Loading...
HomeMy WebLinkAbout12-02-2009 Council Meeting Minutes COUNCIL MEETING December 2, 2009 The Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, Historic County Building, 4396 Rice Street, Room 201, Lihu`e, Kauai, on Wednesday, December 2, 2009 at 9:14 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Bill "Kaipo" Asing, Council Chair EXCUSED: Honorable Derek S.K. Kawakami Chair Asing: Please note that Councilmember Kawakami is at a NACo meeting California and on County business. With that, Mr. Clerk, can we have the first item please? PETER A. NAKAMURA, COUNTY CLERK: The first item is approval of the agenda. APPROVAL OF AGENDA: Mr. Furfaro moved for approval of the agenda as circulated, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter is approval of the minutes of the following meetings of the Council. MINUTES of the following meetings of the Council: Council Meeting of November 4, 2009 Public Hearing of November 18, 2009 re: Bills Nos. 2332, 2333, 2334, and 2335 Mr. Furfaro moved for approval of the minutes as circulated, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? COUNCIL MEETING - 2 - December 2, 2009 Mr. Nakamura: The next matters are communications for receipt. On page 1, communications C 2009-373 and C 2009-374. C 2009-373 Communication (10/30/2009) from the Director of Personnel Services, transmitting for Council information, the first quarter reports (July- September 2009) relative to vacancies, established positions, new hires, reallocations, and promotions: Mr. Kaneshiro moved to receive C 2009-373 for the record, seconded by Mr. Chang, and unanimously carried. C 2009-374 Communication (11/02/2009) from the Chief of the Building Division, Department of Public Works, transmitting for Council information, the Building Permit Information Reports for October 2009 that includes the following: 1) Building Permit Processing Report 2) Building Permit Estimated Value of Plans Summary 3) Building Permits Tracking Report 4) Building Permits Status Mr. Kaneshiro moved to receive C 2009-374 for the record, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: On page 2 of the Council's agenda is communications for receipt. Communication C 2009-375, C 2009-376, C 2009-377, C 2009-378, and C 2009-379. C 2009-375 Communication (11/09/2009) from the Housing Director, transmitting for Council approval, a resolution establishing County priorities for the use of Community Development Block Grant (CDBG) Program Funds for program years 2010 and 2011: Mr. Chang moved to receive C 2009-375 for the record, seconded by Mr. Furfaro, and unanimously carried. C 2009-376 Communication (11/12/2009) from the Director of Finance, transmitting for Council information the Period 1 Financial Reports -Statement of Revenues as of July 31, 2009: Mr. Chang moved to receive C 2009-376 for the record, seconded by Mr. Furfaro, and unanimously carried. C 2009-377 Communication (11/12/2009) from the Director of Finance, transmitting for Council information the Period 2 Financial Reports -Statement of Revenues as of August 31, 2009: Mr. Chang moved to receive C 2009-377 for the record, seconded by Mr. Furfaro, and unanimously carried. C 2009-378 Communication (11/12/2009) from the Director of Finance, transmitting for Council information the Period 3 Financial Reports -Statement of Revenues as of September 30, 2009: Mr. Chang moved to receive C 2009-378 for the record, seconded by Mr. Furfaro, and unanimously carried. COUNCIL MEETING - 3 - December 2, 2009 C 2009-379 Communication (11/16/2009) from the Planning Director, transmitting for Council consideration, the Planning Commission's recommendation to re-designate a portion of a property in Kilauea, Kauai, Tax Map Key No. 5-2- 017:028, back to its previous land use designation as follows: • "Limited Industrial (I-L) Zoning District" back to the "Open (O) Zoning District" and "Agriculture (A) Zoning District." Mr. Chang moved to receive C 2009-379 for the record, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter at the bottom of page 2 of the Council's agenda is communication C 2009-380. C 2009-380 Communication (08/31/2009) from the Director of Finance, requesting Council approval to write-off thirty-one (31) finalled (inactive) sewer accounts and one (1) finalled sludge account totaling an uncollectible delinquent amount of $63,457.78, pursuant to Kauai County Code Section 25-14.3: Mr. Furfaro moved to refer C 2009-380 to the Budget & Finance Committee (to get a presentation at the Committee level), seconded by Mr. Kaneshiro. Mr. Furfaro: And you have public testimony. Chair Asing: Oh, Glenn. There being no objections, the rules were suspended. GLENN MICKENS: For the record, Glenn Mickens. I just have a couple of questions regarding this communication. I have a copy of it. My first question, who is responsible for not being able to collect this $63,457.78 from 32 residential and commercial accounts and who has been responsible for allowing it the accounts to be uncollectible for over six (6) years making them uncollectible due to statute of limitation laws? And what corrective action has been taken to see that this illegal action doesn't continue to happen? If I as a water user or electricity user fail to pay my bill, these utilities will be shut off. Why can't water be shut off... not wait for six (6) years to either get the customer to pay or stop his usage. Anyway, these are questions that I have and you said it is going to be deferred anyway. Mr. Furfaro: I didn't say it was going to be deferred. I am going to refer to the Budget & Finance Committee and the questions that you just asked will be surfaced in that Committee level. Mr. Mickens: Okay, thanks, I appreciate that Jay. Chair Asing; That is the reason for the referral to the Committee. COUNCIL MEETING - 4 - December 2, 2009 Mr. Mickens: Okay, we will get answers then? Mr. Furfaro: It will be on our agenda. Mr. Mickens: Okay, thank you Jay. Chair Asing: Thank you. Is there anyone else? If not, I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: And we have a motion to refer this to the Budget & Finance Committee. Is there any discussion? All those in favor say aye? The motion to refer C 2009-380 to the Budget & Finance Committee was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter on page 3 of the Council's agenda is communication C 2009-381. C 2009-381 Communication (10/22/2009) from the Director of Finance, requesting Council approval to accept services from two (2) to four (4) volunteers from Insights to Success to assist the Information Technology (IT) Division over the coming twelve (12) months, with all costs to be borne by Insights to Success: Mr. Bynum moved to approve C 2009-381, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Mr. Furfaro: I think if we do have outside volunteers that are going to work in our Information Technology area, I think it is important for us to send a communication over to Mr. Rezentes and the IT team just to make sure we are okay with security issues. Chair Asing: Excellent idea. Mr. Clerk, please note that. Any other discussion? Mr. Chang: Would we need to send a thank you letter to these volunteers also? Chair Asing: Yes, that is a good idea. Any further discussion? If not, all those in favor say aye? The motion to approve C 2009-381 was then put, and unanimously carried. COUNCIL MEETING - 5 - December 2, 2009 Chair Asing: Next item please? Mr. Nakamura: The next matter for approval is communication C 2009-382. C 2009-382 Communication (11/04/2009) from the Housing Director, requesting Council approval to decline repurchase of Unit No. 65, Villas at Puali, located at 4012 Puali Place, Lihu`e, Hawaii 96766, and provide the owners aone- year waiver of the County's repurchase right effective the date of the Council's decision: Mr. Furfaro moved to approve C 2009-382, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for approval is communication C 2009-383. C 2009-383 Communication (11/12/2009) from the Chief of Police, requesting Council approval to apply for, accept, indemnify, and expend funds from the State of Hawaii, Safe Community Program -Safety Office in the amount of $25,100 which will implement projects for under age drinking: Mr. Chang moved to approve C 2009-383, seconded Mr. Furfaro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for approval is communication C 2009-384. C 2009-384 Communication (11/16/2009) from the Mayor, requesting Council approval to apply for, receive, and expend $1,500,000 from Phase II of the Hawaii Strategic Prevention Framework State Incentive Grant (SPF SIG) administered through the Department of Health-Alcohol and Drug Abuse Division (ADAD): Mr. Furfaro moved to approve C 2009-384, seconded by Mr. Kaneshiro. Chair Asing: Go ahead Glenn. The rules are suspended. There being no objections, the rules were suspended. GLENN MICKENS: Thank you Kaipo. For the record Glenn Mickens. I just have a couple of comments/questions about this. Whatever happened to the drug center that we spent $500,000 or more to put in Hanapepe and the community said "no" to the Mayor in these Chambers as you people remember. The Mayor sat here asking to mitigate those funds somehow, but the Hanapepe community said "no", they don't want it down there. Another huge ready, fire, aim goof that cost of big bucks, We were going to find a new location for it, but I never heard anymore about it. How does this grant $1,500,000 grant, how does that fit in with the drug COUNCIL MEETING - 6 - December 2, 2009 abuse facility we still need? It is just a question that I had. I don't know whether anybody has the answer to that or not. Chair Asing: Glenn, excuse me. Those are good questions and what we will be doing, we will be asking the Mayor's Office to send us a report on the Phase I expenditure and in the Phase I expenditures, those kinds of questions that you ask will be coming out, so we will be asking for a report. Mr. Mickens: Am I correct that we never did get finality to that drug center. I mean I can so distinctly remember Mayor Baptiste sitting here, you know, trying to plead his case and people were asking, well, how did we spend $500,000 or more at that place. We weren't supposed to have touched the thing because we didn't have proper permits. I heard all the Hanapepe people testify, so... but am I right that nothing was ever further along with that situation? Chair Asing: Yes, you are correct. Mr. Mickens: So it will be brought up then? Chair Asing: Yes, I will be asking for a report on the Phase I money and the Phase I money will include that portion also. Mr. Mickens: Okay, thank you Kaipo. Chair Asing: With that, Mr. Clerk, please note that I will be asking for a full report for the Phase I expenditures. With that, any further discussion? If not, all those in favor say aye? The meeting was called back to order, and proceeded as follows: The motion to approve C 2009-384 was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter is communication C 2009-385. Mr. Chair, if we could move this to the end of the agenda until after the executive session. C 2009-385 Request (11/24/2009) from the Office of the County Attorney for authorization to expend additional funds up to $6,500 to engage special counsel for King C. Lum v. Kauai County Council, et al., Civ. No. 06-00068 SOMlBMK (U.S. District Court, District of Hawaii) and related matters. Mr. Kaneshiro moved to defer C 2009-385 to the end of the agenda, seconded by Mr. Furfaro. COUNCIL MEETING - 7 - December 2, 2009 Chair Asing: We will move that to the end of the agenda. Glenn, do you want to talk on this now or you rather wait for the... There being no objections, the rules were suspended. GLENN MICKENS: Thank you again Kaipo. You have a copy of my testimony and you can go along with me if you want to. Since 2004 when a concerted conspiratorial effort was made to get rid of our Police Chief K.C. Lum, our County has spent hundreds of thousands of dollars... probably in the million dollar range if ES-177 were to be included on outside legal counsel. Our County Attorney's Office is now asking for another $6,500 for special counsel to further pursue this case. I oppose the request. In fact, as you have heard me testify before, I continually oppose these ongoing request for thousands of dollars for outside legal counsel when we have seven (7) Deputy County Attorneys on our payroll now. As Jay wisely once pointed out to the members and to me also, as a former hotel manager... if one of these... his hotels needed major renovation, obviously, his in- house people were not capable of doing this job, so outside contractors were hired. But as our counsels have been aware of, they have been requesting to find outside counsel on a regular basis. I understand that our County Attorney's Office has a budget to fund these extraordinary cases, but this budget is obviously miniscule over what is spent. The real amount that the Council must keep approving... possibly a solution as a former Councilmember once said would be to reassign our Deputy County Attorneys to do away with their department, then just hire the outside legal counsel on an as needed basis and save the duplicity expense we encounter now and I am in no way trying to belittle our Deputy County Attorney's for their hard work they do. I appreciate their work and I know that our County Attorney when he was sworn into office made mention that he was going to do some things to reshuffle our Deputy County Attorney's Office. I am sure he has probably done his job, but I just see a huge duplicity here and I see a huge amount of money, you know, thousands if not millions of dollars being spent on these Deputy County Attorneys on these different cases that they have to be involved with. So, anyway, that is my comment Kaipo. Chair Asing: Thank you. Any questions for Glenn? If not, thank you Glenn. Mr. Mickens: Thank you. Chair Asing: I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Councilmember Bynum? Mr. Bynum: I just want to say that I listened to Mr. Micken's testimony and I want to tell him that from my perspective, our current County COUNCIL MEETING - 8 - December 2, 2009 Attorney has done an excellent job of scrutinizing the special counsel expenditures and has brought more attention and accountability to that process that I have seen previously. Also, just a reality check, but we have a pretty sophisticated operation here. The County Attorney serves as the legal counsel both to the Administration and the Council and in terms of lawsuits, in the vast majority of cases, we are responding to suits that are filed against the County, and our County Attorneys have regular ongoing responsibilities to review potential legislation to represent the County in a myriad of matters and sometimes these lawsuit... we don't control who sues us and we need the expertise, you know, to respond to specific circumstances, so just for myself, I feel pretty confident about the scrutiny our current attorneys are giving to these expenditures and his attempt to be as frugal as possible. The last comment that I will just say is, sometimes you put really powerful words in your testimony like concerted conspiratorial efforts and I respect your right to have those opinions, but I just want to say that I may not share the opinions about whether there was a conspiracy or not, so... thank you very much. Chair Asing: Any further discussion? Councilmember Furfaro? Mr. Furfaro: Thank you Mr. Chair. I just wanted to make a special note and the public can make reference back to our press release regarding ES-177. You know, there are certain cost here that are not necessarily only controlled by the Council. If you recall, the County had a favorable results with the Fifth Circuit Court on 177. Subsequently, an appeal was made in the intermediate courts by OIP... the County was successful again in defending itself and then another appeal was made to the Supreme Court on 177 and that was the State pursuing that appeal to the Supreme Court and we, again, succeeded in defending ourselves, but the point that I am trying to make is, those court appearances, those appeals to the whole process, Fifth Circuit, the intermediate courts, the Supreme Court were not brought on by us, but were brought on by appeals that drove the cost upwards, and they were all State initiated, not County. Thank you. Chair Asing: Thank you. Any further comments Councilmembers? If not, I'd like to say really the same things that Councilmember Bynum and Councilmember Furfaro related to. Glenn, again, the words you use and I did the same thing as Councilmember Bynum. I highlighted concerted conspiratorial effort and I don't know where you get these terms from. Glenn, as long as I have been here, there has been no conspiracy on my part. I am the initiator of 177, so I know what happened. I know what the court ruling was. I know what the Hawaii Supreme Court ruling was and we won the cases in three (3) different courts, and you continue to use these strong languages and to me, they are totally out of order, and they are not correct. There was no conspiracy. It is what happened, actually what happened, and, you know, and we have Supreme Court rulings, we have the Supreme Court ruling that you make reference too all the time on the `ohana issue, that also we have a Supreme Court ruling and we won. So Glenn, I wish that you would put your emphasis on what is right and what is right 15 W~lat tl1e ruling Of the highest court of the land here in Hawaii is and that is COUNCIL MEETING - 9 - December 2, 2009 Hawaii Supreme Court, and in both cases, the County won. So we are not wrong and I... you know, sometimes it is difficult Mr. Mickens to listen to some of the things that you make reference to, our County Attorney's Office. I will back this up fully. The County Attorney's Office knows what it is doing. You cannot take a case that has been ongoing for years and then put somebody else to take care of it. There is a long history and record and you need to keep that in tact and keep that going in that same manner rather than say, now we are doing it different. The County Attorney's Office will now take the case, that is not the right way to do it, that is the wrong way to do it. We should continue with the same team that we had going on the case for years and as long as the case is going for years, we should do that, and we should not change horses in mid stream, so that our new attorneys now will have to go review all cases and get... to make sure that they have all the information to take care of the case. That should not be the way it should be handled that is why I would be fully supporting the actions of the County Attorney's Office. With that, thank you. Councilmember Kaneshiro? Mr. Kaneshiro: Thank you Mr. Chair. I just wanted to add that, you know, when we have speakers that come before us and make testimony as such, I know it is a freedom of speech, but I think I would like to point out to our County Attorney that when they start making accusations as such... when you say concerted conspiratorial effort, perhaps in the future, our County Attorney might have to put a stop to speakers that make such accusations, so I just wanted to point that out. You know because we have the facts and we know exactly as you stated, you know, the Supreme Court matters and so forth, but to have some speakers just come up here and say what they want to say, I believe that at some time perhaps the County Attorney could stop it on conditions that were totally out of order. I just wanted to point that out. Chair Asing: Councilmember Kaneshiro, while I understand, you know, your thoughts, I have some difficulty in agreeing to that only because, you know, it is the right of the citizen to say what he believes is right in his heart and Glenn believes in his heart that he is right like I believe in my heart that I am right. So, you know, he has a right to say what he believes is right like I have my right to say what I believe is right, so I want to honor that, but I will totally disagree with some of the language that is used, but I understand. So with that, any further discussion? Mr. Kaneshiro: Thank you for that Mr. Chair. Then I will say from my part, you know, I totally don't agree with what Mr. Mickens stated and I want to point it out to the public that concerted conspiratorial effort wording that Mr. Mickens used is his own interpretation and as a Councilmember, I feel that we are not here trying to do any conspiratorial effort on anyone. We try to do the best for the community and when you talk about concerted conspiratorial efforts, you know, I strongly object personally to that type of language being used upon me as a Councilmember. COUNCIL MEETING - 10 - December 2, 2009 Chair Asing: Thank you. With that, Councilman Chang. Mr. Chang: Thank you Chair. I just wanted to say that, you know, not having the long history as many of you are here on the table Chair, I want to thank you for letting the public know that our outside legal counsel as well as our County Attorney's Office... the Deputy Attorneys, they are doing a great job here and I just think it is very important that you reminded everyone that the ruling was in favor of the County, and I think that is very, very important for people to know that, you know, if we are going to the highest Hawaii Supreme Court and we are ruled in favor, then I think that says a lot of the people that we are intrusting to help us with the decisions that are made. So I want to just thank you for sharing with us the history that many of us might not be aware of with this particular case, but, you know, the bottom line is I think the public should know that the ruling was in favor of the County, so I appreciate you informing the public what the outcome was, favorable for the County. Thank you. Chair Asing: Thank you. Any further discussion? If not, we have a motion and second on the floor. All those in favor say aye? The meeting was called back to order, and proceeded as follows: Mr. Kaneshiro: We have to go put it to the end of the agenda. Mr. Furfaro: Yes, the motion was to put it to the end of the agenda. The motion to put C 2009-385 to the end of the agenda was then put, and unanimously carried. Mr. Nakamura: The next matter for approval is a legal document, communication C 2009-386. LEGAL DOCUMENT: C 2009-386 Communication (11/20/2009) from the Director of the Office of Economic Development, requesting Council approval of the amended West Kauai Technology and Visitor Center lease between Kikiaola Land Company, Limited, and the County of Kauai to allow the operation of a gift shop. • Amendment to the Indenture of Lease Mr. Chang moved to approve LEGAL DOCUMENT: C 2009-386, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter is a claim which is communication C 2009-387. COUNCIL MEETING - 11 - December 2, 2009 CLAIMS: C 2009-387 Communication (11/10/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Cathleen B. Ibanez for damage to her vehicle, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-387 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matters for approval are Committee Reports. COMMITTEE REPORTS: BUDGET & FINANCE CONIlVIITTEE REPORT: A report (No. CR-B&F 2009-22) submitted by the Budget & Finance Committee, recommending that the following be approved on second and final reading: "Bill No. 2333 AN ORDINANCE AMENDING ORDINANCE NO. B-2009-691, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2009 THROUGH JUNE 30, 2010, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($150,000 - Kapa`a -Wailua Development Plan)," Mr. Bynum moved for approval of the report, seconded by Mr. Furfaro, and unanimously carried. (See later for Bill No. 2333) A report (No. CR-B&F 2009-23) submitted by the Budget & Finance Committee, recommending that the following be approved on second and final reading: "Bill No. 2334 AN ORDINANCE AMENDING ORDINANCE NO. B-2009-691, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2009 THROUGH JUNE 30, 2010, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND (Transfer $230,000 from Kapa`a New Fire Station to Pi`ikoi Building Design)," Mr. Bynum moved for approval of the report, seconded by Mr. Furfaro, and unanimously carried. (See later for Bill No. 2334) Chair Asing: Next item please? COUNCIL MEETING - 12 - December 2, 2009 Mr. Nakamura: From your Committee on Economic Development/Housing Committee, Committee Report EDH 2009-10. ECONONIIC DEVELOPMENT/HOUSING CONIlVIITTEE: A report (No. CR-EDH 2009-10) submitted by the Economic Development/Housing Committee, recommending that the following be received for the record: "EDH 2009-9 Communication (10/20/2009) from Committee Chair Dickie Chang, requesting the presence of Sue Kanoho, Executive Director, Kauai Visitors Bureau (KVB), to provide an update on Kauai Visitors Bureau's efforts to promote tourism on Kauai since receiving the KVB Economic Stimulus Grant," Mr. Bynum moved for approval of the report, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: On the top of page 5 from your Committee on Public Works/Elderly Affairs, Committee Report CR-PWE 2009-07 and CR-PWE 2009-08. PUBLIC WORKS/ELDERLY AFFAIRS CONIlVIITTEE: A report (No. CR-PWE 2009-07) submitted by Public Works/Elderly Affairs Committee, recommending that the following be received for the record: "PWE 2009-4 Communication (11/19/2009) from Committee Chair Tim Bynum, requesting agenda time for a presentation from Howard Wiig, Energy Analyst, Department of Business, Economic Development, and Tourism on the International Energy Conservation Code, as it relates to Bill No. 2332 (Energy Code)," Mr. Bynum moved for approval of the report, seconded by Mr. Kaneshiro, and unanimously carried. A report (No. CR-PWE 2009-08) submitted by the Public Works/Elderly Affairs Committee, recommending that the following be approved on second and final reading: "Bill No. 2335 A BILL FOR AN ORDINANCE AMENDING CHAPTER 13, ARTICLE 4, SEC. 13-4.1, OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE ELECTRICAL CODE AND ADOPTING THE NATIONAL ELECTRICAL CODE, 2008 EDITION AS A STANDARD FOR ALL ELECTRICAL WORK," Mr. Bynum moved for approval of the report, seconded by Mr. Kaneshiro, and unanimously carried. (see later for Bill No. 2335) Chair Asing: Next item please? COUNCIL MEETING - 13 - December 2, 2009 Mr. Nakamura: From your Committee on Public Safety/Energyllntergovernmental Relations, Committee Report CR-SEI 2009-06. PUBLIC SAFETY/ENERGY/INTERGOVERNMENTAL RELATIONS CONIlVIITTEE: A report (No. CR-SEI 2009-05) submitted by the Public Safety/Energyllntergovernmental Relations Committee, recommending that the following be received for the record: "SEI 2009-5 Communication (11/9/2009) from Committee Chair Derek Kawakami, requesting agenda time for a presentation from Renewable Electronics Transportation International on "Time is of the Essence: Changing America's Transportation and Power Alternatives," which is a model energy and transportation program across the United States," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for approval is a Resolution. This is Resolution No. 2009-70. RESOLUTIONS: Resolution No. 2009-70, RESOLUTION ESTABLISHING COUNTY PRIORITIES FOR USE OF COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM FUNDS: Mr. Furfaro moved to adopt Resolution No. 2009-70, seconded by Mr. Kaneshiro, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Asing TOTAL - 6, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: Kawakami TOTAL - 1. Chair Asing: Next item please? Mr. Nakamura: The next matter is Bill for first reading. This is Proposed Draft Bill No. 2340. BILLS FOR FIRST READING: Proposed Draft Bill No. 2340 - A BILL FOR AN ORDINANCE RELATING TO ZONING DESIGNATIONS IN ORDINANCE NO. PM-229-91; KILAUEA, KAUAI (County of Kauai, Applicant): Mr. Furfaro moved for passage of Proposed Draft Bill No. 2340 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for January 6, 2010, and that it thereafter be referred to the Planning Committee, seconded by Mr. Kaneshiro, and carried by the following vote: COUNCIL MEETING - 14 - December 2, 2009 FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Asing TOTAL - 6, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: Kawakami TOTAL - 1. Chair Asing: Next item please? Mr. Nakamura: The next matters are bills for second reading. The first bill for second reading is Bill No 2333. BILLS FOR SECOND READING: Bill No. 2333 - AN ORDINANCE AMENDING ORDINANCE NO. B-2009-691, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2009 THROUGH JUNE 30, 2010, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($150,000 - Kapa`a - Wailua Development Plan): Chair Asing: Any discussion? Mr. Furfaro: Yes Mr. Chair, I would just like to thank the Planning Department for getting into the Committee the actual amendment and the scope of the work covered in that amendment. Chair Asing: Thank you. Any further discussion? Glenn? There being no objections, the rules were suspended. GLENN MICKENS: Thank you again Kaipo. For the record, Glenn Mickens. I had a testimony before this. I will just repeat a little bit of it. I repeat my previous testimony about spending millions of dollars on planners and designers of projects... that there is no money in the budget to proceed or build what the planners have given us. As an example, I gave you the Hanama`ulu to Kapa`a/Wailua project... it began where 15 years ago, we paid the planners and designers of this project, but they were shelved in or still shelve for lack of construction funds, so realistically, why not make sure the building phase money is available before wasting huge sums of money on planning and the design phases. It just seems like... it would be the prudent thing or I ask the same question about, if you are building a house, before you go out to your architect and spend $2,000 or $3,000 on your design and for plans. You know you got the money to build the house or you wouldn't spend that kind of money, and just put the plans aside. I am sure you wouldn't do it that particular way, so anyway, this is my concern about continually... not just for this particular project, but for all our projects. We keep on spending, spending, spending, and it just seems like it is money that, hey, you know, they finally just pigeonhole the thing or they put it someplace until they can COUNCIL MEETING - 15 - December 2, 2009 see if they can ever get the money for doing this. So, anyway, this is my testimony. And, you know, I heard you guys all pretty much getting on my testimony... prior testimony. We don't have a chance to rebut this. I mean we can't come up here if it is not on the agenda, so we can't (inaudible). I appreciate you saying that we do have the right of freedom of speech even though Daryl may not think so. ALFRED B. CASTILLO, COUNTY ATTORNEY: Excuse me. County Attorney Al Castillo. Speaker is out of line regarding going into this subject matter. Mr. Mickens: That is what I said. I haven't been able to rebut anything, but I do have facts to back up what I say. Mr. Castillo: I am sorry you are out of line. Mr. Mickens: I am sorry Al. I am done. Thank you Kaipo. Chair Asing: Thank you. Is there anyone else? The meeting was called back to order, and proceeded as follows: Chair Asing: Is there any further discussion? Mr. Furfaro: It has to be recognized. Ms. Kawahara: May I have a question for Mr. Mickens. Just a real quick one. Chair Asing: Glenn, do you want to come up please? There being no objections, the rules were suspended. Ms. Kawahara: Good morning. Mr. Mickens: Good morning. Ms. Kawahara: This is the second time you have told us... asked about the moneys and whether or not we have the moneys first before we make the plan. Is that right? Mr. Mickens: Yes. Ms. Kawahara: I am not sure I understand that. Do you expect people to give us money and must look for money before we even have a plan? I mean that sounds like something that is a little speculative. You know like when people come up in front of us and they say, I have a million dollar project, but I am not going to tell you what the plan is. COUNCIL MEETING - 16 - December 2, 2009 Mr. Mickens: Right. Ms. Kawahara: I don't understand your argument that we should not have a plan before we have the money. Mr. Mickens: Well, yea, I am just saying before we spend these thousands or millions of dollars on the planning phase, let's see that we have money in place to be able to do it. Are we kind of doing it backwards? We are spending huge amounts of money on these designers and planners... like I pointed out the Hanama`ulu project, it is still sitting down on the shelf. We don't have the money to build it, so why did we spend hundred of thousands of dollars on Okamoto or whoever was the designer of that thing if we don't have the money to do it. What is the... I don't see the purpose. Ms. Kawahara: It is a long term planning kind of vision thing I think that you need... the County has to have in order to move us forward. Planning has to be done. Mr. Mickens: Sure. Ms. Kawahara: Before we can spend any money. Mr. Mickens: But you are going to look at the total picture I presume Lani. You are going to look at the total picture to see that we are going to have the funding anymore than we are going to spend $200 million for that highway out there. I don't think the Department of Transportation has the money, but I guess they will eventually. Ms. Kawahara: Thank you. Mr. Mickens: You're welcome. Chair Asing: Okay, Councilmember Kaneshiro and then Councilmember Bynum. Mr. Kaneshiro: Glenn, you know, I was wondering what kind of money does it really cost the County of Kauai for good planning? This is what it is all about. The Kapa`a Development Plan is about good planning. Do we zone more here? Do we do more with ag land? Do we do this? Does that cost money to do that? Do we need the money up front to do that before we do a development plan that shows where is good development, where is probably bad development, where probably commercial shouldn't be? That is what we are talking about. That is what this plan covers. This plan doesn't just say we are going to go build this, build that, build this. Where we are going to do it? Where is the proper place to do residential activity? Where is the proper place for commercial? Does that cost us money to do COUNCIL MEETING - 17 - December 2, 2009 that? So I don't understand what you are saying when it cost us million of dollars when the plan really is a plan of proper planning for this area. Mr. Mickens: Then Daryl, how would you make it right in the case of that Hanama`ulu bypass project? How would you... Mr. Kaneshiro: You are totally off the record. You are totally off the subject. We are talking about the Kapa`a Development Plan. Mr. Mickens: No, no. We are talking about the planning and the building phase of what we are talking about here. You are giving them money and we know we can't do it, but we are going to give them the money to do... Mr. Kaneshiro: Why can't we do proper planning with a plan that we have right now that we are doing? Why can't we? Mr. Mickens: The key Daryl is proper, proper planning. Mr. Kaneshiro: And this plan will show you this. This is what we are putting the money in there for, so consultants, the neighborhood, everybody can get together, sit down, and say this is where we want this development to perhaps happen. This is what we want ag land to be like perhaps happen. This is what we want the commercial district perhaps happen. That is what we are talking about. It is not about building this, building that. It is about proper planning. Mr. Mickens: But the planning is going to include the building is it not Daryl? Mr. Kaneshiro: Does it really? Mr. Mickens: Yea. Mr. Kaneshiro: Glenn, come on. Mr. Mickens: Yea, isn't that what you are planning for to build something? Mr. Kaneshiro: You are telling me that if I am going to zone or downzone a property that that means building, I mean come on. We are talking about ag land, open space, all this other areas. Does it mean we have to put money? What are you talking about? I don't understand that. I totally don't understand what your statements are. Chair Asing: With that, Councilmember Bynum? Mr. Bynum: Good morning Glenn. COUNCIL MEETING - 18 - December 2, 2009 Mr. Mickens: Good morning. Mr. Bynum: Just let me try to bring some clarity to this discussion at least for myself. I understand your premise that we shouldn't spend money planning a project unless we feel like we are committed to completing it. I don't disagree with that and that will come up maybe in the next item. This item, however, is about the community development plan. It is about our Planning Department engaging the public in a dialogue about how we should build out our community in the Kapa`a/Wailua area. It is about creating the template for... as Daryl has said, where do you want housing? Where do you want light industrial? Where do you want to have parks? How do you want to do it? It sets the guidelines for potential private developers in the future where they can build, what kind of streetscape they need to have, and unfortunately, we are kind of behind on renewing these community development plans. So we end up having the community that our citizens desire with the amenities they desire, and just to clarify for you that this is about that community development plan. It is not about the County subsequently expending funds on a project. It is about guidance for development in the Kapa`a/Wailua area. Now the highway project that you talk about I share some of your feelings. State DOT has discussed about that for many years, but that is a State project. The County has no involvement in that, but your basic premise that we should be thoughtful about where we expend planning dollars on a project that we intend to do like the next one that is on the agenda, I think that is a reasonable statement, so... Mr. Mickens: Well, Tim, I really appreciate your explanation. Maybe I've got the two (2) things confused as you have said. One project with the other anymore than the drug center down there was, you know... I thought that waste of funds, but not look at the big picture, and I thought basically the planning phase of this thing was basically for that, but your explanation, you know, makes sense to me, and I apologize if I tried to mix the two (2) things, but you... I am glad you see at least where I am trying to come from. Mr. Bynum: I do and I get confused sometimes too, so I just hope that brings some clarity to the discussion. Mr. Mickens: Thank you. Mr. Bynum: Thank you. Chair Asing: Thank you. Councilmember Furfaro? Mr. Furfaro: Glenn, just for my colleagues, I want you to know that I did after Glenn's discussion last week revisit almost everything that Mr. Bynum just shared with you. I also gave you the eight (8) critical plans and the COUNCIL MEETING - 19 - December 2, 2009 listings, the scope, the funding, and the fund balances. Perhaps I didn't do as well as I have hoped to. Mr. Mickens: I read those Jay, they were very good. Mr. Furfaro: I just want to make sure my colleagues knew we have them, so that we can perhaps steer away from this kind of discussion the next time around. I also shared with you the single biggest thing that we can do here is, in fact, to plan our future, and we now know we need to separate the actual spending from the planning. But as I told you last week when we met one on one and I gave you those documents... if we don't have a shovel ready project, design, concepts, changes that we want to make in zoning, we can't apply for Federal stimulus money. It has to be shovel ready. I also indicated to you if it is scope that is larger than we can fund in normal repair and maintenance, we may have to add it to the bond float. In other words, the money that we borrowed to do, but all of them require plans and I just want to share with my colleagues that I shared that with you last week after the meeting, and I hope that you can use it as a reference going forward. Mr. Mickens: Yea, I did go over those, that list that you gave me and I do appreciate it. It made a lot of sense to me. Thank you Jay. Chair Asing: Thank you Jay. With that, the meeting is now called back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: We have a motion on the floor. I am sorry, go ahead Councilmember Bynum. Mr. Bynum: Now that you have called the meeting back to order, I just appreciate the testimony and the attempt to clarify it. But in this particular instance, we are talking about funding the Kapa`a/Wailua Development Plan which is in the works now and I think there are 20 citizens... 27 citizens on the advisory committee that have worked diligently on this about casting out a development plan for that area, so it is the guideline for the future of how we build out our community, and it is a critical thing, so I am in support of this Resolution to complete that work. Chair Asing: Any further discussion? Councilmember Furfaro? Mr. Furfaro: And as we earlier stated, I did want to thank planning. I concur with Mr. Bynum that this extra money is about finishing a plan, not redoing the plan, but finishing the plan. I also want to make the point, again, when the Planning Department comes forward and during these economic times, it COUNCIL MEETING - 20 - December 2, 2009 is very important that we scrutinize these amendments, so we can complete the plan. We have very tight resources at the moment. I will be supporting this. Chair Asing: Thank you. Any further discussion? If not, roll call please. Mr. Kaneshiro moved for adoption of Bill No. 2333 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Furfaro, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Asing TOTAL - 6, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: Kawakami TOTAL - 1. Chair Asing: Thank you. Next item please? Mr. Nakamura: The next bill for second reading is Bill No. 2334. Bill No. 2334 - AN ORDINANCE AMENDING ORDINANCE NO. B-2009-691, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2009 THROUGH JUNE 30, 2010, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND (Transfer $230,000 from Kapa`a New Fire Station to Pi`ikoi Building Design): Mr. Furfaro moved for adoption of Bill No. 2334 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Councilmember Bynum? Mr. Bynum: Yea, just to kind of bring this to... this item does, you know, have the thoughtful consideration that Mr. Mickens is suggesting. You know, should we spend funds on the design of the Pi`ikoi Building and, you know, and do we, you know, intend to proceed with it. And so just to... explanation to the public, this is a transfer of funds from the Kapa`a New Fire Station because in this current economic climate, our bids are coming in lower than we estimated, very different than a few years ago. And so we had funds in that account that weren't needed for that and there... which is good news for the public that there were $230,000 we, you know... because we got good bids and now those funds to design the build out of the Pi`ikoi Building which I totally support because that Pi`ikoi Building has unused space. And just from a business point of view, that is an asset that the County has, office space, and it has gone unused for a long period of time. Our Council Chair has very strongly encouraged the use of that space and questioned appropriately us in renting space in other places when we have space here in the County. So this is a difficult time for us to spend money, but it is an asset to the County that we need to put to work. And so, you know, I go through COUNCIL MEETING - 21 - December 2, 2009 that analysis that you suggested Mr. Mickens, you know, because I agree with it. If you are going to do a planning, are you prepared to move forward and in this instance, you know, my answer is "yes," so I will also be supporting this. Chair Asing: Thank you. Any further discussion? Yea, I want to add that Councilmember Bynum is correct for your information Glenn and that we also had some stimulus money that came in and because of that stimulus money that added to... that was used for the project, we had some surplus too, and that is the reason we could take the money out of that pot, and now move it to this pot because we need to get the Fire Department in that building, so that is the rationale behind all of these moves. With that, any further discussion? Mr. Furfaro: Thank you for bringing up that point, but that was similar... what I am saying, you now have plans ready that we can actually take to get stimulus funds we applied. So we funded the project, it came in at a good number, but we actually... because we had shovel ready plans, we were able to qualify for stimulus money for that project which created the surplus. Chair Asing: Yes, thank you. Any further discussion? If not, roll call please. The motion to approve Bill No. 2334 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Asing TOTAL - 6, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: Kawakami TOTAL - 1. Chair Asing: Thank you. Next item please? Mr. Nakamura: The last bill for second reading is Bill No. 2335. Bill No. 2335 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 13, ARTICLE 4, SEC. 13-4.1, OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE ELECTRICAL CODE AND ADOPTING THE NATIONAL ELECTRICAL CODE, 2008 EDITION AS A STANDARD FOR ALL ELECTRICAL WORK: Mr. Bynum moved for adoption of Bill No. 2335 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Asing TOTAL - 6, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: Kawakami TOTAL - 1. Chair Asing: Can we have the County Attorney up please? COUNCIL MEETING - 22 - December 2, 2009 There being no objections, the rules were suspended. ALFRED B. CASTILLO, COUNTY ATTORNEY: Good morning Council Chair, Councilmembers, Al Castillo, County Attorney. Should I read both of them? Chair Asing: Yes please. Mr. Castillo: I am asking for executive session ES-410. ES-410 Pursuant to Haw.Rev.Stat. §§92-4 and 92-5(a)(4), (6) and (8), and Kauai County Charter section 3.07(E), the purpose of this executive session is to provide the Council a briefing on King C. Lum v. Kauai County Council, et al., Civ. No. 06-00068 SOM/BMK (U.S. District Court, District of Hawaii) and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. Mr. Castillo: And ES-411. ES-411 Pursuant to Haw.Rev.Stat. §§92-4 and 92-5(a)(4),(6) and (8), and Kauai County Charter §3.07(E), the purpose of this executive session is to provide a Council briefing, update, and to request authority relating to a possible settlement proposal in the claim filed against the County of Kauai by Cushnie Construction Company for reimbursement of costs incurred. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. The meeting was called back to order, and proceeded as follows: Chair Asing: Can I have a motion to move into executive session? Mr. Furfaro moved to go into executive session on ES-410 and ES-411, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: We are going to move into executive session and then we will be back at 1:30 for the public hearing and we have just one other item on the agenda which is item 2009-385 on King vs. Kauai County Council item, and that will be taken when we get back after the public hearing. There being no objections, the Chair called for a recess at 10:03 a.m. The meeting was called back to order at 2:10 p.m., and proceeded as follows: Chair Asing: With that, Mr. Clerk, can we have the last item on the agenda? COUNCIL MEETING - 23 - December 2, 2009 Mr. Nakamura: Mr. Chair, we are on page 3 of the Council's agenda on communication C 2009-385. C 2009-385 Request (11/2412009) from the Office of the County Attorney for authorization to expend additional funds up to $6,500 to engage special counsel for King C. Lum v. Kauai County Council, et al., Civ. No. 06-00068 SOMlBMK (U.S. District Court, District of Hawaii) and related matters: Mr. Furfaro moved to approve C 2009-385, seconded by Mr. Bynum, and unanimously carried. Chair Asing: This concludes the Council meeting agenda items. Thank you. ADJOURNMENT: There being no further business, the meeting was adjourned at 2:11 p.m. Respectfully submitted, PETER A. NAKAMURA County Clerk /lki