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HomeMy WebLinkAboutpc02-09-10 KAUAI PLANNING COMMISSION REGULAR MEETING February 9, 2010 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, Caven Raco, at 10:18 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 Mr. Caven Raco Mr. Jan Kimura Mr. Hartwell Blake Absent and excused: Ms. Camilla Matsumoto Discussion of the meeting, in effect, ensued: APROVAL OF THE AGENDA Chair: Can I get an approval of the agenda? Mr. Texeira: So moved. Ms. Morikami: Second. Chair: All those in favor say aye, motion carries. On motion made by Herman Texeira and seconded by Paula Morikami, to approve the agenda, motion carried unanimously by voice vote. Chair: Minutes from January 12, 2010, an approval if there are no revisions to the minutes. Ms. Morikami: Moved to approve. Mr. Kimura: Second. Chair: All those in favor say aye, motion carries. On motion made by Paula Morikami and seconded by Jan Kimura, to approve minutes of January 12, 2010 regular meeting, motion carried unanimously by voice vote. GENERAL BUSINESS MATTERS There were no general business matters. COMMUNICATION There were no communications. SUBDIVISION Mr. Nishida: There was no general business, communications, unfinished business. Under new business there were 3 tentative subdivision extension requests, S-96-30, Kikiaoloa Land Company, Ltd., TMK-1-2-06:42, 1-6-08:04, 12, approved 2-0. Subdivision extension request, S-2001-22, Kikiaoloa Land Company, Ltd., TMK- 1 -2-06:09, 20, approved 2-0, and MAR 0 9 2010 tentative subdivision extension request for S-2001-29, Kikiaoloa Land Company, Ltd., TMK-1- 2-06:03, 41, approved 2-0. Move to approve the subdivision report. Mr. Kimura: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by James Nishida and seconded by Jan Kimura, to approve Subdivision Committee Report, motion carried unanimously by voice vote. UNFINISHED BUSINESS Chair Raco recused himself and Vice Chair Texeira chaired this docket. Staff Report in response to request 1115110) from Hartwell H. Blake to the Planning Commission transmitting letter date December 21, 2009 from Carlos R. Buhk regarding the status of conditions set forth by Fifth Circuit Court Order, Civil No. 07-1-191, relating to the development of a condominium project consisting of eight (8) single-family residents on CPR units 1 to 8 and 72 multi-family units on CPR unit 9 for Use Permit U-2000-20 and Class IV Zoning Permit Z-IV-2007-24, Tax Map Key 2-8-09:1, K61oa, Kaua'i - Koloa Creekslde Estates LLC. (Communication 1/26/101. Mr. Costa: Chair, before proceeding I would like to acknowledge that during the last meeting when this item was on the agenda Commission Morikami posed a couple of questions to the staff as well as the County Attorney with respect to the Commission's authority versus the court's authority in reference to the subject court order. I would like to request that our counsel provide a response to those questions. Mr. Ian Jung: Good morning Commissioners, Deputy County Attorney Ian Jung. This particular is sort of an interesting case because we do have a court order that I guess within 30 days after this court order was imposed, gave the Planning Commission the ability to impose the conditions laid out in the court order. So when the court issued this order the conditions that were imposed in the order had to be imposed at the Planning Commission meeting so that is what happened and where we are at now is a request for compliance has come in as to some of the conditions. But if you look closely at the court order it does contain the whole project envelope so all units do consist of what is imposed in this order, so units 1 through 9. But the interesting thing is the court retained jurisdiction to handle any, or to ensure compliance with this court order. So if the Commission or the department wanted to impose additional or other requirements for conditions then we would have to go back to court. So the key to this is the court will ultimately have to review anything that is imposed in terms of additional conditions or requirements. So our hands are kind of tied in terms of what you can do because it does have to go back to court. So theoretically the Planning Commission issued the approval but the court ultimately has a say if there is going to be any amendments or additional conditions to that approval. And this court order is a public document and that is why I am discussing this on the open floor. If you have any questions I would be happy to answer them. Mr. Texeira: Does that satisfy your request? Mr. Nishida: So the question regarding timelines for compliance, there is no timeline? Mr. Jung: It appears that the timeline for compliance has not been addressed specifically in the court order. Mr. Nishida: So if the Commission feels there has been too much time that has passed to comply with these conditions you have to go back to the court to impose any kind of timeline. Mr. Jung: There would be actually two options, we could work with the applicant because there is that option in the court order that we can mutually agree to any new amendments or additional conditions but also we could go back to court if requested. Planning Commission Minutes 2 February 9, 2010 Mr. Blake: Has the applicant contacted the department in an attempt to work out their failure, well has the applicant contacted the department in an effort to work out a mutually agreeable performance timeline for these court ordered conditions? Mr. Costa: I don't believe that has been done in a significant manner and as you will see in our report we are requesting that that be pursued by the applicant with the department to clear that up. Mr. Blake: So has it been done in an insignificant manner? Mr. Costa: We don't have a timeline. Mr. Blake: So the first time the department heard from K610a Creekside Estates was after the department had contacted or brought up the issue of the failure to, their failure, its failure to submit the status report. Mr. Costa: I believe the status report is the first real correspondence that addresses the individual conditions of approval. Mr. Blake: How much time (inaudible). Mr. Costa: I think just over a year. Mr. Blake: And during that year have any of the conditions been satisfied? Mr. Costa: Yes, I believe so. I believe there was a submittal of a building permit with respect to one of the proposed single family homes. Mr. Blake: Can these single family homes be constructed without having satisfied any other conditions? Mr. Jung: If I can interject. It is a little complicated in terms of the order because there is no structured timeline on when and what something has to be submitted. So to make a little easier for the Commission we can work with the applicant to see if we can come up with a mutually agreeable timeline if the applicant is willing to do that. Mr. Blake: How were they able to build anything without satisfying any of the conditions? Mr. Jung: They got the entitlements via the court order. Mr. Blake: The court order said to issue the permit (inaudible). Mr. Jung: We can look into that, look at the details of that. Mr. Blake: Because I think that has to be answered before any other construction takes place in my opinion. As I understand it from the report that has just been submitted the Planning Department is currently reviewing another single family residence, unit No. 6 of the 8 single family dwellings. And so if no issue was raised it would appear to me that all 8 residences could have been constructed whether any conditions were met at all. Mr. Jung: But again there are timing issues with some of the conditions. Mr. Blake: So is the review of another single family residence on unit 6 germane right now? Mr. Jung: If it has been submitted for review then the Planning Department can review it based on what was presented to the Planning Commission back in 07 as the guidelines and if they issue the permit, the building permit, then I think that would be up to the department to look at and work with use to see within the court order. Planning Commission Minutes 3 February 9, 2010 Mr. Blake: Are we in danger of running a foul with any deadlines if they submit, well actually they have submitted plans for a second dwelling. Are we in danger of running a foul of any deadlines if they haven't met the other conditions? Mr. Jung: We would have to look into that with the department. Mr. Blake: Do you have any timelines for looking into it? Mr. Jung: If the Commission decided for us to ensure compliance then we would look it and if we felt we need, if the department felt they needed to go back to court to address some of those or to meet with the applicant to address some of the conditions we would be more than willing to do that. Mr. Blake: When I read the matter of mutual agreement to amend the order it would appear to me that the County through the Planning Department may want to request imposition of concerns as conditions that were discussed at public hearings which disappeared when the final order came out. So that means to me that if the applicant wants to work together to mutually agree on something the County is going to have to give up more stuff. But that is just supposition and so I am concerned that the County give up any more than already is the case. Because the other things that were, some of the things that disappeared, to me, were not unreasonable at all such as on-street parking, no on-street parking, deliveries during the times that school children were not walking on Waikomo Road. Its nowhere in here, its like it never existed. And of course as I understand it nobody was at the hearing except the County Attorney's office, the previous County Attorney's office. No planners, no public, no nothing. So I am concerned that this mutuality of contention of both be explored quickly. If there is no mutuality, go back to court. Mr. Jung: Like I said we do have to work within the confines of the order but if we can't work something out with the applicant in terms of mutually agreeing to something then we will assess our options in looking at going back to court. Vice Chair: Anybody else wish to speak on this? Mr. Blake: I have one other question. On page 1, under item No. 2, it says "to summarize, most of the conditions have not been complied with and this general sense of delay may be associated with the following factors", possibly. When I reviewed the letter from the applicant I never got a sense of any admission that there had been noncompliance and everything went around in a circle and which I guess the lack of specificity is why we are here today, one of the reasons we are here today. And so if these conditions haven't been met or if certain conditions haven't been met then how important are they with regard to continuing to approve single family dwellings? Mr. Jung: Again Commissioner Blake, going back to the timing issues, there is a question of timing issue so it is always good to have specific and concise conditions and looking back, Monday morning quarterbacking is always a simple thing to look at when you have reviewed things after the fact. And if we were to do this again we would look specifically at working with the applicant if we were in the situation where there were negotiations for a settlement based out of a lawsuit we would look into imposing certain conditions that have time requirements to ensure compliance by said dates. But within the confines of this particular order the hands are sort of tied unless we go back to court of work something out with the applicant. Mr. Blake: Well the court ordered the Planning Department Commission to issue the permit based on certain conditions and that was based, as I understand, on a settlement between the County and the applicant. So as far as I am concerned the settlement is over, it is done, it was settled. Now it is a new issue, not with regard to new settlements but with regard to whether these conditions were met or not. And if not, why not and after that why is answered if it can be answered then what is the recourse left to the County to ensure that conditions that are, or directives that are properly issued by the department and the County are complied with. Not just we will get around to it when we get around to it, if we ever get around to it. And this is not a problem that I see strictly with Creekside it seems to be not an uncommon situation. Planning Commission Minutes 4 Febtuary 9, 2010 You have three legged stool here and the sitting portion of the stool is the permit and the legs consist of the County, the Planning Department and the applicant. The County is generally reactive, the department has traditionally attempted to facilitate development, to help out, and the developer is 24/7 working on their problems or their situation or their issues. And so often times I believe that the County and the people are at a disadvantage and so I think that we cannot ignore the fact that conditions haven't been met and construction has already started and property has already been sold as I understand it. So do they get a certificate of occupancy or not when the street lights right in front of the house aren't shielded, for instance. And I don't think you can answer those questions right now but I think eventually they have to be answered. Mr. Jung: I am not prepared to answer all those questions on the floor now but all I would ask is to give the County Attorney's office, because the court order is involved and the Planning Department, time to try and resolve some of the issues with the applicant before just running over to the court house. Mr. Blake: Believe me, I agree with you. I don't think you should just run over to the court house. As far as coming to some mutuality of agreement with the applicant there should be a timeline. We have 10 days to work this out. If not, why waste more time? Let's just file a request to reopen or whatever the proper title of that document would be and get it on and get it over with so we can move past this. But I would like to know that we are going to meet with them or offer to meet with them and if we don't have anything resolve by such and such a date, go to court. This status report was due in October, I think, 4 months already. If it's the squeaking wheel that gets the grease then I want to squeak. Mr. Nishida: Chair, can we get the applicant to come up? Chair: You don't want to go ahead and have the planner... Mr. Nishida: I have some questions. Chair: Bryan, do you want to go ahead and speak about your report? Staff First staff would like to apologize for this belated reply on writing the report. I thought that we would be deferring this to allow you time to digest the report because there is a lot to read. All I want to add right now is that just looking at my 2 page staff report you can see there are two parts, Jonathan's letter dated January 4, 2010, and Mr. Costa's letter dated yesterday, February 8th. And everything following that is attachments to Mr. Costa's letter. In his letter all of these other attachments are referred to and you will also find the court order that was issued back in November, 2008. Mr. Nishida: That being said, Chair, I have a process question. That sounds good to me, that we take time to look through this so are we limiting discussion to the deferral of this issue to another time to go over this or are we going to open it up today? Because we are pending a response from the Attorney ...I thought Hartwell's question regarding how that permit got issued, the issues of the timelines in regards to the conditions and all of that. I would rather talk about the whole thing rather than parts so if we are limiting discussions to a deferral than I am happy with that. Chair: I was hoping to open it up. Mr. Nishida: To the public? Chair: To the public. Mr. Nishida: Are we going to go over each one of these conditions and go over them again later on or how is this process going to work? Mr. June: Just so the Commissioners know to enforce the conditions we would have to go back to court so even if you scrutinize each one you would just be analyzing what the Planning Department is required to do anyway. So if you guys want to scrutinize each one you are more than welcome to do that but when a request goes to the department they still have to work within the confines of the order in terms of timing for each one of the conditions. Planning Commission Minutes 5 February 9, 2010 Mr. Nishida: Bryan's report actually was specific to certain conditions that we had to discuss with the applicant. That is why I was wondering if we were going to do them twice, do them now and do them again. It's coming back. You have to still give your report, right? Mr. June: I thought I gave my report. Mr. Nishida: You have to answer the questions that he asked about how come the permit was issued when there are other conditions that weren't ...I know that is what you said. Mr. June: I can answer that question right now. Generally in the course of going through the hearing process the Commissioners listen to testimony and the Planning Department will listen to that testimony as well and try and incorporate some conditions. But because for off- street parking and because of the nearby school... Mr. Nishida: No, I was talking about how come the building permit was issued for the single family house when all the conditions for the subdivision weren't met? So I think what you are saying is that the conditions for the project need to be met in order for the building permit for the house to be issued. And then you were going to come back, right, with the...you are not ready today to talk about that, you have to work with the department. Mr. June: We would work with the department and whether or not it comes back here, we would either work with the applicant to assess what is going to be done and what their time tables are because again, in the court order there are issues of what the timing is. Mr. Nishida: So what you are saying is that the building permit was issued correctly, that is not what you are saying, right, you have to go check something and come back, right? Mr. June: I can't off the top of my head if the building permit... Mr. Nishida: So I am saying you are coming back again. I think that is a critical thing. That is what you need to know and I would like to know that too. Chair: So before we get to that level could we have the public comment on what we discussed this morning and then we can come back and decide what we want to do in terms of deferral or whatever. Is that okay with the other Commissioners? That being the case, does anybody from the public wishing to speak on this matter? Mr. Teddy Blake: Aloha Commissioners, I am Ted Blake. I reside in Koloa. I would like to inform Mr. Jung of the conditions that the applicant had agreed to, right in this room, during a Planning hearing. Mutually agreed to, one was no on-street parking by construction workers because of the congestion present in Koloa Town today. Secondly was no overtime daily or Saturday because of the fact that you are right in the town core. Thirdly was that construction materials be delivered between 9 and 1:30, during the day for the safety of the children, fourth was no blasting in town and fifth was to appoint a community liaison. The legal team, the developer, all agreed to that at a Planning hearing when a recess was called. When they went to court and they were asked after court if they would still have those conditions imposed on them the response was we are not giving up anything for free. Well I think this is a perfect opportunity for them to give up something now for the conditions they agreed to that were neighborly, good neighbor conditions. They did appoint a community liaison. The community liaison I believe is their project manager. We were chastised at the last hearing for not going through the community liaison with our concerns but the person was sent by the developer. When they want something done or when they want to deal with the community they fire letters. We have letters in our possession that the attorney has filed and sent directly to neighbors without their community liaison going and pono/pono this thing. For example they worked one night from 11 at night to 7:30 in the morning making quite a bit of noise putting in some water stuff or whatever. No one was ever notified. No one's door was knocked on in the general vicinity by their community liaison. They are fluffing over this with this community liaison. The community liaison is Rusty Hutchinson. He doesn't even live in Koloa. Have the neighbors seen him? No anywhere but on the project, thank you. Planning Commission Minutes 6 February 9, 2010 Chair: Does anybody have any questions that you would like to ask of Teddy, thanks Teddy, anyone else? Mr. Jonathan Chun: (Inaudible) Mr. Blake forgets to mention that the agreement at that time was also that the Commission was going to approve the two-story, three-story buildings on the project which it didn't. So when the Commission decided to renege on its part of the deal the whole agreement fell apart. Mr. Blake: You said the Commission had agreed to a three-story, that all of the multiple dwellings on this parcel would be three-story? Mr. Chun: The understanding Commissioner Blake and members of this Commission was the department, if you had looked at the record, the department met with the applicant during the hearing. During these hearings or that meeting several conditions were imposed or discussed. The department agreed and the applicant agreed to these conditions, one of which as part of the package was an agreement that three-story multi-family buildings were going to be built. That agreement was brought to the Commission for approval. The Commission declined to accept the agreement. Once the Commission did that there was no agreement and so for somebody to mention that there was an agreement as conditions but also failed to mention the other conditions or agreements that the department wanted to have and which the community I gather would have supported I think just tells one side of the story. Mr. Blake: So you are saying the department was obligating the Commission to three stories? Mr. Chun: What I said was the department and the applicant met at the request of the Commission to determine agreed upon conditions and that was done. Those agreed upon conditions as a package was presented to the Commission, the Commission declined to accept the agreement. Mr. Blake: And as a result of that taking place we are not now butting heads on all conditions? Mr. Chun: No. Mr. Blake: Then what is the problem with having not complied with the conditions that have yet to be addressed? Mr. Chun: I don't quite understand what conditions you are mentioning. As I said there are errors in the report by the Planning Director. We will address those errors in our comments and that is the proper way because our report is due to the department and not to the Commission. So rather than discuss those in front of the Commission our obligation and I believe it would be only right for Mr. Costa and the department to really address those concerns as apposed to that. Other than that I guess I request that the Commission wait for our written response to Mr. Costa. Mr. Blake: How soon do you plan to submit it? Mr. Chun: As soon as I can but I only just got it yesterday afternoon. Mr. Blake: I realize that. That is why I am asking you so that we have an idea of when is this coming up again. Mr. Chun: I can't say for sure but I will try to work on it as fast as I can. Mr. Blake: You are still not answering my question. Mr. Chun: I can't answer it because I don't know. I am going to be away on another case off in California the last week in February. I have some other things scheduled next week. The applicant is on island very briefly for this week so I don't know what time I can meet with him. I can't say for sure. All I can say is I am willing to work with them. Commissioner Blake, Planning Commission Minutes 7 February 9, 2010 we did file it on January 4th and we didn't get any reply until February. We have always been open and will work with the department to get a response as soon as we can. You must realize that there are other things, time constraints that we are up against also. Mr. Blake: I understand that. It seems like time constraints are the big 800 pound gorilla in this order and that is why I am trying to determine and that is why I am asking you when do you think you will be able to do it given your schedule. Mr. Chun: I don't know. All I can say is I know I will be off island the last week in February entirely and I won't be returning to Hawai'i until the first week in March. Mr. Jung: Chair, if I could just interject. I think what the Commission is seeking to do it seems like is to look closely at all the conditions but normally the Commission imposes the conditions and gives the Planning Department the authority to ensure compliance with those conditions. So I think it may be problematic if we go over each condition, it may set precedent where we are going to have to keep reviewing permit after permit to make sure all the conditions are met. So I would suggest that if we can allow the department and the County Attorney's office to address specifically these conditions set out in the order then if there are problems, once we get Mr. Chun's response which will be addressed to the department because that is what the order requires, then we can hopefully resolve that. And when the upcoming yearly report comes out if there is anything outstanding then hopefully at that point we can address those issues when the report comes up, back to the Commission if necessary. Mr. Blake: And when is that? Mr. Jung: That would be in October. Mr. Blake: So if the department believes after meeting with the applicant that certain conditions haven't been met and the applicant continues to submit applications for single family dwellings, do those get issued or do we wait until the conditions are met? Mr. Jung: Again, we would have to look closely at the timing of each one of those issues and if we get into the area of interpreting of interpreting the terms of the order and we can't find a common ground with the applicant then if that requires us to go back to court then we can address that when we go back to court with the Judge because she is the one who authored the terms of the order. So if we can lay that out, get that set but remember the permit has been approved so we are looking at just... Mr. Blake: That is what concerns me, the permit has been approved, the conditions have not been met, and construction is ongoing or completed in one case, another one is up for review now. Does it ever matter? Mr. Jung: Here is how it would work, whether or not compliance with certain conditions are met, that is in the eye of the beholder and that is usually what happens when you have a rule 12 petition for revocation/modification of a permit. So you do the OSC hearing and the department prepares an Order to Show Cause and the Commission addresses certain issues of whether or not any of those conditions have been complied with. And at that point it goes to a full hearing. But because we have a court order saying it retains jurisdiction over these conditions then we can't do a petition to revoke, modify or amend because we have to go back to court. So even if we scrutinize all the conditions and there is a consensus amongst the Commission as to how do we deal with this, ultimately it will be the Planning Department's call to go back to court. But what we are asking for is give us the opportunity to meet with the applicant, given the hard economic times and whether that is a valid reason or not that is generally for you guys to address but because we have this order outlining what needs to be done without time specifications if we could see if we could work something out with the applicant in terms of giving us a possible time frame. Whether or not they will agree to a specific time frame that is here not there because they may not agree but if we can just get a general consensus of what is going on. If it takes to October to do a status report or maybe they will be mutually agreeable to doing an updated status report then we can address some of the concerns that were raised not only in Ian's letter to the Commission but based on what Mr. Chun will provide in his response to the department. Planning Commission Minutes 8 Febmary 9, 2010 Mr. Blake: I agree with everything you say. I just don't want it to drag on and on and on. Mr. Jung: And I understand that. Mr. Blake: And I see it happening. Mr. Jung: These things do take time and there are other things going on so we can't put a specific time on when we can get a response by especially if we are awaiting a response from an applicant who is going to be in trial in the mainland. Mr. Blake: That's fine. He is coming back the first of March, how about the end of March then? I don't know but the thing is and my other concern is will building construction continue before this is settled? Before these issues, the allegations of noncompliance and the allegations of mistakes are settled, is building going to continue? That is my biggest concern. Chair: I think the points have been well taken. I think there are a couple of things we can look at, one is a possible deferral and/or... Mr. Nishida: Move to defer this item to the March 23rd meeting pending a report from the County Attorney and the department. Mr. Kimura: Second. Chair: Any discussion? Mr. Blake: So what are we getting on March 23rd from the department, specifically what are we getting? Mr. Nishida: Hopefully a report from the County Attorney's office in consultation with the Planning Department regarding the issuance of that building permit, one of the items would be the issuance of that building permit for the single family house. My guess is they kind of know but he has to look at the stuff. Mr. Blake: So it's the issuance of the first permit and the continued issuance of subsequent permits. Mr. Nishida: As well as looking over the, we are deferring discussion of the status report that was sent to us so the department is going to be looking at those issues. Jonathan is going to be working with the department on what he feels are mistakes to the Director's report and then he is going to give us an updated report and we are going to have a chance to go through these things as well as the public. Mr. Costa: I believe as stated by Mr. Chun he would be providing some kind of a response to our report. Ms. Morikami: Mr. Chair, the concern I have really is what role does the Planning Commission have now and what actions can we take if we are not satisfied with conditions being met? Based on the Director's comments at the beginning of the meeting to you, if the jurisdiction rests with the court order we can be listening to all of this and bringing it back up on March 23rd. If we are not happy what role does the Planning Commission take then if we have no jurisdiction to begin with? That is the concern I have about prolonging this. If we have jurisdiction to do anything I am just trying to understand what options we have. Mr. Nishida: It seems to me that, Ian, when you said that the court allowed for a mutual discussion on further conditions that Jonathan's presence here today means that if we are discussing this thing they are sitting there and listening. So as long as they are coming it may or may not mean anything regarding additional discussion but I guess to me it seems like it is the only thing we really can do is to try and get there to be a voluntary ...and also I think Hartwell's question is was it right to issue that single family permit and I think we need to know that so regardless of what the court's decision was. Planning Commission Minutes 9 February 9, 2010 Ms. Morikami: I just wanted clarification on what the role of the Planning Commission, if we are here to listen and to give input that is great. Mr. Blake: And I am not interested is assessing blame or having somebody come here and (inaudible) or what. I just want to get it on and get going in a manner that is appropriate with regard to reference to the order, move on and get cracking on this. The court order said that the Commission or the department would within 30 days issue the, it says that "within 30 days of issuance of this order the Planning Commission and any necessary sub-committees shall issue the applicant a revised permit". So we issued the permit and again I will defer to the Attorneys but it seems to me like we do have jurisdiction but again they have to check that out. I just don't want this to fall through the cracks again and if we made a mistake the first time, fine, let's correct it. Staff: I have one comment. It somewhat bothers me as far as one of the conditions in the order and I believe we need Mr. Chun's help in perhaps one of the conditions we need to mutually agree upon relates to condition No. 2 and No. 19 of the order. And it deals with interpreting what does "prior to building permit application" mean and the reason why it is bothering me is because I perhaps made a mistake in approving the building permit for the single family residence. So building permit can mean the multi-family and the single family so I failed in the sense that there were conditions that weren't complied with and I issued the building permit for the single family residence. So my question for myself is I feel like my hands are still tied or am I able to hold hostage this other building permit that is before me in my office and that is why it bothers me that I don't know if I am doing it right now in reviewing this permit that I have in my office for the second single family residence. Mr. Costa: I would like to point out that be that as it may, also in conflict is condition 4 which says "the County shall review, process and/or as applicable approve all applications for building permits submitted by KCE within 180 days provided however that the applicant has submitted in accordance with the County's ordinances, rules and regulations". So any time we get a completed building permit application, and that condition doesn't differentiate between single family and multi-family, we have to process it within 180 days. Mr. Nishida: It sounds like we need a complete report. Chair: So all of this will be included in the report on the 23`d of March? Ms. Morikami: Mr. Chair, if we are going to review this on March 23`d I would also like to request a copy of all previous Planning Commission meetings pertaining to this and the minutes of the meetings and the conditions imposed then. Chair: But that is not part of this motion that is just a request. Ms. Morikami: Yes. Chair: So can we just dispense with the motion, finish it up and then go ahead and take what you just said, all those in favor of this deferral, those opposed, motion carried. On motion made by James Nishida and seconded by Jan Kimura, to defer to 3/23/10, motion carried unanimously by voice vote. Chair: Is that a reasonable request? I believe it is a reasonable request I am just asking the department if you could provide the Commission with those documents that were requested. What is a reasonable time frame to get that? Ms. Morikami: If we are going to look at this carefully and our role is to look at this carefully we need to know the history of this from day one and where we are now so I can get an understanding of how the conditions were imposed, what the court order was so I get an understanding if the Commission is going to get involved. Chair: Therefore it would be very good if the department could provide the Commission with this information as soon as possible prior to the Friday before the meeting. Planning Commission Minutes 10 February 9, 2010 Mr. Jung: Just so the Commissioners know, what transgressed in front of the Planning Commission was ultimately disregarded by the court so in the Planning Commission's approval February 12, 2007, the court order essentially supersedes that approval. So if you want to review everything the court order may and most likely will be different from what was originally approved back in early 2008. Because what happened was K61oa Creekside filed an agency appeal, they appealed to the circuit court and the settlement agreement came down and the conditions of this order were imposed. So effectively what happens is these conditions supersede what was originally imposed by the Planning Commission on the February 12, 2008 hearing. So everything that may have been said in those hearings is subject to change based on what the court order says. That is the complicatedness of this particular set, especially when we go back scrutinize each of the conditions because if we are trying to impose something that Koloa Creekside feels may be an expansion of the particular provision or condition of the court order then they may ask us to go back to court and say hey, they are stepping over their line by imposing this. That is the potential problem in scrutinizing all the conditions in here. But if that is what the Commission wants then that's what the Commission wants to do. Ms. Morikami: So on March 23rd we are going to further discuss this issue but as far as the Planning Commission's role is concerned we are going to highly recommend something be done between the department and the Attorney's office? Mr. June: Right and you have to understand that the Attorney's office has to represent not just the department but also the County of Kaua'i in general. So in looking at what the County's potential liabilities are if we try and seek court action then the County Attorney's office will have to assess that. Ms. Morikami: Thank you. Mr. Nishida: One of the things you are going to see in the minutes if you decide to get them is that Jonathan, at the very end of that process he rescinded all the previous ...he took back everything and went back to zero. He said that all the agreements that were made, he un-made all those agreements at the end because when we didn't approve the Director's report on the three-story which was a negotiated agreement between the...because I think they could have gone four-story and they agreed to the three-story right off and they agreed because some of the buildings being two-story. So by the time it came to us the department tried to reduce the height of the project and that is what they brought to us and when it came to us we voted to keep it two- story. And when that happened Jonathan said that all the previous agreements was out because I guess he knew he was going through an agency appeal so he wanted to go with a blank slate. So you will see that in those minutes. Commission recessed for at 11:15 a.m. Meeting was called back to order at 11:32 a.m. Zoning Amendment ZA-2010-6 to amend the zoning from Open District (O) to Residential District (R74 for a property located in Waimea Valley, Kaua'i, approx. 350 ft. east of the Maile Road and Waimea Valley Road intersection, further identified as Tax Map Key 1-6- 5:18 and containing an area of approx. 45,280 sq. ft. = C. Ahko. Inc. [Hearing closed 1/26/101. a. Staff Report pertaining to this matter. b. Agency Comment (2/10/10) from County of Kaua'i, Department of Parks and Recreation. Staff Bryan Mamaclay: Thank you Chairperson Raco. Before proceeding with the recommendation staff earlier handed out this aerial photo map to the Commission and I just wanted to disclose that there is a golf short game facility within this park site. A short game facility implies that this is where golf is practiced, in this case by the Waimea High School KIF Gold Team and this is to practice putting as well as hitting out of the sand bunker. As you can see one of the lower right arrows is pointing to the putting green and the sand bunker that is to the right. The other arrow is showing, it is a golf ball hitting case similar to a batting cage. This is where you hit golf balls into the cage into a net. So again, I just wanted to disclose that these are one of the improvements within the park site as it relates to another sheet that I gave which is an amendment to condition La. Planning Commission Minutes 11 February 9, 2010 Mr. Texeira: What is the "x"? Staff: You can disregard that "x". This "x" apparently was in the photo when it was shown to me. As you can see the Ching park is within that area of that black line and to the right of that under Menehune Road that is the subject property of the zoning amendment. With that, staff would like to proceed with the reading of the conclusion if there are no objections as the applicant had the opportunity had the opportunity to read staff s recommendation (on file). Mr. Texeira: Bryan, can you go back to the layout that you have provided to us, Ching Park, there is no buffer? The adjacent properties just run into each other with the park? Staff: Yes. There are natural landscape buffers around the park. Mr. Texeira: Does the public from time to time use that green, besides hitting out of the sand trap, do they also use it for the short game, hitting onto the green? Staff: The short game would mean chipping, putting. Mr. Texeira: Is there any chipping by the community? I am just curious because if they build in back of that green some of those... Staff: I have been told through some informed sources that there are people hitting long balls onto the green outside of the cage. Mr. Texeira: I was just curious but there is no mention of the...well like you said, liability lies with the landowner. If the public hits over the green into somebody else's property or somebody else's house it might come in the back. Staff: Well like any park you have baseball and other sports that could do some damage or create some nuisances. This would be an enforcement issue I believe with the Parks Division to put up proper signs to prohibit those kinds of activities. Mr. Texeira: And Parks does not indicate any plans for a fence at some point? Staff: As far as stopping golf balls? Mr. Texeira: Golf balls and just for, a lot of parks have fences surrounding them for... Staff That would be something for the Parks Division to assess and to make that determination. Hopefully that would not be a need that is generated. Mr. Blake: Bryan, where does the public park? Staff: They would park I believe in this case along Menehune Road. As you can see there is a lot of frontage along the road. Mr. Blake: And that parcel between the hitting cages and the Menehune Road and the stream is another private parcel? Staff. That is the Ahko property. Mr. Blake: Not up here? Oh you are right. I was looking at the wrong one. Staff: The Ahko property fronts the place where I put Menehune Road. Chair: Any more questions, seeing none I will call the applicant for a short presentation. Mr. Walton Hong: Thank you Mr. Chairman, for the record Walton Hong representing the applicant, good morning. I will make this very short, not even a presentation. We have read the staff report. We accept the staff report and ask for your favorable consideration in adopting the staff report. Planning Commission Minutes 12 February 9, 2010 Chair: Very good. Is there anybody that has questions for Mr. Hong? Mr. Texeira: Did you find any golf balls on the Ahko property? Mr. Hone: Not that I know of. There was a question of which way was the golf batting cages aimed at, was it towards the Ahko property or away from the Ahko property. I checked with our real estate agent who was familiar with this property and he tells me the batting cages are hitting away from the Ahko property. Staff: That is correct. It is hitting towards the park. Chair: Walton, you have received and were be able to read the revised condition? Mr. Hone: Yes, we are in agreement with that. Chair: Any more questions, seeing none is there anybody in the public who would like to speak on this agenda item, seeing none I will entertain a motion. But prior to entertaining a motion I would like to receive the agency comments and staff report dated 2/10 from County of Kaua'i, Department of Parks and Recreation. Mr. Kimura: So moved. Mr. Blake: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by Jan Kimura and seconded by Hartwell Blake, to receive staff report and agency comment, motion carried unanimously by voice vote. Ms. Morikami: Mr. Chair, move to approve the recommendations of the staff report pursuant to the applicant's request. Mr. Kimura: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Jan Kimura, to approve staff recommendation, motion carried unanimously by voice vote. Commission recessed for lunch at 11:44 a.m. Meeting was called back to order at 1:35 p.m. CONTINUED PUBLIC HEARING There were no continued public hearings. NEW PUBLIC HEARING Amendment to 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, Kaua'i, situated approx. 1,400 ft. north of the southern intersection of Koolau Road and Kiihi`o Highway, adjacent to the Moloa'a water tank on Pun Arlan, further identified as Tax Map Key 4-9-009:009, and affecting; a 1,350 sq. ft. portion of a 311.598 acre parcel = Crown Castle International. 1Director's Report received 1/26/101. Hearing was closed. Use Permit U-2010-7 and Class IV Zoning Permit Z-IV-2010-8 to allow the conversion of an existing building previously used for restaurant and food service into a medical care facility Planning Commission Minutes 13 February 9, 2010 on property situated in Kilauea, along the east side of Oka Street immediately at its intersection with the dead-end section of Aalona Street, further identified as Tax Map Key 5-2-14:49, and containing a total area of 20,389 sq. ft. = Kauai Community Health Alliance. [Director's Report received 1/26/10.1 Hearing was closed. For Acceptance into Record - Director's Reports for Projects Scheduled for Public Hearing for 2/23/10 Public Hearing. Use Permit U-2010-8, Variance Permit V-2010-2 and Class IV Zoning Permit Z-IV- 2010-9 to permit the construction and operation of a telecommunication facility that includes a 150 ft. high stealth monopine (a monopole designed to look like a pine tree) and associated equipment at a site located on a cane haul road approx. 350 ft. north of the cane haul road's intersection with Kaumuali`i Highway, said intersection is located approx. 0.5 miles west of Kaumuali`i Highway and Maluhia Road intersection, further identified as Tax Map Key 2-7- 001:005, and affecting a 1,000 sq. ft. portion of a 244.974 acre parcel = Verizon Wireless. On motion made by Paula Morikami and seconded by Jan Kimura, to receive into the record, motion carried unanimously by voice vote. Use Permit U-2010-9, Variance Permit V-2010-3 and Class IV Zoning Permit Z-IV- 2010-10 to permit the construction and operation of a concrete batch plant located on a private access road off of Kaumuali`i Highway, approx. 1.7 miles west of the Kaumuali`i Highway K]Ipn Road intersection, and approx. 500 ft. north of that area generally7 referred to as Halfway Bridge, further identified as Tax Map Key 3-4-001:003 and affecting a one acre area of a 2893.705 acre parcel = Jas W. Glover, Ltd (POSTPONED TO 319110.) On motion made by Paula Morikami and seconded by Jan Kimura, to receive into the record, motion carried unanimously by voice vote. Use Permit U-2010-10 and Class IV Zoning Permit Z-IV-2010-11 to allow the establishment of a sanctuary for church services, children's vacation bible camp, child care and pre-school activity, associated church related activities and services (i.e. funerals weddings, community social events) and the establishment of professional office uses in an existing warehouse space on property situated in Kapa`a Homesteads alone the south side of Kawaihau Road approx. 250 ft west of its intersection with Kuahale Street further identified as Tax Map Key 4-6-37:67 and containing a total area of 3.161 acres = New Hope Christian Fellowship Kauai. On motion made by Paula Morikami and seconded by Jan Kimura, to receive into the record, motion carried unanimously by voice vote. For Acceptance and Finalization - Director's Report for Shoreline Determination. There were no Director's Reports for shoreline determination. ADJOURNMENT Commission adjourned the meeting at 2:25 p.m. Respectfully Submitted. Lani L. Agoot Commission Support Clerk Planning Commission Minutes 14 February 9, 2010