Loading...
HomeMy WebLinkAbout05/04/2011 Regular Council MeetingCOUNCIL MEETING May 4, 2011 The Council Meeting of the Council of the County of Kauai, was called to order by the Council Chair at the Council Chambers, 3371 -A Wilcox Road, Lihu`e, Kauai, on Wednesday, May 4, 2011 at 9:41 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable KipuKai Kuah'i Honorable Nadine K. Nakamura Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Jay Furfaro, Council Chair APPROVAL OF AGENDA. Mr. Rapozo moved for approval of the agenda as circulated, seconded by Mr. Chang, and unanimously carried. Chair Furfaro: I would like to let you know that it is my request to take the Resolution with the Historical Commission first. I will be asking to take that out of order so that those that were not here earlier it is the intention of this Council to defer until we complete some due diligence and then the date will be posted again when we complete that. Mr. Clerk can we now go to the minutes. Mr. Nakamura: Next matters are approval of the following meetings. MINUTES of the following meeting of the Council: Special Council Meeting of April 6, 2011— interviews Council Meeting of April 6, 2011 Special Council Meeting of April 11, 2011 Special Council Meeting of Apri1'12, 2011— interviews Special Council Meeting of April 12, 2011 Public Hearing of April 20, 2011 re: Bill No. 2401 Special Council Meeting of April 25, 2011 Mr. Rapozo moved to approve the Minutes as circulated, seconded by Mr. Chang, and unanimously carried. Chair Furfaro: Mr. Clerk, I heard you heard my intentions earlier. Mr. Nakamura: At this time Mr. Chair, we're on page four (4) of the Council's agenda under Resolutions, Resolution No. 2011 -50. RESOLUTIONS: 2 COUNCIL MEETING MAY 4, 2011 Resolution No. 2011 -50, RESOLUTION CONFIRMING COUNCIL APPOINTMENT TO THE KAUAI HISTORIC PRESERVATION REVIEW COMMISSION (Nancy Ann McMahon — Archaeology designation) Chair Furfaro: Is there anybody wanting to speak here that has not registered because I'll be asking the Clerk's Office to read out those names, if not, you can sign up right there and the staff will bring your signature up to the County Clerk. Mr. Rapozo: Mr. Chair? Chair Furfaro: Yes Mr. Rapozo. Mr. Rapozo: I believe that to get it on the floor we would need a motion. Chair Furfaro: That's correct. Mr. Rapozo moved to receive Resolution No. 2011 -50 for the record, seconded by Mr. Kuali`i. There being no objections, the rules were suspended. Chair Furfaro: On that note, Mr. Clerk. Mr. Nakamura: First registered speaker Mr. Chair is Ka`iulani Edens followed by Pua Nani Rogers. KNIULANI EDENS Chair Furfaro: Ms. Edens: Chair Furfaro: Mr. Nakamura: Ka`iulani Edens. Chair Furfaro: Go right ahead. I would like my kupuna to go first. Have they signed up? Yes. Understood. Not a problem. First speaker is Pua Nani Rogers followed by I haven't looked at the list to who signed up. PUA NANI ROGERS: Aloha. This is really nice. This is the first time I've come before you in this (inaudible) and I like it very much, maybe you can make it permanent. Congratulations to all of you also for your reelections and your new appointment... mahalo... KipuKai nice to see you here. For the record my name is Pua Nani Rogers, I live in the Ahupuaa of Kealia. I come before you to speak for myself, for my family, for Hookipa network, and for the na iwi kupuna of our island since they cannot speak for themselves and that's because it is in reference to Nancy McMahon who was once in charge of approving burial treatment plans. I speak in strong opposition. I do believe you did receive my written testimony asking that you please defer and not take any position on this review until more information is gathered on what is the criteria for being on this 3 COUNCIL MEETING MAY 4, 2011 Commission and if she has the credentials to fill that position and also as we all know she was dismissed or left the State Historic Preservation Division under the Department of Land and Natural Resources as a state archaeologist. We would certainly love to hear her side of the story and why she was dismissed. May I also remind you that we are presently filing with the Hawaii State Supreme Court on the (inaudible) case which involved Nancy McMahon, which is involving Nancy McMahon, SHPD, and the Department of Land and Natural Resources to please take this into serious consideration because things are happening as we speak in regards to this kind of process. The State Historic Preservation Commission should have some opinions on that and we hope that they too may be up to date on what is going on now. There a lot of issues all over this State regarding na iwi kupuna from Hawaii island to Kauai island and we cannot ignore all these other cumulative issues that are going on right now regarding our na iwi kupuna. I do speak strongly for them. There has been too much desecration going on and it needs to stop and please don't believe that there's no spiritual significance to bones which has been some people's opinions about our na iwi, it is not true... there is spiritual connections to na iwi kupuna. That's because as kanaka maoli we do live in two (2) worlds, there is no separation between spiritual and earthly. It's together. We go from one to the other and we do communicate with the spiritual essence of na iwi kupuna. Please respect our culture, respect what we honor, and respect what we revere as sacred and as part of our lives, living lives. We don't just take care of the living but we have to take care of the dead as well. Thank you for deferring this, this was exactly what I had written in my testimony, that we find out more about this, we review this carefully and we'd like to hear from Nancy McMahon and her position of why she got dismissed from SHPD. I come with no anger towards her; I used to be angry at her especially our time when we were working on the Naue case. As you know we lost the case and the house was built on a cemetery of over thirty -one (31) na iwi kupuna, women and children... eight hundred (800) years old bones. That is my testimony and thank you again. I'm looking forward to the date when this might be coming back to review this again and to hear what you have found in your review. Mahalo. Chair Furfaro: Mahalo. Any questions? No questions. Thank you very much for your testimony. Pua Nani, we have no date specific on the posting of this coming up again. Mr. Nakamura: Next speaker is Ka`iulani Edens followed by Richard Spacer. Ms. Edens: Aloha kakahiaka kakou. For the record I'm Ka`iulani Edens, also known as Ka`iulani Mahuka. Mahalo for deferring today. I want to just sit here and have you look at me... I lived at Naue for a year and a half. I watched them dig with a backhoe and pour cement on our kupuna and that's something that will never be erased from my memory. More recently I was just arrested in Wailua again backhoe digging up our bones, splintered bones all over the ground. I observed archaeologist picking up big clogs of dirt and slamming it on the ground, cultural deposits moved from the pukas that they made. If you have seen Kaumualii Park it's completely torn apart. Artifacts have been removed; we don't know where they go. There has no accountability and Nancy McMahon has had no accountability. There are rumors, allegations that she does not hold a degree in archaeology, I don't know if that's true or not but given her actions in the past... it would explain a lot. I just want to voice my strong opposition to her appointment, it's putting the fox in the hen house. She represents developers 4 COUNCIL MEETING MAY 4, 2011 privately as a consultant, she takes them to our sacred sites that we cannot access in her hummer. I would just hope that... I am proud to be from Kauai and what we stand for here. The Kauai Historic Preservation Commission let's look at that word preservation, what does that mean. There's very little preservation going on right now. I currently live right in Wailua and I am a lineal descendent of Debra Kapule. I'm observing the river flooded... overflowing because of water diversions going on. It's running amuck, there is no preservation, I have no illusions about that, but I do ask that we be responsible in our appointments in this government. Is there no one else that actually has an archeological degree that has a good work ethic that has the trust of the community? Please ask yourselves that. Why, why, why... would we put her in that seat? It doesn't make sense. I'm facing felony charges for obstructing a government operation, myself and my brother James Alalem, and I would suggest to you that we are doing the job of the Kauai Preservation Commission. We have police officers arrive on the scene at Naue over and over, we have to educate our police officers, our DLNR officers, we have to be the ones telling them what the laws are, and I would hope that the person you put in this very important seat already knows what the laws are and has integrity. I want to say that I've been very inspired throughout my life by you Auntie JoAnn. I think back in the day when you and my mom was stomping around protecting and work on preservation, I think back to that very often... Ms. Simao: Three (3) minutes Mr. Chair. Ms. Edens: ... about who we were and where we've come in our personal integrity about what this island should be for our community. I think very little done that actually has the community in mind, I see everything being done that has money in mind. But the people that live here, especially the original people that have given so much and every day we continue to give, we continue to give aloha every day... our visitors are appalled when they find our when our bathrooms are on sacred sites, that their vacation rentals are on sacred sites, on bones. So what have we become? Thank you for the opportunity to voice my opposition and I will continue to report of the air on Wednesdays about this and on the internet and every day in person and I just pray for all of you, it's a heavy job you have. Mahalo. Chair Furfaro: We have a question. Ms. Yukimura: Thank you for your testimony. Ms. Edens: You're welcome. Ms. Yukimura: I remember well of those days with your mother. We are open to applications and Ms. McMahon applied for the position. So if there are others who want to serve or others you know whose names you'd like to put forth we are open to that. I just want to let you know that. Ms. Edens: Okay. I will share that. Thank you. Chair Furfaro: Thank you. Mr. Clerk can we have the next speaker please? Mr. Nakamura: Next speaker is Richard Spacer followed by James Alalem. 5 COUNCIL MEETING MAY 4, 2011 RICHARD SPACER: Thank you Mr. Speaker, members of the Council. For the record my name is Richard Spacer and I'm here to oppose the nomination of Nancy McMahon's of this position. I do appreciate the Council's deferment of this matter so that you can do your due diligence. For my part have been trying to do my due diligence and I have forwarded to Council testimony and to Mr. Rapozo who I thank very much for replying to my email about this matter. Certain documents I obtained (inaudible) request from DLNR at the Personnel Division that directly relates to the comments by my eloquent predecessor regarding the qualifications of Nancy McMahon. One of the documents I've submitted by email last night I trust that you received it and add it to your testimony, it's her education and employment history. For the benefit of the audience that can't see the testimony... BA in anthropology from the University of Hawaii 1981, MA in what appears to be Pacific Island anthropology, I can't really read the second word... but it's an anthropology degree NA 1985 University of Hawaii. Master Education in Communication from UH 1988 and a PhD from the University of San Jose in California with the notation ABD onto the date received. Now you may be aware from previous testimony that I submitted to you in April that I am in possession of an email from Nancy McMahon where we had a question and answer about where bodies were (inaudible) at Lepeuli, the Paradise Ranch matter, and Nancy McMahon told me that the bodies were reinterred in the site that we are mistakenly claiming to be an archeological site which I have also sent you photos of the rock strata and the charcoal and coral, and in fact this is completely erroneous. She states in other documents that the bodies that were (inaudible) in Lepeuli were reburied somewhat mauka of where they were originally (inaudible) which would have placed them in the cattle grazing areas of that property. In fact denied of the existence of the archeological of the north side of the Larsen's Beach saying that's where she had reburied the bodies which is absolutely ridiculous. Doctor David Bernie of National Tropical Botanical Gardens and his UH summer school made a field trip to Lepeuli last summer, spent the whole day there surveying this feature at the north end of Larsen's Beach and found it to be dated mid- 1600's, 1700 AD at the latest. One of my very, very late testimonies submitted today and by the way... just to take a minute and thank your Council Services clerk and staff for the great running around they do at the last minute for collating and doing stuff, they don't probably get enough public thanks... I want to thank them for doing that. Mr. Nakamura: Three (3) minutes Mr. Chair. Mr. Spacer: But this shows that. Chair Furfaro: Excuse me Mr. Spacer that's your three (3) minutes but I'm going to go ahead and give you your additional three (3) minutes. Mr. Spacer: Thank you Mr. Chairman. So I would appreciate the Council's deferment and use that opportunity to contact DLNR Personnel Office as I asked in my emails and say why was Nancy McMahon terminated? One of the late documents I've submitted this morning is her state sheet which shows a coded DSE which means discharge and she is no longer on any administrative leave and in January when I was at DLNR for the Paradise Ranch matter, I went up to the Personnel Office on the third floor of the Kalani Moku Building and I asked what does DSE mean and they said well it means she was terminated and I asked well is she coming back and they said no, she's pau. So that answers a few questions that the community has had. But to recap what I've stated 6 COUNCIL MEETING MAY 4, 2011 previously about her qualifications, I have an email from a Vice President of UH which I've submitted in testimony to you folks and they agree she has a degree in anthropology at the Bachelors level and she does indeed have an MED, although I believe it was in education according to them, not in communication as it states on this form. There's no mention anywhere in UH of an MA in Pacific Island Anthropology or any other fields for that matter. UH would not be expected to know about her PhD if that was taken in San Jose, so we still have serious problems with what she is claiming for her academic qualifications on her application from employment and with what that email from Karen Green from UH says. So one of the things I would ask the Council in their due diligence in the next couple of weeks or whatever period of time, Mr. Chairman you're going to be and as the Council investigating this is to ask the University of Hawaii you know, could their register's office possibly be so far wrong that they've missed something like this and talk to Doctor David Bernie because let's recall in closing up the Paradise Ranch project, it got seventy -three thousand five hundred dollars of federal tax payer money for fencing based on the fact that there was no archeology or historic property on that period. NRCS, part of USDA, does not grant or loan money to projects that have cultural or historical artifacts on them, that's just one of their rules. And to (inaudible) this project, it was stated that there was no archeology and nothing historic on this property. You can look at the Planning Department's SMA application and verify that for yourselves. If there's a checkmark, no there's nothing there. If there was something there, normally an archeological assessment would be triggered and a lot more complicated things would need to be done and it's my allegation that Nancy McMahon stated there was nothing like that on that property to get that project going as fast as possible. Thank you Mr. Chairman, members of the Council. Chair Furfaro: Richard, I would add two (2) items for you at this time... it is as part of our due diligence we will be transmitting some correspondence to UH Maona on the transcripts, and we will also do the same in San Jose. So just to let you know our intentions when we say some work on due diligence. Mr. Spacer: Thank you Mr. Chairman. Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: Yes Mr. Spacer hello, thank you for coming today. Mr. Spacer: Thank you. Ms. Yukimura: In this part of your testimony, I guess you submitted a letter that Ms. McMahon had written to Ian Costa about I guess that's Larsen's Beach or Lepeuli? Mr. Spacer: Yes, that's the July 14, 2009 letter. Ms. Yukimura: Right. I don't read it to say there's no... and I may just not... I'm not understanding the area that she's referring to but I don't read it to say that it doesn't have any potential burials because she does say that burials were found, they were reinterred but if there are skeleton remains that come up that they would require all work to stop immediately. COUNCIL MEETING MAY 4, 2011 Mr., Spacer: Yes I can clarify that... the reason I submitted this today is not so much for that although the location of the burials is still an open problem. We have somewhere in our CDU, you know State paperwork, a drawing of where bones were dug up from at Lepeuli, the problem is we've never been shown exactly where were they put back and that's a concern because the public, cows, vandals, whoever... needs to be kept away from that. We don't know where Nancy McMahon reburied them. More to the point I submitted this, this morning is the highlighted "no effect to historic properties." The historic property is an archeological site at the North end of Larsen's Beach, which Nancy McMahon denied existed and which Doctor David Bernie has subsequently very thoroughly inventoried and determined to be late 1600, 1700AD at the latest based on radio carbon dating that he and his UH summer school students did last summer. So that's what we're referring to specifically there, but the bones being in an undetermined location as we speak at that property is also a problem. Ms. Yukimura: Okay but the... she says because this area has been cultivated, so is that the beach? I mean it may be two (2) different areas that are being talked about. The part that Doctor Bernie surveyed, was that the beach or the cultivated area? Mr. Spacer: Directly at the North end of the beach, it's not a cultivated area at all. You'd have to refer to the photos that I emailed as testimony in April.. You can clearly see the paving stones, it's not part of the testimony but I have some hand sketches that a lay person did of that, it's not included in your testimony. If you're interested I can make copies before I go and have it later on for your due diligence, but David Bernie is really the one to talk to because he's the expert not the lay person. And you can see sort of a set up there at the north end of the beach, it's clearly the foundation of someone's house according to David Bernie which would make that a historic property. It's actually a pre - European contact site that has been analyzed there. Ms. Yukimura: And that was part of the area that was up for the SMA permit? Mr. Spacer: The SMA yes and the State permit which was eventually surrendered and canceled. Ms. Yukimura: Okay. Thank you very much. Mr. Spacer: You're very welcome. Chair Furfaro: Could you share that with the staff so we can make copies of your drawing? Mr. Spacer: Certainly Mr. Chairman. Thank you Mr. Chairman. Chair Furfaro: Next speaker please. Mr. Nakamura: Next speaker is James Alalem. 8 COUNCIL MEETING MAY 4, 2011 JAMES ALA.LEM: Hello. For the record my name is James Alalem and I oppose Nancy McMahon and the reason why is because when I was born and raised right in Waipouh where they built that cursed hotel, Waipouh Beach Resort... we knew that that place had a lot of bones. I did a lot of battle with the friends and also with Nancy McMahon was they was trying to say that there was no bones. Anyway what happened was that when I was taking care of (inaudible) Heiau there was a lot of people desecrating that Heiau, there was a lot of weddings, there was a lot of stones been falling off the walls. I contacted Nancy McMahon to see if I can stop all of those desecrations was going on in the Heiau and they was also was starting to build a path around for that hotel which is adjacent to Kauai Sands and Nainani Hotel, I think that is, and they had destroy part of the wall and so when Nancy came in and I told her that you guys are destroying part of the wall just to make this little bike path for the tourist. She told me no it was never there, the wall was never there... but it's plainly had the wall lined up, right there. So they removed some of the Heiau walls to make this little path. I asked her how can we stop all those people from going into the Heiau, to have these weddings and things that are unmentioned in the Heiau that I see... I took some pictures. She told me well we cannot stop the tourist from going in there because... and this was her words... it's because they pay big money to be here in Hawaii to enjoy their vacation and they have just as much rights to go in any Heiau that they want. So I ask her why? And she told me... because that's just the way it is. So that's why I oppose her. She does not... to me... all she does is talk this fancy talk but we are not heard just because they have certificates that says that they're archeologist and things and we are not allowed to go there and to also look at the bones or artifacts that they find. They take it away really fast so that we cannot see it. It's not right these archeologist people just coming in and digging up what they want and they're not listening to our stories that we tell them. We tell them there's burials there, they find one (1), two (2) but they still continue on... they won't stop. Where is the law? Today I don't have any aloha for anybody, I do not say aloha to anybody anymore... I'm so confused because the law, there's no laws already. Who can we trust, we only trust ourselves now. The trust is broken, we cannot trust no body. Mr. Nakamura: Three (3) minutes Mr. Chair. Chair Furfaro: Thank you. Mr. Alalem: I got arrested that day for protecting the Iwi's... after that they continued digging and they found four (4) more bodies after that. So where is the law? I'm sorry so that's why I say hello, there's no aloha no more until one day I find it again. Thank you. Chair Furfaro: Thank you for your testimony. Mr. Alalem: Chair Furfaro: Mr. Nakamura: Sandra Herndon. Thank you. Any questions for Mr. Alalem. Thank you. Next speaker? Next speaker is Joe Manini followed by 9 COUNCIL MEETING MAY 4, 2011 JOE MANINI: Mr. Chairman, members of the Council, my name is Joe Manini but I'm not representing Joe Manini today, I representing the Kanaka Nation. Maybe you want to find out who the Kanaka Nation is... I'll read you the names also that you folks are aware of it... the Kanaka Nation is composed of the Samoans, the Togans, the Rarotongans, the Aitutakans, Tahitians, Maoris, and Kanaka's of Hawai.ki, they all Kanaka Nation and I'm the... where my genealogy? In lineal descent from Noah, it shows that in `Aliomanu, Moloa`a, and Papaa you going find Kanaka Hui, okay... the Kanaka Hui is Aupuni and Marini because I have the grant three, four, seven (347), I think it's three, four, seven (347) that's a grant from the United States. In that grant the United States recognizes Manini as the co- owner, joint owner of the property... in other words in joint tenancy. So we have the lands in joint tenancy, yet the county is doing all kind of things with the land. Last time I was here talking was about that property. But I'm here because there's a lot of confusion with everybody on the land issues and yet the Council is not saying to them why? The reason why is because of the jurisdiction of the land. Here comes DLNR and they say they own the land, here comes Ag business and they say they own the land... everybody claiming ownership but do they really own the land? I don't think so because if you look at three, four, seven (347) grant, you find that the land was transferred. Let me read to you the, this is the chain of title that was in the Fifth Circuit Court, it says comes now Kokeaupuni, his chain of title, warrant deed of January 27, 1848 a conveyance by Kamehameha the third to Kokeaupuni and signed by Kamehameha the third and Princess Victoria Kamamalu as listed on page sixteen (16) of Hawaii Land Division of 1848 in the 7th rule that terminated their interest to the lands of the warranted deed and properties listed therein. In other words, in 1848 Kamehameha the third already passed the land to Kokeaupuni, the State is saying today that they own all the lands, the Federal is saying the own all the lands... of course the County going back up the State and the Federal and then Ag business comes inside, the probably the provisional government, they still want to do some more work over here... and they saying that they own the lands in Kekaha. How can the provisional government own the lands in Kekaha ADC because Kekaha Sugar was leasing the land all the time from DLNR. Chair Furfaro: Joe... Mr. Manini our first three (3) minutes have expired but I'm going to go ahead and give you your second three (3) minutes. Mr. Manini: Okay. I'm here because you folks shackle somebody at Coco Palm in that area, okay that area is, that area comes under the same thing as Kalapaki, what you folks are doing a lot of things in Kalapaki... Chair Furfaro: Mr. Manini may I ask the things that you're referencing in Kalapaki in fact connect to Nancy McMahon? I mean the agenda item today is Ms. Nancy McMahon. Mr. Manini: Well Nancy McMahon, I remembered we used her down in Kekaha when Hawaiian homes were trying to fence up the grave yard and in my own personal opinion I don't think she's qualified in doing what she was doing because at that time I was first Council to the Bishop, Kekaha ward LDS Church and Takahashi was the Bishop and we were checking over there for burials where the fence was going. When we look at the burials you could see it in the cracks in the coral, you could see all the bodies that were in... just like tombs. The Bishop and I talked and we said I don't think we should fence this place over here because this is right over somebody's grave. The Japanese person that bought the 10 COUNCIL MEETING MAY 4, 2011 land in front, he says he owns all that property up to certain part with the grave yard too... but you see you get that kind problems and the reason why I opposed to Nancy McMahon is because what she does is... her job is to come there, take the remains over there and put it someplace else and she has the right to move. The United States that don't have jurisdiction, I don't think they have jurisdiction... even the State of Hawaii, even the County don't have jurisdiction and so who gives the police the right to go over there, shackle somebody and she's giving them the right for them to do whatever they want to do with the bones. I don't think anybody has the right to do that, you know why? Because these bones were over there not necessarily from Hawaiian time, could've been there from Kanaka time when the Kanaka was ruling here. And so you find in the Wailua area from Ahukini to that whole area over there, you find that there was walls over there, so the bodies that never belong to certain people, maybe it was people who came from elsewhere that was native too and what they did was they pick up all their families. and they buried them. But the ones that was enemy that they killed, they just buried them right where the body was, so they all over the place. We cannot get a person like Nancy McMahon just saying... I not picking on just Nancy McMahon or anybody that takes that particular job, I think it's really a crappy job because what you got to do. I mean you hurt everybody's feelings because when you go to a grave and they get burial over there, they dedicate the grave, they pray all kind, they put flowers, I see them even put flowers on the side of the road where the body dies there. Chair Furfaro: Mr. Manini. Mr. Nakamura: Six (6) minutes Mr. Chair. Chair Furfaro: You have consumed your six (6) minutes and I want to let you know we're not going to be in decision process here. I certainly appreciate your presentation on the historic connection between Aitutake and (inaudible) and so forth, but if you have any more testimony related to Nancy McMahon, we will continue to accept testimony until we put it back on the calendar. Mr. Manini: I'm supposed have some more minutes. Chair Furfaro: I have given you... Mr. Manini: From another paper that somebody else turned in that they gave me the time for me to talk for them. Chair Furfaro: That might be sometimes interpreted that people can give away their time but it's not... Mr. Manini: They do that in Congress. Do you follow the law? I think if they do that in Congress and you can say so many minutes go to certain person and then they carry on the time. Chair Furfaro: Sir, I'd be glad to give you a copy of our rules and what I do is I follow our rules and I'm trying to be very courteous and let you know that we're not making a decision today and you can submit more. For those in the audience that feel that they can supersede our rules by allocating the time, I'm sorry that is not our rules. Mr. Manini: You... 11 COUNCIL MEETING MAY 4, 2011 Chair Furfaro: I do take great pride in trying to follow the rules. Mr. Manini: I know what you saying. I agree with what you saying... but you know I sat over here and the two (2) people that came the first over here... I think they spoke more than ten (10) minutes and you let them go, you didn't stop them... you didn't talk about the three (3) minutes or what. You know something when I talk to the clerk over there outside they said you change the time to six (6) minutes instead of three (3) minutes. Chair Furfaro: No. The discretion of setting six (6) minutes is solely at the discretion of the Chair. I will apologize to you if someone believes that I gave people more time that was allocated, my apology. But I am given the time by the timer, I don't have a clock in front of me and so forth. So please accept my apology sir but we are not making a decision today. Mr. Manini: Okay. Your policy is for Kanaka Nation, United States yeah? I represent the... I mean for the Hawaiian Kingdom, I represent the Kanaka Nation, you saying that you don't want to hear what the Kanaka Nation has to say about the jurisdiction? That's what you're saying? Chair Furfaro: No sir. Sir what... Mr. Manini: Kanaka Nation claims the jurisdiction of the land... Chair Furfaro: Well... Mr. Manini: ...over the United States and over this County. Chair Furfaro: Sir what I'm saying is my koko is with my children, I'm following the rules that exist here and we are now in recess. There being no objections, the rules were suspended at 10:21 a.m. The Council reconvened at 10:25 a.m., and proceeded as follows: Chair Furfaro: Joe, solely at the discretion of the Chairman, I'm going to give you an additional minute to summarize, the floor is yours. Mr. Manini: Mr. Chairman, my interest in this is part is Nancy McMahon and part is jurisdiction. I don't think the State or the County or the Federal has established jurisdiction here and state it plain to the natives, that they have the jurisdiction on the natives. That's why the natives have all the complaints about different things because they feel that they have jurisdiction and I think that the County should put it on record that they should try to search and give everybody a fair break on the jurisdiction. If you go on jurisdiction, it's different already because you're going to have to prove and you going to find out that the Hawaiians don't have jurisdiction but the Kanaka has the jurisdiction and that's the important part about it. Thank you very much for giving me the one minute more. 12 COUNCIL MEETING MAY 4, 2011 Chair Furfaro: I want to let you know that I respect all of what you bring to the table and thank you very much for your testimony. Mr. Manini: Mahalo. Mr. Nakamura: Next speaker is Sandra Herndon followed by John Zappala. SANDRA HERNDON: Aloha. Chair Furfaro and members of the Council, for the record my name is Sandra Herndon. I am testifying in support of the Kauai community and the Kanaka Maoli in particular asking that you dismiss this Resolution appointing Nancy McMahon to the position on the Kauai Historic Preservation Review Commission. In my opinion Ms. McMahon has proven herself to be perhaps the least appropriate person to assume such a position of trust and integrity where Kaua`i's rich culture of archeology is concerned. It would seem to be in the community's interest and I am very grateful that you and your intention is to investigate her background as part of verifying her qualifications. Her role in the (inaudible) case at Naue led to building a house of over more than thirty -one (31) identifiable remains, on one lot. Later in Court she testified that she didn't think that that was a cemetery. I don't understand how people can think that's not a cemetery. It would also be advisable to inquire as to the nature of her other businesses as well as her source of her personal artifact collection... perhaps Ms. McMahon has served the State well but she has certainly not demonstrated her ability to preserve the unique historic treasures of Kauai for the greater community, let alone the (inaudible) culture who has suffered much at her hands. On a personal note, I had just come back from a trip to Illinois where I buried my mother in a beautiful grave yard with stones, that's our way of burial and you may notice that my apparel today is in black and white. Black is the color for mourning in the Western culture but white is the color of mourning for the Hawaiians and I am in mourning both for my mother and for all the mothers and all the families. Ms. Simao: Three (3) minutes Mr. Chair. Chair Furfaro: That was three (3) minutes, you may continue. Ms. Herndon: Thank you. That's really all what I want to say. Thank you for considering my testimony and thank you for doing due diligence. Mahalo. Chair Furfaro: Next speaker please. Mr. Nakamura: Next speaker is John Zappala followed by Andrew Cabebe. JOHN ZAPPALA: Hello for the record my name is John Zappala and very simply I'm opposed to Nancy McMahon receiving this appointment. I followed the Naue case quite closely, it went through several public hearings and watched her testify. To me, her testimony was very, very biased in the interest of the developers or the corporate interest. As far as I can see she's simply putting her rubber stamp on things, she's putting profits before principle and that's not good government. Please don't put profits before principle. I don't 13 COUNCIL MEETING MAY 4, 2011 think I need to point out how vast and deep the history is on these islands and how much heart there is here. I just want to make a plea, please do what's right for all concern (inaudible). Chair Furfaro: Thank you John. Ms. Simao: Donovan Cabebe followed by Kaulana Fraser. ANDREW CABEBE: Aloha Mr. Chairman and the rest... thank you for letting me speak. It is a division that is happening in the... My name is Andrew Cabebe and I'm here for the Polynesian Kingdom of Atui. Atui meaning the light of God which we try to follow and stay in. All around me is my kupuna, all around me. I respect them and I was taught that way. We are keepers of the Iwi, it's hard for me to come up here and tell you who I am. It's for us to know, not for anybody to know but because of this division that is going on in the community I pray that we all keep in mind that we are truly people of Akua. We need to stay in the peace, stay in the love, remind each other that we are family here. We need to know that we can make a change in Hawaii starting on Kauai. Coming from the Polynesian Kingdom of Atui most of you know what's going on right now, there's badges of your police force has changed because we have claimed our crescent back to our people. It is in the light that I come, that we come... to remind you that we are a peaceful nation, we love you all. Some of you that has lost this we must remember and come back. I pray that you keep that in mind, all of us and try to promote what is true to all of us as we know what is going on in the world today. It's very hard for my family and my children to grow up in this. We know how it is when the storm comes, we get together. Keep that in mind as we move on into the future, this is a new future for us as kanakas, as Hawaiians, as people of this land. Mr. Nakamura: Three (3) minutes Mr. Chair. Mr. Cabebe: Thank you for the time again. Mahalo nui, aloha. Chair Furfaro: Thank you Andrew. Next speaker. Mr. Nakamura: Next speaker is Donovan Cabebe followed by Kaulana Fraser. DONOVAN CABEBE: Aloha. For the record my name is Donovan Kanani Cabebe and I strongly oppose Nancy McMahon's appointment as... to the Office of the Cultural Preservation. The person... I feel the reason that she was fired from her job, everywhere she goes, she leaves a leak of litigation and if she has anything to do with any future projects on Kauai, it's going to cost money and litigation because people are going to come forward and they're going to try everything they can to stop anything she gets involved in. She doesn't care about anything except herself. So that's my stance, I oppose that and I appreciate that you guys are going to take due diligence. She claims that in the newspaper last year a grave has to have a head stone... and you know she wasn't able to produce any lineal descendents while she was doing any of the work for Naue and yet the room is full of them... this room is full of them, I'm one of them. So please with 14 COUNCIL MEETING MAY 4, 2011 consideration of that position anybody besides McMahon who comes forward, I would appreciate the same due diligence going into any further applications that come in as well. Thank you. Chair Furfaro: Thank you. Next speaker. Mr. Watanabe: Next speaker is Kaulana Fraser followed by Waldene Palmeria. KA.ULANA FRASER: Good morning everyone. You all look so nice and professional today. I have some information... My name is Kaulana Fraser and I own a day spa in the town of Koloa and on multiple occasions Nancy McMahon has come to my business for services. We do probably an averages of seventy (70) massages a week, we've been in business for eight (8) years and never in the eight (8) years that I've owned my business, ever has an employee come to me to say... Kaulana, I will not work on this person anymore. I've had every single employee that works for me, I've tried to send her to different people. The reason they would not work on her was because she was so dirty. I hate to say it, I hate to bring something like that out at a time like this, it seems like of a personal nature but if you're a... operating like a Personnel Department, you look at grooming. I'm a psychiatric nurse. On every single psychiatric assessment check list that we have to determine mental illness or mental stability, cleanliness and personal hygiene is a huge red flag. I was employed as a psychiatric nurse at Mahelona Hospital so I want to tell you that as a nurse, I... like I said... when she's called to make her appointments I would say Nancy before you come to my shop, you'll have to take a shower. Chair Furfaro: Excuse me Kaulana. Ms. Fraser: Yes. Chair Furfaro: I do want to say to you... it is not in our due diligence interest to... Ms. Fraser: Right, right... however... Chair Furfaro: ... have derogatory comments made as it relates to someone's hygiene. Ms. Fraser: At the bottom of every one of those warranty deeds it comes down to the words that say, they take no responsibility for cultural laws and traditions that are broken. Unclean people were not able to carry our bones or touch our bones, it's not part of our tradition, our protocol is to have clean people touching our bones. Like I said I'm really sorry I had to bring this up but you have to know and I was the only one who would still work on her and it was the same with me too, pilau. That's all I can say. Chair Furfaro: Thank you. Mr. Watanabe: Next speaker is Waldene Palmeira followed by Debra Kekaualua. 15 COUNCIL MEETING MAY 4, 2011 WALDENE PALMEIRA: Aloha Council Chair, members. My name is Waldene Palmeira and I'm here to testify in opposition to Nancy McMahon's nomination for this Kauai Historic Preservation Commission. I've submitted on behalf of Hui Na Makaiwa O Wailuanuiahoano a letter two (2) weeks ago on April 20, 2011 requesting the deferral and further investigation of the applicant. I just wanted to again... well first of all I wanted to thank you for deferring so that you have time for investigate this... you know the application. I just wanted to read from some of the comments we made on our letter to begin with. Hui Na Makaiwa O Wai.luanuiahoano association consisting of lineage descendents of Wailua Kauai absolutely oppose the nomination of Ms. Nancy McMahon to the Kauai Historic Preservation Commission at this time. The Kauai County Council must be vigilant with regards to this specific nomination and reject or hold this nomination until the time that the Council or the Office of Inspector General of the US Department of the Interior initiates and commences a thorough investigation of her performance record regarding the non - compliance with federal and State of Hawaii regulatory and statutory authority for historic preservation in the State of Hawaii in her formal, professional and executive capacity as State Deputy Historic Preservation officer and state archeologist. Just some background in March 2010 the US Department of Interior, National Park Service released the audit of the Preservation Commission which begun in 2002 because of the differences that were noted for years and in case you haven't seen it, it is online... this is the large compilation of the 2009 investigation and I believe at that time Nancy McMahon was the deputy Historic Preservation Officer of the State of Hawaii. (inaudible) there was some office of the Inspector General required the series of audits saying that the audit shows that Hawaii has significant operational problems in several mandated activities, these are mandated activities including survey and inventory, review and compliance with national register of historic places certified, local government and historic preservation planning, and leading to the finding that the State is not meeting its obligations under the National Historic Preservation Act... Chair Furfaro: Waldene that was your three (3) minutes but please continue. Ms. Palmeira: Okay, alright. So when we sent a letter a few weeks ago we asked for an investigation regarding her termination, Ms. McMahon's termination from SHPD as it relates to hundreds of cases, I believe throughout Hawaii but also in Wailua, in violation of the Historic Preservation Act as well as the Hawaii laws regarding historic preservation which are amongst the best in the country. Why are we having a lot of problems in complying with the laws that were constituted after the... what happened in Honokohau, on Maui in 1989 and 1990 and this is 2011 and I mentioned that earlier. Basically I believe there's a huge conflict of interest when you have, when you are sworn to comply with civil duties to uphold the policies for example procedures and authorities under the act 16 USC 4 -70 National Historic Preservation Act and various other statutes, violating these laws and standards threatens the federal mandated mission protecting historic sites and that was cited in Brown versus (inaudible). Basically and I'll just give a few examples but SHPD is under high risk designation and they're in the first year right of correcting that situation. However, in this first year we here on Kauai especially in Wailua are actually suffering because of the lack of compliance that occurred in 2009 and 2007. For example the first thing as a duty in her position especially as deputy State Historic Preservation officer is to identify historic properties and time and time again in every document that we have, the most famous thing that is said is no historic properties... no known historic 16 COUNCIL MEETING MAY 4, 2011 properties, no adverse effect to historic properties. Well the problem is that there is no identification of historic properties and Wailua Nui Ahoano being put on the National Historic Register in 1965 although there are... you know for us this is a historic property that goes back thousand and so more years... it is the Wailua complex heiau, it is a religious center of the island of Kauai, how can it not be historic? Mr. Watanabe: Six (6) minutes. Ms. Palmeira: So right now for example we're at Kaumualii Park... Chair Furfaro: Excuse me, on that note Waldene. Ms. Palmeira: Yes? Chair Furfaro: We're at your six minutes. Ms. Palmeira: Okay. Chair Furfaro: So if you can just summarize real quick. Ms. Palmeira: Alright. The point is that the determinations made by Ms. Nancy McMahon in her capacity, her official capacity of the State of Hawaii did not follow the laws for identifying historic properties and thereby the occurrence of adverse effects to burial grounds and historic properties which are actually like Uncle Joe Manini said, under the jurisdiction of our people. These are the traditional culture properties and historic properties that are from our culture and it is very disconcerning that in her official capacity that she did not take, assume the responsibility to identify to have consultation section 106 which we're finally having in addition to a phone call from the National Park Service regarding Kaumualii Park, we still may have section 106 consultation while that project is on hold. Mahalo Nui Loa and we will be submitting more testimony with perhaps much more specific so that it will help you in your investigation to this nomination. Chair Furfaro: Thank you. Mr. Watanabe: Next speaker is Debra Kekaualua followed by Cheryl Lovell Obatake. DEBRA KEKAUALUA: Aloha everybody, for the record my name is Debra Kekaualua. I'm really kind of new at this but I read the front page of the newspaper on Friday morning and drove myself down to Kaumualii Park. While I was there for the first forty -five (45) minutes, they did uncover a grave site and since I was the only one down there at that particular moment, I started using my cell phone that had no minutes and try to get somebody to come down and help me work on this, what was going on down there. Anyhow... I don't even know Nancy McMahon so I'm just listening to folks that have been or do know her and I'm not really sure what kind of assessment to make of what I'm hearing but it doesn't sound good and I'm glad that you folks have put this on hold or at least are going to be able to revisit her nomination or whatever is appropriate. I just wanted to make mention that in just this one (1) time that I went to visualize what these folks have 17 COUNCIL MEETING MAY 4, 2011 done the day earlier that, first of all the grave was found, when I was walking back to my car to go home, the... there was a pin that was made and it had the number eight (8) on it and the pin was to represent I was thinking... what they just had uncovered. I went home and called Ms. Aiu on Oahu and she was saying it was a furlough day but she did acknowledge that there was only four (4) grave sites over in this location and so I was asking her where did the number eight (8) come from or what did that mean on that particular pin and... so just in that instance and this morning I'm hearing somebody mention the number eight (8) again or that there were four (4) more, so was that four (4) more that was found after I was there or... I don't know, I'm just saying... even in just this one (1) instance and talking to people in Honolulu relative to this site that there's already... the integrity has been lost. There's just no proper communication going on because when I went back down later in the afternoon, I questioned all the people prior first and second time and kind of got scolded because I had called to mention the number eight (8) when in fact at that point even in the later afternoon, they were still saying it was number four (4). So whatever number it is down there, it is a grave site, they're turning it into a toilet to hookup canoe club and boat launch ramping and what is everybody thinking? Come on you guys, this is really lacking... Mr. Watanabe: Three (3) minutes Mr. Chair. Ms. Kekouolua: ... and thank you for listening. Any questions? Chair Furfaro: Next speaker please. Mr. Watanabe: Next speaker is Cheryl Lovell Obatake. CHERYL LOVELL OBATAKE: Don't look so sad... For the record my name is Cheryl Lovell Obatake. As you know April 20, 20111 appeared before the Council regarding Nancy McMahon's nomination to the Kauai Historic Preservation Review Commission. April 22 I submitted written testimony in support of Nancy McMahon to serve on the Kauai Historic Preservation Review Commission. Today I stand by my words and testimony to support Nancy McMahon to serve on the Kauai Historic Preservation Review Commission. I had circulated on April 20th the CZO and other advisory council and historic preservation, all that material that I presented to you, you know for me, I hear the other side, they're all my friends... I probably have a little bit other thoughts and the thought is... if there's no quorum in the Kauai Historic Preservation Review Commission, aloha oe application goes on without historical review. I want to make an important notation about that I mean of course with the State Historic Preservation Division, there are some skeleton crews in there. I'm working my way internally to find out how many people are in there that is serving all the different islands and the matter should be addressed to the State Historic Preservation Division and the SHPD Mr. William. People have talked about conflict of interest, well if you want to look at Kauai Historic Preservation Review Commission, Mrs. Danitta Aiu serves on the Historic Preservation Review Commission. Pua Aiu is her daughter with SHPD. At one (1) time, once upon a time Imai Kalani Aiu took Rick's place, what is the County doing in the ethical parts of conflict of interest when families are involved and I'm not calling the shot on a decision whether it's right or wrong but it should be thoroughly reviewed by the Ethics Commission. The reason why and I've told you already because of the quorum, it's very important for the quorum. I mean there hasn't 18 COUNCIL MEETING MAY 4, 2011 been anybody nominated for the positions and as you had looked into the CZO on the section 25... Mr. Watanabe: Three (3) minutes. Ms.Obatake: ... there are criterias that need to be followed. Where on Kauai are there people that can serve with that profession? Nancy knows that I'll have her under gun, like I've always had. I served on the Kaua`i/Ni`ihau island burial council and in 1992 -2000 and they're maybe some discrepancies but I think the major problem is that the State Historic Preservation Division starting from Melanie (inaudible) and that is my comments for now and I wish you would support her in things that I said regarding quorum. Thank you very much. Mr. Watanabe: No further registered speakers. Chair Furfaro: There is no further registered speakers, very well... since I gave many of them their two (2) minutes at the time, would you like to come up one more moment? You'll have to introduce yourself. Ms. Edens: Thank you for letting me speak again, I am Kaiulani Edens. I know you heard all of us today I really feel that and I want to appreciate Auntie Cheryl and her concern for the quorum, I understand. The choice we have is the lesser of both evils or I forget how that goes but as kanaka those are our choices, We either go without or we might put someone in that's really not appropriate and I don't think that's good enough. I think we need to find more people that can be nominated to this office that have the integrity to follow through on our behalf on preservation. I just want to say mahalo again I really feel that you heard us today and I want to leave you with this thought... Kauai will always be Kauai and will be here long after we're gone, but what do we leave behind for our children and those that are coming? What will Kauai look like when we're gone? Do we want it to look like strip mall California or do we want it to look like Kauai to look like a rich historical cultural place and preserve the antiquities that we have. Finally I really would like to know when you're through with your investigation where are all the artifacts are that Nancy McMahon have removed from the sites throughout the years? I'd really like to know that. Chair Furfaro: Thank you. On that note I'm going to call this hearing back to the table as a group and ask for comments... Mr. Rapozo. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Rapozo: Thank you. I want to thank everybody for coming today, this is always the toughest part when we're testifying either in support or opposition of people that are willing to serve and it's our responsibility to say yes or no. It's tough to be on this side of that aisle and believe me, I heard everyone of you including Ms. Obatake. I made the motion to receive and basically a motion to receive is a no vote... I'm not going to be supporting Nancy McMahon and I respect and appreciate the Council's decision to move for a deferral, that's fine. First of all obviously I'm not Hawaiian but I know no other culture because I've been born and raised here, fifth generation so I don't know of any other culture. I don't pretend to know the culture but one thing I do know is that there's a definite 19 COUNCIL MEETING MAY 4, 2011 spiritual connection and if anybody that's been here long enough could go to Kamualii or Wailua Beach right now, they cannot tell me that they cannot feel the chicken skin or the warm because there is that spiritual connection, it's there. Whether you believe it or not, it's there and you can blame it on the cold or the sun but you feel that feeling but... I know... when we looking at a Commission of this sort and we're talking about a appointee or a candidate that has a definite conflict of interest and she said it herself in her interview and that she would just recuse herself, if in fact there was a situation where there would be a conflict, that goes with Ms. Obatake's concern... I mean why are we going to put someone in a Commission that's going to have to recuse themselves every time an issue comes up of a conflict. We're going to have the no quorum issue. I think it's our job that we put someone in there that can commit to be there at every meeting. It's like having a private investigator like myself sit on a Police Commission, I wouldn't support that, it's like a bar owner sit on a Liquor Commission, why would you do that? Their business is exactly in line with the conditions or responsibilities that that Commissioner has. Or a vacation rental operator or manager sitting on the Planning Commission, I mean it doesn't make sense to do that. Like I said I will respect and honor and I will definitely vote to support the deferral because that's what my constituents feel they want to do because I think there is a lot of due diligence that still to be done. I don't need to see anymore but that's just me but I will ask that this be deferred for a time specific matter, a month, two months because if not... we tie up the position on the Commission. We cannot go out and actively solicit unless we know there's a vacancy, so I would ask that if we defer it that it be deferred for a time specific matter and I would encourage people to submit nominations. To leave it hanging then we're not doing our job in filling the vacancy as soon as possible because I do believe that this is one of the most important Commissions today simply because of what's going on. The fact that we go in and knowing disturb the iwi is... it bothers me and I'm not even Hawaiian. I just wanted to make that comments so that the people understand that I totally respect Nancy McMahon, I really do but it's her... what I determine to be a definite conflict of interest because that is her livelihood and I think it may possibly interfere and I think it's our job to put the best person in that position. That's just my position today, thank you. Chair Furfaro: Councilmember Kuali`i. Mr. Kuali`i: I second the motion to receive because like Councilmember Rapozo and agree with all his comments. I received a lot of testimony and I read through all of them and I've listened to all of your testimony here today and I also listen to my naau which gives me my reaction from inside and because of that even though I understand you know some of the allegations and some of the testimony still need to be verified regarding degrees and you know some of the stuff in there. I think there's a lot of stuff in there that I'm hearing from the people with my heart, my naau and based on that and based on being a kanaka myself, I'm definitely ready to vote no but I understand my responsibility to the rest of the Council and I'm also willing to give it a little bit more time but we need to fill as many positions on this Commission as possible so they can do their work. I respect Cheryl Lovell Obatake's comment about the quorum. Like Councilmember Rapozo said if we don't act on this today, I'd like to see us act on it very quickly, so no deferral beyond two (2) weeks. Thank you Chair. Chair Furfaro: Before I recognize others and I will speak last, I do want to say that my deferral is for a period of sixty (60) days, that's what 20 COUNCIL MEETING MAY 4, 2011 I'm going to be talking about. First of all gentlemen and ladies of the Council, we're in the middle of the next month of a budget review process. Secondly we are asking for in our due diligence to actually have records confirmed educational status and so forth, that may not be something we can do inside of two (2) weeks. I do understand Mr. Rapozo's comment because if we defer indefinite, that could be a year for our rules, it has to be time issued. But I just want to say that at this time so you can be considering my comments when we get to the end here. Mr. Bynum and then Vice Chair Yukimura. Mr. Bynum: I appreciate all the testimony today and I want to thank the people who came. Most of our Boards and Commissions are Mayor's appointees that the Council confirms, this Commission's different in that the Council appoints four (4), the Mayor appoints four (4) and apparently our process is that if someone applies, we give that consideration and we're in that process now. It is very important that there's a quorum on this because as Cheryl said if we don't have this body to act and give diligence, it holds things up and more importantly they may move forward without the input. I would think this is an easy position to fill right now given that the State is in a very big kind of reexamination about what the appropriate protocols are. I would echo what Councilmember Rapozo said if there are qualified and appropriate candidates that are willing to serve on this Commission, let's identify those folks and make sure that it's an operating and effective and appropriate Commission. Thank you all for being here and providing the testimony. Chair Furfaro: Councilwoman Vice Chair Yukimura. Ms. Yukimura: Thank you. I too want to thank you all who came and gave such heartfelt testimony. Councilmember Bynum has described the process it's not the normal one where the Mayor's does appoint. I think we do owe some due diligence on the matter though I understand the issue of credibility and if the credibility in a community is damaged severely it's hard for someone to serve on a Committee. Our due diligence does not stop any other application from coming forward and as you can tell by our process which perhaps we need to relook, that is maybe we need to be more aggressive in soliciting a variety of names and then doing due diligence in all of them and picking the best. But at this point we do need community help in identifying people who would be credible and knowledgeable to do this work and so I would encourage anyone who has a good name to suggest to give that to us so that we can investigate and see who's out there in terms of what choices we have. I will be voting for a deferral and I'll follow the Chair's lead with a sixty (60) day but it doesn't stop any other process as I understand it. Chair Furfaro: Mr. Chang. Mr. Chang: Thank you. I'd like to take this opportunity to thank everyone who came here today to testify. I want to thank the Chair also for moving this up on the agenda because I know a lot of people have left because they needed to go. I think you heard it from the Councilmembers, the main thing right now is if members of the community are out there that can assist us. This is a volunteer position and the quorum is very huge. If you're familiar with any of the other Boards and Commissions they barely have enough, they just have enough members to make the quorum, so if one (1) person doesn't show up, there is no vote, there is no quorum. And just as an FYI as the Councilmembers have mentioned this is a Council appointed... you know the Council is voting on this but there is 21 COUNCIL MEETING MAY 4, 2011 another archaeologist position that the Committee is going to pick, so we're not just short one (1), we're basically short two (2). When we're asking for help, it's not help just identifying just for us, the Commission themselves is also looking for another, so that's just another point that we need to drive, that we need public support. We need your manao that if we have the right person there and that's right for the island, then that person definitely should be considered. I do support the sixty (60) day due diligence but we need to obviously take action as soon as possible. Again thank you for your testimony and I do want to thank the Chair again for moving this agenda item up because it was obviously very important for the community members. Thank you, thank you Mr. Chair. Chair Furfaro: Any other member that would like to speak before I summarize? Councilmember Nakamura. Ms. Nakamura: Thank you also for coming and giving us your insightful feedback on this nominee. I feel like I have enough information to move forward. I agree with Councilmember Rapozo that given and yeah I didn't make this connection earlier but given Ms. McMahon's livelihood that's so connected to the mission of this Commission, I think there might be a better place if she would like to serve the public and I think we would like to... for anyone who wants to serve this County in a way, I think the best thing is to find an appropriate place and as a Planning Consultant, I would never consider being on the Planning Commission, there's just too many conflicts right there. I think it's the same analogy here so I'm prepared to vote today and to move on but I would... that's my position. Chair Furfaro: Thank you. Okay I think I will share... you know our responsibility here is to establish a Commission of the Kauai Historic Preservation Group. It is important for us to all reference each candidate and their ability to protect and preserve cultural places, places that are (inaudible) and special. Because of this testimony that we've had, I also want to point out that being special places and honoring places is also crossing over to the State's Burial Commission because there is a connection. But for my suggestion on the sixty (60) days I want to say it'll take us some time to do some due diligence that relates to verifying records and educational skills. It would also be important for us to you know evaluate the mission and the commitment of each candidate but I don't think we can do that in two (2) weeks. We are also in the month of May, in the middle of our budget'process.so I will be looking for a deferral date specific for sixty (60) days and at the mean time I think Councilwoman Yukimura as Vice Chair makes a very good point, it doesn't prevent us in that time to look for other applicants as well as people that are interested in enhancing the intent of the Historical Commission. I would prefer to look for a deferral sixty (60) days and I have to look at my members of the Council for that motion. Mr. Chang moved to defer Resolution No. 2011 -50 for sixty (60) days. Chair Furfaro: Ms. Yukimura: Chair Furfaro: Mr. Rapozo: May I get a second? Second for discussion. Okay... Oh, you cannot discuss. 22 COUNCIL MEETING MAY 4, 2011 Ms. Yukimura: Oh, excuse me... Mr. Rapozo: That's why I hoped to make a comment before. Ms. Yukimura withdrew her second to defer Resolution No. 2011 -50. Chair Furfaro: So I don't have a second at this point. Ms. Yukimura: Mr. Chair? Can we do it for sixty (60) days or until the information is in, whichever is sooner? Chair Furfaro: I have no problem with that. I just wanted to caution us and the public that we're in the grips of running a hundred and fifty- eight million dollar operating budget and... I want to provide the time to do things right. Mr. Rapozo. Mr. Rapozo: Just one (1) last request because I am not sure what the votes are in the motion to receive, could we call for that question and if that fails then I'll definitely support the... Chair Furfaro: you hear that request? I think that's more than fair. Mr. Clerk, did Mr. Rapozo: I made a motion to receive and there was a second and I would ask that... because I'm not sure where the votes would fall on that motion. I think I know but I haven't really heard... so I would ask that we run that vote, if it fails then I'd be more than happy to support the Chair's request for a deferral for sixty (60) days. Mr. Nakamura: Mr. Chair, my understanding is the same as Councilmember Rapozo, I believe there's a motion to receive, there was a second. Councilmember Chang made a motion to defer and there is no second on that motion... Chair Furfaro: That is correct. Let's call for the vote on Mr. Rapozo's motion, I only took advantage of the time to speak on my sixty (60) day request so that the public understood the rationale. Mr. Nakamura: Mr. Chair real briefly just to make it a little bit more clear rather than say that the motion to defer died for lack of second, if Councilmember Chang could withdraw his motion. Mr. Chang withdrew his motion to defer Resolution No. 2011 -50 for sixty (60) days. Mr. Nakamura: So we're back on the motion to receive. Chair Furfaro: Yes. We'll call for the vote on the motion to receive. Hold on one (1) moment, Mr. Bynum did you want to speak? Mr. Bynum: If we're going to vote on the... yeah if we're going to vote on that motion, we should have discussion. 23 COUNCIL MEETING MAY 4, 2011 Chair Furfaro: The floor recognizes you.. Mr. Bynum: I have mixed feelings about this because as I mentioned when people give an application to volunteer, they deserve a consideration. We haven't completed the due diligence to do that consideration, I've read lots of written testimony regarding this issue both pro and con. We do have written correspondence supporting Ms. McMahon's appointment but questions have been raised that we need answers to before I could vote either way. I'm not prepared to either support or deny it at this time. Fairness is you give, you do a full hearing, you get all the information that you need prior to making a decision. Voting to receive is to make a decision today. So I want to be clear I may not vote to receive but that doesn't mean I'm supporting the nomination, I haven't made the determination of that because I haven't seen all of the facts and people have raised really good questions that I want to see the factual answer to before I make the decision and I think that's fair to the applicant and fair to the community. I just want to be very clear that if you don't move to receive, if the vote... if I choose to vote no, that means I'm going to support a deferral for us to complete a due diligence process and get answers to the questions that have been raised and deserve answers. Chair Furfaro: Thank you Mr. Bynum. Mr. Rapozo the floor recognizes you. Mr. Rapozo: Okay I just want to clarify Mr. Bynum said if we vote today that means we're not being fair, that's not true. This issue is not today's first issue, this issue came up two (2) weeks ago. We deferred it two (2) weeks ago and I did my due diligence. My due diligence tells me that I cannot support her at this time so I don't want you to think that's it's the first time we've seen all of this. There's been testimony that's been coming in for quite a while, I've done my due diligence and like I said if other's need more time, I'll respect that and I'll support the deferral but please don't think that this decision was made today because all of you showed up. Believe me, we've heard all the testimony. I've contacted the University of Hawaii, I've driven to the places you told me to go look, I've done my due diligence and I'm ready to vote. That doesn't mean that's it's not fair to Ms. McMahon and I appreciate her willing to serve believe me and I agree with Ms. Nakamura. I think there's a place in the County on a Commission that she can serve us well, it's specifically due to in... and, my vote to receive today is specifically due to the conflict of interest issue that's what I'm concerned about. I am prepared, thank you. Chair Furfaro: Thank you both members for clarifying your positions. On that note I would like to call for the vote and because it is an item that has great public interest, I would like the clerk to make it a roll call vote. The motion to receive Resolution No. 2011 -50 was then put, and carried by the following vote: FOR RECEIVAL: Chang, Kuali`i, Nakamura, Rapozo Yukimura TOTAL — 5, AGAINST RECEIVAL: Bynum, Furfaro TOTAL — 2, EXCUSED & NOT VOTING: None TOTAL — 0, 24 COUNCIL MEETING MAY 4, 2011 RECUSED & NOT VOTING: None TOTAL — 0. Mr. Nakamura: Five (5), two (2). Chair Furfaro: Thank you and thank you for considering my sixty (60) days. There being no objections, the Council recessed at 10:21 a.m. The Council reconvened at 10:25 a.m., and proceeded as follows: Chair Furfaro: Members, we're back in order for this May 4 Council Meeting. Mr. Clerk. Mr. Nakamura: Council Chair, we're on page four (4) of the Council's agenda on a Resolution, this is Resolution No. 2011 -52. Resolution No. 2011 -52, RESOLUTION ESTABLISHING A SPEED HUMP INSTALLATION ON MAKEKE ROAD, VICINITY OF WAIMEA NEIGHBORHOOD CENTER, WAIMEA DISTRICT: Mr. Chang moved to approve Resolution No. 2011 -52, seconded by Mr. Rapozo. There being no objections, the rules were suspended. Chair Furfaro: Dave? Either one of you gentlemen. Mr. Nakamura: Council Chair, we have... Chair Furfaro: You can come up together if you like we have more than one (1) chair. DAVE WALKER: Good morning Councilmember, for the record Dave Walker with West Kauai Business and also I hate to say it, Waimea Neighborhood Center Senior Program... OLAF HOICKMANN: Aloha Councilmembers, I'm the Reverend Olaf Hoickmann, Percival, Pastor of the Waimea United Church of Christ. Chair Furfaro: Thank you very much. Dave, I'm going to open the floor to you as you might be able to give us a little more back ground on the request here. Mr. Walker: Well the community has noted a lot of speeding down Makeke Road, it is a downward slope towards the main highway and from time to time we have quite a few speeding vehicles, at certain times of the day. Our business manager Martin (inaudible) brought it to our West Kauai Business meeting and he wanted to put in a speed mediating device to hold the speed down. The issue that the seniors is coming about the same time when it's busy and he's noticed some near misses, he used to live right there across of the Neighborhood Center. We are in support of that, we have supported it at our meeting and voted on it. The seniors who are in a big meeting today, my father inlaw is one the honchos there and he said that they're one hundred percent in agreement with putting in the speed hump. Hopefully that will happen. Further down the road 25 COUNCIL MEETING MAY 4, 2011 West Kauai Business has also talked with the State and they are looking to putting in a traffic light at Waimea Canyon drive, that might help down the road slated for 2013. (inaudible) that he's willing to consider it if it's a safety issue, so that might help also with slowing down the traffic knowing that you can get out of the high traffic times. We're trying our best to make it a safe location. Chair Furfaro: Pastor? Mr. Hoickmann: I'll just add that the Council of the Church and its organization that also is on Makeke Road approves of the speed bump, have already told the members that they no need to speed to church on Sunday morning, it's okay... and so the speed bump will help keep us safe on Sunday morning as well. We also have many of our members who are neighbors who live on Makeke Road and they are also in favor. Chair Furfaro: Very good. Council Vice Chair Yukimura. Ms. Yukimura: Well how did you know I had a question on my mind? up. Chair Furfaro: When they first came up I saw your hand go Ms. Yukimura: Oh okay. Chair Furfaro: That's how I knew. Ms. Yukimura: I don't see any problem putting a speed hump right there and certainly if the community is requesting it, we want to respond to their request at need. I'm just knowing that we put speed tables on Weke Road in Hanalei and I don't... I think actually speed tables are easier to go over than speed humps yet they serve the purpose. I don't know from Public Works, I think we're caught in this older system of speed humps and the language of our ordinance right now and maybe that's something we have to look at changing. But for your specific purpose I wondered if you have any choice preference. Mr. Hoickmann: Any speed mitigating device. Mr. Walker: Any speed mitigating device that would work and if it's a speed table that seems to work better, we defer that expertise to the county and say yes that would work, we'd accept that. Ms. Yukimura: Yeah. I'm not sure if that requires an amendment to the Resolution and whether we can still do that... I mean if an amendment would work and if Public Works is amenable then I believe speed tables are easier, less harsh in their slowing down of traffic but they still slow down the traffic. Mr. Hoickmann: I would say as a former firefighter and (inaudible) certified, it's easier to put fire trucks over speed tables and maybe why it's going that way. 26 COUNCIL MEETING MAY 4, 2011 Ms. Yukimura: Well okay. Maybe we need to consult with staff and see if an amendment is in order. So you certainly won't object to a speed table and might in fact prefer it if it is possible to make that change without a delay, if it delays it... am I hearing that you prefer a hump? Mr. Hoickmann: From my understanding the device is already purchased right? Mr. Walker: hump. Ms. Yukimura: Mr. Hoickmann: Ms. Yukimura: Chair Furfaro: purchased? I'm not sure about the status of the speed We may have to check with Public Works. I think it was already purchased. Okay... May I repeat that... you think it was already Mr. Hoickmann: I heard to the effect that there is... it's a speed hump that you slam into the ground with spikes in a way that it's already been purchased? So it might be expeditious to go with what we have. Ms. Yukimura: Well theoretically it's not authorized until we pass this Resolution. So I don't know how they purchased it but they might have had something on hand. Chair Furfaro: Mr. Bynum then Mr. Rapozo. Mr. Bynum: I wasn't going to comment because I want to support the community in this but I have to because when I worked for Mayor Baptiste, I learned more than everything I wanted to know about traffic calming devices and a speed bump is like what's in a parking lot, it's very severe. A speed hump is... Chair Furfaro: Wide. Mr. Bynum: .. like eighteen (18) feet long and has a certain curve to it and it's intended to (inaudible) roads and a certain traffic speed. A speed table like the ones we put on Weke Road, we actually had to modify because our ordinance doesn't allow them on collectors like a main street. So you have feeder roads which are small, collectors that collect from the feeders and so a speed table is for... it actually allows people to go over it at a pretty high speed without slowing down. At the time our Engineering Department needed to be educated about that but I have faith that they now know what's the appropriate mechanism to put in which area and if necessary we can ask them but I feel fairly confident without specifically asking that they know how to do that and determine the proper thing to put in. Thanks for coming today and testifying. Chair Furfaro: Members? Mr. Rapozo: I don't have a question. 27 COUNCIL MEETING MAY 4, 2011 Chair Furfaro: You don't have a question, oh okay. We'll release you. Is there anyone else in the audience that would like to testify? If not, I'm going to move on to the Resolution itself and if we can receive this communication. The meeting was called back to order, and proceeded as follows: Mr. Rapozo moved to receive Resolution No. 2011 -52, seconded by Mr. Bynum. Mr. Rapozo: No, you need a motion to approve... Mr. Bynum: This is just a communication? Chair Furfaro: I'm correcting... the approval comes later with the Resolution... the communication we need to receive and now I have a motion to receive by Mr. Rapozo? Mr. Rapozo: Yes. Chair Furfaro: Do I have a... Mr. Bynum: Second. C 2011 -130 Communication (04/08/2011) from the Chief of the Engineering Division, Department of Public Works, requesting Council consideration to establish the installation of a speed hump on Makeke Road, vicinity of Waimea Neighborhood Center, Waimea District: Mr. Rapozo moved to receive C 2011 -103 for the record, seconded by Mr. Bynum. Chair Furfaro: Any discussion before we go to the Resolution? Councilwoman Yukimura. Ms. Yukimura: Mr. Chair, I have no problem with the motion to receive this communication but before we go to the Resolution, I would like a chance to check with Public Works to see if an amendment to speed table would create any complications at all but with the idea that we don't have any... we support, we would support a speed reducing device but if a speed table is possible to see if we can make that work. I'm thinking a phone call before the end of this meeting, so that we can... who's here? Well maybe I can just... so I'm saying that it's an effort to make this solution better and if it doesn't work we'll go resort back to speed hump. Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Yeah I think just from what I heard that we have it in stock. When we did the Hanalei speed tables I believe we purchased extras but that wasn't speed humps and I think your question is valid because if in fact the intent is to do the speed table because I believe we have those... we did purchase extras because the Hanalei project was a pilot project and I'm not sure where that went but I'm not sure if speed hump in the Resolution would allow them to move forward with a table, I believe it would. 28 COUNCIL MEETING MAY 4, 2011 Ms. Yukimura: Or we could just amend the wording if our intention is such and if it's something that Public Works can implement. Chair Furfaro: So... Ms. Yukimura: So it would just take a little bit of discussion maybe with Public Works that I can do off... outside of the... Chair Furfaro: Do you want to take a short recess? Ms. Yukimura: No, no, no. Let's move on this motion to receive and I was just wondering if we can defer the Resolution to the end of the meeting. Mr. Rapozo: Chair Furfaro: Mr. Rapozo: Ms. Yukimura: Executive Session, we actually do. It's already close to the end. Okay. On the agenda. Well I mean after our... we don't have any Chair Furfaro: Okay just so those that testify understand, we'll move on this communication but we won't write in to the next phase of that which is approving the Resolution. We'll keep the Resolution towards the end of the meeting. Sorry you may not be present for that vote. Is there any further discussion on receiving the communication? And before I do so, am I correct that we did read the Resolution? Okay... so we're going to have to re -read the Resolution towards the end of the meeting. Ms. Yukimura: Chair Furfaro: have to take a vote on it. Ms. Yukimura: end of the agenda. Chair Furfaro: FIZE Ms. Yukimura: the communication. Right? Do 01 Okay we read it and we probably going to Mr. Chair... maybe a motion to move to the I'm going to check with the Clerk before we Because the Resolution is on the table not Chair Furfaro: Okay. For technical reasons there was probably don't need to proceed on this because as we're going to do we're going to... I'm going to ask you to defer the Resolution, member? Ms. Yukimura: To the end of the agenda? Chair Furfaro: And I think we had a motion. COUNCIL MEETING Mr. Chang: Chair Furfaro: the end... Ms. Yukimura: 29 MAY 4, 2011 Do I need to withdraw... No, I was just going to ask that we defer to To the end of the agenda? Chair Furfaro: Yes. Let me just manage this for a bit. May I have the intent to defer this to the end? Ms. Yukimura: Yes. Chair Furfaro: Okay, so we won't receive the communication, we'll do that when we go back? Okay? Ms. Yukimura: Alright, thank you. Chair Furfaro: Everybody on the same page on that? Very good. We'll read the next item please. Mr. Nakamura: We're back on page one (1) of the Council's agenda Mr. Chair on communication C 2011 -76. COMMUNICATIONS: C 2011 -76 Communication (02/16/2011) from Council Chair Furfaro, requesting the Administration's presence to provide the Council with an update on the County's Islandwide Road Resurfacing Program: Ms. Nakamura moved to receive C 2011 -76 for the record, seconded by Mr. Rapozo. There being no objections, the rules were suspended. Chair Furfaro: Mr. Dill. Thank you very much. You have a schedule that you submitted to us. The floor is yours. LARRY DILL, COUNTY ENGINEER: Thank you. Good morning Chair Furfaro and members of the Council. You have before you our proposed islandwide resurfacing list for fiscal year 2011 -2012. You'll note we have been talking about the 2009 -2010 list, we have decided as to role the whole thing up and include the upcoming appropriation in the budget that's coming up for fiscal year 12. We have gone through this entire list of 22 miles of roads thanks to the efforts of Ed Renaud and his staff to inspect and if you take a look through the list you'll notice we have a lot of areas where we indicate resurfacing... but in addition to that we also show a lot of areas that require repair and different levels of repair acquired to repair paving before we go back to the resurfacing as we've discussed in various meetings. On page five (5) and six (6) you'll see an estimated total of approximately 6.2 million dollars and then we have a few roads right below that and a (inaudible) one list. These are roads that we added to the original list that was submitted to you based on our field inspections and complaints that we've been receiving as these were roads that need attention. What's happened also fairly recently we were informed Monday morning by State Highways Department of Transportation of a new program they are initiating which will allow the County to take advantage of State funding due to the resurfacing of county collectors roads. We've taken the additive 30 COUNCIL MEETING MAY 4, 2011 number to identifies the collector roads on our list, we anticipate submitting to the State by in June listed these collector roads for funding so we estimate number right now just under 1.47 million dollars. We'll be coming to you requesting a twenty percent (20 %) match for that but the rest will be covered by the State funding, that's the way it stands right now. Chair Furfaro: What was that 1.4 million? Mr. Dill: Yes. Chair Furfaro: So two hundred and eighty thousand our share? Mr. Dill: You're quicker than I am but approximately, that's correct. Chair Furfaro: Okay. Mr. Dill: Okay so with that I'll take any questions you may have. Chair Furfaro: So Larry and for the public, so our intention is to receive this communication today, take public comment, then these items as we receive them today can actually come back on the agenda for May 18, for the Council agenda for final approval. Mr. Dill: Okay. Chair Furfaro: Are you going to have any more clarity on that Federal/State Kokua? On those four (4) or five (5) collector roads? Mr. Dill: Yes we just found out about that on Monday morning as I said so I can do a little bit more homework and get the schedules down for that. As I understand that they wanted us to submit that list to them by June in order for us to get it done this coming fiscal year basically in the same time frame with the rest of the roads. Chair Furfaro: Could you demonstrate to us on May 18 that you submitted that list by them so we at least know what's going on there? Mr. Dill: Since it's a new program we're not really sure what's involved with that submittal yet. Our commitment was to get it to them in June. I'll certainly be able to give you an update at that time. Chair Furfaro: Okay and just so you understand some of the rationale behind understanding that, if we're going to do anything more in the budget for paving... then the reality is you know we need to have a better idea before we go and close the budget. Mr. Dill: Right. Chair Furfaro: Which is right around the corner. We don't close the budget in June. We start reviewing the particular plus and minus next 31 COUNCIL MEETING MAY 4, 2011 week and I'm just thinking okay... this might be one... if we know you submitted it on the 18, it would change the picture right? Mr. Dill: Right, yes. I will work with the State and hopefully by May 18 we should have a firm commitment from them to allow us to move forward. Chair Furfaro: So you will be prepared to show us something on the 18 whether it's a confirm commitment or it's still tentative? Mr. Dill: Okay, yes... we'll do. Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: This list represents in the evaluation of Public Works the streets that need repaving the most? Mr. Dill: Correct. Ms. Yukimura: At this point and it will take a timeframe of about the next two (2) years to get this done or the next year? Mr. Dill: I don't have a schedule for you, I can come back with that. Ms. Yukimura: Okay and so in terms... refresh my memory because I'm sorry I don't remember... do we have anything budgeted in the budget before us the 2012 budget for more repaving? Mr. Dill: This six point one (6.1) million includes the 1.53 million for islandwide resurfacing in the upcoming budget... yes. Ms. Yukimura: Okay so essentially we won't have anything in the upcoming budget for resurfacing? Mr. Dill: Well... Ms. Yukimura: Well I mean... okay this amount will be in the budget as a CIP. Mr. Dill: Correct. Ms. Yukimura: Okay. And so the only other thing that we need to consider in this upcoming budget that's before us is that twenty percent (20 %) match? Mr. Dill: No, that twenty percent (20 %) match is included in there. Ms. Yukimura: Is also included in the budget right now too? Mr. Dill: Correct. 32 COUNCIL MEETING MAY 4, 2011 Ms. Yukimura: Chair Furfaro: Mr. Dill: Chair Furfaro: seal of approval for a while? Mr. Dill: Chair Furfaro: Mr. Dill: going to come in. Ms. Yukimura: Mr. Dill: Ms. Yukimura: Chair Furfaro: Ms. Yukimura: Chair Furfaro: Okay. The two hundred eight thousand is in here? Correct. You just don't know if you're going to get the Correct. That's... And also we don't know how the bids are Right. So there are a couple unknowns. Okay. Other questions? And in the mean time... oh? You still have the floor, go right ahead. Ms. Yukimura: Thank you. And this year your team will be working on that software program that will help you what's the word... collect the data in a useful way that will enable us to do better evaluations of repaving need? Mr. Dill: That's correct. So all of the inspections were done to develop this list of repairs that will be included in the information that gets put into the program so we can more objectively assess the roads and plan for their repairs and resurfacing, yes. Ms. Yukimura: Okay so is it your thought that by the next budget, next year the 2013 budget, you will have completed this... well... or anyway will be well into completing this and you'll be using operating software then that's going to give a new level of evaluation? Mr. Dill: That's correct. Ms. Yukimura: Okay. Great, thank you very much. Chair Furfaro: Mr. Bynum. Mr. Bynum: Just a few quick technical questions and I think I understand it but I just want to make sure, you made a commitment to look at where portions of the roadway needed repair prior to and so where we see the thing here repair six (6) inch dip with ATB that's where you identify the need for repair? COUNCIL MEETING Mr. Dill: Mr. Bynum: Mr. Dill: 33 Correct. And ATB stands for? Asphalt Treated Base. MAY 4, 2011 Mr. Bynum: Okay and so that's like doing the base and that's what we may have neglected to do in the past, is that correct? Mr. Dill: That's what we did neglect to do in the past. Mr. Bynum: Very good answer, very good answer. That's what we did neglect to do, okay and so would that also be true of the area where it talks about the cold plane to match gutter? Mr. Dill: Well cold plane to match gutter is if we... you know on our island most of the places we have grass (inaudible) adjacent to the pavements so I think typically we have just resurfaced add an inch and a half which has caused a problem with the lack of edge dressing of pavement. Mr. Bynum: Yes. Mr. Dill: But if we have a curb (inaudible) adjacent in the pavement, we need to match that match that (inaudible) gutter, so we do cold plane out the existing asphalt pavement and then before we resurface with new pavement to make it a pretty flush... Mr. Bynum: And were we doing that in the past? Mr. Dill: I believe so but I can't say that a hundred percent. Mr. Bynum: So basically to avoid an asphalt drop off to a curb and gutting and acting like a channel... Mr. Dill: Correct. Mr. Bynum: We want it to be flush? Mr. Dill: Correct. Mr. Bynum: Right and so I appreciate this attention to detail and you know I think you had a good turn around here, you had to do all these assessments and... so it's very much appreciated. Mr. Dill: Yeah, well... Chair Furfaro: Anyone else for Mr. Dill? Councilwoman Yukimura. Ms. Yukimura: Just one (1) more question. So next year with the software we'll be able to know a long range repaving plan in terms of how 34 COUNCIL MEETING MAY 4, 2011 many miles of road we have, how many miles we need to do good preventive maintenance repaving and whether or not we have enough money in our Highway Fund to do it? Right now actually we're still, we're already subsidizing this work right, we make transfers of money from the General Fund? I mean we earmark our gasoline tax to create the Highway Fund but I don't think the Highway Fund sufficiently supports the... Mr. Dill: I'm not prepared to answer that question I'd have to get back to you. Ms. Yukimura: Okay. Just... I guess at this point I don't want the answers to that question immediately but I'd hope that by next year with the software and with this experience under our belt, you'd be able to answer those questions? Mr. Dill: We'll have a much better understanding of how much funding is necessary to maintain our roads. Ms. Yukimura: Right. Okay, good. Thank you. Chair Furfaro: So Larry, I just want to reconfirm for everyone okay, what we're doing here today and last week you, I and Lyle met in my office and I asked you to direct a question to the County Attorney about the fuel tax that we collect specifically as if it was a grant, it is for highway resurfacing, you need to make sure you clarify that with Mr. Castillo's Office. Mr. Dill: Yes. We posed that question, Chair Furfaro: You have posed that question? Mr. Dill: Yes. Chair Furfaro: Thank you for the follow up on that. The second part I want to say is I'm going to read Section 8 here that deals with no money shall be expended for roadway resurfacing and shoulder improvements contained in the Highway Fund without a list of roads and .their locations being first approved by the Council. This is the list you're submitting to us? Mr. Dill: That's correct. Chair Furfaro: We will vote on it on May 18, okay? But by May 18 we're going to have a clearer picture of this subsidy we might get on feeder roads or at least you hope to have a better answer for us but whatever that outcome is, the twenty percent (20 %) portion is in this summary total? Mr. Dill: That's correct. Chair Furfaro: Right? Mr. Dill: Well it's within the budget that we're talking about. 35 COUNCIL MEETING MAY 4, 2011 Chair Furfaro: Right. The only part that we don't know at this particular point is this tonnage cost that you are estimating are based on the distance from point (a) to point (b) etc., etc... The one million four that's in here is the same one million four that's in the proposed budget we're voting on to get us to the six point five. Mr. Dill: collectors roads? I'm sorry? Chair Furfaro: Mr. Dill: Chair Furfaro: Mr. Dill: The one million four identified for the On the proposed budget. Yes. It's the... Oh, yes. That's correct. Chair Furfaro: Yes, okay good. Because there are some variables here on what happens with the State and Fed, what happens with the cost of the tonnage but we're very clear that the road we're going to do has to be on this list and this list has to be approved by the Council which we're going to do on May 18. Mr. Dill: Right. Chair Furfaro: Thank you. Sorry members, I just wanted to summarize that for us. Councilwoman Nakamura. Ms. Nakamura: Hi Larry, I just wanted to confirm then that the one point three million is for this upcoming budget and then is the balance four point eight from the previous year where the road work was not done? Mr. Dill: Well the... you know we had... let me see... we have including the upcoming appropriation in the upcoming fiscal year budget of about one point four, it would include all the previous appropriations. When you roll them all up together to a total budget of about six point five million. Chair Furfaro: Ms. Nakamura: Mr. Dill: Ms. Nakamura: Mr. Dill: Ms. Nakamura: would be seeing approximately... There it is. Okay. So that was from the previous year? Yes. Those are previous years. The multiple years? Yes. Okay and your typical in the future then we Mr. Dill: Well. 36 COUNCIL MEETING MAY 4, 2011 Ms. Nakamura: annual basis? Mr. Dill: appropriated historically about indicated, once we start getting need to be done in order to keep have a better understanding of answer that question right now. ... one point six million in repairs on an Well I believe that's what's being that amount but as Councilmember Yukimura i better handle and objective look at what roads our roads maintained adequately, we're going to what that annual cost is. I'm not prepared to Ms. Nakamura: Okay, alright. And I just want to thank you for your willingness to look at how implementing this plan that you can incorporate some of the complete street ideas into where there are opportunities so thank you for doing that. Chair Furfaro: Any additional questions for Mr. Dill? My compliments as well Larry, job well done. I think we also need to point out though the amount we end up with the Highway Fund changes when people start to use less fuel because we get the fund based on fuel tax that goes to the county. I've seen it as high as a million seven in past years because the consumption has been higher but going forward as people are more conservative, we probably need to visit the possibility of even to keep up with what we want, we may have to put other supplemental money in there especially if we're going to attempt to merge complete street projects in the areas we want to serve. We're probably going to have to put additional money in there. Mr. Dill: Okay, Chair Furfaro: Did you have another question? Mr. Dill on that note I'm going to excuse you. Mr. Dill: Okay. Chair Furfaro: I'm going to take some public testimony and we'll see you back on May 18. Mr. Mickens. GLENN MICKENS: Thank you. Chair Furfaro: Mr. Mickens before you go any further I circulated the testimony you sent me at home. Mr. Mickens: Thank you. I appreciate, I didn't have the address, so I'm really sorry about bugging you at your other email address but... Chair Furfaro: If I run out of paper, I'll just send you the bill. Mr. Mickens: Okay, I'll do it. For the record Glenn Mickens. You members all have a copy of my testimony I hope you had a chance to go over it. It's a little unfair to keep asking Larry since he's only been here for four (4) months some of these questions. I don't know why some of other people have been onboard our roads paving thing aren't here to answer some of these questions and take the pressure off of Larry but... anyway for the viewing public let me go 37 COUNCIL MEETING MAY 4, 2011 over this, see if you guys have any questions maybe I can answer them. First I want to compliment our new County Engineer Larry Dill for the prospective direction he wants to guide the way our roads are paved and repaved. Due to my many years of trying to change the way our roads are wrongfully done, with no success, I use the word prospective until I see definitive change. Just the fact that Larry and Ed have asked for deferrals when this issues has been put on the agenda, thanks to Jay for keeping it active, indicates to me that they wish to thoroughly answer so many questions that have been asked of them. Over the years we heard so much rhetoric instead of answers that it will be good to get accurate responses rather than ambiguous ones. And again I fully realize the magnitude of Larry's job and how much time money and manpower it will take to even make a some dent in the way our roads have been paved. But if HAPI standards will be followed going forward, and Larry I thought assured they would, I feel that our roads will one day last longer as Larry said and be better to drive on and save the tax payers a lot of money. And I'd like to read my written testimony for the viewing public that was deferred on 4/20/2011 of which Larry has a copy. One, why are we going to use the Micropaver System? Information coming out of it will only be as good as the information put into it and it could take years to complete true data to feed it. Though I do understand that once catch up is accomplished the system could work but it's going to take thousands of man hours to go out and physically inspect these roads to find out what we're going to put in there and correct me if I'm wrong Jay but you know to be able to feed the computer, it's only going to be as good as what you put into the thing, right? Two (2), where is the data now on the paving and repaving of all our roads? Who gathered it, if it is available and what kind of accountability is there for whomever collected it? Somebody should certainly have records of when our roads were paved, what condition they are in at this stage of the game and again I'm not pointing the finger at Larry in any size, shape or form because he's been here too short of time. How are and were the roads to be resurfaced picked? This is a real talking point for me on a political basis or on a most used worst condition method? A quick review of even the proposed 09 -10 list will show it wasn't on the latter as choosing Kahuna Road over Olohena Road or even Kawaihau Road: If you go up Kawaihau Road up where Ken Taylor lives up there just above that, it's in horrible shape. I don't know whether the... I know that Glover repaved that whole, all the way from that church I think all the way up to Kahuna Road, I think it was paved but for some reason whether it's water under the road or what, I don't know. I don't know how many of you guys drive up Olohena Road but the County, I think it's county signs they put up caution pothole ahead and it's terrible. Instead of fixing the road, we're going to put a sign up telling people to be careful driving over it, Tim I'm sure you drive up. Mr. Bynum: All the time I kind of doubt the county put that sign up. Mr. Mickens: Well it's a regular horse and it does look like an official sign more than somebody just hanging the sign. 38 COUNCIL MEETING MAY 4, 2011 Mr. Bynum: like the community did it. Mr. Mickens: Isn't like a sandwich board Glenn? It looks Well whatever. Chair Furfaro: Excuse me, I'm going to extend your time by twenty (20) seconds because you were in a dialog here but you met your first three (3) minutes. Focus on your testimony and we'll ask you questions later. Mr. Mickens: Thank you. Why are we using one (1) ton of AC to pave 90 to 95 square feet to get 1 %2 inches of final by bid grade instead of using the National Asphalt Paving Job calculation that shows we should use one (1) ton of AC to pave 108 square feet if we want a final 1 72 inch grade? My information comes from Greg Schleper who has paved for 37 years and here is the calculator he gave me. I've showed it to you before, in fact I gave it... Chair Furfaro: Larry has it. Mr. Mickens: Yeah he... Chair Furfaro: Continue with your testimony. Mr. Mickens: Okay. I got you. Since we had no approved resurfacing list for 08 -09 but were still doing repaving anyway, and now in 09 -10 have an accumulated resurfacing budget of about 5.4 million dollars, how has this methodology come about? Actually the 09 -10 list shows a total of $5,414,407 but the CIP budget sheet shows $5,158,463, a $256,000 difference which I do not understand. Then on the CIP budget the 2012 proposed resurfacing amount is $1.4 million and by adding this amount to the 09 -10 budget we get an 11 -12 amount of $6,558,463. So, if my math and assumptions are correct, we failed to use the appropriated amount in the 08 -09, 10 -11 budget and have an accumulated amount for 11 -12 of $6.6 million. Thus we show 17 to 25 miles depending on the cost of AC of roads being paved but in reality we are really paving about 5 or 6 miles a year again depending on the cost of AC. So aren't we just adding the 4 years budgets together and making the paving look better and why? Going forward with every road to be resurfaced, will they be done by HAPI standards? And will a county inspector be at every job site to make sure the proper amount of AC is being laid? Seven (7), will the shoulders of all repaved roads be backfilled along the pavement to prevent accidents from happening? Eight (8), will our bridges be repaired to Federal standards and be two lane and not one for safety purposes where statistics have shown that there are three times more accidents on one lane bridges than on two? Chair Furfaro: Mr. Mickens, we've hit your six (6) minute mark but I'll let you continue to summarize. Mr. Mickens: Thank you. In your 09 -10 resurfacing list you show Kahuna Road 700 feet long and 14 feet wide to be resurfaced. Last time I was over it, it looked like it had been resurfaced but I question whether it's 14 feet 39 COUNCIL MEETING MAY 4, 2011 wide. Your County code book on page 42 says that no county road shall be less than 16 feet wide to be resurfaced. Thus how can this section of Kahuna Road, I question that the width is even 14 feet as I have jogged over it many times, be considered for resurfacing until it is widened to proper width? I'm on the last couple paragraphs Jay... Chair Furfaro: Go ahead. Mr. Mickens: And as I asked before why was this and so many of the other roads chosen to be resurfaced whereas major arteries like Olohena Road was not even on the list, a road used by thousands of vehicles a day. Even upper Waipouli Road is 13 feet wide or less and though I have complained about this for years nothing gets corrected. Either you have a code to abide by as do all contractors that do work for the county or you don't, it shouldn't be arbitrary. Jay, you were great enough to meet me up there when you first came on the Council and you saw where... Chair Furfaro: Continue Glenn... we'll get into questions later. Mr. Mickens: Or there shouldn't be one code for the private contractor and one for the county as I have said so many times. Again, Larry's job will be monumental but hopefully he will do the paving correctly and somehow get his budget increased to the point where our roads are lasting far longer and all 300 miles of roads will get done. Along with paving cane haul roads to give us alternative routes to alleviate traffic. I really appreciate you giving me the extra time Jay but you know how long I've been going at this. Chair Furfaro: All of the members have a copy of your testimony as well. Does anybody have any questions of Glenn Mickens? So Glenn, I just want to cover a couple of your questions as good as I can... first and foremost I think you need to recognize that the amount of black top that's being used, there is a minimum standard and then there should be the ability for Larry and his staff to make a decision if they're fixing a shoulder or putting a little extra on because of wear and tear, so forth, so I just want to make sure that is the minimum requirement that you're pointing out to and it will be a discussion as we. go forward in budgets. The next item is the five, one, five, eight has been reconciled and it's in this CIP schedule and that is our starting point going forward. It looks like when they merged money they might have exceeded the roads that we have identified plus or minus by about two hundred thousand dollars, you're correct. Mr. Mickens: Two hundred fifty -six thousand, yeah okay. Chair Furfaro: Yeah, okay. But what I want to make sure we understand is that at the time we're showing this schedule, they don't have a firm price for the black top. Mr. Mickens: Okay. Chair Furfaro: That could be representing some of the variance. 40 COUNCIL MEETING MAY 4, 2011 Mr. Mickens: about? Chair Furfaro: Mr. Mickens: Sure. The cost per ton a year, you're talking Yes. Sure. Chair Furfaro: But even as we're talking now the range is two, fifty to two, eighty. 'Mr. Mickens: Right. Chair Furfaro: It's not a firm number yet. Mr. Mickens: Right, right. Could even be three hundred by the time the oil prices keep escalating. Chair Furfaro: Could be. We don't know. Mr. Mickens: Right. Chair Furfaro: So there is room for a variable. Mr. Mickens: Yes. Chair Furfaro: And then the number this year in the budget, that's where the one, four comes from and it's based on the current trends of what might we actually be consuming in gas prices based on the fact that we're not consuming as much as we did 5 years ago, the reality as you heard me say to Larry is during the budget session we may have to start putting in a subsidy in addition to the fuel tax. Mr. Mickens: As you did before. Chair Furfaro: Yes but you know that's kind of where we're at. Those are the questions we can answer, the other operational questions have to be directed to Larry. We have to give him that kind of autonomy to run his department. Mr. Mickens: I understand. Chair Furfaro: So I hope I helped with some of your questions. Mr. Mickens: Sure. The biggest thing again Jay, why has the Administration changed directions of not coming to the Council with their yearly budget and saying here, here is what we want to repave this year, why did we accumulate this thing up to, it's up to eight million dollars now. Chair Furfaro: All I can answer that, I have gone to places Eke Tonga and Tahiti and the first thing a general manager does is he changes the dishes... because he doesn't like the pattern. So we have changes that are going... I don't know what else to say to you Glenn. 41 COUNCIL MEETING MAY 4, 2011 Mr. Mickens: Chair Furfaro: Mr. Mickens: Okay, okay. That has to be in Mr. Dill's purview. Yes. Chair Furfaro: Okay. But we got a good starting point and we got a list that's going to get preliminary approval on May 18. Mr. Mickens: And how the roads are picked. Chair Furfaro: Yes. Mr. Mickens: It's so important. People come up to me continually asking why isn't our road being repaved, I've been 20 years on this thing. Chair Furfaro: I made a special note of Waipouli. I'm going to do some research on it myself. Mr. Mickens: Waipouli? Chair Furfaro: Yes. Mr. Mickens: And please take a look at Kawaihau, okay? Chair Furfaro: Let me ask if there's any other questions, I'll take a look at Kawaihau as well but let me ask if there's any other questions of your testimony Glenn. Mr. Bynum. Mr. Bynum: Glenn in an earlier testimony I asked whether there was a history of political influence about which roads get picked to repave and which don't... and I think we all know that... well I assumed that there was in the past, I would like that determination made objectively and get it from Public Works. I don't want as a Councilmember to come in as much as I recognize Olohena Road that you and. I drive looks .like it needs some work, right? . I don1 want to come in and say, hey pave the road in my neighborhood, right? I want Public Works to do what I believe they're doing now, making an objective determination of where the greatest need is and I don't want Mayors or Councilmembers to interfere, would you agree with that statement? Mr. Mickens: Surely because there's a spring on Olohena Road there where you're talking about, there's a spring under the road. We keep coming along keep paving over the top of it, the spring keeps on leaking and cracks the road but we got to go fix it first right? And again it's going to take a big budget for Larry to do it right. Mr. Bynum: And I think when there's specific problem areas that need short term public, you know safety repair and maintenance that we have a Public Works Department right now that can be responsive to that but I wanted to get your answer, you agree with me then that these decisions about what 42 COUNCIL MEETING MAY 4, 2011 has the greatest need should be objectively by the Public Works Department without interference by Councilmembers or Mayors... Mr. Mickens: Exactly, exactly. Mr. Bynum: Okay, thank you. Mr. Mickens: Like poor Kahuna Road over there. Chair Furfaro: Okay. Any other questions of Mr. Mickens? Seeing none, Glenn I think we're at a good starting point with Mr. Dill. Mr. Mickens: Well again I... sincerely appreciate you keeping this thing before the public because the frustration I show for 15, 17 years of doing this, is really... been so bad for me and you know we haven't been able to pinpoint it but it's never stayed on the agenda and now you've at least put it on the agenda and we got a new sheriff in town and I... Chair Furfaro: It will be back on May 18. Mr. Mickens: May 18. Chair Furfaro: May 18 for final approval of that list and we'll take it from there. Mr. Mickens: That list on May the 18, that's the... Chair Furfaro: That's the list that Larry just submitted to us. Mr. Mickens: Yes 11 -12, I haven't had a chance to look at it. Chair Furfaro: I'll make sure you get a copy of it, how's that? Mr. Mickens: Thank you. Chair Furfaro: Ken did you want to speak on this item? No. Okay. Mr. Rosa. JOE ROSA: I must say good afternoon. Chair Furfaro: Yeah it's almost lunch time. Mr. Rosa: For the record Joe Rosa. I've been hearing all this session about repaving, resurfacing... you know before you can think of resurfacing or repaving, I've heard nothing about the base course (inaudible) because now in the particular area I heard so. much concern about is in the Wailua Homestead area. A lot of those roads were built in the 30s for (inaudible) cars which at that time the road was ten to twelve feet wide, either on five feet, five feet. Today's average car is eight feet wide, now the county has resurfaced those roads after a while like when Glenn brought my attention to it I took a trip out there, I 43 COUNCIL MEETING MAY 4, 2011 told him the (inaudible) might be only eight feet wide Glenn and whatever here is asphalt that was paved with something with no base. So that's what you get, you pave asphalt on nothing, you get nothing. You need a base at least county standards I think is about twelve inches, four inches, and two inches, to get the finish of the asphalt surface. I haven't heard anything as far as reconstruction of the roadways. (inaudible) if they're going to resurface the roads, the original that was built in the 30s how wide it was. That's why you got so much (inaudible) in the shoulders. I work with the State and the State, we had a standard. We had so much of untreated base (inaudible) then the finish of the two inch base and that all cost money. Because you pay so much for the untreated, so much for the select (inaudible) and then the finish the asphalt. (inaudible) paving, is that all for resurfacing of the black top? Chair Furfaro: That's all it is. The category we're talking about is resurfacing. Mr. Rosa: Yeah but let I said Jay, you cannot get good finished product without a good solid base. I worked 15 years with asphalt, I went to seminars and I can put my knowledge as to what I'm saying. I don't think you're aware that you have to go through that process of getting a good select base. That's why there's so much failure. Today we've got heavier cars. (inaudible) so those are the kinds of things that we are faced with. Mr. Nakamura: Three (3) minutes Mr. Chair. Chair Furfaro: Mr. Rosa that's three (3) minutes, I'm giving you your next three (3) minutes. Mr. Rosa: Yes I know. That's why I keep emphasizing that we need a good solid base. You cannot put a big high rise without a good base or a good structure, that's what this whole thing boils down to. If you don't do it right, you're just wasting the tax payer's money and I know it cost so much for untreated base and so much for select barrel and so much for asphalt. You're supposed to get a breakdown of every particular road that you're going to do. When I was with State DOT if you're going to widen it, we'd give it to the contractor, the paving contractor (inaudible) hire Nelson or whoever... and they do the widening and then when the time comes, we just put the black top. (inaudible) used the untreated base instead of packing it with coral road, it'll take time, expose the public to the trenches to the side of the road. We use asphalt treated base and get it done faster up to the last two (2) inches that we have to pave over, so don't let comes in from the Engineering section and I haven't heard it mentioned as far as given a good base structure for your highways which is totally in need to get the highways that you're seeking with the tax payers money. That's all I have to say, think about it. Chair Furfaro: Thank you Mr. Rosa. I do want to say and we have to get to a Housing item before we break for lunch but your comments are well received. This item is Highway Fund, it's actually broken down in several levels, one is clearly resurfacing which is the topic here. Mr. Dill has indicated that they've inspected the roads that are in this area and based on the inspection, he agrees that there are areas where the core base has to be, the integrity be reestablished but any additional work that goes on should end up as a different 44 COUNCIL MEETING MAY 4, 2011 item in the Highway category, such as you know redoing the entire base core or work on... Mr. Rosa: As I say... Chair Furfaro: Those are separate line items. The line item right now is resurfacing of which he's attempting to fix some core base where the integrity has been sacrificed. Mr. Rosa: Well like I said Jay, you don't have a good base (inaudible) it won't even give you seven years, it's going to start cracking out on the edge because on the State highway... Chair Furfaro: Understood. I didn't pose a question. Your time is up Mr. Rosa. Mr. Rosa: Yeah. Chair Furfaro: But... Mr. Rosa: But I want you to be aware and members of this body to be aware of what I can tell you people about what can be done to have better highways and roadways on Kauai for the people on Kauai. Even on the shoulders... the asphalt doesn't end on the edge, there's six more inches of select (inaudible) so that the shoulders don't wear out. Those are the things like as I say on the county road. Chair Furfaro: Understood sir and your experience. Mr. Rosa: So the Engineering has to update their... Chair Furfaro: Mr. Rosa your experience is important to us. Mr. Rosa: Yeah so I hope that you... Chair Furfaro: No questions are being posed and you've given your six (6) minutes, I just wanted to explain how you read the various account numbers, the account numbers we're dealing with right now are about resurfacing. But your other comments are well taken, thank you. Mr. Rosa: Yes. I'm glad because I know that we have women that are not aware of highway paving construction. Chair Furfaro: understand road repair as well. Mr. Rosa: Chair Furfaro: Well I do also know some lady engineers who Yes I do know too. Thank you Mr. Rosa. Mr. Rosa: Thank you. 45 COUNCIL MEETING MAY 4, 2011 Chair Furfaro: On that item, I'm going to call the meeting back to order. You heard me, I want to go to 12:35 today so we can take Housing. There being no objections, the meeting was called back to order, and proceeded as follows: Chair Furfaro: This is an item to receive. Mr. Nakamura: We have a motion Mr. Chair. Chair Furfaro: Are there any further dialog? The motion to receive C 2011 -76 for the record was then put, and unanimously carried. Chair Furfaro: Mr. Dill, we'll see you on May 18. Mr. Clerk, could you read the Housing item that is on the agenda still? Mr. Nakamura: Council Chair, we're on page two (2) of the Council's agenda communication C 2011 -133. C 2011 -133 Communication (04/14/2011) from the Director of Housing, requesting Council approval to sell the property situated at 3229 -A Unahe Street which was purchased utilizing CDBG funds at an affordable leasehold sales price based on a leasehold appraisal of $213,000.00, and to authorize the County Clerk to sign all legal documents related to the sale of the property: Mr. Bynum moved to approve C 2011 -133, seconded by Mr. Rapozo. There being no objections, the rules were suspended. Chair Furfaro: Mr. Jimenez if you can come up. EUGENE JIMENEZ, HOUSING DIRECTOR: Mr. Chairman and members of the Council, Eugene Jimenez, Housing Director. Thank you for allowing this opportunity to go early on the agenda although it's a late hour. You have before you our request from the Housing Department to the Council to approve a sale of home on Unahe Street. We.did have an appraisal done, it'was appraised leasehold appraisal at the amount of two, thirteen which we are... that is the amount that we're planning on selling this dwelling. We have an tentative buyer from our Homebuyers Program and with that I'll be open to any questions you may have and for any specific questions which you may have and if I'm not able to answer I have my sales coordinator here who can answer, you know the specifics of the sale of the appraisal or anything of that nature. So thank you very much. Chair Furfaro: Would you like to introduce her? Mr. Jimenez: Yes. In the gallery is Fay Rapozo, Sales Coordinator for the Housing Agency, she also functions as the Fair Housing Officer for the County. Chair Furfaro: Thank you. On that note, Mr. Bynum. 46 COUNCIL MEETING MAY 4, 2011 Mr. Bynum: I just want to thank the Housing Department for doing a really good job in setting up these programs with CDBG and NSP. I understand we're going to have some properties made available at an affordable rate in the coming year to people on Kauai that are on our housing list, right? Mr. Jimenez: Yes. Mr. Bynum: And I think this is great, you've worked out some of the financing arrangements as I understand it and this is solid evidence of the County's effort to use available federal funds and our own expertise to make housing available for people and you know for people on Kauai that are interested in being homeowners, we offer a homeowner education program which gets them on the list and makes them available for these opportunities. We can't do enough to encourage people who would like to be homeowners but this is really good work and we'll see how it goes with this leasehold arrangement which can ensure affordability into the future. Mr. Jimenez: That's correct. Mr. Bynum: I just wanted to make those statements and celebrate that we're at this point with one of these properties. Thank you. Chair Furfaro: Thank you. Anyone else? Council Vice Chair Yukimura. Ms. Yukimura: Yes. I too want to say thank you because this is an example of a housing program that's promoting affordability in perpetuity, it's quite extraordinary that someone with eighty percent (80 %) and below of the median income would be able to purchase a house, a single family house. Mr. Jimenez: Yes. Ms. Yukimura: So I think this program is good. I presume that the person on the waiting list has gone through one of our housing courses... Mr. Jimenez: That's correct. They are buyer qualified. Ms. Yukimura: So that the issues of monthly payments and that kind of thing will be met well and will have a successful sale, so very, very good. Thank you. Mr. Jimenez: Thank you very much for your comments. Chair Furfaro: Mr. Rapozo. Mr. Rapozo: This is a leasehold right, it's not a fee simple? Mr. Jimenez: It's a leasehold, yes. Mr. Rapozo: And the lease is how long? 47 COUNCIL MEETING MAY 4, 2011 Mr. Jimenez: Mr. Rapozo: affordability of the property, right? Mr. Jimenez: Mr. Rapozo: Chair Furfaro: The lease is for ninety -nine (99) years. So that will definitely preserve the Yes. Thank you. Okay. Any... Councilmember Nakamura. Ms. Nakamura: Good afternoon. How many... Eugene, I wanted to find out how many single family homes like this does the county own? Mr. Jimenez: Currently... Chair Furfaro: Six (6) or seven (7)... Mr. Jimenez: ­ we have seven (7) and we just completed construction of three (3) more, two (2) in `Ele`ele... Chair Furfaro: That's right. Mr. Jimenez: ... and one (1) in Waimea, so approximately about ten (10) at this point in time. Ms. Nakamura: And is it our policy to sell versus rent... leasehold versus rent? Mr. Jimenez: Right now it is, yes. Ms. Nakamura: And what are the proceeds of the sale used for? Mr. Jimenez: Proceeds goes into the dwelling unit revolving fund to further the purposes of that specific fund which is to provide homebuyer loans, gap loans, and/or to purchase property... whatever... it goes into a special fund to further the purposes of the Housing Agency in regards to housing development. Ms. Nakamura: Thank you very much. Mr. Jimenez: Thank you. Chair Furfaro: Councilmember Kuali`i. Mr. Kuali`i: I appreciate Councilmember Nakamura's questions, I was interested in that as well. The other question I had was where are you purchasing the homes from originally? 48 COUNCIL MEETING MAY 4, 2011 Mr. Jimenez: Okay the homes were originally homes that were foreclosed by the banks, we're purchasing it from the banks not from individuals. Mr. Kuah'i: Right. Mr. Jimenez: It started off under the Neighborhood... the NSP program and then we expanded it to include some of the funds from the Block Grant Program to purchase these homes. They are varying in criteria for the various sources of funding. This specific home has to be sold to an individual making eighty percent or less of the area median. Mr. Kuah'i: I see and I appreciate the service you're doing for families who need to get a home and couldn't afford it otherwise but I'm curious as to if anywhere in the Housing Agency are we doing anything for those families who lost the home? Mr. Jimenez: Mr. Kuah'i: Well what we've done is... Habilitation or whatever... Mr. Jimenez: Well we have funded the Homeownership Counseling, HHOC which does provide foreclosure counseling to families but we don't do it in house per say. Mr. Kuali`i: Thank you. Chair Furfaro: Mr. Jimenez, I think that was a reasonable question to ask about going forward if there's anything we could pursue. How do we kokua with someone in this environment? Mr. Jimenez: I appreciate your comments and we'll be addressing this as part of our Housing Fair coming on June 17 at the... Chair Furfaro: Well I'm going to dismiss you from the other side of the rallying, may I congratulate on the completion of the other repairs and so forth to add the other three (3) homes, congratulations. Mr. Jimenez: Thank you. Chair Furfaro: On that note, I'm going to see if there's any public testimony. Is there anyone in the audience who wishes to testify on this item? Seeing no one, I'm going to call this meeting back to order. There being no objections, the meeting was called back to order, and proceeded as follows: Chair Furfaro: Discussion? No further discussion? The motion to approve C 2011 -133 was then put, and unanimously carried. There being no objections, the Council recessed at 12:35 p.m. 49 COUNCIL MEETING MAY 4, 2011 The Council reconvened at 3:02 p.m., and proceeded as follows: Chair Furfaro: Members, we're going to go back to page one (1), could I have the Clerk read the communication section? Mr. Nakamura: Council Chair, we're on page one (1) of the Council's agenda a communication for receipt, communication C 2011 -129 and C 2011 -130. C 2011 -129 Communication (04/07/2011) from the Chief of the Building Division, Department of Public Works, transmitting for Council information, the Building Permit Information Reports for March 2011 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 Ms. Yukimura moved to receive C 2011 -129 for the record, seconded by Mr. Chang, and unanimously carried. C 2011 -130 Communication (04/08/2011) from the Chief of the Engineering Division, Department of Public Works, requesting Council consideration to establish the installation of a speed hump on Makeke Road, vicinity of Waimea Neighborhood Center, Waimea District: Ms. Yukimura moved to receive C 2011 -130 for the record, seconded by Mr. Chang, and unanimously carried. Chair Furfaro: Page two (2) please. Mr. Nakamura: Council Chair, we're on the top of page two (2) of the Council's agenda on communication for receipt, communication C 2011- 131. C 2011 -131 Communication (03/28/2011) from the Director of Parks & Recreation, requesting Council consideration to establish crosswalks, a shared -use path, and redefine traffic lanes on Ala Road, Niulani Road, Keaka Road, Makaha Road, Panihi Road, and Moanakai Road: Mr. Rapozo moved to receive C 2011 -131 for the record, seconded by Ms. Yukimura. There being no objections, the rules were suspended. Mr. Mickens: For the record Glenn Mickens. You have a copy of my testimony and let me read it for the viewing public please. This Council and past Councils have had many issues come before them over the years. Some are extremely important as my previous testimony was about the wrong way our roads have been paved costing tax payers millions of dollars. And our solid waste program without a new landfill that has been going on since I've been here for twenty -one years, which cost us I think eight million dollars a year we're putting in it. But this bike path is not an issue of extreme importance and yet a small group of people are pushing it like it's an emergency issue, the big question is why? We desperately need alternate roads on Kauai opening other cane haul roads to alleviate traffic as the Kapa`a Bypass Road has done. These and so many other issues are high priority projects that need addressing and not a recreational bike 50 COUNCIL MEETING MAY 4, 2011 path. I dare any of you to tell those workers and commuters who use our roads daily that this path is more important than helping them get around our island. And now we have Mr. Bynum introducing a Resolution to get this path put along Moanakai Road where I'm sure you people remember that were on this Council at the time, engineering reports several years ago showed that this road was undermined by ocean action and had to be replaced by proper construction and infrastructure shoring up before any path could be placed along it. The expert on shoreline activity Chip Fletcher has repeatedly said that hardening of our shoreline is not wise and yet we push this path along a route that does exactly that. Thus until Moanakai Road is brought up to safe, engineering standards and the Pono Kai wall is repaired to proper specifications, I would oppose Resolution No. 2011 -53 and I hope that this Council will do the same thing. Chair Furfaro: Thank you for your testimony Glenn. Is there anyone that has any questions of Glenn on this item? Mr. Mickens: Thank you Jay. Chair Furfaro: Thank you. Ken, I understand you wish to testify as well? Please. KEN TAYLOR: Chair, members of the Council, my name is Ken Taylor. Before I get started this morning when Waldeen was here she asked me to just verify that you had received her piece that she has turned in? Chair Furfaro: Rick, could you get that and make sure before I say yes, I can see it better? Go ahead keep going... Mr. Taylor: I want... Chair Furfaro: I want to see what you're showing us. Mr. Taylor: I just wanted to read... Chair Furfaro: Go ahead, continue... Mr. Taylor: I'd like to read a... Chair Furfaro: Yes we have this. Mr. Taylor: I'd just like to read one (1) paragraph out of there. Chair Furfaro: Oh I see, surely. Mr. Taylor: On page two (2) of her document in the I guess it's the third paragraph before the list of violations, it says violations of Federal and State of Hawaii authority consist of Civil and Criminal Offenses of environmental historical preservation and procurement violations including the following and there's a list of about ten (10) items that she list that she claims that are violations and so I... anyway she asked if I would make sure that you had that 51 COUNCIL MEETING MAY 4, 2011 and would read that one (1) paragraph for her. As you know in the past speaking for myself now, I have always been supportive of the bike path but there has been some issues recently that have been very concerning and I think in light of what Walden has raised here, I think that until those issues are resolved one way or another, we should not be going forward with anymore activity of the bike path until we see are these real concerns or have all the questions been answered. Until then we should back off. The other issue along this route is certainly the concern of the seawall and I have real problems with hardening of the sea shore and have watched over the few years the action of the water in front of the seawall especially down in front of Pono Kai where you can see a section of beach without the seawall where the water comes in and rolls up the sand and rolls right back out with no, little to no erosion. When the water rolls in, it hits the seawall in front of Pono Kai, it picks up force and washes back out and creates erosion. I'm not an engineer but you don't have to be an engineer to observe what's going on and I personally believe that all the seawall should be removed and... because we're going to spend a lot of time and money if we decide to move forward with rebuilding it and with climate change and the potential of sea level rising we're going to have serious problems down the road anyway. We might as well address the fact that it's coming. By spending a lot of money today on those seawalls is not going to solve the problem down the road so let's do the right thing and take the seawalls out, let go... let things go where they may and one of the prices you pay when you live along the sea shore. In closing, until these questions that are raised by Waldeen are answered and the seawall issues are answered, let's back off on this at this time. Thank you. Chair Furfaro: Thank you. Any questions of Mr. Taylor? Seeing none, thank you Ken. Mr. Clerk. There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: The motion to receive C 2011 -131 for the record was then put, and unanimously carried. Chair Furfaro: Next item. Mr. Nakamura: Next matter is a communication for approval, communication C 2011 -132. C 2011 -132 Communication (04/13/2011) from the Prosecuting Attorney, requesting Council approval to purchase a 2003 Chevrolet Cavalier (asset # 9275) that was purchased in 2003 with VOCA grant funds from the State of Hawaii Attorney General's Office (Grantor) and has been used exclusively for victims and/or witnesses transportation to Court, the vehicle has 7,735 miles on it and has an estimated. value of $3,500.00. Chair Furfaro: Before we go any further, Mr. Rapozo the floor the Chair will recognize you. Mr. Rapozo was noted as recused from this item. As shown by the documents attached to the request, Mr. Rapozo was employed at the Office of the Prosecuting Attorney and obtained the appraisal of the vehicle. 52 COUNCIL MEETING MAY 4, 2011 Mr. Yukimura moved to approve C 2011 -132, seconded by Mr. Chang, and unanimously carried. Chair Furfaro: Will someone bring Mr. Rapozo back in? Next item please. Mr. Nakamura: Next communication for approval is communication C 2011 -134. C 2011 -134 Communication (04/13/2011) from the Chief of Police, requesting Council approval to purchase a commercial grade ice maker machine with a storage bin, which will be part of the department's disaster preparedness equipment which would produce and store much needed ice to support continued operations during a disaster or major event. Ice from the machine will also support regular, planned, field operations, as well as other departmental functions. The cost of the ice maker is approximately $10,000.00 and would be purchased with unexpended funds under the Patrol Services Bureau, account no. 001 -1005- 551.30 -00: Mr. Chang moved to approve C 2011 -134, seconded by Ms. Yukimura. Chair Furfaro: Is there anyone in the audience that wishes to speak on this? Any members that wish to speak on this? Ms. Yukimura: Mr. Chair? Chair Furfaro: Councilwoman Yukimura. Ms. Yukimura: It occurred to me that one of the things that's not reported here is the cost of operations, I'm recalling that somebody actually analyzed some of the coke vending machines and found that they are on a twenty - four basis they actually draw a lot of electricity. I'm not saying this to stop the vote on it but it just occurred to me that we maybe need that kind of information as well in the future. Chair Furfaro: Very good. I was going to raise the same piece dealing with, I think on an ice machine like this, we would like to know the bin size, the tonnage, how much ice it produces and also an estimate on the utility consumption. So in the future we would do as such. I just happen to be familiar with this brand, that's all. Ms. Nakamura: Chair, I also had some questions about in an emergency if electricity goes out... they have generators? Sure... but just to make sure that... and will there be a policy for other departments to use this ice maker? Chair Furfaro: Well these are all very good questions if we'd like to get to that kind of detail, I have no problem sending a communication but it's good information for the future. As far as a power source, I would think Public Safety, Civil. Defense and so forth, they understand where their backup generators plugs are, what kind of electricity they draw, what kind of volume the ice maker makes? I hope that was all considered in their deciding the specs and putting it out for bid. If you like we can defer this and... I'll just send over a communication. Mr. Clerk? Mr. Nakamura: (inaudible) 53 COUNCIL MEETING MAY 4, 2011 Chair Furfaro: Okay. This would not be something I would think to be sent to Committee but rather send a communication over but I just been informed that they're trying to close out their budget process. As I shared with you, I'm familiar with these and in future communications, utility consumption which is stated by the manufacturer, AC backup for emergency purposes can all be put into future communications if you'd like to vote on this today but they are... this is time sensitive from a standpoint of trying to close out and secure the purchase before the next seven (7) weeks. So it's your choice... Ms. Yukimura: Mr. Chair? Chair Furfaro: Yes. Ms. Yukimura: I think... let's see... if we actually put it in Committee next week and get the information or, or else... or move it for two (2) weeks just defer it, that still should give them time. Chair Furfaro: I wouldn't send it to Committee, I would defer it for two (2) and have the answers come back to us as a whole. Ms. Yukimura: That sounds fine with me. Chair Furfaro: But I do want to let you know that it is time sensitive and I'm familiar with this brand of ice maker. Any further discussion? Mr. Bynum. Mr. Bynum: I think these are all interesting questions maybe... but I'm just speaking for myself, I'm ready to vote on this. This is the Police Department, they do good due diligence and they can give us a written response to these questions. Chair Furfaro: Okay... Tim check your mic. Mr. Bynum: Yes. So I'm ready to vote. Chair Furfaro: You're ready to vote, okay. Any further discussions? I do want to confirm that I will send the questions over for the future... Ms. Yukimura: Chair Furfaro: emergency backup power. Ms. Yukimura: Chair Furfaro: Ms. Yukimura: Ms. Nakamura: Thank you. As I just specify consumption, tonnage and And access during emergency. Okay. Who has access to it? Councilmember.. . Policy for other departments. 54 COUNCIL MEETING MAY 4, 2011 Ms. Yukimura: Chair Furfaro: policy across but we'll send it over. Ms. Yukimura: Chair Furfaro: to agree on sharing ice, we're in... Ms. Yukimura: Department. Chair Furfaro: Ms. Yukimura: That's what I meant. Oh, that's going to take a while to get a Send it over anyway. I mean if you can get three (3) departments Oh, it will all be in the hands of the Police So we'll put it... But... Chair Furfaro: We'll send that question over, if that's what you want, we'll send it over. But I would suggest that we call for the vote now. Let's call for a roll call vote: The motion to approve C 2011 -134 was then put, and carried by the following vote: APPROVAL: Bynum, Chang, KuaYi, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST APPROVAL: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Mr. Nakamura: Seven (7) ayes Mr. Chair. Chair Furfaro: Please make note of the communications that's been requested and I'll put it under my signature. Ms. Nakamura: Thank you. Chair Furfaro: Next item. Mr. Chang, I'd like to recognize you before we go to 135. Mr. Chang: Thank you very much Mr. Chair, I'm going to recuse myself from this communication. Thank you. Mr. Rapozo: No, you don't recuse yourself.. Ms. Yukimura: No, you can stay. Mr. Bynum: You can stay for this, I think. Chair Furfaro: If he wants to do, it's his choice, we all have personal choices. Mr. Nakamura: Council Chair, I'm sorry I just had to fix the mic... we're on communication C 2011 -135. 55 COUNCIL MEETING MAY 4, 2011. C 2011 -135 Communication (04/28/2011) from Councilmember Chang, providing written disclosure on the record of a possible conflict of interest and recusal on Bill No. 2404 (An Ordinance to Appropriate $150,000 to the Kauai Marathon Grant), because he is the Owner of Wala`au Productions which tapes and aires footage of the Kauai Marathon and also he serves as an emcee for the Kauai Marathon at several pre and post events: Mr. Rapozo moved to receive C 2011 -135 for the record, seconded by Ms. Yukimura. Chair Furfaro: I would like to ask that in the future if I ask for a member to step out and that was my choice as Chair that please make sure that we note that you will not vote on this item. The motion to receive C 2011 -135 for the record, was then put, and carried by a 6 -0 -0 -1 vote (Mr. Chang was noted recused). Chair Furfaro: Thank you. Next item. Mr. Nakamura: Next matter is a communication C 2011 -136. C 2011 -136 Communication (04/28/2011) from Council Chair Furfaro, requesting agenda time for discussion regarding possible changes in the following: 1) Resolution No. 2011 -02, Draft 1 (Adopting Rules of the Council of the County of Kauai for the Organization of Committees and the Transaction of Business). 2) Resolution No. 2011 -49, Draft 1 (Relating to the Appointment of the Chairpersons, Vice Chairpersons, and Members of the Several Standing Committees of the Council of the County of Kaua`i). Mr. Chang moved to receive C 2011 -136 for the record, seconded by Mr. Rapozo. Chair Furfaro: Any discussion? Ms: Yukimura: Yes Mr. Chair, this originated out of a previous meeting and you made a commitment to put this on an agenda out of concerns for a couple of us but I think, in thinking about it... there's no need for this, so I support the motion to receive. Chair Furfaro: Thank you. Before we go any further, is there anyone in the audience that would like to testify on this item? Seeing no one, may I ask all those in favor signify by saying aye. The motion to receive C 2011 -136 for the record was then put, and unanimously carried. Chair Furfaro: Next item. Mr. Nakamura: We're at the top of page three (3) of the Council's agenda on a Legal Document attached to communications C 2011 -137. LEGAL DOCUMENTS: C 2011 -137 Communication (04/19/2011) from Deputy County Attorney Ian Jung, recommending Council approval for Grant of Non - Exclusive Pedestrian Beach Access Easement. 56 COUNCIL MEETING MAY 4, 2011 1) Grant of Non - Exclusive Pedestrian Beach Access Easement; Grantor, CTF Hawaii Hotel Partners Limited Partnership; Grantee, County of Kauai, a political subdivision of the State of Hawaii; TMK (4) 2 -8 -017, 018 and 019; with referenced Lot Nos. 175, 176 and 177. Ms. Yukimura moved to approve C 2011 -137, seconded by Mr. Bynum. Chair Furfaro: Any discussion? Mr. Rapozo: I just have a question as to where this is? Chair Furfaro: This is, I already looked into the same question, it is the piece between Kiahuna and the Po`ipu Beach property. Did you have a question Councilwoman Nakamura? Ms. Nakamura: I have two (2) questions. One (1) is, is there any... I see the shoreline access and easement P -1 but I was just wondering if there was any... that would be the lateral access, is there any other access mauka? Chair Furfaro: If we'd like to take a recess, I have a map that was sent to me from Mauna Kea. Ms. Yukimura: Can we be handling other business? Chair Furfaro: Well I know exactly where it is on my computer, so I will excuse myself and turn the meeting over to you. Ms. Yukimura: Okay. Ms. Nakamura: And my second question is the condition that was passed by the Planning Commission says that the access shall be a minimum of ten (10) feet in width and the easement document, the grant of non - exclusive pedestrian beach access easement, says such walkways shall not be more than six (6) feet in width, so I was just wondering about that discrepancy. Chair Furfaro: I decided not to leave the meeting because the answer went to my home email when I raised it but if you could can Mauna Kea please and get a print of the actual map to answer these particular questions. Yes, I'll move it to the end of the agenda. Ms. Yukimura: (inaudible) Chair Furfaro: Mr. Rapozo. Mr. Rapozo: And I guess I would ask that Mr. Trask be here as well to answer any questions. Chair Furfaro: May you make that same request. Councilwoman Yukimura. Ms. Yukimura: That was my request also. Thank you. 57 COUNCIL MEETING MAY 4, 2011 Chair Furfaro: Well I'm glad I asked about this. We're going to move this item to the end of the agenda, I'm going to ask the Clerk if he could read the portion on claims. Mr. Nakamura: Council Chair, we're on Claims. CLAIMS: C 2011 -138 Communication (04/12/2011) from the County Clerk, transmitting a claim filed against the County of Kauai by Progressive Direct Insurance Co., as subrogee for Klaus Burmeister for damages to his vehicle, pursuant to Section 23.06, Charter of the County of Kauai. C 2011 -139 Communication (4113/2011) from the County Clerk, transmitting a claim filed against the County of Kauai by State Farm Insurance Company as subrogee of Chad P. & Rufina T. Plowman for damages to their vehicle, pursuant to Section 23.06, Charter of the County of Kauai. C 2011 -140 Communication (4/26/2011) from the County Clerk, transmitting a claim filed against the County of Kauai by Jared Someda for emotional distress, loss of enjoyment of life and possible lost wages, pursuant to Section 23.06, Charter of the County of Kauai. C 2011 -141 Communication (4/27/2011) from the County Clerk, transmitting a claim filed against the County of Kauai by Robert Abrew, for damages to his vehicle, pursuant to Section 23.06, Charter of the County of Kauai. Mr. Kuali`i moved to refer C 2011 -138, C 2011 -139, C 2011 -140 and C 2011 -141 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Bynum, and unanimously carried. Chair Furfaro: Thank you. Next item Mr. Clerk. Mr. Nakamura: Next matters are Committee Reports. First Committee Report for approval is from the Committee on Planning. COMMITTEE REPORTS: PLANNING COMMITTEE A report (No. CR -PL 2011 -03) submitted by the Planning Committee, recommending that the following be approved as amended: "Bill No. 2401 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 9, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE SUBDIVISION ORDINANCE," Mr. Rapozo moved for approval of the report, seconded by Mr. Bynum, and unanimously carried. (See later for Bill No. 2401, Draft 1) FINANCE 1 PARKS & RECREATION / PUBLIC WORKS PROGRAMS COMMITTEE 58 COUNCIL MEETING MAY 4, 2011 A report (No. CR -FPP 2011 -02) submitted by the Finance/Parks & Recreation/Public Works Programs Committee, recommending that the following be received for the record: "FPP 2011 -01 Communication (04/20/2011) from FPP Chair Bynum, requesting Committee agenda time to discuss the County's financial condition as it relates to the Comprehensive Annual Financial Report (CAFR)," Mr. Bynum moved for approval of the report, seconded by Ms. Yukimura, and unanimously carried. COMMITTEE OF THE WHOLE A report (No. CR -COW 2011 -14) submitted by the Committee of the Whole, recommending that the following be received for the record: "COW 2011 -05 Communication (04/20/2011) from Human Resources Subcommittee Chair Bynum, transmitting the "Report of the Human Resources Sub - Committee," pursuant to Resolution No. 2011 -04, Draft 1, as amended by Resolution No. 2011 -43, for the committee's information and consideration," Mr. Rapozo moved for approval of the report, seconded by Ms. Yukimura, and unanimously carried. Chair Furfaro: We now move to Resolutions. Mr. Nakamura: Next Resolution is Resolution No. 2011 -51. Resolution No. 2011 -51, RESOLUTION SUPPORTING THE TRAPPING, NEUTERING AND RETURN METHOD OF CONTROLLING KAUXI'S HOMELESS AND FERAL CAT POPULATION: Mr. Chang moved to approve Resolution No. 2011 -51, seconded by Mr. Bynum. Ms. Yukimura: ' Mr. Chair? Chair Furfaro: Go ahead. Ms. Yukimura: The Humane Society could not be at this meeting because Ms. Ori is on the mainland and will return on Tuesday and she asked if we could refer it to Committee of the Whole next week so she could appear. With Councilmember Rapozo, the introducer's agreement, I'd like to make that motion which superseds the motion to approve. Ms. Yukimura moved to refer Resolution No. 2011 -51 to the Committee of the Whole, seconded by Mr. Rapozo, and unanimously carried. Chair Furfaro: Next item. 59 COUNCIL MEETING MAY 4, 2011 Mr. Nakamura: Next Resolution for approval is Resolution No. 2011 -52. Resolution No. 2011 -52, RESOLUTION ESTABLISHING A SPEED HUMP INSTALLATION ON MAKEKE ROAD, VICINITY OF WAIMEA NEIGHBORHOOD CENTER, WAIMEA DISTRICT: Ms. Yukimura moved to approve Resolution No. 2011 -52, seconded by Mr. Bynum. Chair Furfaro: Anyone wishes to speak? Councilwoman Yukimura. Ms. Yukimura: Yes. I spoke to County Engineer Larry Dill and he said there's a way to accommodate, they're actually going to do speed humps for the first time. They're going to divide it up so that a fire truck can go over it easily but a regular car cannot and so they have it really well thought out and I think we can just proceed in approving this Resolution. Chair Furfaro: Just to add to that that was the same discussion we had when Larry wasn't the Chief Engineer but it came up in Hanalei, for the fire trucks to go over so thank you for reconfirming that. Ms. Yukimura: You're welcome. Chair Furfaro: This will be a roll call vote. The motion to approve Resolution No. 2011 -52 was then put, and carried by the following vote: APPROVAL: Bynum, Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST APPROVAL: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Mr. Nakamura: Seven (7) ayes Mr. Chair. Next Resolution for approval is Resolution No. 2011 -53. Resolution No. 2011 -53, RESOLUTION ESTABLISHING CROSSWALKS, A SHARED -USE PATH, AND REDEFINING TRAFFIC LANES ON ALA ROAD, NIULANI ROAD, KEAKA ROAD, MAKAHA ROAD, PANIHI ROAD AND MOANAKAI ROAD, KAWAIHAU DISTRICT, COUNTY OF KAUAI: Mr. Bynum moved to approve Resolution No. 2011 -53, seconded by Ms. Yukimura. Chair Furfaro: Any discussion? Mr. Rapozo. Mr. Rapozo: Yes Mr. Chair, I had asked that we send this to a public hearing. After reading the Resolution and looking at the communication, I would actually would rather have this refer this to the Parks Committee because I would like to get a presentation from the Parks Department and I guess the Buildings Division. One of my concerns and I've expressed these concerns with Parks and the Building Division that in fact this Resolution also authorizes the construction of the path in front of the park of the seawall that needs to be repaired. And what I don't want to see is what's happening at Pono Kai is, we're going to lay down this concrete path, I don't have a problem with the rest of the Resolution as 60 COUNCIL MEETING MAY 4, 2011 far as the traffic realignment, converting it into a one -way and the crosswalks but what I don't want to see happen is we lay out all this concrete on Moana Kai Road for the pedestrian path and then we come back to repair the wall and have the heavy equipment and the construction of the reconstruction of the wall create damage to our asset. As I spoke with Mr. Haigh and Mr. Rapozo last week, there's some concerns because there's some problems arising in the permitting process of the repair of that wall. So I'm asking that we refer this to Committee so we can get a briefing from them, so we can better understand what's happening out there with the seawall and what the timetable is to get a permit to fix the seawall and what it will entail. The last thing I want to do is spend all that money and end up having it destroyed by the equipment that we'll be repairing the seawall. That is my request. Chair Furfaro: Okay. Mr. Bynum then Councilwoman Yukimura. Mr. Bynum: I think that the Public Works met with all the Councilmembers last week and on Moana Kai, we also received testimony from most of the neighbors from Moana Kai supporting this change and several of the other communities because they've done good due diligence and outreach to the community there. But let me be specific about Moana Kai, eventually we're going to repair the seawall, just like eventually we're going to repair the seawall at Pono Kai. Those things are complicated and they take a long time to plan. At Moana Kai, so you have a seawall, you have a road and then you have homes... the plan there for the path as I understand it is to move some of the utility poles to make the road somewhat wider, the path will be on the mauka side, away from the seawall, it won't be concrete, it'll be asphalt and when they repair the seawall they don't need the room where the path will be but... and so you know I'm ready to move ahead with this vote now because I've been assured that it's not a concrete path... it's not going to be... and even if it were like at Pono Kai the path has been, we had testimony at the time, let's not put the path in until we fix the seawall, well that path has been there for what four (4) years being used by thousands of people. If eventually the repair of the seawall impacts it and this was test money from Chip Fletcher, you know it's a six (6) inch slab on grade, it's minor in terms of the scope of the path and it has this use for four (4), five (5) years. The people on Moana Kai and Niulani, I think it's the pronunciation have... are anxious for this to move forward because it's going to improve the safety of their neighborhood and the testimony says it's going to cut down, cut through traffic and I see no, nothing from the neighborhood that was in opposition, I have only seen a lot of support. I think we're going to have a quarterly update from the Parks Department soon so I'd like to move ahead with this. Chair Furfaro: Councilwoman Yukimura. Ms. Yukimura: Thank you. I agree with Councilmember Rapozo that it'd be good to look at the coordination of Public Works projects as respect to Pono Kai because I think there's chance for more impact. The way I read this Resolution it doesn't cover that area by Pono Kai and as Councilmember Bynum explains, the path will be actually mauka... on the mauka side of the road so if anything gets damaged, it would likely be the road itself which is existing. So I think I feel comfortable going ahead with this Resolution but I would like to see on the agenda an item that addresses or asks the questions that Councilmember Rapozo's asking about Pono Kai. 61 COUNCIL MEETING MAY 4, 2011 Chair Furfaro: Anymore discussion? Mr. Rapozo let me just check if somebody else wants to speak who hasn't yet. Okay, you have the floor. Mr. Rapozo: I want to make sure I made myself clear, all the testimony I saw from the residents was about the traffic change, the one -way traffic and the crosswalks and I support that part of the Resolution. I think converting Moana Kai to a one -way street is going to do wonders for that area, that's not my concern. My concern is and I'm kind of disappointed and I don't even see anybody from Parks or Buildings here to answer any questions. I mean it's a Resolution that they wanted approved today and they're not here. I think it's a reasonable request to get a briefing, this is a big project, this is not a small project. This is not a speed hump this is a complete realignment of the road, rebuilding utility poles, creating a pedestrian path in front of a deteriorating wall. I think we deserve to get a briefing, I do and I think the public deserves to get a briefing. I was there on the site visit with the experts at the time when they analyzed the seawall and I would encourage everyone of you and I understand the path is mauka of the road but that's a huge undertaking to rebuild that wall. Mr. Haigh and Mr. Rapozo did show me what needs to be done, it's huge. And we're getting difficult time to get some approvals and permits but it's not just a little backhoe that's going to be there working, it's going to be heavy equipment bringing in boulders and fixing that wall. All I'm asking for is a briefing. If I'm assured as Mr. Bynum is that they're not going to interfere with the construction of the path, then I'll support it but I'm not convinced because it's not a very big area to work. It's a pretty big stretch of wall that needs to be repaired so that's a simple request and it will delay the project two (2) weeks because if we get it to Committee next week, it can be in the full Council in a month. I don't see the time sensitivity of this one because it doesn't include funding from our current budget. That's all I'm asking. Chair Furfaro: Okay. Councilmember Kuali`i. Mr. Kuah'i: In listening to Councilmember Rapozo's thought and what he shared with us, I think it is a big project and we should give it just a little more time and perhaps refer it to Committee next week and can come right back to the Council in two (2) weeks. If we can have someone from Public Works here to make sure all our questions are answered and that way we're reassured like Councilmember Bynum is reassured. Chair Furfaro: Okay. Is there any other member that wants to speak before I recognize other members a second time? Mr. Chang. Mr. Chang: Thank you. I actually as we all did met with both Mr. Rapozo and Mr. Haigh and I actually felt assured that the path was mauka as we talk about the road but the way that they made it sound to me and this was just my impression that there would be a lot of room. They wasn't using real heavy equipment and I think, I don't want to sound like it was minor but the way it was expressed to me was that the wall shouldn't take a long time to build. It really wasn't going to be a hindrance with moving forward. With that being said, I would have to agree with Mr. Rapozo, I mean if they were here they could reassure the information they gave me but I don't think and my questions and I went past there, right after the briefing I went up there and I was assured, I like the way that the flow went with the one -way and the side roads that you can detour and bypass that area, so I didn't really have a concern, however in fairness maybe somebody should have been here that they could have gave us the information. What I want 62 COUNCIL MEETING MAY 4, 2011 to say is that my questions were answered and I don't believe that the way that I heard it that it was going to be that big of a problem. Chair Furfaro: Excuse me, members. There's a discussion on the side about having them come right now and so forth... Mr. Chang has the floor. Are you finish with your statement? Mr: Chang: Yeah well you know what obviously they're not here. Chair Furfaro: Well there's two (2) ways we can do this, we can give them the easy way out by having them come now, or we can make it very difficult... we can vote on the Resolution and ask them for a briefing in two (2) weeks. So they understand that in the future if we have a serious project like this, somebody should be here. So we have two (2) choices. Is there anything more you want to add? Mr. Chang: That's fine. Chair Furfaro: Mr. Bynum, I'll recognize you a second time. Mr. Bynum: I want to make sure my position is clear, I have no problem having a briefing, let's do that... I believe that they made appointments with all of us last week and were not asked to be here right now, we can ask them to come. But I don't want our employees sitting out there waiting on every agenda item when they met with us in advance and they don't have any request. I want us to discuss this and brief it as much but this Resolution is about changing the roadway, that wall is not going to get rebuilt for years, probably. I believe they intend to these roadway changes in terms of the one -way prior because even without the path or a wall, it makes the community safer and actually... so... no problem with having a briefing but this is a Resolution about changing the roadway, it's not about the wall at all. Sometimes... I guess if I was talking about the wall... somebody would say hey it's not on the agenda you can't talk about it but I don't want to say that because it's related and we should discuss it. But this is a roadway change and I rather have them come today if they're available so we can move this rather routine matter through and ask for the briefing. Chair Furfaro: Okay. Would someone from the staff call over to Parks and Recreation and we'll defer this when I come back after (inaudible), I'll give you the floor KipiiKai and then I'll give you any other Councilmember who would like to speak, okay? On that note, we're calling for them. I agree with Mr. Bynum, the fact that of the matter we don't want people sitting there all day but they can pace the agenda on Wednesdays, it's no secret we meet on Wednesdays. They should make themselves available. Going towards the Clerk's Office... is someone making copies of the map and we have Mr. Trask. Okay... We're going to take a recess while we can copy some documents. There being no objections, the Council recessed at 3:43 p.m. The Council reconvened at 3:55 p.m., and proceeded as follows: 63 COUNCIL MEETING MAY 4, 2011 Chair Furfaro: Mr. Trask thank you for being here. On that note, we are... Mr. Nakamura: Council Chair. Chair Furfaro: We were having copies made and the item I want to go back to is the easement for Kiahuna Beach access. These are the electronic files that I was given by the Attorneys. Mr. Trask, I want to thank you for that but I had not shared this... after I just asked the one question but other questions have come up on the easement, there is a map in your package, so I'm going to suspend the rules and ask you if you can come up as we go through these documents going back to 1962 on the easements. There being no objections, the rules were suspended. Chair Furfaro: I believe the first question again came from Councilmember Rapozo. I expressed that the documents that I saw dealt with the Po`ipu Beach Hotel, the Kiahuna area for this easement and subsequently Councilwoman Nakamura had asked some questions dealing with lateral access. On that note, I'm going to give the floor to Mr. Rapozo and then to Councilwoman Nakamura. Mr. Rapozo: I'm done... Chair Furfaro: Okay, so you're good... you seen the map... Mr. Rapozo: Yes, yes. Chair Furfaro: Councilwoman Nakamura. Ms. Nakamura: Thank you. Thank you Mauna Kea. My question is the condition of the County permit, approving the hotel said that there should be a minimum ten (10) foot in width access easement and in the easement document that's before us, it says such walkway shall be not more than six (6) feet in width, so I want to just ask you about this discrepancy. MAUNA KEA TRASK, DEPUTY COUNTY ATTORNEY: Okay. Thank you and just if I may for a minute to clear orient of the members... (Inaudible) Mr. Trask: Oh, sorry. Deputy County Attorney Mauna Kea Trask for the record. The easement we're talking about right now, if you look at... there's two (2) maps that I have provided. One (1) is the tax map key from our Real Property Tax Division, the other is a Land Court map. In reference to the tax map if you look, I'm going to refer to the bottom portion of that map which is a wavy coastline sort of a demarcation and that is, if you look where the true north arrow is pointing approximately in the middle of the bottom of that map, that arrow points directly towards Waiohai Beach and that lot behind that is a Marriott Waiohai Beach Club, okay? And so to the left, if you're looking at the map, those are lot nos. 17, 18, 19 respectively and this easement is traversing the shoreline of the... it traces the laterally the shoreline along those three (3) properties and that's 64 COUNCIL MEETING MAY 4, 2011 currently where the new Koa Kea Hotel is. I believe it was built over the old Waiohai Beach Club or something like that and if you're familiar with the area, it's currently built, it is about six (6) feet wide and it's created from some kind of plastic concrete mix slats, large horizontal slats and it's there right now. From my understanding, that is what is being dedicated. Also if you look at the document, the grant of recreational pedestrian access easements, on page three (3) condition six (6) it says relative to the shoreline setback minimum width of six (6) feet and dedicated to the county in perpetuity and so I was told to look at the metes and bounds description that is attached to this document and... I was informed that... in looking at that as you can tell this is page eleven (11), twelve (12), thirteen (13) and fourteen (14), exhibits (b) and (e) respectfully, they describe the easement not in width but in total square feet so I'm not able to, I think specifically address how wide the easement is actually is without knowing the total calculation. My belief is that because the easement in front of Marriott Waiohai Beach Club was six (6) feet long, the easement fronting the three (3) lots in front the Koa Kea Hotel was built to match that width. This document talks about that width of the actual slats versus what has been conveyed which is the ten (10) feet so if you would like I can look further but it seems to me that they're talking about the actual path itself. Chair Furfaro: Mr. Trask, I want to thank you because I bring to the members attention, this was actually Mr. Jung's, Ian Jung's project and you're filling in for him while he's on maternity leave. So good fill in, you can play left field for me anytime. Mr. Trask: He took care of me when I was out, so. Ms. Nakamura: Thank you for answering the question. Chair Furfaro: Mr. Bynum. Mr. Bynum: So this is the easement in front of Koa Kea? Mr. Trask: Correct. Mr. Bynum: . And I'm very familiar with it and so I just... you know Waiohai put in public easement, Koa Kea did, you know the goal is eventually a person with disability could move between Po`ipu Beach Park and the Sheraton? Mr. Trask: Correct. Mr. Bynum: But there's that Koa Kea easement ends in a flat dead end at Kiahuna, are we... and they have some kind of access... are we working on that so we don't have a huge puka in this public easement? Mr. Trask: I believe we are but my understanding and possibly Chair would know about this that when Kiahuna phase two (2) which is the hotel, I believe the hotel that abuts directly the end of that easement, when that was built, whenever it was built sometime ago... there was no shoreline setback requirements so that literally if you're familiar with the area, it's right there at the beach. It goes fence, naupaka bush, sand and so if that were to have been built now there would be more of a setback to connect but I think that easement is going to be placed further mauka and then try to connect to and also if you know, I'm sure 65 COUNCIL MEETING MAY 4, 2011 you're familiar, there used to be an easement fronting further down near Sheraton, the other Kiahuna phase, I think it's phase three (3) or four (4). Chair Furfaro: It's four (4). Mr. Trask: Four (4). And it had eroded away, so I don't know specifically where Planning is with that. Mr. Bynum: Well, excuse me, I don't mean to interrupt but it's not the agenda item, so we'll follow up but you agree that the goal is to have ADA access from Po`ipu Beach Park to the Sheraton along that entire coastline? Mr. Trask: That is my understanding. Mr. Bynum: Because I've been out there and walked with the owners and walked with the... you know... and there was a boardwalk plopped right on the sand that nature took away, so maybe we'll do a separate follow up because this is since 1962... so we need to bring these things to fruition. Chair Furfaro: So be prepared we'll in the future have something specifically for Kiahuna. The reality there though is that association is divided, there's two (2) different boards so it might be more challenging to approach. Mr. Rapozo. Mr. Rapozo: I had a question. So what I heard was that the condition of the permit was to provide a ten (10) foot access but what this grant of easement, we don't have the measurements but you're assuming it's ten (10) feet but the improved walkway is six (6), so the six (6) foot walkway will sit inside of the ten (10) feet easement? Mr. Trask: I believe that the six (6) foot walkway is currently within that six (6) foot easement that's my understanding by looking at that. Mr. Rapozo: And the other question is I'm not sure ADA kicks in if we... if they conveyed this over to the county now, does that meet the ADA requirement or do we have to go in and improve that to ADA standards? Mr. Trask: I don't think I'm prepared to specifically answer that question right now because getting familiar with ADA it is a unique area in and of itself but having walked that path, being familiar with my kids... I have seen you know elderly people being able to walk over that path with the assistance of a walker and they were able to do it... I'm able to push my daughter's stroller along that path with relative ease, extreme ease... Mr. Rapozo: I wasn't sure what the standard is for the walkway. Mr. Trask: And they do have you know feet requirements and stuff like that. I'm not prepared to answer that today. Mr. Rapozo: Okay, thank you. 66 COUNCIL MEETING MAY 4, 2011 Chair Furfaro: Are there anymore questions? If not, Mauna Kea, I want to thank you for coming over on short notice, I would encourage the Legal Department to review the metes and bounds, have Engineering calculate that square footage because that metes and bounds imply that it is ten (10) foot, the concrete implies it's only six (6) feet of (inaudible) concrete but I think you want to ask Engineering for some k6kua there. Mr. Trask: Yes Chair. Chair Furfaro: Okay anymore questions? No. Again once again thank you for filling in for Ian and thank you for coming over at the request of the Council. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Kuali`i: I just have one other thought and earlier we had talked about basically if we are receiving this access but with that we're receiving the maintenance and liability of that access as well , so it would have been good to know what that is, as far as what additional cost are we taking on, of the public. Chair Furfaro: I'd be happy to send over a communication on your behalf asking not only for this one but in the future it would be good to understand when we accept an access what the annual maintenance upkeep might be. Mr. Kuali`i: Maintenance and insurance. Chair Furfaro: Yes. Mr. Kuali`i: Thank you. The motion to approve C 2011 -137 was then put, and unanimously carried. Chair Furfaro: Where is Councilmember Yukimura... Mr. Nakamura: We're back on... Chair Furfaro: She was just... Mr. Nakamura: We're back on page four (4) of the Council's agenda on Resolution No. 2011 -53 Mr. Chair. Chair Furfaro: Mr. Crowell if you would like to come up we have some questions, the question started with a query from the Water Department that the Water Department had sent to us indicating that they had some concerns and then they attached something that went to the Planning Department that was dated November 24 that we had not seen until the Water Department had sent this over to us. Mr. Rapozo: Are we on... did you move onto the Bill for second reading, is that where we are? 31A COUNCIL MEETING MAY 4, 2011 Chair Furfaro: I? Mr. Rapozo: We're... We didn't call that item yet right? Okay... we're pretty much in limbo right now... Chair Furfaro: We're no longer in limbo, we're in recess. There being no objections, the Council recesses at 4:09 p.m. The Council reconvened at 4:11 p.m., and proceeded as follows: Chair Furfaro: Mr. Rapozo is here now, Dee let me apologize to you, you were the target in the room because you were here. Mr. Rapozo is here now and we are on... Thank you Lenny for coming over. Lenny, we're dealing with the Resolution that is here 2011 -53, there were some queries made as we weren't privy to individual discussions. There was some possibility here of us either acting on this Resolution by a vote today with a briefing to be scheduled in the future to answer some of the Councilmembers questions or to direct some questions to you now so that we can get some clarity. So since you're here... we'll start with Councilmember Nakamura, you had questions on this Resolution, no? Mr. Rapozo. There being no objections, the rules were suspended. Mr. Rapozo: Thank you Lenny. I had requested that this be referred to Committee so we can get a briefing not just from Parks but from Buildings on the project in that area. Would that be a problem for you folks to have it referred so we can get a complete briefing on not just the realignment because that's not my concern. I think the realignment is a good thing, we've gotten the testimony from the residents that it's, you know... I think it's going to be a good thing. My concern is we had discussed in the meeting that we had was the fact that we were going to improve the roadway and install the pedestrian path knowing that we're going to have to go back there and I don't know, Doug told me that it was probably within a year at our meeting that the permitting would take to get the wall project moving and that would be my concern. We need to try to get the wall fixed first because I think that's where, that's just my opinion... my question was real simple, would it be a big problem if we refer it to the Committee next week, it would show up on the Council agenda in two (2) weeks for final approval, does that cause a problem for you folks? LENNY RAPOZO, DIRECTOR OF PARKS AND RECREATION: For the record Director of Parks and Recreation Lenny Rapozo. What we had hoped to have this measure pass this week is so we could request to obligate the funds from the State to move this project forward, to get construction going to get the project being constructed. As far as the seawall is concerned, we were... when we were moving the path as far over mauka as possible and with... a lot of the work with the seawall and I want to just clarify that, the seawall is a Public Works project, it's not part of the Parks project but because the path is going alongside of it I have some knowledge of what the work is going to entail. Most of the rocks that's going to be used to reconstruct the seawall is there, it's just that when they constructed that seawall, they didn't put the rocks from what I understand deep enough and that's why we have the problems that we have today. If there are going to be any additional rocks that's going to be brought in, it's not going to be big rocks that we 68 COUNCIL MEETING MAY 4, 2011 think of but maybe some smaller rocks. Mostly the material that's going to be used is already there and with the path being as far mauka as it is, we believe that we have enough room there that it won't jeopardize the path and they'll be able to use whatever machinery there to do the work. That has also been part of our discussion between Parks and Public Works and I too... would not want to have the path damaged. In discussion, it looks like it's going to work but we wanted this Resolution passed today so that we can move to start obligating the funds, the Federal and State funds to get this construction done. Councilmember Rapozo: Where are we on the wall construction? Where are we as far as permitting? Mr. Rapozo: That's a question for Doug. Councilmember Rapozo: And that's... Mr. Rapozo: I wouldn't know that. I can tell you what I know as far as the construction, what the work is entailed but those details, it's a Public Works project. Councilmember Rapozo: And that's why I'm asking for a complete briefing so we can be given the right information from the right people so that we can make the right decision, that's all. I understand we want to move it forward but you know I don't feel confident with that area, knowing that what needs to be done on that rock wall, I think it's pretty substantial, I think it is a big project. I just want to be sure that in fact it can be done without damaging and it's not a very big area to work from where the damaged wall is, it's not. It's going to be a busy area when that construction starts. Mr. Rapozo: Yeah and we've talked about restricting access to other vehicles but... I don't want the path damaged anymore than you do because we're the ones responsible and I'm going to deal with all the call ins and wanting it to be repaired as soon as possible but we believe that there is enough room because the path will be moved as far mauka as it is now. You know it's on the shoulder of the road and some of the road to get the necessary ten (10) foot width of the path so there's a good portion of the existing road already that is going to be clear, so you know... I feel comfortable that it'll be okay. But as far as permitting, those details about the project needs to come from Public Works. Councilmember Rapozo: Right and that... would two (2) weeks jeopardize funding? Mr. Rapozo: Well as soon as we get this we would like to try and move to get the State to move to obligate and they're ready to do it. Councilmember Rapozo: Right but would two (2) weeks jeopardize it? Ms. Yukimura: It's getting close. Mr. Rapozo: Maybe not... it'll be close, it'll be close. Chair Furfaro: On that note, Mr. Bynum. 69 COUNCIL MEETING MAY 4, 2011 Mr. Bynum: This Resolution is not about the Moana Kai... or the Pono... the Moana Kai seawall right? Mr. Rapozo: No. Mr. Bynum: It's about allowing the County to make the roadway changes? Mr. Rapozo: Correct. Mr. Bynum: And the path surface there that's mauka is going to be asphalt, correct? Mr. Rapozo: Correct. Mr. Bynum: So basically you have an asphalt road, it's going to have a painted section that delineates the path... if they come in there to replace the wall they may have to do the asphalt, right? But even if they went into the path area, it just be asphalt right? Mr. Rapozo: Yes but again they shouldn't have to go into the path area. Mr. Bynum: And having watched this process going on for a number of years now, getting the funds obligated, we are in a tight timeline right now. Mr. Rapozo: Correct. Mr. Bynum: Okay, thank you. Chair Furfaro: Councilwoman Yukimura. Ms. Yukimura: So there is some chance that the existing road might be damaged? Mr. Rapozo:. Correct. Ms. Yukimura: Yeah? And that is going to be a necessary evil sort to speak because I don't know how else you would rebuild the wall. I mean you will have to have your equipment mobilized from above the wall. Mr. Rapozo: Correct. Ms. Yukimura: And part of the contract would be to repave that road to fix it... Mr. Rapozo: Definitely. Ms. Yukimura: ... after the construction work is done. Mr. Rapozo: Yes. 70 COUNCIL MEETING MAY 4, 2011 Ms. Yukimura: Mr. Rapozo: The wall rebuilding is done. Yes. Ms. Yukimura: So actually there's not much alternative. Were you going to set it up so that there'll be as little damage or no damage as possible, if there is damage it'll be part of the construction... the contract to fix that and it's likely to be the road and not the path... Mr. Rapozo: That is... yes... yes. Ms. Yukimura: Right? Mr. Rapozo: Yes. Ms. Yukimura: So... yeah I'm not sure how much more discussion it would take to make us think differently about this Resolution before us. I mean I don't know if a discussion will change how we act on this Resolution today. Chair Furfaro: Okay, that's not a question that was a statement. Mr. Rapozo: Okay. Chair Furfaro: Does anyone else want to say anything before I recognize Councilmember Rapozo a second time? Councilmember Rapozo: I don't have another question. Chair Furfaro: Okay. Mr. Bynum. Mr. Bynum: You're coming here soon with an update for the whole path project? Mr. Rapozo: Correct. A quarterly update. Mr. Bynum: And you wouldn't object to us posting a specific item to discuss the path and the seawall in this area? Mr. Rapozo: Again the path is the path, the seawall is a separate project. Just so happen they're together and we making sure that it doesn't have any adverse affect on the path. Mr. Bynum: Thank you. Chair Furfaro: Mr. Kuali`i. Mr. Kuali`i: Though I think I heard my answers but let me just confirm... so you're assuring us that whatever improvements are made according to this Resolution that will now create the path on the mauka side of the road, it's really just going to be asphalt, so it's not going to be six (6) inches of concrete and all that (inaudible). 71 COUNCIL MEETING MAY 4, 2011 Mr. Rapozo: No. Mr. Kuali`i: And whatever other improvements you make, I don't know if you're moving telephone lines... telephone poles or whatever... that all of that is being made with the thought that in the future you still have to come in there with equipment to fix the wall. Mr. Rapozo: Correct. Mr. Kuali`i: And that whatever you have to redo like Councilmember Yukimura was saying as far as repave that fine line area hopefully that they stay in, that they don't go up and down all the way to Moana Kai and destroy everything because I know it would be... we should wait but you're assuring us that the cost after the Moana... the seawall improvements will be minimum? Mr. Rapozo: I will assure you this... any damage which I don't think... I'm assuring you this, any damage to the path inadvertently. Mr. Kuali`i: Right. Mr. Rapozo: I will request... or insist that Public Works gets a contractor to... Mr. Kuali`i: I'm not asking about the road, I believe it will be fixed... I'm just trying to prevent the loss of Moana Kai. Mr. Rapozo: The roadside if they're damaged... I cannot speak for Public Works but I will impress upon them that it is the wish of this body that any damage to the road would need to be repaired. Mr. Kuah'i: It has to be minimized because it's paying twice basically, you going to pay once to put it in and it's going to be torn up by the equipment to the wall and then we're going to have to fix it. Mr. Rapozo: The path improvements like I mentioned earlier, even in our meetings... I believe that with the improvements to path we would obtain the shoulder side and part of the road they'll be sufficient room for the machines to do the work that is necessary without damaging any part of the path. Mr. Kuali`i: Okay, thank you. Chair Furfaro: Anymore questions for Lenny? Lenny thank you for coming back over. Lenny, I do want to say something and I want you to be aware... in today's way of communication and so forth, today's episode of us having to find people to come and testify, I would share a preview with you as I will with Planning, as I will with the Administration... each Wednesday when we know we have agenda items that deal with your departments, please in the future designate somebody who can be available for on call or questions and so forth. I think it shows mutual collaboration and cooperation because when you brief individual Councilmembers, I'm revisiting this, the fact of the matter is I don't know what went on in your meeting with Councilmember Bynum or so forth... it's best to make sure we have an understanding. We meet on Wednesdays, if a department has 72 COUNCIL MEETING MAY 4, 2011 something there whether it's Building, Planning or so forth... somebody needs to be designated on Wednesday to be available for a call. Mr. Rapozo: Alright. Chair Furfaro: And I wanted to let you know how much I appreciate you coming over, how much I appreciate Mr. Crowell coming over but we have no more questions for you now. There being no objections, the meeting was called back to order, and proceeded as follows: Chair Furfaro: Members, we've had discussion and we can have some more discussion from you folks before we look if we're going to take action on the Resolution. Mr. Rapozo. Mr. Rapozo: Thank you and I appreciate Mr. Rapozo coming. I guess my questions was targeted for Public Works because it was involving the wall. I think my concern is that that wall should be the priority, I think the repairing of that wall should be the priority. We're going into this whole thing ready, fire, aim where we're going to build something... and then go fix the wall that's going to protect the asset. In my career on the Council, I've been assured of many things that never came through... bathroom at Isenberg, I mean I come back in this budget and I see stuff from the CIP project that's been there for years and we were assured that it was going to be done. My concern is the... it's the instability of that wall number one (1) and more so the question about the permitting process that I wanted clarified and maybe some feel that it's part of this Resolution well I disagree because this Resolution is going to place an asset in front of a seawall that needs to be repaired, that's significantly repaired. All I was asking is for a briefing, a complete briefing and I got the Parks briefing and I appreciate that... if we could get the Public Works briefing, I would appreciate that. I know Councilmember Yukimura said that she doesn't feel that comes up in a briefing would change her mind and that's her... I mean I can tell you right now, on the Resolution that we just referred to Committee that I agreed to, the extra time is not going to change my mind on how I'm going to vote either but it was a courtesy that I offered and I said sure... because I think we could have called for a question and got it passed but it was a courtesy because you wanted more information of the Humane Society... sure... I'm asking for more information from... this is a huge project, this is not a TNR Resolution, this is a huge project. As far as the time sensitivity I do not believe and I have a little knowledge about the budget process and how state funding work and I don't think two (2) weeks at this time in May will affect the funding, it won't... it won't. And if it did if it was so time sensitive this Resolution should have been in our Council two (2) months ago if it was that time sensitive. So I think... I don't want my back against the wall saying hey you got to pass it today or we going lose the money, I'm not going to play that game no more. There's some information that I'm seeking and I'm asking this body, I'll respect the wishes of this body if you pass it out, that's fine. But I'm simply asking for an opportunity to find out the project, the scope and where we at as far as that wall and that's all I'm asking for and again I'll honor the wishes of this body and that's it, thank you. Chair Furfaro: Okay. Vice Chair Yukimura. 73 COUNCIL MEETING MAY 4, 2011 Ms. Yukimura: It's not so much whether I'm satisfied with the information or not... it didn't seem like there were... there's any real option I mean we're... in terms of addressing what I thought was the main issue damage... potential damage to the bike path in the process of rebuilding the wall. If there would be damage it's most likely to be on the road rather than the path and if there is damage it's going to be fixed so I'm not sure how any of this, any information is going to change (inaudible)... basic path and then I do believe that there is six (6) weeks before the end of the fiscal year is not a lot of time and I don't think we understand all the sequence of paperwork and stuff when three (3) agencies are involved. I guess I'm willing to take the word of those who are having to do the paperwork that there is some time concerns here so I'm thinking and maybe I'm misunderstanding Councilmember Rapozo but I heard that damage was the main concern, damage of the bike path and that seems unlikely but if it is, if it does happen the road will have to be fixed anyway and fixing the bike path should be just part of it and then the time constraint. So that's how I'm looking at it. This is just a Resolution about basic flow, it's not even a Resolution that is... well... anyway I don't see how things will change because there may be damage and the damage will have to be fixed. Chair Furfaro: Before I recognize you a second time Mr. Rapozo is there anyone else want to speak on this item? If not, Mr. Rapozo. Mr. Rapozo: Mr. Chair if I may I'd like to ask Councilmember Yukimura a question, if that's okay? Chair Furfaro: That's fine with me, go ahead. Mr. Rapozo: Do you know how much this project is going to cost? Ms. Yukimura: No but I'm sure it's in many millions. Mr. Rapozo: That's my point. I mean wouldn't you want to know how much this project will cost? Ms. Yukimura: Well what... but... the question is... do you want... is your position that you want to stop the project until the wall is fixed, is that what you want? Mr. Rapozo: I want to... Ms. Yukimura: Because I think we'll lose the money. Mr. Rapozo: Well you think... Ms. Yukimura: Yes. I think it's very likely we will because... Mr. Rapozo: Let me just say for the safety of public fronting that road I think the wall restoration is much higher priority than this Resolution, I'll admit to that. If there's a reasonable time that that wall is going to be built I think we can... it can be put into... (inaudible) do it as a project and you do the wall restoration with the path, you could do that. There's a lot of options... 74 COUNCIL MEETING MAY 4, 2011 but right now I don't even know and nobody can tell me when this... restoration of the wall can occur. Ms. Yukimura: Well... okay so if the wall is proceed, the construction of the wall is proceeding to the best of its ability and we find that out, if it is within a reasonable time like a year then we encumber the moneys and ask the contractor to schedule the work accordingly. If not, we have to proceed and we take a certain risk but to stop the project and to stop it from getting its money doesn't make any sense at all. Chair Furfaro: Okay on that note, I'm going to end this discussion, the question was posed to me if a question could be asked of you... Councilwoman Nakamura. Ms. Nakamura: I'm personally ready to vote on this matter today. In the past Councilmember Rapozo have extended the courtesy so that I could study an issue further, so I feel like... you know I would. like to reciprocate but I'm also concerned about losing the funds so I'm... I feel torn about this one. But I feel that we... Mr. Rapozo is raising a lot of questions that I would hope will get addressed at a future briefing. Chair Furfaro: On that note let me share with you, I intend to put an agenda item on in four (4) weeks, I expect Mr. Haigh to be ready for a preview of these questions but in the meantime I'm going to call for the question of the Resolution and the Resolution is only a policy statement for the purpose as I see it to secure and move forward on the funds. Mr. Clerk may I ask for a roll call vote on the Resolution? The motion to approve Resolution No. 2011 -53 was then put, and carried by the following vote: APPROVAL: Bynum, Chang, Kuah'i, Nakamura, Yukimura, Furfaro TOTAL — 6, AGAINST APPROVAL: Rapozo TOTAL — 1, EXCUSED & NOT VOTING: None TOTAL — 0. Chair Furfaro: Mr. Rapozo in four (4) weeks we will have a discussion on the table. Thank you Mr. Clerk. Lenny, thank you for coming over. And now we have... Mr. Nakamura: A bill for second reading Mr. Chair. Chair Furfaro: Thank you very much. BILLS FOR SECOND READING: Bill No. 2401, Draft 1 — A BILL FOR AN ORDINANCE TO AMEND CHAPTER 9, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE SUBDIVISION ORDINANCE: Mr. Rapozo moved to approve Bill No. 2401, Draft 1, on seconded and final. reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Bynum. 7s COUNCIL MEETING MAY 4, 2011 Chair Furfaro: Thank you Mr. Rapozo. Thank you Mr. Bynum. I had marked my page earlier... Mr. Crowell what has risen here is we had gotten a new correspondence from the Water Department Executive Director, he was making reference to testimony on this bill at second reading which first of all I want to say I'm rather disappointed that we would get down to this point before there was testimony especially since it was not directing us to the Planning Department's Committee Report dated November 24, 2010 where he specifically pointed out two (2) concerns. Number one (1) not knowing that the consolidation would involve any more than four (4) units, I understood it to be four (4) units or less and then also talking in terms of items (c) in his correspondence offsite county improvements that may not be required. So I would like to ask you if you're able to enlighten us a little bit, why the Water Department would send correspondence to us at this late date and we probably have some questions for you that reflect the process at the Planning Commission and the testimony as such. On that note, I'm going to let you... we understood you may not have been present but we have some questions from couple of Councilmembers. I also want to thank you for coming over on short notice. Councilwoman Yukimura. Ms. Yukimura: Yes. Is Mr. Kua available since this letter was addressed to him and he should be familiar with the files? Okay... So did Planning ever respond to the issues raised by the Water Department. Mr. Crowell: I don't believe a response was necessary. Mr. Chang: Dee can you state your name for the record please? Mr. Crowell: Dee Crowell, Deputy Planning Director. Mr. Chang: Thank you. Ms. Yukimura: Go ahead. Mr. Crowell: I don't think a response is necessary, I think you know, you... we accepted the testimony and it is what it is. I think the points are valid but what... if you're not creating any more density, what has changed? Ms. Yukimura: Well he says here that the density of the resulting properties should be restricted or limited and that the total resulting numbers of dwelling units does not exceed four (4) units. Mr. Crowell: That's... Ms. Yukimura: Because based on higher CZO zoning designations and resulting lot size despite the bill's provision for no additional. density, there is a potential that the actual residential development may result in a larger number of single family or multi- family units that will be exempted from providing necessary offsite infrastructure improvements under this proposed bill. Mr. Crowell: No... but that's what the bill says. No additional lots or no additional density if you add another house like an ADU, all bets are off. 76 COUNCIL MEETING MAY 4, 2011 Ms. Yukimura: And this is on... okay so in terms of the Water Department I'm told that if this moves a potential hundred thousand dollar improvement requirement to the first lot owner, the buyer of the first lot... is that correct? Mr. Crowell: Well if that's what the Water Department desires then that's it. Ms. ' Yukimura: They don't desire it but that's the implication of our actions. Mr. Crowell: But if there are two (2) lots, theoretically each lot is entitled a water meter, now we're just moving the lot around means you got to put in more water lines then... is that... Ms. Yukimura: So it moves the cost... Mr. Crowell: (inaudible) Ms. Yukimura: But it moves the cost from the subdivider to the buyer? Mr. Crowell: Possibly. Ms. Yukimura: Possibly? Mr. Crowell: Or the buyer may choose to get water in other. ways. Ms. Yukimura: Okay so... Mr. Crowell: This is typical in subdivisions where you know the Water Department will force the developer or the subdivider to put on the drawing water is not available from the Water Department. Ms. Yukimura: But is this good policy to create lots where water is not available, basic necessities are not available. I mean don't we try to... oh Mr. Kaneshiro if you want to talk, you can come and testify. Chair Furfaro: Let's keep it directed at Mr. Crowell for right now please. Ms. Yukimura: Okay. Mr. Crowell: Again I just go back to the fact that any lot or (inaudible) would be entitled to a water meter and does moving it around mean now you're not entitled to a water meter? That's the kind o£.. Ms. Yukimura: Can you repeat that again? Mr. Crowell: Any lot of record is entitled to a water meter, unless there's a moratorium, so does moving around that lot mean now that you're not entitled to a water meter? 77 COUNCIL MEETING MAY 4, 2011 Ms. Yukimura: It may mean that you're not entitled to a water meter? Mr. Crowell: Doesn't mean that you're not entitled to a water meter that you would have to put in these water lines because... just because you moved the lot around. Ms. Yukimura: I don't know, you tell me. Mr. Crowell: Well unless there's a moratorium there shouldn't be a provision. Ms. Yukimura: Okay but in terms of cost, basically the developers, the subdividers getting out of the cost, the upfront cost now and the buyers... the first lot buyer to want to develop will now have to pay the cost. Mr. Crowell: Well again that depends on the Water Department now says your lot is not entitled to a water meter and you have to meet all these requirements. Ms. Yukimura: Okay so... Mr. Crowell: Because no additional lots or density is created. Ms. Yukimura: Okay. So there's a proposal to include kuleana, it's a last minute... and what is the implication of this? Mr. Crowell: In terms of? Ms. Yukimura: In terms of water policy. Mr. Crowell: Well the... it's kind of in the level of in the CZO there's a exemption from one (1) time subdivision standard in the Ag district, if you're dealing with four (4) lots or less. And you're not creating any additional lots or any additional density. So it's limited to four (4). Now technically all four (4) lots are entitled to a water meter. Now moving it around mean that they're not entitled to a water meter? Ms. Yukimura: Mr. Crowell: Chair Furfaro: other Councilmembers? Ms. Yukimura: This is kuleana? Yes. Councilwoman would you yield the floor for Yes. Chair Furfaro: Thank you. Mr. Bynum. 78 COUNCIL MEETING MAY 4, 2011 Mr. Bynum: Hi Dee thanks for being here today. My question is about (c) and I think I know the answer but the question says... because I understand the bill says hey if you're just going to move the lot around... Mr. Crowell: Yeah. Mr. Bynum: ... under four (4) that's not a time when the Water Department can require anything or put conditions... but if you want to actually develop those lots, then the Water Department could put conditions on, right? Mr. Crowell: Well. Mr. Bynum: Excuse me? Mr. Crowell: That's... well that's... Mr. Bynum: So the intent of this Bill is not to say the Water Department never gets their say. Mr. Crowell: Right Mr. Bynum: It's just to say you don't get to pull this trigger at the subdivision reconsolidation... okay... thank you for that answer. Mr. Crowell: Yes. Mr. Bynum: And I just wanted that to be on the record. The other one was I was confused at first why we didn't get this sooner but this letter was addressed to the Planning Department, do you know if this came over as part of the packet that came over from Planning to the Council? Mr. Crowell: That I wouldn't know. Mr. Bynum: So I'm assuming that it did. Mr. Crowell: It did? Mr. Bynum: Yeah, yeah. So I'm assuming that Water Department faxed it over to us but it's not really addressed to us, the questions, so you answered my question. Thank you very much. Chair Furfaro: Any other questions for Dee at this point? If not, thank you very much Mr. Crowell and I will call this meeting back to order. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Nakamura: We have a motion and a second Mr. Chair. Chair Furfaro: We have a motion and a second, am I correct? 79 COUNCIL MEETING MAY 4, 2011 Mr. Nakamura: Yes. Chair Furfaro: Is there anymore discussion? Ms. Yukimura: Yes Mr. Chair. The fact that this was sent to us... this letter was sent... these comments of the Water Department was sent to us last week and asked our review of the comments related to the bill... which indicates that there's a concern from the Water Department about the implications of this bill, I would like to... and I was trying to reach Mr. Craddick to try to understand it but he's in Honolulu, I would like to at least have him come forward to express what concerns there are, before we take final action on this bill. We really need to understand the implications of this bill. Chair Furfaro: Thank you very much for your comments. I do want to point out that although Mr. Craddick wrote us on April 29, his comments from January of 2009 were actually part of the staff report that was sent over to us. On that note, I'm going to suspend the rules again, it seems that someone else would like to speak on the item and that is Mr. Kaneshiro. There being no objections, the rules were suspended. DARYL W. KANESHIRO: Thank you for that Mr. Chair Furfaro. For the record Daryl Kaneshiro. I wasn't going to speak on this particular issue but hearing the dialog that went along through the Deputy Planning Director and also Councilmember Yukimura... brought up some concerns that I had. I'm neither speaking for the Board of Water Supply or Department of Water, I'm just speaking for myself. In this instance if you move a kuleana currently because this is considered a subdivision and a ridge subdivision or a (inaudible) adjustment, the Water Department treats this as a subdivision. Therefore whatever even water improvements you put on your project, if you drill your own well, you do a catchment basin or whatever you do... just because the Water Department don't have their infrastructure up to this lot, they will require you to meet county subdivision standards and this is a problem many people face. A typical example on a lot because you can't get whatever meters are allowed, you can go (inaudible)... you know do a private system which some people have private system but anytime you move a kuleana or do a boundary adjustments, no matter what... even with the private system or not and if the Department of Water does not have the infrastructure up to that point where you're moving that system, you want to develop one thousand six hundred feet of unimproved water facilities. Because currently the definition is not clearer and this bill will kill this definition to state that by moving boundary and by just moving kuleanas, you are not subdivided. Agencies previous to this, twenty years ago... as testified by previous Planning Director's stated that that at one time there wasn't a policy, as time changed... policy change. Currently this is the policy the different department are used and are using:.. meet county subdivision standards. This is why is very basic. Basically saying that we're not creating any density, we're not creating any additional lots, let me drill my own well, let me hook up to my own private system, let me do a catchment basin... currently you cannot. Because there's the word subdivision and under some department subdivision means you meet county standards regardless of what and that means improving the system to meet the fire code, improving the system to meet all the subdivision standards or even moving a single one density, meet subdivision standards of fifty (50) lots. 80 COUNCIL MEETING MAY 4, 2011 Ms. Simao: Mr. Kaneshiro: for the opportunity to speak. Chair Furfaro: question? Three (3) minute. So this is why this is before you. Thank you Councilwoman Yukimura, you have a Ms. Yukimura: So you're saying that you can move kuleana then do consolidation and resubdivision and not meet the water codes... I mean the fire codes, excuse me. So that you'll end up with lots that don't get fire protection but you don't think that's important? Mr. Kaneshiro: There is because you can meet, there's different agriculture fire codes. If you are in an Ag zone, the agriculture side, they allow you to move a lot and meet the fire codes as long as you're within two hundred fifty feet or five hundred feet of a fire hydrant, then that's fine. But there's no reason why... and if it's not there, fine you don't get a building permit, we're not saying that you'll just get a building permit, you know. If you move this kuleana and there's some structures around there or you know to meet the standards then that's fine. Ms. Yukimura: But it's... Mr. Kaneshiro: Or you can also put in... you can also put in your own sprinkler system. Ms. Yukimura: Well I thought there was a general policy that we didn't want to create lots that would be unbuildable essentially that people would buy a lot, assume they can get a building permit but then start to go and then they can't get building permits because there's no water and I mean I thought there was also a policy that we didn't want to encourage a lot of offsite systems because eventually they fail. And then we have a public emergency or... or else the lot owner doesn't get to consummate his dream and get a house built. Mr. Kaneshiro: But isn't the whole purpose of this bill to move it closer to where county infrastructures are? It says so in the bill. Ms. Yukimura: And does this bill apply only... Mr. Kaneshiro: If you read the bill it specifically states that this bill is to allow that. Ms. Yukimura: To allow what? Mr. Kaneshiro: Is to do that. Ms. Yukimura: To do what? Mr. Kaneshiro: To move where you can be closer to county infrastructures. 81 COUNCIL MEETING MAY 4, 2011 Ms. Yukimura: I don't think that's actually going to happen though... and does this only apply to Ag land? This applies to any lot, right? Mr. Kaneshiro: If... you read this bill, basically the whole findings and purpose of the bill is so that at some point where you need to move a kuleana or make it so where it's more closer to county infrastructures or road infrastructures, this is the purpose of the bill to do that. Mr. Yukimura: I don't get that from the bill or maybe we'll call back the Planning Deputy and see if that is the case. Mr. Kaneshiro are you... will this bill help you in your development? Mr. Kaneshiro: This bill I think will help everyone who has a kuleana and moves the kuleana and don't have to put on many of the infrastructures that are more demanding than you creating in density where you are really creating density and strain on the county infrastructures. Ms. Yukimura: projects? So are you planning to do that in your Mr. Kaneshiro: I can say yes I am. Ms. Yukimura: Well I mean isn't there a certain conflict of interest that you're speaking against a Department of Water policy but you're a board member? Mr. Kaneshiro: I just said I'm not speaking either for the Department or am I a board member, I'm speaking on my own, as my own... you know. Ms. Yukimura: But you still... that's the conflict actually. Mr. Kaneshiro: If you believe there's a conflict, that's fine but I would wait until the County Attorney advises me or the body. So what you're saying is that because I'm on the Board of Water Supply, I cannot speak on any... on an issue that is here before us that is in regards to a kuleana or. movement of kuleanas? Ms. Yukimura: Well I think there is actually a policy against board members speaking before other boards. Mr. Kaneshiro: I'm not speaking for the Board. Chair Furfaro: Excuse me... I'd like to recognize the County Attorney. AL CASTILLO, COUNTY ATTORNEY: Council Chair, County Attorney Al Castillo for the record. I would like the discussion to be on the agenda item, anything other than the agenda item, if the Councilmember has a concern then that is a separate concern that can be pursued after or at a later time. Ms. Yukimura: That's fine, thank you. 82 COUNCIL MEETING MAY 4, 2011 Chair Furfaro: On that note Mr. Crowell, I think we have an additional question for Planning, so Mr. Kaneshiro, I'm going to bring Mr. Dee Crowell up and then I'll come to you Mr. Rapozo. Mr. Rapozo: Mr. Chair, I was just going to say the 5:00 public hearing. Chair Furfaro: I know. We've got a 5:00 public hearing and I believe one of the members have an amendment to introduce and so we're inside ten minutes of the public hearing. Mr. Rapozo: Thank you. Chair Furfaro: Councilwoman Yukimura, I think you implied to me that you have a tentative question for the Planning Director? Ms. Yukimura: Yes, thank you. Chair Furfaro: Go right ahead. Ms. Yukimura: So Dee, I may be wrong but I thought that we try not to create lots where people will be independent of public infrastructure in general, is that not a general planning policy? Mr. Crowell: ... Ms. Yukimura: And... Mr. Crowell: Yes, general. Ms. Yukimura: ... and according to Mr. Kaneshiro this bill will actually go against that basic policy. Mr. Crowell: Well... I hate to throw the Water Department under the bus but I'm aware of situations where even in the urban district when three (3) lot owners tried to consolidate a fourth lot into their own three (3) lots, so... from four lots creating three, the Water Department made them... Ms. Yukimura: Well... Mr. Crowell: ... made them put in another water line. Ms. Yukimura: I mean if this bill is to circumvent a Water Department policy that is not proper and it's much more broader than just the Water Department impact, wouldn't a better process be to change the water policy? I mean or the Water Department? Mr. Crowell: It's a possible alternative. This is a basic Planning 101 the rough proportionality test, you can only ding a developer so much if their... if they're creating a fifty lot subdivision it's different from doing a kuleana relocation. 83 COUNCIL MEETING MAY 4, 2011 Ms. Yukimura: Right. I'm very sympathetic to that but trying to understand the larger implications of that. I mean I don't know how many, if you add up all these four (4) lot subdivisions, do you eventually get an island where you don't have lots that are properly supported by infrastructure? Mr. Crowell: Well I don't know if it's... Ms. Yukimura: And I don't know the answer to it but I think we should know the answer before we pass this. Mr. Crowell: I don't know that there's a whole lot of subdivisions... Ms. Yukimura: Okay then... Mr. Crowell: ... to be made. Ms. Yukimura: Being a leader in the Planning Department, speaking for Planning on the island of Kauai, do you feel that this bill is not going to have... and including water because this does affect the Water Department is not going to create problems for an end lot subdividers or for the larger collective scene of the island. Mr. Crowell: I would say... Chair Furfaro: Mr. Crowell, I just want to let you all know, I'm going to move that we go into recess on this item because we have a public hearing on the bills scheduled at 5:00 and we have questions from other Councilmembers just not Councilmember Yukimura... and we have other members that want to introduce an amendment. We're not going to be able to conclude all of that in three (3) minutes here, so we're going to have to go into recess. Councilwoman Yukimura. Ms. Yukimura: Council Chair may I suggest that we just defer this for two (2) weeks so that we can have the time to talk to Mr. Craddick and just understand more the implications of this, there isn't any big rush. Chair Furfaro: Well I have made a decision for right now and that decision is we're going to go into recess and prep for the public hearing. There being no objections, the Council recessed at 4:57 p.m. The Council reconvened at 7:40 p.m., and proceeded as follows: Chair Furfaro: We are back from a dinner recess, Mr. Clerk can you tell us exactly where we are? Mr. Nakamura: Council Chair, we're on page four (4) of the Council's agenda on a bill for second reading, Bill No. 2401, Draft 1 and we have a motion and a second to approve. Chair Furfaro: Councilwoman Nakamura. 84 COUNCIL MEETING MAY 4, 2011 Ms. Nakamura moved to amended Bill No. 2401, Draft 1, (see Attachment 1 hereto) as circulated, seconded by Mr. Rapozo. Ms. Nakamura: This amendment just makes two (2) changes. One (1) is it adds kuleana lots to the definition of lots under consideration and on the last sentence it... there's just a grammatical error so it's just those two (2) changes. Chair Furfaro: So we have a draft one (1) amendment as introduced, we have a motion and a second, is there any discussion? Councilmembers? Councilwoman Yukimura. Ms. Yukimura: Yes. I'd just like to understand why and what the implications are of this? Ms. Nakamura: The reason why is that in the definition of lots it does not, in the CZO and the Subdivision ordinances, it does not identify kuleana lots, although as a matter of practice the Planning Department looks at kuleana lots as lots of record. So this is just to make sure that there is a clear understanding and on the implementation side, I ran this by Dale Cua and he said that this would help to clarify his work. Ms. Yukimura: So does it mean that it's basically documenting what is already the Planning Department's practice? Ms. Nakamura: Practice... correct. Ms. Yukimura: And how does it affect the four (4) lot provision? Ms. Nakamura: The kuleana lot would have to be one of the four or part of that... one of the four lots. Ms. Yukimura: Okay, thank you. Chair Furfaro: Any further discussion? This would just be a voice vote. The motion to amend Bill No. 2401, Draft 1, was then put, and unanimously carried. (Attachment 1) Chair Furfaro: We're back to the main motion. Ms. Yukimura: Mr. Chair? Chair. Furfaro: Yes Councilwoman. Ms. Yukimura: Because of the concerns that were raised, I'd like to ask for a deferral but I want to have some discussion before I make a motion. I am concerned about the issues raised by the Water Manager Mr. Craddick and I would like a chance to really hear his explanation of his concerns so that we are making our decision with all the information and understanding. It may be that this bill is partly circumventing water requirements that may or may not be 85 COUNCIL MEETING MAY 4, 2011 improperly (inaudible) but I don't know for sure and I don't know of the implications so I think and there's no moneys that are going to lapse or real urgent deadlines, so it would behoove us, I think to get all our information before we make a final vote on this matter. Chair Furfaro: Okay. Is there any discussion on the... Councilwoman Yukimura's query? Mr. Chang: I have a question for Councilmember Yukimura. I know you were talking to him and you were trying to talk... Ms. Yukimura: I was trying to talk to him... Mr. Chang: You didn't get your answers or weren't able to get through? Ms. Yukimura: No. I talked to him briefly but I had to come back into the meeting and it seemed kind of complex to me but no I didn't get the answers just by the fact that I can't tell you what the answers are. Chair Furfaro: Mr. Bynum did you want the floor. Mr. Bynum: Just that... yeah I was initially concerned that we didn't receive this testimony until recently. I realize that it came over as part of the packet from Planning but... and Mr. Craddick has had an opportunity to come here three (3) times that this bills been before... but I did... when I did get this last week I asked staff to help me with some questions, I heard Mr. Crowell tonight answer the ones at the top, my questions was about (c) which is basically is hey if the Water Department can't or kind of intervene at the subdivision but they can still intervene at building permits and if people move to actually develop those lots, that was the most important question I wanted answered... and so I feel that the questions that are in this memo I have sufficient answers to move forward. On the other hand if a Councilmember really wants Mr. Craddick to come here and testify and it's not time... I would reluctantly support a deferral but I'm ready to vote on this today. Chair Furfaro: Councilmember Rapozo. Mr. Rapozo: I agree the questions as far as I'm concerned have been answered. I think they've been addressed at Planning and went through the Planning process and we got Planning's recommendations. The amendment was reviewed by Mr. Cua and he is satisfied with the amendment that it clarifies it so I'm prepared to vote tonight and I would expect and hope that the rest of the Council would vote tonight and pass this out. Item (g) and (1)(g) in Mr. Craddicks letter really says... Ms. Yukimura: There's no (g). Mr. Rapozo: I'm sorry? Chair Furfaro: (E). Mr. Rapozo: (1)(e). 86 COUNCIL MEETING MAY 4, 2011 Ms. Yukimura: Okay. Mr. Rapozo: Our suggestion is that the system before lot changes must be able to service the lot, this does not mean they can't do the subdivision, it just means that they may not be able to get water services if none is available. So it's really... the burden is on the landowner that they may not be able to get water but I think it clarifies a lot of the items that needed to be clarified, so I'm prepared to vote. I'm not going to support a deferral. Ms. Yukimura: Mr. Chair. Chair Furfaro: Councilwoman. Ms. Yukimura: The thing is if it can be addressed at the lot time when the building permit is requested, the Water Department may just say we don't have any water and you can't get a building permit and that's a terrible thing to do to someone who buys a lot with the expectation that they'd be able to build on it. So I think we... I mean we don't want to create situations where people buy lots, well people subdivide lots and sell them off with profit and then the buyer is not able to build. I mean that's not good planning, that's you know... you're just creating a problem. into the future and so... and I don't understand all of this but there's some suggestion that that would happen. I think we need to know that because that's very much against the policy that I understood of subdivision where we would... as public planners, we'd make sure that the lots are pretty much buildable and livable on them otherwise why create a lot? Chair Furfaro: Any further discussion? Ms. Yukimura: So... Chair Furfaro: If not... Ms. Yukimura moved to defer Bill No. 2401, Draft 2, seconded by Mr. Bynum. Chair Furfaro: Let's do the vote by roll call. The motion to defer Bill No. 2401, Draft 2, was then put, and failed by the following vote: FOR DEFERRAL: Bynum, Kuali`i, Yukimura, TOTAL — 3, AGAINST DEFERRAL: Chang, Nakamura, Rapozo, Furfaro TOTAL — 4, EXCUSED & NOT VOTING: None TOTAL — 0. Mr. Nakamura: Three (3) yes, four (4) nos. Chair Furfaro: Motion to defer does not pass. Is there other members that would like to offer another motion? 87 COUNCIL MEETING MAY 4, 2011 Mr. Rapozo: I believe the motion on the floor is to approve. Mr. Nakamura: Approve with the floor amendment. Chair Furfaro: Yes, Mr. Bynum. Mr. Bynum: Can I ask Mr. Crowell one quick question? Chair Furfaro: Mr. Crowell before we go to the vote on the bill as amended, we have a question, so I'll suspend the rules. Mr. Bynum. There being no objections, the rules were suspended. Mr. Bynum: Thank you. So the Bill has been amended and the Planning Department, I just want to confirm Planning Department's recommendation is to approve as amended? Mr. Crowell: Commission also. Mr. Bynum: And it passed Thank you. out of the Planning There being no objections, the meeting was called back to order, and proceeded as follows: The motion to approve Bill No. 2401, Draft 1, as circulated hereby, was then put, and carried by the following vote: FOR APPROVAL: Bynum, Chang, Kuah'i, Nakamura, Rapozo, Furfaro TOTAL — 6, AGAINST APPROVAL: Yukimura TOTAL — 1, EXCUSED & NOT VOTING: None TOTAL — 0. Mr. Nakamura: Six (6) ayes, one (1) no Mr. Chair. Chair Furfaro: Thank you very much. We'll go to the next item on our agenda. May I have the County Attorney up? There being no objections, the rules were suspended. Mr. Castillo: Good evening Council Chair, Councilmembers, Al Castillo, County Attorney, at a not so late night but late enough. On ES -486. EXECUTIVE SESSION: Pursuant to Haw. Rev. Stat. ( "H.R.S. ") §92 -7(a), the Council may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to H.R.S. §92 -4 and shall be limited to those items described in H.R.S. §92 -5(a). (Confidential reports on file in the County Attorney's Office and/or the County Clerk's Office. Discussions held in Executive Session are closed to the public.) 88 COUNCIL MEETING MAY 4, 2011 ES -486 Pursuant to Haw. Rev. Stat. sections 92 -4 and 92- 5(a)(4), and Kauai County Charter section 3.07(E), the purpose of this executive session is to provide Council with a briefing and request for authority to settle claim filed against the County by Garden Isle Disposal on February 23, 2011, 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. The meeting was called back to order, and proceeded as follows: Mr. Rapozo moved to convene in Executive Session at 7:52 p.m., as recommended by the County Attorney, seconded by Mr. Bynum, and unanimously carried. There being no objections, the meeting was in recess at 7:52 p.m. ADJOURNMENT. The meeting was called back to order at 8:13 p.m., and there being no further business, the meeting was adjourned. ectfully submitted, PETER A. NAKAMURA County Clerk /ds (May 4, 2011) Floor Amendment Bill No. 2401, Draft 1, Relating to Subdivision Ordinance Introduced by: Nadine K. Nakamura Amend Bill No. 2401, Draft 1, by amending Section 2 to read as follows: . SECTION 2. Section 9 -2.13 of the Kauai County Code 1987, as amended, is hereby amended to read as follows: "Sec.9 -2.13 Consolidation of Lots The consolidation of lots, including Kuleana lots, shall be processed through the Planning Commission and shall require its approval before recordation of any maps or documents pertinent to the consolidation. Consolidation involving not more than four (4) existing lots of record and re- subdivision where no additional lots or density are created by the resultant properties, shall not be required to provide any off -site infrastructure improvements, except as needed to connect to an adjacent roadway or utility line. If the resulting lots do not result in an increase in density, the Planning Commission shall not impose additional conditions pursuant to Section 9- 3.4(b). The Planning Commission shall establish rules and [fee] fees for consolidation of lots." (Material to be deleted is bracketed. New material is underscored.) V\csofficefiles \amendments BillNo. 2401, D 1 section 9 -2.13 consolidation of lots(JY5- 4- 2011)PM:ds 1(lkt+ach mcnt 0