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HomeMy WebLinkAboutpc01-12-10min KAUAI PLANNING COMMISSION REGULAR MEETING January 12, 2010 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, James Nishida, at 9:04 a.m. at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room 2A-2B. The following Commissioners were present: Mr. James Nishida Mr. Herman Texeira Ms. Paula Morikami Ms. Camilla Matsumoto Mr. Cave Raco Mr. Jan Kimura Mr. Hartwell Blake Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA Chair: The first thing on order is the selection of the Chairperson and Vice Chairperson. We are going to open up the Commission to nominations for Chairperson. Mr. Texeira: I would like to make a motion that we nominate Caven Raco as Chair. Ms. Morikami: Second. Chair: Moved and seconded to nominate Caven Raco as Chair, any other nominations? So Caven Raco is nominated as Chair, roll call. We need a motion to close nominations. Ms. Morikami: I make a motion that we close nominations for the Chair position. Ms. Matsumoto: Second. Chair: Moved and seconded to close nominations, all those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to close nominations for Chair position, motion carried unanimously by voice vote. Chair: Roll call. On motion made by Herman Texeira and seconded by Paula Morikami, to nominate Caven Raco as Planning Commission Chair, motion carried by the following roll call vote: Ayes: Morikami, Matsumoto, Texeira, Kimura, Raco, Nishida -6 Noes: None -0 Absent: Blake -1 Not Voting: None -0 Chair: Chairperson Raco, (applause). Chairperson Raco: Are there any nominations in order for the position of the Planning Commission, Vice Chair, nominations needs to be seconded. Ms. Morikami: Mr. Chair, I move to nominate Herman Texeira. Mr. Kimura: Second. FEB 0 9 2010 Ms. Morikami: Mr. Chair, move that we close the nominations. Ms. Matsumoto: Second. Chair: All those in favor say aye, motion carries. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to close nominations for Vice Chair position, motion carried unanimously by voice vote. Chair: Roll call. On motion made by Paula Morikami and seconded by Jan Kimura, to nominate Herman Texeira as Planning Commission Vice Chair, motion carried unanimously by the following roll call vote: Ayes: Morikami, Nishida, Matsumoto, Texeira, Kimura, Raco -6 Noes: None -0 Absent: Blake -1 Not Voting: None -0 Chair: Are there any appointments for Subdivision Committee Chairperson, Vice Chair, and committee members? Ms. Morikami: Mr. Chair, I nominate James Nishida for the Subdivision Chair. Mr. Matsumoto: Second. Chair: Is there any Vice Chair and committee members? Mr. Dahilig: You will appoint them. Chair: So I appoint Jimmy Nishida as Chairperson, Cammie Matsumoto as Vice Chairperson and Jan Kimura as committee member for Subdivision Committee. Is there a motion to accept? Ms. Morikami: So moved. Mr. Texeira: Second. Chair: All those in favor say aye, motion carried. On motion made by Paula Morikami and seconded by Herman Texeira, to nominate James Nishida as Subdivision Committee Chair, Camilla Matsumoto as Vice Chair, and Jan Kimura and Subdivision Committee member, motion carried unanimously by voice vote. Commissioner Hartwell Blake came in late. APPROVAL OF THE AGENDA Chair: Can I get an approval of the agenda? Ms. Morikami: Mr. Chair, move to approve the agenda. Ms. Matsumoto: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve the agenda, motion carried unanimously by voice vote. Planning Commission Minutes 2 January 12, 2010 Chair: Minutes for January 8, 2008 and December 8, 2009, and executive session minutes of October 13, 2009. Ms. Morikami: Mr. Chair, move to approve those minutes. Ms. Matsumoto: Second. Chair: All those in favor say aye, motion carries. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve meeting minutes of January 8, 2008, December 8, 2009, and executive session minutes of October 13, 2009, motion carried unanimously by voice vote. SPECIAL ORDER OF THE DAY Contested Case Hearing: Jeffrey T. Chandler's and Angie Nora Puanani Rogers' Petition for Declaratory Order Regarding Non-Compliance with the December 11, 2007 Approval of Joseph Brescia Is Single Family Residence and/or Petition to Modify or Revoke the December 11, 2007 Approval of Joseph Brescia's Single Family Residence (8/27/09). [Continued 10/13109. Joseph A Brescia's Motion to Dismiss Jeffrey T. Chandler's and Angie Nora Puanani Rogers' Petition for a Declaratory Order Regarding Non-Compliance with the December 11, 2007 Approval of Joseph Brescia's Single-Family Residence and/or Petition to Modify or Revoke the December 11, 2007 Approval of Joseph Brescia's Single Family Residence dated August 27, 2009; Memorandum in SupportExhibits A-C; Certificate of Service (1/14/10), from Philip J Leas Esq Calvert Chipchase Esq and Walton Hong Esq. Joseph A Brescia's Memorandum in Opposition to Jeffrey T Chandler's and Angie Nora Puanani Rogers' Petition for a Declaratory Order Regarding Non-Compliance with the December 11, 2007 Approval of Joseph Brescia's Single Family Residence and/or Petition to Modify or Revoke the December 11, 2007 Approval of Joseph Brescia's Single Family Residence dated August 27 2009. Exhibits A-L Certificate of Service (115110) from Philip J. Leas Esq Calvert Chipchase Esq and Walton Hong Esq. Chair: The special order involves a petition by the petitioners Jeffrey T. Chandler and Angie Nora Puanani Rogers pursuant to Chapter 10 of the Rules and Practices and Procedures of the Kauai Planning Commission, requesting a declaratory order regarding Joseph Brescia's alleged noncompliance with the December 11, 2007 approval of his single family residence. Public testimony pursuant to this Chapter could potentially be received at two points concerning this agenda, one, before we entertain or submit a motion to dismiss the petition, two, if the motion to dismiss is not granted or not deferred after the presentation of the evidence in the contested case hearing. Before we take up the matter concerning the motion to dismiss we will first receive all submitted documents for the record. Is there a motion? Mr. Dahilig: Commissioners, we have received a number of correspondences with respect to the matter at hand. Listed on the agenda specifically we have Mr. Brescia's motion to dismiss the Chapter 10 petition dated 1/4/09. The Planning Department has joined Mr. Brescia's motion to dismiss dated 1/7/09. Native Hawaiian Legal Corporation's memorandum in opposition to the motion to dismiss dated 1/11/09 and I believe that we also have a supplemental joiner from the County of Kaua'i with respect to Joseph Brescia's motion in opposition. I think that is it for the record. Chair: Is there a motion to accept for the record? Ms. Morikami: Mr. Chair, move to receive these documents for the record. Chair: Any discussion? Ms. Matsumoto: Second. Chair: Discussion, seeing none, all those in favor say aye, nay, motion carries. Planning Commission Minutes 3 January 12, 2010 On motion made by Paula Morikami and seconded by Camilla Matsumoto, to receive documents into the record, motion carried unanimously by voice vote. Chair: We are on the motion at hand. First I will entertain at this time any requests for public testimony pursuant to HRS Chapter 92. Remember, each individual is provided 3 minutes for oral testimony before the Commission. I ask that when the beeper sounds can you please come to a close. We afford that amount of time for each individual so I ask that we be respectfully of others and remain within the time allocated. The parties will be allocated time to discussion before the Commission later. With that, is there any public testimony? Ms. Puanani Rogers: Greetings, good morning Caven Raco, congratulations on your election as Chairman and to fellow Commissioners, good morning. I hope you all are having a good morning, mahalo for this opportunity to regurgitate many of my previous testimonies on this issue regarding building a house on a historical, cultural and ancient graveyard. I have proof that it is a graveyard. If any of you have reviewed the burial treatment plan it is all laid out there marking 31 but we believe more than 31 burials are there. That is proof that it is a graveyard because it is concentrated burials. Plus, let me show you pictures of the bones and skeletal remains that are under that house or nearby in that whole area. I hope you have had time to review this. I know this is not the same Commission that made the rules or the conditions on this issue which I have a real problem with. I wish we had the original Commissioners here to mitigate this because they know what happened before. Check it out guys, this is bones. This is what is on that property where the house it built, (inaudible). By the way, this is one of 13 burial treatment plans, that alone makes me suspicious of why so many burial treatment plans had to be done on this one property. Obviously there were problems and that is the reason. And then the reason was that our Burial Council was brave enough, I think, to vote this time to preserve in place rather than to dig it up and move it and relocate it some place else. Now there is something basically wrong about digging up graves and relocating them. Where you lay the bones is where that aina is permeated by the spiritual aspects of the bones. So even if you move the bones it is still there in a spiritual sense because that is the original place where it was laid to rest. That makes a lot of common sense to me. I do have concerns about the burial treatment plan, first of all the house owner hires the archeologist to do the burial treatment plan. Doesn't that smell of collusion to you? And secondly the lineal decedents or the cultural descendants of the Na Iwi and people who live in the same Ahupua` a was never consulted. The treatment of the burials was egregious and insulting using concrete caps to mark a grave site. Although they were ordered by Nancy McMahon to dig without machinery they brought in a backhoe against her wishes and as a consequence many bones were broken and crushed and ended up in the backhoe fill. Would you say that is a proper burial treatment if the bones were your grandparents? The owner is not planning to live in the house so it is not like we are denying him a house he needs to live in. He lives in California and owns and runs a business there. It is purely for money and it is money being made off of a (inaudible), an ancient graveyard. Chair: Nam, are you almost pan? Ms. Rogers: I am just starting. This isn't the first time he has run into burials, it happened before at a prior house he built in the same subdivision where bones were dug up. As Commissioner Texeira said very clearly at our last hearing, quote, he came into this with his eyes wide open, end quote. According to the archeologist most of the bones found there were women and children. They were pre-contact, 13th Century, over 800 years old. I am sorry Caven, can I go on? Chair: Actually I would like to give other people a chance to testify on this agenda item and if you could come back. Ms. Rogers: But I am the complainant on this case. I believe I should get more than 3 minutes. Chair: Your attorneys will have that time. Planning Commission Minutes 4 January 12, 2010 Ms. Rogers: My attorney is going to speak for me? I have to speak for myself, come on Commissioners, speak up Commissioners, do you want to hear my testimony or don't you? Chair: How much more do you have? Ms. Rogers: Half a page. I am down here already. This is all I have left. Women and children, how would you like it if your children's bones were crushed and broken by a machine? Also, according to the report the bones were carbon dated as far back as the l3th Century, over 800 years ago, way before any white man landed on our shores. Doesn't that fact alone merit some honor and respect and protection in your decision? There are laws. There are Hawai'i Revised Statutes. There are Hawai'i administrative rules that protect burials in Hawai'i. Have any of you reviewed them? I hope you have and if so, is Mr. Brescia above these burial laws? And speaking of burial laws, it conjures up this question, now is it that you are not acknowledging that there are documented protocols and burial laws that our ancestors practiced that still exist? They proceeded your laws way before your laws were written. Does that not merit some honor, respect and protection when you make you decision that there are previous burial laws? This is Hawai'i now, remember you, we are not in America. This is Kaua'i. We are natives here. Our ancestors are buried in the grounds here. I am not spreading lies or casting aspersions here I am coming from a place that is righteous and pono and embedded deep in my na`au through my pico to the aina and our (inaudible) and our (inaudible) who communicate with us. I want to close by saying that we are not here to cause any harm or malice nor are we here for selfish gains or purposes. We are here to seek justice and to restore a peaceful resting place for the burials at Naui. It is not about money or about getting sued or about unfair court rulings, it is about us trusting in you as living human beings to seek and do what is humanly right. It is about us being able to return to Naui one day and to say to the human beings buried there, rest in peace, mahalo for this opportunity and I do hope you take my testimony to your hearts and do the right thing. Chair: Sandra Herndon. Ms. Sandra Herndon: Good morning Commission, my name is Sandra Herndon for the record. I don't think I can add anything to that testimony except to say that I don't really understand why are still here. As far as I can tell nothing has changed except that Mr. Brescia's attorneys and he has written a letter requesting that it go away or that this proceeding dismiss what rightfully needs to be corrected. I did not prepare testimony this time because of the fact that nothing has really changed, he still has an invalid permit based on the fact that he has not completed the requirements required by this department and this Commission to build a house. He has no valid burial permit, none, it has not been approved. How can you possibly sit there in our roles as people representing our community and dismiss this? It is not pono. And money, all the money in the world that Mr. Brescia has doesn't make it pone. There are some really wonderful things going on in this community, I have to say, and I am really very grateful to be a part of those things. There is a wonderful peace program coming up next week, there is some wonderful new cultural things coming for the children of this community that teach them Polynesian culture and arts. And you know what, the Hawaiian community deserves to have peace, the need to have their culture known and respected and we need you to uphold what is pono, mahalo. Chair: Kaeolani Huff. Ms. Kaeolani Huff: My name Kaeolani Huff (inaudible) on the island of Kauai. For over a year I lived on the beach in front of this graveyard. Currently there is a 400,000 dollar judgment on my head. I was sued for vandalism, terroristic threatening, civil conspiracy, slander of title and I am sitting here today because it's not pan. As a Kanaka I was born with Kuleana, we all are and this is mine. Those bones are my ancestors and if you don't believe me lets dig them up and do a DNA test. We all know laws have been broken. From the get go he was issued a building permit without a valid burial treatment plan. Each burial treatment plan illustrates how his archeologist has moved the bones around if you compare them. In fact we have a program that was created that you can put on your computer that overlays each one and it Planning Commission Minutes 5 January 12, 2010 will show you how body No. 27 has jumped around the yard. We all know laws have been broken and the house is built. The last few months I was at Naui I filed police reports every day about the burial desecration. I was raided by the DLNR. I was eventually evicted and now have a permanent injunction against me. I may never return to Naui according to the State of Hawai'i. But I answer to a higher law and that is the Kuleana of my people. And I am asking you here today to correct the wrong that you did by issuing this building permit from the get go without the burial treatment plan. I would like to ask you a question if I may sir, how many burial treatment plans are there currently? I have heard 12, 13, 14, does anyone know? So how can he have a building permit without that? There is actually a court order stating that he cannot build without a valid building permit and without the burial treatment plan he has no valid building permit. And yet I watched as they brought the backhoes in, we documented everything. We watched them dig up, we watched them pour cement. In the meantime while we were watching we were harassed. The Police came one day because I picked up trash and my trash was too close to his webbing and now I can't go back or I will be arrested. And I am asking you, I am actually telling you that in order for you to have success in the future you must make this right. This cannot keep going on. This is going on all over Hawai'i Nei, not just here, each island, we are now comparing notes. And we know that the Planning Commission, the County of Kaua'i, and the State of Hawai'i have created a process to circumvent the burial laws that are in place, and we know about this process. So please, take your job seriously, do the right thing and pull his permit because it is not legal, thank you. Chair: Elaine Dunbar. Ms. Elaine Dunbar: Good morning. I would just like to ask that this Planning Commission, it doesn't matter that it's not the same members that imposed this condition, ask that you honor the condition that is in place, condition No. 5, those rules that you laid out. I'm sorry, Commission Morikami, I am sorry if this is boring you. I have noticed you have been yawning all morning but please take this to heart. Chair: Elaine, can you just stick to your testimony please. Ms. Dunbar: This is the testimony. If the Commissioners aren't interested in this then we are never going to get anywhere. Chair: I just need you to stick to your testimony and bring your points you to the Commission, please. Ms. Dunbar: I would like to ask that this Commission abide by the rules of the State which you reinforced by imposing condition No. 5 on those rules and laws. There should be a burial treatment plan, there was none it is as simple as that. Please honor this petition, do not dismiss it and please remember Watanabe's warning, that Brescia proceed at this own risk, that is all I have, thank you. Chair: Is there anybody else in the public who would like to testify on this agenda item? Mr. Jeff Chandler: Aloha, Jeff Chandler for the record. I was unfortunate not to be at the last hearing. I saw a little bit of what happened at that hearing. I think I am here today to try to help you do your duty. I am not a lawyer but as far as the Brescia case goes from the beginning there has been falsified information that was given to the Planning Department, which was given to the State Historic Preservation in order for Brescia to have a building permit. As for the evidence, the biggest evidence and it still hasn't been solved until today is the burial treatment plan. According to what I know is the State's representative made a decision based on Brescia's consultant and after the decision was made and the Planning Department made the decision nobody came forth to overturn the decision, knowing that the burial treatment plan did not go forth. And at that tine I think they were on their fourth burial treatment plan. Until today there is no burial treatment plan. The court had ordered the State to come up with a burial treatment plan. Your job is to go back and look at the conditions because it is your job and make a decision on the condition, Planning Commission Minutes 6 January 12, 2010 based on the conditions of this permit and the requirements that Mr. Brescia agreed to. Pretty much, it is that simple. All you have to do is go back and look at the conditions, ask yourself why, look at the evidence because that is your job. You are part of what makes this system work and I am hopeful that you will do the right thing, mahalo. Chair: Is there anyone else in the public that would like to testify on this agenda item, seeing none I will now ask that each of the parties come forward and take a seat and identify yourselves. I will start with you Mr. Hong, if you want to identify yourself. Mr. Walton Hong: Good morning Mr. Chairman and members of the Commission. For the record my name is Walton Hong representing the landowner Joseph Brescia. Along with me is Mr. Cal Chipchase also representing Mr. Brescia. Ms. Camille Kalama: Good morning Commissioners, Camille Kalama and Alan Murakami representing the petitioners, Puanani Rogers and Jeff Chandler. Mr. Harold Bronstein: Good morning, Harold Bronstein representing the interveners North Shore `Ohana, Caren Diamond and Harold Bronstein. Mr. Mauna Kea Trask: Aloha Honorable Commissioners, Deputy County Attorney Mauna Kea Trask on behalf of the Planning Department. With me to my right is Planning Director Ian Costa, thank you. Chair: So I will begin with oral presentations concerning the motion to dismiss. Each of you will have 5 minutes to give your presentations and 3 minutes each for rebuttal. Since this was your motion to dismiss Mr. Chipchase you can go first. Mr. Hong: Mr. Chairman, before we begin I think a matter of housing keeping there were two items that were not received as communications to the Planning Commission. I think we should get it in the file to recognize the same. The first is a letter dated yesterday from myself which was hand delivered to the Planning Commission, I don't know if you have a copy, and the second is the Native Hawaiian Legal Corporations memorandum in opposition to the motion to dismiss which was emailed over, or at least I received my email copy at 3 o'clock yesterday afternoon. Mr. Dahilig: Mr. Hong, that was received for the record, the one dated yesterday for an HLC but you letter, are you referring to your January 111h letter? Mr. Hong: That is correct. Mr. Dahilig: That is with respect to the reconsideration so that will be taken up at the next agenda item. Mr. Hong: Thank you. Mr. Chipchase: Good morning. The motion to dismiss stands on a simple premises, the premises is we were here a month ago under the correct Chapter proceeding, Chapter 12, that is the Chapter that allows the Commission to look at whether to revoke, modify or amend a permit. It requires investigation by the Planning Director, the Planning Director invested. It requires presentation to the Commission, it was presented to the Commission. It requires a decision by the Commission, the Commission decided, it rejected the petition. We went through this under that correct procedural rule. We are here today under the wrong procedural rule, we are here today under Chapter 10, Chapter 10 does not deal with revocation, amendment or modification of permits, a point that the petitioners concede. It only deals with declaratory orders but it is even more specific than that, it only empowers the Commission to quote, issue a declaratory order as to the applicability of any statutory provision or of any rule or regulation or order of the Commission. We are not here dealing with any statutory provision, rule or order of the Commission we are here on a December 11, 2007 approval. Nor have they asked for a declaratory order as the applicability of any statute, rule or order. They haven't asked the Commission to declare how any statute, rule or order applies to anything they have asked the Commission to revoke the permit. And now on this today they have asked the Commission to declare it should have been revoked or that we are in violation. That is not a declaration Planning Commission Minutes 7 January 12, 2010 authorized by Chapter 10. That is not even a declaration request in their petition. In their petition they nowhere state they want that declaration. They nowhere state the rule or order at issue. They nowhere state what they want the Commission to declare the applicability of. So we are here on the wrong rule. We are also here on their request the Commission make a ruling inconsistent with it's ruling last month. We are here on Chapter 10, the Commission had the power to issue an Order to Show Cause why Brescia should not be held to a violated condition of his approval if the Commission found reasonable cause to believe quote, that there is a failure to perform according to conditions imposed. The Commission did not make that finding. The Commission rejected, denied the petition. Any declaratory order that they request would be inconsistent with the conclusion the Commission reached just a month ago. The evidence hasn't changed, the arguments haven't changed. We are here on the same petition it is just under the wrong rule and it is just inconsistent with the decision the Commission has already made, thank you. Chair: Mr. Trask, you joined Mr. Chipchase's motion, is there anything you want to add to that? Mr. Trask: For the record the Planning Department did submit two joinders. We inadvertently had neglected to put Mr. Bronstein on the certificate of service so that is the supplemental that was prepared to reflect service on Mr. Bronstein. I delivered a copy to his office yesterday. It is the same thing it just states that the department joins. And essentially we joined because we agree with the arguments of Mr. Chipchase and Mr. Hong. If you look carefully at the petition it must conform with Kaua'i Planning Commission's Rules and Regulations, 10-10-2 which is the conforming content section of the request for declaratory order. The Planning Department did an exhaustive analysis of the motion and if you look, they go through the majority of their argument deals with objectives and policies of FIRS 6(c) which is the Historic Preservation Statute as well as 205A which is the Coastal Zone Management Stature. If you look at pages 10 to I 1 of the petition the petitioners contend the following: The requirements of the State Historic Preservation Division and the Burial Council have not been met. Which again as Mr. Chipchase had argued previously is just not substantiated in fact or in law. Again, if you look at that October 2, 2008 order from Judge Watanabe, Fifth Circuit Court, State of Hawaii, found that the conditions of this Planning Commission had been met. This Commission is not the State Historic Preservation nor is it the Kaua'i Ni'ihau Island Burial Council, this is the Planning Commission. Mr. Dahilig: The petition that Mr. Trask is referring to is actually the petition that was also heard in the December meeting because the Chapter 10 and Chapter 12 requests were part of one petition so that is why it may or may not be necessarily as part of this meetings packet but last meeting's packet. Chair: Do any of the Commissioners want to take a recess for staff to get a copy of that so you could follow on his points? We will take a short 5 minute recess. Commission recessed at 9:45 a.m. Meeting was called back to order at 10:03 a.m. Mr. Trask: I am just going to direct the Planning Commission on page 11 of the petition that has been provided to you and on that page if you look at the bottom there are two paragraphs, (a) and (b). This is the area in the petition where the petitioners request the Commission to act. And if you look, (a) says "revoke the prior December 11, 2007 approval of Brescia's house, and (b) "amend the December 11th decision to approve to add different verbiage to condition 5". Nothing else follows (b), you turn the next page and it is the end of the petition. There is no request for declaratory order. The petitioners make no request in the entire petition except for in the title which merely states that it is a request for declaratory order. So as Mr. Chipchase has stated previously this does not conform because it doesn't ask you to do anything, it doesn't ask you to issue a declaratory order or anything that this Commission could act on, no rule, no regulation, nothing. It just asks you to revoke or amend. And so at this point the Planning Department would request based upon form and procedure that the petition for Planning Commission Minutes 8 January 12, 2010 declaratory be denied because no party knows, not even the petitioner, what rule or regulation is before this Commission to act upon, and that is all, thank you. Chair: Mr. Bronstein, since you are the intervener is there any presentation you want to do for the Commission? Mr. Bronstein: I am going to come after the petitioner. I am going to join in their statements and then I have a few comments to add. Chair: I would rather have you make your presentation now and then I will call them. Mr. Harold Bronstein: First, with respect to...my name is Harold Bronstein, as I said I represent the interveners, the North Shore `Ghana, Caren Diamond and myself with respect to the issuance of this permit. In general, first I believe the Planning Commission is moving in reverse form as always. According to the rules the reconsideration that was filed to your determination or your decision made on December 8th should be heard first and according to the rules, it's actually rule 1-2-19, "when such a motion has been made such a motion shall take precedence over all other questions except a motion to adjourn". I guess that is pretty clear. Two, as to the issues... Mr. Dahilig: Can I just clarify for the Commission's information with respect to 1-2-19, there is not motion for reconsideration on the table there is a request that in on your desk for receipt so as of this time no motion by a Commissioner has been made for reconsideration so therefore that is not taking precedence at this time. Mr. Bronstein: As to the arguments, the lay person, I think they understand it, they understand their culture and they understand the law. Whatever reliance you have put on the October 2nd order by the court is misplaced. It has been construed wrong and there is a lack of understanding from the attorneys on down, in my opinion. One, you are not a party to the preceding and that is made clear by the court. The court says in paragraph 20 in the October 2, 2008 order, that Chandler is neither challenging the KNIBC action to preserve all burials in place not the Planning Commission's approval of Brescia's house plans. The issue before you one more time is not whether he had a permit, that is undeniable, the issue is whether he violated the permit and that is undeniable. The October 2, 2008 order makes that real clear, if you read it, and at paragraph 33 I understand what it says "while the court concludes that no injunction should issue against plaintiff Brescia the court cautions that he should not take any action that might foreclose implementing potential options for burial treatment plans that may result from the consultation between the SHPD and the KNIBC", and that is the Kaua'i Burial Council. And that is what you conditioned his building permit on. There were 3 of you present when that went down in 2007. That is exactly what the minute show, your concern that no building permit be issued until he complies. And if you want to say theoretically Ms. McMahan's approval of the burial treatment plan which the court threw out and said it was wrong. At that point, i.e. October 2, 2008 there is noncompliance with your order. As to declaratory relief and to the extent that we say that it is so concise, Mr. Chipchase I believe read it and I believe he read it correctly but I will suggest to you that clearly your permit represents an order at the very least of this Commission and that is what is being sought to be reviewed or sough declaratory relief. Finally, to the extent to your authority there is a very simple Supreme Court case called Morgan vs. the Planning Department of the County of Kaua'i. It is a simple case in which this Commission years after a revetment wall was authorized under the SMA for a property down in Anahola along the beach next to the Lemke property, was revisited and the Planning Commission took action. The court is sustaining the Planning Commission's actions, essentially several years after the Planning Commission issued a Special Management Area Use Permit allowing the construction of a rock revetment it was inherently authorized to modify the conditions of that permit because the Planning Commission was statutory mandated to give affect to the policies and objectives of the Coastal Zone Management Act. You clearly have the authority. It is not history, this permit, it is now, it is here, it is today. The violation occurred, it is that simple. Planning Commission Minutes 9 January 12, 2010 The law is clear, you have the authority to tell them to stop, that your building permit which was issued I believe June 17, 2008, and which the condition 5, 6, 8, whatever they are in the permit, I can dig them out if you really want me to. But I have read them many times. But more importantly I have read your minutes, I was here, I know what the arguments were. I have been here since about 2000 on this issue, the year 2000. I would suggest that the issue again is framed, is the violation and your intent was that no building permit be issued until he complies with the burial council treatment plan, there is none. There is a violation; there is not a valid building permit, thank you. Ms. Camille Kalama: Good morning Commissioners. First I would like to start by saying the process that we are in here right now is not one that we agree to or that we had any say in. It doesn't really make a lot of sense logically. It would have made sense, of course according to the rules I understand the timing issues but it would have made sense to decide on the violation first before moving to the revocation or modification. But in any case that is where we are at today further arguments from Mr. Brescia's attorneys and the County Attorney. And the simple fact is that in our petition we requested 3 things by our title, we requested declaratory relief. All we are asking is that you declare that the conditions that you imposed in your house design approval on December 11, 2007 were violated. And then we asked that you revoke or modify the permit based on that. Today we are here to decide only on the violation and I will go back and I will read those conditions because I think it is important. It says "no building permit shall be issued until requirements of the State Historic Preservation Division and the Burial Council have been met". That was condition 5. Condition 6 says "the applicant shall apply for the necessary building permits within 4 months from the date of approval by the Burial Council and State Historic Preservation Division". So now echoing what Mr. Bronstein said, if we look at the court's October 2nd order, at the time the issue was before the court you were not a party, the Commission presented no evidence, we didn't litigate the issue of the of the building permit conditions. What was litigated was that approval upon which those building permits were contingent. So that approval was the one that was invalidated by the court. That approval was illegal by Nancy McMahon on April 24, 2008. Now we are nearly 2 years later, it is 2010. There have been at least 12 draft burial treatment plans submitted to the SHPD, some of them have been submitted to the KNIBC. Draft 11 was explicitly rejected. Apparently we are on draft 13. At this point as it has been said time and time again there is no approved burial treatment plan. That approval that is being talked about in these conditions by the Burial Council and the State Historic Preservation Division doesn't exist. We can't even say what the requirements are at this point so how can they have been met. And yet the house is nearly built. So we are here today on the violation like I said. If you recall from last month the focus was entirely upon Mr. Brescia and whether or not he violated the permit. And there was big deal made about the fact that he submitted all the burial treatment plans and what was necessary to the SHPD. But today it is really a simple question, was that condition met or not, that is all we are asking you to say. We don't know the basis your decision last month. We know the Planning Director's report but there are no written findings, there are no stated reasons for your decision rejecting the petition. We know minimally that you did not make a finding that Mr. Brescia violated his permit and did not issue an Order to Show Cause. But that is why it would have made sense for this procedure to come first because in Chapter 10 you are required to issue reasons in writing for a denial and then we can know the basis. We don't know if that decision was made purely on the threat of litigation, we don't know that. We are assuming that you found that there was no violation by Brescia but again, like I said, what we are talking about is whether or not, period, this condition was followed and until there is a burial treatment plan in place, until we even know what those requirements are by the SHPD and the Burial Council there can be no compliance with these conditions. When I am speaking about, Chapter 10 of the Commission rules I am talking about rule 1-10.3, it talks about Commission action. It requires that "within 45 days after submission of a petition for declaratory ruling the Commission shall either deny the petition in writing, stating the reasons for such denial or issue a declaratory order on the matter". In this case there is a provision to set the matter for hearing and so the hearing was set after the December 8th hearing Planning Commission Minutes 10 January 12, 2010 and that is why we are in the position we are in today. But once again all we are asking for is a simple declaration, those conditions were not followed. To say anything else is impossible. Chair: Mr. Chipchase you will have 3 minutes for your rebuttal. Mr. Chipchase: Thank you Chair. I will try not to even use that. Commissioners I will try to unpack some of this as directly as I can. I won't get into the merits now because this motion is not on the merits. This motion is about the right rules, the right procedure, we did the merits a month ago, this motion is only about whether we are here today at this point on the right procedure. And the procedural rules matter for everyone, they matter for the petitioner, they matter for the affected parry, Brescia. They exist for a reason and they have to be followed, they are not open to waiver or disregard no matter how the public policy issue may be, we all have to follow the rules. The question is also not about this Commission's authority. The Commission has the authority to revoke, modify or amend a permit, it says so in Chapter 12 and we dealt with it in Chapter 12 a month ago. As I said the only question is whether Chapter 10 is the right rule for the relief of the petitioner's request. It says, again, that "the Commission may issue a declaratory order as to the applicability of any statutory provision or of any rule or regulation or order of the Commission". There is nothing, like Mr. Trask read, to you in the petition where they ask for a declaratory order as to the applicability of any order, rule or regulation. They don't ask for a declaratory order as to anything. Today they tell you want they want the declaratory order to be but that is not in the petition. All they have in their petition that they can point to is the title. The title doesn't point to any rule, order, or regulation of the Commission, it points to approval, the December 11, 2007 approval and calls it an approval, not an order, not a rule, and not a regulation. So what we have is really a second bite using the wrong procedural rules. Under the right procedural rules the Commission, if it found reasonable cause to believe that there is currently a failure to perform according to the conditions imposed, shall issue and serve upon the party bound by the conditions an Order to Show Cause". In other words if you had found reasonable cause that Mr. Brescia had violated his conditions you were required to issue an Order to Show Cause. You did not, you denied the petition and the only conclusion that can be drawn from that is that you did not find reasonable cause to believe that Mr. Brescia had violated any of his conditions. Because that is a necessary component of your decision to deny the petition, granting the declaratory relief requested by the petitioners today, this is where they frame what they want the Commission to declare, would be inconsistent with the determination the Commission has already made, thank you. Chair: Do you want to rebut too? Mr. Trask: If it is allowed, a brief rebuttal. Ms. Kalama: Objection, is rebuttal allowed by the County? We don't believe it is. Mr. Trask: That is why I asked if it is allowed. Chair: I will allow it and then I also will allow you to rebut so I will allow both of you to rebut. Mr. Trask: I just want to touch briefly, again we maintain as Mr. Chipchase had stated that the petition is deficient in its form. However hearing the arguments of the petitioner this time, now assuming that you accept their position that they are talking about the permit it's self, it is a shame today that you have been told that you haven't been compliant with the law, that you have abrogated responsibilities as far as your duties go because it is not true. You have done everything that you legally can do for this property. This parcel has been the subject of ongoing litigation for 20 years, since Alex Ferreira first bought the 5 acres and parceled it out in the SMA permit in the 80's. This Commission has been a part of that. And if you look, you did do the review, you did issue the conditions. And on April 24, 2008 you were cc'd on a letter from the State Of Hawai'i, Department of Land and Natural Resources from Laura Thielen saying that the burial treatment plan was approved. That was your condition you acted upon. There was subsequent litigation to that and Judge Watanabe issued a bifurcated ruling, she did. What the petitioners do is they talk about the order, the parts of the order that benefit Planning Commission Minutes 11 January 12, 2010 them; they don't talk about the whole order and what it actually means. What that shows is that Watanabe found that Brescia did everything he could do and that the State failed. That is why the injunction issued against the State and not against him. That is why the State was enjoined and it specifically says on the last page, "this injunction", in bold, "does not enjoin plaintiff Brescia from continuing construction of residence". If you look at Planning Department's January 8, 2010 that you received for the record, page 2, bullet point No. 3, it doesn't appear to be bolded but it should be bolded because that is the emphasis that the court put that does not enjoin him. So what you have to appreciate is this case, if you look at the entire permit because that is what we are talking about, the December 11, 2007 letter you issued, condition 8 states "the Planning Commission reserves the authority to impose additional conditions, modify or delete conditions stated herein, or revoke the permits through proper procedures should the applicant fail". And that is the finding that the court found. Brescia did not fail, the State failed, should the applicant fail is what you would have to find and there is a specific court order by the Circuit Court in this judicial circuit finding that he didn't violate the requirements, found that he did comply with what he had to do. It is a bifurcated ruling and that is the frustration of the ruling and that ruling may frustrate this body and that is why if the petitioner has a problem with that ruling they go up, you petition for a rite to the Supreme Court. You go to the IAC, you appeal it, you ask for (inaudible) appeal. There is a venue for that. It is conditioned on the judge's approval, she has to say its okay but there was no request made. So don't feel bad. The petition is deficient, there is no request for a dec., this (inaudible) this belongs in court like we said last month and Mr. Chipchase said, thank you. Chair: Mr. Bronstein. Mr. Bronstein: Just to comment on that quickly. Your condition says "no building permit shall be issued until the requirements of the State Historic Preservation Division and the Burial Council have been met". It doesn't say submitted. It doesn't say it's okay if you submit something and they reject it. And if you back and read your minutes of what happened on December 11t" and October 18th it was all about whether it should be issued and what the conditions should be, your recommendation for the building permit. What Mr. Trask says is 100 percent incorrect and I hate to say that about a good friend, incorrect as a matter of law. The condition is clear, the State court did not interpret it, you were not a party, you are not bound by it, and it is your proceeding to interpret your condition. And the court specifically found that the requirements of the State Historic Preservation Division and the Burial Council have not been met, simple, thank you. Mr. Murakami: I want to echo those comments as much as I would also ...Alan Murakami. I am with Camille Kalama with the Native Hawaiian Legal Corporation. I want to echo that I believe the County's position in this matter is absolutely wrong. What is happening here is that we have focused on a proceeding that is this Commission's proceeding, tried to invoke your rules and there is a certain matter of justice there. What is happening in fact is the County is focused on trying to distract you attention to invoke a non-applicable court order, one that does not apply to you, did not in fact rule on the points that he contends were ruled. The specific paragraph in that ruling has been contained in our submission on the opposition to the motion to dismiss, says that Brescia comply with all of the Planning Commission's building permit conditions. You don't have building permits so technically that ruling is wrong by its very terms. In fact she says here "including conducting archeological inventory surveys and drafting and submitting burial treatment plans". She was concerned about the act of complying with the process of what was happening at the time. But in that same order as Mr. Bronstein has made absolutely clear she found that there was a violation of the process for approving the burial treatment plan. And you, in parallel, specifically required that Mr. Brescia follow all processes and requirements of the Historic Preservation Division and the Burial Council. By the very four corners of her own order she found the violation of a requirement of the State Historic Preservation Division. That is absolutely clear. So if there is anything the court order deals with, it is to establish that there was a violation of a requirement of the Historic Preservation Division. So for all the reasons that Mr. Bronstein says that the court order doesn't really bind you in this proceeding, that is absolutely true and for all the reasons I just stated about whether or not the court order precludes you from acting, that is also true. The court order is secondary to what you need to consider today. Planning Commission Minutes 12 January 12, 2010 You have to read this petition as a whole and all the procedural niceties aside, we didn't buy into this process and I think there is only confusion about whether rule 12 or rule 10 applies because there is a split proceeding here. But this is a single petition, a petition asking you to declare that there has been non-performance and on that basis revoke and/or modify. Now it came backwards because we had this proceeding in December but clearly it is a very simple proposition, is there compliance with condition No. 5, irrespective of what the court might have said because whatever the court did does not bind you. If there is then we have asked you and implore you to please up to that, make this person live up to this condition. It's all you've got to uphold the integrity of this process. I hear nothing about the fact that there wasn't a failure to comply with getting a proper burial treatment plan approved, nothing from either the County of Mr. Brescia's side. They can't deny that and that is all you have to know to know that this condition needs to be enforced. And whether you declare Mr. Brescia to be in violation and/or revoke it, and/or modify it to make it stronger, it's up to you. You are free to do that, I think the basis for you to act is very clear, there are no things about vested rights involved here at all. He was under clear notice with this condition of what he had to do and the judge's order has nothing, there is nothing in the judge's order that prevents you from doing so, thank you. Chair: Mr. Chipchase I will give you the last rebuttal. Mr. Chipchase: It will be brief Chair. What we heard in the rebuttal was all about the merits from the petitioner and from Mr. Bronstein. There is nothing about procedure which is all this motion deals with. That is why I haven't talked about the merits. If we get to the merits like we got to them a month ago I will deny that we violated the condition just like I denied it a month ago. And there are good reasons and lots of evidence to show that Mr. Brescia has complied with the condition. But that is not what this motion is about. This motion is just about whether Chapter 10 is the right rule. It plainly isn't and we ask the Commission to just dismiss the petition as the Commission has the power to do both under Chapter 6 and under Chapter 10, no findings are required. There are ample basis listed in the Chapter for dismissing a petition and those basis are not exclusive. We have shown the Commission why this proceeding is improper and we ask the Commission to dismiss. Chair: So at this time I would ask the Commission to deliberate and have the board step back so we can deliberate, thank you. Mr. Blake: Mr. Chair, can we ask them questions? Chair: You want to ask them questions, go ahead. Mr. Blake: I wasn't present at the last two meetings so I had to go through the minutes of the meetings in addition to all of the petitions and responses and so forth. And it seemed to me as I tried to simplify this thing and get away from all these technical arguments and I am not diminishing the technical arguments but I am trying to get a picture of what was happening, that no building permit shall be issued until the requirements of State Historic Preservation Division and the Burial Council have been met. Does anyone contend that the requirements of SHPD and the Burial Council have been met? Mr. Chipchase: Yes Commissioner. Mr. Blake: Before you answer, because it seemed to me that the SHPD had it's own finding but there was never any burial plan coming from the Kaua'i Ni'ihau Burial Council so you had half of a requirement being met. But when I went through this and it was hard slogging it seemed that the Burial Council was just out there by it's self having not submitted anything. And so what I couldn't find in here was a burial plan that was signed off on by the State and the Burial Council. So my attempt to simplify this and get away or to simplify it is, is there a permit, yes. Where the requirements of SHPD and the Burial Council met? So far as what I have seen now the answer is no. Now I know that the argument has been made that the court found that, I think there was an argument that the court found that there was a plan and therefore Brescia could proceed at his own risk which to me calls into question whether there is a plan or not. Because if you have a plan you don't proceed at your own risk, you go but that doesn't seem to be the case here. So correct me if I have not keyed in on some pertinent portion of this record but it seems to me that there is, as of today, no burial treatment plan. Planning Commission Minutes 13 January 12, 2010 Mr. Chipchase: Thank you, I appreciate the opportunity to touch on this even in this context. I think the first thing to appreciate is that Chapter 6(e) sets out different roles and responsibilities for the Burial Council than it does for SHPD. For the Burial Council, their principal function is to determine whether to preserve in place or to relocate previously identified burials. That is its decision making function. The Burial Council made the decision to observe all previously identified burials, even the 7 that were know to be located under the footprint of the approved residence. That was the only decision the Burial Council gets to make whether to move or relocate them, it doesn't have the power to sign off on a burial treatment plan. Its other function is purely advisory. It can make recommendations that it would like incorporated into any burial treatment plan. On April 24th SHPD approved Mr. Brescia's burial treatment plan preserving the identified burials in place. The court concluded that the approval by SHPD had been premature, that they had not gone back to the Burial Council, not for approval but for recommendations, for advice. Whether SHPD decides to incorporate any advice that the Burial Council may offer is entirely within the discretion of SHPD. While the court concluded that SHPD had failed only in it's consultation function the court expressly found that Mr. Brescia had complied with all conditions of approval including condition 5 which says that until you meet the requirements of the Burial Council and SHPD you can't have a building permit. It is undisputed that at the time the building permit issued Brescia had met both the conditions of KINBC and SHPD, undisputed and is a clear finding by the court. So the court in its order as Mr. Trask has explained balanced these two parts, the two findings, the finding that SHPD had failed to solicit recommendations, that is the only thing SHPD failed to do. None of the other challenges to the approval were granted in any way, had no merit, they simply failed to consult, against the finding that Brescia had done everything that Mr. Brescia was required to do including complying with all conditions of approval and getting all of his permits. The result is this bifurcated injunction as Mr. Trask described it. On the one hand SHPD is required to take the burial treatment back to the Burial Council for consultation. We have been back 3 times. We are currently on draft 15. There are lots of reasons for the drafts. For the most part they incorporate recommendations that have been made by the Burial Council by SHPD and by other interested groups. While that process marches forward the court set no deadline on how long that process may take. The court did not enjoin Mr. Brescia from continuing construction provided that his construction did not foreclose any condition that SHPD may approve after proper consultation. That is the framework we have operated in for more than a year. That is the framework we continue to operate in. The same petitioners, since the October order, have challenged construction, they are argued that we must not be in compliance with the court's order because we still don't have a burial treatment plan. They have argued that we are foreclosing remedies that may be imposed by SHPD, preservation techniques. The court rejected those arguments. They rejected them after full briefing, full hearing. They moved again for a temporary restraining order long after the October order issued, the court rejected it again. They are here today making the same arguments. They have lost many, many times before, they are just hoping for a different forum. They had that forum on December 8th. The Commission rejected their arguments. This is another bite but the arguments are the same and this time they are just not here under the right rule. Mr. Blake: So Mr. Brescia is proceeding with construction at his own risk right now. Mr. Chipchase: Per the court's order. Mr. Blake: Because you don't know what SHPD is going to come back with and if they say, going to the extreme, that there shall be no building over those remains then he understands that he may have to take his building down? Mr. Chipchase: Commissioner, the "at your own risk" is to any condition that SHPD may be able to impose as a preservation technique. No building is not a decision that SHPD can make, it is not within their power to declare. What is at Mr. Brescia's risk is that they may impose a preservation technique which could be remove the caps that were placed on the burials for their protection, 7 of them, not all of them, just the ones near the foundation. It may be that Planning Commission Minutes 14 January 12, 2010 we want you to cap them in a different way. Those sorts of preservation techniques can't be foreclosed, they have to be left open and as we argued extensively in court, nothing that Mr. Brescia has done potentially closes any preservation technique that SHPD has the power to order Mr. Trask: Commissioner, I would like to also add to your question. Mr. Blake: Are you through? Mr. Chipchase: Yes Commissioner. Mr. Trask: I think just a little more background may be in order. The April 24, 2008 letter this Commission received from State Historic Preservation talking about the burial treatment plan was not the first plan. The first plan submitted by Mr. Brescia to the Kauai Ni'ihau Island Burial Council was to remove and re-enter the bones, specifically those under the footprint and they wanted to relocate them on a different part of the parcel. At that Burial Council hearing there was a lot of talk and a decision was made to preserve in place, which again like Mr. Chipchase said it was a relocation, re-enter, preserve in place. Preservation in place was the decision made therefore that negated the burial treatment plan prepared by Brescia. Brescia came back with a subsequent burial treatment plan that talked about preservation in place and he was and this Commission was informed that SHPD had accepted. So that is why the court said he was in compliance because it was submitted pursuant to the Burial Council, their determination to preserve in place. That was compliance. If you look at Hawai'i Administrative Rules, Title 13, subtitle 13, Chapter 300, specifically 13-300-33(b)(3)(a), it talks about specifically what Mr. Chipchase says, the types of avenues available to the Burial Council should such determination for preservation in place be made. And they detail short term and long term options and I am going to read them verbatim, short term measures, "including but not limited to: fencing, buffers, and site restoration". Long term measures, including but not limited to: buffers, landscaping, and access by known lineal and cultural descendents". There is no place in Chapter 6(e), Chapter 205A, Hawai'i Revised Statutes, and/or, the rules and regulations of the Ni'ihau Burial Council that allows for stopping building upon a finding of bones. The only thing that could stop that is if the government purchases the property or if somebody else purchases the property and they themselves remove the house. And that is where we start getting into the takings. That is where we start getting into the constitution. Mr. Blake: So based on what you just said, if the burial treatment plan says you are going to landscape over that area and fence it doesn't that preclude building on it? Mr. Trask: And if they do so and it totally deprives economically the value of that property, that is a taking and the government will have to pay for it. Mr. Blake: As I understand takings as long as you can build someplace you haven't been subject of a taking. Mr. Trask: They contend, the petitioners contend... Mr. Blake: You may not be able to build exactly where you want to but as long as you are not precluded from building on the whole of the lot there is no taking. That is my understanding of takings. Mr. Trask: But that is true if this was more than whatever square foot lot this was. This lot is littered with bones. That is not what the petitioner is contending. The petitioner contends that in January 5, 2010 communication that the preservation in place dictates there should be no artificial structure erected on the burial sites. They contend this whole lot is a burial site. If you heard Nani Rogers testify here today she didn't want building on anything, the woman after her, no building on anything, Mr. Chandler, no building on anything. They don't want a little shack in the corner of the lot they want to stop the entire building and that cannot be done here. It can be done other places but this Commission cannot do that and that is why there are other venues, this is not the last say in this. Planning Commission Minutes 15 January 12, 2010 Mr. Blake: So based on what Mr. Chipchase said and what you have said there still is no burial treatment plan, right? Mr. Trask: No. There is no burial treatment plan because of what is happening on the State side. Brescia did comply because according to condition 8, and you have to read the entire document together, the applicant did not fail to comply, he did comply. He provided a burial treatment plan that called for preservation in place like Mr. Chipchase said. That is the only determination they can make and they said that at their April 3` meeting, "4-2 to preserve all 30 sets of Iwi located on the property in place and recommend any future Iwi be left in place as well". That was the decision. That was the compliance. The technicalities as far as like Mr. Chipchase said, the buffers, fencing if any, landscaping if any, that is to be determined but the court specifically said he can still build. And Mr. Bronstein argues you are not party to that, if you look under the rules, Chapter 10, you can anticipate that litigation will arise out of this and that it will affect because you will be going against the very order of the judge that you will be appearing in front of. Mr. Blake: So has there been any alternate building site presented? Mr. Trask: Like a land swap or something? Mr. Blake: I mean like if you can't build over these 7 can you build someplace else? Mr. Trask: There are 23 more on the rest of the property. Mr. Blake: I understand that. Mr. Trask: Not to my knowledge. Mr. Blake: I don't know whether the 23 are evenly spaced all over the lot of they are concentrated in one place. Mr. Trask: My understanding is that the house is actually, I mean I think they are done with drywall right now. Mr. Blake: They what? Mr. Trask: The house is built. It is up. And if the Ni'ihau Burial Council for example says cultural lineal descendents should be allowed to have access to go there they can go there. They can go there and they can have access to their lineal and cultural, the Iwi. If they said that... Disruption from audience. Chair: If you can, have the respect that when people are talking and going back and forth that we just give everybody respect. This is a sensitive issue. You guys had your chance to talk so let the Commissioners have their questions answered if you can, thank you. Mr. Nishida: I think that building site if I remember correctly, the setback packed that into the...that particular site took up the remaining... Mr. Hong: If I can respond because I think some of the Commissioners were not there but when we first started there was an issue as to where the building setback line was. The original lot was over 18,000 square feet. At the shoreline determination it came down to like 16, almost 17,000 square feet. It is a triangle lot with the shoreline being kind of funnel shaped with the shoreline being the top of the funnel, with the spout of the funnel being the pole portion of the flag lot. Because a Supreme Court's ruling, Hawaii Supreme Court ruling and the Planning Commission's ruling that the setback line was so and so, it resulted in a setback from the certified shoreline ranging between I believe if my memory is correct like 60 and a half feet to 71 feet from the shoreline. What this resulted was Mr. Brescia being pushed back into this corner where you had a triangle of approximately 4,000 square feet to build. He had no other place to go and it was because of this he had to put his house there. Planning Commission Minutes 16 January 12, 2010 That is why when we did the foundation work and found 7 of those burials we went to the Burial Council and we asked them, recognizing that their only role by statute is to determine do you leave the remains in place or will you be allowed to remove and re-enter as we requested. We begged them to let us remove and re-enter so we didn't have to build over the burials. The Burial Council said no, leave them in place. That was their role, to say leave them in place. They could not and I think everybody agrees they could not stop the construction of the house and we made it very clear to them, Mr. Brescia had no place else to go. It is not like you have a 1 acre parcel and you can move the house around. So that is why we are where we are, tucked into this little corner at the rear of the lot. Mr. Blake: Are you arguing that the requirements of SHPD and the Burial Council have been met? Mr. Hone: Yes I am. Mr. Blake: But it has not been reduced to black and white yet. Mr. Hone: If you look at condition No. 5 it says "no building permit shall be issued until the requirements of SHPD and the Burial Council have been met", or words to that affect. SHPD supervised if you want to call it that or oversaw the archeological digging. We came up with the findings, there were 30 burials on the property. We submitted a proposed plan that would result in removal and re-entering of the 7 burials found elsewhere on the property. The Burial Council's only role at that point by statute was to say would be allowed to remove and re- enter or would we be required to leave in place. If you left in place that meant, you couldn't stop construction no matter what, it was going to go forward, that was the Burial Council's only role. When the Burial Council acted in April to say leave them in place then we believe that that was the action of the Burial Council because that is what they are authorized to do and so they did. Now as Mr. Chipchase mentioned the Burial Council does not approve the burial treatment plan. They can make recommendations to the burial treatment plan and a burial treatment plan was originally submitted based on removal and re-interment. That did happen because the Burial Council in exercise of it's discretionary power said no, we are not going to let you remove and re-enter and leave in place. That required the submittal of a second burial treatment plan. As far as we are concerned that condition has been met, Judge Watanabe so found. Mr. Blake: Why are you on iteration 15 if it has been met already? Mr. Chipchase: Commissioner, the condition says no building permit shall be issued until the requirements of State Historic Preservation Division and the Burial Council have been met. The Burial Council, preserve in place, we have done that. That is their only requirement that they can imposed, checked off. There has been no other requirement imposed by SHPD. There is nothing they can point to that SHPD said you have to do this and we haven't done it. Mr. Blake: But has SHPD handed you a burial treatment plan? Mr. Chipchase: We handed them a burial treatment plan and the approved it on April 24th which is why we were issued the building permits and began construction. Judge Watanabe subsequently concluded that the approval, SHPD's approval was premature but that was nothing that Brescia did. Brescia had met all the conditions at the time the building permit was issued and even today there is not requirement of SHPD, anything that SHPD has required. And they have done things along the line, for example they wanted Mr. Brescia to employ a cultural monitor during the construction activities and we did so and the cultural monitor has issued reports. They have come up with other interim preservation orders, no construction around this area, put a fence up here, we have done that every time they have requested or required us to do anything. So as of today there is no requirement that SHPD that we have not met. Mr. Blake: What don't understand, if I accept your contention that Mr. Brescia is doing everything that he is supposed to be doing. Mr. Chipchase: Yes Commissioner. Planning Commission Minutes 17 January 12, 2010 Mr. Blake: The Burial Council, Kauai Ni'ihau Burial Council has made it's recommendation, the initial burial treatment plan that the State issued was found wanting by Judge Watanabe. Mr. Chipchase: Yes Commissioner. Mr. Blake: So right now we have Mr. Brescia proceeding, arguably having done everything he can do, we have the Burial Council having made it's recommendation, doing everything as I understand the argument, it's authorized to do but there has been nothing issued by the State that says this is a okay. And so that is why as I understand it the judge said to Brescia you build at your own risk because something may happen, I don't know if it is or not but something may happen that puts his efforts, his development efforts at risk and he has to bear that risk. Am I going down the wrong road on this? Mr. Chipchase: Commissioner, the court's order says what it says. It says "shall not take any action that forecloses any preservation method that may be approved by SHPD after consultation with the Burial Council and other interested parties". That is what it says, that is the order we are all subject to. So to that extent I agree with you. Mr. Blake: So how can the argument be made that the building permit was properly issued when we are on the 15th iteration of a burial plan. Mr. Chipchase: The building permit was properly issued because when it was issued Mr. Brescia was in full compliance with all requirements of KINBC and SHPD and remains so today. There is no condition that says Mr. Brescia can't build without a burial treatment plan it just says all requirements of the Burial Council and SHPD and they can't point to any requirement of the Burial Council or SHPD that Mr. Brescia violated before receiving his building permits and beginning construction in good faith reliance thereon or afterwards. Mr. Blake: So we are faced with a situation where the court having rendered its bifurcated decision, SHPD we hope is in the process of doing something with this 15th iteration, approving it, amending it, or denying it. And Mr. Brescia is constructing, he is proceeding with construction anticipating a favorable result from the State but knowing that he may not receive a favorable result from the State and the County is being asked to go along to get along and wait until the State does whatever it is going to do when ever it does what it is going to do. Mr. Trask: If I may, I can address that. Specifically I heard a comment being made. The County is not asking this Commission to go along to get along. The County wants this Commission to know everything that is out there and make the appropriate decision based upon all the facts and law and evidence so there is not any collusion between... Mr. Blake: I am not saying there is any collusion but that is how the, when the picture is painted that is who I see it based on what I have reviewed and read. Mr. Trask: All I am saying is if you look at the Rules of the Planning Commission and specifically 1-10.5, Refusal to Issue Declaratory Oder, 1-10.5.3, "the issuance of the declaratory order may affect the interest of the Commission in a litigation that is pending or may reasonably expected to arise", and that is a basis with which to deny the declaratory order, that is what we are pointing at. Again, it is kind of getting off the subject of the motion to dismiss on purely procedural grounds but the County, if we are making that impression we apologize because we are not asking you to go along to get along. And if there was facts, if there was law that would support the approval of this petition the County would argue that you should approve it but there is none. Mr. Blake: So a burial treatment plan was approved by SHPD a long time ago. Mr. Brescia has proceeded based on that plan. The court has called that plan into question and that is why he is proceeding at his own risk now. Because really what the court is saying is there is no permit. Mr. Trask: No, the court is saying there is a building permit. He has all necessary and discretionary permissions to approve. It is paragraph 8 in the order. Planning Commission Minutes 18 January 12, 2010 Mr. Blake: Why is this process continuing where they keep going back to the State with this 15th iteration and if that is not good enough then there will be a 16th? Mr. Trask: And that is, this is page 3, unnumbered, paragraphs 8 and 9, "Brescia has all necessary discretionary and ministerial approvals to construct the approved residence on the property", and 9, "Brescia complied with all the Planning Commission's building permit conditions including conducting an archeological inventory surveys and drafting and submitting burial treatment plans". The crux of this argument rests on the premises, the faulty premises, that the lack of a burial treatment plan and what the Burial Council can do can stop this building. To entertain a hypothetical, (inaudible) say happens, happens, the Burial Council says no building, tear it down, SHPD says no building, tear it down, lets end this controversy the way the petitioners want. Brescia is going to sue as for a taking, they have taken property, they have torn his house down after he has built it. Mr. Blake: He can sue for whatever reason he wants to sue but if he is building at his own risk, sue. Mr. Trask: That is correct, he can. But what I am saying is as you can see with this court order out there and that order although the County wasn't a party to that proceeding the order directly touches on the permit. The order directly touches on the respondent and the petition they are bound by. They are coming here because they have lost there multiple times and they are putting the ones on you and that is not correct. Chair: Are there anymore questions for the presenters before I release them, seeing none, if you can go back so we can deliberate. Mr. Murakami: Can we respond a little bit to what was just discussed? This is a Planning Commission condition. You are not party to the lawsuit. We are coming to you because it is your condition and the condition says "until the requirements are met", not how we second guess and think it might be met. The requirements are to be contained in the burial treatment plan and that is how you figure what the requirements are. So for this, I hesitate to say petitioner, but for Mr. Brescia to say that they are in compliance is basically nonsensical because they don't know what the requirements are. And those requirements could include as Mr. Trask has outlined a buffer zone. It could include as Mr. Blake has said, landscaping, it could contain fencing as Mauna Kea was saying. Those things are incompatible with a house on top of a burial and particularly access. Judge Watanabe says in her order "no injunction provided that the construction does not in any further demolish, alter, or prevent access", and she means to the burials, "for whatever purposes in the event it is so required by SHPD". She knows that it is a requirement that could be put in but in the future through the burial treatment plan, after proper consultation to the 7 burials that fall within the footprint of the house plans. Both the Planning Department and Mr. Brescia are playing a guessing game here. We are coming to you to say look, you had a very logical and sensible condition. You were concerned about issuing the final approval, SHPD convinced you to give that approval, but you wisely subjected that to this condition No. 5. And now they are coming back and saying well, we have met the condition even though it says "until the requirements are met". They cannot know what those requirements are and they say they have complied. Those two things just don't compute. And so despite the attempt to distract you with the court order or the form of your rules, this is a petition, it is asked by its very nature for a declaratory ruling. That declaratory ruling has to be set out in findings of fact and conclusions of law. If you deny it, there has to be written reasons why you do so. That is in your rules. It may not be literally in the petition its self but as much as Mr. Chipchase would like to follow procedure that has meaning, Judge Watanabe's order also requires certain procedure and it requires that the burial treatment plan be approved only after proper consultation. The consultation so far has resulted in rejection explicit and implicit of apparently 14 drafts of Mr. Brescia's burial treatment plan. And just to be clear for Commissioner Blake's benefit, in the rules, burial treatment plans are proposed by the applicant, the homeowner, whoever is being affected. It goes to a review process that is very specific and which Judge Watanabe has decided is critical, essential prerequisite to any approval and final technical approval. The technical approval is given by SHPD after the Burial Council has made its determination, not a recommendation to preserve in place but a determination to preserve in place. If you read the law as a whole that doesn't mean Planning Commission Minutes 19 January 12, 2010 that SHPD gets to reverse the Burial Council, my goodness no, nothing in the rules or the statute allows the division to in essence reverse the determination of the Island Burial Council. That power is a result of that debacle at Hanakahua in 1990 when there were 1,800 burials recovered or in the process of being recovered in the sand dunes of Kapalua. And we decided as a people of this State not to go through that again in any shape, way, or form. There are not 1,800 burials at Mr. Brescia's property, there are at least 31 and if you talk to any of the experts involved, probably a lot more. In fact Kai Markel on the stand predicted there were over 100 burials there. Because you are only sampling to find 30, sampling. And so to avoid this history of desecration to ancient Hawaiian burials, unmarked burials, this procedure that we have all been talking about is in place and contrary to the characterizations that the Island Burial Council only has recommendation power is not true. They have determination power to preserve in place and the burial treatment plan has the power in a sense to contain those specific burial treatment measures, the buffers, the access, all the protective measures that could be reasonably imposed through a burial treatment plan to protect a site. And yes it could mean no building but Mr. Brescia does not, on the burial site at lease, but Mr. Brescia has no constitutional right here to build in this location, the size of house that he wants, it is always subject to reasonable regulations. And as Commissioner Blake points out he may have to settle for a smaller house. He may have to settle for a smaller footprint. But as long as he is allowed to build, that is not a taking. He came in to this knowing what the law was. He came in knowing what the condition was and so there is not, as far as I am concerned, right to declare a taking if you are allowed some ability to build on your site. It may not be a 4,000 square foot house, it might be something small and a different shape and maybe a different magnitude than he wants but that is the price of property ownership in Hawaii. The Supreme Court has repeatedly said this, they do not recognize and unlimited vested rights, unconstitutional taking argument, it is always subject to conditions. We are here for a very simple process. There are attempts to distract you but I urge you to focus on what your rules say and urge you to look at what your condition says and just apply it as it is said, until the requirements are met. The requirements have not been met yet. Chair: Thank you, if you guys can step back and let the Commission deliberate and have discussion. If there is any reason that we need to ask our attorney any legal issues for our decision we can go into executive session if we need to but certainly we can deliberate on the floor. Mr. Dahilig: Just to frame this for the Commission, the Commission must entertain one of either three actions based on this request. One is either to grant Brescia's motion to dismiss the Chapter 10 petition, to deny Brescia's motion to dismiss, or three, take the arguments under advisement and defer the matter. To frame the discussion for the Commission this morning, that is what is before you. Mr. Blake: Could you repeat that again? Mr. Dahilig: One is either to grant Brescia's motion to dismiss the Chapter 10 petition, two, deny Brescia's motion to dismiss, or three, take the arguments under advisement and defer the matter. Chair: Is there any discussion on the three matters that we need to address? Mr. Nishida: I have a question for Mike, the burial treatment plan that they are working with, with the State, the judge ruled that they needed to do more for the burial treatment plan, right? Mr. Dahilig: If you are asking my opinion on the applicability of Judge Watanabe's order we are going to have to go into executive session. Mr. Nishida: It seems to me that the letter from McMahon saying that this burial treatment plan is approved, the letter was April 24th, that that triggered the approval of the zoning permit which triggered the approval of the building permit which proceeded with this. So a burial treatment plan was approved at that time. Planning Commission Minutes 20 January 12, 2010 Mr. Dahilig: Based on the testimony that was provided, that is the contention of Mr. Chipchase and Mr. Trask. As to whether that was a legal burial plan, I cannot provide that advice unless we go into executive session. Mr. Nishida: Okay, what do I have to read? Chair: Are there any other questions we want to deliberate here on the floor, if not... Mr. Dahilig: Given our request by the Commissioner I request that the Commission pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), to go into executive session to consult with the County's legal counsel on questions, issues, status and procedural matters. This consultation involves the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they relate to these agenda items. Chair: So is there a motion on the floor? Mr. Blake: So moved. Mr. Texeira: Second. Chair: All those in favor say aye. On motion made by Hartwell Blake and seconded by Herman Texeira, to go into executive session, motion carried unanimously by voice vote. Chair: We will go into executive session for... is that the only question that we might ask? Is 10 minutes enough? So we will go into executive session for 10 minutes. Commission went into executive session at 11:22 a.m. Meeting was called back to order at 12:15 p.m. Chair: On the floor now we have discussion and I apologize to the audience for taking a long executive session, is there any discussion amongst the Commissioners? Mr. Blake: We have three alternatives, we can grant the motion to dismiss the petition which ends everything as far as the Planning Commission is concerned or we can deny the motion to dismiss the petition or we could defer a decision until we get more information, is that correct? Mr. Dahilig: I would say those are the options on the table but I would caution the Commission with respect to making a blanket statement that "to get more information" would be a proper means of determining if a deferral was required. Mr. Blake: So if we deny the motion to dismiss the petition what happens then? Mr. Dahilig: What would happen is that you would move into a contested case hearing where a presentation of the evidence and/or witnesses would commence before the Commission on which to decide whether or not to issue a declaratory order for a particular position that the Commission wishes to take. Mr. Texeira: In line with that statement would that declaratory order be done today? Mr. Dahilig: Theoretically no because on timing issues if you were to have the contested case hearing today the earliest we could have it would be a couple meetings later because we have to provide the opportunity for all parties to submit written proposed findings of fact and conclusions of law and proposed decision and order. So it is a two step process. You would also provide the opportunity at that next meeting for oral, potentially the equivalent of oral closing arguments before you guys. But the short answer, no that cannot be handled today. Chair: Are there any more discussions before I call for the question? Planning Commission Minutes 21 January 12, 2010 Mr. Dahilig: There is no motion on the floor. Mr. Nishida: Move to grant Brescia's motion to dismiss the Chapter 10 petition. Ms. Morikami: Second. Chair: Any discussion on the motion, seeing none, roll call. Mr. Blake: So if we grant the motion, if we vote in favor of this motion that ends everything? Mr. Dahilig: Theoretically at the next meeting, Commissioner, votes with whatever prevailing side regardless of what position the Commission takes, could raise it for reconsideration but theoretically this would not start the contested case hearing and the matter essentially would be resolved. Mr. Blake: Well based on the discussion that has been presented by the parties, one thing everyone agrees with is that condition as of today is not met. It may have been met at the time that the building permit was initially issued but since then all of the parties and Judge Watanabe agree, based on what I have read, that the burial treatment plan that was supposedly approved was wanting. And so right now the (inaudible) has stated that they are in their 15th iteration of an attempt to secure a burial treatment plan which was required as a condition precedent to the issuance of the building permits. The case went to court and Judge Watanabe issued her order around 18 months ago so there has been time, in my opinion there has been adequate time to secure a burial treatment plan. And for whatever the reason, I haven't seen any other proposed plans, but we know that for whatever reason the majority of the plans that have been shipped or transmitted to SHPD have not been acceptable by SHPD. So we are still faced with the basic unsatisfied condition that, or now unsatisfied condition that there is no burial treatment plan. And we have the problem of there apparently was one so permits were issued but that is now not the case and the court 18 months ago said well I am not going to jerk the permit, you build at your own risk. And so based on my understanding of what is happening today, I would not be supporting the motion to dismiss the petition. Chair: Are there any more discussions on the floor about the motion? I will call for the question, roll call. On motion made by James Nishida and seconded by Paula Morikami, to grant motion to dismiss petition, motion carried by the following roll call vote: Ayes: Morikami, Nishida, Matsumoto, Kimura, Race -5 Noes: Texeira, Blake -2 Absent: None -0 Not Voting: None -0 GENERAL BUSINESS MATTERS Request for Reconsideration of December 9 2009 Denial of Petition to Modify or Revoke the December. 111, 2007 Approval of Joseph Brescia Is Single-Family Residence, Pursuant to Chapter. 12 of the County of Kauai Planning Commission Rules Lot 6 Wainiha Subdivision II (5-84-58)Tax Map Key (4) 5-8-009. 045 (115110) from Alan T. Murakami, Esq., Camille K Kalama Esq of Native Hawaiian Legal Corporation. Chair: Is there any public testimony on this item? Ms. Kaeolani Huff. Thank you Mr. Blake and Mr. Texeira for your bravery. Again my name is Kaeolani, (inaudible). My last current residence was (inaudible). I am just going to ask you again to do the right thing. My heart is heavy, I feel you are not and won't. I will pray for each of you, thank you. Chair: Is there anybody else in the public that would like to testify on this agenda item? Planning Commission Minutes 22 January 12, 2010 Mr. Dahilig: A letter of correspondence from an individual requesting the Commission to reconsider a vote does not necessarily prompt an action by the Commission. The only members that are entitled to initiate a reconsideration vote is a Commissioner that has voted with the prevailing side on a motion. There for it does not necessarily require that at this time oral discussion with the parties would be allowed because again a letter only is a transmittal and an inclination from a party asking the Commission to take an action and does not necessarily prompt an action by the Commission. Mr. Bronstein: Good afternoon ladies and gentlemen, my name is Harold Bronstein and I testify on behalf of myself, the North Shore `Ohana and Caren Diamond as interveners. In the permit the interveners join in the request for reconsideration and for all the arguments I made earlier this morning, I reincorporate them, I won't bother you with them again. But they are still all accurate and true and correct, thank you. Ms. Kalama: I also will not repeat the arguments made earlier. Chair: Can you state your name? Ms. Kalama: Camille Kalama for petitioner's Puanani Rogers and Jeff Chandler. I am also not going to reiterate my arguments made earlier, all the arguments that were made on December 8th and that were made today I would like to reincorporate. But I would ask that at a minimum the Commission issue written findings or written reasons for, first of all for the granting of the motion to dismiss and for the denial of the petition on December 8th. And also, based upon what Commissioner Blake has raised today that you folks really consider taking up this issue again and taking a look at the real issues going on and ask if the question that he is raising has ever been answered and you will find that it hasn't. Mr. Murakami: Alan Murakami with the Native Hawai'i Legal Corporation. Your own rules require written reasons for denying a request for declaratory ruling and the motion to dismiss is in essence that so your own rules require something in writing be issued in order to give the public some notion as to why such a motion was granted in the face of all this evidence that this condition has not been adhered to. So I think that as a member of the public and as one of the counsel for the petitioners for the declaratory ruling we would like to seek at least a written determination or rationale for why there was this action because we can't frankly understand it. Mr. Jeff Chandler: Jeff Chandler. I couldn't participate in the last hearing so I am kind of lost as to how to respond to that but I would like to respond this way. I would like to respond on behalf of Iwi Kupuna of Hale O Naui. I am a descendent of that Kupuna, Iwi Kupuna, Iwi Makua, Iwi Keiki. I am here because of them, for their protection. And if what I have heard today and I have heard in the past does not perceive to me as protection. Because someone was allowed a permit does not give him the right to desecrate my ancestors because he chose to live there. They are already there. They were there a long time ago. They cannot come to you and speak on their behalf but I think you guys understand its people of this place, of this aina, or our cultural traditions or yours, what it means to be desecrated. And it's not the first time. It has been done so many times in Ha'ena, our people don't want to show up, because somebody decided that he deserved having a house. And that preservation method they chose was not of our choosing. It was not of our choosing. We had no part in participating in that choosing of that burial plan that you believe was right. In fact when that burial plan went in front of the Burial Council, the Burial Council denied it. The Burial Council never knew about that burial plan. When the Burial Council saw what was on that burial plan they denied it and I think the thing that came out was the fourth burial plan. But that decision was made by a (inaudible) Haole, archeology, we had no partaking in all of it. Let me tell you what they had put over there, they put a cesspool cover over Iwi Kupuna. I hope you guys had the record for that and the pictures and they call that preserve in place. The court said that we were supposed to be consulted. There has been no meeting with us since then pertaining to our ancestors, our Kuleana. Are you guys ready to take on that burden because we (inaudible). Chair: Jeff, can you wrap it up? By the way you can look at me and if you can just wrap it up. Planning Commission Minutes 23 January 12, 2010 Mr. Chandler: I think we may not have the full information. You do not even have the pictures of how it has been desecrated. The decapitation of Iwi Kupuna when they know what was over there. It's not like they didn't know how far you go down and you aren't going to find them. They knew, the consultant knew and they still used the machine and desecrated it. Let me end with this, when they started to move towards the road, towards mauka, they decided this, that there is what they call a buffer zone because they knew if they go to a certain depth they are going to hit Iwi Kupuna. And they decided, an archeologist decided for us that it is best that they don't dig it because he knew if he would, he would find them. Why would he? So, from now on if you bury 6 feet then that is adequate buffer for me to build my house on top of you, mahalo. Chair: Is there anybody else in the public that would like to testify on this agenda item? So do I call for a motion for the reconsideration on item B.1, correspondence transmitted to the commission, motion to receive for the record this correspondence from the Native Hawaiian Legal Corporation? Mr. Nishida: Move to receive for the record the request for reconsideration on December 8, 2009, denial of the petition to modify or revoke the December 11, 2007 approval of Joseph Brescia's single family residence pursuant to Chapter 12 of the County of Kaua'i Planning Commission rules, Lot 6, Wainiha Subdivision II, S-84-58, Tax Map Key (4) 5-8-009:045, 115110, from Alan T. Murakami, Esq., Camille K. Kalama, Esq., Native Hawaiian Legal Corporation. Ms. Matsumoto: Second. Chair: Is there any discussion on the motion on the floor to receive for the record, all those in favor say aye, motion carries. On motion made by James Nishida and seconded by Camilla Matsumoto, to receive request for reconsideration of petition, motion carried unanimously by voice vote. Commission recessed at 12:44 p.m. Meeting was called back to order at 12:50 p.m. Chair: We had a motion to receive and it passed, is there any motion to reconsider item B.1 from any of the Commissioners? So for the record I will say it again if there is any motion to reconsider the motion, if not then we will move into the next agenda item until lunch comes. Contested Case Proceeding: In the Matter of Petition to Appeal Decision of the Planning Director (TMK (IV)-5-3-004:030) Barnet M. Feinblum, Petitioner vs. County of Kaua'i Planning Department, Respondent (For Action). a. Receive for the record Hearing Officer's jProposed] Findings of Fact. Conclusions of Law; Recommended Decision and Order; Exhibits "HO-1"-"HO-11 Certificate of Service dated December 23, 2009. b. Receive for the record Hearing Officer's [Proposed] Decision and Order Granting Respondent County of Kauai Planning Department's Motion for Summary Jud ment Certificate of Service date December 23, 2009. c. Receive for the record Petitioner's Exceptions to Glenn M. Kosaka's Hearing Officer's Report and Recommendations dated December 23, 2009 dated December 31, 2009. d. Receive for the record Respondent's filing in Support of Hearing Officer's Report and Recommendations and responses to Petitioner's Exceptions Taken; Certificate of Service dated January 6, 2009* e. Receive for the record stimulated evidence packet received as part of Hearing Officer's proceeding on November 5, 2009. f. Consideration whether to accept with or without modifications, reject or defer action on the Hearing Officer's 1Proposed] Findings of Fact, Conclusions of Law; Recommended Decision and Order and Order Granting Respondent County of Kaua'i Planning Department's Motion for Summary Judgment: Certificate of Service dated December 23, 2009. Planning Commission Minutes 24 January 12, 2010 Chair: I will now open the floor for public testimony on items B.2, (a) through (f), any parry wishing to speak will receive 3 minutes for testimony. I will ask that you keep your comments concise and to the point and will please wrap up your comments when the beeper sounds. As a courtesy to all who wish to speak before the Commission, parties to the proceeding will be given time to address the Commission. So is there any public comment on item B.2? Mr. Barnet Feinblum: My name is Barnet Feinblum and we are the petitioners. My question is am I going to talk as public comment or I requested the opportunity for oral arguments? Mr. Dahilig: Every member of the public that wishes to speak on this agenda item is allowed 3 minutes. You do have a pending request before the Commission for oral arguments. If the Commission decides to grant the oral arguments then you will be provided subsequent time to talk at that point so I don't want to characterize it this was but you essentially have bites of the apple here. Mr. Feinblum: I am going to allow my wife to speak first. Ms. Julie Feinblum: My name is Julie Feinblum. My husband and I built this home 20 years ago. My dad was here in the navy and told us about Hawai'i. We were renting for 20 years and then were told that we are not allowed to anymore. We have never had anybody say anything to us before about our renting. We didn't know that we needed a permit until this just came up recently. We would have been more than happy to comply to that if that was an issue but we were never told. So all of a sudden we feel like the rug has been pulled out from underneath us. We have had people that come to our place that have rented for years and they come back all the time and they stay for a month. We have a local ...we have a very good following of people and like I say I really wish that somebody had said this to us because we would be more than happy to comply with getting a transient vacation rental permit. I was under the understanding that there was nothing out there like that so I just wish that you would rethink not letting us rent. Like I say we don't have wild crazy people staying at our place. We don't have signs outside out house that say it's for rent. We try to keep the neighborhood as a nice quiet neighborhood. 'Anini Beach is just down the way, I would assume they would have more problems with that than your vacation renters. I guess that is all I would like to say, thank you. Mr. Feinblum: My name is Barnet Feinblum and I am a property owner at 529 'Anini Road. I hope the Commission gives me an opportunity to present oral arguments later but in the event that I don't have that time I have submitted to you all a document dated today about my written arguments. Hopefully you now have a copy of this 2 page response. We are here without counsel. We felt that this was a matter that could be resolved simply. We understand that the passage of ordinance 864 occurred and the fact that we are on agricultural, State designated agricultural land is the basis for our denial or our nonconforming use permit. Innocently, I am not a lawyer, I went online and researched Hawaii Revised Statute 205 which is the paragraph under ordinance 864, 8-17(d) that it sites it is pursuant to for the basis for our denial because we built our house after June 4, 1976. I believe I may be the first person to inform the Planning Department and the Council that that is not the language of Hawai'i Revised Statute 205. Hawaii Revised Statute 205 specifically permits single family dwellings on lots, on agriculturally zoned land on lots existing before June 4, 1976 so the issue really is whether the lot existed before June 4th, not when the house was built. I then contacted the Planning Department and asked when our lot came into existence and I was informed, I now believe that was Fred who informed me that our lot existed prior to 1972. And based on that knowledge we submitted our appeal, we agreed to a stay of that appeal based on the fact that that was scheduled for September 8th and the County Council was going to hear supposedly bill 2298 that would grant us relief the next day so we agreed to the stay. Not being an attorney I wasn't really sure how sound our 1%al position was but there was a document submitted to the County Council on September 9t by an attorney that confirmed our suspicion the imperative ruling of ordinance 205, 4.5(b) should be whether the lot existed prior to June 42n not whether the building was built before that. I do understand that acting as your own attorney we may have a fool for a client but I didn't think this was such a serious matter that it couldn't be resolved by simply appealing the Planning Commission Minutes 25 January 12, 2010 Planning Director's ruling and pointing out this inconsistency of the ordinance with the State law and I would presume that the State law should govern. We are just requesting relief and I do hope you grant me the opportunity to present these oral arguments, thank you. Chair: Is there anybody else in the public, seeing none, before we go into our deliberation can we receive... Mr. Nishida: Move to receive items 2 (a) through (e). Ms. Matsumoto: Second. Chair: All those in favor say aye, no, motion carries. On motion made by James Nishida and seconded by Camilla Matsumoto, to receive items B.2 (a) through (e), motion carried unanimously by voice vote. Chair: So now we go into the findings of fact as part of the received documentation. The petitioner has made a request for oral arguments. Is there a motion to grant the petitioner's request for oral arguments? Mr. Nishida: Move to grant petitioner's request for oral arguments. Ms. Matsumoto: Second. Chair: All those in favor say aye, motion carries. On motion made by James Nishida James and seconded by Camilla Matsumoto, to grant petitioner's request for oral arguments, motion carried unanimously by voice vote. Chair: Can each party come up and make their presentations. I will give each of you 15 minutes to make your presentation and I will start off with you. Mr. Femblum: Thank you. I appreciate the opportunity to present our position to you. I have tried to summarize that in this two page letter that I handed out. We appreciate the hearing officer Glen Kosaka's findings of fact, conclusion of law and recommended decision and order. We are disappointed that he recommends that the Planning Commission does not have the jurisdiction to hear our appeal, as he also notes there is no appeal process in County. If this Commission is not authorized to hear our appeal he has determined that there is really no process and our only remedy would likely be a direct appeal from the Director's decision to the Circuit Court. I don't think we can afford necessarily to actually go through that procedure. He also recommends that the Commission issue a declaratory order under 1-10.1 to resolve certain issues but not decided in the petitioner's appeal. So we are requesting that the Planning Commission issue a declaratory order to end the controversy removing the uncertainty concerning the application of Chapter 8, article 17 to a single family TVR located in the State Agricultural District and the County Open Zoning District. We are zoned Open in the County. Additionally, as our property is subject to both County Open Space Zoning and HRS 205 Agricultural regulations it would appear that the language of the State statute should prevail. A declaratory order to revise the language of ordinance 864 and 876, 8-17(d) to conform with the language of the State statute 205 that it sites it is pursuant to would terminate this controversy. This could be accomplished by simply changing the current language of ordinance 864 and 876, section (d).1 which now reads "it was built prior to June 4, 1976" to the language contained in HRS 205, 4.5(b) which is "on lots existing before June 4,1976". Ordinance 864, findings and purpose states that the Council of the County of Kaua'i finds that there is a compelling need to regulate single family transient vacation rentals on Kaua'i. It further states identifying and allowing nonconforming uses where single family vacation rentals have been operating lawfully prior to this bill. We believe we have been a lawful single family transient vacation rental ever since we built our single family home in 1990. We believe we have complied with all requirements of both the State and the County and would have attempted to correct any deficiencies or seek any permits if we had been notified or a need to do so. Planning Commission Minutes 26 January 12, 2010 The Planning Director's denial of our nonconforming use permit unconstitutionally deprives us of a preexisting property right and has caused us harm. After receiving our denial and researching 205 and confirming that our lot existed prior to 1972 from we believe Fred in the Planning Department, I understand that the hearing officer took exception to that and I apologize for misidentifying Imai as the planner who informed us of that decision. I think the real issue is that if our lot existed ...the County also says that you don't have the right to invalidate an ordinance. We are not asking you to invalidate an ordinance we are asking you to clarify a very minor point of this ordinance that affects perhaps only us. I am not aware of anybody else so affected. In the denial of our permit the Planning Department identified our property as a farm dwelling. While HRS 205, 4.5(a)(4) permits farm dwellings within Agricultural Districts on land with soil classified by the Land Study Bureau as detail land classification as overall master productivity rating, class A or B, our lot is a small size, less than two thirds of an acre comprised of sandy soil near the beach being unsuitable for farming and therefore would not be so limited. And so I think the real issue is the single house. We are not a farm dwelling we are a single family home and were single family dwellings lawful to operate transient vacation rentals. Until ordinance 864 was passed it was allowable to rent single family homes as a vacation rental and we obtained our TA license and GE license in 1990 and have paid taxes ever since. The current application requires evidence of GE and TA licenses as evidence of a preexisting use. We provided those. Ordinance 864 for the first time defines this term SFTVR by adding language to section 8.-1.5. On July 11, 2000 the then County Deputy Attorney Blaine Kobyashi wrote "presently there is no provision in the Comprehensive Zoning Ordinance which directly prohibits single family vacation rentals in non-VDA areas". It is our belief that the term SFTVR does not appear in Hawai'i law until 1989 in Maui. Clearly HRS 205 in 1976 was appropriately silent on this subject and building permits were not required to state this on their applications as we believe this was a permitted use until ordinance 864 was adopted. Additionally, nonconforming use permits were issued to single family homes on land designated agriculture by State law if they were built prior to this so is the distinction whether we are a farm dwelling or a single family house? We believe the single family house has this use, the department, pursuant to 205, only two limited exceptions are permitted. We believe that no Special Permit under FIRS 205-6 permitting a vacation rental were ever applied for or issued in the County of Kaua'i since 1976, over 30 years ago. While that is a provision that is one exception nobody has ever been informed that that process exists. Nobody has ever been required to get a permit and no permits have been applied for or granted. "We are asking the Commission to declare the counsel's interpretation of HRS 205, 4.5 and enacting ordinance 864 and 876 as invalid". We are not asking that, that is what the County attorney says we are doing. We are just asking to clarify this minor point and if you don't have the authority to hear our appeal you do have the ability to issue a declaratory order because the issue is if the County ordinance had adopted the State law as written it is our belief that the Planning Director would have been required to grant our nonconforming use permit and not deny it, thank you. Chair: At this time we will take a 45 minute recess for lunch before Mr. Jung gives his comments. Commissioner Raco left at 1:09 p.m. Commission recessed for lunch at 1:09 p.m. Meeting was called back to order at 2:00 p.m. Vice Chair Texeira: Mr. Jung, what is your argument? Mr. Ian Jung: Good afternoon Commissioners, Deputy County Attorney, Ian Jung for the record representing the Planning Department as respondents to this particular petition to appeal the Planning Director's decision. I know it has been a lengthy morning for you folks so I will try and keep my arguments short. In an effort to try and bring everything together I would like to break my response up to the petitioners oral argument into three areas and the first area will be Planning Commission Minutes 27 January 12, 2010 the procedural history and what happened up to this point. The second area will be the motions that we filed and the third are will help respond to the exceptions filed to the proposed decision and order which in effect is the recommendations of the hearings officer. So as a threshold matter, what happened was in 2009 the Commission requested that the department hire a hearings officer to handle most of the TVR appeals. So where we are at right now is a hearings officer held a hearing on November 5, 2009 to address the issues in the petition to appeal the Planning Director's decision. Prior to the scheduling of the hearing the department filed a motion and that motion was entitled a motion for summary judgment. In that motion the department argued two things, procedurally there is no jurisdiction to handle the appeal and the second thing was substantive argument arguing that even if there was jurisdiction, that the Commission or the hearings office found that there was jurisdiction, that on it's face the petitioner should not be entitled to the relief sought because he has not complied, or the Director applied the facts to the law in denying his application. And the law in this particular case was ordinance 864 and I will get into that a little more on the basis of the motion. What happened at the hearing on November 5t" is the hearings officer took the matter under advisement, we went forward with the hearing, we took testimony and we held I think about 6 witnesses altogether. And after the hearing concluded the petitioner concluded his portion of the hearing, evidentiary portion, the department also moved for what we call a directed verdict and all that is saying is we didn't believe the petitioner didn't put enough evidence on to support his appeal. After that the hearings officer also took that under advisement and after that the department put on their evidence and as the evidentiary portion concluded the hearings officer took the matter under advisement. And here we are today in what we call the post-hearing procedures and looking at what the post-hearing procedures are the hearings officer did his proposed finding of fact and conclusions of law and Mr. Feinblum filed an exception to that. And the department in response to that filed what we call a support for the proposed decision and order which we will just call D&O. So that is where we are at procedurally. The reason we filed a motion for summary judgment, in layman's terms a motion for summary judgment is just that there are no facts at issue, meaning the facts are undisputed and we feel we are entitled to a decision as a matter of law. And the reason we filed that is looking at the case procedurally, if you look at the applicability section of Chapter 9 under which this appeal was filed, appeals are only allowed to come under this particular chapter, under Chapter 8, articles 18 and 19. Now the new TVR ordinance is under Chapter 17 we argue that there actually is no jurisdiction but covering our basis we also argued the substantive matter, arguing that ordinance 864 states that if you have a TVR on Ag. land you are limited to operation only under two exemptions and those exemptions are either (a) a Special Permit or (b) was built prior to June 4, 1976. In both cases the petitioners has admitted that (a) he does not have a Special Permit and (b) he did build that house in 1990 which is well after June 4, 1976. So the questions that motion looked to answer was one, is the petitioner's property located on SLUD/Ag. and that was answered in the affirmative, two, did the petitioner build his house after June 4, 1976 and that was also in the affirmative because it was built in 1990. And three, does he have a Special Permit to operate a single family TVR under HRS 205 and he does not. I know he is arguing that he didn't know but it is generally commenced that ignorance to the law is generally not an excuse so whether or not he knew or not is irrelevant in this matter. The issue that he is focusing on is that ordinance 864 is invalid. That is his contention. So what you guys are empowered to do is look at Chapter 9 and if he is entitled to an appeal, what are the grounds for that appeal because you as a quasi judicial body, what you guys are looking at is applying the facts in this current situation to the law as passed by the County Council. The County Council chose to interpret HRS Chapter 205, 4.5 in a particular way. Mr. Feinblum contests that. He wants you to say the law does not apply to him so give him a break. Unfortunately it doesn't happen that way. There are certain protocols he can do in applying of a variance but that is not the case here, there is no petition for a variance and when looking at a variance petition you would have to address size of the lot and certain other stringent factors and also go through public hearing process in which certain things have to be noted and notices have to go out to the particular property. So he is attempting to suggest to you that you as the Planning Commission can say County Council, you interpreted the law wrong and the specific provision he is looking at is 205, 4.5(b). And what 205, 4.5(b) says, "uses not expressly permitted in subsection (a)" which lists Planning Commission Minutes 28 January 12, 2010 the permitted uses, "shall be prohibited except uses permitted as provided in sections 205-6 and 205-8", 205-6 is the Special Permit provision and 205-8 is the nonconforming use certificate provision. And then there is a coma and after that coma there is "and the construction of a single family dwelling on a lot existing before June 4, 1976". Now it is our position that there is a distinction between the uses in this particular case. Although he is potentially entitled to construct a single family residence and that is what his zoning permit said he could do, he is trying to argue in his exemptions that look, I am entitled to construct for a single family transient vacation rental. But that is not the case here. What he is trying to say is that because he was entitled to a single family residential unit he is entitled to a TVR. What Mr. Feinblum doesn't understand is the fact that we have a dual regulatory system here in Hawai'i that land use laws are regulated not just by HRS but also complimented with our CZO. With HRS 205 what happens is it is listing out certain provisions and our CZO also compliments those provisions. Now there is a distinction between the use and whether or not he can construct a single family residence. But that is neither here nor there because what we have before us is ordinance 864 and as the quasi judicial body you guys apply facts of a situation in a contested case as this was, which the hearings officer took testimony, and you apply it to the provisions of the law which you are under an oath to uphold. And that particular law is ordinance 864. And again he has not provided any evidence that he is not on SLUD/Ag., he doesn't have a Special Permit and he built his house in 1990, well after June 4, 1976. So essentially we can't just tell them or come in and ask for relief because we don't feel the law applies to us or we feel that law should be interpreted this way or that way. So when it comes for his request for a declaratory order listed in his exemptions area his request is not specific, it just asks to look at whether or not the County ordinance is questionable as to HRS 205. So he wants you to interpret whether or not the County Council did the right thing. Now you just don't have that authority. It is our contention you just don't have that authority so we feel that it is an improper request. So even if he had jurisdiction he would have failed as a matter of law to establish that he is entitled to relief because he didn't meant the threshold questions that needed to be answered. Vice Chair: Mr. Feinblum, you have 5 minutes for rebuttal if you so choose. Mr. Feinblum: Thank you. The hearing officer I believe, Glenn Kosaka, did a very good job of describing the events and the documents contained in the stipulated agreement and his report. We took only two exceptions to that, basically in his report he stated that we objected to the conclusion that a single family home for vacation rental was not constructed. Mr. Kosaka cited the reason for saying we did not construct a single family home for vacation rental was because in 1989 we only put on our building permit single family home. The fact that we omitted for vacation rental was not relevant to us at the time because there was no regulation regarding single family vacation rentals. Single family homes had been permitted to rent short term. Additionally, the denial of the Planning Director was that we are a farm dwelling. We are not a farm dwelling. We built our house in 1990, we don't contest that but the State law that it cites this ordinance is pursuant to doesn't say built by June 4, 1976, it says on lots existing before June 4, 1976. We believe our lot existed in 72 according to Fred at the Planning Department when I called and he responded in July of this year. It's not for us to tell you when our lot existed, the County knows when our lot existed. The issue here is does the County, I believe this was an innocent mistake. I don't believe the County as the distinguished Attorney says, interpreted State law the way it shows to. I think it was an accident of misstating the apparent intent of the State law. On September 9`s as exhibit (y) in the is document, the letter on Belles, Graham, Proudfoot, Wilson, and Chun stationary from Lorna Nishimitsu concludes, "although the apparent intent was to conform the County's restrictions to allowable State uses it should be noted that section 205, 4.5(b), HRS, reads; construction of single family dwellings on lots existing before June 4, 1976, therefore the touchstone should not be whether the dwelling was built before 1976 but whether the lot existed before June 4, 1976. This is a housekeeping suggestion which in fairness to anyone who may fall into that situation should be made". That is all we are telling you, somebody made a mistake. Is there no way to fix a mistake that has affected us and our property and maybe no one else? Because you don't have the authority to hear 8-17, you only have the authority to hear 8-18 and 8-19? And therefore there is no place for us to appeal the decision of the Planning Director? Planning Commission Minutes 29 January 12, 2010 The hearing officer does acknowledge that you have the authority to make a declaratory ruling. I also found another point that I did want to mention and that is there is some provision, I am trying to find it now, that says the County can make ordinances not in conflict with State law. Not to mean to change the intent of State law. Sure you can issue ordinances going forward but you are going retroactive and saying we have been unlawful. You are taking our right to a property without compensation because you are saying we were unlawful. What do you cite as being unlawful about what we did? That we built our house after June 4, 1976, we already covered that there has never been issued a Special Use Permit for a single family home, that there is no language that says a single family home cannot be a transient vacation rental until this ordinance is adopted. And so what are we left to do to appeal. We have no place to appeal. We can't go to the Planning Commission. There is no other way for us to appeal the ruling of the Planning Director. We point out to you that there is an error in the State law and we are saying maybe that is what the Council meant. That is not what the Council meant. They don't get to change the law as they would like it to be, they have to write the law as it is. It cites this ordinance is pursuant to 205. So now we are saying that the right to have a single family home doesn't give us a right to a vacation rental. Guys this is a lot of legal technical stuff. What did we do that is unlawful? And it says that you can issue a declaratory order to clarify a misinterpretation, a confusion, and clearly one exists, the hearing officer so states that there is according to the hearing officer clearly ...he says "an actual controversy exists concerning the application of ordinance 864, Chapter 8-17, CZO, the related transient vacation rentals. In the instant case there is a controversy concerning the application of Chapter 8, article 17 to a single family TVR located in the State Agricultural District and in the County Open Zoning". We are on County Open Zoning, not County Ag. "The subject property is subject to both County Open Zoning and HRS Chapter 205 Agricultural District regulations and the petition has called into question the validity of the CZO provisions and the proper application of Chapter 205. The Planning Commission can move towards ending the controversy in removing uncertainty by" and there are several things you can do, get the Charter to include 8-17, propose regulations for getting Special Use Permits, or issue a declaratory order fixing this. And if there is no process created we have no option but to appeal to the Circuit Court. It seems harsh that that is the only remedy available to us, that you don't have the authority to issue a ruling on something as simple as a misstatement of the State law. Vice Chair: Mr. Feinblum, excuse me, could you please wrap it up? Mr. Feinblum: I'm done. Vice Chair: Would all parties please step back. Mr. Dahilig: Commissioners, pursuant to section 1-16-19, sub. (e), the Commission may reverse, modify or adopt the recommendations of the hearings officer. Also the Commission may reopen the docket to take further evidence or take such action that is necessary under the circumstances. Vice Chair: Is there a motion to reverse, modify or adopt the recommendation of the hearings officer or any other motion? Ms. Morikami: Mr. Chair, I move that we adopt the recommendation of the hearing officer. Mr. Blake: Second. Vice Chair: Any discussion, roll call. On motion made by Paula Morikami and seconded by Hartwell Blake, to adopt recommendation of the hearing officer, motion carried unanimously by the following roll call vote: Ayes: Blake, Morikami, Nishida, Matsumoto, Kimura, Texeira -6 Noes: None -0 Absent: Raco -1 Planning Commission Minutes 30 January 12, 2010 Not Voting: None -0 Status Report of Compliance with Conditions for Variance Permit V-99-30 and Class IV Zoning Permit Z-IV-99-32 (Hale Kauai Ltd., Applicant) and Class IV Zoning Permit Z-IV- 2004-44 (Hale Kauai Ltd Applicant) and Request to convert former lumber supply store to retail convenience and package food store Tax MU Key 4-6-37:67, KWa`a Homesteads. a. Staff Report pertaining to this matter. Staff Planner Bryan Mamaclay read staff report (on file). Vice Chair: Any Commissioners want to ask our planner or do you have any comments, anyone in the public wish to come forward on this matter? Ms. Jean Kamp: Aloha Commissioners, my name is Jean Kamp and I am the owner's representative for this project. Mr. Russ Bow I am Russ Boyer, one of the owners. Ms. Kamp: We are just here to answer any questions you might have on the application as stated. Vice Chair: Any questions folks? We don't have any questions for you but I would like to, as I mentioned earlier, are there any members of the public that wish to speak on this matter, thank you. Ms. Kamp: Thank you. Vice Chair: There being none, I would like to entertain a motion, I'm sorry, you want to summarize, go ahead. Staff Planner Bryan Mamaclay read department recommendation (on file). Vice Chair: Is there a motion to receive? Ms. Morikami: Mr. Chair, move to receive the communication. Mr. Kimura: Second. Vice Chair: I am going to combine this with the staff report. Ms. Morikami: Move to receive the staff report also. Vice Chair: Any questions, all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Jan Kimura, to receive staff report and communication, motion carried unanimously by voice vote. Vice Chair: Now we need an action motion. Ms. Morikami: Mr. Chair, move to approve the request for conversion as requested. Mr. Kimura: Second. Vice Chair: Call for the question, there being none all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Jan Kimura, to approve staff recommendation, motion carried unanimously by voice vote. Acknowledgement of Successor to Use Permit U-86-18 and Class IV Zoning Permit Z- IV-86-17 and Use Permit U-96-9 and Class IV Zoning Permit Z-IV-96-11 (St. Francis Medical Planning Commission Minutes 31 January 12, 2010 Center Applicant and Request to Provide Additional Dialysis Treatment Stations in Existing Facility, Tax Map Key 3-6-03:33, Lzhu'e, Kauai. a. Staff Report pertaining to this matters. Staff Planner Bryan Mamaclay read staff report (on file). Vice Chair: Do any Commissioners have any questions for the Planner, there being none, is the applicant... Mr. Nishida: Can I request that Bryan finish with the evaluation so that that we can cover the evaluation and recommendation. Staff Planner Bryan Mamaclay read department recommendation (on file). Vice Chair: Is the applicant in the room, please come forward. Mr. Walton Hong: Thank you Mr. Chairman and members of the Commission. For the record my name is Walton Hong representing Liberty Dialysis of Hawai'i. With me is Marie Naganuma who is the Director of Project Development for Liberty Dialysis Hawai'i. Also, sitting behind me is Deanna Starinary who is the Director of the Kaua'i facility and Curtis Miamura who is the architect, we have them here in case of any questions the Commission may have. We have gone over the staff report. We acknowledge the staff report and are satisfied with the staff report however I do have one request and this arose after we received the staff report and that is the treatment center now closes 3 days a year for Holidays, Thanksgiving, Christmas and New Years. The patients have to come 3 times a week for treatment and on those times when the facility is closed for Holidays they have to make it up somehow and what we are asking for is additional language to condition No. 3 as follows. "The facility may also operate beyond these hours on Sunday to accommodate patients who did not receive treatment due to the closing of the facility on Holidays or due to failure of infrastructure", for example if there is a water break and there is no water or electrical service is disrupted and they can't continue treatment they have to make it up somehow. Sometimes because of tight scheduling involved they have to make it up on a Sunday and we ask that this be included. I think it is just to accommodate those unusual circumstances and we ask for your consideration to that. Other than that, we do ask for your favorable consideration to the request. If there are any questions we would be glad to respond. Vice Chair: Any questions? Is there a motion to receive? Excuse me, is there any public testimony in regards to this application? Is there a motion to receive? Ms. Morikami: Mr. Chair, move to receive communication from Walton Hong dated December 8, 2009, as well as the staff report dated January 12, 2010. Ms. Matsumoto: Second. Vice Chair: Call for the question, any questions, all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to receive communication from Walton Hong and staff report, motion carried unanimously by voice vote. Ms. Morikami: Mr. Chair, before making the motion I would like to hear that amendment again. Vice Chair: Bryan, could you read the amendment. Staff: Condition No. 3 will contain this additional sentence, "The facility may also operate beyond these hours on Sundays to accommodate patients who did not receive treatment due to closing of the facility on Holidays or due to failure of facility infrastructure". Planning Commission Minutes 32 January 12, 2010 Vice Chair: Is that acceptable for the applicant? Do we need to entertain a motion for the amendment? Is there a motion to amend the staff report? Ms. Morikami: Mr. Chair, I move that we amend the staff report. Ms. Morikami: Second. Vice Chair: Questions, there being none, all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to amend staff report as read by the planner, motion carried unanimously by voice vote. Ms. Morikami: Mr. Chair, move that we approve the staff report as amended. Ms. Matsumoto: Second. Vice Chair: Call for the question, there being none... Staff. Commissioner Texeira, I think for the record we need to acknowledge the comments received from I believe the Transportation Division, there was an addendum. Vice Chair: So we need to receive for the record. Staff: I believe so. Mr. Jung: Did those just come in Bryan? Staff: There was an addendum.added to the agenda this morning. Vice Chair: I would like to entertain a motion to receive the Transportation Department's comments. Ms. Morikami: Mr. Chair, move to receive communication dated January 8, 2010 from the County of Kaua'i, Transportation Agency. Ms. Matsumoto: Second. Vice Chair: Questions, there being none, all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to receive comments from Department of Transportation, motion carried unanimously by voice vote. Vice Chair: I would like to have a vote on the staff report, motion to approve the staff report as amended. Ms. Morikami: I made that motion already but I will make it again. Vice Chair: We are calling for the vote, all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve the staff report as amended, motion carried unanimously by voice vote. Request (12/21/10) from Ronald A Sato Wilson Okamoto Corp. to amend Special Management Area Use Permit SMA(U)-2005-8 Project Development Use Permit P.D.U-2005- 26 Use Permit U-2005-25 and Class IV Zoning Permit Z-IV-2005-30 by revising the Kaua'i Lagoons Resort master plan to integrate the twenty-two units authorized by PM-2009-394 within the area currently planned and approved for condominium/time share development, Tax Map Kev7 3-5-1 •por 27,171, por. 172 and 175, Kalapaki Lzhu'e Kaua'i = MORI Golf. Planning Commission Minutes 33 January 12, 2010 a. Staff Report pertaining to this matter. Staff Planner Mike Laureta: For the Commission I will give you a brief overview of the project. In July of last year this project came before the Commission in the form of zoning, General Plan, State Land Use District amended request and it involved three areas to provide 22 units in exchange for this 138 acre parcel. The three areas that were proposed for the subdivisions that were approved for rezoning and General Plan amendment are in yellow. These maps are reduced form in your packets. You have an R-2 zoned are here, R-2 zoned area here and here, Kalapaki Beach, the runway, Kapule Highway. The proposed project now is referenced as the third SMA amendment to the project and proposes to convert the 22 single family residential units that were originally considered into multi-family units to be integrated into existing structures that were previously approved during the second amendment of the SMA. Staff Planner read staff report and department recommendation (on file). Vice Chair: Any questions for our planner? There being none, is the applicant here? Mr. Ronald Sato: Good afternoon Mr. Chair and Commission members my name is Ronald Sato with Wilson Okamoto. With us today we also have a representative for the applicant along with other members of our project team. We just want to say that we reviewed the staff report and concur with their findings and recommendations and we are here to answer any questions the Commission has for us. Mr. Nishida: What is the status of the current construction on the whole thing? Mr. Steve Bush: Good afternoon Commissioners, I am Steve Bush, V.P. of Development for Kauai Lagoons. Currently we are in suspension on the Makulii Building A, and Inn on the Cliffs. We are going forward with some structural protection work right now but they are currently suspended. The Kalani Puu Condominium which was the three building condominium that is adjacent to Fashion Landing, the first building was occupied in January of last year, the other two buildings will commence construction, final construction on those in the fourth quarter of this year. Following that, our current plans are once that condominium, the Kalani Puu project is complete we essentially see a period of continuing construction through the completion of the project. Mr. Nishida: The dedication deed, what is the status of the dedication deed? Mr. Bush: My understanding is that the draft deed has been transmitted to the County Attorney and is under review by the County Attorney's office at this time. Mr. Nishida: What does the 21.6 acre parcel, what is its current condition? Mr. Bush: Unimproved. There are roads through there used by campers and fishermen. There may be some small structures on it but it is basically unimproved. Mr. Nishida: Your plan is to leave it as is? Mr. Bush: Yes. Mr. Nishida: Thank you. Vice Chair: Anyone else? If there are no further questions, thank you. Is there anyone wishing to come up and submit public testimony? There being none, I would like to entertain a motion to receive the request as well as the staff report. Ms. Morikami: Mr. Chair, move to receive communication from Mr. Ronald A. Sato, dated December 21, 2009. Also receive for the record the Planning Department's staff report. Ms. Matsumoto: Second. Vice Chair: Questions, all those in favor say aye, opposed, motion carried. Planning Commission Minutes 34 January 12, 2010 On motion made by Paula Morikami and seconded by Camilla Matsumoto, to receive request from Ronald Sato and staff report, motion carried unanimously by voice vote. Ms. Morikami: Mr. Chair, move to approve the request by the applicant and approve the recommendation of the staff report pursuant to the applicant's request. Ms. Matsumoto: Second. Vice Chair: Any questions in regards to this application, all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve staff recommendation, motion carried unanimously by voice vote. Executive Session: Pursuant to Hawaii Revised Statutes Sections 92-4, 92-5(a)(4) and (8)and Kaua'i County Charter section 3.07(E)the purpose of this executive session is to provide the Commission a briefing and status report on Barbara Robeson and Caren Diamond, Members of Protect Our Neighborhood `Ohana vs. Planning Commission and Planning Department of the County of Kaua'i and County of Kauai Civil No. 09-1-0214 and other related matters This briefing and consultation involves the consideration of the powers, duties, privileges immunities and/or liabilities of the Commission as they relate to this agenda item. Vice Chair: We will be moving the executive session to the last item. Based on the request from the County Attorney we will be deferring the executive session to a later date, this is item No. B.6. Ms. Morikami: Did you say later date or end of calendar? Vice Chair: Later date. Ms. Morikami: Thank you. Vice Chair: I did say end of calendar earlier. I was requested to change that. COMMUNICATION There were no communications. SUBDIVISION Mr. Kimura: I would like to recuse myself on agenda A.1 because I am an employee of Princeville so I won't be voting on that. Ms. Morikami: Mr. Chair, I also will be abstaining from voting on items D. La and D.2.a which involve McBryde Sugar Company. I have a pending claim with Kukui`ula Village which has a direct connection to McBryde and A&B. Ms. Matsumoto: Item A.1, we accepted the transmittal of the Agricultural Master Plan for Tax Map Key (4)-5-3-006:001 and 14, Princeville, Princeville Prince Golf Course, LLC. Vice Chair: Do we take a vote on this separately? Why don't we just do that, is there a motion to receive? Ms. Matsumoto: To accept the receive of. Vice Chair: The first motion is to accept the... Mr. Costa: To accept the Subdivision Committee report for item A.1. Ms. Morikami: Mr. Chair, move to accept the subdivision report, item A.1. Planning Commission Minutes 35 January 12, 2010 Ms. Matsumoto: Second. Vice Chair: All those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to accept subdivision committee report for item A.l, motion carried unanimously by voice vote. Ms. Matsumoto: Item D.1, tentative subdivision action was approved for S-2009-19, Alexander & Baldwin Inc./McBryde Sugar Company, Ltd., TMK 2-6-03:01, 21, 25, 28-35, 54; 2-4-04:16, 38-40, Kukui`ula, Kauai. Vice Chair: Motion. Mr. Nishida: Second. Vice Chair: That was a motion to approve? Ms. Matsumoto: Yes. Vice Chair: Questions, all those in favor say aye, opposed, motion carried. On motion made by Camilla Matsumoto and seconded by James Nishida, to approve subdivision action for 5-2009-19, motion carried unanimously by voice vote. Ms. Matsumoto: Item D.2, final subdivision action was approved for 5-2009-30, McBryde Sugar Company, Ltd., TMK 2-1-001:027, portion, Eleele, Kaua'i. Vice Chair: Motion to approve. Mr. Blake: So moved. Ms. Matsumoto: Second. Vice Chair: Questions, there being none all those in favor say aye, opposed, motion carried. On motion made by Hartwell Blake and seconded by Camilla Matsumoto, to approve subdivision action for 5-2009-30, motion carried unanimously by voice vote. UNFINISHED BUSINESS There was no unfinished business. PUBLIC HEARING There were no public hearings. NEW BUSINESS For Acceptance into Record - Director's Reports for Projects Scheduled for Public Hearing for 1/26/10 Public Hearine. Use Permit U-2001-13 and Class IV Zoning Permit Z-IV-2001-17 to permit the replacement of a 40 ft high monopole with a 70 ft high stealth monopine (a monopole designed to look like a pine tree) and associated equipment at an existing telecommunication facility in Moloa'a Kauai situated approx 1 400 ft north of the southern intersection of Koolau Road and Kuhi`6 Highway, adjacent to the Moloa'a water tank on Puu Auau further identified as Tax Map Key 2-4-004.007 and affecting a I J50 sq ft portion of a 311.598 acre parcel = Crown Castle International. TO BE POSTPONED. Planning Commission Minutes 36 January 12, 2010 For Acceptance and Finalization - Director's Report for Shoreline Determination. Planning Director's Report pertaining to a shoreline setback determination (SSCR-2010- 5) for a shoreline setback determination Kekaha Kauai Tax Map Key 1-2-002:021, for acceptance by the Commission.=.Hawaii Army National Guard Staff Planner Lisa Ellen Smith read staff report (on file). Vice Chair: Any questions for the planner? Anybody in the public like to testify on this? Staff Planner read department recommendation (on file). Vice Chair: Could I have a motion to receive the staff report and the shoreline determination report? Ms. Morikami: Mr. Chair, I move to receive the staff report and accept the shoreline recommendation. Ms. Matsumoto: Second. Vice Chair: Questions, all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to receive and accept staff report, motion carried unanimously by voice vote. Vice Chair: Before adjournment there is one more housekeeping item that I would like to go over and that is the nominations for the alternate Subdivision Committee. We need to have two more members to be alternate Subdivision members, any nominations? Mr. Blake: I nominate Paula and Jan. Mr. Kimura: I am already on it. Mr. Blake: Then I nominate Paula and Jimmy. Mr. Nishida: I am too. It must be Paula and Hartwell. Vice Chair: Is there a motion to close the nominations? Ms. Morikami: So moved. Mr. Nishida: Second. Vice Chair: All those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by James Nishida, to nominate Paula Morikami and Hartwell Blake as alternate Subdivision Committee members, motion carried unanimously by voice vote. ADJOURNMENT Commission adjourned the meeting at 3:35 p.m. Respectfully Submitted. Lam Agoot Commission Support Clerk Planning Commission Minutes 37 January 12, 2010