HomeMy WebLinkAbout07-08-2009 Public Hearing Minutes Bill No. 2317 PUBLIC HEARING
JULY 8, 2009
A public hearing of the Council of the County of Kauai was called to order by
Jay Furfaro, Chair, Planning Committee, on Wednesday, July 8, 2009, at 1:40 p.m.
at the Council Chambers, Historic County Building, 4396 Rice Street, Lihu`e,
Kauai, and the presence of the following was noted:
Honorable Tim Bynum
Honorable Dickie Chang
Honorable Jay Furfaro
Honorable Daryl W. Kaneshiro
Honorable Lani T. Kawahara
Honorable Derek S. K. Kawakami
Honorable Bill "Kaipo" Asing, Council Chair
The Clerk read the notice of the public hearing on the following:
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,
which was passed on first reading and ordered to print by the Council of the County
of Kauai on June 3, 2009, and published in The Garden Island newspaper on
June 10, 2009.
The following communications were received for the record:
1. Carl Imparato, dated July 8, 2009
2. Barbara Robeson, dated July 8, 2009
The hearing proceeded as follows:
CARL IMPARATO: Aloha Councilmembers. My name is Carl Imparato
and I live in Hanalei. I testified before the Council last October when this bill first
emerged, and I stated at the time and it's still true that I'm not opposed to small
wind energy conversion systems. But I also believe that the County has a duty to
protect its residents' rights to peace and quiet on their property, and that wind
turbine should not be allowed to unduly impose visual blight on neighbors and on
environmentally sensitive areas. Unfortunately, I feel that the current draft of the
bill does not meet those standards. One section of the bill states that regulation of
the placement and installation of wind turbines is necessary to protect the health
and safety of neighboring property owners, and the General Plan states that in...we
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should be seeking opportunities in economic methods to render power generation
facilities inconspicuous in order to preserve and enhance the park life appearance
throughout the Garden Island. Those are from the bill and the General Plan. But
instead of protecting public health and safety and rendering these power generation
facilities inconspicuous, the bill would allow these facilities almost everywhere,
regardless of how noisy they are and with little concern for visual impacts.
So I ask that you consider four problems. First of all, the bill contains
absolutely no noise standards. There's no requirement that swecs facilities be
inaudible to neighbors, and if the county's going to allow round the clock electric
power generators to operate in our neighborhoods and without public hearings or
neighbor approvals, then there needs to be requirement that no audible noise would
be heard on any neighbor's property. If these swecs facilities are indeed as quiet as
the proponents`advertise, there's no reason to not require that wind turbines meet a
standard of completely imperceptible noise at the property line. Second issue is
that this bill encourages visual blight by creating blanket exceptions to the existing
height limits that have done a pretty good job to date from protecting our island
from visual blight. Under the bill, tower-mounted swecs could exceed maximum
building heights by 20 feet, and room-mounted swecs could exceed maximum
building heights by 10 feet. One section of the bill specifically sets the precedent of
overriding the 25 foot height limits in the north shore development plan ordinance,
allowing swecs to exceed those height limits by 80 percent, and again, no public
hearings would be required for something that tall. So given the important of
protecting Kaua`i's number one economic asset-our rural and scenic environment, I
think it's a little stunning that wind turbines would be allowed to exceed height
limits without a zoning variance or public hearings.
Third issue is that the bill would allow these facilities in virtually all
residential, commercial, agricultural, industrial, and open districts on Kauai.
Tower-mounted swecs would be allowed as a matter of right, with no public
hearings, no neighbor input, on R-1 through R-20 parcels and neighborhood
commercial parcels of at least one acre, and on general commercial parcels of just
less than half an acre. Tower-mounted swecs would be allowed on all of these kinds
of lots regardless of lot size with a use permit, apparently as simple over-the-
counter use permit (from what I can read in the bill), and no public input, no special
standards that would require to be met. And roof-mounted swecs would be allowed
in all the above districts regardless of lot size, with no hearings or neighbor
input required.
The last concern is that one section of the bill would void existing covenants,
deed restrictions, and other voluntary agreements that are in place to protect
neighborhoods, and I don't think that the county should start down the slippery
slope of overriding voluntary agreements in order to promote these kinds of
interests. So in concluding, I'd ask that if you're going to allow this bill to move
forward, you strike a more reasonable balance between encouraging these wind
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energy facilities on the one hand and protecting neighbors and the environment.
Two specific recommendations-first, that the minimum conditions for allowing
swecs as a generally permitted uses should include full compliance with Kaua`i's
existing height limits and the creation of no noise, no audible noise, on the
neighbor's property.
Mr. Furfaro: Could you hold on just for a minute, Mr. Imparato.
Was that the 3-minutes? Is there anyone else in the audience that would like to
speak on this bill or has been signed up? Barbara, would you have a problem if I let
Mr. Imparato have his other 3 minutes now? [Response from the gallery inaudible.]
Okay Carl, I'll extend to you your other 3 minutes. Please go right ahead.
Mr. Imparato: Thank you Councilperson. I have one more
paragraph, actually, and that's the second recommendation-that any proposals
that would exceed the standards, any proposals that would exceed existing height
limits or create audible noise on a neighbor's property should require the approval
of all the immediate neighbors, should go through a variance process with public
hearings, and should require findings that such proposals wouldn't negatively
impact through noise, safety, or visual issues any other neighbors or the public in
general. If we do... I think if we put these two concepts into the revised bill, we can
promote wind energy turbines and protect the environment and the neighbors fully.
So thank you for considering these concerns, and I'll hand in this testimony as
written testimony.
Mr. Furfaro: Okay, so you will give us written copy of
your testimony?
Mr. Imparato: Yes.
Mr. Furfaro: Okay, can you give it to the staff right there? Let
me ask, Mr. Imparato, if I have any questions, and I want to again remind my
members here, it looks like we have a lot of testimony this afternoon on the 3 bills.
So if you can make sure if queries that can wait for the actual committee meeting in
a week could be restrained, I would appreciate it. But I will give you some
parameters. Are there any questions of Mr. Imparato?
Council Chair Asing: Mr. Imparato, aside from the two concerns that
you've raised on the noise issue and the height limitation, is there anything else
that you have some major concerns that you'd like to see addressed that you did not
put down. Because you gave us a lot of reasons why you think the bill has some
flaws or some things that you do not agree with. You only mentioned two at the
very end that you'd want to have addressed. So my question to you, do you have
any other areas, number one, and number two, if you have, could you hand in to us
your recommendations on how we could address those concerns?
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Mr. Imparato: I think that the two recommendations Imade at
the end cover both the noise issues, the height issues, and the procedural issues,
because by putting things in categories where you have to get a variance, that
basically I think helps protect the neighbors, and so that kind of incorporates the
procedural concerns I raised, and I think it also incorporates the issue of not
overriding the existing covenants.
There is one other concern that I think that maybe people should give
consideration to and that's whether HIUC is ready for this kind of small wind
energy system or self-generation. I think the council needs to consider seriously
those kind of ramifications. For example, as residential customers, we all pay the
same rates for our electricity, and that's...those rates assume that we all kind of
behave more or less the same. So when our... kilowatt hour rates, we're paying for
the fixed cost of the grid, we're paying for the transmission and distribution lines,
we're paying for the people who work at KIUC facilities. And once people start
doing self-generation, they basically start using much less electricity, so the person
who basically only then uses 10% as much electricity from the grid as the other
customers is basically, unless KIUC is ready with a new rate structure on this,
basically all of the other residential customers end up at subsidizing the parties
that are doing self-generation. So I would say that as to the timing of encouraging
wind energy facilities and all, maybe you want to also give consideration as to that
other public policy question as to whether the electric rates are in place to ensure
that the general public is protected.
Council Chair Asing: Thank you. Appreciate that.
Mr. Furfaro: Carl, I do...I'm hearing you say two, but I picked up
three in your testimony. Number one, your concern dealing with the visual issue as
it relates to protective covenants that might be in place. The second one being the
audible noise standard. But I also heard something leaning towards over the
counter permitting. Are you suggesting that there should be perhaps a class 4
permit process, rather than permit 1 or...
Mr. Imparato: Well, the way the bill is setup right now, they talk
about having a use permit, and they don't say whether it's class 1, which is over the
counter, or class 3, 4 which has public hearings. What I'm proposing is that if a
facility meets the current height requirements and if it doesn't create noise next
door, then it doesn't need to go through a public hearing or a variance process. But
if lt'S going to require a height exemption compared to the current limits, or if it's
going to create audible noise, then we need to have a variance process or possibly a
class 3, class 4 use permit process...for anyone that wants to exceed noise and
height standards.
Mr. Furfaro: Thank you. Any more questions? Thank you very
much for your testimony.
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Mr. Imparato: Thank you for your time.
Mr. Furfaro: I'll ask Barbara to come up. Thank you Carl.
BARBARA ROBESON: You'd think after 30 years I wouldn't be nervous,
but... Barbara Robeson for the record...and you have my testimony I think too.
Aloha Councilmembers. Thank you very much for holding this public hearing
today. My comments are focused primarily on the impacts of swecs on the
Northshore special planning area, specifically in two areas. One is because the
Northshore is a special treatment (slash) special planning area of the Northshore,
and the second one, as Carl mentioned, the 25 foot height limit on the Northshore
for structures in the Northshore area. So first the special planning areas. The
Northshore is a special planning area, a subsection of special treatment districts
according to section 8.9 of the county's CZO, and the relevant sections of that that
would apply to these swecs on the Northshore. The purpose: to designate and guide
development county areas because of unique or critical cultural, physical, or
locational characteristics have particular significance or value to the general public.
Next, special planning areas are any regional or subregional areas which are of
particular county, state, or federal value because of unique physical, ecologic, or
cultural characteristics. And finally, also within the CZO, after the council adopts a
development plan for a special planning area, such as the Northshore, no
development, use, or activity may be undertaken in the area that is contrary to the
development plan.
So for the past 45 years, planning documents support this special planning
area designation and its purposes. And I have a few samples, and of course I've
been very selective in what I'm going to tell you. The first one is general plans for
Hanalei area. This is a 1962 document, and part of it says, the region is widely
known for its many scenic vistas. Hanalei, with proper guidance, can effectively
develop its potential, and at the same time, retain its tropical and old Hawaii
charms-lush valleys, sparkling sandy beaches, wet mountain ridges, waterfalls
cascading down the sheer cliffs. Number one.
Number two. This is the Hanalei development plan, a socio-economic
prelude. This is September 1972. The region has an abundance of beautiful
coastline, mountains, natural scene beauty unexcelled anywhere in Hawaii. Fresh
water streams are abundant, arising from the Alakai Swamp, and reaching the
valleys via cascading waterfalls.
My favorite. Well, except for the new one. Northshore planning area. This is
September 72. The Northshore is a region of fantastic beauty, a dramatic and
varied coastline, magnificent valleys against a backdrop of mountainous majesty
and lush vegetation are complemented by the rural charm of open pastures and
cultivated fields. Fresh water streams are abundant and cascading waterfalls.
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Now this one is a copy, of course, so it's not so nicely presented. But this is
the Northshore development plan. This was a baseline report, October 79. The
Northshore planning area is indisputably rich in scenic natural resources. The
region is categorized by steep sea cliffs, picturesque beaches and bays, streams and
waterfalls, and deep valleys. Coastline areas are scenic and unparalleled in the
State, and the verdant valleys are picturesque.
Mr. Furfaro: Excuse me Barbara, your first three minutes
expired a little while ago. Let me just check if there's anyone else that plans to
speak on this. If not, I'll give you your second three minutes.
Ms. Robeson: Thank you. This is the Northshore development
plan update for the special planning area. This was 1980, and it says, the
Northshore planning area is extremely rich in natural resources. Scenic resources
consist of steep sea cliffs, picturesque beaches and bays, broad fringing reefs,
streams, and waterfalls, and deep green valleys. Scenic views should not be
adversely affected by manmade improvements. Scenic views should be protected
and enhanced. And a couple of the relevant goals in this plan, which were adopted
as part of the ordinance, the two are, preserve the unique natural beauty of the
Northshore planning area, and preserve the special rural charm of the Northshore
planning area. So my question is, how are swecs consistent with the above, and
how will they affect the special planning area? With respect to the 25 foot height
limit on the Northshore, it's my belief, and according to the ordinance too,
structures on the Northshore that exceed the 25 foot height limit require a use
permit and variance, which would be accompanied by a public hearing, or course,
where the neighbors and the people that live in the area would have an opportunity
to comment. So if this bill 2317 is adopted, it should require that use permit and a
variance are required, at least in the special planning area of the Northshore. So in
conclusion, I ask for your consideration of my concerns when you are deliberating
this. Thank you very much.
Mr. Furfaro: Thank you Barbara. Let me ask, are there any
members that have any questions of Barbara and her testimony? Mr. Chair, go
right ahead.
Council Chair Asing: Yes. Barbara, I'm going to ask you basically the
same question as I asked Mr. Imparato. Do you have any suggested changes to the
ordinance as written now?
Ms. Robeson: You want specific changes?
Council Chair Asing: Yes.
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Ms. Robeson: I don't have them handy, but I can submit those for
the next time, yeah.
Council Chair Asing: Okay. If you could, I would appreciate any ideas
you may have on the changes that you want to see in the bill.
Ms. Robeson: Okay. I can do that.
Council Chair Asing: Thank you.
Ms. Robeson: You said the 15th, right?
Mr. Furfaro: Yes Barbara. We're going to have this...these three
items on the 15th in the committee. And may I restate for the purposes of managing
the packets for those committee members, if you can also send that to my attention
as the chairman of the committee so that we can make sure it gets distributed as
dialogue goes here. I would like to ask, are you familiar with the fact that on the
previous council term, Councilwoman Yukimura and I funded a study for a overall
Kauai sustainability plan for energy?
Ms. Robeson: Yes, I am aware of that, and I... That's a little
confusing, because I wonder about the...which one should come first.
Mr. Furfaro: Yes, and I guess I bring that up because I wanted
you to know that, and Mr. Imparato, that in my conversations with the office of
economic development, we are going to see the draft of that in October. Now, it is
also our desire, as we've said, that any recommended overall management of power
for the county of Kauai, as well as transportation issues, be submitted to this
council with some recommendations for ordinances. So I would be very interested
in having a copy of your testimony so that we can that over to the office of economic
development as well.
Ms. Robeson: You mean my one on the 15th, or this one?
Mr. Furfaro: You have this and...
Ms. Robeson: Okay, I'll send it via email, is that what you mean?
Mr. Furfaro: That'll be fine. And I want to get it over to the
office of economic development, so it's both I'm looking for.
Ms. Robeson: Alright.
Mr. Furfaro: Thank you very much.
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Mr. Kaneshiro: Thank you Mr. Chair. So Barbara, looking at
section 8-28.4, I just need this for clarification. It doesn't address your part about
getting a use permit, yours...if you look at that section. Because it does say that
you would require a use permit in the following uses, you know, in different special
district areas. So that does not meet the requirements of what you're requesting?
Ms. Robeson: Well, I thought it was a little...because you had one
version that included the specific, and then when it came back from the planning
commission it was a little different. So I just wanted to put that out there that it is
still my concern.
Mr. Kaneshiro: Okay, thank you.
Mr. Furfaro: And that concern, again, is it's not an over the
counter type of permit.
Ms. Robeson: That's exactly correct.
Mr. Furfaro: You're looking for something that has
more parameters.
Ms. Robeson: Right.
Mr. Furfaro: Any other questions? Thank you very much.
Anyone else in the audience that wants to speak on this particular bill? Seeing that
there is no one else here... I will also be sending over a question for the 15th raising
the KIUC question if in fact they are considering two different rate tiers: one for
general rate users that would be contributing to infrastructure and transmission
versus those that only have certain demand uses, will there be two different rates.
Is there anything else on this public hearing, Mr. Clerk? Thank you. If not, the
public hearing on bi112317 is closed.
There being no further testimony on this matter, the public hearing
adjourned at 2:00 p.m.
Respectfully submitted,
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PETER A. NAKAMURA
County Clerk
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