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HomeMy WebLinkAbout06/29/2011 Special Council Meeting re: ES-489SPECIAL COUNCIL MEETING June 29, 2011 The Special 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, June 29, 2011 at 9:31 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 PETER A. NAKAMURA, County Clerk: All present, Mr. Chair. Council Chair Furfaro: Thank you and on that note I will call up the County Attorney to give us an overview of this special council meeting. APPROVAL OF THE AGENDA: By unanimous consent, the agenda was approved as circulated. Council Chair Furfaro: I was saying that I want to finish that so I can tell the audience, and then after the presentation by the county attorney, we will take public testimony. County Attorney? There being no objection, the rules were suspended. ALFRED B. CASTILLO, JR., County Attorney: Good morning, Council Chair and Councilmembers, Al Castillo, County Attorney. The matter for your consideration is Executive Session ES -489. EXECUTIVE SESSION: ES -489 Pursuant to Hawaii Revised Statutes Sections 92 -4 and 92- 5(a)(4), and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session with the Council to provide Council with a briefing, discussion, and to request authority to settle in the cases of Kauai Springs, Inc. vs. County of Kauai, et al., Civ. 07 -1 -0182 (5th Circuit Court) and Kauai Springs, Inc. vs. Planning Commission of the County of Kauai, No. 29440 [Civ. No. 07 -1 -0042] (Intermediate Court of Appeals) and related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. Council Chair Furfaro: Thank you very much. Are there any questions for the county attorney? If not, we will need to take a vote on the motion and before I do, I'll ask if there's anyone that wants to give testimony. Come right up. ELAINE DUNBAR: Elaine Dunbar. Good morning. SPECIAL COUNCIL MEETING - 2 - Councilmembers: Good morning. June 29, 2011 Ms. Dunbar: Mr. Castillo didn't say any more detail about this. This is a settlement for Kauai Springs, is that correct? Council Chair Furfaro: It is a briefing, Elaine, that could lead to a settlement, yes. Ms. Dunbar: All right. It's been a long time since Kauai Springs has been in the public eye and some councilmembers may not be familiar with it. I know a couple of them are friends of Jim Satterfield and think he's a nice guy, but that's not how this issue should be decided on. If there's a settlement, he's basically being rewarded for not following the same rules everyone else is required to and seems to believe that he is above the law. The business interruptions to Satterfield's illegal taking of water, which is a public trust resource, were due to complaints filed against him for failing to get permits and approvals from agencies of the state in order to do business. So he was constantly being called into planning commission to rectify his situation, which I don't think he completely ever did. He took it to court instead. The interruptions of his business were of his own doing. It's as simple as that. He just didn't feel like getting any permits and you know, he just assumed that all that water was there for the taking for free. You know it's coming down from the skies into the mountain, and he should be entitled to take it. But it doesn't work that way in Hawaii, otherwise everybody would be doing that. There are a lot of water bottle companies in the islands. They all use municipal water. Whatever the source is, it's been regulated, it's municipal water. This is a first. He plugged a tap right into the mountain and sucking the water out of it. You can't allow this precedent to go on much longer. I mean the water laws are already being attacked with KIUC and everything else, but I won't go into that. It has not been established that he can legally take that water and there is a lawsuit that's pending now. There's an attorney from Oahu and I'm sorry I forget his name, I don't have it with me, but there is a lawsuit pending. To award Kauai Springs money for interruption of business is completely wrong. He has been found in violation numerous times and has cost this county time and money, much time and money, and much testimony, grueling. I mean we used to sit in those planning commission hearings for days, sometimes into the night. I don't know, Mel, I think maybe you were at one or two of them. I don't recall. It was a long time ago. Mr. Nakamura: Three minutes, Mr. Chair. Ms. Dunbar: I think that Satterfield should count his blessings and be thankful he's been in business this long illegally taking water and this settlement hearing is premature. At one planning commission hearing, where Satterfield contended he had the right to take that water because he had permission from Grove Farm, Grove Farm admitted they were selling the water to him and also admitted they had no right to do that. This is a serious consideration. He should not be rewarded for violating the county laws. It's just not how it works. It's downright ridiculous. I would ask councilmembers to please if it can be deferred until the lawsuit, please wait till that's determined. And then if you feel that you want to reward him for his failure to comply with regulations, that's entirely up to you. Thank you. Ms. Yukimura: I have a question. SPECIAL COUNCIL MEETING - 3 - June 29, 2011 Council Chair Furfaro: Thank you, Elaine, wait and see if we have any questions. Councilmember Yukimura, followed by Councilmember Rapozo. Ms. Yukimura: I just wanted to know what lawsuit this is that's pending? It's separate from ... it's a lawsuit that has been filed that's ... and separate from this particular lawsuit that the county is involved with? Ms. Dunbar: The county's appealing and this also may be an additional lawsuit. I'm not sure. Ms. Yukimura: Okay, so your reference is to this lawsuit that's pending right now. So you're saying rather than settle, go through with the lawsuit, is what you're saying? Ms. Dunbar: Absolutely. Nothing's been determined in Kauai Springs situation of the water taking. Ms. Yukimura: Well, you're right. There's a circuit court decision that affirms Mr. Satterfield's position. Ms. Dunbar: Are you talking about Watanabe's? Ms. Yukimura: Yes. Ms. Dunbar: That Mr. Tagupa handled? Ms. Yukimura: I don't know who handled it. Ms. Dunbar: Yeah, that's the one you're talking about. I believe that that case ... I really am not sure about that, but I believe that that spoke to certain specifics of the case regarding building permits and whatnot but not directly to the water issue. Ms. Yukimura: Okay, but that is the case you're referring to when you say there's a lawsuit pending? I just wanted to be clear what you're referring to. Ms. Dunbar: I believe it's the county appeal. Ms. Yukimura: Okay, thank you. Ms. Dunbar: But it could be another one. I'm not specifically sure. Ms. Yukimura: Okay, thank you. Ms. Dunbar: I feel that you should have this information more so than me. Ms. Yukimura: No, but I'm asking about what you're saying to us. I'm just trying to clarify what you're trying to communicate. Ms. Dunbar: Well, I would have hoped that you would have had that information already. SPECIAL COUNCIL MEETING - 4 - Ms. Yukimura: sure. Ms. Dunbar: to say. Ms. Yukimura: Ms. Dunbar: Council Chair Furfaro June 29, 2011 I don't know what you're trying to say, so I'm not That you do your homework, that's what I'm trying Okay, thank you. You're welcome. Mr. Rapozo. Mr. Rapozo: Okay, thank you. I guess I'll admit that I'm not as versed. I remember being in the planning commission meeting during the Kauai Springs hearings and I'm not sure I was there for that issue or others, but I... Ms. Dunbar: I think it was for another one. Mr. Rapozo: I think it was for another one, but I was quite J at the discussion regarding Kauai Springs, so. I'm not sure what our briefing is going to provide us today. Definitely I have not had the opportunity to review these two lawsuits, the specific lawsuits, and my memory isn't that good to rely on the prior ones. So I definitely will try to get as much out of this briefing as possible and I think there's a lot more homework, as you call it, that I need to do before making a decision. So, hopefully, we'll get a briefing that'll satisfy the councilmembers today. But we'll definitely keep you informed. Ms. Dunbar: All right, well, thank you. I hope that his can be delayed as long as possible until everything comes to fruition with the lawsuit, and it would be premature to do anything at this time. Mr. Rapozo: I would agree. Ms. Dunbar: Thanks. Council Chair Furfaro: Any other questions? No, thank you, Elaine. Ken, did you want to testify on this item? KEN TAYLOR: Good morning, Chair and Members of the Council, my name is Ken Taylor. I first would have to agree with most of the comments from the previous speaker. This is an issue that's been around a long time. I followed it quite a bit during its presence at the planning commission, and then when the lawsuits started, we sort of lose track of things because they sort of go underground, and it's really sad because I, as I recall from the activities going back to when it was the planning department, and at that time spending quite a bit of time reading from the water law. It certainly seemed to me that there was a real problem here with the taking of this water and dispersing it outside of that watershed area. And thinking back and hearing just a little bit about what was going on at the court level, it seemed like the county possibly mishandled the process at that point in time and really didn't do a real good job of supporting the water law and the community in general in this activity. So I would hope that as you take his discussion today that you will spend and ask the questions and if you don't have the answers, please get them before you make any decisions because this is an important issue and I don't have to tell any of you that big companies all over the country are constantly looking for these kinds of little activities to zero in on and purchase. And the last thing that we need here on Kauai would be the Coca Cola SPECIAL COUNCIL MEETING - 5 - June 29, 2011 Company or the principals of Fiji water or some of that type of individuals coming in and scooping this up and then trying to make a major activity out of it. Mr. Nakamura: Three minutes, Council Chair. Mr. Taylor: I don't think we need that here, and so I hope that you do your due diligence and the homework and let's get this behind us. Thank you. Council Chair Furfaro: Thank you, Ken, let me see if anybody has a question for you. Any questions, members? No, thank you. Is there anyone else that would like to speak on this before I call body back to order? Okay, I'm calling the body back to order. There being no one else wishing to testify on this matter, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: We have a motion and a second to go into executive session, may I call for the vote? All those in favor? Mr. Rapozo moved to convene in executive session, seconded by Mr. Chang, and unanimously carried. Council Chair Furfaro: Okay, we're going to go into executive session. There being no objection, the meeting was recessed at 9:45 a.m. ADJOURNMENT. The meeting was called back to order, and there being no further business, the meeting was adjourned at 11:01 a.m. Res ectfully submitted, PETER A. NAKAMURA County Clerk /wa