes to allow overly broad new categories of permitted structures and activities in the shoreline setback area without a variance, adding the categories of unmanned civil defense facilities. Now those could be enormous structures that should indeed require public scrutiny and decision making through a variance. The proposal adds the category of structures and activities necessary for public health, safety and welfare. That in... Mr. Furfaro: Excuse me, Carl, that's your first 3 minutes and I'll go ahead and give you your second 3 minutes. Mr.Imparato: Thank you. That second category that's being proposed to be added...to add to what's allowed in the setback area without a variance encompasses everything that government is involved in because everything that government does is affi...associated with the public health, safety and welfare. So that includes bathrooms, bike paths, seawalls, just about any public use. So I would argue that you really need to...if you are...want to fine-tune this bill to deal with the problems of a...of a bike path or excuse me, excuse me, a lifeguard tower or an ADA path, you really need to fine-tune those definitions as...as to what's allowed in the shoreline setback area without a variance. So in conclusion, first of all if the concept of waiving shoreline certifications or other requirements is not legal on the face of it, then this bill should be rejected. On the other hand if you believe that it is legal to do that, then I hope that you will move the bill forward in a way that protects the integrity of the existing shoreline setback bill and doesn't give undue discretion to parties who may in the future abuse that discretion. Thank you very much. Mr. Furfaro: Thank you, Carl. Let me see if there's any questions for Carl? There are none and thank you. I...I do want to say that because we do not have an opportunity to hear back on the legal issue raised by Earthjustice and the question about waiving legal authority when it comes to the shoreline setback, I do not...I do not think we're going to take any action today without that, and I do appreciate your noting our need to comply with the Americans Disability Act and trying to treat everyone on an equal playing field when it comes to amenities that are in, you know, public facilities. But the main gist of your comments dealing with the discretion given to the planning director are well taken. 98 Mr. Imparato: Thank you very much. Mr. Furfaro: Thank you. Ms. Kawahara: Thank you. Mr. Furfaro: Do we have any more speakers? Mr. Asing: Ah, just... Mr. Furfaro: Yes, Mr. Chair? Mr. Asing: Just a comment. You know it's not unusual to give discretion to the... Mr. Furfaro: Sure. Mr. Asing: ...planning director. We have, you know, in our...some of our bills give that discretion. So it is not something that is unusual. Mr. Furfaro: I appreciate your comments and I...but I was. just trying to summarize in my mind the points that they were bringing up. So for the Sierra Club, they feel a revisit of those discretionary items, but at the same time acknowledging the Americans Disability Act. JoAnn Yukimura, did you want to come up? You will be our last speaker, so? JOANN YUKIMURA: Thank you, Committee Chair Furfaro and Chair .Asing and members. I'm going to concentrate my testimony on page 1 of the amendments because that is a major, major change. It is affecting what the bill applies to. You won't even get to what's permitted or even shoreline setbacks if things are exempted from the application of this bill or act, and it very much changes the...the original intention in terms of what this bill, what the law would apply to, whe...where would you have to come in for setback determinations. In the original bill our intention was, of course, it would apply to every property that's abutting the shoreline. But then there were some properties that weren't abutting the shoreline that might be affected by coastal erosion and action, for example a very narrow strip of property and then the property right behind it or something that was just...with a road like at 'Aliomanu, that's right on the ocean, and then the property right next...right beyond it mauka. And so we said, okay, first of all...all...this law shall apply to all abutting properties and to properties within 500 feet of the shoreline. Unless it can be demonstrated to the satisfaction of the director and we gave him the discretion that the applicant's proposed improvements will not be affected by coastal erosion and you can imagine within 500 feet it could be the next street almost. And it's obvious that that's not going to be affected. So we didn't want any hooplas or anything, we wanted him to just say, okay, this doesn't apply here. But...but there would have to be some determination. Now, what is happening with the proposed amendments from the planning department is they're allowing exceptions to abutting properties and they're requiring for properties that might be obviously outside coastal erosion, they're requiring very detailed reports from a qualified professional consultant, which doesn't make sense at all. But i£..if...and it's not to be ratified by the Planning Commission because none of...nothing else in this law will apply to this determination. So it's a major distortion of the original intention and...and I...I would say this should not be included in...this change to the law should not be accepted. Mr. Furfaro: JoAnn, just a moment. Mr. Bynum? 99 Mr. Bynum: So...so you would suggest that the original language remain and that this section just not be changed at all. Ms. Yukimura: Well, it...before the Planning Commission, I suggested some amendments that would clarify the original because what I learned because of this proposed amendment is that there's actually some misinterpretations possible of our intentions. So I would clarify that and make it really clear that the planning director's discretion about applicability would be applied only to those properties 5...within 500 feet, not to abutting properties, that all abutting properties should be covered by the law. Mr. Bynum: Yeah, the original language said... Ms. Yukimura: Well, it said... Mr. Bynum: It was applicable to abutting properties, but now there's this section number 2(b)(2). Ms. Yukimura: Well it said, abutting properties or if I may? Mr. Bynum: Yes. Ms. Yukimura: Or (b) properties locating within 500 feet unless the applicant can demonstrate to the Direc...satisfaction of the Director that it's not affected by coastal erosion. But the planning department was applying this unless the applicant can demonstrate to the satisfaction...they were applying it to abutting properties too and that was never the intention. But I can see how it's not real clear. Mr. Bynum: Right. Ms. Yukimura: So I...I have a proposed amendment to make it clear. Mr. Bynum: And then so...within this language that they're proposing amendment (b)(2) it kind of makes it clear that the Director can under certain circumstances... Ms. Yukimura: Exempt abutting properties. Mr. Bynum: exempt abutting properties, so. Ms. Yukimura: Yes. Mr. Bynum: So that is specifically your point about this... Ms. Yukimura: That's correct. Mr. Bynum: ...applicability section. Okay, thank you very much. Ms. Yukimura: Yes. Now there will be some abutting properties where the erosion rate is zero because there's a wall already, an already existing wall. So, you know, the...the setback will be only 20 feet or 40 feet, whatever the 100 minimum is because, you know, the...the life of the building times the erosion rate will be zero, because the erosion rate is zero. So there are mechanisms within the bill itself... Mr. Bynum: Within in the bill. Ms. Yukimura: ...that will make...that will acknowledge different circumstances so that the law's requirements won't really apply. Mr. Bynum: Yeah. Ms. Yukimura: But you'll go through the process. Mr. Bynum: Right. Some of this discussion is like deja vu because we had it already, right? Ms. Yukimura: Right. Mr. Bynum: Okay, thank you. Ms. Yukimura: Can I answer any other questions? Mr. Furfaro: Merci bocou, monsieur, since we're now speaking French, dej a vu. Mr. Bynum: That's the limit of my French, right there. Mr. Furfaro: JoAnn, if you want to share with one of the other councilmembers some changes that they may want to look at for amendments, that's fine. One of the disadvantages I have as Chairman is I cannot introduce amendments. So, if you want to pursue that discussion... Ms. Yukimura: All right. Mr. Furfaro: ...that's...that's fine. Ms. Yukimura: Yes, thank you. Mr. Furfaro: Is there any more questions of JoAnn? If not, thank you very much. Ms. Yukimura: May I...may I just say Maui does not exempt. I mean all abutting properties are included. So there is a precedent there, thank you. Mr. Furfaro: Yeah, I...I concur. I think when we looked at that there was an intent to mirror some of the things that Maui has as well. Ms. Yukimura: Yes. Mr. Furfaro: Is there anyone else in the audience that... Ken, please come up to speak on Bill 2319. KEN TAYLOR: Chair, members of the Council, my name is Ken Taylor. First of all I want to say I'm adamantly opposed to any changes to the...the existing or...ordinance. I'll give you some examples. First of all I...I agree with most of what JoAnn said and Carl in his testimony. And I...I really believe 101 that Kaipo raised some very good issues with his illustration on the board there and I...I don't think that the law allows you to guess even if it's 99.9% correction; you're either right or you're wrong. And I do believe the first time if this bill was passed, the first...first project that got approved under it, I would be willing to bet 99.9% that it would end up in a court activity. I'd like to say that if I buy in a special district...buy property in a special district, any district, take Kapa`a Special Planning area as an example. If I buy in there, I have to realize and understand that there's certain rules and regulations that I have to live by because of this special situation. When I buy property along the ocean, I have to be understanding that by doing so I am obligated to live by certain rules and regulations that apply to that property that don't necessarily apply to property further back. And so I think in...in all fairness to...to the people of the community, this bill should stay intact the way it was originally adopted. It took a long time to get it finalized and I commend all of you that worked hard on...on getting this done and I hate to see at this point in time something happen that's going to open up a can of worms and end up with more lawsuits that none of us need, and so I highly recommend that you deny moving forward with these changes, thank you. Mr. Furfaro: Thank you, Mr. Taylor. Any questions for Ken? Is there anyone else before I call this meeting back to order? If not, I will call this meeting back to order. There being no one else wishing to testify, the meeting was called back to order, and proceeded as follows: Mr. Furfaro: As I mentioned earlier, we are still waiting for the determination on the legal authorization of waiving, at the county level, some of these particular shoreline issues raised by Earthjustice. I also want to thank Carl for expanding on some of the testimony. Although we were looking at ADA compliance with sidewalks and location of lifeguard towers, thank you for expanding on that which will help enlighten us all as we look at any potential modification or variances allowed. Do I have any other dialog from the members here? We're in discussion. Mr. Bynum. Mr. Bynum: Thank you, Mr. Chair. I just wanted to comment on a couple of things really quickly because I know we're going to defer. You know, Ms. Yukimura...Ms...former Councilmember Yukimura is, I think, saying that she's open to amendments. In fact, she just suggested that there was a need to clarify certain language because it was a complex bill. But I totally agree with...that we don't want to do anything to undermine the integrity of the bill we passed and create any, which has been an interesting word we've used the last couple weeks, unintended adverse impacts from the decisions we make. So I clearly understand her concerns about the changes to the language to applicability, and...and I think Mr. Asing made a really good clarification of...and helped my understanding of what it is we need to clarify. So I think that we probably will end up having a bill that has some amendments but that I have every faith in the Chair and this Council's ability to...to look at those issues along with help from the people who testified here today, from Earthjustice, Mr. Imparato, and others to...to get it right. The last thing, just real briefly, that, you know, it's at the Committee level that we like to do the work and address the amendments and a couple times today it's come up about who's a committee member and who's isn't, and...and I would hope that all...all of the members of the Council, whether they're Committee members or not, would, you know, be engaged fully in this and are...engaged fully in this discussion and if they have proposed amendments, the...the current members of the 102 Committee could introduce them on their behalf. So we can do that work in Committee so when it gets to the Council everyone's had a full ability to contribute to the bill regardless of whether they are a committee member or not. Mr. Furfaro: Yes. I think Mr. Asing pointed out that and actually complimented me on the way I run my Committee. My Committee is Planning, I let everyone participate, but there are...there are certain rules when you're the Committee Chair as well. So, I can co-introduce an amendment with another councilmember, but I can't direct one on my own and vice-versa. Those that are not Committee members who would like to share an amendment to a committee member, the door is wide open, so. Mr. Bynum: Right. Mr. Furfaro: Is there any more discussion on this? Mr. Asing: Yeah, I just... Mr. Furfaro: Mr. Chair. Mr. Asing: I just want to...want to comment, I think your comment and councilmember Bynum's comment is good, but I, you know, as a reminder, you know, we are governed... Mr. Furfaro: Yes. Mr. Asing: ...legally by OIP standards, and by OIP standards, you know, we could be running that very thin line of so-called non-committee member, but we...I'm not going to say it, we...we are... Mr. Furfaro: Ex-Officio. Mr. Asing: ...ex-officio, but I'm not sure, you know. It's just we need to be careful... Mr. Furfaro: Yes. Mr. Asing: ...to operate within the guidelines of OIP rules. Mr. Furfaro: I would like to expand on that. We did change non- committee members to ex-officios that reflect the fact that they cannot vote on the item but can participate. Without that happening, the OIP interpretation was even that maybe some non-members of the committee should actually not participate in the discussion and we want to take full advantage. That's why we're all ex-officios now and those ex-officios are unable to vote. So on that, I guess I'm looking for a motion to defer. Upon motion duly made by councilmember Bynum, seconded by councilmember Kawahara, and unanimously carried, Bill No. 2319 was deferred. 103 There being no further business, the meeting was adjourned at 5:02 p.m. Respectfully submitted, Wilma Akiona Secretary APPROVED at the Committee Meeting held on August 26, 2009: JAY FU Chair, Plannin 104 ~i ~oY ~ ~f ~ ~ ~ c~i~C~t~cr~`~'t.~ ~r~~€ l (July 29, 2009) FLOOR AMENDMENT BILL NO. 2317, Relating to Small Wind Energy Conversion Systems (SWECS) Introduced by: Tim Bynum Section 8-28.5 is amended by amending subsection (i) to read as follows: "(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 small wind energy conversion system 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. The provisions of this subsection shall not apply to residential or resort zoning districts." (New material to be added is underscored. Material to be deleted is bracketed.) V:\CS OFFICE FILES\AMENDMENTS\2317fa-tb.doc:ys 1