HomeMy WebLinkAbout05-26-2010 Council Meeting Minutes - whole
COUNCIL MEETING
May 26, 2010
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, Uhu`e,
Kauai, on Wednesday, May 26, 2010 at 9:21 a.m., after which the following
members answered the call of the roll.
Honorable Tim Bynum
Honorable Dickie Chang
Honorable Jay Furfaro
Honorable Daryl W Kaneshiro
Honorable Lani T Kawahara
Honorable Bill "Kaipo" Asing, Council Chair
EXCUSED- Honorable Derek S.K. Kawakami (present 10:27 a.m.)
Chair Asing: Thank you. Can we have the first item?
PETER A. NAKAMURA, County Clerk: Council Chair just for the record
Councilmember Kawakami is excused, he'll be coming in around. in about two (2)
hours I believe.
Chair Asing: Thank you. With that can we have the first item?
Mr Nakamura. First item is the approval of the agenda.
APPROVAL OF AGENDA.
Mr Chang moved for approval of the agenda as circulated,
seconded by Mr Kaneshiro, and unanimously carried.
Chair Asing: Next item please.
Mr Nakamura. Next matter is approval of the Minutes of the
following meetings of the Council.
MINUTES of the following meetings of the Council.
Council Meeting of March 17, 2010
Special Council Meeting of April 14, 2010 re: Board of Water Supply
appointee interview
Council Meeting of April 14, 2010
Public Hearing of April 14, 2010 re. Bill No. 2347, Bill No 2350, Bill
No. 2351, Bill No. 2352, Bill No. 2353, and Bill No. 2354
Special Council Meeting of April 21, 2010
Council Meeting of April 28, 2010
Special Council Meeting of May 5, 2010
Public Hearing of May 12, 2010 re: Resolution No. 2010-34 and Bill No. 2362
Special Council Meeting of May 19, 2010
Mr Bynum moved for approval of the Minutes as circulated, seconded by Mr.
Kaneshiro, and unanimously carried.
Chair Asing: Next item please.
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COUNCIL MEETING -2- May 26, 2010
Mr Nakamura. Next matters on page one (1) of the Council's
agenda are communications for receipt, communication.
COMMUNICATIONS.
C 2010-130 Communication (05/07/2010) from the Mayor,
submitting his supplemental budget communication for Fiscal Year 2010-2011 and
proposed amendments to the budget bills, pursuant to Section 19 02A of the Kauai
County Charter- Mr Kaneshiro moved to receive C 2010-130 for the record,
seconded by Mr Chang, and unanimously carried.
C 2010-131 Communication (05/04/2010) from the Director of Planning,
transmitting the Planning Commission's recommendations to amend Chapter 8 of
the Kauai County Code, as amended, relating to the Comprehensive Zoning
Ordinance and Single Family Transient Vacation Rentals: Mr Kaneshiro moved to
receive C 2010-131 for the record, seconded by Mr Chang, and unanimously
carried.
Chair Asing: Next item please.
Mr Nakamura. Matters for receipt on page two (2) of the Council's
agenda. Communications C 2010-132, C 2010-133 and C 2010-134.
C 2010-132 Communication (5/11/2010) from Councilmember Daryl W
Kaneshiro, providing written disclosure of a possible conflict of interest and his
recusal on Bill No. 2339 (CZO/Open District amendments to development
standards) as he owns property located in the Open District: Mr Chang moved to
receive C 2010-132 for the record, seconded by Mr Kaneshiro, and unanimously
carried.
C 2010-133 Communication (05/12/2010) from Councilmember Daryl W
Kaneshiro, providing written disclosure of a possible conflict of interest in regards
to Bill No. 2318 (CZO Amendments to Permit Farm Worker Housing) because he
owns property located in the Agriculture District: Mr Chang moved to receive
C 2010-133 for the record, seconded by Mr Kaneshiro, and unanimously carried.
C 2010-134 Communication (05/14/2010) from Vice Chair Jay Furfaro,
transmitting for Council consideration, a Resolution to request that the Mayor
consider including the County Council in the implementation of the Kauai Energy
Sustainability Plan (KESP) by including the Chairs of the various Council
Committees to work on developing the implementation plan and creating policy to
support the Kaua i Energy Sustainability Plan. Mr Chang moved to receive
C 2010-134 for the record, seconded by Mr Kaneshiro, and unanimously carried.
Chair Asing: Next item please
Mr Nakamura. Next matters on page two (2) of the Council's
agenda are communications for approval. First communication for approval is
communication C 2010-135
C 2010-135 Communication (04/27/2010) from the Fire Chief, requesting
Council approval to apply for, receive, and expend the 2010 Department of Interior
Rural Fire Assistance Grant of $7,115.00 to purchase wildland firefighting hoses
and nozzles, to which the County's 10% cost share requirement will be fulfilled with
in-kind services: Mr Bynum moved to approve C 2010-135, seconded by Mr Chang,
and unanimously carried.
COUNCIL MEETING -3- May 26, 2010
Chair Asing: Next item please.
Mr. Nakamura. Next communication for approval is communication
C 2010-136.
C 2010-136 Communication (05/03/2010) from the Prosecuting Attorney,
requesting Council approval to apply for, received and expend the FY 2009 Edward
Bryne Memorial Justice Assistance Grant (JAG) of $105,000 00 for the continuation
of the Drug Prosecution Unit, and to indemnify the State of Hawaii, Department
of the Attorney General: Mr Bynum moved to approve C 2010-136, seconded by
Mr Kaneshiro, and unanimously carried.
Chair Asing: Next item please.
Mr Nakamura. Next communication for approval is communication
C 2010-137
C 2010-137 Communication (05/03/2010) from the Prosecuting Attorney,
requesting Council approval to apply for, receive and expend the FY 2009 Edward
Byrne Memorial Justice Assistance Grant (JAG) of $128,000 00 for the continuation
of the Domestic Violence Prosecution Unit, and to indemnify the State of Hawaii,
Department of the Attorney General. Mr Chang moved to approve C 2010-137,
seconded by Mr Kaneshiro, and unanimously carried.
Chair Asing: Next item please
Mr Nakamura. Next communication for approval is communication
C 2010-138.
C 2010-138 Communication (05/03/2010) from the Prosecuting Attorney,
requesting Council approval to apply for, receive, and expend the FY 2009 Edward
Byrne Memorial Justice Assistance Grant (JAG) of $110,000.00 for the
implementation of the Community Prosecution Unit, and to indemnify the State of
Hawaii, Department of the Attorney General. Mr Kaneshiro moved to approve
C 2010-138, seconded by Mr Chang, and unanimously carried.
Chair Asing: Next item please.
Mr Nakamura. Next matter, at the top of page three (3) next
communication for approval is communication C 2010-139
C 2010-139 Communication (05/03/2010) from the Prosecuting Attorney,
requesting Council approval, to apply for, receive, and expend the FY 2009 Edward
Byrne Memorial Justice Assistance Grant (JAG) of $134,000 00 for the continuation
of the Property Crime Prosecution Unit, and to indemnify the State of Hawaii,
Department of the Attorney General. Mr Chang moved to approve C 2010-139,
seconded by Mr Kaneshiro, and unanimously carried.
Chair Asing: Next item please.
Mr Nakamura. Next communication for approval is communication
C 2010-140.
C 2010-140 Communication (05/03/2010) from the Prosecuting Attorney,
requesting Council approval to apply for, receive, and expend the FY 2009 Edward
Byrne Memorial Justice Assistance Grant (JAG) of $57,500.00 for the
implementation of a Firearms Prosecuting Unit, and to indemnify the State of
COUNCIL MEETING -4- May 26, 2010
Hawaii, Department of the Attorney General. Mr Kaneshiro moved to approve C
2010-140, seconded by Mr Chang, and unanimously carried.
Chair Asing: Next item please
Mr Nakamura. Next matters for approval are Legal Documents
first Legal Document is communication C 2010-142.
LEGAL DOCUMENT:
C 2010-142 Communication (04/01/2010) from the Director of Parks and
Recreation, requesting Council approval to secure to a shared-use path easement
located on the parcel identified by Tax Map Key 4-4-3-02:12 to provide safe access
along Papaloa Road as part of the Lydgate to Kapa`a Bike/Pedestrian Path.
• Grant of Easement by and between Niu Pia Land Company, Ltd., a
Hawaii corporation (Grantor) and County of Kauai (Grantee) and
Consolidated Maui, Inc., a Hawaii corporation, (Lessee), conveying
Easement Y, a perpetual non-exclusive easement for a bike and
pedestrian shared-use path for public access purposes.
Mr Bynum moved to approve C 2010-142, seconded by Mr Kaneshiro, and
unanimously carried.
Chair Asing: Peter did we miss one, four, one (141)?
Mr Nakamura. Yes we did Council Chair, my apologies. I missed
on page three (3) a communication for approval which is communication C 2010-
141.
C 2010-141 Communication (05/10/2010) from the Fire Chief, requesting
Council approval to expend $15,000 00 from the department's salaried account to
purchase health & wellness and training equipment for the new Kaiakea Fire
Station. Mr Chang moved to approve C 2010-141, seconded by Mr Kaneshiro, and
unanimously carried.
Chair Asing: Next item please.
Mr Nakamura. My apologizes Council Chair we're back on Legal
Documents for approval communication C 2010-143.
C 2010-143 Communication (05/05/2010) from the Mayor, requesting Council
approval of a Dedication Deed conveying an interior roadway and a pedestrian
access way as follows:
• Dedication Deed by the Self-Help Housing Corporation of Hawaii
(Grantor) conveying to the County of Kauai (Grantee) Lot 1900 and
Lot 1901, Puhi Self-Help Housing Subdivision, for roadway purposes.
Mr Chang moved to approve C 2010-143, seconded by Mr Bynum, and
unanimously carried.
Chair Asing: For the record I just would like to congratulate
Self-Help Housing for what they're doing. They're just doing a fantastic job I
happen to pass there every few days and the project is just moving along and I'm
very pleased at what is happening there. With that can I have the next item
please?
Mr Nakamura. Next legal.
COUNCIL MEETING -5- May 26, 2010
Chair Asing: Oh did we vote on it?
Mr Nakamura. No.
Chair Asing: No.
Mr Nakamura. There was a motion and a seconded. All those in
favor say "aye"
Councilmembers: Aye.
The motion for approval was then put, and unanimously carried.
Chair Asing: Motion carried. Next item please.
Mr Nakamura. Last Legal Document for approval is
communication C 2010-144.
C 2010-144 Communication (05/14/2010) from the Director of Housing,
requesting Council approval of the Fourth Amended Agreement (Kaua`i Lagoons
Affordable Housing Ordinance No. PM-2006-383) to assist the sale of Kamamalu
Condominium units, and to authorize the County Clerk to execute this Fourth
Amended Agreement.
• Fourth Amended Agreement (Kaua`i Lagoons Affordable Housing)
Mr Kaneshiro moved to approve C 2010-144, seconded by Mr Chang, and
unanimously carried.
Chair Asing: Next item please
Mr Nakamura. Next matters are claims at the bottom of page three
(3) communications C 2010-145 and C 2010-146.
CLAIMS:
C 2010-145 Communication (05/03/2010) from the County Clerk,
transmitting a claim filed against the County of Kauai by Barbara Schweitzer
for vehicle damage, pursuant to Section 23.06, Charter of the County of Kauai:
Mr Furfaro moved to refer C 2010-145 to the County Attorney's Office for
disposition and/or report back to the Council, seconded by Mr Kaneshiro, and
unanimously carried.
C 2010-146 Communication (05/19/2010) from the County Clerk,
transmitting a claim against the County of Kauai by Lihu`e Court Townhouses
Corporation for real property tax adjustment, pursuant to Section 23.06, Charter of
the County of Kauai. Mr Furfaro moved to refer C 2010-146 to the County
Attorney's Office for disposition and/or report back to the Council, seconded by Mr
Kaneshiro, and unanimously carried.
Chair Asing: Next item please.
Mr Nakamura. Next matter for approval on page four (4) are
Committee Reports. From your Committee on Budget & Finance, Committee
Reports CR-B&F 2010-12, CR-B&F 2010-13, CR-B&F 2010-14, CR-B&F 2010-15,
CR-B&F 2010-16, CR-B&F 2010-17, CR-B&F 2010-18 and CR-B&F 2010-19
COUNCIL MEETING -6- May 26, 2010
COMMITTEE REPORTS.
A report (No. CR-B&F 2010-12) submitted by the Budget & Finance
Committee, recommending that the following be received for the record.
"B&F 2010-2 - Communication (5/11/2010) from Daryl W Kaneshiro,
Budget & Finance Chair, transmitting the Budget & Finance's proposed
amendments (+/- sheet) to Resolution No 2010-33 (real property tax sales),
Bill No. 2356 (Operating Budget), and Bill No. 2357 (CIP Budget) "
Mr Kaneshiro moved for approval of the report, seconded by Mr Chang, and
unanimously carried.
A report (No. CR-B&F 2010-13) submitted by the Budget & Finance
Committee, recommending that the following be approved as amended on second
and final reading:
"Resolution No. 2010-33 - RESOLUTION ESTABLISHING THE REAL
PROPERTY TAX RATES FOR THE FISCAL YEAR JULY 1, 2010 TO JUNE
30, 2011 FOR THE COUNTY OF KAUAI,"
Mr Kaneshiro moved for approval of the report, seconded by Mr Chang, and
unanimously carried. (See later for Resolution No. 2010-33, Draft 1.)
A report (No. CR-B&F 2010-14) submitted by the Budget & Finance
Committee, recommending that the following be approved as amended on second
and final reading:
"Bill No. 2356 - A BILL FOR AN ORDINANCE RELATING TO THE
OPERATING BUDGET AND FINANCING THEREOF THE FISCAL YEAR
JULY 1, 2010 TO JUNE 30, 2011,"
Mr Kaneshiro moved for approval of the report, seconded by Mr Chang, and
unanimously carried. (See later for Bill No. 2356, Draft 1.)
A report (No. CR-B&F 2010-15) submitted by the Budget & Finance
Committee, recommending that the following be approved as amended on second
and final reading:
"Bill No. 2357 - A BILL FOR AN ORDINANCE RELATING TO
CAPITAL IMPROVEMENTS AND FINANCING THEREOF FOR THE
FISCAL YEAR JULY 1, 2010 TO JUNE 30,2011,"
Mr Kaneshiro moved for approval of the report, seconded by Mr Chang, and
unanimously carried. (See later for Bill No. 2357, Draft 1)
A report (No. CR-B&F 2010-16) submitted by the Budget & Finance
Committee, recommending that the following be approved on second and final
reading:
"Bill No 2358 - A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 23, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING
TO CONCESSIONS AT SPOUTING HORN,"
Mr Kaneshiro moved for approval of the report, seconded by Mr Chang, and
unanimously carried. (See later for Bill No. 2358.)
COUNCIL MEETING - 7 - May 26, 2010
A report (No. CR-B&F 2010-17) submitted by the Budget & Finance
Committee, recommending that the following be approved on second and final
reading:
"Bill No 2359 - A BILL FOR AN ORDINANCE AMENDING
SECTION 17-1.1 OF THE KAUAI COUNTY CODE 1987, RELATING TO
RENEWAL FEE FOR MOTOR VEHICLE OPERATOR'S LICENSE,"
Mr Kaneshiro moved for approval of the report, seconded by Mr Chang, and
unanimously carried. (See later for Bill No. 2359 )
A report (No. CR-B&F 2010-18) submitted by the Budget & Finance
Committee, recommending that the following be approved on second and final
reading:
"Bill No 2360 - A BILL FOR AN ORDINANCE AMENDING
SECTION 5-2.4 OF THE KAUAI COUNTY CODE 1987, RELATING TO
MOTOR VEHICLE CERTIFICATE OF OWNERSHIP AND REGISTRATION
FEES,"
Mr Kaneshiro moved for approval of the report, seconded by Mr Chang, and
unanimously carried. (See later for Bill No. 2360 )
A report (No CR-B&F 2010-19) submitted by the Budget & Finance
Committee, recommending that the following be approved on second and final
reading:
"Bill No. 2362 - AN ORDINANCE AMENDING ORDINANCE NO
B-2009-691, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF
THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR
JULY 1, 2009 TO JUNE 30, 2010, BY REVISING THE SURPLUS AND
APPROPRIATIONS ESTIMATED IN THE BOND FUND,"
Mr Kaneshiro moved for approval of the report, seconded by Mr Chang, and
unanimously carried. (See later for Bill No. 2362.)
A report (No. CR-PKT 2010-03) submitted by the Parks/Transportation
Committee, recommending that the following be approved on second and final
reading:
"Resolution No. 2010-34 - RESOLUTION AUTHORIZING THE
ACQUISITION OF THE FEE SIMPLE INTEREST IN LANDS REQUIRED
FOR PUBLIC USE, TO WIT THE PEDESTRIAN AND BICYCLE PATH
WHICH CONSTITUTES PART OF PUBLIC PARK SYSTEM, SITUATE AT
WAIPOULI, DISTRICT OF KAWAIHAU, COUNTY OF KAUAI, HAWAII,
AND DETERMINING AND DECLARING THE NECESSITY OF THE
ACQUISITION THEREOF BY EMINENT DOMAIN,"
Mr Kaneshiro moved for approval of the report, seconded by Ms. Kawahara. (See
later Resolution No 2010-34.)
Chair Asing: With that what I'd like to do is suspend the rules,
Glenn?
There being no objections, the rules were suspended.
COUNCIL MEETING -8- May 26, 2010
GLENN MICKENS Thank you Kaipo, for the record Glenn Mickens.
You have a copy of my testimony let me read it for the record please. It's regarding
this 2010-34. You remember that I asked for more information on Resolution 2010-
34 last week as I do not understand all the legal language nor do I interpret maps
that well. The numbers I added up in the Resolution were sixty-three thousand one
hundred (inaudible) and Jay said he would accept those numbers. And for
informational purposes Jay has passed along the Attorney General. the County
Attorney's opinion on this so I do understand some of it better From the Garden
Island article May 22 according to Mary Daubert, the total quote, the total land to
be acquired by eminent domain is two thousand seven hundred twenty-four (2,724)
square feet of oceanfront property, so perhaps I was adding wrong figures but that
is why I asked the Council for more information since you members were tasked
with addressing the bill, it's still a little confusing to me about the total number of
figures but as I add the figures up, I come to more than that. two thousand that
Mary Daubert. two thousand seven, twenty-four I also asked how much this
acquisition would cost the tax payers; Jay told me that would depend on if the
transaction were friendly or hostile before it (inaudible) and again this is where he
has passed that along with the County Attorney, which I appreciate. However, in
the same article it says quote it will cost roughly a hundred thousand dollars to
condemn the land according to Councilmember Tim Bynum. How does Tim know
this amount when as Jay said we won't know if this transaction is a friendly or
condemnation? Wasn't this Council premature in passing the Resolution before
knowing exactly what the cost would be? Are we just going to rubber stamp
something before we know what the total figure will be. I also testified the DOT
cost estimates for design, right-of=way and construction of phase 3B, 4, 5, 6 and C
for this path is a whooping sixty million four hundred twenty thousand dollars
which doesn't include any land acquisition or condemnation. Tim has said from the
beginning of this project that virtually all the money will come from Federal funds.
if the County decides to ban the project, the Feds will spend the money elsewhere
First of the eighty percent of Fed money will be used for this project is harmony, not
free money but our tax dollars. Just the same as the twenty percent coming from
the local taxes. Second, from the latest DOT estimates this total project could cost a
hundred million dollars or more which means that our twenty percent match would
still be twenty million dollars or more. and that figure doesn't include land
acquisition that we're talking about now or condemnation. Huge maintenance costs
and mass of hours of staff time and legal issues that County Attorneys must
research and address. Fed funds are drying up and thus DOT is asking the public
to prioritize the needed issues on Kauai including those for the path. Let's face it,
this path as my good friend Ray Chuan would say is a feel good project like
motherhood and apple pie. On the practical side and on any priorities basis for
those issues that seriously need help, this path isn't on the radar screen.
(3 minutes Mr Chair)
Mr Mickens: for a need or use one more paragraph. if
study is done for a cost use based the cost per usage would be astronomical. If
money were not a (inaudible) object I would have absolutely no problem building
this path around the entire island if somebody wanted to but money is very tight
and these are trying times for everyone and our tax dollars should be used for only
the most needed projects. This path is not one of them. Any questions, I'll be happy
to try to answer them for you.
Mr Furfaro: Glenn, I just need to revisit this a little bit. so
everyone is clear, I gave you a copy of subsection 95 Section 5.
Mr Mickens: Right.
COUNCIL MEETING -9- May 26, 2010
Mr Furfaro: That deals with confidentiality in negotiations. It
explains that for the purpose of acquisition, condemnation for a period of
negotiations on acquisitions and/or negotiations at a confidential for labor in that
section, the Sunshine Law allows a confidentiality agreement on negotiating and
bargaining for land and labor and so forth. So my cautions are until that
negotiation is complete through the request of the negotiating team through the
County Attorney's Office, we're not disclosing the amount. I cannot speak for Mary
Daubert or others that gave you information, but I do want to caution you, I
reference the last time that we would use your calculated square footage.
Mr Mickens: Right.
Mr Furfaro: Because there is actually two (2) two (2) parts to
this. There's a friendly portion which I believe is the twenty-seven hundred, that
Mary Daubert referred to.
Mr Mickens: Right.
Mr Furfaro: And then there is your number of sixty-five.
Mr Mickens: Sixty-two thousand.
Mr Furfaro: Sixty-two thousand, which is actually being
negotiated as an acquisition.
Mr Mickens: Right.
Mr Furfaro: That's where we need to protect the confidentiality
Mr Mickens: Right.
Mr Furfaro• And we are allowed to do it under subsection 95,
section 5, and I think I gave you a copy of that.
Mr Mickens: Yes you did and I appreciate it.
Mr Furfaro• Thank you.
Mr Mickens: And as you're pointing out until that whole thing is
known, whether it's friendly or whether it's hostile, whatever the takeover happens
to be, for that total area, we won't know the amount of land or we won't know the
or or we will know the amount of land but we won't know the price for it.
Mr Furfaro: I think you know if you try to estimate a number, it
wouldn't be unreasonable to put a number out there but I think it should be quoted,
it's a guesstimate.
Mr. Mickens: Sure because it is beachfront property and
beachfront property as you well know is astronomical.
Mr Furfaro: Well unless you can negotiate a friendly
Mr Mickens: Yes, yes.
Mr Furfaro: And therefore it needs to be confidential.
Mr Mickens: Right, right. Thank you Jay
COUNCIL MEETING - 10 - May 26, 2010
Mr Furfaro: That's all. I just.
Mr Mickens: Thank you.
Chair Asing: I'm sorry yes go ahead. I'm sorry
Councilmember Bynum did you have a question?
Mr Bynum. Oh when you call the meeting back to order
Chair Asing: Okay meeting. no. the rules are still suspended.
Mel?
MELVIN RAPOZO• Thank you Mr Chair Mel Rapozo for the record.
I question the amount of land as well, I read the newspaper article and the
newspaper article clearly said two thousand seven hundred somewhat square feet
and as I read the attachment to the Reso, parcel one (1) within parcel one (1)
there is lot one (1) which alone is eighteen thousand three hundred square feet.
There's also another lot (h) which is twenty thousand five hundred twenty-one
square feet so obviously the number that was printed in the paper is wrong and it is
quite a bit more. The other question and I'm reading the communication from the
Administration where. they're saying that this is the only practical way to acquire
the property and we're talking about parcel two (2). Parcel one (1) obviously they
did appear to have received the quitclaim deed but they want to do. they want to
do a condemnation as well to make sure no one can come later But parcel two (2) is
the one that I think is of concern because it's. it belongs to the apartment
owners. Association of Apartment Owners of Kapa`a Shore. I've been trying to
connect with them and from what I understand the Administration is going to have
a difficult time contacting all owners and this is the only practical way, well I beg to
differ because really, I'm not sure what efforts and I haven't heard this Council ask
the question, what efforts has the Administration done, hasn't been on the
apartment owners. they had a meeting yesterday by the way and it wasn't on the
agenda but I'm curious what efforts did this County made to try to acquire this
property in a peaceful fashion, I have spoken to a few of you and all of you. the
ones that I have spoken to said oh Mel don't worry it's a friendly condemnation.
Friendly condemnation is oxymoron. Condemnation is when you go after a
property because you cannot negotiate a deal and yes it may be hostile or it may be
none hostile but it's never a friendly condemnation. You may have someone not
oppose it because they simply don't have the funds but today you just, just. just
today you approve in a legal document the transfer of ownership or a transfer of an
easement for the bike path. Why isn't that being approached for these parcels?
Why do we have to go condemnation? Simply because I think the anticipation is
that there will be opposition. My concern right now Mr Chair is not so much going
after this land to complete the bike path but the timing. to enter condemnation
proceedings when we just told our employees you have to go home two (2) days a
month, we going cut your pay every month by two (2) days and yet we still have the
resources to go after condemnation. I think the timing is bad. I don't think we've
exhausted all the means. Have we gone on the Association of Apartment Owners
agenda, we have explained to them what we're trying to do? Have we tried to make
contact to the owners? Or are we just trying to do a short cut which will cost the tax
payers money? That's my only concern and I'm hoping that you can ask these
questions, I understand it's up for vote today but it can go back to the Committee
and I would ask that the questions be asked because believe me, I don't think it's as
friendly as you folks are being told. Thank you.
Chair Asing: Hang on. Mel? Councilmember Furfaro.
COUNCIL MEETING - 11 - May 26, 2010
Mr Furfaro: Yes. Thank you for being here today Mel. Now I
want to let you know there is a friendly condemnation and there is an unfriendly
condemnation, that terminology does exist. And I think you and I haven't spoke
but I do want you to know that what I understand in this approach on the friendly
condemnation is the Association of Apartments Owners and there AOAO has. they
can change certain things in the bylaws with up to seventy-five percent of the
confirm vote but in this particular case, the condominium is actually leasehold so I
think the Administration because it's leasehold property, is only dealing with a
single owner
Mr Rapozo: Correct.
Mr Furfaro: I just want to clarify that. I also you know I don't
know all the negotiations behind the scenes but you know you're right in a sense
that it's probably not on the agenda of the Association because. when they
changed ownership that question becomes what happens to the lease rent, who does
it go to as the new owner
Mr Rapozo: Correct.
Mr Furfaro: And I have something that was sent over to answer
that question. So I just want to make sure you know I had an opportunity to share
my thoughts on it. They are a leasehold group of apartment owners but the
landowner is a single agent.
Mr Rapozo: Correct.
Mr Furfaro. Okay
Mr Rapozo: And I guess my concern is anyone of those
leasehold. anyone of those apartment owners may have an opportunity to contest
the condemnation and that's.
Mr Furfaro: Well actually I think they can only contest the rate
of the fee, you know how much do they pay for the fee but we'll let our legal
department (inaudible) but thank you for your testimony Mel.
Mr Rapozo: Thank you.
Chair Asing: With that Councilmember Bynum.
Mr Bynum. Just to say that Councilmember Furfaro is
correct. the landowner is one (1) owner who is very cooperative with this situation.
The AOA.
Mr Furfaro• Excuse me Tim, I don't know how cooperative it
is. I just know
Mr Bynum. Well that s what I.
Mr. Furfaro• Okay that's you.
Mr Bynum. There's one (1) landowner who is cooperative, at
least from what I've been told but the AOAO this is. this isn't fifty-one (51)
condominium owners, it's a timeshare. They're thousands of them.
Mr Rapozo. Correct.
COUNCIL MEETING -12- May 26, 2010
Mr Bynum. And the logistics of tracking down a thousand
people who live primarily on the mainland and all around the world, you know
made this. you know logical to go this route because of the logistical issues and
you know this is an amenity you know we're talking about a little strip of easement
land, that is the twenty-seven hundred square feet, or whatever it was and it's
putting in an amenity that those apartment owners will enjoy The larger parcels
are the road. those two (2) roads next to Kapa`a Shores.
Mr Rapozo: Correct.
Mr Bynum. And they've already been quitclaimed and there's
no funds involved in that.
Mr Rapozo: Right.
Mr Bynum. So that's my understanding based on my
research.
Mr Rapozo: But we're still going after condemnation
proceedings on those quitclaimed properties.
Mr Bynum. For yeah. I think you characterize it perhaps
correctly you know just to nail it down.
Mr Rapozo: Right and I guess my concern is what. what is
the. at the end of the day what is the cost to the county?
Mr Bynum. At the end of the day
Mr Rapozo: And I heard Jay's explanation.
Mr Bynum. Of my understanding.
Mr Rapozo: Earlier and it's difficult to determine right now, I
don't believe that the apartment owners. the Association of Apartment Owners
had an opportunity to review the request and I just haven't heard that asked and
that's what I'm asking, is there a cheaper way to get through this? I don't believe
the apartment owners or the timeshare owners are going to have a problem with it,
I'm just questioning. this county I don't know when's the last time condemnation
occurred. But we all know that condemnation can be very expensive
Mr Bynum. Well. yeah I think the logistics of contacting
thousands of owners would be difficult but and.
Mr Rapozo: Well you contact the association.
Mr Bynum. And the.
Mr Rapozo: Of Apartment Owners, not individually that's
why they have the association in place, that's why they're there to address the
issues of the Association of Apartment Owners.
Mr Bynum. And the negotiation a settlement amount is
confidential.
Mr Rapozo. Right.
COUNCIL MEETING -13- May 26, 2010
Mr Bynum. And you know maybe I was imprudent by saying
I've been told that a rough gestimate is around a hundred thousand or less.
Mr Rapozo: Yeah and I just.
Mr Bynum. And that won't be County funds. now I agree
with Mr Mickens that it's all public money right but it's Federal funds that and I'll
address some of the things Glenn said when we call the meeting back to order
Mr Rapozo• Okay Thank you.
Chair Asing: Thank you. Any other questions? Thank you. Is
there anyone else?
JOE ROSA. Good morning members of the Council. For the
record Joe Rosa. What I had to say is a lot of things were taken care by
Mr Mickens and Mel Rapozo. So far from this Resolution parcels of the map that
there is in there and I did a lot of work with maps. I was able to get information out
of two (2) and I had to get use a magnifying glass to read those small little figures.
There was one (1) that is totally, I couldn't read it so I'm going to have it blown up
today, so I can read it. On the one (1) parcel along Kuhi`6 Highway in going down to
Ala Road, two thousand nine hundred and seven square feet, now out of that there
seventeen, eighty-nine is on Ala Road which is requiring the property from
landowners, why don't you use the shoulder on the county road? Why take it away
from somebody's residences when you're going already on the front part of it? You
can save bucks on that seventeen thousand eight hundred (inaudible) square feet on
the road, property owners. Those are the kinds of things. eh don't just spend our
tax payer's money Use the county property because Ala Road (inaudible) will never
become a four lane (inaudible). because it's only from Kuhi`o Highway to the
beach. You think you're going to put a (inaudible) four lane highway in there? Save
those bucks, you people get engineers, consultants but look? Use your county
property and like Mr Mickens mentioned probably along the State Highway it cost
money That's why people who have property along Federal Highway pay higher
taxes so beware of those kinds of things, that. don't shove things down people's
throats, tax payers, homeowners. look into those kinds of things. Have a
foresight, I'm a tax payer you know and I'm speaking for the rest of tax payers,
homeowners.. the State intends to improve along the Kuhi`o Highway too, why
don't you people work with the State and then coincide the work for the bike path in
that area with the State, even if you have to wait. Think of the money saved. You
know we. we are being taxed up to our necks already and if it's a thing you can
utilize, use the county property Like I said Ala Road and the other road that you
guys are going to take, use your county shoulder area. Give those landowners. you
people bleed them enough with taxes and all. but think about it. And like I just
said from the start this thing wasn't planned. There was no documentation to show
the need of a bike path and everything and what started out as a form for
transportation to ease the transportation, it not got any difference as far as the
cause, I traveled to Kapa`a the other afternoon and man. it's just as bad from the
start, no bikeways, no people using it to get the cars off the highway
(3 minutes)
Mr Rosa. so you know that's what I had to say so.. please
use county property where it's available like Ala Road, use that shoulder area that
you have, it's not going to be used for our lifetime, let's put it that way Thank you.
i
COUNCIL MEETING -14- May 26, 2010
Chair Asing: Thank you. Any questions for Joe? If not thank
you very much. Is there anyone else? Thank you Joe.
Mr Rosa. Thank you.
WALDEEN PALMEIRA. Aloha Council. Chair Asing and Councilmembers.
Aloha my name is Waldeen Palmeira of Hui Namaka Iwa O Wailua Nui
Ohanohano. Unfortunately I did miss the original I guess item involving the Legal
Document that was already completed, is that true? And that involves TMK 4-4-3-
02 (12) on Papaloa Road in Wailua and all of the TMK's and the LCA's and the land
court application awards that are identified on the Resolution, I am. we are
addressing at this point, could I just ask for clarification. is this again going to. is
this a final vote today? Approval or does it go to.
Chair Asing: Yes. The answer is yes.
Ms. Palmeira. Okay
Chair Asing: For the public's information we are really
discussing now the Committee Report and we are not on the Resolution. But I had
let the first person speak on this so I'll just go ahead and continue the process as
we're doing currently but the, the Resolution is on page five (5) and it is Resolution
No. it's the second Resolution number 2010-34 so that's okay we can do the decision
on the Committee Report because this is really the Committee Report. And the
Committee acted on it and this report is being transferred here to the Council and
we are accepting the report.
Ms. Palmeira. Alright thank you.
Chair Asing: But the Resolution is on the agenda which will be
taking care of shortly
Ms. Palmeira. Okay thank you very much for the explanation.
For the record Hui Namaka Iwa O Wailua Nui Ohanohano is opposed to the
approval of this Resolution for the condemnation of these. all of these parcels
identified in the Resolution, all of the TMK's identified. Which I will not go through
all of the TMK's involved. And this is a matter of breaches of environmental law
and the National Historic Preservation Act in which this bike path is subject to and
I appreciate Mel Rapozo, as well as Mr Mickens and all who have testified on
behalf of this. against this in terms of the funding, I'm not here to discuss the
funding, I am here to discuss the severe breaches of the National Environmental
Protection Act, as well as the National Historic Preservation Act, Section 4F of the
Department of Transportation Act as well as various other statutes involved. I just
wanted to before getting into a few points, I just wanted to let you know that last
week Wednesday we forwarded. I forwarded to you as well two (2) letters
concerning an archeological inventory survey for the Wailua portion of this path, we
are talking about the same path so when you are talking about a NIPA Document
which this part of the bike path does address, what happened in the re-evaluation of
this project is that this section was added into the, into the bike path corridor sort of
speak, without the consideration of the finding of significant impact to the
environment including secondary impacts to the culture and on the National
Preservation Act component which this bike path is pursuant to and obligated to be
following is that what happened last week Wednesday is that that so-called
archeological inventory survey was not processed correctly The State Department
of Transportation's permit to perform on State Highways subsurface testing is not
the correct procedures for dealing with and for identification of a historic burial
ground. Now I mention this.
COUNCIL MEETING -15- May 26, 2010
(3 minutes)
Ms. Palmeira. Right now because the questions that you are about
to approve also involves burial grounds throughout the Shoreline, throughout. on
these areas and to be sure that this covered under the State Historic Preservation
Division, that is not clear at this point and so I want to inform you that this project
is, is in violation on many terms and let me just again I did mention that the
Federal Highways as well as the State of Hawaii, Department of Transportation
and the County of Kauai failed to include supplementary studies of the significant
impacts by adding this alternative which was not an alternative of the, of the FEA.
Failure to account for again accumulative adverse effects to traditional Hawaiian
burial sites and the APA of the new alignment and to significant historic properties
and traditional properties and to native inhabitants of Wailua as well as local
populations. Failure to require a NIPA.
Chair Asing: Waldene? Your three (3) minutes has expired but
I'm going to let you finish up with three (3) more minutes.
Ms. Palmeira. Okay failure to provide public review of
reevaluation documents and public notice of the entire reevaluation document
through the NIPA process under title 23 part 771 point 129 The segmentation of
the Lydgate to Kapa`a multi-use path and the Kuhi`o Highway widening project,
because the Kuhi`o Highway widening project is now available in 2009 at the time
and 2010 at the time of this reevaluation, they were supposed to take into an count
the significant impacts by the segmentation of these projects. Failure to. again
the compliance with the National Historic Preservation Act, we are in
communication with the Advisory Council for Historic Preservation who will be
addressing this with us in the very near future. Again failure to conduct a cultural
impact assessment for this project, it seems that the existing cultural traditional
practices are in jeopardy as well as traditional accesses. This access route on
Papaloa Road, we've talked about it before, last year and without the. with this
area being used as a bike path, the parking areas that people normally use to access
Kukui Heanu and other areas there are not available. Again one of the main
failures it has to do with this bike path being placed on Wailua Beach and Kuhi`o
Highway and from there connecting to Papaloa Road, there is a major violation of
Section 4F, I've mentioned it before and what that means is that, Wailua Beach is a
Section 4F protected beach because of the historic properties and the lack of the
identification and the inclusion of native Hawaiians and native inhabitants of this
archipelago was not included since 2004, this is 2010. In 6 years they have
excluded native Hawaiians from identifying the significant properties of Wailua
Beach including burial grounds in which there are HRS 6E 42 obligations of the
project to fulfill and this has to do with a known burial ground. Given.
(6 minutes)
Chair Asing: Your time has expired do you want to finish up?
Ms. Palmeira. Okay one last thing.
Chair Asing: Go ahead.
Ms. Palmeira. Another failure and this is of the County but it is
also a Federal violation concerns the Coastal Zone Management Act. Now since the
reevaluation took place as of November of last year, there were significant changes
to the shoreline in which the shoreline is much closer to the APA of this project.
There needs to be a reevaluation as well as an updated SMA for this to take place.
COUNCIL MEETING -16- May 26, 2010
Chair Asing: Thank you.
Ms. Palmera. And that is also found in the statutes for shoreline
HRS 205 A.
Chair Asing: Thank you.
Ms. Palmera. And so in conclusion.
Chair Asing: Is there...
Ms. Palmera. I'd like to again voice our opposition, this path is
turning out to be one that does not take into consideration the significant impacts
on our culture and on our people and the usage of Wailua Beach for example done.
Chair Asing: Okay thank you.
AL CASTILLO (County Attorney)- Mr Chair, Mr Chair
Chair Asing: Yes.
Mr Castillo: You've granted.
Chair Asing: Hang on..
Mr Castillo: This person.
Chair Asing: Let me finish up. Thank you Walden.
Ms. Palmeira. I'm just here to inform you.
Chair Asing: Yes and thank you.
Ms. Palmeira. And I would hope that you.
Chair Asing: Walden.
Ms. Palmeira. The County
Chair Asing: I have given you the opportunity would you
please.
Ms. Palmeira. I would just hope.
Chair Asing: Would you please respect this Council, we have
given you more than.
Ms. Palmeira. I would just ask the Council to take into
consideration.
Mr Castillo: Mr Chair, Mr Chair
Chair Asing: Yes.
COUNCIL MEETING -17- May 26, 2010
Mr Castillo- You know the subject matter that this person is
talking about, you granted her a wide latitude. The agenda item is specifically for
the acquisition of a specific parcel of land.
Chair Asing: Thank you.
Mr Castillo. She's ventured into areas that's outside of the
agenda.
Ms. Palmeira. It does relate to the same project.
Chair Asing: Thank you.
Ms. Palmeira. Thank you.
Chair Asing: Is there anyone else? Thank you.
LIKO MARTIN Good morning Council Chair and members of the
Council. So far as the proceedings to condemn land.
(state your name)
Mr Martin. Yeah my name is Like Martin. I am a (inaudible)
decent of Wailua Nui O Hanohano and I'm very upset with the way that the issues
have been presented as Waldeen but like the gentleman said, specifically to the
agenda item. Are we in agreement that the State constitution adopted the United
States Federal Constitution? Can I have an answer on that?
Chair Asing: No. well why don't you continue.
Mr Martin. Well the Federal. well what I'm trying to point
out, I mean it's like if you don't know what rules you're operating under then it's
difficult to make proper decisions and wherever the Federal Constitution goes and
the Federal Constitution of the United States applies in the Hawaiian Islands in
the (inaudible) and I think I'm correct okay?
Chair Asing: You know Like let me do this.
Mr Martin. Yeah.
Chair Asing: The item is the condemnation.
Mr Martin. Yes.
Chair Asing: Of a particular area.
Mr Martin. Yes.
Chair Asing: That's the discussion item.
Mr Martin. Yes.
Chair Asing: So I'd like for you to stay as close as possible to that
item and not move to other associated items.
Mr Martin: Okay
COUNCIL MEETING _18- May 26, 2010
Chair Asing: Connected with the path.
Mr Martin. Okay
Chair Asing: So stay on the item. This item is the condemnation
portion of the path, only
Mr Martin. Well. specifically then I'd like to give notice to this
Council, to the County that the proceedings to condemn land is a violation of the 4th
(inaudible) convention. And the laws and customs of war on land and the annex
regulations which specifically prohibit an occupying entity which the county has a
municipality of the corporation called the State of Hawaii is functioning under the
US Federal Constitution. And it is forbidden in (inaudible) to confiscate private
lands. Amongst other things that (inaudible) forbids and I would say that in your
Committee Report possibly you would bring this back to Committee and that's all I
have to say very simple at what point and at what Court of component jurisdiction
these issues can be taken up because it's pretty rampant, I understand that. But I
just wanted to make that point in the event that in the future individuals or
entities, corporate entities will be taken to task on this issue condemnation of
private lands is forbidden under the articles of (inaudible) 4. Thank you very
much.
Chair Asing: Thank you. Is there anyone else?
Good morning JoAnn.
JOANN YUKIMURA. Good morning Council Chair, Council members. I
really have about three (3) sentences to say My name is JoAnn Yukimura for the
record. This condemnation may not have been necessary if we had done an EIS and
really looked at none engineering solutions for the Highway problem in which case
perhaps we would have been able to accommodate both the multi-use bike path and
the solution for the congestion so there's a serious question as to why an EIS wasn't
done
Chair Asing: Thank you.
Ms. Yukimura. Thank you.
Chair Asing: Is there anyone else? If not I'd like to.
CAREN DIAMOND- Aloha Caren Diamond. Along with the EIS not
being done this project has been segmented in ways that make it difficult for all of it
to occur I'd ask this body to not approve this expenditure, not condemn this land
and actually bring this bike path project back for an EIS and for a comprehensive
review It's been segmented in all its aspects and all the development that's
happened at Wailua has been segmented so that you have this really sad situation
right now, so I urge you to deny this today, thank you.
Chair Asing: Thank you. Is there anyone else? Mr Taylor
KEN TAYLOR. Chair, members of the Commission. or Council,
my name is Ken Taylor As most of you know I've been a big supporter of the bike
path from the very beginning but saying that I would like to say that there has been
a lot of mishandling of this whole process and I think the earlier speakers today
have made some really good points as to why you should not move forward with this
at this time and go back to finishing the project properly and then bring it back and
let's move forward, thank you.
COUNCIL MEETING -19- May 26, 2010
Chair Asing: Thank you. With that? JoAnn?
Ms. Yukimura. JoAnn Yukimura. I just want to clarify that the
EIS I'm talking about is not for the path but for the road widening project. Thank
you.
There being no one else to speak on this matter, the meeting was called back
to order, and proceeded as follows:
Chair Asing: Thank you. Is there anyone else? If not I'd like to
call the meeting back to order We have a motion.
Mr Nakamura. And a second.
Chair Asing: And a second.
Mr Nakamura. For the Parks and Transportation Committee
Reports.
Chair Asing: On the Committee Report. So what I'd like to do is
move this, this report and we get to the Resolution later So with that I believe we
have a motion to approve, we have a second, all those in favor say "aye"
Councilmembers: Aye.
Chair Asing: Motion carried. Next item please
The motion for approval of Committee Report No CR-PKT 2010-04 was then put,
and unanimously carried.
Mr Nakamura. Next Committee Reports for approval.
Mr Furfaro: Excuse me Mr Clerk. I want my vote recorded as a
silent.
A report (No. CR-PKT 2010-04) submitted by the Parks/Transportation
Committee, recommending that the following be approved as amended on second
and final reading:
"Bill No. 2348 - A BILL FOR AN ORDINANCE AMENDING
CHAPTER 19, ARTICLE 3, SECTION 19-3.2 AND SECTION 19-3.3 OF THE
KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO PLAYING
FEES AND REGULATION OF PLAY AT THE WAILUA GOLF COURSE,"
Mr Kaneshiro moved for approval of the report, seconded by Ms. Kawahara, and
unanimously carried. (See later for Bill No. 2348, Draft 1.)
Mr Nakamura. So noted Vice Chair
Next Committee Reports for approval are from the Planning Committee,
Committee Reports CR. at the bottom of page five (5), CR-PL 2010-11, CR-PL
2010-12 and on. those are the two (2) Committee Reports from Planning.
COUNCIL MEETING -20- May 26, 2010
A report (No. CR-PL 2010-11) submitted by the Planning Committee,
recommending that the following be approved as amended on second and final
reading:
"Bill No. 2318, Draft 2 - A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO THE
COMPREHENSIVE ZONING ORDINANCE (Farm Worker Housing),"
Mr Kaneshiro moved for approval of the report, seconded by Mr Chang, and
unanimously carried. (See later for Bill No. 2318, Draft 3)
A report (No. CR-PL 2010-12) submitted by the Planning Committee,
recommending that the following be approved as amended on second and final
reading:
"Bill No. 2350 - A BILL FOR AN ORDINANCE AMENDING
CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO ZONING
DESIGNATION IN WAIMEA, KAUAI (C Ahko Inc., et al., Applicant),"
Mr Kaneshiro moved for approval of the report, seconded by Mr Chang, and
unanimously carried. (See later for Bill No. 2350, Draft 1)
Mr Nakamura. Last Committee Report for approval at the top of
page six (6) is from your Public Works/Elderly Affairs Committee, Committee
Report CR-PWE 2010-06.
A report (No. CR-PWE 2010-06) submitted by the Public Works/Elderly
Affairs Committee, recommending that the following be received for the record.
"PWE 2010-3 - Communication (2/26/2010) from Committee Chair Tim
Bynum, requesting the presence of the Administration to discuss the status
of the Hardy Street Improvements and Traffic Circulation in the Libu`e Town
Area,"
Mr Bynum moved for approval of the report, seconded by Mr Chang, and
unanimously carried.
Chair Asing: Next item please.
Mr Nakamura. Next matters are Resolution. Council Chair at this
time on Resolution No. 2010-33 if we could move that to be grouped together with
the Operating Budget and the Capital Budget bills? And if we could move to the
next Resolution, Resolution No. 2010-34.
RESOLUTION.
Resolution No. 2010-34, Draft 1, RESOLUTION AUTHORIZING THE
ACQUISITION OF THE FEE SIMPLE INTEREST IN LANDS REQUIRED FOR
PUBLIC USE, TO WIT- THE PEDESTRIAN AND BICYCLE PATH WHICH
CONSTITUTES PART OF PUBLIC PARK SYSTEM, SITUATE AT WAIPOULI,
DISTRICT OF KAWAIHAUM COUNTY OF KAUAI, HAWAII, AND
DETERMINING AND DECLARING THE NECESSITY OF THE ACQUISITION
THEREOF BY EMINENT DOMAIN
Chair Asing: What I'd like to do is I'd like to defer this item to
the next meeting and then have an Executive Session. I think there are many,
COUNCIL MEETING -21- May 26, 2010
many points that were brought up that should be clarified and we should meet with
the Attorney's Office our legal department and get information that is information
that we should get. I would also like to remind Councilmembers please, please,
please. do not throw out any figures at all. We do not know what the cost is, we do
not want to have people pick up figures and start doing calculations that may be
erroneous and so we need to get good proper information from our legal department
together with our Public Works Department. With that. Councilmember
Furfaro.
Mr Furfaro• Mr Chair thank you very much for recognizing me
before I seconded your motion.
Chair Asing: Yes.
Mr Furfaro: But that is the one reason that I did go silent of the
earlier vote. I would like to get some kind of Executive Session briefing on the
actual negotiation for the land parcels so that I understand what is going on in that
negotiation. And I would also like to see if the County Attorney can also brief us on
Section 4F that deals with cultural practices as it relates to anything that we might
have to have a better understanding of the coastal zone management process
because it is a Federal Government law where the CZM is then passed on the State
and then passed on to the County, so. and on that note I would like to say I would
second your deferral.
Mr Nakamura. Council Chair
Chair Asing: There is no.
Mr Nakamura. Yeah there is no motion at this stage.
Mr Furfaro: There is no motion. I'm sorry I. I'll let others
speak before I make the motion then.
Chair Asing: Go ahead Mr Bynum.
Mr Bynum. Thank you Mr Chair First of all I appreciate that
we take the time to make sure that any questions are answered in all of our minds,
so I would be supporting what you said. I also want to take responsibility for
throwing out a rough guesstimate and I said earlier that perhaps that was
imprudent and so I think I know your caution but.. but I'd also like for anybody
who's watching this in the audience to. and I also appreciate that the Chair gave
wide latitude to Ms. Palmeira and that the County Attorney did the same and didn't
because she was speaking on issues that are not on the current agenda and so I
won't address those but what is on the agenda is a condemnation of land and this is
at Kapa`a Shores. The people on Kauai know you turn right and there's a street
that goes to Niulani that those are private streets right now, they're all busted up
and potholed and the owners of those streets are happy I believe that the County
and have asked the County to take those and so the two (2) larger parcels where
there's no dollars involved, are those roadways. The other parcel is a thin strip
along the easement and we are using the roadway right-of-way easement but to do
it appropriately and safely we needed some additional space The fee simple
landowner all of these things are happening with cooperation of the landowners
involved. These are legal things to make sure that we're crossing the "I's" and
dotting the. crossing the "t's" and dotting the "I's" and you know is all straight
forward. And the legal issues get complex but they are all in full consultation and
with cooperation of the landowners there. And it's in order to do these things
appropriately and safely The questions are good and it caused me to go out and try
COUNCIL MEETING -22- May 26, 2010
to get that information as clear as I could and to share that with the public. The
other thing that I would say regarding Mr Mickens testimony is that all of the
funds involved in the project, the Council is updated by our team on a regular basis
and that information is available as a public document to anyone who's interested.
So thank you for that opportunity to speak.
Chair Asing: Thank you. Any other discussion? If not.
Mr Furfaro: I'll make the motion to defer I think to June 9th
Chair Asing: Motion carried. Next item please.
Upon motion duly made by Mr Furfaro, seconded by Mr Bynum, and
unanimously carried, Resolution No. 2010-34 was deferred.
Mr Nakamura. Council Chair just for clarification the deferral
would also include the scheduling of an Executive Session.
Chair Asing: Executive Session, yes.
Mr Furfaro: I'm sorry if I didn't make that clear the second
time.
Mr Nakamura. Next Resolution is Resolution No. 2010-35.
Resolution No. 2010-35, RESOLUTION REQUESTING THE MAYOR TO
CONSIDER INCLUDING THE COUNTY OF THE COUNTY OF KAUAI IN THE
IMPLEMENTATION OF THE KAUAI ENERGY SUSTAINABILITY PLAN
Mr Chang: Move to approve
Mr Kaneshiro: Second.
Chair Asing: Any discussion? Peter?
Mr Furfaro: I have discussion.
Chair Asing: Yes go ahead.
Mr Furfaro: You know we have two (2) proposed bills here
that are back in front of us and we have 2355 which actually is the amended bill
dealing with the CZO that looks like we're indicating we're going to move to receive
and then coming up later we have similar bill. I'm not sure where I'm at on
receiving this first one.
Chair Asing: No. we're on.
Mr Nakamura. The Sustainability Plan.
Chair Asing: 2010-35
Mr Furfaro• Oh 35?
Chair Asing: Yes.
Mr Furfaro. I thought it came out 65 I'm sorry.
COUNCIL MEETING -23- May 26, 2010
Chair Asing: Yeah and..
Mr Furfaro: Okay let's reel it in.
Chair Asing: And there's a motion to
Mr Furfaro: I thought I heard 65
Chair Asing: Approve. Okay can I have a motion to approve?
Mr Kaneshiro: We did.
Chair Asing: Okay can I have a second?
Mr Kaneshiro: We did.
Chair Asing: We did? Okay With that any discussion?
Mr Bynum. So Mr Furfaro this is the Resolution regarding the
Energy Sustainability did you want to speak on that?
Mr Furfaro: Yes. Yes. and I'm reading the particular points
here The Resolution is coming up a bit later, am I correct Mr Clerk?
Chair Asing: No.
Mr Nakamura. This would be the Resolution on the Energy
Sustainability Plan.
Chair Asing: We're on it right now
Mr Furfaro: I would like to get some feedback then from the
members because I've taken the liberty to assign some task to this bill dealing with
asking Councilwoman Kawahara to pursue the Transportation section looking at
myself and Mr Kaneshiro, I'm talking about the utility section in particular I would
like to say that your support of this Resolution indicates your concurrence to take
on some of additional assignments with not more than two (2) members pursuing
certain parts of the Resolution.
Chair Asing: You know I really don't think there's a big mad
rush to approve this so if you. you know want some time to work on it we can defer
it until such time as you know you're comfortable and we can.
Mr Furfaro: Well I.
Chair Asing: We can entertain that.
Mr Furfaro• Well I would appreciate that because you know as a
senior manager in most organizations I took my liberty in assigning task. to
certain Councilmembers so maybe a two (2) week deferral with everybody reading
the areas that I am asking them to pursue would be appreciated.
Chair Asing: Okay with that can I have that? Oh go ahead first.
Mr Bynum. Just to say that you know I read this Resolution as
a request to the Administration to continue to collaborate with the Council on the
COUNCIL MEETING -24- May 26, 2010
recommendation of the Energy Sustainabihty Plan and I think that's wise and I
think it would be appropriate to defer to have further discussion that's fine.
Mr Furfaro: You did get an assignment in there.
Mr Bynum. I didn't see that but I am invested in us addressing
the issues that are brought up by the Energy Sustainability Plan.
Mr Furfaro. Very good.
Mr Bynum. Some of which required the Administration's
involvement, some of which may require legislation from this body and you know
we've gone through a process that we certainly follow up and collaborate on and go
forward so I think the intent of the Resolution is a very good one.
Mr Furfaro. Well I appreciate the Chairman's recommendation
on the two (2) week deferral and since when we get a second to that of course it's
mute to two (2) weeks so. if anyone feels that my anxiousness in assigning task
was too much please feel free to see me in the next two (2) weeks.
Chair Asing: I think it's reasonable to have the deferral for two
(2) weeks. So why don't you make that motion.
Mr Bynum. We need to withdraw that motion to approve we
have on the floor
Chair Asing: Yes.
Mr Kaneshiro: That's correct.
Chair Asing: So can I have the withdrawal first of the motion?
Mr Chang: I withdraw my first motion to approve.
Chair Asing: Okay Can we have the withdrawal of the second?
Mr Bynum. And I withdraw my second.
Chair Asing: Now can we have a motion to defer
Mr Furfaro: Move to defer for two (2) weeks.
Chair Asing: Thank you. Can we have a second?
Ms. Kawahara. Second.
Chair Asing: Fine, is there any further discussion? If not all
those in favor say "aye"
Councilmembers: Aye.
Chair Asing: Motion carried. Thank you. Next item.
Upon motion duly made by Mr Furfaro, seconded by Ms. Kawahara, and
unanimously carried, Resolution No. 2010-35 was deferred.
COUNCIL MEETING -25- May 26, 2010
Mr Nakamura. Next matter on page six (6) of the Council's agenda
are Bills for First Reading. The first bill for First Reading is proposed draft Bill No
2355.
BILL FOR FIRST READING.
Proposed Draft Bill No. 2355 - A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE
COMPREHENSIVE ZONING ORDINANCE
Mr Nakamura. This is the bill that amends the current TVR
ordinances and this was the original bill that was referred to the Planning
Commission and Mr Chair if I may just as a point of. for clarification there's also
proposed draft bill 2364 which is the bill with the Planning Commission's
recommendations included in it but right now we're on Bill No. 2355.
Chair Asing: We are on Bill 2355 now, can I have a motion to
receive.
Mr Chang: Move to receive.
Mr Bynum. Second.
Mr Chang moved to receive proposed draft Bill No. 2355 for the record,
seconded by Mr Bynum.
Chair Asing: Do we have anyone who wants to speak on this
item first? Yes. We're on 2355
There being no objections, the rules were suspended.
Mr Rapozo• Right, I understand you're going to receive this and
then take up the other one?
Chair Asing: Yes.
Mr Rapozo: Well I'll testify because I think my comments apply
to both but I'll reference it to 2355. Mel Rapozo again for the record and I'm not
sure how many of you watch the Planning Commission meeting where I testified
but basically what. I'll only testify today and if it should move out of this, move to
a Committee or a public hearing, I'll come back and testify on the actual bill itself
but I think. and I know some of you have, may have the Attorney General opinion
as it relates to vacation rentals or bed and breakfasts on Ag property and I know I
have three (3) minutes and more than likely I'll have to come back but let me just
start by saying the Attorney General was asked back in October of 08 by Sandra
Kunimoto who is the Chairperson of the Board of Agriculture, she asked a specific
question, can you have a bed and breakfast or vacation rental on Ag land, and this
opinion in my opinion and I think in anyone's opinion that can read. will show
that in fact you cannot. That in fact the Attorney General has opined that in based
on Chapter 205 the Counties cannot authorize vacation rentals on Ag land, and let
me just highlight some of the opinion. I think the most important part is that the
Attorney General has ruled that TVR or a Bed and Breakfast is not an accessory
use, it's not. It is not defined as an accessory use, it was never defined and in fact
the Legislative intent and they cite the Legislative notes in this opinion as well that
in fact it's not. It was never designed and there wasn't an attempt to add it in as an
accessory use or as an authorized use and the Legislature decided that they were
going to take it out. The question is real simple and the answer that the House
COUNCIL MEETING -26- May 26, 2010
Committees on Ag and Water, Land and Ocean Resources, they deleted the
reference to overnight accommodations, the Committee reported that they had
amended the bill by removing the overnight accommodations from the list of
accessory facilities the counties would be allowed to regulate, in other words they
took that out. The counties do not have the authority to regulate this issue.
Because it's not an accessory use. The Legislature intended the proviso to apply
only to Ag tourism rather than prohibit all B&B's and TVR's in Ag districts.
Accordingly, we believe the prohibition of overnight accommodations applies as Ag
tourism. The fact that a lot existed prior to June 4, 1976 is irrelevant to whether a
B&B or a TVR is allowable, it's irrelevant. It appears that single family dwellings
may be built on lots existing before June 4, 1976 without the need for any
agriculture activity but there is nothing to suggest that the right to build a single
family dwelling without the need of agriculture activities encompasses the right to
use the single family dwelling for a B&B or TVR. Again this is not Mel Rapozo this
is the Attorney General, actually signed by Mark Bennett.
(3 minutes)
Mr Rapozo: Okay I'll come back Mr Chair
Chair Asing: Do you want to finish up?
Mr Rapozo: If you let me, I will.
Chair Asing: Yeah go ahead.
(Mr Kawakami was noted present at 10:27 a.m.)
Mr Rapozo. Ali thank you. A B&B or TVR is not listed among
the activities or uses allowed on agricultural lands under sections 205 (2D) and 205
(4.5), it's not listed. Section 15-15-03 the Hawaii Administrative Rules further
defines a farm dwelling as a quote "single family dwelling located on and used in
connection with a farm or where agricultural activity provides income to the family
occupying the dwelling" that's the definition, that's what you can have, you cannot
have a B&B or a vacation rental and they sum it up here and it says we're not
aware of any justification for a B&B or TVR as being compatible with any other
agricultural use or activity Again this is Mark Bennett speaking, this is not Mel.
Section 205-58 provides that counties may further define the accessory agriculture
uses and services described in Sections 205-2 and 205-4.5 however we believe that
counties cannot allow a B&B or a TVR on agricultural lands under Section 205-5B.
You cannot. You don't. in the eyes of the Attorney General. which pretty much
and this is a State law we're talking about, not a county code, we're talking about
State law Because a B&B and a TVR are not similar to any of the listed items,
they are not bonafide agricultural services or accessory agricultural uses and
counties may not allow them on agricultural lands under 205-5 You cannot do it.
according to the State Attorney General. Legislative history supports this
conclusion in 1991 the legislature amended section 205-513 to allow the counties to
define bonafide agricultural services and they quote their legislative minutes, your
Committee on conference as amended the measure to require that to be accessory to
the permitted agricultural activities, a service or use must support the agricultural
activities of the fee or leasehold owners. I mean. I just don't see how we can miss
this and we've been talking about this when this bill first came up years and years
ago and that's in fact that's why it's not allowed in the current bill because I
thought this. that Council at the time had clarified the fact that in fact TVR's
cannot occurred on Ag land. And its resurfaced and we're trying to legalize this
activity and I thank the Attorney General for providing this opinion and they just
sum it up saying a B&B and TVR are unrelated to and do not support the
COUNCIL MEETING -27- May 26, 2010
agricultural use of a property accept that they produce revenue. If revenue
production, unrelated to agriculture (inaudible) section 205-58 would essentially be
rendered meaningless. Please as you go through today's hearing. this bill needs to
be killed. Unless we intentionally want to go against the Attorney General's
opinion.
(6 minutes)
Mr Rapozo: Because. okay thank you.
Chair Asing: With that. hang on. Councilmember Furfaro.
Mr Furfaro• Mel could I have a copy of your Attorney General.
Mr Rapozo• Yes.
Mr Furfaro: And I do want to make sure that we. we
understand, this is not about being for legalizing vacation rentals going forward in
Ag land, I sat on the General Plan and the General Plan talked about not letting it
grow I in myself have you know in Ha`ena in the Open lands, they had eighteen
(18) vacation rentals going on State conservation land which it clearly says no
commercial activity on commercial Ag, then the State enters into this things where
they give them a period of time to have an exit strategy even the State because they
know there's going to be a question for twenty-five (25) years people accepted
general excise tax, transient vacation rental tax and if it was illegal, it was never
returned. I'm a hotel guy okay; I'd like to fill hotel rooms not the use of these units
outside of designation visitor residential areas. But the General Plan indicated, we
needed to control this going forward. In years previous to me being on the Council
the fact of the matter is a Councilmember asked to get an interpretation from then
County Attorney or Deputy Attorney Kobayashi. The opinion was made public in
the late 90s and vacation rentals took off because it said without a bill it is not
illegal and obviously the focus was really on the residential areas. But it took us
until I think 2003 when the Chair of then the Council, JoAnn Yukimura and myself
as the Vice Chair and I'm talking about the Planning Committee got approval from
Chairman Asing to launch this study group, this stakeholders piece. And it took us
this time to come up with these two (2) ordinances 864 and 867 that were passed
with specific lines drawn in the sand. That said. and going beyond March 8,
2006. so I want to make sure I'm here doing this because I think we need to finally
fix this, does the fix include going forward? No it should not. Does the fix include
putting some expectations on the Planning Department? Yes it does. Therefore
this bill is coming back to us saying we find ourselves suggesting, strong suggesting
and recommended that those that do have it on Ag land there has to be an accessory
use for the unit. That seventy-five percent (75%) of the land has to be in cultivated
agriculture, there has to be a farm business plan. I want to make very clear when
you use the word, we're doing something illegal, I'm saying we're doing something
that perhaps does not expose the county to more financial risk and does not allow
these units to grow going forward. You know to me, there's a big difference there
and I think you recall when I sat on the Stakeholders meeting, the people who had
TVR's said to me oh we prefer that you recuse yourself and it wasn't because I was
willing to do it as Vice Chair of Planning, they wanted me to recuse myself because
I was a hotelier and they felt I was only prohotel, well the issue here is that we need
to get a point and I hope. and I look forward to your return Mel and you did
indicate you will come back for public hearing if this gets to that point.
Mr Rapozo• If it passes out today then I will be back to testify
obviously on the merit of the bill because I think there's some issues in the bill that
seriously just diminish the bill but obviously I won't have enough time today
COUNCIL MEETING -28- May 26, 2010
Mr Furfaro: Well I always appreciate your feedback and you
know we sent the bill back down to Planning who put in, in the next bill this
agricultural requirement but I want to make sure to me this bill is not about
growing those units, this bill is about managing what we already had for twenty
(20) years and we collected taxes on it. You know I don't know the ramifications on
that either
Mr Rapozo: Well may I respond?
Mr Furfaro: We're not in a financial position as you know
Mr Rapozo: Yeah. I understand. May I respond Mr Chair real
quick?
Chair Asing: Yes go ahead.
Mr Rapozo: I think the Kobayashi opinion didn't reference Ag.
Mr Furfaro No.
Mr Rapozo: Okay
Mr Furfaro: I said it only dealt with residential.
Mr Rapozo. And the reason it didn't. I imagine at that Mr
Kobayashi did look at the State law and realize that he couldn't. So this is not
residential or this is Ag. this bill is on Ag and my position on this is that the
Attorney General is clear on his opinion. That this County has no authority to
regulate TVR's or B&B's on Ag land because of Chapter 205, that's his opinion and
you do with what you want with it. I think if you read the legislative notes, the
history at the legislature and the comments, they did consider, they did consider
the opportunity to maybe include overnight accommodations and yet after all was
said and done, the Legislature and I think wisely decided to not to put it in because
Ag was for Ag. The question as to the State..
Mr Furfaro: Excuse Mel in the (inaudible) he has to be asked a
question.
Chair Asing: Yes. Go ahead. go ahead.
Mr Furfaro: I will ask you a question so we comply but I like
your choice of words. imagine. that's a famous Beatles song "imagine" and I
want to make sure you understand me, I'm imagining this is saying no exposure to
past financial possible obligation to collect (inaudible) in arrears and going forward,
I just want to ask you the bill we got back was sent to the Planning Commission to
get some of their input as to fixing this, finally fixing this and then live with some
attrition going forward. I just want to note, can you understand this is not about
promoting, this is about trying to find a way to have some attrition and stop
Mr Rapozo: If not for the State law, Jay, I would be supportive.
If not for the State law, I would be supportive, but this in my opinion and maybe I'm
too black and white, maybe the threat of lawsuits is too severe. The bottom line is
the State collected TAT general excise tax, the county didn't collect tax. Yes
maybe.
Mr Furfaro: We got a share of it.
COUNCIL MEETING -29- May 26, 2010
Mr Rapozo: Correct we got a share of it but we permitted, we
may have permitted unlawful uses. And if we did and at the end of the day if some
court rules that we owe them money, I'm sorry Mr Furfaro, we screwed up
Mr Furfaro: Well I would like to say to you Mr Mel. that they
screwed up too because they had a whole section in Ha`ena on land that was in
conservation.
Mr Rapozo: Correct.
Mr Furfaro: You know two (2) wrongs don't make a right; I'm
just trying to fix it.
Mr Rapozo: I understand but I.
Mr Furfaro: And I want to say that I use the term Mr Mel
because I understand your compassion but I just want you to understand to me the
bill is about fixing it, going forward. Fix it; don't collect what we're not entitled to
Mr Rapozo: My compassion is really with just following the law,
that's my compassion. Like I said we should be spending our energies if in fact this
island and this county have come to the point where we don't have a problem with
vacation rentals on Ag land then let's go change the State law But as this.
Mr Furfaro• Well I would say I'm offended that you use the
word "your idea is to follow the law " I'm a law abiding citizen, I just can't balance
what they collected to what is right and wrong. We got to fix it, we got to draw the
line and I have to tell you, I didn't appreciate that comment.
Mr Rapozo: I apologize.
Mr Furfaro. I'm a pretty lawful guy
Mr Rapozo: Then you need to. you need to get this bill out
today You need to receive the bill.
Mr Furfaro: Thank you very much.
Mr Rapozo- Okay
Chair Asing: Thank you Mel.
Mr Rapozo• Thank you.
Chair Asing: With that is there anyone else?
CAREN DIAMOND- Aloha Caren Diamond. I brought a cluster which is
behind the screen if it can be brought out.
Chair Asing: You know I. let me, let me just do this, I think it
would be better if we.. because I. and public if you don't agree with me let me
know We have two (2) bills here, we have 2355 and we have 2364, now the plan
was to receive this bill that we are on now on the agenda 2355 and then when we
come to 2364 I believe that's where all the discussion should take place, now if you
think I'm wrong and you want to do the same thing all over again one twenty-six,
COUNCIL MEETING _30- May 26, 2010
sixty-four then it's like talking about almost the same things again repeating on
the next item.
Ms. Diamond. So Chair I don't, I don't care which agenda item I
use it for and if you'd like me to come back I'll happily do that.
Chair Asing: With that said let me just do this, I'm going to stick
to the agenda and we are on 2355 first, the intent was to receive that and then I
would suggest we move on with that here unless someone feels differently then we'll
do the next bill 2364 and then have the comments from the group, is all in
agreement?
Mr Castillo: Excuse me Mr Chair?
Chair Asing: Yes.
Mr Castillo: Mr Chair can we have a short recess I need to
clarify something with the Council.
Chair Asing: Sure.
Mr Nakamura. Council Chair if we. we're almost there to the
caption break.
Chair Asing: Yeah we'll do the caption break now, thank you.
There being no objections, the meeting was recessed at 10.41 a.m. The
meeting was called back to order at 11:05 a.m., and proceeded as follows:
Chair Asing: Meeting is now called to order With that
Mr Clerk can you please read the next item?
Mr Nakamura. We're on. we're still on Bills for First Reading
Proposed Draft Bill 2355. There's a motion and a seconded to receive this bill.
Chair Asing: Thank you, can I have a motion to receive.
Mr Nakamura. No, we do, we have a motion.
Chair Asing: Do we have a seconded?
Mr Nakamura. Yes.
Chair Asing: Thank you. Any discussion? Yes Councilmember
Furfaro.
Mr Furfaro: You know I just want to and I'm going to be looking
across to the County Attorney
(mic?)
Mr Furfaro: My mic? Okay As I ask this question, I'm going to
be looking over to Mr Castillo, 2355 in that draft form really addressed you know
the alleged zoning violations and in that section I mean in receiving this would we
be able to or intend later to merge the zoning issues into the new draft bill that
came back to us from Planning?
COUNCIL MEETING - 31 - May 26, 2010
Mr Castillo: I think to be safe we should call up Ian Jung
because we just reviewed the bill.
Mr Furfaro: So Mr Chair could I ask that Ian Jung.
Chair Asing: Sure
Mr Furfaro: Come up and may I ask that question?
Chair Asing: Yes the rules are suspended.
There being no objections, the rules were suspended.
Chair Asing: Ian? Good morning.
IAN JUNG (DEPUTY COUNTY ATTORNEY): Good morning Council Chair,
Councilmembers. I think what you.
Chair Asing: For the record.
Mr Jung: For the record Deputy County Attorney Ian Jung.
Mr Furfaro: Do I need to repeat my question or did you hear it.
Mr Jung: No I did hear it from the back.
Mr Furfaro: Okay
Mr Jung: I think what's before you right now is a procedural
issue, there are two (2) bills on the agenda this morning. One of the bills, I believe
2364 was the amendments that came out of Planning Commission after the public
hearing, so there are one additional amendments relating to the Ag dedication and
that would be the difference between the two (2) bills.
Mr Furfaro• Got it.
Chair Asing: Councilmember Bynum?
Mr Bynum. So just to make sure. 2364 contains the elements
of 23.
Ms. Kawahara. 55
Mr Bynum. 55 with an addition, is that correct?
Mr Jung: That's correct, the same purpose and intent of 2355
is in 2364.
Mr Bynum. Thank you for that clarification.
Mr Furfaro• Excuse me, so the zoning question had in 55 the
alleged violations is. it duplicates itself in the template of 2364.
Mr Jung: It does as the bill coming out of Planning
Commission.
Mr Furfaro: Thank you. Thank you Mr Chair
COUNCIL MEETING -32- May 26, 2010
Chair Asing: Thank you.
Mr Furfaro. Thank you Mr Jung.
Chair Asing: Any further questions for Mr Jung? If not, thank
you. I'd like to call the meeting back to order
There being no more questions for Mr Jung, the meeting was called back to
order, and proceeded as follows:
Chair Asing: We have a motion on the floor to receive, we have a
second, any further discussion? If not roll call please.
Mr Nakamura. Oh no. just a vote.
Chair Asing: Okay All those in favor say "aye."
Councilmembers: Aye.
Chair Asing: Opposed say "no", motion carried. Next item
please.
The motion to receive proposed draft Bill No. 2355 for the record was then
put, and unanimously carried.
Mr Nakamura. Next proposed. Draft Bill for First Reading is
Proposed Draft Bill No. 2364.
Proposed Draft Bill No. 2364 - A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE
COMPREHENSIVE ZONING ORDINANCE. Mr Furfaro moved for passage of
Proposed Draft Bill No. 2364 on first reading, that it be ordered to print, that a
public hearing thereon be scheduled for June 23, 2010, and that it thereafter be
referred to the Planning Committee, seconded by Mr Bynum.
Mr Nakamura. This bill is the Planning Commission
recommendation.
Chair Asing: Thank you.
Mr Furfaro. I'd like to approve this bill if I can and look for
schedule a public hearing, I do know that there are people that want to speak on
this but I want to make sure the. that they understood that there would be a
scheduled public hearing on June 23 and I'm guess it would be in my Committee.
Chair Asing: Yes.
Mr Furfaro: Planning.
Mr Bynum. Second.
Chair Asing: Okay with that why don't we suspend the rules and
have.
Mr Nakamura. Council Chair could I get a second to Council Vice
Chair Furfaro's.
COUNCIL MEETING -33- May 26, 2010
Mr Bynum. Second.
Chair Asing: Yes.
Mr Nakamura. Thank you.
Chair Asing: Okay there's been a motion to approve on First
Reading, schedule public hearing on June 23 and refer to the Planning Committee,
there's been a second, with that I'm going to suspend the rules and open it up for
the public participation, with that Councilmember. I mean. Mel.
There being no objections, the rules were suspended.
Mr Rapozo: Ah. Thank you Mr Chair all I want to say Mel
Rapozo for the record. I just want my comments that I made for the prior bill
applied to this bill, I'm not going to go through it again. The. the. intention is
the same, the fact that the Attorney General opinion that I provided to you, I'm
relying my testimony on that and I feel that in fact the County does not have the
authority under the State law to allow TVR's on Ag land. Thank you.
Chair Asing: Thank you.
Mr Furfaro: And Mel may I say thank you for getting us the
copies from your testimony
Mr Rapozo: You're welcome.
Mr Furfaro: Thank you Mr Chair
Chair Asing: Thank you. With that is there anyone else?
Ms. Diamond. Good morning Councilmembers, Caren Diamond
for the record. I hope the map can be brought out now so that I can use that for my
testimony
Mr Furfaro: Mr Chair I do want to know we are going to
respect the rules and give them six (6) minutes since.
Chair Asing: Yes.
Mr Furfaro: Since we have set up public hearing for this.
Chair Asing: Yes.
Mr Furfaro: Okay
Ms. Diamond: Thank you. I'd like to direct your attention to this
map which is the Kauai zoning map
Mr Furfaro: Excuse me Caren are.. it's a little bit exaggerated
with the size of the dot and the size of the map, I mean. at least you could have
brought us a modeling scale.
Ms. Diamond. Sorry Actually I started at the Kekaha side and as
I got around to the top I realized I needed to use much smaller dots because if you
look at where I started in Kekaha, each dot could have its own independent space
COUNCIL MEETING -34- May 26, 2010
but as I got up to the North Shore, the dots are all overlapping and I couldn't fit
them in the space that they if Ha`ena and Wainiha and Hanalei and I also had to
go all the way over to Napali because there was no way I could get that amount of
dots on this map and I think that really and so I'd like to start at Kekaha.
Excuse me go ahead.
Mr Chang: Excuse me I'm sorry Caren. Can you just so we
can follow along if you. when you start with Kekaha can you give us a number like
maybe Kekaha representing the dots, in other words in Kekaha. because when you
look at the dots. maybe you could say twenty-three (23) or fifty-four (54).
Ms. Diamond: So I apologize but I didn't. I did count out the
numbers for Ha`ena and Hanalei but I didn't count out the numbers for the rest of
the island but I could come back with that in a little bit.
Mr Chang: Maybe (inaudible)
Ms. Diamond: This actually was the first time I looked at the
whole island as a whole because we've been working on Wainiha and Hanalei and
knowing that there are tremendous amounts of vacation rentals that have
accumulated impact and then I want to put it in perspective with the rest of the
island.
Mr Chang: Okay
Chair Asing: With that Councilmember Furfaro.
Mr Furfaro: Yes and not to affect Caren's time but we do have a
summary for all of those that are new to the Council, the summary was
commissioned by a Real Estate Group and done by Mr Ken Stokes, that number
represented about nine hundred and sixty (960) vacation rentals on the island of
which by application time almost four hundred and fifty (450) did not apply because
they did not make the criteria. So my question is only a yes or no. does your map
show all of the vacation rentals or is it net from who actually applied?
Ms. Diamond. This is only the approved vacation rentals.
Mr Furf'aro: Okay So that number is about four hundred and
fifty-six (456)?
Ms. Diamond. But you know referencing this bill before you that
takes out inspections that allows people to come in now and apply
Mr Furfaro: I understand that Caren. and I'm not on your
time but I was trying to answer Councilmember Chang's question. I also know that
in the map you covered areas that are VAD VDA approved and so you know
they are legal.
Ms. Diamond. I'll describe the map in just a minute.
Mr Furfaro. That will be good.
Ms. Diamond. Thank you.
Mr Furfaro: But I wanted to answer Mr Chang.
COUNCIL MEETING -35- May 26, 2010
Ms. Diamond. I do want to say though that with this approved
bill, all those four hundred and somewhat. that did not apply can now come in and
apply because there's no more inspections. And by in large those are people who
knew that their houses would not pass any physical inspection but now the way this
bill is written before you, no physical inspections necessary anymore. And so we
expect the rest of those four hundred and fifty (450) to come in and apply and so I'd
like to start at Kekaha there where the dots were individual and represent each
vacation rental that has been approved. And then as we go down to the other
concentration, it's Lawa`i which is right next to Po`ipn and I did not map the visitor
destination areas so as you come up to the Kapa`a side you can see that there are
some vacation rentals there. The blue dots on the map are all the agricultural
vacation rentals that are on the TVR log of people who have applied for agricultural
vacation rentals and did not get approved. The red ones that are within that blue
sea are ones that did get approved in agricultural district or Open and so you can
see that if you approve this agricultural vacation rentals, you've made a sea of
visitor destination area of the entire North Shore. Whereas if you look at zoning
which really is the law of the land here, there was areas for residential, there was
areas for resort, there was areas for agricultural lands, this kind of does away with
it and it makes Hd'ena, Hanalei makes the entire North Shore a resort and I'd ask
this Council if you want to make the North Shore a resort, come with zoning
changes because that's what is supposed to happen, it's not supposed to happen by
default where you approve all these vacation rentals and don't consider all the
accumulated impacts and this is all Special Management Area some of the most
ecologically sensitive land that we have. And you've just made a visitor unit out of
it. If there was to be a hotel proposed that had three (3) or four hundred (400)
units, you know there would be some impact and you know they would want to
know what there would be a planning process over it but this is just approving all of
them and telling them to come in but this bill that you have before you opens it up
so that this is what has already been approved, it doesn't even begin to address
what would come in after that. And you know I want to go back to the purpose that
this TVR ordinance had said because I'm really sad that two (2) things from the
General Plan were pulled out to say that this is why we have to do this and I really
don't understand why all the zoning is ignored, all the zoning regulations,
everything and just so. I'll just read you a little bit from the findings and purpose
of the original bill which is single family transient vacation rentals are occurring at
a greater rate and inflicting a larger impact on the community of Kauai than was
ever anticipated in the county's original CZO The uncontrolled proliferation of
vacation rentals and residential in other areas outside the visitor destination area
is causing significant negative impacts to certain residential neighborhoods
foreshadowing similar impacts on other areas of the island. County development
standards and permit processes shall be scaled to the size and potential impact of
the use. I think that's an incredible impact, we've lost the residential qualities of
the North Shore, this is. permitting processes should consider the accumulative
impact that a large concentration of alternative visitor units can have on a
residential neighborhood. Look at our residential neighborhood, that's not a VDA,
that's residence. it was residence and legally it still is. And I'm just going to read
you one (1) more thing which is from the original bill. It says once the number of
nonconforming uses are established, attrition is monitored. The Planning
Department has demonstrated effective enforcement of the law whoa where's
that? Can we have an audit of how this TVR ordinance has been implemented?
Can we ask the County Auditor to do that? So I'm asking this body please before
you add to this bill, before you add to this problem, before you add to the
proliferation.
(6 minutes)
COUNCIL MEETING -36- May 26, 2010
Ms. Diamond. Please do an audit of what has occurred so far
Thank you.
Chair Asing: Thank you. Is there anyone else?
BARBARA ROBESON Thank you Mr Chairman, aloha Councilmembers,
Barbara Robeson for the record and I'm speaking on behalf of Protect our
Neighborhood `Ohana representing the residents of Wainiha and Ha`ena. And I
have some general comments and then I'll get to my specific comments. My first
comments relate to the map that Caren presented. Per the map it's pretty obvious
that the number of TVR's outside the VDA is extremely significant and I wonder
because I don't have access to that information. Are there more TVR's outside the
VDA or are there more TVR's within the VDA areas and it's obvious from my
perspective anyway that Wainiha and Ha`ena has become a defacto resort area just
like what Caren had said. Now the North Shore plan, the North Shore
Development Plan said, page thirty-nine (39), one of the recommendation was that
all visitor accommodations and resort units should be confined to the Princeville
resort area, and another recommendation was the values and lifestyles of local
residents should not be and reasonable compromise to accommodate the tourist
industry Well I think that's kind of passed by the way side now Another kind of
general comment that I had relates to the section 8 of. 8-2.1 which is article 2
designation of districts, effect of establishment of districts and zoning maps, and I'm
wondering if that was even considered in this bill that's before you. Some of the
information that's put forth in that is that as part of any ordinance enacted by the
County Council affecting the change in the zoning classification of any real property
or boundary of any district the county there may be imposed conditions concerning
use or zoning classifications. And one of the conditions or the goals is to preserve
the heritage character of the North. I'm sorry character and beauty of the island
of Kauai, well kind of gone by the way side there too. 522D1 said no building
structure or building portion shall be erected, altered nor shall any structure, land,
or premise be used except in the matter indicated and only in the uses permitted in
the districts in which the building structure or land or premises is located. And I
think this is probably going to be coming up before the Council but before I get into
the specific comments on the bill. are the TVR's still paying the taxes at the
residential rate, it's my understanding that they are and that there is some action
that's going to be taken by the Council in the future to mitigate that. But basically
residents are subsidizing TVR's and what about the hotel industry, are they also
subsidizing TVR's because it's obvious that when a hotel comes in for approval, that
they have certain fees that are imposed on them, impact fees such as park
dedication and room fees, they pay infrastructure cost, they pay for road
improvements, sewage, they sometimes do housing. they have a capital
investment in the facility, they create jobs and the property taxes of course are at
the resort or commercial rate. So going to the bill and the bill that I'm using for my
specific comments is the proposed Bill No. 2355 and in the first paragraph there on
page one (1) section one (1) the last sentence said, however this bill maintains the
prohibition concerning the commencement of any new single family transient
vacation rental outside the VDA's, if the use was not established prior to March 7,
2008, and then it goes on to say in the second paragraph, the Council further finds
certain provisions of ordinance 864 and 876 have served contrary to this policy, well
or these procedural problems or was it threats of lawsuit or have the Washington
lobbyist come to Kauai and have been lobbying behind the scenes? What happened
to open government? We don't know what's behind this. Going to page three (3)
section four (4) (c) in the middle of the page there, this bill 2355 eliminates the
wording that the effective date of this ordinance which was March 7, 2008 and was
the TVR's were in compliance with all State and County land use and planning laws
including but not limited to HRS Chapter 205, CZO, Special Management, Flood
Plain, Shoreline Setback. so this bill is proposing to eliminate compliance with
COUNCIL MEETING -37- May 26, 2010
State and County laws and my question is how can you retroactively eliminate legal
requirements by taking it out now, those requirements were effective for March 8
and just to give you an example of how it might work against by taking this portion
out, some TVR's have now applied, some of the TVR's that applied by October 15,
2008 were denied. Those TVR's previously denied have now been coming to the
Planning Commission for approval, so if that requirement for compliance with the
State law, County law was taken out, they could come forward and wouldn't have
had to meet those requirements. And then finally on. again on Bill No. 2355 page
six (6).
(6 minutes)
Ms. Robeson. I just have one (1) thing.
Chair Asing: Okay finish up
Ms. Robeson. Page six (6) section five (5) there in the middle of
the page it says section 8-1711 (a) the last sentence there, violations of conditions of
approval or providing false or misleading information on the application or any
information related thereto at any time of the application process shall be grounds
of revocation. Well I have testified in the past before the Planning Commission and
before I believe before the County Council to that some of the affidavits that people
the sworn affidavits that they had turned in had false information on it. Many of
those affidavits and application claimed homeowner's exemption, how can they have
a homeowner exemption being living in their house and then get their TVR permit?
So that's all I had, thank you very much Mr Chair
Chair Asing: Thank you, with that hold on Barbara.
Ms. Robeson. Yes.
Chair Asing: Councilmember Furfaro.
Mr Furfaro• Yes thank you Barbara for your testimony To
answer one (1) of your questions there is discussion about modeling the Maui
ordinance 36711 think it's a draft bill adding a new and in Maui it's category eleven
(11) as a tax category referencing commercial residential so to answer your question
there is some of that.
Ms. Robeson. In the works.
Mr Furfaro: In the works, in the moving parts okay The other
one is I do agree with you if people false claim a homeowners exemption while they
were doing commercial activity and it wasn't their primary location then I would
suggest that strongly we look at legal action on those individuals because you know
I mean you just can't be falsifying records, it indicates that so. I concur with that
with you and I will be suggesting pieces that go along people claiming tax
exemptions that they weren't entitled to. Also are you aware of 464 that
sometimes.
Ms. Robeson. Yes I am.
Mr Furfaro: That sometimes referred to as the Waikiki.
Ms. Robeson. Waikiki Market Place.
COUNCIL MEETING -38- May 26, 2010
Mr Furfaro: Market Place pieces that. I dust want to find out if
you're aware of it because it seems that it posed some legal challenges in the form of
being able to appeal. And yet at the same time I know you will probably agree with
me, there is the possibility that that interpretation needs to be revisited but that
464 says to people that if you were denied you can in fact correct something and
reapply
Ms. Robeson. Well by brining that issue up earlier was if 464 are
behind this bill then I think the public is entitled to know that so that we can
comment on it but if it's something that done behind closed doors, then how can
we. how can we make comments about it? Or how can there be the other side of
the story told or argued against it so I'm just saying in the interest of open
government I know you've all discussed that extensively it would really be.
Mr Furfaro: And that's why
Ms. Robeson. Something that I think you should do
Mr Furfaro: I know I think that you appreciate the fact that I
brought it out here.
Ms. Robeson: Thank you very much.
Mr Furfaro: (inaudible) it is subject to interpretation.
Ms. Robeson. Yes.
Mr Furfaro: But I want to thank you on your other comments
and you know I too want to have some time during the process with the County
Attorney to talk about this new sixty (60) day application. you had to be operating
legally for sixty (60) days prior to your application and so forth, I want to
understand that a little more too because I also believe that we could or should be
able to defend the original date of the line being drawn in the sand of March 7, 2008
and I might have said 2006 earlier
Ms. Robeson. I wish.
Mr Furfaro: But you did understand when we had the
Kobayashi interpretation in the 90s I mean it kind of like said well it's not legal but
it's not illegal in this interpretation and that's where it really blossoms..
Ms. Robeson. Right.
Mr Furfaro Thank you very much for your testimony Thank
you Mr Chair
Chair Asing: Thank you. Is there anyone else? Mr Mickens.
Mr Mickens: Thank you Kaipo, for the record Glenn Mickens. I
just want to compliment Caren, Barbara and Mel for their diligence in trying to
keep Kauai/Kaua`i. The proliferation of development must stop, I realize that legal
aspect just as Jay has so vividly pointed out is a huge part of this problem and you
know it's going to have to be addressed. I don't know where the. I don't know
what the answer is because I hear Mel about the State law, I hear about the taking
sort of speak and you know they both make a lot of sense to me. A few years ago
Kaipo you did a huge presentation in this Chambers. not this Chambers but the
other Chambers with maps all over the wall showing the proliferation of these
COUNCIL MEETING -39- May 26, 2010
TVR's in none VDA areas and you know it was bad, you pointed out, you were one of
the biggest opponents to having this happen but nothing really happened and at
this stage of the game I only see the problem exacerbating and again I don't know
what the answer is but I think it's going to have to be solved, I certainly appreciate
you know Caren has been one of the big (inaudible) down there and in the Ha`ena
area for trying to do something about this and her map up there is just like yours
Kaipo is only further proof that this is happening. Anyway again I don't have the
answer but I certainly appreciate both sides. hearing both sides of these things, I
think there are valid arguments of either side of this. So that's my testimony,
thank you Kaipo.
Chair Asing: Yes Glenn, I just want to make a comment to your
statement about you know the presentation that I made to show the proliferation
and the extent of the TVR units, I want you to know that we did so-call take care of
it, we passed a law that is in effect today and I felt that that law that is in effect
today is a good law And I want to live with that law What we're doing now is
we're amending that law and that's the difficulty but we did in fact work on it and
came up with what the Council at that time felt was a reasonable solution, that
reasonable solution that took place is in effect today But this Council has chosen to
review that and change that law so that's what we're talking about today
Mr Mickens: The law you passed was that going forward did that
have to do with the Kobayashi.
Mr Furfaro: He's referring to the bill that we passed in 2008,
March 7, 2008.
Mr Mickens: Oh, oh as of 2008.
Chair Asing: Yeah that's.
Mr Mickens: And now this bill is supposedly going to amend
what you passed? Okay well I would be highly opposed to anything that. the work
that was done on that particular thing gets passed and this gets amended. thank
you Kaipo.
Chair Asing: Thank you. Is there anyone else? Mr Taylor
Mr Taylor Chair, members of the Council, my name is Ken
Taylor If this bill that's before you really approves upon the existing bill that's in
place, there should be some consideration. But if this bill is going to water down the
bill that was passed and agonized over several years ago, over a long period of time,
if this is going to water down that bill you should really think hard about moving
forward with it. I think it's sad. I think it's sad once we get a good bill in place
that we go back and monkey with them and make it less appetizing to the
community in general I mean rules and regulations should be set for the greater
community not for individual business people per say and I think that from what
I'm hearing and what I've read in this document that there's some real questions as
to whether or not this bill is going to be beneficial in the long run for the whole
community and so I really hope that you'll think twice about moving forward with it
at least in its current form, thank you.
Chair Asing: Thank you. Yes go ahead Councilmember Furfaro.
Mr Furfaro: Real quick Ken. yeah we all worked very hard, I
worked all the way back to the General Plan, to the CZO and we keep hitting these
hurdles but this bill is addressing what we passed in 2008 finally even though the
COUNCIL MEETING -40- May 26, 2010
Kobayashi opinion came out in the 90s. This big change is really referencing areas
on Ag land also which in fact for many years had been paying transient
accommodation tax and government (inaudible) subdivision units State and County
had been receiving benefits from that. So there is also this question about their
right to appeal, that's this Waikiki. Market Place piece and so we're trying to find
ourselves in those loopholes if I can say to tighten it up Some of that tightening
up might be dealing with just look six (6) years of public notice discussion, the line
is drawn in the sand you had to be in compliance with taxes, with the use of
building permits and so forth and we go from there and managing it with future
inspections and all of those particular pieces. This ordinance never touched on Bed
and Breakfast, it doesn't touch on Bed and Breakfast, Bed and Breakfast are many
of our farming community has that as secondary income so you know there are
some things that I want to make sure you understand is after this review and still
trying to use the March 7th deadline for appeals, we have to tighten up, that's the
purpose of this bill. Okay?
Mr Taylor If it's tightening things up that's great but there
was a lot of questions being raised or concerns raised by Caren and Barbara.
Mr Furfaro: I understand.
Mr Taylor That.
Mr Furfaro: I don't think either of them went to law school like
I did not go to law school either
Mr Taylor Right.
Mr Furfaro: We defend. we depend on legal opinions to tell us
how we close this things and I have to share with you, you know when you have
good attorneys in a room and there in a court room, one (1) wins. the other lose.
Right? So that's only a fifty percent (50%) success ratio.
Mr Taylor Right and they're both good attorneys'
Mr Furfaro: Yes. Very good you got my point. Thank you Ken.
Chair Asing: Is there anyone else who wants to speak on this
item? If not I'd like to call the meeting back to order
There being no one else to speak on this matter, the meeting was called back to
order, and proceeded as follows:
Chair Asing: I believe we have a motion.
Mr Nakamura. We have a motion and a second.
Chair Asing: And a second. Is there any further discussion?
Councilmember Bynum.
Mr Bynum. Thank you Mr Chair I just want to say what I
said before and put this bill in perspective from my opinion and what. at least by
2000 we knew that there was a problem with vacation rentals outside the VDA, I
think we knew way before that. But it became very apparent in the year 2000 when
the General Plan said County fix this, this is a problem. When Mr Kobayashi and
the County Attorney at the time gave an opinion that said if you think these are
illegal outside of the VDA, they're not, and Council it would be prudent if your
COUNCIL MEETING -41- May 26, 2010
intention is to make them be in the VDA that you address this issue legislatively,
that was in the year 2000, okay? What was happening between 2000 and March 7,
2008? Why did it take eight (8) years and if you wanted to do a study, you would
find out that many of these vacation rentals were started and were created in that
eight (8) year period. I wasn't on the Council until 2007 and right away I was in
favor of as quickly as possible regulating vacation rentals and making it very clear
that as of this point no new vacation rentals will be allowed. It took till March 7,
2008. And you know prior to that we had a unanimous vote on a bill that drew that
line, when the bill got reconsidered and starting adding provisions that said that
address people who were already operating and said oh if you have this zoning
violation, you can't continue. If you are on Ag land, you can't continue. I eventually
voted against the bill not because I didn't. the seconded bill the reconsidered bill.
not because I didn't want to regulate, I always did but because I thought it was
going to cause problems for us because there were provisions in the bill that in my
opinion overreached and were going to cause problems for the county And this bill
before us is an attempt to make sure not to circumvent the law but to make sure
that we apply the law correctly, that we are in compliance with the law Now
there's been mentions of 464 and Waikiki Market Place that has to do with
provisions in the original bill that said if you have a zoning violation, you know
existing on March 7, 2008, you're not going to get to continue Well my reading of
this Hawaii State Supreme Court has said you cannot do that. You know if you
were. if you have zoning violations, you address the zoning violation and you fix it
because you have a law for that. So this bill does not eliminate any of those
requirements, those were requirements exist in law and if people violate them, we
have a mechanism to address that and see that it's corrected and if. and it's a
whole separate set of laws, this bill does not impact those laws. What this bill says
is if people have violations in those laws we have consequence and a redress of those
laws but you can't use that to deny use.
Chair Asing: Councilmember Bynum?
Mr Bynum. May I speak Mr Chair?
Chair Asing: Let. Let.
Mr Bynum. Do I have the floor?
Chair Asing: You have the floor but I want to remind you that
there are some items that you are discussing that were discussed in Executive
Session and you cannot, cannot by law discuss those issues on the open floor?
Mr Bynum. Mr Chair
Chair Asing: So be careful of what you make reference to
because if these issues that you're making reference to was discussed in Executive
Session, they cannot be disclosed in open session, so I want to remind you of that.
Mr Bynum. Mr Chair I will take that caution very seriously
as I always do. I'm talking about my own reading of 464 and Supreme Court
decisions that I have.. that any of us can look at. Right? So I believe that I'm not
discussing anything that was discussed in Executive Session.
Chair Asing: I don't happen to agree with you but we will have
the County Attorney look at that at a later point but I just want to remind you.
Mr Bynum. Okay fine. So. with regard to.. see I hate it when
I lose my train of thought. People have come up here and address questions and
COUNCIL MEETING -42- May 26, 2010
concerns about this bill, I have questions and concerns too, and that's part of the
democratic process. And I value the scrutiny that our community members give
these bills because we do a better job when we have to address those questions.
That's a very positive thing. This is. this bill here is at First Reading, it's a draft,
and I've never. I rarely see a bill go through this Council that doesn't get amended
based largely on that scrutiny that we get from the public because that's a very
positive thing. And I expect that that will happen in this instance too but this bill
does not make vacation rentals on agricultural land legal that is a State law This
bill allows those people to apply and go through a due process to determine that, the
original bill that we sent said if you're on Ag, don't even apply and I believe that
was an error And so you now I think we're at the beginning again of a long process
to determine that we treat each individual in this community legally, fairly and
appropriately and I'll say one thing about tax, I supported a bill last term of
comprehensive tax reform that would have taxed vacation rentals based on their
use as a business and would have changed that and that's an issue that we still
need to address, if that bill would have passed, it would have been addressed
already So this is a beginning of a process, we're at First Reading, we have public
hearing, we listen to the questions and concerns, we have lots of meetings, we make
amendments if necessary to try to address these concern and the most important
thing I want to say is, March 7, 2008, finally after eight (8) years or more. the this
Council said no new vacation rentals outside of the VDA that. this bill does not
attempt to change that at all, okay? But I'll pose that question, why did it take
eight (8) years, what happened during that eight (8) year period? Addressing some
of these community issues, shouldn't take eight (8) years.
Chair Asing: I have a question for Councilmember Bynum, did
you. did I hear you say that State law says you cannot have vacation rentals and
you agree with that?
Mr Bynum. No I didn't say that.
Chair Asing: Okay thank you.
Mr Bynum. I said this bill doesn't say
Chair Asing: No. I thought you made the statement that State
law says no.
Mr Bynum. No and if I can answer that question.
Chair Asing: Okay go ahead.
Mr Bynum. I've said many times that the State law related to
what you can and cannot do on agriculture is convoluted, is not equally interpreted
by each county There are many opinions and we need clarity, perhaps the recent
attorney and General's opinion which is fairly recent will help provide that clarity
but it is certainly not clear I feel safe about that. Currently different counties
interpret it differently What I did say is that this bill would give an opportunity for
those people who had been operating prior to March 7, 2008 to make an application
to have a due process to determine whether their continued use is legal or not.
Chair Asing: Thank you. Is there any further discussion? Yes go
ahead Councilmember Kawakami.
Mr Furfaro: Excuse me Councilmember did you want to call the
meeting back to order before you go to the Councilmembers.
COUNCIL MEETING -43- May 26, 2010
Chair Asing: It's in order
Mr Furfaro: Oh you did, I'm sorry Boy that's the second one I
missed today
Chair Asing: Yeah.
Mr Furfaro: My apologies.
Chair Asing: Yeah go ahead.
Mr Kawakami. Thank you Mr Chair and with all due respect, I'm
not going to rehash all the reasons why I voted no the last time but it's all the same
reasons, it's all tied to 205, it's tied to my interpretation of the State law and so it
still stands as it is, so I'll still be voting no on First Reading. And I respectfully
disagree to the point where I don't really think it's that convoluted. You know
there's a section in the State law that says uses not expressly permitted in
subsection (A) shall be permitted and in simple layman terms that means. that's
not on the list, that's not allowed. And this use is not on the list. So in my simple
interpretation. I still stand behind my original arguments and with this State of
Hawaii Department of Attorney General opinion addressed to Ms. Sandra Lee
Kunimoto is the Chairperson of the Board of Ag, it just further solidifies my
arguments and I stand behind my previous arguments so I'll be voting no.
Chair Asing: Thank you. Councilmember Furfaro did you.
Mr Furfaro: Yes you know I guess this is one of those
fifty/fifty (50/50) interpretations because on the flipside we have something on the
State law that says if it's not permitted then it's prohibited but nowhere along the
line did the State say here's your check back, that's what bothers me so I just
wanted to say and I will be voting for the bill so we can get some clarity
Chair Asing: Thank you. Is there any further discussion? If not
I'd like to make some comments. I will not be supporting this and I haven't
prepared anything, I will prepare something when it gets to the full Council. Just a
few comments and you know Councilmember Furfaro I know that you know you feel
that as an example that you gave on the conservation district that you know in
twenty-five (25) years we were collecting general excise tax, TAT taxes and then
what about that. But I need to tell you that the term that I use is let's not let an
illegal activity however long it has been taking place to continue. That's where I'm
coming from. An illegal activity, when do we say I had it, it's. enough is enough.
it has been illegal all this time and it's gone now because it is in fact illegal and it
was illegal. Now in the case that Councilmember Furfaro has made reference to in
the conservation district that is exactly what they did. The twenty-five (25) years of
collecting this, what did they do? They said no more. It's all over, it's done. you
cannot in fact have vacation rentals on those lands and that's where I'm coming
from. Let's not let an illegal activity continue and of course how do you. how do
you not give credibility to the Attorney General's Office's opinion? No credibility?
State Attorney General who is in charge of the State and its Departments and they
answer one of their Department's concerns and the answer is no, you cannot allow
that.., is the answer from the Attorney General's Office so it's difficult for me to go
against the Attorney General. There are other opinions, opinions that I am not at
liberty to say at this time, some of the things that we discuss in Executive Sessions
are not something that I can discuss in the open, but I can tell you as an example,
on the Hokulia case and you talking about illegal activities that was ongoing a long
period of time and then Judge Ibarra makes a decision that. hold on. so you
know there are other areas that I look for to make my decisions on whether I feel
COUNCIL MEETING -44- May 26, 2010
it's legal or illegal or what is the right thing to do so I use those kinds of
informations to make my decisions. So I. like I say I won't. you know there's a
lot more that needs to be reviewed, I am looking at all of the issues, I will say one
thing though. I will agree with some Councilmembers who feels that there are
portions in the bill that needs to be fixed, I agree. I agree with that but the amount
and numbers of areas that is being fixed. to me has gone beyond the line of illegal
activity, I will not condone. So that's where the difference is between where I stand
and where other Councilmembers stand and I will respect the system. We have a
good system, we have a democratic system and we will go on from here and continue
and everyone will do their homework and come up with their points of view and we
will put that together and hopefully come up with something that is satisfactory to
all. So with that.
Ms. Kawahara. Mr Chair?
Chair Asing: I'd like to call.
Mr Furfaro: Mr Chair you have another
Chair Asing: Oh yes. oh I'm sorry go ahead.
Ms. Kawahara. Since it's been brought up many different times, I
would like to ask the County Attorney just for a general idea of what the weight of
the Attorney General's opinion of that we've been getting information on, and he's
here. he said he's willing to do that.
Chair Asing: Well I'm not going to make.
Ms. Kawahara. Since it's been brought up so many times.
Chair Asing: Well I'm not going to make a statement for the
County Attorney but you asked the question and I need to respect that and I will so
with that. County Attorney please.
There being no objections, the rules were suspended.
Ms. Kawahara. Thank you. If you could address some of the issues
specifically the weight of the General Attorney's opinion in relation to this kind of.
Mr Castillo Council Chair, members of the Council good
afternoon. For the record Al Castillo County Attorney You know for this Council
and for our general public the Hokulia decision by Judge Ibarra, the AG's opinion
and the opinion that I've heard many times by Mr Mel Rapozo, discussion on the
relevant statutory chapters. you know the way that I can answer that question
without breaching the Attorney/Client privilege that we have regarding the Council
and your legal counsel which is myself and my deputies, bill 2364 I echo what
Councilmember Furfaro basically had said, what we are trying to do is address the
due process issues. I don't want to venture into opining on the level of legality that
it is because it does expose the county in that regard but I am concerned when
Councilmembers discuss their opinion regarding any statutory provision then that
is. I'm not saying that you cannot state your opinion on the record, however, you
know I do advise my clients just to be cautious about what you say regarding your
opinions of the law because I don't want such to be held against us if your legal
county ends up in court and what we say in public is held against us. But I would
like this council and the general public to know that we have extensively reviewed
Hokulia, reviewed the Attorney General's opinion, reviewed the necessary laws and
all of that has been and can be further discussed in Executive Session so we know
COUNCIL MEETING -45- May 26, 2010
exactly what the AG's opinion said and how it can be reconciled, compared, and
contrasted to what you want to do regarding bill 2364 and that's the best that I can
answer it.
Ms. Kawahara. Thank you. I appreciate some light.
Mr Castillo: Anymore questions?
Mr Furfaro: I have
Chair Asing: Go ahead Councilmember Furfaro.
Mr Furfaro: This is not a question. you know I have great
respect for the Chair in place and I've been with the Chair now seven (7) years, so
through some challenging policies and I also serve on the Council with Mr Rapozo,
I just wanted to thank the County Attorney for making reference to our need to
follow due process of law versus comments that might have implied something
illegal. So thank you for that clarification on the stand. And I hope you understand
my point. I want to make sure that we turned every stone this time so thank you
Mr Chair
Chair Asing: Yes.
Mr Furfaro: And I do want to say I do have great respect for
your leadership but on this one maybe you and I look at it differently Thank you.
Mr Castillo: Thank you.
The meeting was called back to order, and proceeded as follows:
Chair Asing: Thank you. Any further discussion? Yes
Councilmember Chang.
Mr Chang: Thank you Mr Chair I want to ask you Chair
humbly I actually need more time of this decision. I know we discussed it for a long,
long time but there's a lot of history that's going on here and like we say fifty
percent (50%) here, fifty percent (50%) there, there's a winner and there's a loser
and it's like flipping a coin. But I believe I need more time to make a. make
myself a decision that I can live in peace.
Chair Asing: Ali. let me. boy that's a little tough question for
me. and the reason why I say that is process. Let's talk process a little bit. The
normal process for a bill is to go through the First Reading process. First Reading
process really means it's a technicality In other words if we want to discuss this
bill in its entirety, full discussion, full investigation, full knowledge of what we need
to make a decision, it can only happen if it passes First Reading because when it
passes First Reading here's what happens. The first thing that happens it goes to
the public for the public to comment so now we start to get this information, we get
the public saying this is wrong, this is right, this is no good, this is good. so we get
all the public information, then after we get the public information, we also send
information to the Departments, the Planning Department, other Departments for
more information. now we get that information, so we get all this information
through that process. then it comes back and it goes to the Committee that
handles this. On the Committee level again same thing happens, we get the public
involved, we get Councilmembers involved, we get the Departments involved and
the discussion goes on and on. And from there the decision is made. So you know
that's really the process. And so it's difficult for me to say you know you need a
COUNCIL MEETING -46- May 26, 2010
little more time, yes you need a little more time. granted. it's not easy but if you
look through at least that process, you will get all that information that you're
looking for
Mr Chang: That's what I was asking for
Chair Asing: You know so that's really my answer to you. Now
in my case I'm going to vote no, I said I was going to vote no, I have all kinds of
information available to me today That I've had for years and years. So I have
most of my information already And with all the information that I have I have
come to the decision and conclusion that it is wrong, it should not happen, it's an
illegal activity as far as I'm concerned. So you know I would suggest going through
the First Reading process although like I said I won't be voting for it only because I
feel so strong that I have enough information for me to say I don't even want to go
there because I think it's wrong.
Mr Chang: And respectfully I understand and I don't have the
history and I need to clarify a few questions that I have and I'd like to be able to
read about it and study about it and that's how I feel that that is what I need to do
to give my vote of yes or no. Because when I give a vote I want to vote with what I
know and vote from my heart so that's why I'm respectfully saying that, I don't have
the history and it's not an easy subject listening to both sides as I said because like I
said it's fifty/fifty (50/50) so, I understand. Thank you.
Chair Asing: Thank you. With that Councilmember Kaneshiro
did you.
Mr Kaneshiro. Well actually I was going to speak about what you
talked about. Basically this is a process whether we vote yes or no at the end of the
bill is a whole different discussion. What I see here is that we need to setup a
process in which is the public hearing, schedule public hearing on the 23rd at such
time it will create the discussions back and forth also from the community, also
from the people involved and after that we will sit down in Committee and make
decisions. So to not to move this along to that point, to me is senseless because
basically what we're saying if we receive this right now, it won't even move through
that process, nobody will have the opportunity to speak on this issues, we won't
have opportunity to go into Executive Sessions with the Attorneys to discuss some
of the recommendations that findings that came from the Attorney's Office, this is
the process so I'm ready to call for the vote and set this process in motion.
Mr Furfaro: With that Mr Chair if I can be recognized.
Chair Asing: Sure.
Mr Furfaro: I did approve a motion to be approved with
scheduling a public hearing with the second on June 23 and I too would like to call
for the vote.
Chair Asing: Thank you. With that roll call please.
The motion passage of proposed draft Bill No. 2364 on first reading was then
put, and carried by the following vote.
FOR PASSAGE. Bynum, Chang, Furfaro, Kaneshiro, TOTAL - 5,
Kawahara,
AGAINST PASSAGE. Asmg, Kawakami TOTAL - 2,
COUNCIL MEETING -47- May 26, 2010
EXCUSED & NOT VOTING None TOTAL - 0
Chair Asing: Thank you, motion carried. What I'd like to do is
I'm going to move the next bill to the end of the agenda. With that can we have the
next item please.
Mr Nakamura. On page seven (7) of the Council's agenda we have
Bill No. 2348, Draft 1.
BILLS FOR SECOND READING.
Bill No. 2348, Draft 1 - A BILL FOR AN ORDINANCE AMENDING
CHAPTER 19, ARTICLE 3, SECTION 19-3.2 AND SECTION 19-3.3 OF THE
KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO PLAYING FEES
AND REGULATION OF PLAY AT THE WAILUA GOLF COURSE
Chair Asing: Peter? My
Mr Chang: I think we skipped the Farm Worker
Chair Asing: So you're on Bill No. 2348 right now
Ms. Kawahara. He moved it to the end.
Mr Nakamura. We're at the top of page seven (7) Bill No. 2348,
Draft 1.
Chair Asing: Okay Can I have a motion to approve?
Ms. Kawahara. Wait what are we on?
Mr Furfaro: 2348.
Chair Asing: Can I have a motion to.
Mr Furfaro: Move to approve.
Ms. Kawahara. Second.
Mr Furfaro moved for adoption of Bill No. 2348, Draft 1, on second and final
reading, and that it be transmitted to the Mayor for his approval, seconded
by Ms. Kawahara.
Chair Asing: Thank you. I believe we have an amendment so
can someone make a motion to amend as circulated.
Mr Furfaro: The amendment came by Mr Chang and I will
make that motion as circulated.
Chair Asing: Mr Chang would you like to explain your
amendment.
Mr Chang: Yes thank you. Well first of all basically Bill No.
2348 we're just doing a housekeeping type amendment, the definition requires a
person to provide proof of residency through either a Hawaii resident State income
tax return or through voting in the most recent general or primary election in
COUNCIL MEETING -48- May 26, 2010
addition to a Hawaii drivers license or State ID, the last sentence in the definition
states the income tax return shall bear the county of Kauai address, this is.
Mr Furfaro: Excuse me Mr Chang. it was my error I moved to
accept your amendment and I said. I made the motion and when the Chair
recognized you, I had not have a second.
Chair Asing: Oh I thought we had a seconded.
Ms. Kawahara. Second.
Mr Furfaro moved to amend the bill as shown in the Floor Amendment
attached hereto (Attachment 1), seconded by Ms. Kawahara.
Chair Asing: I thought we had a second but I.
Ms. Kawahara. This is for the amendment yeah?
Mr Furfaro: Yes.
Ms. Kawahara. Yes second.
Chair Asing: Oh okay Go ahead Mr Chang.
Mr Chang: Can I start all over
Chair Asing: No. You can continue.
Mr Chang: Okay I will continue. What does that mean strike
one (1) on me?
Chair Asing: No. No. you're doing well.
Mr Chang: Thank you. This is an inadvertent error that
should have read the income tax return shall bear a Hawaii resident because the
rate is for all Hawaii residents and not just limited to Kauai. The second
correction is in Section 19-3.2 (B) which establishes the playing fees, the seventy-
five (75) dollar and over I beg your pardon the seventy-five dollar and older age
category are called Super Kauai Seniors in the definition sections. This
amendment makes the title in the playing fee portion of the bill consistent with the
definition section by adding the word Kauai to Super Kauai senior rates. And the
second page of the amendment basically to amend Bill No. 2318, Draft 1 by
amending the definition of resident to read as the follows, resident means a person
who has filed a Hawaii resident state income tax return form N-11 or form N-13 for
the most recent tax period, voted and voted in the most recent general or primary
election in the State of Hawaii or
Ms. Kawahara. And.
Mr Chang: I beg your pardon. and possess a valid Hawaii
drivers licenses with a Hawaii address on it or a valid State of Hawaii
identification card with the Hawaii address on it and all active duty military
personnel stationed in Hawaii. Persons who are not residents are also defined and
deemed as nonresident. Nonresident, the income tax return shall bear a Hawaii
address and on the bottom we did highlight the Super Kauai Senior and those
would be the changes in the amendment.
COUNCIL MEETING .49- May 26, 2010
Chair Asing: Thank you. Councilmember Bynum.
Mr Bynum. I appreciate this amendment Mr Chang and I just
wanted to take this opportunity to clarify that. in this current wording voting or
having a tax return is a provision to establish residency, it's not. it doesn't require
voting because it's an or
Mr Chang: Correct.
Mr Bynum. I just wanted to clarify that.
Chair Asing: Okay any further discussion on the amendment? If
not all those in favor say "aye"
Councilmembers: Aye.
The motion to amend Bill No. 2348, Draft 1, was then put, and unanimously
carried.
Chair Asing: Motion carried. Now we're back to the main motion
as amended which is on the bill itself 2348 as amended, any further discussion? If
not... yes? I'm sorry go ahead.
Mr. Chang: Thank you. I just wanted to add that I think
within this amendment we diluted that the fact that we're going to be dropping the
tourist rate to forty-eight dollars ($48 00), I think it's a really good thing. I had a
opportunity to play at the Wailua Golf Course recently this past Saturday and it is
a very, very spectacular course. I believe that the visitors can now Okay in
relationship to the bill, the rate. we dropped the rate down to forty-eight dollars
($48.00) 1 believe it helps out the pro shop a lot, I believe that helps out the
restaurant and the lunch snack shop and playing the golf course it is.. I haven't
played the course for over ten (10) years and I just want to say it's a. over ten (10)
years.
Mr Bynum. Wow
Mr Chang: True statement and I couldn't remember the golf
course, it's very, very well maintained, it's a very, very beautiful course, the views
and vistas are spectacular, and I know that the visitors and residents are certainly
getting their money worth. So I really appreciate the fact that we can accommodate
the visitors but also help out the venders out in Wailua Golf Course, thank you.
Chair Asing: Thank you. Any further discussion? If not roll call
please
The motion for adoption of Bill No. 2348, Draft 1, as amended herein, on
second and final reading was then put, and carried by the following vote.
ADOPTION- Bynum, Chang, Furfaro, Kaneshiro,
Kawahara, Kawakami, Asing TOTAL - 7,
AGAINST ADOPTION None TOTAL - 0,
EXCUSED & NOT VOTING None TOTAL - 0
Chair Asing: Thank you. Next item please.
COUNCIL MEETING -50- May 26, 2010
Mr Nakamura. Next bill for Second Reading is Bill No. 2350,
Draft 1.
Bill No. 2350, Draft I - A BILL FOR AN ORDINANCE AMENDING
CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO ZONING
DESIGNATION IN WAIMEA, KAUAI (C Ahko Inc., et al., Applicant)
Mr Kaneshiro: Move to approve.
Mr Bynum. Second.
Mr Kaneshiro moved to approve Bill No. 2350, Draft 1, seconded by
Mr Bynum.
Chair Asing: What I'd like to do is open it up to the public at this
time, is there anyone in the public who wants to speak on this item?
Mr Nakamura. Mr Chair, we have two (2) registered speaks Julia
McGovern, followed by Linda Harmon.
Chair Asing: Okay Linda please
There being no objections, the rules were suspended.
LINDA HARMON Can we hear the Attorney's argument first?
Chair Asing: Pardon me?
Ms. Harmon. Can we hear the Attorney's argument first so we
know how to respond?
Mr Furfaro: Excuse me.
Chair Asing: Excuse me come to the mic so I can hear you.
Ms. Harmon. We went first last time, we'd like the Attorney to go
first this time so we can hear his arguments are and then we can.
Chair Asing: Ah you know I. I don't want to start getting into
logistics, you requested to speak.
Ms. Harmon. Yes.
Chair Asing: And you want to speak. so why don't you just go
ahead and do it. Okay? You want to speak?
Ms. Harmon. She's. I think.
Chair Asing: She wants to go first? Okay that's fine.
JULIA MCGOVERN I guess it is good afternoon. My name is Julia
McGovern. And I was hoping to hear from Walton Hong because it was concerned
that it might temper any comments that I have but what's. so what I would like to
do right now is to read some eloquent testimony from the Seirra Club Executive
Committee of the Kauai Group of the Hawaii Chapter Dear Planning Committee
Chair Furfaro and Councilmembers. We strongly urge the council to deny this
zoning amendment which intends to up-zone a parcel designated Open District to
COUNCIL MEETING -51- May 26, 2010
Residential R-4. Up-zoning would be contrary to the General Plan which looks to
preserve and protect the rural character of Kauai. More importantly, parcels that
are zoned Open often have constraints due to flooding, slope, or other challenges
detrimental to development. This is true for the Ahko parcel in the floodplain of
Waimea, adjacent to an active drainage canal.
Article 8, Section 8-8.1(b) states that the purpose of the Open District is to
preserve, maintain or improve the essential functions of physical and ecological
systems, forms, or forces which significantly affect the general health, safety and
welfare. Historically, flooding is already a problem for the immediate neighbors
and increasing density will put them at greater risk.
Article 8, Section 8-8.1 (c) also states that the purpose of the Open District is
to define and regulate use and development within area which may be potentially
hazardous. Bordering this parcel is Kealii Ditch, a waterway known to overflow
Increasing density and impermeable surfaces on this property will clearly
exacerbate flooding.
The applicant's representative, Mr Hong has often stated "it isn't fair" for
this parcel not to be granted the same zoning as neighboring parcels. However, up-
zoning would be unfair to the surrounding community When this issue came before
you in 2006, 130 residents signed a petition against up-zoning to R-6. The
difference between R-6 then and R-4 now, is negligible
This parcel is designated by FEMA as a flood hazard area that is also subject
to areas of ponding water Its Open District zoning has been in place for several
decades and throughout that time, the re-occurring flood and drainage hazards
indicate that current zoning is appropriate The landowner is certainly allowed use
of the property within the current zoning parameters.
It is your responsibility to direct development away from flood-prone areas.
There is no compelling need to up-zone this property Please vote no on Bill 2350 to
deny this zoning amendment. Respectfully submitted for the Sierra Club Executive
Committee Kauai Group of the Hawaii Chapter On a more personal level, I also
respectfully request you to vote no on this amendment. on this bill. Mahalo.
Chair Asing: Thank you. Can we have the next speaker please?
Ms. Harmon. Thank you for your time Council. My name is
Linda Harmon. And it has been suggested that the parcel in question was made
Open Space in the General Plan so that the county could expand the park at a later
time. It's been said that even if there were a want for park expansion, there is no
money for park expansion. One reason this needs to be left Open is there is bound
to be a need for park expansion in the future with the way homes and the
populations are going up in the Valley, in Waimea Valley I'm speaking of. There
may not be money to buy the land, that doesn't mean there will not be money in the
future. We were told the other day that a purpose for, the consideration for
expansion of the park needed to be proposed. We submitted a purpose asking for a
wetland community garden orchid. And then we were told it was too late. So one
reason for keeping it Open is the need for a larger park at a later date Another
reason for keeping the parcel Open is the issue of flooding; the county has no legal
obligation to the Ahko family to be fair about the zoning. In fact as the official
letter of the Sierra Club authored by Rayne Regush says it is unfair to the rest of
the neighbors to build more houses on this acre lot. It will increase the potential for
flooding in this neighborhood. I was told that the Engineering Department would
address the problem of ditch backing up during heavy storms; the problem is the
ditch water backs up and can't be fixed. The problem is the ditch water backup
COUNCIL MEETING -52- May 26, 2010
cannot be fixed. If there is a storm during high tide, the gates to the levee can't
open to release the ditch water By building there we increase the risk of flooding
from hard surfaces like roofs, roadways and park parking.
(3 minutes)
Chair Asing: Okay Go ahead continue.
Ms. Harmon: The water has to go somewhere. Of the request for
permission neighbors that Alike received, for the rezoning. seventeen (17) of the
fifty (50) residents gave permission, approximately 1/3 notified, that is no way a
majority consensus that this building shall proceed. Because the levee is no longer
certified, homeowners insurance won't cover flooding. The neighbor has to shoulder
more expense for flooding. The county must rule on the good for the community
rather than fairness to one (1) property owner who wants what the others in the
neighborhood have in the way of zoning. Thank you.
Chair Asing: Thank you. Is there anyone else who wants to
speak on this item? Yes?
(inaudible)
Chair Asing: We can get a portable mic to you.
DINO ALTIMORI. My name is (inaudible) Altimori. Most people here
know me as Dino. I live right on the ditch or the stream or whatever you want to
call it. And I've been there during numerous flooding situations. One thing I do
know is that we're not prepared to deal with the flooding of this ditch. I tried to find
it but I couldn't. we have a picture of my son rowing a canoe in my front yard a
couple years ago when we had this big heavy rain. The area is not prepared for
heavy rains and flooding. What you do is up to you but it seems to be a liability
here that we're not addressing and the liability is um. what do you do with all this
water when it comes into your house? Somebody got to deal with it and as the
previous speaker said. there seems to be a problem with flood insurance which I
wasn't aware of, I thought I had flood insurance. But I think that needs to be taken
into account and if nothing I have this decision delayed to a later date so it can be
addressed more properly I'll take any questions I wasn't prepared to speak so I'll
be glad to answer any questions anyone has.
Chair Asing: Councilmembers any questions? No? Thank you
very much. Mr Taylor
Mr Taylor- Chair, members of the Council my name is Ken
Taylor I want to address a couple issues on this bill. First of all in item 1(a) where
you talk about deed restrictions and the potential nuisances raised by activities at
the park. I think the deed restrictions should also refer to the potential of the
flooding problems so that new homeowners will be made aware of the potential
problems that they could encounter Second of all I would like item 1(c) and along
in the third paragraph. line of the section and just. along the natural drainage
ditch. Now I went down and picked up a map of the whole area but. a dug out
some individual maps but on one map of an area below the parcel in question and
this map was dated January 26, 1972 the ditch, the natural drainage ditch is
referred to as stream. Now there's big differences between ditches and streams and
how they're dealt with. When that parcel was subdivided in January 94 again it's
referred to as a stream and so I think before you move forward with this because I
certainly believe that streams are dealt with much differently than ditches and so I
think that has to be clarified before you move forward with this process. The other
COUNCIL MEETING -53- May 26, 2010
thing after getting the map and looking at it and talking with some of the
neighbors, I realized that along the North side of the ditch, there is a current
easement, it's ten (10) foot. When I talked with the maintenance Department at
Public Works they told me that it was not adequate for them to get equipment in
there with that particular easement and that they couldn't put men in this ditch
because they got very sick and I think even Julia and this gentleman Dino indicated
that yes indeed if you get down in that ditch, you're going to get sick.
(3 minutes)
Mr Taylor So my feeling is that. a new easement along that
opposite side of the ditch or on this property side to the ditch should be included in
this subdivision parcel so that Public Works can properly get the equipment in
there that's needed to maintaining and cleaning the ditch. The reason why I asked
about it was because when I visually looked at the ditch, it's overgrown, it's a mess
and if you can't get manpower down in the ditch, it's a health and safety issue that
has to be addressed and there has been no discussion at that and I really believe
that to move forward with this subdivision of this property without including an
adequate maintenance easement to address this ditch problem is very wrong; I
mean it's been brought to your attention that there's.. when the tide is high and
the right rain event takes place there's no place for the water to go and I think
that's an issue that needs to be addressed in the future. What is the county going to
do for this area to resolve this kind of problem? Thank you.
Chair Asing: Thank you. Is there anyone else who wants to
speak on this item? Joe.
JOE ROSA. For the record members of the Council, Joe Rosa.
I've been hearing this thing going on, tossing around up and down. it seems the
controversy is the ditch. Now from what I worked here and lived here ditches were
provided for the taro growers in the old valley system, under the old Hawaiian days.
Now if there's no more use for that ditch anymore to supply water which is basically
the intentions of ditches throughout the valleys, you go every valley there were
kuleana ditches were providing water for the old Hawaiians. Now if there's no use
for that ditch to bring water to the taro growers or the rice growers, just close it up
But if that ditch is there for drainage. well that's something else but I never heard
it being used for drainage, this just drains into the valley So if that's the problem,
correct it, simple as that. Don't use it as something that to prevent someone to
come in and use the land. And anytime people build within the flood zone area, it's
their problem, they either have to raise it off the ground when they grant to
permits. They tell you sometimes you have to raise it eight (8) feet, you raise it
eight (8) feet if you want to build it in the flood zone area. So it's up to the
individuals, the Ahko's has that property, they're not planting rice anymore, they
don't need that ditch down there that far down already, probably they can cut up
way up mauka. Simple as that. So don't penalize someone that has owned land for
a long while and if that ditch continues to be a flooding problem, close it. There's no
farmers, no taro growers. Simple as that. Thank you.
Chair Asing: Thank you. Is there anyone else who wants to
speak on this item? Walton.
WALTON HONG Thank you Mr Chairman and members of the
Commission, for the record my name is Walton Hong representing C. Ahko Inc., the
landowner I guess just a few words and I'll be available to answer any questions
since most of the issues, discussed has already been rehashed before. I don't agree
with the statement made that the county have an obligation to be fair I think the
county has an obligation to be fair, to be reasonable, to be logical. This property,
COUNCIL MEETING -54- May 26, 2010
the rezoning is consistent with the General Plan. The record is very, very clear
there's no question about it. The only reason why this property was not zoned
residential R4 like everybody else around it was for the possible expansion of the
park. The record is very clear also that there is no plans for the expansion of the
park, there is sufficient parks in the Waimea area that can be expanded. So all
we're asking for is treat us like everybody else. Now we've been blamed for the
flooding, I think if you look at it the flooding does not start from. higher lands
going down lower, it starts from the river mouth backing up This property is above
or higher than the lots that are being flooded that closer to the river mouth. How do
we get blamed because the water cannot go to the ocean, are they saying well it's
your problem because somebody messed up whatever the facts maybe why the river
mouth can't be open but let that be an engineering problem, we have to meet certain
requirements under FEMA, under flood control standards. If they say one of the
other speakers say if they wants us to build above a certain height limit, we will.
just like everybody else, that's all we're asking. Now is there a need for a additional
easement, that is correct there already an already existing ten (10) feet easement on
the other side of the ditch for the purpose I assume for clearing or maintaining of
the ditch because that easement is (inaudible) for the County of Kauai. Why do we
need another ten (10) foot easement on the other side, I mean all it does is penalizes
us when there's already an easement existing for that very purpose I would also
add that if we take ten (10) feet the way the shape of the lot is, it wipes out a
significant portion of the property because you have side yard setbacks and now you
got a lot that shapes like that and you take ten (10) feet from here, and you take
five (5) feet from here and pretty soon you have a very narrow unbuildable area, is
this fair to the Ahko's when there is no need for additional easement on the other
side of the ditch. With that I'll end and ask for your favorable consideration, I'll be
glad to respond to any questions that you may have.
Chair Asing: Thank you. Is there anyone else who wants to
speak on this item? Mr Taylor
(inaudible)
Chair Asing: I thought we did but I am not sure and with that.
only three (3), go ahead Mr Taylor
Mr Taylor Thank you Chair, members of the Council my name
is Ken Taylor The reason. the reason the need for the additional easement is in
reference to the discussion that I had with Public Works Department is that the
current easement is inadequate for them to get in there to service this ditch. In
order to get the equipment and get in there and take care of maintaining this ditch,
that they cannot man in the ditch, they have to build to get the equipment in. I was
told that before the horses were on the property and the property was open, they
were able to just drive in there and take care of servicing the ditch. If you're going
to restrict them from being able to get equipment in, how do you expect them to
maintain this ditch and you can't put the man power the men in the ditch so you
have to consider the safety health issue and I do really believe rather than moving
forward with this today, get Public Works down here and discuss this situation so
that you have the proper information before you move forward with it. Thank you.
Chair Asing: Thank you. Is there anyone else? Did we give her
six (6) minutes? Linda?
(inaudible)- Three (3)
Chair Asing: Okay Come up
COUNCIL MEETING -55- May 26, 2010
Ms. Harmon. I. my name is Linda Harmon and I want to say
that the ditch and its backing up has been a problem now for twenty (20) years and
it's been exacerbated since the trees were taken out of the lot. The county engineers
want to tell you that they can fix this problem but it hasn't been fixed in twenty (20)
years since this. since Julia was there. There's been the problem with this ditch
backing up Additional water off of those hard surfaces created by more homes
above the place where the flooding is doing. or is going on. is going to add more
water to the flooding. The county should fix the ditch before this is ever rezoned.
To you know to tell you that this can be fixed after twenty (20) years of flooding and
for that matter it's increased more recently in 2009 they had really high waters so
it's not a good idea to pass this bill. Thank you.
Chair Asing: Thank you. Is there anyone else? If not, I'd like to
call the meeting back to order We have a motion and a second on the floor for
approval. With that any further discussion? Councilmember Furfaro.
The meeting was called back to order, and proceeded as follows:
Mr Furfaro• Thank you Chairman and other members of the
Council. I want to let you know and I do want the County Attorney to pick up on
this comment along with the County Clerk because I will be sending correspondence
over to Public Works. I had requested information and had to seek it on my own
regarding water access and management of the ditch easement. The ditch
easement exists, it exists with standard ten (10) foot access along the ditch. The
perception of it not being enough could be of concern but the reality for either a five
(5) foot wide bobcat or a seven (7) foot backhoe, there are access points in easements
as well but when I viewed this area it is unfortunate and I need to share this with
the County Attorney that people have assumed use of those easement areas and
they need to be revisited. I also want to go on record noting that even as I made
inquiries with the Building Department about even if an easement existed, I did not
hear back from them and I had to do this by other means to get the information.
The fact of the matter that you know in our recent Committee Meeting the choice
was they were looking for the potential density of eight (8), we successfully
negotiated back the four (4) plus two (2), I think was an accomplish (inaudible) of
the Council that was based on the feedback that we got from them. And it also in a
follow up to Councilwoman Kawahara's question which was a good one, the reduced
density reduces the hardening of the surfaces because there's no additional
placement of the building envelope. I think we done that by negotiating
successfully the reduction of the hardening of the surfaces. The Parks Department
indicated that there were four (4) regional parks in the area, near this area.. and
that if there were moneys available they were going to be earmarked for
improvements to other public facilities and therefore nothing is really of immediate
need in the area. You know in the FEMA flood zone area and so forth and being
from the North Shore, I realize that disclosure is important in qualifying for buying
flood insurance. That is owners mandate but there are places where. it is one
where you can or cannot actually qualify for flood insurance depending on your area
and that is a buyer beware type of thing, it certainly been disclosed at the time of
sale but we can't mandate you know the FEMA flood insurance options because we
have so much residential that has been built in flood zones on Kauai. I do sense
that it is something that can be pursued but the standards of engineering in our
whole county are ten (10) foot easements, now if we look for fifteen (15) or twenty
(20) because. and I want to know this was never shared with me from
Engineering and that is my disappointment because I did a lot of work on this in
asking the ownership to reduce their density yet I did a site inspection on this,
flabbergasted to see that our approach to maintaining that ditch is even spraying
the other persons yard. Which isn't part of our easement. So for the County
Attorney I do want to say I'll be writing you and asking Public Works to get close to
COUNCIL MEETING -56- May 26, 2010
the mandate of managing this drainage easement because it exists and without
maintaining it, I think it gives the county some really unnecessary exposure which I
think was spoken up by the one gentleman. So it is you know the net outcome here
that there is no plan for the park expansion, the easement exists, the easement is a
standard that exists mostly through Kauai County There are constraints in the
ditch area but I don't know of any policy that implies that our people could not
address something in wetlands and I would be sending over through the County
Clerk commentary along with this map, I'll circulate it to you folks right now but if I
could have it back, a commentary to them that certainly if they disclose anything to
applicants and/or concerned citizens, they should also in advance also share that
with us. I worked on this for three (3) days and you know got the applicant to
consider a down zoning of two (2) of their additional dwelling units, capping it at
fifty percent (50%) and that was driven by not hardening the surface, the surfaces.
But the maintenance on the ditch certainly is my concern and I will be writing
Public Works. Thank you Mr Chair
Chair Asing: Thank you. Any further discussion?
Councilmember Kawahara.
Ms. Kawahara. Thank you Chair I just wanted to say that I went
down and did a site visit also and I'm having a hard time with this one so I'm not
sure, I'm not comfortable enough to vote in support of the zoning change but I do
want to say what those reasons and why people have been talking about the
parks not. the Administration not foreseeing any reason to be expanding the park
but I don't know if we've considered the fact that the Administration changes over
the years and that park and that space may come more valuable as time goes on so
to look at it in a vacuum and just say at this current time that there's no reason.
there's no plan to expand the park I think. I think it ignores the fact that it's
possible that another Administration might have plans for it for another time. The
second issue that I'm comfortable voting as a part of this is because of the. just the
paperwork that we get from the Departments based on the projects that Planning
sends out to get their statements, the Engineering Division clearly states that there
will be an increase in storm runoffs as a result as the development from Open to R4.
Whether or not this is a huge perceptible amount is probably something to be
debated but to voluntarily change from Open to R4 we do need to understand that
the Engineering Department had said that there will be an increase in storm
runoffs and the county will need to address it so we are voluntarily increasing the
need for the county to address it. runoffs. The other one is a technical issue the
third and last reason, the zoning changes. To make zoning changes, I don't believe
it says here that any how long you owned the property means you know gives you
more weight in changing the zoning nor does it say take into account we have so
many errors and that's why we need to, we want to divide up the property The
technical reason or way that you can change it is this change in the zoning map or
text shall not be made unless the change will further the public necessity and
convenience and the general welfare, I'm not sure that we have met that and I'm
sure and that's why I'm not comfortable. The fact that we have conditions I'm very
thankful that we did put more conditions on because I was very concerned about
hardening surfaces even more so I believe that that became a condition. The other
conditions do say that the property needs to work with Public Works in dealing with
already existing problems with flooding so you can't blame one (1) property for the
flooding that's already existing but to acknowledge that it's happening was
important to me. So I just want to say that it was hard to do that, to figure this out.
And I haven't gotten to the point where I'm comfortable at this time so I'm not going
to be able to support it but I believe that it will be going through today and I thank
the Councilmembers for their time.
COUNCIL MEETING -57- May 26, 2010
Chair Asing: Any further discussion? Councilmember
Kawakami.
Mr Kawakami: Thank you Mr Chair I want to draw reference to
a couple dates because you know the issue with flooding has come up in the past.
December 13, 2008 there was a flood in Waimea Valley, Waimea Town. on
December 16 I wrote a letter over to the Administration asking for clarification from
some constituents that have brought it to my attention that there are gates that are
manually operated that when they're opened the water level recedes, so based on
that, I think there's another underlying issue behind all of this that we need to take
up and I'd like to go to the Public Works Committee and ask for some answers and
solutions to this problem. I'd like to send a communication over to Public Works, I
did get an initial response and just to quote briefly on it in response to my request
on December 16 the Waimea control levee system is in thirteen (13) locations where
there are culverts through the levee for the purpose of draining the Waimea Valley
and Waimea Town. At each location the culverts are fitted with a flap gate at the
point it discharges into the river and (inaudible) gate at or before the levee. These
gates are intended to prevent the waters from the Waimea River from backing up
into the culverts and discharging into Waimea Valley and Waimea Town. The flap
gates are intended to work automatically which in this case they're not working
automatically if the river is high. While the (inaudible) gates are manually
operated and intended to be used only as a back up to the flap gates. So that being
said, I'd like to send a couple of communications out, one to Public Works asking
them for their protocol on when these (inaudible) gates are decided upon to be I
guess operated as a backup To me if a town is flooding that's a clear indication
that you know let's use our backup plan, so I just want to make sure that we're
implementing that and that the intention of these (inaudible) gates are being used.
Number two (2) it's pretty clear that a big problem is backup of Waimea River and
I've heard you know that the tide may play a roll in it but I also would like to send a
communication over to maybe DLNR who I believe is in charge of opening up the
river mouths and to see what their protocol is and how often they're opening up the
Wailua River mouth and if storms are any indication that maybe somebody needs to
go down there and start opening it up This is a problem that has occurred over the
course of twenty (20) years, I think we should be able to get these answers
immediately so if we can send those communications out, go through Public Works,
I'd appreciate it. Thank you.
Chair Asing: Thank you.
Mr Furfaro: Mr Chair may I answer (inaudible)
Chair Asing: Sure go ahead.
Mr Furfaro: Mr Kawakami since.
Chair Asing: Excuse me?
(BC)- I have to go to the bathroom.
Chair Asing: Okay We're going to have a short recess.
There being no objections, the Committee recessed at 12:54 p.m.
The Council reconvened at 2:12 p.m., and proceeded as follows:
Chair Asing: This Council is now called back to order, with that
Mr Clerk can we have the next item please.
I
COUNCIL MEETING -58- May 26, 2010
III
Mr Nakamura. Council Chair we're back on page seven (7) of the
Council's agenda, I believe we're still finishing up work on Bill No. 2350, Draft 1.
Chair Asing: Thank you, with that Councilmember Furfaro.
Mr Furfaro: Thank you for recognizing me again I believe we're
back in session and I have concurred with Councilmember Kawakami, he is in
agreement that our three (3) concerns regarding the repair maintenance upgrades
as well as the interaction with the DLNR on the opening of the Waimea River
mouth and the other particulars that he wants to have further discussion on in the
Public Works Department would be a joint communication to the Administration
from both of us.
Chair Asing: Thank you. Is there any further discussion?
Councilmember Bynum.
Mr Bynum. Yes regarding this bill I made my comments when
it was in Committee but I just wanted to acknowledge that there are issues related
to flood zone in the Waimea and the Hanapepe area that this council will be
examining and addressing in greater detail. To the best of my understanding the
flood issues in this particular neighborhood are primarily related to those larger
issues and moving forward with doing the amended zoning on this lot is not going to
be a very significant contribution to the flood problem there. I didn't say no
contribution but fairly insignificant given the larger issues and so I will be
supporting this bill.
Chair Asing: Any further discussion? If not, roll call.
The motion for adoption of Bill No. 2350, Draft 1, on second and final reading
was then put, and carried by the following vote:
ADOPTION Bynum, Chang, Furfaro, Kaneshiro,
Kawakami, Asing TOTAL - 6,
AGAINST ADOPTION Kawahara TOTAL - 1,
EXCUSED & NOT VOTING None TOTAL - 0
Chair Asing: Thank you. Next item please.
Mr Nakamura. Next matters. we're on page seven (7) of the
Council's agenda. We're on. I'm sorry oh okay I'm sorry Mr Chair if we could
go back to page six (6) of the Council's agenda under Resolutions, we're on the
Operating. on the Fiscal Year 2010-2011 budget bills. The first is the Resolution
No. 2010-33, Draft 1.
Resolution No. 2010-33, Draft 1, RESOLUTION ESTABLISHING THE
REAL PROPERTY TAX RATES FOR THE FISCAL YEAR JULY 2, 2010 TO
JUNE 30, 2011 FOR THE COUNTY OF KAUAI. Mr Kaneshiro moved to approve
Resolution No 2010-33, Draft 1, seconded by Mr Chang, and carried by the
following vote:
APPROVAL. Bynum, Chang, Furfaro, Kaneshiro,
Kawahara Kawakami, Asing TOTAL - 7,
AGAINST APPROVAL. None TOTAL - 0,
EXCUSED & NOT VOTING None TOTAL - 0
Chair Asing: Motion carried. Next item please.
COUNCIL MEETING -59- May 26, 2010
Mr Nakamura. Next matters we're back on page seven (7) of the
Council's agenda Bill for Second Reading this is Bill No. 2356, Draft 1.
Bill No. 2356, Draft 1 - A BILL FOR AN ORDINANCE RELATING TO THE
OPERATING BUDGET AND FINANCING THEREOF THE FISCAL YEAR
JULY 1, 2010 TO JUNE 30, 2011. Mr Chang move for adoption of Bill No. 2356,
Draft 1, on second and final reading, and that it be transmitted to the Mayor for his
approval, second by Mr Kaneshiro.
Mr Chang: Move to approve.
Mr Kaneshiro: Second.
Chair Asing: Any discussion?
Mr Bynum. I'm sorry
Chair Asing: Yes.
Mr Bynum. I got a little distracted, we're on?
Chair Asing: 56.
Mr Bynum. So any comments about the budget (inaudible - mic
off)
Chair Asing: Go ahead Councilmember Bynum.
Mr. Bynum. I want to address my concerns regarding about
budget process all at once right now I didn't discuss the tax rates but if it's okay
with the Chair, I just want to make one (1) statement regarding budget issues.
Mr Kaneshiro: Sure.
Mr Bynum. First of all I would like to appreciate how hard our
staff works during budget time and all Councilmembers and how intense that effort
was here at the Council Services and also from the Administration who works very
hard and diligently in response to questions quite well from the Council regarding
all the matters related to the budget. By and large we had consensus of the long
run about most of the issues with the exception for myself and I'm only speaking for
myself for a couple of. and a couple of areas. And primarily having to do with the
State of the Counties.. the fiscal state of the county and the need or lack of need in
my opinion to do furloughs. Employee furloughs are a very dramatic move in my
opinion for the county to make. Furloughs are not a very efficient way for us to cut
our budget because I think we've all read the studies that say for every dollar that
you think you're saving in the long run you actually saved considerable less. But
the county has also done very systematic and I think good work at addressing the
economic situation that we're in and reducing our expenses, our workforce is down
considerably, our county budget is down considerable, the expenditures we make
are down and that's appropriate because our revenues are also down and that is
something that's being experienced all over the country However we came into this
situation in a pretty strong place compared to say some of the other counties in
Hawaii because and I have supported this since I've been on Council (inaudible)
very conservative approach to the county's fiscal matters. I made a presentation
during budget that was fairly lengthy and I don't intend to do that now but I do
have two (2) slides that I want to show from that presentation that includes some
COUNCIL MEETING -60- May 26, 2010
new data so I don't even think we need to turn the lights down because I'm going to
be as quick as I can. I also have handouts that Councilmembers or anyone else
would like of these two (2) slides. This first slide is the county's general fund
revenue and expenditures for the last ten (10) years, the very last bar are estimates
of how we will end this fiscal year and those numbers are based upon information
provided by the Finance Director But if a close examination of this chart, if you
look at the blue graphs, that is the general fund revenues in any given year, the red
bars are the actual expenditures with the exception of this 2010 which are
estimates. And what you can see is that you know in most years with the exception
of 2002 our revenues exceed our expenditures. that's also a good thing because we
have to have a balanced budget. But during the years of 2005 - 2008 the revenues
really far outceded the expenditures and as a result our fund balance, our un-
appropriated or unreserved fund balance grew considerably during those periods of
years. And now if you follow that graph down you'll see in the blue bar that the
revenues indeed are coming down and that our expenditures are coming down but
even last year when we had a bare bones budget that had fifty-one (51) dollar
funded positions and we cut travel budgets and we cut people's salaries. because of
the diligence of the Administration and very carefully looking at expenditures, even
with that bare bone budget we're estimating that will be a five million dollar
surplus or more revenue than expenditures in the year But you know our county
expenditures have gone down from a hundred and twelve million and this is in the
general fund to ninety-eight million and I got to credit the Administration and this
Council for you know proactively addressing the fiscal issues that we have. But this
has a result and what is kind of our prudent reserve, so the next slide on this has to
do with that fund balance.
How much unreserved funds if we can change that slide. are we dealing
with because a general rule of thumb that I've been told and heard from many
sources is that a conservative fund balance for a community is fifteen percent (15%)
that keeping a fund balance of fifteen percent (15%) is wise and prudent and make
sure that we have funds available for difficult situations. So don't know why that
bar is not coming up but fifteen percent (15%) is a conservative kind of fund balance
that we would want to. I think keep at any cost. It's also true that in difficult
times that fund balance may go down to eight (8) or nine percent (9%) but if it goes
below that, you're really it's really scary, right? And so I've been very supportive
of the county keeping a strong fund balance so if you look at this chart in 2001 the
fund balance was twenty-three percent (23%) are pretty healthy and over the next
few years it hovered between sixteen (16) and twenty-three percent (23%) but in
those years when there was a large run up in assessed values on the and the county
capped homeowners at two percent (2%) but other areas of revenue went up
considerable because assessed values went up, the rates didn't change necessarily,
accordingly and so by the year 2008 we had a thirty-one (31) fund balance.
Thirty-one percent (31%) is too high for a community to justify having in my
opinion, that's when you need to say wait a minute we need to cut taxes and keep
this money in our local economy and give it back to consumers or at least have a
strong public purpose to expend those funds on behalf. and services on behalf of
our rate payers. And so that's why I said we came into this crisis, fiscal crisis. in
a better place to weather the storm than other counties because currently Honolulu
fund balance is ten percent (10%), the Big Island is around ten percent (10%), Maul
is also had a healthy fund balance in the twenties (20's), high twenty percentages
and this year they are doing one (1) furlough day with their employees, not two (2)
and I argued during the course of the meeting that we should limit our furloughs to
one (1) day because what that means is for our employees is that they are having
close to ten percent (10%) take home pay cut from their that's for some employees
hundreds of dollars every paycheck less that they're taking home. It's about three
point one million dollars over the course of the year directly out of our employees
COUNCIL MEETING -61- May 26, 2010
paychecks. Now that is three point one million dollars that would be spent in the
local economy because if somebody cuts your take home pay by ten percent (10%) or
by three hundred or four hundred dollars a month, your rent doesn't go down, your
gas bill doesn't go down and so what you don't spend is usually you know what
gives. I know in my family, my pay's going to go down twelve percent (12%) I
believe we're going to have to go out eat less often, delay purchases in the local
stores, and so this is going to have an impact on the larger economy and I believe
unnecessarily We already moved as a county to cut our expenditures pretty
dramatically so the last bar if you look at the next few years 2008, 2009, 2010 yes
we're using that fund balance and I think it's appropriate it come down either by
returning those tax revenues back to the citizens or by using them to weather the
storm for instance. So by the time that we finish 2010 the estimates are and that's
the fiscal year, that we'll have twenty-seven percent (27%) fund balance but what
if. what if we would have eliminated one (1) furlough day and not put such a large
burden on our employees and not pull that many dollars out of the local economy
then our fund balance would be twenty-six percent (26%) because it cost roughly one
point seven million dollars if we were to chose to put, to eliminate one (1) furlough
day I think we are making this decision about furloughs not for fiscal reasons but
for political reasons and it's not necessary, it's not a choice that Maui made. We did
this unlike other counties by not raising any tax rates.
I am going to vote for the budget today because it's a big package and we all
had our say, this is my last opportunity to address it and I did make a motion to put
to use some of this fund balance to eliminate one (1) furlough day because I believe
that would be the best interest of our community for the reasons why I just stated.
The other thing I want to say about the budget process is about the two percent
(2%) cap, if you read our fund.. if you read our budget report that our staff has put
out, I agree with almost every word of it, the one area I have some problems with is
the concept that the two percent (2%) cap is a, is a tax relief program okay?
Because the reality is our homeowners will pay two percent (2%) increase in taxes
this year under that program so just to say this real graphically if you were. if
your assessed value was here and you got capped then we said okay this is your tax
rate based on your assessed value and it's not going to go up more than two percent
(2%) a year, even though the assessed value rose and so we can calculate that and
said geeze if we left the rate the same and we had taxed you at this rate without the
cap, you'd pay this much money right? But you're only going to pay two percent
(2%) more because of the cap Now when the assessed values were escalating that
protected the consumers right? They knew and they could rely on no more than two
percent (2%) tax increase but now the assessed values is going down but you're still
going to pay two percent more unless that assessed value falls below where you
started with the cap which isn't the case for very many people. So right now the
two percent is protecting the county's revenues right? And that fact is that most
homeowners in that category will pay a two percent (2%) increase while other tax
categories their assessed value has gone down, we just voted to keep the rates the
same so they will pay less in taxes, the homeowners will pay most of them, two
percent (2%) more this year That's not a. but I just don't think it's fair to call this
gap and say oh if we would have taxed you at the rate without the cap you would
pay "x" amount and then call that tax relief, I don't think that's tax relief, if we just
say well we could have taxed you more but we didn't so the difference is tax relief. I
don't think so. So I just wanted to make that point and you know those were my
two (2) big issues with the budget this year, the rest of the issues, we discussed we
came to consensus we voted, I accepted the outcome of those votes, that's why I am
voting for the budget even though it has provisions that I'm not happy with. Thank
you for allowing me to make that statement.
Chair Asing: Thank you. Councilmember Furfaro.
COUNCIL MEETING -62- May 26, 2010
Mr Furfaro: Yes. The presentation Mr Bynum made I want to
thank the Administration, this came out of the Administration document that went
into our bond presentation and I think they did a very good job and thank you for
your summary but again the financial cushion I think is what we're kind of sharing
here and I want to thank the Administration and Mr Kaneshiro for their
presentation that improved, improved our bond rating and prior to Mr Kaneshiro, I
was the Finance Chair for six (6) years and yes we are somewhat conservative but
you have to remember in government, you cannot change in the middle of the
year may I refer to as a hotel, your room rate and still think you can keep the
occupancy So we did reconcile some numbers. My memorandum of May 3 which
was made public in the budget hearing when we reconcile this particular pieces I
think it was important for me to express that. I think you need a fifteen percent
(15%) reserve in addition to an additional two (2) or three percent (3%) in the year,
for the year so that we have money to respond to in the event of something that we
certainly have to address whether it's major capital improvement that was not on
any shopping list or gust a general cost over runs so we started the year with using
some of the surplus, I think it was like ten point eight million dollars and still
setting aside a reserve for the year in the year plus I think we ended up at two
percent (2%) for emergency funds in the event if something happens. I don't think
we're over the crisis in revenues and I certainly don't think we're over the crisis on
incomes. We can control the cost centers which the Administration is doing with
the furloughs but you know we're still not clear what's happening in Europe,
Iceland has gone bankrupt pretty much, the entire European community is worried
about Greece and in the last week in the half, we had the market fall substantially
We then ended up with the combined list with other members of the Council
including Mr Bynum's list, we ended up in my calculation with one million nine
thousand dollars that was then available in my memorandum to the Mayor's Office
for additional expenses that needed to be added to the budget, including police cell
block, dispatch operators, lifeguards, support for the County Attorney's Office, the
Prosecutor's Office, we and it was my resolution but the Council concurred we set a
Auditor's Department of this year so we can stay closer to the numbers, that was a
resolution that came from the Council to go on the voters ballot and so we have an
opportunity to maybe audit four (4) or five (5) departments per year We fully
staffed the existing levels of lifeguard, ocean recreation, we established and
reestablished full bus service transportation in the current schedule, and we
addressed emergency responses to 24/7 coverage of wastewater We put in and this
came from Mr Bynum twenty thousand dollars is a fair item for the purpose of
doing some special project audits on the upcoming, upcoming CZO and others. We
fully funded Kauai Planning and Action Alliance, the Humane Society, and other
potential funding for Head Start programs so it's reconciled pretty good what I'm
just saying is. I'm not convinced that we're out of the economic (inaudible) I think
that's something that the State is going to have to wrestle with again next year and
in implementing the furloughs I have a proviso that I put on the table that all of you
agreed to and I think it covers Mr Bynum's point, in December we want to revisit
our cost centers and our revenues centers to see if we can't revisit the terms of the
furlough so I just wanted to say thank you to everyone especially our staff and all
the Councilmembers for participating but I think we're still in some tough financial
waters as well as the global situation. On the two percent (2%) I have to defend
that I think because it is my bill on the two percent (2%) cap for primary
homeowners but we do have the leverage to introduce a adjustment that might be
tied to the potential use of a index from the Honolulu Consumer Price index which if
it's three point nine, five right now we might be able to adjust that but we are
offering some protection and I know that's a debatable item but we could revisit
that eventually on the consumer price index to change the base only for primary
homeowners so I don't think Mr Bynum and I are too far off and I do want to
conclude that you know in December there might be a new body here at the Council
and so that's why I put it in for six (6) months, let the newly elected Council,
COUNCIL MEETING -63- May 26, 2010
hopefully some of us have the history and continuity to be on the Council but
there'll be another look on that issue then and I think we'll have a clearer crystal
ball as to what's happening with the economy then as well. I want to thank the
Mayor's staff, the Administration for getting through with the bargaining units at
least this understanding with the furlough make up and more importantly for
people in the county I want to reassure them by the proviso put in the budget that
we will revisit it in December, thank you Mr Chair
Chair Asing: Thank you. Any further discussion? Yes go ahead.
Councilmember Kawahara.
Ms. Kawahara. Thank you Council Chair I'd like to also add that I
believe that we could have alleviated some of the sacrifice that our employees will
be making in this next fiscal year I was hoping to eliminate one point seven. I
mean a day of furlough of one point seven million dollars. I think we decided and I
think it's well known that I was the only one who voted against the proposal to
spend one million dollars on a really well known project without a blink of an eye
but we couldn't afford to do that for our employees but the majority ruled on that
and we will be having two (2) days of furloughs. I wanted to thank the staff for all
the work that they did to get us through another budget. I'm always amazed at how
the Administration and the Council worked together to try to come to decisions that
are good for the whole community I also want to thank Jay for putting in the
proposal that there'd be a six (6) month relook at the furlough issue. I'm not
convinced that there was an entire plan that's put into place but I'm trusting that
that will occur I also wanted to mention that there was discussion about
establishing a emergency reserve in the budget, I'm not. I can't remember if we
actually did that but there was discussion and I think it's a good idea. It is part of
the best practices of accounting according to our Auditor report and an emergency
reserve would help us deal with the unreliable source of income that we are
experience whenever our tourism industry crashes. It is something that we should
have that is put aside for exactly these times when we know that that our economy
relies on outside sources for us to be successful so thank you again to the entire
Council and to the staff for helping with the budget. I'm glad that we're through
with this budget. I think we did a good job preserving core (inaudible) services. I
was especially proud to be able to have a. be a Council that was able to agree that
to fully fund YWCA, KPAA and the Humane Society and Head Start, those are all
projects that we. we restore to full funding and I'm proud of that. Thank you.
Chair Asing: Thank you. Any further discussion?
Councilmember Chang.
Mr Chang: Thank you Chair I think I just need to add this,
when we talk about furlough unfortunately for our county workers including
ourselves, nobody wants to do any furloughs, we all are aware of that. But I believe
on a little bit of a brighter side as far as the county workers are concerned, many of
us do have holidays off, we do continue to have our sick days, our vacation days off,
we're still getting all of our benefits and I think many of us were prepared to be
furlough so perhaps it gives us an extra day with the family or catch up with chores
or clean your house, or maybe set aside a day to volunteer but for over a year and a
half the past recent year there's been many of our friends and family in construction
and hotel business that they basically just got laid off or their job description were
terminated and they've been living with that for as I mentioned for about a year or
a year and a half and many of them sadly are not receiving their benefits, their
unemployment ran out so there's a flip side to everything I believe and it's
unfortunate that we have to lay off our county people but I do believe that you know
we are still getting benefits and these are things that a lot of other people are not
receiving so I just felt that I needed to add that on the other side of what's going on
COUNCIL MEETING -64- May 26, 2010
within our economy As far as the budget and the whole process again we would
like to thank everybody that prepared this together but I do want to share my
agreement with Vice Chair Furfaro, I think we are preparing for perhaps hard
times in the next two (2) or three (3) years so I would rather be at this point a little
bit more safe than sorry Thank you.
Chair Asing: Thank you. Any further discussion?
Councilmember Kawakami.
Mr Kawakami: Thank you Mr Chair I would like to recognize our
staff and all Councilmember and the Administration and the hard work, and in
making some tough, difficult and hard decisions, very unpopular decisions. And I
come with my background from the private sector of business that a lot of the
decisions we make to benefit the majority, the organization as a whole are often
very unpopular but it's an necessity some times to make these unpopular decision
because we are put in that position to provide leadership in times where we're
unclear and we're. the end of the economic situation is yet to be seen and there are
a lot of what ifs and some of the what ifs that we contemplated are the same what
ifs that Councilmember Bynum brought up or some of the what ifs that came
across our table is what if we lose TAT? What if we lose TAT for one (1) year, what
if we lose TAT for five (5) years, what if we lower our surplus level to fifteen percent
(15%), what if we get hit by a natural disaster is that fifteen percent (15%) enough
to cover our basis and if not what programs do we cut? And if we do not make those
tough decisions today, what employees are we going to cut. These are all what ifs
questions and they're all based on speculation but a lot of the decisions we make, we
need to take these kind of what ifs situations into account, how much more tax
increases that we impose on our public to cover services that we need to provide.
You know the private sector has also been hit and it's unfortunate that our
government workers will now be faced with those same kind of hits that the private
sector has taken but to put it into prospective what the private sector has faced,
because I come from that realm, yes government medical has gone up, on the
private sector medical cost has also gone up, and yes we're going to be having a ten
percent (10%) pay decrease but on the private sector also some of them are
completely laid off and they have no income coming in, and we're not talking private
sector executive level associates, we're talking blue-collar workers, we're talking
about the construction industry, we're talking about our valet drivers, we're talking
about our busboys, we're talking about waiters and I live in Kapa`a and I've seen
since the down turn of the economy how many restaurants have had to close their
doors, mom and pop restaurants. And these are factors that we had to take in.
The tough, tough decisions, they're very unpopular of our government workers
that are going to be sharing the burden, I apologize to them, it's very unpopular but
at this time. in a time of uncertainty we need to provide the leadership and we
need to be willing to make tough decisions and to also take the hits.
At our last HSAC executive Committee meeting where I serve as President,
our Vice President Nestor Garcia who had watched our budget deliberations
identified proposal from Vice Chair Furfaro to do the six (6) month evaluation and
based on that, what HSAC is going to be doing as an Executive Committee is will be
approaching the Executive Branches and Administration to come up with a task
force. And I'll just read a little excerpt from the letter that's going to be going out
and this is just a draft. the Committee recognizes furloughs as a painful yet
necessary step as counties seek to address serious budget short falls. However,
there's an equally compelling need to fully measure the impact of furloughs, for
instance, how will agencies cover the loss of services or will services simply be
denied to the public, how will that impact establish deadlines such as building
permits, vehicle registrations and driver licenses. Do the furloughs achieve
COUNCIL MEETING -65- May 26, 2010
financial objectives or are those savings offset by paying more over time or other
increased cost. Is it truly necessary to continue furloughs beyond one (1) fiscal
year? These and other critical questions demand a comprehensive analysis of
furloughs that encompasses all perspective. Therefore the HSAC Executive
Committee requests that a task force be assembled to perform that evaluation and
report back to each county We strongly recommend that the taskforce membership
include a membership each from the Executive and Legislative Branches of each
county and representatives from any organized labor union that represents county
employees and whose members are furloughing. We hope that you'll agree that this
a task that must be performed, and we look forward to receiving your appointee to
serve on the task force. Please feel free to contact me if you have any questions,
and this is signed by myself. And this is based off of Vice Chair Furfaro's and this is
being driven by Vice President Nestor Garcia from the City and County of Honolulu.
So the message is clear that there are a lot of uncertainties, that there are a lot of
questions that remain to be answered and one of them is the efficiencies of
furloughs. But we need to make tough decisions and we've made these tough
decisions in light of what could have been the easy way out, not necessarily the
right way out. So with that being said, thank you for offering me the floor to read
my statement.
Chair Asing: Thank you. I'd like to just make a few comments.
I think everyone has covered all of the areas very well. You know Councilmember
Furfaro made reference to you know the world economy, what's happening in the
world. I did mention as an example California, California forty-two billion dollars
in the hole, that's what California looks like today The State, one point two billion,
what did we end up doing? The Legislature tapped the hurricane fund and that
was our relief to tap that fund, otherwise we would have been entire (inaudible)
again. So we need to keep that extra money in there just in case something should
happen, we have something to fall back on. And I think we need to be cautious
about that. Uncertainties, tough decisions, you know Councilmember Bynum
mentioned the two percent (2%), you know the two percent cap is a long-range
savings, it's not just one (1) year, you know it was a long range item. So you get a
two percent (2%) increase on a thousand dollars, that's twenty dollars. What's
twenty dollars, I mean we intentionally set it that way so that you don't get hurt
and yes you'll pay but if you pay twenty dollars more, it's the same sacrifice we all
make. Here on the Council, we also made sacrifices yeah? We took a nine point
three percent cut. That equates to as far as I'm concerned for me and my salary,
nearly eight thousand dollars in loss, that's what I take. Councilmembers take the
same hit, I make a little more, but the sacrifices are all over the place and we are,
we also make sacrifices and you know like Councilmember Kawakami said. you
know I also apologize you know to all the hard workers out there that we need to
have to do this. It's one of the hard choices but we need to do what we need to do
So with that I will end my comments, thank you very much and before I close I
would like to recognize the Chair, Councilmember Kaneshiro for guiding us through
this process, for the staff for the large amount of work that they did, to the
Administration for their assistance for to all concerned, thank you very much for
everything that you put into it. Councilmember Kaneshiro.
Mr Kaneshiro: Thank you Chair for giving me the opportunity to
speak a little bit about the budget and I'll be really short. We've had many, many
hours of discussions and deliberations and we did put out a six (6) page budget
message from the County Council but I know many of you won't have the
opportunity to be able to read all six (6) pages but my Committee members over
most of the issues that were deliberated on and brought to light a good balanced
budget. But there is one part of the Budget message that I wanted to read, as I said
many of you won't have the opportunity to read all six (6) pages but the conclusion
of the budget message I think is important for all of us to at least hear and listen
COUNCIL MEETING -66- May 26, 2010
about and I wanted to read that section at this time. From the onset of the fiscal
year 10-11 deliberations, the Council sought to be prudent and fiscally responsible
in its review of budgetary request. The County has entered into an especially
challenging economic period and the utilization of employee furlough days was a
difficult but necessary measure to protect the county from future revenue loss and
financial hardship in light of economic uncertainty This year's budget session was
different from those of years past because of the Council's focus of maintaining
services while facing loss of potential revenue, higher fixed cost and a slow recovery
from the current economic recession. In and closing the Council extends its
appreciation to the Administration, Department Heads and County employees for
their participations and assistance in this budget session and for the continued
commitment to provide the highest level of public service. In addition, the Council
would like to thank Hawai`i's congressional delegation and especially Kauai State
Legislatures for their continued support and assistance. Thank you.
Chair Asing: Thank you. Any further discussion? If not, roll call
please.
The motion for adoption of Bill No. 2356, Draft 1, on second and final reading
was then put, and carried by the following vote.
APPROVAL. Bynum, Chang, Furfaro, Kaneshiro,
Kawahara Kawakami, Asing TOTAL - 7,
AGAINST APPROVAL. None TOTAL - 0,
EXCUSED & NOT VOTING None TOTAL - 0
Chair Asing: Next item please.
Mr Nakamura. Next bill for Second Reading is Bill No. 2357,
Draft 1.
Bill No. 2357, Draft 1 - A BILL FOR AN ORDINANCE FOR AN
ORDINANCE RELATING TO CAPITAL IMPROVEMENTS AND FINANCING
THEREOF FOR THE FISCAL YEAR JULY 1, 2010 TO JUNE 30, 2011. Mr
Bynum moved for adoption of Bill No. 2357, Draft 1, on second and final reading,
and that it be transmitted to the Mayor for his approval, seconded by Mr Chang,
and carried by the following vote:
APPROVAL. Bynum, Chang, Furfaro, Kaneshiro,
Kawahara Kawakami, Asing TOTAL - 7,
AGAINST APPROVAL. None TOTAL - 0,
EXCUSED & NOT VOTING None TOTAL - 0
Chair Asing: Next item please.
Mr Nakamura. Next bill for Second Reading is Bill No. 2358.
Bill No. 2358 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 23,
KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO CONCESSIONS
AT SPOUTING HORN Mr Chang moved for adoption of Bill No. 2358, on second
and final reading, and that it be transmitted to the Mayor for his approval,
seconded by Mr Bynum.
Chair Asing: Any discussion?
Mr Nakamura. We have one (1) registered speaker
COUNCIL MEETING -67- May 26, 2010
Chair Asing: Pardon me?
Mr Nakamura. We have one (1) registered speaker
Chair Asing: Oh I'm sorry Rules are suspended.
There being no objections, the rules were suspended.
Ms. Robeson. Thank you Mr Chair, Councilmembers. You have
a copy of my resurrected 1999 testimony, most parts are not relevant to the bill
that's before us today, 2358, however, in the larger context of park usage I think
there are some components of the testimony that I'd like to share with you again.
To date I don't think there's been a public policy discussion on whether or not the
public wants to commercialize. I'm sorry. oh Barbara Robeson for the record. So
I don't think there's been a discussion, a public policy discussion about whether or
not the public does want to commercialize our county resources. And I believe it
should happen, this discussion because the public should be having input onto
whether or not we want to commercialize our county parks. A hierarchy of uses
should or could be established for our parks similar to what DLNR has for their
public lands and the hierarchy of uses would take into account that the primary
purpose of a county park is to serve the public interest above all others. I did attach
with that testimony kind of a draft of some of my ideas about the hierarchy and
what it could look like and first.. the first categories of course would be for public
uses, second category would be for non-profit and the third would be for profit and
you'll notice that on five (a) I mentioned Spouting Horn in there so it's relevant to
this bill. And that's. and you might want to look at the questions and the
comments down below that number three (3) do we need a Parks Department?
That was a 1999 question so obviously that's been taken care of. Thank you very
much.
Chair Asing: Thank you. Councilmember Furfaro. hang on
Barbara.
Mr Furfaro Barbara thank you very much. With the exception
with the moving parts of Spouting Horn, I do want to let you know that I have been
in discussion with the members of the Legal Department about the possibility of
reconciling some park rules for use, especially as it leads to our potential acquisition
of the (inaudible) in Hanalei. So your point was very well taken but I did want to
let you know we are in consultation with the County Attorneys about a (inaudible)
Ms. Robeson. I'm just trying to keep it on the radar screen.
Mr Furfaro• It's on the radar screen.
Ms. Robeson. Thank you.
Chair Asing: Thank you. Is there anyone else? If not, I'd like to
call the meeting back to order
There being no one else to speak on this matter, the meeting was called back
to order, and proceeded as follows:
Chair Asing: Did we.
Mr Nakamura. We have a motion and a second.
Chair Asing: Motion and a second.
COUNCIL MEETING -68- May 26, 2010
Mr Nakamura. Yes.
Chair Asing: Is there further discussion? Yes go ahead.
Mr Furfaro: Mr Chair I just want to clarify with the exception
of what looks like the addressing the concessionaires that exists, these park rules
that I've been having as Chair of Planning deal with all of our other parks.
Chair Asing: Thank you. With that.. Councilmember Bynum.
Mr Bynum. During Committee meetings the Council Chair
made a presentation about being very cautious when we look at commercial, any
kind of commercial use in the parks and I think his cautions were very well taken
and I said at the time that I couldn't imagine that I would be voting to approve any
kind of new operation like Spouting Horn because of those kinds of cautions that I
share, but this is about Spouting Horn that has been there for a long time and is
really part of the cultural fabric of the Po`ipu's visitor experience, so I am
supporting this bill.
Chair Asing: Any
Mr Furfaro: Perhaps I stepped out of bounds. I know we give
our speakers a little bit more lineage but or leverage I'm sorry but I wanted to share
with you that I just wanted to concur that it is our as Barbara put it. radar
screen.
Chair Asing: Thank you. Yes, any further discussion? If not, I
just wanted to echo I guess that same concerns that I had expressed in the. during
the Committee meetings. You know I just have difficulty because I guess I go back
with long, long history and you know history has taught me so, so much. And I can
recall the days of the puka shell you know (inaudible) at Hd'ena Beach Park and
the businesses that were there, the different businesses in different areas and
taking away facilities for recreation and then have the businesses take advantage of
that so I really have some great, great difficulty I will be supporting this with
grave reservations and Barbara thank you for your testimony I think it's great and
thank you Mr Chair for the Planning to be looking at these issues because I think
you know recreation purpose, parks that's what they're for not to be used for
commercialization and take away from our recreational facilities so I will be voting
for it but with great reservations. With that, roll call please
The motion for adoption of Bill No. 2358 on second and final reading was
then put, and carried by the following vote.
APPROVAL. Bynum, Chang, Furfaro, Kaneshiro,
Kawahara Kawakami, Asing TOTAL - 7,
AGAINST APPROVAL. None TOTAL - 0,
EXCUSED & NOT VOTING. None TOTAL - 0
Chair Asing: Next item please.
Mr Nakamura. Next bill for Second Reading is Bill No. 2359
Bill No. 2359 - A BILL FOR AN ORDINANCE AMENDING SECTION 17-
1.1 OF THE KAUAI COUNTY CODE 1987, RELATING TO RENEWAL FEE FOR
MOTOR VEHICLE OPERATOR'S LICENSE. Mr Chang moved for adoption of Bill
COUNCIL MEETING -69- May 26, 2010
No 2359, on second and final reading, and that it be transmitted to the Mayor for
his approval, seconded by Mr Bynum, and carried and following vote:
APPROVAL. Bynum, Chang, Furfaro, Kaneshiro,
Kawahara Kawakami, Asing TOTAL - 7,
AGAINST APPROVAL. None TOTAL - 0,
EXCUSED & NOT VOTING None TOTAL - 0
Chair Asing: Next item please.
Mr Nakamura. Next bill for Second Reading is Bill No. 2360
Bill No. 2360 - A BILL FOR AN ORDINANCE AMENDING SECTION 5-2.4
OF THE KAUAI COUNTY CODE 1987, RELATING TO MOTOR VEHICLE
CERTIFICATION OF OWNERSHIP AND REGISTRATION FEES Mr Bynum
moved for adoption of Bill No. 2360, on second and final reading, and that it be
transmitted to the Mayor for his approval, seconded by Mr Chang, and carried and
following vote.
APPROVAL. Bynum, Chang, Furfaro, Kaneshiro,
Kawahara Kawakami, Asing TOTAL - 7,
AGAINST APPROVAL. None TOTAL - 0,
EXCUSED & NOT VOTING None TOTAL - 0
Chair Asing: Next item please.
Mr Nakamura. Next bill for Second Reading is Bill No. 2362.
Bill No. 2362 - AN ORDINANCE AMENDING ORDINANCE NO B-2009-
691, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY
OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2009 TO
JUNE 30, 2010, BY REVISING THE SURPLUS AND APPROPRIATIONS
ESTIMATED IN THE BOND FUND- Mr Kaneshiro moved for adoption of Bill No.
2362, on second and final reading, and that it be transmitted to the Mayor for his
approval, seconded by Mr Furfaro, and carried and following vote.
APPROVAL. Bynum, Chang, Furfaro, Kaneshiro,
Kawahara Kawakami, Asing TOTAL - 7,
AGAINST APPROVAL. None TOTAL - 0,
EXCUSED & NOT VOTING None TOTAL - 0
Chair Asing: Next item please.
Mr Nakamura. At this time Mr Chair, we re back on page six (6) of
the Council's agenda bill for Second Reading, this would be Bill No 2318, Draft 3.
Bill No. 2318, Draft 3 - A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO THE
COMPREHENSIVE ZONING ORDINANCE (Farm Worker Housing)
Mr Kaneshiro: May I recuse myself from this item?
Chair Asing: Yes.
Mr Kaneshiro: Thank you.
COUNCIL MEETING -70- May 26, 2010
Mr Kaneshiro was noted as recused from Bill No. 2318, Draft 3.
Chair Asing: Councilmembers?
Mr Furfaro• Mr Chair, may I make note that the Land Use
Research Foundation has resubmitted a clarification of LURYS support which is
just being distributed right now
Chair Asing: Okay What is the pleasure of the group?
Mr Furfaro. I'd be glad to start off and give a quick recap of
where we're at, if you want to suspend the rules after that.
Chair Asing: Okay why don't. you want me to suspend the
rules and have people come up?
Mr Furfaro: Take testimony first.
Mr Nakamura. We have two (2) registered speakers Mr Chair
Chair Asing: Pardon me?
Mr Nakamura. We have two (2) registered speakers.
Chair Asing: Okay why don't we have the registered speakers
then.
Mr Nakamura. The first registered.
Chair Asing: The rules are suspended.
There being no objections, the rules were suspended.
Mr Nakamura. The first registered speaker is JoAnn Yukimura
followed by Patty Valentine.
There being no objections, the rules were suspended.
JOANN YUKIMURA. Council Chair, members of the Council, JoAnn
Yukimura for the record. I've testified on this bill many times and I'm basically in
support of it. I want to start off today with a little history The farm worker
housing. farm worker housing was anticipated and planning for in the original
CZO and Ag subdivision ordinance that was adopted back in 1972. The Ag
subdivision ordinance allows for multiunit lots, for example, a five acre lot is
allowed two houses, a ten acre lot is allowed four houses, and large lots are allowed
five houses. Five houses are the limit and there's a minimum lot size of five acres,
what happened is that condominiumization came in as an unwelcomed overlay that
allowed further subdivision of five acres and ten acres and they were
condominiumized around these units so that a ten acre lot was divided into four lots
by condo, by the condo process. And it made the per acre cost go up and it took. it
made the minimum size go down and took away the opportunity for farm worker
housing. Farm worker farms have been enduring this situation for many years
and so we're back here trying to find or restore the opportunity for farm worker
housing and Mayor Baptiste's Ag advisory Group of which Roy Oyama and Bob
(inaudible) were members identified farm worker housing as a top priority for
promoting farming. So the bill before you is not perfect but it does attempt to
provide for farm worker housing in a rational way with many restrictions to protect
COUNCIL MEETING -71- May 26, 2010
against abuse and it would really be an important pilot effort in preparation for the
important Ag lands issues that will be coming up I want to end here just by
acknowledging the farmers, the Farm Bureau, Councilmember Furfaro and Council
staff, Kaaina Hull, Planning Department and all the others who worked on this bill
for now I think over two (2) years and ask for your support in passage. Thank
you.
Chair Asing: Is there anyone else? Can we have the next
speaker up please.
AIDA OKASAKI. Next registered speaker is Patty Valentine.
PATTY VALENTINE. Honorable Chair and Councilmembers, my name is
Patty Valentine and I'm a former farm worker and currently served as the Kauai
Chapter Director of the Hawaii Farms Union for our State. I have two (2) points to
share, while many people have worked on fashioning a farm worker housing bill, at
least over the last twenty (20) years that I've been aware of. I would like to
acknowledge the community group who spent over the past two (2) years designing
their amendment to Bill No 2318. Thanks to Malama Kauai for creating the space
and invitation for discussion. Thanks for JoAnn Yukimura for her diligence and
ability to look at the issues from angles we could not even imagine. Thanks to the
Councilmembers, legal advisors and Farm Bureau members who shared hours of
information with all of us. Thanks to the Planning, Water and Real Property Tax
Departments, your expertise and opinions were valuable. And finally thanks to the
farmers who left their fields to attend meetings that would have meant nothing
without them. Everyone involved was interested in fashioning a well researched
bill that would work for the good of the County and the farmers and all other
parties mentioned above. This amendment is a living testimony to the democratic
process. My second item. while I and many others support Bill No 2318 draft 3, I
must share some information from the farmers I spoken with in the past two (2)
weeks. This current draft includes many of the provisions our group had worked on
so diligently, yet in section 3B I it states that a farmer must show gross receipts of
at least thirty-five thousand dollars for two (2) consecutive years before they can file
for the use permit. And this figure was adopted based on the figures used in Maui
County Most of the farmers I spoke with thought that thirty-five thousand dollars
for the first year was too high. In our community group the suggested amount was
gross sales of twenty thousand dollars for the first year and thirty-five thousand for
the second. I'm asking Council to consider this lower amount for the first year of
farming in light of the following statistics. according to USDA figures of Hawai`i's
seven thousand five hundred farmers, sixty-five point seven percent earn under ten
thousand dollars, twenty-two point six percent earn under fifty thousand dollars,
four point seven percent earn under hundred thousand dollars, five point one
percent earn under five hundred thousand dollars, and only two percent earn over
five hundred thousand dollars. To create a viable and sustainable Kauai we need
to support the small farm now, thank you very much.
Chair Asing: Thank you. Is there anyone else who would like to
speak?
NED WHITLOCK. Honorable Chair and Councilmembers. I'm Ned
Whitlock farm from Moloa`a. I would say this bill is about growing more food. It
takes people on the land out there doing it and this is the first step and
repopulating some empty tracts I see that could be productive and full of diverse
economic activity For farmers who would qualify for this bill as it is. it's an
added incentive to produce more, to keep up that production, to keep your income
coming in. And it's to. it's a great advantage to trying to attract skilled,
agriculturist to help expand the business or have something to offer these people
COUNCIL MEETING -72- May 26, 2010
that you can jump ahead being a better farmer For farmers who are almost
qualifying, the bill as it is now it's an added incentive to produce more, to plant
that extra row, to get those trees going, to expand our agriculture base on this
island. And then personally on our farm it gives, for me it's a way where I can keep
my family together, I can offer my son as an employee eventually, a place to stay
And. farm life is hard work but it's a lifestyle that I wouldn't trade for anything, I
have fun every day and anything that supports more farming, more families on the
land. I think it deserves your support.
Chair Asing: Thank you. Please.
ANDREA LECOCQ• Councilman and Councilmembers, my name is
Andrea Lecocq. I have a farm in Kapa`a. I don't earn as much money as thirty-five
thousand dollars a year, I've had it for nine years and I'm up to eighteen thousand
dollars but I'm not here today to ask for myself, I here today to ask for all the
farmers who work so hard, like Lousia Wooten who I've known for twenty-eight (28)
years, who's a dedicated farmer If you. if Lousia should you the farmers who
were up to thirty-five thousand dollars a year working and how hard they work, the
Councilmembers who are against this bill right now, might change their minds if
they went and saw those farmers. They deserve this bill, they deserve it to be
passed because they're really hard workers and they worked for many years, Ned
and Martha. all the people if you went to their farmers, they deserve this housing
and you may think that they're going to take advantage of it but if the
Councilmembers who are undecided or who are against this bill would actually go to
some of these farms who are claiming with their taxes have earn thirty-five
thousand a year, you would see that these people are deserving of farm housing
units and even though I'm not there yet, I'm here today to show my support because
they're all are really hard workers and I don't think any of them plan on taking
advantage of the housing. Thank you.
(mic)
Chair Asing: My apologies BC
(inaudible) Whitlock: County Council, Chairman. (inaudible) Whitlock
for the record..
Chair Asing: You can pull the mic closer to you.
Mr Whitlock: For me personally the bill would enable me to be
able to stay on my farm, on my family's, and work and be an employee and
eventually maybe (inaudible) the farm after I inherit it. but and for those
concerned with developers coming in. and trying to take advantage of the bill. I
would personally think it would be a nightmare for anybody trying to frame farm
once a year for yearly inspections as the bill states and if the goal is to promote
farming I think its best to have full time farmers on the farm who can produce from
sun up to sun down, all the jobs that needs to be done. It seems logical to have the
house on the farm. Thank you.
Chair Asing: Thank you. Is there anyone else?
LOUISA WOOTEN I have something that I would like to pass around
that came to email last week and I got excited about it, prematurely I suppose. It
has to do with Federal funding for building farm worker housing in the United
States of America and it came from our USDA office in Hilo, specifically regarding
funding available for farm worker housing. So it's not a unique subject we're
talking about here today I'm sure over the coming weeks we're going to hear many
COUNCIL MEETING -73- May 26, 2010
of you give us your political platforms and (inaudible) I'm sure as I've heard in
many years past, you'll be talking about how you support diversify agriculture, food
security, sustainability, affordable housing, preservation of Open space and job
creation. I think it would be profoundly amazingly, wonderful, unheard of for all of
you to be able to say we supported all of these things by passing this bill, I'll vote for
you. How many times in the past few years have you had this chance to actually
profoundly support our community? The need has already been established as
we've already heard, Mayor Baptiste has an Ag Advisory Committee, it was made
up of so many of our farm community leaders, we had our most respected
organizations support his bill, the Farm Bureau, the Hawaii Organic Association,
the Farmers union, these are the voices for agriculture, they come together, they
work together, we've made a bill that can benefit us in such a profound way
Excuse me if I get emotional but I am. It's a dire critical need and this island
community for housing is so expensive, you know I cannot afford to pay a living
wage to my farm workers and have them go out (inaudible) even where rent has
dropped right now, and have them be able to afford that. I can provide them
affordable, comfortable housing that I just want it to be legal and I do need to have
workers on the farm for so many reasons which already been outlined. We've
discussed the abuses and I just applaud Councilmember Furfaro's efforts to address
all the concerns about abuse. He sought the legal advice, he sought the Planning
Department's advice, this bill has been amended to rule out the loopholes, all due
respect Councilmember Kawakami who's worried about enforcement, this bill has
come to the point where the enforcement will begin the minute I walk up to the
Planning Department with an application. They're going to say let's see thirty-five
thousand dollars for two (2) years, let's see your income tax filings, let's see your
property Ag tax dedication, which by the way I've learned through this process that
if I went today to dedicate my three acres to agriculture, I could not do so, I could
not get the tax dedication because now the limit is now set at five acres in the
County of Kauai. It ruled me out. Our family could not get the Ag tax dedication,
so it's just been such a learning process. The one thing that's really, really
important about this bill and the (hope) passage of it is that if we do go to the
Planning Department, there will be some guidelines so that once this goes to the
Planning Commission that they have something to go by
(3 minutes)
Ms. Wooten. Right now I've heard all of you say oh you have a
way that you can do this. there are no guideline, none, zero. we have the
Important Ag lands that are coming out, Maui has already proven that this sort of a
bill will work so I don't get it. I really don't know why the hesitation, why if you
say you support agriculture, we're here, we're telling you. Many of us have left
today, some of our most profound voices have already left.
(3 minutes)
Ms. Wooten. Many of the people that met with us for so many
months can't make all these meetings, I can barely make them and I guess this is
the last shot but I'm giving it my best shot, hope you folks can support it, it's really
important. If we want to have food security, if we want to grow our own food, if we
want to do all the things that this bill is really, really about, your support on this
bill is just so, so important. And please, please consider it because so much work
has gone into it. Thank you.
Chair Asing: Thank you. Is there anyone else? Okay let's take a
break?
(change tape)
COUNCIL MEETING -74- May 26, 2010
Chair Asmg: Yeah okay, we re going to take a break because we
have to change the tape.
There being no objections, the Council recessed at 3:20 p.m.
The Council reconvened at 5:01 p.m., and proceeded as follows:
Chair Asing: Council meeting is now called back to order With
that why don't we finish up with the public testimony so I believe that there were
other speakers who wanted to speak, if I'm wrong then I'll call the meeting back to
order but I will open it up to anyone in the public who wants to speak on this item.
JERRY ORNELLAS: Good afternoon Chairman Asing and members of
the Council. My name is Jerry Ornellas, I'm with the Kauai County Farm Bureau
and I'm a farmer from. I farm fifteen (15) acres from Kapa`a Homesteads. You
know it's too bad that we refer to this bill as the farm worker bill. early on I
started to realize what this bill actually is, is. or should be called. temporary
agricultural housing for farm workers and farmers because what we're looking at is
a special use permit that is temporary in nature, what the farm operations stop
the structure goes away Now I know the objection to that is well the county has
never torn down any structure or has rarely done so but looking at the bill, it would
behoove the person building the structure to build an inexpensive structure. Now
these structures will meet all county codes, they will have septic systems so that it's
acceptable to all the Departments. You know we have a long history of agricultural
worker housing in Hawaii. My first childhood home was in Kealia Camp, a town
that no longer exists when agriculture went away, all that's left now is the post
office and I'm going to keep my remarks short because it's been a very long day for
everyone. But Act 205-4.5 (a) 16 makes provisions for agricultural worker housing
on agricultural lands, unlike a certain topic that was talked about earlier today
where 205 makes no provision for that. So we have precedent on the island of Maui.
They have a program that's been in place for over ten (10) years that's working
successfully I know the big concern is abuse but you know we cannot operate on
the premise that everyone is a crook, we have honest farmers out there, we have
people that are going to follow the law I mean you know we have banks that are
robbed every day but we don't close all the banks because we have some people that
are crooks. you know the irony of this whole thing is not going to be loss for the
people of Kauai if vacation rentals are allowed on agricultural land and houses for
farmers and farm workers are denied, so I'd like to open up for questions if you had
any questions. or even if you can give me an instance of where you think this bill
will be abused, I'll be more than happy to try to answer it.
Chair Asing: Councilmembers? Councilmember Bynum?
Mr Bynum. Mr Ornellas thank you for being here today and I
know you've been involved in dialog about this bill and have concerns as do I and.
but I feel. I felt like a few months ago we really got focused and we make sure that
the thirty-five thousand dollar provision, we made sure that there was you now the
CPR issue got successful amendment after the Committee Chair worked with the
County Attorney and for myself I came around to supporting the bill because believe
that those provisions would go a long way to eliminate you know the potential for
abuse. The. you know I'm getting a lot of calls from very I believe very
important and sincere farmers who are saying hey this provision is not going to
make it work for me and we've heard testimony today saying I can't meet this
criteria but I know farmers who can and they need that. And so you know trying to
find that balance is really difficult particularly the provision we put in that you
have to have Ag dedication prior I have some problems with that and I would be
COUNCIL MEETING -75- May 26, 2010
supporting this bill without that provision but I'm going to be supporting with it
because of the abundance of caution that I think we're trying to have about any
potential abuse. So I know I'm saying things and this will turn into a question right
now, are we come to a similar conclusion because I know at one point you said.. we
just can't do this, right and so we tried to put this provision in to address that
concern and so you're here supporting the bill today?
Mr Ornellas: That's correct. You now we've worked on this thing
for almost two (2) years now, a lot of meetings and I've became known as the
naysayer because I kept telling people that you know we can't do this, we have to
tighten this bill up to prevent abuse because you know we've seen what happens on
agricultural lands. So the Farm Bureau, I mean more than anybody is dedicated
to preserving our agricultural lands and I know you received communication from
LURF, the large property owners and raising questions about how this relates to
important agricultural lands. Well the fact is there's no (inaudible) yeah,
agricultural lands are a special program that has special privileges. We cannot
accord those privileges to lands that are not in important agricultural lands
programs yeah, they have to be offered special incentives. Once those lands are
placed in that program, it takes an act of the legislature to remove it or to bring it
out of IAL so our standards are going to be tighter than what's allowed in important
agricultural land.
Mr Bynum. So I know how strongly you feel about those issues
and so it's very significant to me that the provisions that we've. are rallying
around at this point have made a difference to you so thank you for your testimony
Chair Asing: Thank you. Councilmember Furfaro
Mr Furfaro: Yes. Mr Ornellas thank you for being here. I'm
going to make comment of what you said here that these provisions are more
stringent than what will actually come out of the Important Ag lands, and if you
really read the Important Ag piece I mean, they're talking about clustering almost
like plantation camps again. five percent of lands, more than nine hundred acres
you can have a fifteen piece acre for workers housing, but at the end of the day the
real need to have this tighter than that is the fact that they're going to end up
allocating to us the water, the roads, the building regulations. I don't see State
Land Use coming up with all of those parameters and controls so hopefully what we
get out of this bill is kind of the parameters of what we're looking for at the county
level. And remember in this bill I think you pointed out, this is a special use
permit. and it. it will probably be temporary until IAL is overlaid or a template
is overlaid by the State and we're just trying to make, we're really trying to make
provisions for what we need to make sure we have control on so that there is a clear
understanding of no abuse going forward. There are eleven (11) points in the bill
that puts controls on starting with. I forget who testified but came up and said you
start with your farm plan, you start with your receipts, you start with really
making sure that the Commission when they review your application, it's a bonafide
farming activity it's producing revenue, it's producing food goods, and it's a doing
the kinds of things that we have heard from over and over that you know farm labor
is important to farm success. Without the labor you can't produce the kind of
farming with crops and so forth that go back to expanding this alternative economy,
so your comments today for me is very much appreciated.
Mr Ornellas: Thank you and you know getting back to that first
requirement of thirty thousand.
Mr Furfaro• Thirty-five thousand.
COUNCIL MEETING -76- May 26, 2010
Mr Ornellas: Thirty-five thousand dollars of income of over
multiple years, you know we've seen abuse with our Ag dedication program because
that requires a schedule (f) but in this case it's much tighter because you're going to
be going to Planning Commission and they're going to scrutinize this. So what
gentleman farmer in their mind is going to forge a schedule (f) or falsify a schedule
(f)? Any attorney will tell you, you got to be crazy to falsify a Federal.
Mr Furfaro: Tax form.
Mr Ornellas: Return.
Mr Bynum. Yeah.
Mr Ornellas: In excess of a hundred thousand dollars because
we're talking three (3) years so I mean. that would be a huge deterrent to any
gentleman farmer to even think about it. his consultant would tell him, no never
ever do that.
Mr Furfaro: Thank you again for your testimony
Chair Asing: Thank you. Is there anyone else?
Cynthia Chiang: Good evening Chairman Asing and
Councilmembers. I've been here since about nine this morning on my day off
working for Lousia Wooten at Kauai Kunana Diary And I didn't come prepared to
speak but I just wanted to come.
Mr Chang: State your name for the record.
Ms. Chiang: Cynthia Chiang, with an "I" no relation to you.
Since I started working in the sustainable agricultural field almost twenty (20)
years ago, I supported myself and worked in. lived in a apartment working on a
farm in Berkley I lived in a year (inaudible) of New York. I lived in a cabin in
Pennsylvania, lived in my own tent in Waimanalo, and shared farm worker housing
with a farmer in Makawao as well as with a farmer that I started farm in Maine.
And in each of these farms, I pour all of my energy into not only sustaining my own
livelihood but working towards a larger goal of the farmer's goals of sustaining
themselves with their work and the fruits of their labor For me personally it's,
there's nothing more basic than clean water, healthy food, safe housing and
nurturing strong communities and this bill to me is common sense and I come here
just to provide another face on the farm worker issue and I was just (inaudible) a
book that Ned Whitlock brought about farming and there was a quote that really
spoke to me which was that farmers are the great backbone of this whole wide
world, but it seems that farmers along with Social Workers and Teachers and
Nurses are granted the least respect and I've never understood that. So I just urge
you wholeheartedly to support this bill and to help strengthen this island's steps
that they're taking towards sustainability and food sovereignty Thank you.
Chair Asing: Thank you. Hang on. Councilmember Chang.
Mr Chang: Thank you Cynthia Chiang. How many of. how
many individuals would you say have the passion such as yourself to experience
what you have as far as farming?
Ms. Chiang: Personally speaking I think a lot of people are
detracted from going into this profession because they cannot make a living off of it.
Who wants to toil sunrise to sunset, most days of the week when you're barely able
COUNCIL MEETING -77- May 26, 2010
to sustain yourself let alone sustain a family if you have one. So this culture, this
Country is not giving allowances for people, my generation or younger especially
who wants to go into this field and remain viable in this field when there aren't
laws being passed that encourage them to go into this field. You know I've read
reports in Japan where it's a whole generation of older farmers and all the young
people, all their children are going into the cities. There's no incentives for children
or the next generation to go into one of the most noblest professions in the world
and to continue the tradition of organic practices and to feed their communities
when they don't have the support of their government you know behind them to do
so.
Mr Chang: Thank you.
Ms. Chaing: Thank you.
Chair Asing: Thank you. Is there anyone else? JoAnn, I think
you've.
Ms. Yukimura. (inaudible)
Chair Asing: Yeah.
MELISSA MCFEREN I keep my comment very brief. My name is Melissa
McFeren and I'm the Executive Administrator for the Farm Bureau and Jerry
pretty much captured what happened in our discussions so I won't touch on that
again but Ijust wanted to touch on one (1) point is that a lot of us have been
working together to look at how do we encourage agriculture on Kauai and how do
we improve the economic conditions of the farmers and you know there's a lot,
there's a great deal of interest in the marketing side, in promoting Kauai grown
and we're so thankful for that and we're very thankful to the County and to the
Council for supporting that too. So this is really about the other side which is the
farm production and how we are supporting the farm production? I realize that this
is just one (1) of the series of tools and also that as you talk to farmers you will meet
farmers who can benefit from this bill, you will also meet farmers that have a lower
income or is starting out and can't benefit from it yet. Also for the larger farmers,
they have other needs as well so we understand that this you know, the whole
group has worked very hard on this bill but that it is only one (1) tool in the tool
box. It's really about providing more tools for our farm workers and for our farmers,
some will choose it, some will not. But just to make it tight enough so that we can
prevent against abuse and I think that has been our consistent testimony all along
that we support housing for farm workers, for qualified farmers as long as it
prevents against abuse. So that was just a comment that I want to make and I
understand that that whole preventing against abuse side is very difficult and as
Jerry said, we've had a lot of meetings and meetings with different staff from the
County Certainly I've learned a lot about the process so I'm not coming to you as
an expert by any means and so now it's in your hands. Thank you.
Chair Asing: Thank you. Is there anyone else? Go ahead, yeah
go ahead.
Ms. Yukimura. Thank you Chair Asing, members of the Council,
JoAnn Yukimura. I just want to follow up on Cynthia's testimony, there's an
article from this magazine Pacific Edge about a five acre farm in Kohala and it
mentions because there were questions about interns. It mentions this world wide
opportunities in organic farms WOFF program and I just wanted to give this to you
if the staff could take these articles and then also I opened today's Garden Island
and to and behold there's a story about WOFF as well and about how there's twelve
COUNCIL MEETING -78- May 26, 2010
hundred farms across the country, farmers and ranchers, where they are benefiting
from this program in using help and also in educating young people like Cynthia in
terms of farming. there's a new mode of farming education and farm development
that's happening which the bill would accommodate, thank you very much.
Chair Asing: Thank you. Is there anyone else?
ROY OYAMA. I got to relax first, it took how many hours to get to
this point so. well Council Chair and members of the County Council. I'm very
glad to be here in front of you hoping it's the final moment and I'm Roy Oyama from
the Farm Bureau and also farmed over sixty plus years on the island. I just want to
make sure that everyone has come before you has testified good information, I am
very proud of the Whitlocks, the son and he's the future for us also. I mean. he's
young and he's very strong to farm, I can see that so we need help for him, as well
as Lousia and we have many more outside of the room. you got to understand now
we took up many hours, we expected to be here before you by ten (10), and this is
past five (5) so excuse me. So anyway I want to continue that they have brought to
you very good points that you need to think about and as Chiang has stated and I'm
glad she came from the National level, has a lot of good experience and it's. I'm
very proud to see a person on a National level coming to settle down in Hawai i and
so Lousia needs a housing structure. Also the testimony from Jerry, he had said it
right, he hit it on the nail and I want to add to it that this bill is tighter than Maui,
you have to understand now, we took the Maui's version and we started on it from
the Planning. And it has helped us to get to this level, it was very hard to convince
everybody in the early beginning but I'm glad today that today we are settled on to
this area, so in all in good faith agriculture as you know also in the Nation is only
two percent of the population so guess how much support they have? That's how
low it is. Now that's the reason we're before you, we need to help, if we don't have
the help, you may not have one percent and you got to look at that very clearly
because when anything happens on the island, after two (2) weeks what are you
going to do? I'm retired, I still farm but I tell you if we have another disaster and
there's no food, I'm keeping the food for myself and my family first, I have to tell you
the truth, I'm an honest farmer, I have always done that. You know as retired I
produce you know a retired person, pretty good amount of vegetables, I deliver it
around the stores in the island and some restaurants and as you know too the
demand is there. I try to train other people but the stores after awhile turned them
down now it's in the area of as my concern and interest is, we have started some
structures of. structures to bring farmers on and (inaudible) and I think some of
you know so I just wanted to. before I close I just want to thank you all, thank
Ned, his family, Louisa, the farmers, you know Melissa needs a big thank you
because she really worked hard on this issues. Every week we were going to Kapa`a
in the beginning and I couldn't keep up because I come from Kalaheo and you know
the gas price went up, I had to farm more to pay my gas bill so I hope you
understand, I don't get paid, I'm a volunteer as well as Jerry, Melissa is with us but
we farmers are not paying her enough, just to be honest too. I hope we can do
better, and she's hanging on because she's doing a very good fob communicating to
all of you as well as communicating to the farmers. We depend on her to get all this
information out, okay? So in the last try, the word sustainable. think about it. No
farmers tell me if you can be sustainable and (inaudible) with that. Thank you.
Chair Asing: Thank you. Councilmember Chang.
Mr Chang: Thank you Mr Oyama. I don't know exactly how
you worded it but you had said that I guess you're doing some kind of training
program where you're trying to help out farmers (inaudible) some of us may know
Mr Oyama. Oh okay
COUNCIL MEETING -79- May 26, 2010
Mr Chang: Can you tell us.
Mr Oyama. Okay, okay I didn't want to spend time so I can tell
you that because I thought every Councilmember got the word, well what it is, is
I've tried. we're doing it. we have a working group, we have formed an
organization that we call Kauai Farmers Association non-profit and it's umbrella
under the Hawaii Farm Bureau of Foundation and the other one is the Kauai
Farmers Development Corporation which we plan to open the doors at the airport,
the old Papaya Plant, it took many years, it's a struggle because I do not want to
bring only papaya in production. We have to spread our portfolio to be successful
that's the reason why many farmers failed, like if you invest in your savings and in
the banks and invest in investments, do you take only one (1) investment? That
(inaudible) is no, you need. several investment spread out in different segments, if
you don't, you're not covering your pocket well, same with this. we want to cover
other crops, we want to market whatever produce and fruits as well as papaya and
we're not looking at trying to compete with the other countries because you know
pineapple has gone out, they're just trying to produce enough for locally and some
export, sugar is about to go in Maui if the water condition fails so I just want to let
you know that this structure that we're teaching, we are picking up students to
train, we're trying to get more grants to do it too. It's the KFA, we are working with
trying to acquire land at Kalepa, we are not totally legally in the position to qualify
for (inaudible) we are working on it and we hope to be in a month. The development
corporation is where we want to do bringing in the products, produces, or fruits or
vegetables as well as the papaya for handling, packaging and materially looking for
markets but markets we're looking for has to be an area where the farmer will
benefit in profit, if it's too cheap, we'll discourage that production.
Mr Chang: So what is the interest or enrollment of the
students or the potential farm workers like, what would the number be?
Mr Oyama. It is not, it is not being. I'd be honest it's not being
very high because many people don't understand farming and today people have a
lot of instant, you know everything is instant today so their habits are trained to be
instant use so the work of the farm is not never instant you can ask Ned, you know
you can ask Louisa, you can ask Cynthia, it's not instant and that s where the
training. we've got to get them like bare hands and train shoulder to shoulder
Mr Chang: Thank you.
Chair Asing: Thank you. Any other questions Councilmembers?
If not, thank you very much. I appreciate it.
Mr Oyama. Thank you.
Chair Asing: Is there anyone else who wants to speak on this
item? If not, I'd like to call the meeting back to order
There being no one else to speak on this matter, the meeting was called back to
order, and proceeded as follows:
Chair Asing: And with that, Councilmember Furfaro.
Mr Furfaro. Mr Chair so that we can go on with our business
may I make a motion to approve this bill and look for a second so we can.
Chair Asing: Okay
COUNCIL MEETING -80- May 26, 2010
Ms. Kawahara. Second.
Chair Asing: Okay Any discussion? Yes go ahead.
Ms. Kawahara. Thank you Chair Asing. I'm glad to see that we
still have our (inaudible) here, I have watched this group over two (2) years evolve
into a sophisticated and practical group of people that have worked hours to bring
this bill to us. When Melissa tells us that they are handing this into our hands, it
does. it feels like a baby being handed to us to give it a chance to see if there's
something that we can do to help farmers. They've made. I believe they held their
own County Council, they've made decisions that are hard, they had conflicts within
their group but they continued to work closely together to find a solution that will
cover the people that they want to benefit from this. They dropped out a wider
range of bill so that they could focus specifically on farmers that need the help now
Farmers that can prove that they're farmers and farmers that need the help now
When I see Jerry Ornellas and Roy Oyama here, initially they had serious concerns
as every single person on this council table does and every single person on this. in
the Chambers here has about abuse. when I see them here supporting this bill,
that is practically all I need and knowing this group of people and all of their work
they've done on this bill. To me this bill represents food security, healthy
community, the proper stewardship of agricultural land, the diversification of the
economy and honest farmers. I'm familiar with the Whitlocks and I'm familiar with
the Wootens and I know this bill and I know these farmers and this is a bill that
will benefit farmers and true farmers. They have given up things that they wanted
to get to this place to be able to get what we are able to give them. I think why
everybody takes this so seriously and it is why this is so important because all of us
know we are hemorrhaging Ag lands, we are hemorrhaging farmers, to me there's a
great urgency in this, to me I also know that there's fear but I'm asking that the
Councilmembers here rise above that fear and acknowledge and respect that fact
that there are farmers that are going to benefit from this. and if there is abuse,
the greatest fear is that there will be abuse. but my point is rise above that fear
because there are honest farmers that need this bill, we need this bill, we need to be
able to be food secure. If there are no farm workers, agriculture is not viable. I
strongly support this bill and I ask for the support of the Council for this bill for all
the reasons that I've listed, I do want to thank Councilmember Furfaro, Vice Chair
Furfaro for his sharpening of this bill for two (2) years. And also former
Councilwoman JoAnn Yukimura, this has been a big ordeal and it has and they are
handing it into our hands and I hope that we're able to make a decision that will
benefit this entire island. And show a promise that we do support and do want
farmers, real farmers farming our land and providing us food security and health
community, thank you.
Chair Asing: Thank you. With that let me. yes? Go ahead.
Councilmember Kawakami.
Mr Kawakami. Before you take the floor I guess. I'm not
necessarily afraid of abuse. it dust. it was a concern so. that comment was
pointed at me. I'm not fearing of it, it's dust a concern, a big concern. But couple
questions I'd like to address to you and maybe if somebody else would like to answer
them. You can feel free to chime in, how many farmers actually make thirty-five
thousand or more? How many farmers will this actually help, one (1) question.
Second question, what's wrong with our current mechanism, I mean I want
somebody to identify what is wrong? Because currently from what I understand. if
I'm wrong, I can be corrected. if you're a farmer, you don't have your farm worker
housing, you can go and apply for a use permit. Now the concerns that came out to
the findings was that, the way the bill is written if you, if you meet all the
COUNCIL MEETING -81- May 26, 2010
conditions you just automatically get granted a use permit without going to the
Planning Commission and without going through that process. So I want to know
how this is better than what's currently written, how many farmers actually make
thirty-five thousand dollars or more, because from what I'm hearing is correct and
most farmers can't even make the thirty-five thousand, to me there's a bigger issue
besides farm worker housing and we got to take a look at some of the other things
that I brought up earlier I'm not going to rehash anything but how many farmers
are actually making thirty-five thousand dollars or more and what's wrong with the
current, the current mechanism to allow for this use because we have something
that currently allows for it. so all of this saying that you know we're not allowing
housing for the farmers, I don't know how true that is, unless I'm completely wrong
at reading this as written. So if I'm wrong, correct me. But from what I understand
it's allowable. It's just a different process and the current process may even be
easier than what we currently have Questions to ponder
Chair Asing: Thank you.
Ms. Kawahara. Mr Chair?
Chair Asing: With that. what I'd like to do. did I hear
something?
Ms. Kawahara. Oh I thought he was asking something. but I
think they were ponder just to ponder yeah?
Chair Asing: Okay Let me do this, I'm going to make a
presentation so if you don't mind let me set up please.
Mr Furfaro: Okay we're going to take a few moments and let the
Council Chair
Mr Chang: Caption break?
Mr Furfaro: We'll do a ten (10) minute caption break and let the
Chair set up for his presentation and after his presentation I'll attempt to answer
some of Mr Kawakami's questions.
There being no objections, the Council recessed at 5 36 p.m. The meeting was
called back to order at 5 48 p.m., and proceeded as follows:
Mr Furfaro• I'm going to take over the running of this meeting
as the Chairman makes his presentation, so if I could have the attention of the
audience, are the camera people back? Mr Chair the floor is yours. May I have the
attention in the audience, we're picking up your discussion on the camera live and
Mr Asing is making his presentation. Thank you audience.
Chair Asing: Thank you. First of all let me just start by saying
to all of you that have worked so hard so diligently trying to do the job as you see it,
I respect you for it. But I have some difficulties and I will explain these difficulties.
Let me start by saying I fully support the intent. I'm going to repeat that again..
the intent of the farm worker housing bill. However I cannot and will not support
this bill in its current form. Let me explain my concerns, first of all the first point
that I'd like to make is that in my opinion I feel that this bill is bad planning.
Number two (2) this bill I have here on my worksheet, difficult to enforce. Let me
take that word difficult away and say impossible to enforce. Third, this bill will
drive up Ag lands costs. Put the first slide on please.
COUNCIL MEETING -82- May 26, 2010
Let me read you this policy The policy section of the General Plan states.
allow incremental growth of towns contiguous to existing development and ask us to
limit the development and the dispersal of Ag agricultural communities through
zoning regulations, by the way this is not my work, I borrowed it from another
Councilmember who made a presentation using this. Put the second one on.
Over the years the development of agricultural subdivisions has changed
parts of Kauai. What was previously an agricultural rural landscape has been
developed into a quasi suburban landscape dotted with residences on large lots.
This again is not mine, I borrowed it from another Councilmember who made a
presentation. Now let me do this. let me go to 1989 In 1989 the Council in
response to the need for affordable housing passed Ordinance 551 which allowed for
the building of additional dwellings units on Ag again, Ag and Open zoned lands.
You'll note here the vote went six (6) to one (1), who was the one (1)? That's me. I
didn't agree with it because I thought it was wrong. wrong, wrong, wrong. in my
opinion at that time. I want to also tell you that the Planning Commission also
thought it was wrong, wrong, wrong, they did not agree with it but the Council
passed it anyway
Now guess what happened? The bill passed in 1989 and there was going to
be for a two (2) year period and then we'll see what it looks like and then maybe we
can extend it. Well guess what happened when the extension period came two (2)
years after we passed the bill. there is this veto message here, this veto message is
from the Mayor and the Mayor's veto message states. I'm going to read it. that it
is equally important to limit and control the dispersal and of residential and urban
use within the agricultural district in order to protect and preserve Kaua`i's
agricultural resource base for the future and to prevent low density sprawl which
increases the cost of public infrastructure and services. The veto message further
states that if there is to be increased densities on agricultural lands, I believe it
would be better done as part of an overall look at our rural and agricultural lands
rather than an adhoc add on to ADU's, that's the message, veto from the Mayor
bad bill. Of course the Council in its wisdom did not listen to that message so if you
look at it here, here is 1989 the ordinance gets passed, two (2) years and there is a
veto here go by we get to 1993 guess what happens? It moves on to 1996, it moves
on to 1999 and then comes to December 31, 2006 and now we say wow bad bill.
wrong, wrong, wrong. end it. And of course the Council I guess maybe in its
wisdom decides even to do this when it came to 2006, yes we ended it but we ended
part of it because if you could get a building permit, then you could get the
extension so we took that extension that was supposed to expire, in 2006 and guess
what, we moved that to 2009 and then in 2009 we moved that again to 2014, when
are we going to learn? We said it was a bad bill, we made mistakes.
The Council finally stopped the ADUs, history is repeating itself. Let me
read this findings and purpose. the Kauai County Council finds that Ordinance
551 the Additional Dwelling Unit law was passed in 1989 to create affordable
housing on agricultural and Open zoned lands. Now I don't need to read the rest
because it's just wrong but where does this come from? It comes from a bill here
that is 843 that we did not do anything about anyway Now okay you can put the
next one on. now we come to Bill No. 2318. In 2318 what is it again? The farm
worker housing bill is now turning into what we said was no good in 1989, that's
what we said, it's no good. And then we killed it and what happens now? Up comes
another one, draft bill 2318, the only difference in this one here is instead of
affordable housing, we use another term and we call it farm worker housing. Now
again I think that we're, it's like saying when are we going to learn? We just said
it's no good to one series and then we go back again to the same place, we're going to
start again. Are we going to say then we wait another ten (10) years and say oh we
made a mistake, maybe we did. Now let me. go to the next slide.
COUNCIL MEETING -83- May 26, 2010
Let me do this, this is the Kilauea area, in this particular slide here this is
Kilauea, remember the policy section of the General Plan that states allow
incremental growth of towns contiguous to existing development to grow out, what
are we doing? Reversing, we're growing in. look at all of this, we're not growing
out, we should have kept all this and grow out this way, that's what the General
Plan says. But we did not listen, I guess. Now the second slide that I showed you
over the years the developer of agricultural subdivision has changed parts of Kauai
on what was previously an agricultural rural landscape has been developed into a
quasi suburban landscape, here's the suburban landscape. Look at that. Now let
me do one more thing for you. next slide. this slide here represents. go back
again to the previous slide. in this slide here what we have is five hundred and
eighty-five CPR units and they're numbered, you can't see the number here but if
you count them, everything that is on this map, there is five hundred and eighty-
three CPR units. Now let's say if you pass this bill, as an example two (2) of the
main qualifying points is one, it has to be dedicated. Two (2) you need to besides
dedication CPR, it has to be a valid CPR. We have here five hundred and eighty-
five valid CPR, we also have here two hundred and sixty-one dedicated properties.
Next slide. the two hundred and sixty-one.. is all of this. We pass this bill,
you qualify The only missing thing that you need to do, the major thing. two (2)
things, one (1) is the thirty-five thousand dollars, yeah? That's the missing area
and the other missing area is farm worker plan, those are the key issues. Now just
imagine this, I am someone who lives in this subdivision here, my density is gone, I
have children and I want my son or my daughter to have a house to live in, my
property's a lodge here. I have the list of the five hundred and eighty-five units in
here, I can tell you the owners, I can tell you the size and they're all over the place,
it ranges anywhere from three point three nine acres, nineteen, four, thirteen, five,
just all over the place. But just imagine this, if I'm somebody who lives in here, my
density's gone and I have children and say I want to build a house for you. all I
need to do is two (2) things. one is farm and do the thirty-five thousand dollars for
two (2) years, I qualify wow I do that and I have a farm plan, I can now put a
unit on for my children. Wouldn't you do that if you were there? Of course you
would. Because it's an opportunity to put a unit on your property for your children
and I would do it because I don't think my children could afford someplace else to
build a house, so I'm going to do it. So this is what you're going to look like and this
is what this bill will do. It could create this as a possibility the potential is there to
do it. Now the potential that I'm talking about here is just one (1) unit, there is a
potential for three (3) units on each one of these. The potential is there, you can do
three (3), six hundred square foot units. So again it's very, very dangerous. Put the
next slide on please.
I want to go on now to Moloa`a. Let me explain Moloa`a. The Moloa`a
property is in the red here, is the Moloa`a Hui property today The section in black
here represents another portion of this development originally What happened was
in 1997 the developer came in, you can't see it here but there are twenty-two lots
because this is the farm Ag subdivision for AMFAC, so some of these lots here
extended beyond there so there's all kinds of lots in here. So what the developer did
was he came into the Commission and changed this so that all of the lots and you
want to bring this. these are the consolidated lots that were in here. And what
was done was they took all of these lots, consolidated the lots and after
consolidating the lots they ended up with two (2) lots, so the red is lot one (2), the
black is lot two (2), the Hui kept the red lot and then the lot two (2) was sold to
someone else. So lot two (2) is now out of the picture and all we have is lot one (1)
Next slide. now let me tell you what happened after they did this. After
they did this they came in to the Land Use Commission through both zoning,
COUNCIL MEETING -84- May 26, 2010
special use permit and subdivision totally create this. What the developer did was
he created on lot one (1), two Hui's. he called it Hui one (1) and Hui two (2) In
Hui one (1) he had nineteen CPR units, in Hui two (2), he had eighteen CPR units,
for a total of thirty-seven (37) total CPR lots. Now at the same time he also came in
and said representing that on Hui two (2) lots, out of the eighteen (18) lots, only
four (4) dwelling units would be allowed, the other fourteen (14) dwelling units.
I'm sorry the other fourteen (14) CPR units, there would be no building allowed.
So this is upfront. You want to turn the next map and here is what I'm talking
about, remember the five (5) and four (4) I made reference to, that's nine (9) so they
came into the Commission, they got the approval and this is the approval. one,
two, three, four, five, six, seven, eight, nine, so the plan was. we're going to do an
Ag subdivision here and we're going to kind of cluster the units away from this
productive area and for your information this property here approximately one half
of this property is (b) rated lands, very, very high class lands. You don't have very
many (b) lands on Kauai, let me tell you. So they come in and they get this
approval. Then in 2000, the year 2000 they come again and when they come in
again they say oh we need four (4) more units, we need four (4) more unit because
we cannot sell them.
Mr Furfaro: Mr Asing, I think it was five (5) units they came in
for
Chair Asing: No.
Mr Furfaro: No?
Chair Asing: No. Mr Furfaro, I spent so much time it's.
Mr Furfaro• Oh I agree with you and I wasn't on the Council in
2000 but the number I got from Planning on the history told me they came back for
five (5) so if Planning was wrong.
Chair Asing: No, no. wait. there's a misconnection and
misunderstanding. The five (5) that you make reference to is five (5) units that are
allowed in the (inaudible) the Ag parcel.
Mr Furfaro: Got it.
Chair Asing: Because the entire Ag parcel allows you five (5)
units and there is an additional open area that is approximately forty acres that's
where the other units came from.
Mr Furfaro: Got it, thank you.
Chair Asing: Okay , now let me read you this, this is the
application that caused that. at the opening of the public hearing on August 14,
1997 the applicant represented to the Planning Commission that a maximum of
nine (9) farm dwelling units would be constructed on lot one (1), lot one (1) the big
lot that has these homes and would be exclusively for the Moloa`a Hui farmers. As
a result condition three (3) of the above permits was imposed and reads as follows,
dwellings units. and I won't read this, this is for Moloa`a Hui. Now this is in 2000
when they came in and let me read you the request. the applicant is requesting to
amend their original representation regarding residential density for lot one (1) by
increasing the amount of farm dwelling units from nine (9) to thirteen (13), four (4)
more were added. The basis of the request is that there is, there was a need for an
additional house sites on the subject property of lot one (1) and after consulting
potential farmers and buyers, subsequent to the subdivision approval and lending
COUNCIL MEETING -85- May 26, 2010
institutions would not approve loans on just raw land and without the house sites,
so this is how they got the additional four (4) more units. And you want to show
that? Let me read some of this because I think it's important, the applicant
explored the option of subdividing to accommodate additional farm dwelling units;
however, it was determined that subdividing the property would be contrary to the
intent and function of this development of an agricultural park subdivision, thus
the applicant is seeking the proposed amendment and the proposed amendment.
let me just read it to you. As a (inaudible) the primary purpose of the various
permit was to enable the applicant to continue and promote the Ag park use of
lands. The intent of that subdivision, Ag park. remember that Ag park. In the Ag
park they only allowed thirteen (13) units, the nine initially and the additional four
(4) Now let me just read this to you. the various permit was very significant
(inaudible) the overall project concept which was to continue to cluster the bulk of
the farm dwelling units within the (inaudible) productive area of lot, it should have
been one (1) and to separate the more highly productive lands into other lot, which
would be available to affordable farmers. The maximum of thirteen farm dwelling,
not involving the subdivision of the property, it was the applicant's intent to
preserve the function and significance of the Ag park, thus the additional four (4)
dwellings would not detract from the Ag park cluster concept. So I agree with the
intent and purpose was to use it for Ag purposes but remember only fourteen (14)
units and if it sounds like but he said thirteen (13), nine (9) and four (4) is thirteen
(13) the reason it became fourteen (14) is that one (1) lot allows you to put a guest
house and that's where the next number came from, the fourteenth (14th) unit from
the guest house allowed on the lot. Now I want to emphasize again the reasoning
that this came up preserve the land only thirteen (13) units in this area, the rest no
units, all farming activity We keep it in farming, don't lose it, keep it in farming.
If we do this we will pass this bill we won't, it's gone. I will tell you now it is gone
Why do I say that? Okay next slide.
This one here is just showing you this. These dots here is the original line,
these dots here is the four (4) units that they came in and asked for that. Now
here's what you have, in this area here what you have is you have now sixty-one
(61) units in this area. By the way, what was the original if you remember the map
before this, thirty-seven (37), thirty-seven (37) was the original plan, save
everything thirty-seven (37) only They added another twenty-four (24) why?
Why? Some of the lots as small as three point three nine two acres, for farming?
That small? Something is wrong. It's going haywire now, now you starting to lose
this Ag activity and you're going to lose the land because it's not going to be Ag
activity anymore. Okay try the next slide. Now I just show you this to say this.
Go back again one. These dots in yellow here represent out of the total of the
number of sixty-one (61) units in here, forty-three (43), forty-three (43) of them has
Ag dedication, so you have again in this area and not Kilauea here now you have
two of the biggest things you need, all you need is the big thing it is CPR certified.
All of this here is certified, you qualify Number two (2) what else do you need?
Forty-three (43) of these are Ag dedicated, forty-three (43) of them. So the
possibility of forty-three (43) units being placed in here is very, very possible again
if you had a lot in here it was Ag dedicated and you met the requirement, wouldn't
you say oh I'll just farm two (2) years, make thirty-five thousand. boom I get a unit
in there. Of course you're going to do that, and that's how you're going to lose it.
Because after you do the unit and you don't farm, I do not believe and I use the
word impossible, history has shown us that we will not, not take the house down.
Not going to do that and I can show you cases like that. Who's going to take the
house down if you don't farm? What if you say well I tried after two (2) years and I
couldn't make it, the market is not there, the crops fail, use any excuse you want
but you could do it. Not you as farmers but I'm not looking at you as farmers, who
are the people that bought in here? Shall I tell you some of the people who bought
in here? Let me show you this slide first. This slide here represents the entire
COUNCIL MEETING -86- May 26, 2010
parcel. The red represents the roadway, this is the roadway for the Ag subdivision
in here and if you notice the reason the roads are cut like this is you will note that
you gained access to every parcel this way and you notice you get here because
that's available to you, that's available, that's available through this road. That's
available, that's available, that one is available through that road. So every lot you
will see the roadway connected but go there today, it's all dirt roads first of all and
it's (inaudible) it's all over grown. Many if you go there and you drive in over here
and try to get here, it's not easy for you to get there. Because it is overgrown, who's
taking care of the maintenance of this roadway? I don't think it's doing very much
and I know that, I have enough background information that maintenance is almost
zero. Try to get this updated. Now can you imagine if you have that. all of those
units in here and. what about the maintenance of the road, how are you going to
do that? How's the Fire trucks are going to go in here? Today I believe the Fire
truck can't get in some of these areas. They just can't. I know, I drove in there, so I
know what it looks like. Now I just feel that you know it's not right, it's wrong.
Let me just do this, I'm going to read. (can you turn on the light) oh that's okay
maybe you don't have to. Some of the owners of the property here. This one here
happens to be three point three nine two acres address for the building 19
(inaudible) way San Francisco California. Let me read another one, this one here is
ten point six four three acres. address Greenglenn (inaudible) Farms Michigan.
Oh here's Michigan again (inaudible) Farms again except it's another lot, but two
(2). Let me see, this one here is five (5) acres. three, five, six. (inaudible)
California. Next one five point three five acres address. (inaudible) Washington.
Next one four point seven one eight acres address Highway Applegate Oregon.
You're going to lose your land, of course you're going to lose it. You losing it
already Something is wrong, something is wrong. Now I looked at all of the
information that I tried to put together and let me use, I guess I said impossible, I
said difficult, I wasn't going to go here but I will. go to the next slide.
Mr Furfaro: Mr Chair before you go to the last.
Chair Asing: Well before I do that, let me just do this. show
that one. From the original 1997 approval of thirty-seven (37) CPR units, today
there are sixty-one (61) total CPR units, what is happening? What is happening?
Smaller lots, for what purpose? (try do the next slide) now I'm going to show you
this and just say this, this happens to be an Ag subdivision, now in this Ag
subdivision again we have conditions of approval for this Ag subdivision. (put on
the condition) here it is from the Planning Department this is a condition that you
have to meet, State law (you want to throw that) this is that condition. the
applicant is advised that uses on the newly created lots, which I just showed you..
shall be limited to those as listed. those listed as permissible uses within the Ag
agricultural district in the State Land Use Commission rules and regulations.
Dwellings on the lot shall mean a single family dwelling located and used in
connection with a farm where agricultural activity provides income to the family
occupying the dwelling. These restrictions shall be included in the covenants for the
purposes for the proposed lots, draft copies of which shall be submitted to the
Planning Department for review and approval. Those houses over there, you're
going to take them down? They don't meet the requirements, that's the law You're
going to take them down? I don't know about that. Am I getting clearer now? It
might be impossible, I had to word very difficult but I changed that to impossible.
There's a lot of houses in that area. I will agree that I see some people trying to do
Ag activity, I give them credit, not everybody is not doing Ag. people trying and I
respect that but the fact is enforceability is it going to happen, I do not believe so.
History tells me otherwise and I know it for a fact on what has happened is
continuing to happen and these are just some of the kinds of concerns that I have. I
would love to work with you to try to get something better but I cannot vote for this.
Look at what you're going to do to the rest of the island. I showed you Kilauea,
COUNCIL MEETING -87- May 26, 2010
what about Wailua? What about Lihu`e, what about Koloa, Oma`o, Hanapepe, same
thing. You're going to ruin the island, you've ruined it already, we have ruined it
already And it's going to get worse unless we start to work together and try to
come up with something that is more workable. I just do not believe that this is the
method that we should be using to do this and I have some just major concerns
about this. And granted I know that some of you are working hard and trying to
farm but please try to understand this, in the very beginning, the very beginning
now yeah? It was Ag purposes nine (9) clustered towards the outside, nine (9)
preserve all of this land, good idea. I was one hundred percent for that. What has
happened today? (next one, next one, no.. I looking for the ones with the sixteen,
seventeen, eighteen, nineteen. you don't have sixteen) let me show you this, let
me read it to you. This is Hui lands here, what is that? Let me go over here now
and let's just pick the acreage. Land area ten point six four, list price, look at that,
seven hundred and eighty-nine thousand dollars, can you farm paying that kind of
price? I don't know how you're going to farm paying that kind of price. Next slide.
Here's another here. Look at this, this one here acreage seven point two six, look at
the list price, listing price nine hundred and twenty-five thousand dollars. you
farming over there? I wonder if you farming. (Next slide - don't have to go to this
one, the next one) I'm just showing you this because. (go back again one) okay look
at this one, this one was on the market, here you go, listed date 11/17/2007, this is
one of the units that was allowed, one of the initial units that was allowed, look at
this. farming? Yeah I don't know maybe farming but list price, what is the list
price here? (you want go to the next. no. okay I'll find the list price here. okay
but I think we can get this big yeah? No? okay) now here s the list price one point
eight seven five million. that's what's going on over there. We losing it already
Now these are the kinds of things that is going on over there that's happening and I
just have some major, major problems on what's happening, what we're doing here.
Sometimes I think we haven't learned, we go back and look at history and we said
oh yeah we made a mistake, we correct it. And we go back again and do the same
thing, something is wrong. And so I have serious reservations about this bill, I
cannot support this bill, I just cannot, it's wrong, it's going to affect the whole island
not Moloa`a. Moloa`a is one (1) portion of the island, Kilauea, Moloa`a one portion of
the island. Wailua Homestead, Lihu`e, Koloa, Omao, Lawa`i, Hanapepe, Waimea
they all included in this and if we're not careful that's what's going to happen to us.
And for that reason, I have some grave, grave reservations about the bill and I
cannot support the bill for these reasons. Thank you.
Mr Furfaro: Mr Chair I think we want to take appropriate
dinner break here.
Chair Asing: Yes.
Mr Furfaro: For the staff, I certainly do want to say that I
appreciate your presentation, it brings a bigger issue to the fact as you pointed out
in Moloa`a they took what was a subdivision put it back together to create a CPR
process that gave them sixty-three (63) units and that was one of another way of
getting around the single subdivision process but I would have raised a legal
question back in 1997 to say subdividing a parcel and then putting back a parcel
again is in my opinion a second subdivision. I would also like to just point out
before we break, I have full respect for your history on the things but this bill had
eleven (11) controls points in it and as you flashed the owners there, one of the
amendments that we have in the proposed business. bill is a exclusive residency
which means that the property is the person's only home of residence. If the person
has moved, more than one home or residence, then the person does not have an
exclusive right to any residence on the parcel. So I just to say some of your
presentation today there are eleven (11) other conditions that we haven't got to that
may address our understanding and at the same time I do want to say some of these
COUNCIL MEETING -88- May 26, 2010
things that have occurred, we have to depend on your history because they didn't
happen on our watch.
Chair Asing: Yes and let me close if I may?
Mr Furfaro: Oh yes you have the floor
Chair Asing: As I researched this issue it appeared to me that
the condition of the variance permit granted by the Planning Commission are not
being followed or adhered to. I am asking that the County Attorney and the County
Auditor look into the Moloa`a subdivision and CPR's to determine if there are
violations of the permit, violations of the permit, and the County's zoning and
subdivision ordinances. If these conditions of the variance permit are not being
followed, we should not allow the development of farm worker housing because it'll
compound the problem. So I will be sending a communication both to the County
Attorney's Office, I have touched basis with him but I will send a formal
communication. I have also touched base with the County Auditor's Office and I
will also be sending them a communication to look into this. With that thank you.
Mr Furfaro: Mr Chair may I just get some clarification because
I too when I went to this particular density locations, it seems that some of the
units. their locations have been changed, just for Moloa`a, without record keeping
at the Planning Department, is that what you're referring to?
Chair Asing: It's a little questionable, those dots that you see
there. of the location of the units were put on and I have the original. well not
original. I have a copy
Mr Furfaro: Of the original.
Chair Asing: Of the original map and so those dots are specific to
that lot, if the dot is there, that's the lot that has the housing density otherwise you
can't move it but there was one. another questionable area to and that's the guest
house if you notice there was a guest house on a separate lot, I do not believe you
can do that legally The guest house is an accessory to the main house, which
means what? It has to be on the same lot because it is an accessory to the lot, the
house and in this case here I noticed that the guest house is on another parcel and
you cannot do that because it is an accessory, you cannot take that accessory and
put it on another lot, so that I believe is a violation also so.
Mr Furfaro: Well thank you for that clarification as there was.
when I raised the question there was some applied. implied trading of the density
and that's what triggered this exclusive residence amendment of one of the eleven
(11) conditions but I think sir on that note, we need to break for dinner
Chair Asing: Okay
Mr Furfaro: That's fine with everybody? And we move to break
for dinner and come back at I guess that's 8:45 p.m.
Mr Kaneshiro: 745.
Mr Furfaro: 7 45 I'm sorry So we're on dinner break.
There being no objections, the Council recessed at 6.45 p.m.
The Council reconvened at 7.57 p.m., and proceeded as follows:
COUNCIL MEETING -89- May 26, 2010
Ms. Kawahara was noted excused from the meeting.
Chair Asing: Meeting is now called to order We have a motion
on the floor, any further discussion?
Mr Furfaro: May I ask.
Chair Asing: Yes.
Mr Furfaro: If I could have that motion, is that a motion to
refer, defer is that.. what kind of motion is that on that floor
Chair Asing: Motion to approve.
Mr Nakamura. The current. the motion is to approve.
Mr Furfaro: Okay I do want to say that if we do call for a
question on the approve and now we get an absent excuse with Kawahara the fact
of the matter is I don't think we're going to get to a point that you know, the
question will be resolved and it will automatically go to a deferral.
Chair Asing: Yeah.
Mr Furfaro: So I mean the question is should we just defer till
the next Council meeting?
Chair Asing: No I suggest we take the vote.
Mr Furfaro: Okay
Chair Asing: We have the motion on the floor now, is there any
further discussion? Councilmember Bynum.
Mr Bynum. I hardly know where to start because I am very
disappointed about the presentation that the Chair just gave, so I'll start with my
I'll start with a question if I may Mr Chair?
Chair Asing: Sure.
Mr Bynum. You gave an example of an Ag subdivision up there,
happens to be the one I live in, is there a particular reason why of all the Ag
subdivisions in the County you would choose that one?
Chair Asing: No, it's a simple small easy to gain access to and I
didn't mention any names or anything. there was no names mentioned, I had the
courtesy of always not addressing people concerned of using names, so I don't do
that and it was not my intent.
Mr Bynum. Well I've told. yeah okay well I'll just move on
from there.
Chair Asing: Sure.
Mr Bynum. I'm disappointed also because I think your
presentation compares apples and oranges. the situation with Ag subdivisions
proliferating around the island, we've discussed here on Council a number of times,
COUNCIL MEETING -90- May 26, 2010
especially during the recent open space density bill which passed. And the General
Plan you know the slides you used were from a presentation that I've given in the
past, that I'd probably give again because I think it's an important issue for Kauai
that there indeed has been abuse of agricultural land wide spread for many years
on, on Kauai. I believe one of the biggest, one of the biggest abuses is that even
though ten (10) years ago in the General Plan the proliferation of Ag subdivisions
was identified as a Planning problem that didn't realize our vision for Kauai in the
future that impacted agriculture and sustainability and caused cost, increase cost
for the county as we can't, it's difficult to service agricultural sprawl and defacto
residential subdivisions, and the General Plan asks us to address that in the year
2000 very clearly It said that the Open space density bill was a critical issue that
should be dealt with right away and it took us ten (10) years and we still have not
addressed the issue of subdividing agricultural land for defacto residential which is
just gobbling up Ag land but the bill before us is not that, is not about ADUs and I
applaud and recognize that the Chair opposed ADUs consistently throughout the
history on Kauai. I think that was the right position to take because it just
exacerbated that problem of sprawl on agricultural lands just like the Open space
density that caused that problem, the ADU doubled that problem and it's good that
that was finally sunset. But we have yet to say to establish this simple criteria, if
you subdivide agricultural land, show me that it's for Ag and if it's not, we should
say no but we never developed those regulations. The former Mayor Baptiste put
forward that proposal twice during his career and was not able to be successful at
this Council and that is a huge problem. Why did it take ten (10) years, why did it
take eight (8) years to regulate vacation rentals? But the bill before us says that
there are people on Kauai who do use agricultural land for Ag, who do produce food
and do organic and sustainable Ag and they've come to us and asked for some
support of agriculture. So as the County we sat here for ten (10) years and allowed
this abuse to continue when every other county has addressed it one way or another
but we couldn't find a way to do it somehow, when real people who are really doing
Ag come and ask for our assistance, now we're really worried about that abuse,
right? I believe and I said this before, I'm concerned about that abuse, I think we
should have passed the CPR bill long time ago, I think we should have passed a bill
that addresses the use of agricultural land a long time ago and you know that's one
of the main reasons I got involved in elected politics because I wanted to be
somebody that was a very high priority I have disclosed more times than people
want to hear probably that I live on a agricultural subdivision. I didn't know these
issues in 2000 when did this happened, I just knew that there was land available
for my family I know now that that was poor planning, I know that that wasn't
good for the county of Kauai, I know now that as the slide you said says because we
allowed that, we weren't developing working class neighborhoods for working
people, we still aren't. They're few and far between. But this bill is about Ag and
there are eleven (11) provisions that were worked out over a two (2) year period to
try to address whether that abuse occurs. So when that abuse is occurring on Ag
subdivisions that has permanently subdivided huge portions of this island, nobody
does anything. Nobody moves on it but when we try to come up with a bill with
provisions to address abuse to really help people who are growing food and farming,
we're so worried about abuse that we can't pass it. I said in previous meetings that
I believe that good work that's been done in a collaborative effort by the community,
along with leadership from our Planning Chair have crafted a bill that I think
addresses those concerns enough for us to move forward and give that opportunity
to actually help real farmers who are trying to farm, so I will be supporting this bill
and I will be very disappointed when it goes down and I wish that we would talk
about the bill and not mix up a whole bunch of history in a way that I don't think
accurately portrays the issue. Thank you.
Chair Asing: Thank you. Any further discussion?
Councilmember Furfaro.
COUNCIL MEETING -91- May 26, 2010
Mr Furfaro: Ah yes Mr Chair since I asked the question about
the deferral and we're actually going to call for the vote now I do have some things
to speak.
Chair Asing: Sure.
Mr Furfaro And I would like to get a clarification of the rules if
I can have the County Clerk first present.
Chair Asing: Sure.
Mr Furfaro: May we ask for the County Clerk? Could you
introduce yourself.
Mr Nakamura. Council Chair, members my name is Peter
Nakamura, County Clerk.
Mr Furfaro Ah Mr Nakamura I've been working on this bill for
almost two (2) years and I believe for all of the work put in by other people in the
farming community and so forth, I cannot outright.. I could look for a deferral or I
could try to be one of the votes to make this forward but we have one (1) member
that's excused himself, we have one member that's traveling on business, tell me if
we get to a three/two (3/2) call on the question. the bill would automatically come
back, that's my interpretation of the rule, the bill would automatically come back in
two (2) weeks, which would make it about June 9th because you know we never got
to a majority
Mr Castillo: Excuse me. I would like to speak with the County
Clerk before. just to make sure that the answer given is. has legal basis.
Mr Furfaro• Okay I mean that's fine.
Mr Castillo: Just to be clear that we're on the same page and we
have enough time to closely analyze the situation, I gust don't want for us to be
placed on record as far as. I think it would be prudent.
Mr Furfaro: I appreciate the. I appreciate the caution from the
County Attorney but you know I'm, I'm pretty familiar with the rules and the way I
interpret the rules and I wish we would have had a review when Mr Chang and I
introduced rules review but I just want to make sure that if we're pursuing this way
and we come to a three/two (3/2) vote, with one recusal and one absent, we do not
get to a majority of the vote.
Mr Castillo: I understand but I think it would be prudent. I
have the Council rules in my hand and I think.
Mr Furfaro: Shall I ask the Chairman for recess so that you can
consult.
Mr Castillo: I'm requesting a recess just to be sure.
Mr Furfaro• Thank you.
Chair Asing: Okay Let's take a short recess.
There being no objections, the Council recessed at 8:07 p.m.
COUNCIL MEETING -92- May 26, 2010
The Council reconvened at 8.27 p.m., and proceeded as follows:
Chair Asing: The meeting is now called back to order, with that
Councilmember Furfaro.
Mr Furfaro. Thank you Mr Chair So are you prepared to
answer my request on the interpretation of what might be a two/three (2/3) or
three/two (3/2) vote.
Mr Nakamura. Council Chair, Councilmembers, I think it would be
prudent at this time to have the County Attorney come up and address that
question.
Mr Castillo: Good evening Council Chair, members of the
Council, Al Castillo County Attorney Yeah I have a couple of suggestions.
Mr Furfaro: First of all I want to make sure you understand
earlier I asked if we couldn't just defer this bill because of the makeup of the
current body and this hour and we're going for a vote so. what does that mean?
Mr Castillo. That's part of my suggested alternatives. One is I
would strongly suggest that this matter be deferred because of legal reasons.
Number two (2) if not then it's an unanticipated that one of the Councilmembers is
absent, I did not know about it, I was never told so based on that if this Council
does not defer this matter, I would ask that we hold an Executive Session because
the briefing or consultation does involve consideration of the powers, duties,
privileges, immunities and/or liabilities of the Council and the County as it relates
to this agenda item. There in Executive Session I could give you the legal analysis
of this subject matter so it's. either one is fine, it's. I'll leave it up to this body
Chair Asing: Based on the recommendation of the County
Council. move to defer It's worth a try Did our County Attorney just strongly
address us to defer this bill?
Mr Castillo: I gave an alternative.
Chair Asing: Hang on. one at a time. I'm going to take
Councilmember Furfaro and then Councilmember Kawakami then Councilmember
Chang.
Mr Furfaro: I just wanted to know the procedure from the
County Clerk as. there is a. there was a motion and a second. was there not?
Mr Nakamura. Correct.
Mr Furfaro: So shouldn't that be withdrawn?
Mr Nakamura. A motion to defer can be made at any point in time
during the motion.
Mr Furfaro: No, I'm referring first to the question, did we not
earlier make a motion to.
Mr Nakamura. And a seconded to approve the bill.
Mr Furfaro: Shouldn't that be removed?
COUNCIL MEETING -93- May 26, 2010
Mr Nakamura. A motion.
Mr Furfaro• First.
Mr Nakamura. To defer while that motion is pending.
Mr Furfaro: Oh it can be?
Mr Nakamura. Yes.
Mr Furfaro: I just want to be very clear about this because we're
only five (5) members so therefore I will probably ask, has a second once I allow
Mr Kawakami to have the floor, I think that's only fair
Mr Kawakami. I don't think he answered the question though, but
that's okay But either which way if that's what the recommendation is I mean
you know I know where I'm going with the issue. I'm not going to support it and
we're still discussing the original motion because there was no second for the motion
to defer
Mr Furfaro: That's correct.
Mr Kawakami: And you know
Chair Asing: Excuse me, there is no discussion on a motion to
defer
Mr Kawakami. There is no active motion to defer
Chair Asing: Yeah.
Mr Kawakami: So I'm discussing the original motion.
Chair Asing: Even though if it was seconded there is no.
Mr Kawakami. Yeah there would be no. and so I would not be
able to talk right now but.
Chair Asing: No. that's fine.
Mr Kawakami: You know I know this issue is important for
Councilmember Kawahara, she's not here. she's on official county business and I
don't have any problem deferring it, we're going to come back in what two (2)
weeks? And I'm going to vote the same way anyway
Chair Asing: Okay
Mr Kawakami. So you know instead of dragging this thing out and
everybody going to discuss their points again. Just defer so we can go home.
Chair Asing: Councilmember Chang.
Mr Chang: Yeah I. it seems like we're going to have a
deferral but since this is fresh I want to take this opportunity to just state my
position here. When. thirty years ago when I traveled the State extensively
throughout the State, one of the crying slogans throughout the State was from the
I
COUNCIL MEETING -94- May 26, 2010
I
people of Maui, we don't want Maui to look like Waikiki, and when I would come to
Kauai the crying slogan was we don't want Kauai to look like Maui, so I want to
start off my statement that way Secondly when I moved over to Kauai the crying
slogan was keep Kauai Kauai and I could understand that. One of the phrases
that many people are familiar with is out of sight out of mind and I believe when
you drive throughout this island of Kauai approximately eighty percent of this
island is inaccessible, about ninety-two, ninety-three, ninety-four percent is
undeveloped, thank goodness. When I mean out of sight out of mind is when we
drive through these communities we are oblivious with what is over this tree line,
what is on that mountain ridge, what's behind that ridge that I cannot see. I have
quite recently and I can remember the visual that I got, had the pleasure I should
say or the shock to fly over areas that I knew never existed. For example where did
that house come from, my goodness look at the size of the swimming pool, um look
at the guest cottage, is that a heliport where a helicopter can land? With that being
said I have chatted with a lot of people within agriculture business and the hardest
thing that many people have is finding workers to work on the farm and when we
have example harvesting seasonal picking of coffee at the Kauai Coffee Fields, if
the economy or the when the economy gets better or when the economy was good,
you may see a worker for one day a week or a month but you won't not see them the
next day, the next week, or the next month, that's just how it is. People shift
around and the average age of a farmer on the island of Kauai is about fifty-nine
years old, there's not a lot of interest in the younger people getting involved in the
farming and what, what I am afraid of is when houses get. or temporary farm
worker housing gets built, the farm can increase but the labor force can deplete
because people have different interest, they don't want to be around. or for
whatever the reason. Now judging from the people that I talked to based on a
temporary housing unit, that is not elaborate, it's built to be broken down if the
farm doesn't continue on. Anywhere from a thousand to a twelve hundred square
feet can be anywhere between on the low side a hundred thousand, maybe a
hundred fifty thousand dollars or what have you so I think a very good alternative
at this point is the rental market is probably at the best that it's been or there's a
lot of availability, so for a hundred thousand dollars if you are getting a place at
eighteen hundred dollars a month, twenty-two hundred dollars a month, twenty-
four hundred dollars a month, or three thousand dollars a month, you're looking at
a three (3) bedroom, maybe four (4). two and a half bath home, the workers are
now living pretty comfortably hot water, basic cable, no long distance call but
you've got a landline, you can plug in a computer, you probably would have a yard,
or you would like to find a place where you can have a yard that you can grow crops
and seeds and other to plant within the yard, the workers can make their food,
they can make their lunch, they got a microwave, they got a stove, etc. and not
only that for the amount of money that you could buy a new or used SW or van
would be about twenty thousand dollars, so basically depending if you want to get a
one bedroom or a two bedroom. you would be spending anywhere between on the
low sixty-five to seventy-five thousand dollars a year or seventy-five to eighty-five
thousand dollars a year on the high but then you can access the mode the climate
the economic times within how to shift what you're shifting. to me I think that the
majority of the people here on this island of Kauai drive a minimum I would say of
ten, twelve, thirty I beg your pardon. ten, twenty, thirty maybe more but on an
average round trip to get to and from work, that's the norm. The average people
may spend between thirty and an hour and thirty minutes depending on the traffic
getting to and from home so if a worker needs to drive fifteen minutes or twenty
minutes and shuttle the people in and out, that to me is a extremely good
compromise and yet if the farm worker housing is an issue then I think the biggest
problem with what we're dealing with is. I believe everybody supports the farmers,
I do myself. In the old days buy Kauai think Kauai. Kauai Made personally from
farm to table, I get involved with Chef Takahashi at the Sheraton, I sent a lot of my
people in fact I send all of my people whether they go or not to the open markets
COUNCIL MEETING -95- May 26, 2010
throughout this island of Kauai itself. I believe that the problem really exist in the
fact that if and when a temporary structure again is built, the possibility of
removing that structure if all of a sudden you have four months to break that
structure down, and I said you know what you want it down, you break it down,
from the minute that conversation hits. to the minute it gets legally taken care of,
that starting process would be a minimum of two (2) years. So if there's one, two or
three, three, four or five. per year or every other six (6) months, who knows
because everybody or there are those that knows how to navigate throughout the
loopholes and consequently when something like that happens, I've been told that
that process can take years and years and years. to come to a conclusion
consequently who stuck with fighting the lawsuit? The taxpayers, that is my
concern, I just. I believe that this should be deferred, I just wanted to because it
was fresh to bring up that bullet points but I also do want to say that depending on
the outcome is I hope that this Council and I hope somebody can help me or teach
us how through a special use permit, we can help those that we all know that are
qualified, that are identified because the Planning Department knows exactly who
the farmers are, they know the workers, I believe that they really don't have any
concern about a business plan, I believe that they're very concerned with the
enforcement and of what can happen as far as consequences are concerned. Thank
you.
Chair Asing: Thank you. Councilmember Furfaro.
Mr Furfaro• Thank you very much and since I originally I asked
about deferral on this, I want to go back and just touch on some of the pieces here.
Chair Asing: Go ahead.
Mr Furfaro: First of all I really want to make clear and I made
some copies (inaudible) the staff to pass them out. This is my own notes from the
meetings over the last two (2) years that deal with conditions of which there are
eleven (11) scattered through the bill that deal with control mechanism and I'm
more concerned that this pilot program doesn't take us away from home rule and
the reason I say that, I would like to read this piece that we gotten today from the
Land Use Research Foundation of Hawaii. This is letter is to serve as a
clarification of the testimony we submitted this morning. LURF is not opposed to
Sill No. 2318 Draft 3 in fact we support it with the recommendation that it doesn't
apply to Important Ag land. That basically is saying that the State wants to decide
on the conditions for workforce housing in our agricultural districts, it also says that
their conclusion on this will be read some the correspondence, we'll give you up to
fifty acres of camp type housing, that you will be responsible for the roads, the
water, the waste removal and so forth. so they like what we're doing but they don't
want it applied to them, they don't want it applied to them because we have a
number of home rules statistical information in there that deals with every
application is looked at as an individual application and one of those examples here
that takes us away from people being absentee owners on Ag land is the fact that
exclusive residence is. you're required means that the real property that the
person only person's only home or residence is that which they are living in for
farming activity If the persons has more than one home of residence, than the
person does not have an exclusive residence for the purpose of farming. The other
eleven (11) conditions are in there. I also have correspondence that I've been
working on, its specifically dealing with the Moloa`a farmers and their interest as it
relates to specific issues with Moloa`a, and I want to say to the Chair, I appreciated
his presentation and I guess I'm going on the idea that you're still going to pursue
these issues that you mentioned today and I don't necessarily think it should be
done with the Audit but more dealing in an Executive Session and having those
conditions in the bill that have been ignored from Moloa`a reviewed in the piece that
COUNCIL MEETING -96- May 26, 2010
deals with County Attorney review I also want to touch of the fact that although
this ADU piece was going since 1986, I was not part of the Council then but the
compromise I thought and was introduced by me was to have an exit strategy to kill
those ADUs where we allowed people to apply, disclose that they were going to
build and they got a special certificate which amounted to three hundred and thirty-
one across the island that still wanted to have the opportunity to take advantage of
that 1986 law so I agree we had an exit strategy there. This bill is not about
developers although we seem to have some developers that got a little out of control.
I don't understand how Moloa`a was subdivided, then put back together I thought
the rule was a one-time subdivision since the Chair brought it up and we need an
interpretation. This bill with its eleven (11) control mechanism that are reviewed
individually have to apply in front of the Planning Commission and they will get
conditions but this statement from LURF bothers me that we had this opportunity
for a pilot program and to put in some controls at the County level, the home rule
level, and then in their letter saying oh we support the bill but don't let it apply to
Important Ag lands. That's a double standard if I've even seen one so. I will move
for the deferral and I do thank you for your presentation because you brought up
some issues that certainly needs to be resolved but I think through the County
Attorney's Office and an Executive Session.
Chair Asing: Okay let me just make a couple comments and I let
me just do this. the bottom line for me is simply this. the possibility of abuse
outweighs tremendously the benefits and leave it there. And there is no question in
my mind history has taught me a lot. And if we haven't learned, we're going to go
back again and do the same things over again and make the same mistakes that we
learned before but not well enough, that's one (1) statement on the bill. The second
one is an answer to Councilmember Furfaro your I guess feel on that it should be..
you know I should refer to the County Attorney's Office, I am not, not looking at just
legal issues, I am looking at process. Process as an example from the Planning
Department, from the Real Property Tax Office, from the Building Division.
because you as an example in this case, class (4) permit. variance permit,
subdivision permit, now you get these approved with conditions, so what I'm saying
is that when you get this approval, yeah, like as an example, let me use an example
and say the Planning Commission has approved the building of this hotel and here
are the conditions, do we do nothing and just let the project go and wherever it goes,
it goes or do we in fact monitor, check., are they in fact following the process, are
they within the rules and that is process so that's the reasoning behind the
Auditor's Office and the County Attorney's Office, it's kind of a multiple.
Mr Furfaro: Well I just want to share with you, I think going to
the Auditor is probably I would recommend going to the Attorney's Office.
Chair Asing: Yeah.
Mr Furfaro: I just want to share that.
Chair Asing: Yeah.
Mr Furfaro: And obviously you know you talking to someone
who has been on the CZO, I've served on the General Plan, I have also been a
Planning Commissioner for one (1) term and you know at the end of the day I
certainly know the difference between a hotel occupancy permit and a six hundred
square foot farm worker dwelling. What I'm most concerned about, we have an
opportunity for a pilot program here and here we have a LURF guys saying to us oh
yeah we like what you're doing but don't include us.
Chair Asing: Okay
COUNCIL MEETING -97- May 26, 2010
Mr Furfaro• I think we lose home rule on that.
Chair Asing: Okay Well you know. let me just do this, I will
entertain a motion to defer, I don't agree with it but let's just go with that.
Mr Furfaro. I think Mr Bynum.
Mr Bynum. Move to defer
Mr Furfaro: Second.
Upon motion duly made by Mr Bynum, seconded by Mr Furfaro, and
unanimously carried, Bill No. 2318, Draft 3, was deferred.
Chair Asing: All those in favor say "aye" Motion carried. Okay
there being no other items on the, except the Executive Session so we are going to
move into Executive Session, prior to doing that can we have the County Attorney
up please?
There being no objections, the rules were suspended.
Al Castillo, County Attorney- 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 to request authority for a possible
settlement proposal in the matter of County of Kauai vs. State Farm Insurance,
Claim Number 51-0630-100 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.
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 Clerks Office. Discussions
held in Executive Session are closed to the public.)
ES-442 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 to request authority for a
possible settlement proposal in the matter of County of Kauai vs.
State Farm Insurance, Claim Number 51-0630-100 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 Furfaro moved to convene in Executive Session at 8:50 p.m., as
recommended by the County Attorney, seconded by Mr Chang, and
unanimously carried.
COUNCIL MEETING -98- May 26, 2010
ADJOURNMENT
There being no objections, the meeting was in recess at 8.50 p.m.
The meeting was called back to order at 9.14 p.m., and there being no further
business, the meeting was adjourned.
idly submitted,
PET R A. NAKAMURA
County Clerk
/ds