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HomeMy WebLinkAboutpc08-24-10min KAUAI PLANNING COMMISSION REGULAR MEETING August 24, 2010 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, Caven Raco, at 9:11 a.m. at the Lihu`e Civic Center, Mo`ikeha Building, in meeting roo2A-2B. The following Commissioners were present: Mr. Herman Texeira Ms. Paula Morikami Mr. Caven Raco Mr. Jan Kimura Mr. Hartwell Blake Mr. James Nishida Ms. Camilla Matsumoto Discussion of the meeting, in effect, ensued: APROVAL OF THE AGENDA Chair: Can I get an approval of the agenda or if there are any amendments? Ms. Morikami: Mr. Chair, on item No. A.2, can we move it to the end of the agenda? Chair: Yes we can. Ms. Matsumoto: Second. Chair: So we will move that to the end of the agenda for our executive session, all those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve agenda as amended, motion carried unanimously by voice vote. Chair: If I could get a motion to receive into record. Ms. Morikami: Mr. Chair, move to receive all the communications for the record. 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 receive all communications into the record, motion carried unanimously by voice vote. Chair: Minutes for executive session of July 13'h, if there are no amendments. Mr. Blake: I move to move that item to the end of the agenda also. Ms. Morikami: Second. Chair: We will discuss the minutes at the end of the agenda. GENERAL BUSINESS MATTERS Request (8/18/10) to amend Special Management Area Use Permit SMA(U)-2010-5 to revise work plan relating to the Kalalau Rockfall Mitigation Project Tax Map Key 5-9-001:001 SEP 14 2010 & 002, Na Pali, Kauai = State of Hawai `i, Department of Land and Natural Resources, State Parks Division. Staff Report pertaining to this matter. Staff Planner Lisa Ellen Smith read staff report and department recommendation (on file). Chair: Commissioners are there any questions regarding the staff report for the Planner? Mr. Blake: I was looking at the submissions by the applicant and there were technical things I didn't know, what is an HDPE pipe? Staff: That is a type of PVC pipe but I think it is best asked of the applicant as they are the engineers. Unidentified Speaker: I believe that stands for High Density Polyethylene, it is PVC basically. It is a form of plastic. Mr. Blake: And if you are putting geo-textual fiber down along the stream bed what is the straw waddle supposed to do, what function do they perform? Unidentified Speaker: The straw waddles are, as part of our B and P plan to minimize impacts of storm water runoff should it rain out there. Straw waddles are intended to slow the flow of water and by slowing it down it allows if there is sediment in the water, it slows it down so it allows more time for that sediment to fall out of the water before it continues on. Chair: Can you just state your name for the record please? Mr. Tobias Kohler: My name is Tobias Kohler and I am authorized by the State of Hawaii, Division of State Parks to act on their behalf for the SMA application process. Mr. Blake: And these straw waddles are they like bales of hay? Mr. Kohler: If you can imagine a long tube sock about... they vary depending on what the contractor buys in diameter, essentially it is a long sock type piece of equipment or device and is mostly straw. Mr. Blake: Thank you. Chair: Any more questions for the planner or the applicant? If not let me see if there is anybody in the public that would like to testify on this agenda item, seeing none what would be... Mr. Blake: What exactly are you asking to change? Mr. Kohler: When I came before you guys a month and a half ago now I believe, the words I used were that all the work would be done by hand except for the cracking of the rocks and the work by hand to place the rocks into some sort of bag or whatever that would then be lifted by helicopter to the receiving area. The contractor came to us and said from a practical standpoint to meet the schedule by using a bobcat we are much more likely to finish the job in with the schedule constraints. Basically one of the biggest issues in this project is actually the schedule. We want to be out of there by November 7t . And then the second thing he said was my guys are working out in a remote location, the less I can have them lifting the less chance of somebody getting hurt on the job. There is a specialized team basically, you can't just swap out workers basically it is a specialized team. Mr. Blake: Thank you. Mr. Texeira: The bobcat, how are you going to get it on site? Planning Commission Minutes August 24, 2010 2 Mr. Kohler: The mobilization plan calls for the use of a large (inaudible) type helicopter at the beginning of the project; one day maybe, it is very expensive so I believe they are only going to use it one day to lift two of three heavy items down to the project area. And then it would subsequently be removed by the same means. Mr. Kimura: You want to finish this project by November you said? Mr. Kohler: November 7t'. Mr. Kimura: Why aren't you working on weekends? W. Kohler: That is a fair question that we also asked ourselves. When we went out and asked for proposals from contractors we did tell them how long they were to work, we told them there was going to be an issue if you are going to have a lot of workers running around and all of them came back with low numbers or personnel. Both contractors said they could do it with the means that they had, that they were proposing and this contractor offered to come in with a bobcat and the other contractor wanted to use something bigger actually. And I believe that working on the weekends is at the option of the contractor and I know that we are going to be coming before you guys in early October to give a status update on the project and at that time we will be well aware of the schedule and whether changes need to be made on the actual work days or work hours. Chair: Can you describe the location of the bobcat where it will be placed on the site and its movement, where it needs to go. Mr. Kohler: I am going to step up to the board and just so you guys know I believe Lisa Ellen, the planner, passed out a color packet just prior to the meeting that has the same image on the left hand up there that I am going to discuss. I am joined today by Alvin Satogato with the Engineering Division with State DLNR and Mr. Arlan Niku of ECOM as well; both of them are project engineers. Al asked the contractor to come up with a work plan because as you guys are aware and we are aware we wanted to make sure we had the right team together for the job. And so the work plan they came back with included the bobcat and we said well if you are going to use the bobcat you need to tell us exactly where you are going to use it. They said they wanted to use the bobcat to move some of the debris away from the very base of the cliff, out. So within this red boundary labeled "Straw Waddle" and the cliff and that was going to bring out the debris and help place it into, the contractor has now told me they have an aluminum hopper that the helicopter will then be able to lift and then it has a little trap door on the bottom where they can then discharge the material that they have loaded in the hopper. For some of the material and I am going to have to ask the contractor exactly what they meant by some of the material they would like to transit across the beach over to the receiving area. This is all approximate, I am actually going out to meet the contractor on site and clearly demarcate exactly where they are going to be allowed to do their work. And so I asked them to establish first of all a corridor they would travel and assurances that that corridor would be cleaned up just as much as they are going to be cleaning up any place else. And then I also asked them to be aware of the transition from beach sand to soil, that you can't just drive a bobcat from sand up on the soil and not expect that lip to be damaged. And that is where they came back with the B and P you will see on the last page of your packet where they proposed to do basically a makeshift bridge. When you were a kid you played with wooden blocks, essentially that is how they were going to construct a bridge transition from sand to soil without damaging the lip between the sand and soil. Basically because erosion is a big deal and I just said it is unacceptable and they came back with okay, we won't cause it. I made them aware of the plants and they came back with a restricted area. Again, I am going out and I will flag out these areas and walk the site with the two project superintendants so they know where they can't go. And basically that is where they plan on using the bobcat. Mr. Texeira: Will somebody be on site from you folks? Mr. Kohler: There will be a full time engineer from ECOM on site that was part of the planning process. There will be a State Parks person coming out at least once a week, actually much more than that I believe to also be checking on the progress of this. A lot of this is front Planning Commission Minutes August 24, 2010 3 loaded in the sense that there are going to be a lot of us out there making sure it is set up properly and once there is a routine in place the State crew will back off a little bit but we will still be out there. Mr. Texeira: In the eventuality of the sand being depleted because of the winter conditions do you have a secondary plan in case that shoreline erodes faster than you would like it to or propose to? Mr. Kohler: I asked the contractor what would happen during a high wave event and the words I used were like a non-tsunami so just a crazy north swell and how easy would it be...I asked him to think about how easy it is to remove their B and Ps. The rocks can take the water but the B and Ps have to be off the beach because they can't go into the ocean. We have done site visits in October previously and the beach was still 2501300 feet wide at that point. Right now out there it is 400 feet wide so it would take and I am not an ocean engineer or coastal geologist either but my guess is it would take two or three weeks of huge waves to initiate and bring about that process but I am not going to stake my reputation on that either. And it is a fair question and that is the best answer I have right now. Chair: Any more questions, thanks Toby. What would be the pleasure of the Commission? Ms. Morikami: Mr. Chair, move that we approve the recommendations of the Planning Department pursuant to the applicant's request. 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 staff report, motion carried unanimously by voice vote. Executive Session: Communication from Malcolm Fernandez Personnel Director, relating to certificates of satisfactory performance pursuant to procedures established by the Personnel Director on the annual evaluations for nonelected appointees due to the Personnel Director no later than October 25, 2010. [Deferred 8/10/10.1 Agenda item tabled to the end of the agenda. COMMUNICATION There were no communications. SUBDIVISION Mr. Nishida: Subdivision Committee Report, Tuesday, August 2, 2010. Tentative Subdivision extension request, S-2005-39, Visionary LLC, TMK 3-6-02: portion of lot 01, approve 3-0, S-2005-40, Visionary LLC, TMK 3-7-01:01, 3-7-02:12, approved as amended. The amendment was an extension until 2012 for the subdivision extension request, S-2009-24, Jan Inc., TMK 2-8-08:20, 22-29, 34, 35, approve 3-0, tentative subdivision extension request S-88- 35, Agnes Chattin, approved 3-0, TMK 5-8-11:58. Chair: Commission, is there any discussion? Mr. Nishida: Move to approve subdivision report. Ms. Matsumoto: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by James Nishida and seconded by Camilla Matsumoto, to approve Subdivision Committee Report, motion carried unanimously by voice vote. Planning Commission Minutes August 24, 2010 4 UNFINISHED BUSINESS Memorandum (7/7110) from Deputy Planning Director Imaikalani Aiu to Caven Raco, Chair, Kauai Planning Commission, recommending the Commission consent to TVNC-1078, Tax Map Key 5-8-009:013, James R. Christiansen. 1Staff Report received and deferred 7/13/10, deferred 8/10/10.1 Memorandum (8/18/10) from Planning Director Ian Costa providing an update on the status of TVNC-1078, James Christiansen, Tax Map Key 5-8-009:013, relative to the adoption of Ordinance No. 904. Deputy Director Imai Aiu read staff report (on file). Mr. Ain: In addition we did pass out an email from the applicant's recently retained counsel, Lorna Nishimitsu, again expressing their desire to be considered under Ordinance 904. Mr. Dahilig: Commissioners, in light of the request by email, the request by email does not specifically set forth a withdrawal of the application and at the same time this position on this old application may be problematic. So I would suggest that the Commission consider entertaining a tabling of this application and wait for receipt of the new application to come in. Chair: So prior to me entertaining a motion, if there are no question for the planner let me ask if there is anybody in the public that would like to testify on this agenda item. Seeing none I will bring the meeting back to order, is there any discussion before a motion? Ms. Morikami: Mr. Chair, on item D.1 and D. La, move to table the matter. Mr. Nishida: Second. Chair: Any discussion? Mr. Blake: I have a question. As I understand it this TVR is part of the group of TVRs that were operating before 2008, which is the cutoff date, right? Mr. Costa: That is correct. Mr. Blake: And since 2008 he has not been renting the property as a transient rental for quite some time because it was neither officially approved nor denied. So his has been in limbo for two years, is that correct, while he is getting his act together? Mr. Costa: That is correct and that was I guess further indicated by the email that was handed out from Lorna Nishimitsu. Mr. Blake: This question doesn't necessarily apply to this specific situation but how long can it be in limbo, can an application be in limbo before the ducks are all in a row and it is ready to be approved? W. Dahilig: Commissioner Blake I believe that your question is starting to edge upon maybe a matter that requires legal consultation with our office so I would advise that a legal interpretation regarding what your question is posing would need to be answered in executive session. Mr. Blake: When? Mr. Dahilig: If you would like to call an executive session we can have one. Mr. Blake: Are you ready to answer it now or do you need to go to... Planning Commission Minutes August 24, 2010 5 Mr. Dahilig: I can answer that now but at the same time we would have to enter into executive session now if you would like for me to answer that question but I would prefer that that question not be answered on the floor. Mr. Blake: Well instead of holding up the meeting and going into executive session is it appropriate for you to check into this and give a reading, an oral reading later? Mr. Dahilig: Publically? Mr. Blake: No. Mr. Dahilig: Certainly Commissioner I can discuss this matter with you if you would like me to answer that question for you privately. Mr. Blake: Privately would be fine, that is my question and I wouldn't want to go into executive session now or later on that question unless anybody else has the same question. Mr. Nishida: The new law got signed into ordinance, well I don't know what the terminology is but it is a law now. If there were pending applications they are subject to the new law and not the (inaudible). Mr. Dahili : The position is that because typically if you apply before the law changes it becomes a matter of your choice whether to avail yourself to the new law or be grandfathered in under the old law. And so in this particular case you are seeing that Mr. Kaluna via Mr. Christiansen is choosing to avail himself to ordinance 904 rather than under 864 and 876. Mr. Nishida: And this is the only pending application? Mr. Dahili : There are a number of pending applications still. Mr. Nishida: So they have a choice, what you are saying is they have a choice to apply under the old law or apply under the new law. Mr. DahiliQ: That is correct Commissioner. Chair: And under the new can you can just explain to the Commission that the department has the authority to approve or... Mr. Dahilig: Based on the new law the authority was given back to the Planning Department for transient vacation rentals that are outside the VDA that are not on State Land Use Ag. lands. And so any of those applications, if they meet the ministerial requirements can obtain an approval from the Planning Director versus the current process right now where the Commission has to approve it. Mr. Blake: And this requires reapplication every year? W. Dahilig: Renewal is still required under ordinance 904. Mr. Blake: So if you don't renew you are out? Mr. Dahilig: It is the Planning Department's position that if you don't have a certificate then you have to cease. Mr. Blake: And that is forever? Mr. Dahili : You start to court on a legal question again Commissioner regarding whether you cannot resume a use once the certificate has lapsed. I believe that is a question that again we can answer to you on the side because the ordinance does not specifically set forth what happens in those instances. Planning Commission Minutes August 24, 2010 6 Mr. Blake: Wasn't one of the purposes of the ordinance to reduce the number of TVRs in the non-VDA areas? You can't let these things come back, well I don't know whether you can or not. Mr. Dahilig: Again because this is going to require some explanation with regard to what is Hawaii case law and what is the County zoning authority under Hawaii Revised Statute 46-4, it would be difficult for me to explain what may be constitutionally protected rights concerning grandfathering these types of use and I would have to explain that in executive session. Mr. Blake: Grandfathering a use that has to be renewed every year that you have not renewed and still be grandfathered? Mr. Dahilig: Again Commissioner I know I am talking slightly cryptic in terms of my explanation to your question but there is a cache of Federal constitutional rights as well as State authority under 46-4 that has to come into play in determining whether someone's grandfather status can be lost as a result of not renewing. So again I would have to explain that to you in executive session if you would like me to elaborate further. Mr. Blake: Would it be possible to ask for instead of an executive session now that you office issue a report to us, a legal opinion to the Commission? Mr. Dahilig: Certainly we can repackage materials that we have transmitted to the Commission in prior executive sessions with respect to authority given to the Counties under HRS 46-4 and constitutional property rights that may be issues. We can definitely provide that as a confidential (inaudible) communication to you and the full Commission. Mr. Blake: And just for clarity it would cover whether you can or how long you can be in limbo and still come back to life and the second issue was once you haven't renewed does that end your grandfather status. Those two issues are the ones that I would like to see. Mr. Dahilig: We can definitely answer those questions for you. Mr. Blake: Thank you. Mr. Nishida: I kind of would like to hear that discussion in executive session so how does that work, do we schedule for another meeting? Chair: No, we can go into executive session. Mr. Nishida: But you are not ready. Mr. Dahilig: I can answer the questions now if you would like me to but we would have to go into executive session. Ms. Morikami: Based on this ordinance 904 what will be coming to the Planning Commission? Mr. Dahilig: Under ordinance 904, this particular application from Mr. Christiansen, because he is not on State Land Use Agricultural lands would not be coming to the Planning Commission. Ms. Morikami: So what type of TVRs will be coming to the Planning Commission? Mr. Dahilig: Maybe I can give my voice a rest and the Deputy Director can maybe answer that. Ms. Morikami: I would just like a clarification on Ag. lands. Mr. Costa: Applications for TVRs on State Land Use Agricultural lands would need a Special Permit that only the Planning Commission can grant. Planning Commission Minutes August 24,2010 7 Ms. Morikami: That is the only ones we will be seeing in the future? Mr. Costa: Yes. Mr. Ain: You will be entertaining the Special Permit for the TVR operation, yes. Chair: On Ag. only. Mr. Ain: On the State lands. Chair: Anything that is not on Ag. or outside of the VDA the department will be... Mr. Ain: The department will process administratively, yes. Mr. Nishida: Just to clarify, the ones that are coming in on the Ag. land it was clearly not a grandfathered in situation? They are coming in under the Special Permit provisions of Act 205 and the County or administrative rules ...the County did not determine that these were grandfather-able. Like when they first came to us, the first Ag. came in these were grandfather- able uses and this particular one, the law didn't say that these could be grandfathered in. Mr. Costa: It was only those that were in existence as of the enactment of the ordinance in 2008. Mr. Nishida: But we are not issuing nonconforming use certificates then. Mr. Ain: No you are not issuing nonconforming use certificates. The nonconforming use certificates will be issued by the department. You will be responsible for the Special Permit for the TVR operation. Mr. Nishida: And that is kind of an important distinction because these others were determined by the law that they had a right to this use because previous to... Mr. Ain: Exactly, that is a very good point to bring up Commissioner Nishida that what the Commission will be considering under the new law is the Special Permit for that operation and not the nonconforming use certificate. So questions of whether the operation was in existence prior will have already been answered by the time it comes up to you and not really the question before this Commission. Mr. Costa: So actually to clarify they will be getting a nonconforming use certificate if the Special Permit is approved. Mr. Dahili~: That is correct. And in the interim they will be receiving a provisional nonconforming use certificate while the Special Permit is being entertained by the Planning Commission. If you deny the Special Permit under 205 then the provisional certificate automatically lapses and they can no long continue that use because it was determined by the Commission that a Special Permit was not appropriate so that is where the triggering mechanism comes in of whether a certificate is issued permanently. Mr. Nishida: And a nonconforming use certificate on the non-Ag. lands, part of the determination, the reason they are getting the nonconforming use certificate was because these uses weren't clarified prior to the 2008 law. Mr. Costa: Both on Ag. and non-Ag., the nonconforming use certificate is the vehicle to say this use is no longer allowed. Mr. Nishida: And then under the Special Permit on it is a nonconforming use if approved, under the Special Permit process it is a nonconforming use. That is why the nonconforming use certificate is done. Mr. DahiliQ: Prior to the setting of public hearings of these Special Permits it is our office's intent to walk through an executive session, again the mechanics of the law and to Planning Commission Minutes August 24, 2010 8 outline for the Commissioners what their authority is under the State statute as well as ordinance 904 and so we will prepare a briefing before public hearings are set. Ms. Morikami: Will you be describing criteria so when a Special Permit request comes in? Mr. Dahilig: What Chapter 205 as well as Hawaii Administrative Rules set forth regarding standards for evaluating whether a Special Permit is appropriate. Mr. Kimura: They are applying for a new permit, right? Chair: Mr. Christiansen, yes. Mr. Kimura: Is that legal being that the deadline was March, 2008? Mr. Dahilig: What has to be proven is that their TVR use was in operation prior to March 7, 2008. Mr. Kimura: But the deadline for the application was 2008, March, and we said they are applying for a new permit. I am just asking is that legal? Mr. Dahilig: The way the law is written right now they are entitled under the law to legally apply for a nonconforming use certificate. Mr. Kimura: So whoever gets denied can reapply for a new permit? Mr. Dahili Based on the reading of the law they can come in and reapply. Mr. Kimura: You are kidding me. Mr. Dahilig: Because some of the criteria has changed in ordinance 904. Mr. Kimura: So why have a deadline if they can reapply? Mr. Dahilig: The pertinent deadline that is being entertained at this particular point involves March 7, 2008 and that is the grandfathering deadline. When you are looking at the application deadline you are looking at March 30, I'm sorry October 30th I believe was the deadline for applications. But because ordinance 904 has stricken that deadline out the new deadline is within 60 days of the signing of the ordinance to come in and reapply or apply and if they do not they have to pay 1,500 dollars as an administrative late fee and they can do so up to a year. And it is the position of the County that if you do not apply within one year of the signing of the ordinance by the Mayor then we are deeming your use abandoned and therefore you are going to have to prove why your use was not voluntarily abandoned by the operator. Mr. Kimura: Isn't the purpose of this trying to stop all the TVRs? Mr. Dahilig: Again Commissioner I am not a policy maker so I cannot answer what specifically would be the policy call behind this. What I can answer is that mechanically the way this operates is that you have to prove that you were a grandfathered prior to March 7, 2008 and you have to meet certain tax requirements to show... Mr. Kimura: I understand that. What I am saying is that it is like we are giving everyone that is coming up with an application for the TVR for their permit, we are giving them chance after chance after chance trying to get their permit. Mr. Dahilig: Again Commissioner... Mr. Kimura: It is like we are encouraging them to come out. Mr. Dahilig: Well Commissioner, again, I am not one to speak on a policy call on this particularly because, and I would again suggest that we try to maintain on topic which is Planning Commission Minutes August 24, 2010 9 regarding specifically TVNC-1078. I don't want to not acknowledge your frustration with maybe what the law provides and does not provide but the law is the law and all I can do is interpret it at this point. Mr. Kimura: Okay. Mr. Blake: For clarification, that one year grace period was a policy call by the Council or the Mayor? Mr. Dahilig: Because it was law it was a policy call by essentially the Council because of the way the law is written and the Mayor concurred, he signed off on the law. It became law by his signature, not by failed to sign. I would also add that the one year provision is consistent with the CZO, the CZO treats an abandonment of use for one year as a voluntary abandonment and so it is a provision that is consistent that is applied other types of uses within the full CZO. Mr. Blake: Other types of grandfathered uses. Mr. Dahilig: Yes. Chair: With that I know there is some interest to go into executive session, right Jimmy? Mr. Nishida: Yes. Chair: Andy maybe we could answer your question Hartwell if the Commission deems that we go into executive session. If we do want to go into executive session someone would need to read the protocol language to go into executive session. Mr. Dahilig: Pursuant to HRS 92-5 there has been a request to consult with legal counsel regarding item D.I.a of the agenda and this executive session is to discuss the rights, privileges, duties, obligations and liabilities of the Planning Commission and the County and the Planning Department as it pertains to this agenda item. Mr. Nishida: Move to go into executive session. Ms. Morikami: Second. Mr. Blake: We already have a motion on the floor to table this matter, right? Chair: There is a motion and we are in discussion right now. Mr. Blake: And we haven't acted on that motion yet? Chair: No we have not. Mr. Blake: Then I would again since this just came up suggest that we move the executive session on this particular issue if we go into executive session to the end of the agenda so that we can dispense of the agenda business. Chair: So you would like to go into executive session twice? We would have to go into executive session on two different items or could we go into... Mr. Dahilig: You could leave the motion open. You can leave both motions open and move onto the next agenda item. Chair: So rather than disrupting the flow I would highly suggest that maybe we just... Mr. Kimura: Can we just go through this now? Not the executive session but... Mr. Dahilig: I would suggest because the executive session is in regards to the decision to table item D.I.a you are going to have to leave that tabling motion open if you want to go into executive session. Planning Commission Minutes August 24, 2010 10 Chair: So I move that we go to the next agenda item. NEW PUBLIC HEARING Special Management Area Use Permit (SMA)-2011-2 to permit the installation of a perimeter fence chain link fence and gate in the Conservation District n the Hoea Ahupuaa, located in Kekaha off Lighthouse Road and approx. 2,700 ft. from Kaumuali`i Hi way, further identified as Tax Map Key 1-2-002:021, and containing approx. 68.262 acres = Hawaii Army National Guard. Staff Report pertaining to is matter. Staff Planner Lisa Ellen Smith read staff report and department recommendation (on file). Chair: Are there any questions for the planner? If not I can call the applicant's representative if he has anything that he wants to add. Mr. Darrel Chun: I don't have anything else to add. My name is Darrel Chun, Hawai `i Army National Guard. Mr. Texeira: All I want is a more descriptive, more detailed descriptive discussion about the exact location of that property. Was that the old fire range from the Air National Guard at that same site that has been used for many years? Am I correct? Mr. Chun: I believe so. It is on the ocean side of the County Landfill. Chair: Is there an exhibit that you can maybe tell the Commission where exactly...? Mr. Costa: In the packet there are some graphic exhibits towards the end. Mr. Kimura: All they are coming in for is a fence, right? Mr. Costa: A fence around the firing range. Mr. Kimura: It's a safety purpose, right? Mr. Costa: Because of our shoreline setback requirements they are before you for a (inaudible). Chair: Herman, did you have a chance to look at the map? Mr. Texeira: Yes I did, thank you. Chair: Any questions for the applicant? If not, thank you. Is there anybody in the public that would like to testify on this agenda item? Seeing none I will bring the meeting back to order and Lisa, we received all the comments? There are no comments from other agencies is there? Staff: We have received all but State Historic Preservation Division however they were consulted in previous permits that were granted to the Kekaha Firing Range, Hawai `i Army National Guard. I did receive this morning it was too late to give to you, the Water Department's. Chair: There is no water for putting up a fence. Staff: That is correct. Chair: I can see that there is a recommendation condition from the State Historic Preservation Board so with that I would entertain a motion. Planning Commission Minutes August 24, 2010 11 Ms. Morikami: Mr. Chair, move that we close the public hearing. Ms. Matsumoto: Second. Chair: All those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to close the public hearing, motion carried unanimously by voice vote. Chair: Since we have received all the agency comments and have read the recommendation into the record we could act on this agenda item if we wanted to. Is there any motion? Mr. Nishida: So moved. Mr. Kimura: Second. Mr. Nishida: Move to approve Special Management Area Use Permit SMA(U)-2011-2. Mr. Kimura: Second. Chair: All those in favor say aye, opposed, motion carries, thank you. On motion made by James Nishida and seconded by Jan Kimura, to approve staff report, motion carried unanimously by voice vote. Use Permit U-2011-2 and Class IV Zoning Permit Z-IV-2011-2 to permit a bus stop in Open-Special Treatment (O/ST-P) on Kai`6 Highway at the intersection of Kou Street, in Kapa`a further identified as Tax Map Key 4-5-012:015, and containing a total area of .826 acres =County of Kauai Transportation Apency. [Director's Report received 8/10/10.1 Staff Planner Lisa Ellen Smith read Director's report (on file). Chair: Are there any comments for the planner? If not I will ask the applicant if he wants to come up to add anything to the Director's report. Mr. Lenny Rapozo: Thank you, for the record, Director of Parks and Recreation, Lenny Rapozo. Thank you for allowing me to speak on this joint effort between County Parks and the Recreation Department and the County Transportation Agency. Having a bus stop adjacent to the Kapa`a Neighborhood Center and the Kapa`a Pool has improved accessibility to this particular facility. For those that use the bus as a means of transportation, the Kapa`a Neighborhood Center functions as a complex site, housing various programs for our community. Aside from senior programs, classes, the center also provides opportunities for other members of our community and includes a training center or informational kiosk that access County permits and other recreational opportunities. Our department has been working in partnership with the Transportation Agency and supports its efforts in adding this bus shelter to the bus stop which will provide a comfortable waiting area for bus riders not only accessing our facility but other businesses and the things available in the surrounding areas. So I just wanted to say that we support the project. Ms. Morikami: I have a question. Mr. Rapozo, can you go over the bus route for this particular bus stop? Where does the bus go from this point? Mr. Rapozo: I am not in Transportation but I believe it continues north. Ms. Morikami: So those people who are at the Kapa`a Neighborhood Center who need to get back, like for example to Wailua, do they have to go all the way to the North Shore and then turn around? Mr. Rapozo: I believe they must have a... Planning Commission Minutes August 24, 2010 12 Ms. Morikami: On the opposite side? Mr. Rapozo: I am not real sure. That is a question for Transportation. I am the landlord of the bus stops. I don't want to say something and I will hear about it at home. Ms. Morikami: I was just concerned because the traffic is pretty intense in Kapa`a and I was just wondering the bus path for those people using the Kapa`a Neighborhood Center, how long the bus ride is to get back home. Mr. Costa: Commissioner, I believe the bus pulls into and I am not sure off hand what road that is but it pulls off the main highway into the street whether it is going to the North Shore or to pick up seniors or other members. Mr. Rapozo: In most instances the stop in on the side of the direction the bus is going and if you wanted to go in the other direction you would have to somehow get across the street. I believe there is one by Kojima Store I think, a bus stop. Ms. Morikami: There is one? Mr. Rapozo: Yes. Ms. Morikami: That makes sense then. Staff: Commissioner, I just wanted to add that this proposal does include awaiting lane to pull over for the ADA compliant boarding area which is a concrete pad well off of the highway actually and they just pull over to the side. I was out there and I should have taken pictures but there are some within the packet of the location but there is a waiting lane that is proposed to pull off so it is not stopping traffic. Chair: Any more questions for Mr. Rapozo, seeing none, thank you. Is there anybody in the public that would like to testify on this agenda item? Seeing none I will bring the meeting back to order and if the planner wants to read the recommendation. Staff Planner read department recommendation (on file). Chair: Commissioners this is a public hearing so if there are no questions for the planner I would entertain a motion to close the public hearing. Ms. Morikami: So moved. Mr. Nishida: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by James Nishida, to close the public hearing, motion carried unanimously by voice vote. Chair: Being that we have read the recommendation and there is no agency... we have received all agency comments, correct? Staff: We have not received the Department of Transportation agency comments as of this date. Chair: But we could, is there that blanket...? Staff: There is a condition within the... Chair: The applicant shall... Staff: Yes. Planning Commission Minutes August 24, 2010 13 Chair: So with that I think the agency and the applicant could work out that condition or comment and I can entertain a motion. Ms. Morikami: Mr. Chair, on item E.2, Use Permit U-2011-2 and Class IV Zoning Permit Z-IV-2011-2, move to approve the recommendation of the Planning Department pursuant to the applicant's request. Mr. Texeira: Second. Chair: Any discussion, seeing none all those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Herman Texeira, to approve staff recommendation, motion carried unanimously by voice vote. Use Permit U-2011-1, Class IV Zoning Permit Z-IV-2011-1 and Special Management Area Use Permit SMA(U)-201 1 -1 to permit construction of a new single family residence, accessory agricultural storage and office structures, development of irrigation well, accessory photovoltaic installation, demolition of structure and archaeological restoration of historical auwai, rock walls, and terraces in Open-Special Treatment District (O/ST-R) in Kahili Ahupuaa, located in Kilauea, approx. 1,700 ft. from Kahili Makai Road and 2,700 ft. from the intersection of Kahili Makai Road and Kuhi`o Highway, further identified as Tax Map Key 5-2-012:019 & 5- 2-021:041: 0001 (por.) and containing approx. 18.164 acres = Hendrikus Group, Inc. [Director's Report received 8/10/10.1 Staff Planner Lisa Ellen smith read Director's Report (on file). Chair: Are there any comments for the planner? Mr. Nishida: Tax map key, you have two different Tax Map Keys. Staff: That is correct. Mr. Nishida: Why is that? Staff: Because there are two different parcels in question. Mr. Nishida: So the application covers... Staff: Two. Mr. Nishida: And both of them will have single family dwellings on them? Staff. No. Mr. Nishida: One is the Ag. building? Staff: The applicant can best answer but there is only a proposed single family house on the smaller Kuleana lot. Mr. Nishida: I don't see, I must have missed it but I don't see references to 205 and the requirements that the farm dwelling. Staff: Because they are not on Ag. They are proposing the single family house in the Open-STR. Mr. Nishida: Ag./Open, State Ag. Staff: State Ag./Open. Mr. Nishida: State Ag., no Open, County Open. Planning commission Minutes August 24, 2010 14 Staff: Correct. Mr. Nishida: So farming dwellings don't count on Open Districts? The farm dwelling requirement does, right? Mr. Costa: It is still State Land Use, Ag. Mr. Nishida: I don't see anything requiring them to do the, clarifying that they have to comply with Act 205 because this is an older parcel. I would kind of like to see compliance stuff on the deed for the farm dwelling so that they know... whether they sign a farm dwelling agreement or not doesn't make a difference but they have to comply with Act 205. And then you have had numerous examples of what can be incorporated in the deed about compliance to Act 205 for the farm dwelling but there is nothing right now. Mr. Kimura: I am a little bit confused. We have existing structures, right? Chair: Correct. Mr. Kimura: And they plan on relocating it, right? Why are we allowing it to be relocated when it is illegal to begin with? Chair: Does the Director or the planner want to comment on that? Staff, They did come in with the intent. They bought this Kuleana lot, it had some unpermitted structures. Mr. Kimura: But it is illegal to begin with. Staff: Correct. So would they rectify the corrections? How do they correct it? Mr. Kimura: They don't. Staff: That is why they are coming to the Planning Commission as I understand but I would let the applicant address that. Mr. Kimura: It is like I thought we already stopped after the fact permitting already, the County, didn't we? Not we but in the past. Are they still allowing after the fact permits? Mr. Costa: That has been one way to comply assuming it can be permitted. Mr. Nishida: Just to clarify, Ian, what they have to do is they have to essentially comply with the requirements. Mr. Costa: Yes. Mr. Nishida: And then, Lisa Ellen, this particular one, they way they are going to do it is they are going to relocate the structures and then comply with the building. They are going to ask for a new building permit, relocation permit, new building permit, they building its self has to comply with the building permit requirements and all that. And then that is why they are coming in for the Use Permit now. Is this a Use Permit? Staff. Yes sir. Mr. Nishida: Use, Ag., zoning permit. Mr. Kimura: What I am saying is it is illegal to begin with, why are we allowing it? I mean it is like I can build a house and two years from now I can come for an after the fact permit and as long as I follow the rules it is acceptable. Illegal is illegal, isn't it? Mr. Nishida: Until it complies with the requirements. Planning Commission Minutes August 24, 2010 15 Mr. Costa: That is a good point but I guess we would need to apply that across the board whether it is Aunty, Uncle, Grandma, or stranger. Chair: So are you saying Jan that if it is illegal they need to first take it down? Mr. Costa: From chicken coop to you name it. Mr. Kimura: I don't know the laws but the previous apparently built this structure, a couple structures, three, illegally and sold the property. Why are we allowing it? We are still allowing this to happen. Of course where this is located it is like in a valley, it is hidden, if you don't drive down the driveway you won't know it's there. I am very familiar with the property growing up in Kilauea I know exactly where it is but to build something and then come back for after the fact permits. How long has this house been built, these structures, these units? How long ago? Staff: There was a demolition permit issued in 2002, there wasn't any mention of any structures at that time so I would say it was subsequent to 2002. Mr. Kimura: So is the previous owner of the property going to get fined for something, building three structures illegally? Mr. Dahili : That can be the discussion of the next agenda item. Mr. Kimura: All I am saying is that we have structures that are illegally built and now it is like since you bought the property and it is illegal, follow the rules and you can keep it. It is just frustrating. Chair: Those units have electricity and water? At least electricity, I know some of them don't have a bathroom. Staff: They are single room structures, they kind of look like Yurts. Chair: They are more than a Yurt. Staff: They are a little bit more, they are. I didn't go into the structure, they have a wrap- around porch and it looked like maybe a bed with Mosquito netting. I didn't see any electrical wiring or water running to them. They had established, the previous owner, a kitchen unit. It was like a couple of different Yurts, one straddling the parcel boundary. But again this was their attempt to rectify the existing illegal... Chair: I hear you Jan, that it is illegal and they want to make it legal now and they are coming through the process. Unfortunately it is the new landowner. Mr. Kimura: You know what is frustrating is I know this family up in Kapahi, their neighbor, built a shed to store their lawnmower, their generator, just stuff they couldn't put in the garage anymore and it was built illegally without a permit. The County came in and made them tear it down. I mean this is three structures you are living in and it is acceptable? Shed, three structures. They can keep it but this guy who built a shed to store his equipment had to take it down. Ms. Morikami: In line with Mr. Kimura's questioning, was the previous owner cited? Were there any fines imposed on the four structures that were illegal? Mr. Costa: I think according to the planner there was no record the violation existed so we would not have cited anybody if we didn't have records of it existing. Ms. Morikami: So on the agenda we have this Chapter 8 amendment, would that be part of, if the Chapter 8 amendment that we are going to be reviewing this afternoon, if that was approved would this then...? Mr. Costa: It could be one of the applications, yes. Planning Commission Minutes August 24, 2010 16 Ms. Morikami: Thank you. Chair: Any more discussion or questions for the planner? If not then I would ask the applicant's representative to come up if he has anything he wants to add. Mr. Ben Wellborn: Good morning Commissioners, Ben Wellborn, planner for the applicant who is on his way here but didn't expect the agenda to move so quickly this morning. I am just here to basically answer questions. It is a fairly complex project with a lot of pieces but if I could address the question of the illegal structures first. When these applicants were considering their purchase of the property they were very proactive and they contacted me to get my input as to what would be involved in getting permits and kind of dealing with the illegal structures that were there. And I just said well if you want me to work with you we kind of have to go completely above board and do everything right. And so they agreed to do that and our first step was to call up the Planning Department and Les Milnes and Lisa Ellen Smith who actually paid a site visit to the property and we said look, this is what is here, there are no permits for any of these improvements and how do we get from what we have now which is illegal structures to a point where we can get both zoning and building permits for what they want to do. The structures that were built according to the person who supplied those structures, it is kind of a pre-fabricated kit, they are according to that person to code. If you folks agree to allow these zoning permits to go forward then a formal building permit process would follow and all of the relocated structures would be permitted according to building codes and foundations would have to be built according to code. And so at the end of the day in a fairly short amount of time the structures would be legal. That is not the right way to build things, I understand, but I think in this circumstance it is kind of the best solution to the situation. Those structures are of value, to demolish them from an environmental standpoint would be a waste of resources. We tried to be completely above board, this project is fairly young. We got together with the Planning Department in February so we are moving pretty quickly and like I said we pretty much put everything above board to try to get from where we are to where we are going. Chair: Are there any questions for the applicant's representative? Mr. Kimura: Yes, knowing that the structures were illegal when the owners bought the property, knowing there was a high possibility that it would be taken down, knowing that, they still went ahead and bought the property? Mr. Wellborn: Correct. And I told them, I said the biggest hurdle for you folks to overcome is these illegal structures and I suggested to them that the best way to do that was to be completely forth coming with the information and just leave it up to the County to decide how to respond to that. Mr. Kimura: So knowing that, again, I still feel that, and not just you but the community in general looks at the County like it is a pushover. It's like we will buy the property, we know it is illegal but we can get it done. I have a hard time swallowing things like that, very hard time where it is like a no brainer the County is going to approve it so let's do it. Mr. Wellborn: I don't think with these folks they have taken that stance. This permit application is pretty thorough and they have spent a lot of resources to try to rectify the situation and to permit the new structures according to the law, following the rules exactly. So I agree with you there is a lot of illegal structures out there and people don't follow the rules but I made that a precondition of my involvement that there wasn't going to be any like oh, let's see what we can get by with. And so these folks, they have followed the rules and... Mr. Kimura: I am not saying they don't. I am just saying it is illegal to begin with and I have a hard time swallowing something that is illegal to go ahead and make it legal. It's like the TVRs, it is illegal but now we are making it legal. I mean that is why we have laws and rules. Mr. Wellborn: I understand. Mr. Kimura: I am frustrated and I am done. Planning Commission 4Iiuute August 24, 2010 17 W. Blake: In line with what Commissioner Kimura has been expressing what happens if it is denied? W. Wellborn: I don't know the answer. That is really for the applicant to address. As I said there is inherent value in these structures, I think they can be brought up to code. Mr. Blake: If the structures were not there and you came in with a permit you are asking that that permit would be requesting that the structures be capable of construction somewhere. So I know exactly what he talking about with regard to sheds because I was present when there was a little incursion into the setback area in `Ele`ele of a gentleman's addition to the house, architect approved. Take it down. And I felt bad but that was the law. And so here, I appreciate the fact that they want to get legal but still it just doesn't seem fair. It isn't fair. Mr. Costa: I guess just to follow up on your question what if it got denied and I assume you are referring to the existing structures; they would have no recourse but to remove them. Mr. Kimura: I feel for the new owners trying to do the right thing. I am not blaming you guys for anything whatsoever, you guys are just trying to do the right thing which I think it great. But it is still kind of hard to swallow. W. Wellborn: This is Hendrikus Shraven he is the applicant/owner and the Commissioners are expressing their concerns about the existing illegal structures and getting after the fact permits for those. I don't know the circumstances surrounding the sheds that have been talked about. I don't know if those sheds could have been brought into zoning and building compliance so I don't know if we are talking about structures that could never have been legalized. I think these structures can be, what we are proposing here is from a zoning standpoint consistent with the zoning code and once building permits are issued that would confirm conformance with building codes. So in a sense they are going to be removed because they are going to be relocated and the only thing that is not going to happen is they are not going to be demolished and end up in the Kekaha landfill they are just going to be brought into compliance. Chair: Some of the concerns the Commission is raising is that in order for us, from my point, in order for us to review an application first we need to take care of the illegal structures and in this case I know this is kind of hit two birds with one stone. It is really hard for us to look in a good light and I know what you are trying to propose. Mr. Nishida: I think what they are trying to do is the right thing. You are going to get a notification when you are buying a piece of property that is going to tell you any disclosures. In this particular case they bought the property and then they are coming in for the relocation permit and the building permit. The person that did the violation was the guy that built the thing. These guys are coming in trying to straighten this thing out. And to me the relocation of the structures, some of these smaller parcels like what Hartwell was saying about and some of these might be setback violations, setback violations, you have to move them. They might be building code violations. Building code violations you have to rectify and that may require dismantling and then building them back up. What these guys are trying to do is the relocation permit for these things which like Ben said is essentially taking the structure down. But because there is some value to the project they are asking that these things be removed and placed based on the zoning and whatever. It is kind of different from something that was built and cannot be moved and cannot be...first they need the permission. They need the zoning and use approvals before they can go in to get the building code, to get all that other stuff. So that is what they are asking us for, that is what we cover, we cover use and zoning. And then the building code, the Building Division is going to have to...Ben doesn't have, until he submits a plan of the building plans with the structural information they cannot review whether these things are permitable or not. And if they are not then you have to destroy them because he cannot get them permitted or you are going to do what it takes to get them permitted. To me the discussion, the frustration, that is one of those things that that is what you have to deal with because people relocate buildings all the time. And then when they relocate them Planning Commission Minutes August 24, 2010 18 they have to bring them into compliance and there is stuff that, they just have to deal with and that is what these people are doing. That is all I have to say. Oh, the farm dwelling requirements, my guess is that both of you are familiar with Act 205 and my problem with requiring the subdivider to come up with an Ag. master plan and all that, he is not the one coming in for the dwelling. And the dwelling its self is the one that requires the compliance with 205 because you come in and you are asking for a single family dwelling. But what you are asking for really is a farm dwelling which is a single family dwelling that complies with Act 205. So what I have requested from the department especially on these dwelling applications, the Use Permit application, that something be done in the deed that notifies the owner that compliance with 205 is required. And I am sure from looking at your past things he knows what to do with the property and intends to do it. So the only thing would be like the deed, something filed with the deed requiring compliance with Act 205 for the farm dwelling. Mr. Wellborn: Speaking on that issue Commissioners, I think there is no problem signing some sort of a deed restriction or a condition of permit approval that requires compliance with Act 205. Mr. Nishida: I think they can come up with some language. And then you are going to have to have a lawyer draw it up. Mr. Wellborn: And speaking on one of your other points as well there are setback violations in this case. If you look at the site plan which is exhibit 8, one of the structures is actually straddling the property line of the Kuleana so there is a major boundary encroachment issue. The other one which is closest to the north eastern corner of the Kuleana is also a setback violation so in that regard we are dealing with the zoning violations by relocating the structures. Chair: What structures are those? Mr. Wellborn: Let's look at exhibit No. 6 which is the plot map. So structure No. 1 which is in the partially shaded area is straddling the Kuleana parcel boundary and structure No. 2 which is actually located within lot 3, unit A, is too close to the Kuleana boundary to conform with setback requirements. So then if you turn to exhibit 8, both of those encroachments or setback violations have been addressed through the relocation. So essentially what you would be doing for the proposed home office is relocate structure 1 and structure 2, to come together for a proposed home office, right? Mr. Wellborn: Right. Once again I just want to reinforce that we looked to the Planning Department for guidance early on in this process by getting Les Milnes and Lisa Ellen Smith out to the property and just saying hey, this is what we inherited, how do we go from where we are to a place where everything is in compliance. I understand your frustration but if all the landowners did that there wouldn't be nearly as many illegal structures out there as there are. And no one has been living in these structures since these guys acquired the property. They are not living down there. Mr. Kimura: Really? Mr. Wellborn: No, nobody has been living in there, nobody has been doing any makeshift activities on the property it has just been vacant since they acquired it and it will stay that way until everything is up to code. Mr. Kimura: Don't get me wrong, I am not trying to say you guys are doing anything wrong. You guys are trying to do the right thing and I appreciate that. Mr. Wellborn: I understand. Mr. Blake: So these farm dwellings will be occupied by people who work the farm? Mr. Wellborn: There is only one farm dwelling which is on the Kuleana parcel and that will be occupied by Hendrikus and his partner Tina so there is just one residence in this project. The adjacent home office will be used for their landscaping business and it will be accessory to Planning Commission Minutes August 24, 2010 19 the agricultural activities that are occurring in the project area which includes both the Kuleana and the adjacent lot 3. Mr. Blake: So if this goes through the final analysis we are talking about is one residence and one office, period. Mr. Wellborn: That is correct, and the barn for Ag. storage and the existing structure 3 which is a single room structure for storage. They don't have any kids, they don't have any distant relatives, it is just one dwelling and everything else is just accessory to that dwelling and/or the Ag. use on the property. Ms. Matsumoto: So before you purchased the property did you know about the closeness of the structures to the boundaries? Mr. Hendrikus Shraven: My name is Hendrikus Shraven, we looked at the property, I was very interested in it. At that point in time I had no idea that these were illegal structures, that came later on and then we found out that they were not even on the property. And that is when we contacted Ben and said okay, how do we work with this because we want to build a dwelling, we don't want to be illegal, what do we do. But we acquired the property, and of course when we signed we knew that these were illegal huts. Ms. Matsumoto: But my question is about the proximity to the boundary lines. Mr. Shraven: We had it surveyed. There were no survey stakes so in order (inaudible) so once we had it surveyed all the sudden the stakes ended up kind of in the middle of the hut. Mr. Wellborn: Just to clarify on that too, they contacted me when they were under contract to purchase the property to help them to interpret what is kind of a confusing zoning overlay as well as a bunch of pieces. So we did a lot of due diligence and they had an attorney involved as well and we consulted with Bob Reckman who is the archeologist so they really did their homework. I am not sure when the setback issues came out whether that was during their due diligence or after they had purchased it but there we knowledge that the structures were illegal before they closed the transaction. Chair: Any more questions? Mr. Kimura: Just for common knowledge, you know that property that you own now? You know that there is a stone that the Hawaiians used to use for giving birth? Mr. Shraven: Really? Do you want to come and show me which one it is? Mr. Kimura: No. I think I will pass on that. Mr. Wellborn: Do you know which Kupuna might be able to shed some light on that? Mr. Kimura: I grew up in Kilauea, I know that property very well and that whole valley from top to bottom all the way down to Kahili, I guess they used to have old Hawaiian villages on both sides of the river all the way down. And we came across that stone quite a number of times and just walking past it would kind of make your hair stand up. So no, I do not want to go down there. Thanks for the invite though. Mr. Texeira: Should it not be protected, saved and preserved etc? Mr. Kimura: I don't want to be any part of that. Mr. Texeira: I am not asking you to I am just saying isn't that... Mr. Costa: Ben, did you have an archeological inventory? Mr. Wellborn: There are two archeological reports in this permit, there is an archeological inventory survey that incorporated the whole Kuleana and then extended out Planning Conunission Minutes August 24, 2010 20 beyond those boundaries because the features kind of, they didn't follow the boundaries, they just went beyond it. And they went all the way to the edge of the clearing which is all that can be seen because the overgrowth is so thick and there is a lot of Cat's Claw and stuff. And then beyond that there was an archeological inventory plan which is kind of how to get to a survey once the vegetation is removed. So the inventory survey for the Kuleana was approved and that birthing stone didn't show up in any of the records on the Kuleana so I am thinking it must be on the adjacent. But I mean Bob Reckman has yet to do the survey of the adjacent lands according to the inventory plan that is currently being reviewed by Historic Preservation so now that we know about that I guess we will try to find information. Tommy, Uncle Tom Hashimoto, Randy Wichman suggested we talk to him and maybe he knows a little bit about that stone. We did talk to some of the Chandler family but they didn't have much knowledge about it so we will try to get some more information and definitely record it. Chair: Any more questions for the applicant? If not, thank you Ben. Let me take some public testimony. Is there anybody in the public that would like to testify on this agenda item? Seeing none I will bring the meeting back to order. We have not read the recommendations yet but this is a public hearing. And if we want to continue the public hearing I would say on the September 28 we could continue but if not, close. Ms. Morikami: Mr. Chair, move that we close this public hearing. Mr. Nishida: Second. Chair: Any discussion, all those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by James Nishida, to close the public hearing, motion carried unanimously by voice vote. Chair: We will probably defer action, Ben, to the September 28th meeting. We don't need a motion. Bill to consider the addition of an additional section to Chapter 8, Article 24 relating to the imposition of civil fine authority for the County of Kauai Planning Department = County of Kaua `i Planning Commission. Director's Report pertaining to this matter. Deputy Director Imai Aiu read Director's report (on file). Chair: Are there any questions for the planner? Mr. Nishida: Imai, Act 205 allows for a fine of up to 5,000 dollars for violations. Are you saying that we cannot... who administers that fine? Mr. Ain: The 205 fine? I am not sure who administers the 205 fine, if that is specifically one of those powers that is given down to the County or if that is a State one. If it comes from Act 205 my guess would be it would be from the State but I would need to, with the County Attorney, research that unless you know off hand, Mike. Mr. Dahilig: I don't know offhand. Mr. Costa: We have not had authority to levy fines we typically have to refer it and get cooperation from either the Prosecuting Attorney for criminal penalties or the County Attorney's office for civil penalties to actually be enacted or levied. And usually, at least in our experience that involves proving that in court. So it takes us some time, we have to go through at least a minimum of a two step process to confirm the violation and get them to comply. If we are not successful at that point we have demonstrated we have somewhat exhausted our administrative remedies and then try and seek relief or help from either the Prosecuting Attorney or the County Attorney. That literally takes months if not years to do and then they similarly, at least in my experience, have to go through the same exhaustion, in other words get them to try and comply Planning Commission Minutes August 24, 2010 21 first. And then once you have that track record that they have not complied then you can take that to court. I did want to also say that in the statement that enforcement has been problematic it is primarily because the issue is two-fold. We administer or enforce structures or regulate structures and use. Structures are easy, they are there, it is black and white. Use is a cat and mouse game that we often get caught in, we have to see it and document it occurring. An example of a TVR, having a sign is not necessarily proof, to prove it you have to show receipts that they charged and collected on a short term basis. Often times we may get to a point where we can document the use, often times compliance is weeks or months later, they say they are complying, come inspect, the use is not occurring when we go. So the fines would help at least capture those times where we have documented the use to again levy that fine and use that as I guess leverage if you will to move it forward as opposed to having this cyclical cat and mouse game. Not only with our department but again once we run into a dead end, having that same obstacle or challenge for either the Prosecuting Attorney or the County Attorney. Mr. Nishida: So the County has no, the Planning Department has no civil authority to do fines and then this is going to remedy that? Mr. Costa: Yes. Ms. Morikami: Mr. Chair, I am kind of surprised, I concur with Commissioner Nishida, his questioning but I am surprised that civil fines were not part of this Planning Department and it is only coming up now. And I am just wondering, I noticed the recommendation is for 1,000 dollars. I am just curious, why not 2,500, why not 5,000? Because if we really want to rectify the violations I think 2,500 dollars a day means that we really mean business and violations need to be resolved. So I was just surprised that we never even had civil fines as part of the department. Mr. Costa: I believe, from my experience, I believe the maximum fine was 500 and again after years of proving and working and getting the proof and taking it either to the County Attorney or Prosecuting Attorney that is 500 dollars that doesn't even come to the County. Chair: I think Vice Chair Herman had the same question regarding why just 1,000 from our meeting this morning. Mr. Blake: If we pass this proposed amendment that money would come to the County. Mr. Ain: Yes. Mr. Blake: I agree we should go higher. I mean when you look at the months and years of personnel costs that may just go up in smoke, give it some long teeth, sharp teeth. Mr. Nishida: What was the rationale for the 1,000? Mr. Dahilig: Maybe I can explain. The 1,000 dollars is actually covering what was amended in recent building and energy codes and they use 1,000 dollars as the basis for I guess whatever their fine is, so that is their cap. The language that you see in the proposed amendment is working with the Director's office was to actually lift the language from the building code and tailor it to this particular section of the CZO. So that is where that 1,000 dollars came from. Ms. Morikami: But we are not bound by it. Mr. Dahilig: Pardon me? Ms. Morikami: This Planning Commission is not bound by that 1,000. Mr. Dahilig: No, it is just some history as to where that number came from. Mr. Blake: The other question I had was it says "At the discretion of the Planning Director". So would this be totally discretionary? Planning Commission Minutes August 24, 2010 22 Mr. DahiliQ: Based on the way that we read HRS 46-1.5, that the authority to levy the fine would be at the order of the department head. So if the department head determines that after some opportunity for remedy has not been take advantage of by the violator that he can by his signature levy the fine. And then the fine would be collectable and it would also be appealable under Chapter 91. Mr. Blake: Except for collectable and appealable are we going to get into a big legal go around about whether it should be 500 or 1,000 or 1,400, 2,400 or what? Mr. Dahilig: Usually what happens is because it would be a 91 review the standard that would be entertained by the court would be essentially an arbitrary and capricious type of situation. So did the Director in using his discretion over levying a fine that was arbitrary and capricious. Mr. Blake: It is not arbitrary and capricious until it reaches what level? Mr. Dahilig: If it is appealed, in this particular case it would be the Planning Commission, the fine is appealed, then you would enter into a contested case hearing where that would be entertained. And if that happens then that decision would be further appealable up to the Fifth Circuit Court. Mr. Blake: And that is my question, is it totally within the Director's discretion, which is fine with me, or do we have to have standards, written standards? Mr. Dahilig: The proposed ordinance change is written as a generic authority. Now whether the Commission wants to specifically levy a schedule of fines for certain types of violations, that is certainly within the Commission's prerogative as well to recommend up to the Council. Again this is simply just an implementing measure that is generic and right now it is written in a matter where the Director would have discretion to determine if a minor type of violation would warrant a lower amount versus a major violation with a higher amount. Mr. Blake: I really don't want to go to the Council on this but my thought was you always get hit with well how come you didn't do this to Joe Blow and you are doing this to me for arguably the same thing. And that is what I would like to avoid if we can because it is just another time wasting exercise for somebody who has ignored two violation notices and is now upset because the fine is mounting. Ms. Morikami: I concur with what Mr. Blake is saying. I think if we had guidelines on whether there is a violation of setback or illegal building. If we had specific guidelines and there wouldn't be as much discretionary and it would give the Director of the Planning Department a clear indication, okay, setback violation is this, unpermitted use is this, versus discretionary. I share the same concern as Mr. Blake. Mr. Blake: I don't want to take away ...I don't want to remove the discretion from the Director because he is right there on site so to speak it is just that I would like to not leave us totally open to a charge of being arbitrary and capricious. So if there are guidelines and that is what they would be, guidelines and not absolutes. Chair: Any more questions? Mr. Texeira: In line with what Commissioner Blake said would it be hard to establish these guidelines and could it be done in a relatively quick manner? Mr. Costa: I think what the purpose of the public hearing is the Commission having expressed its concerns and ideas we would address that in our recommendation. Mr. Nishida: Ian, Act 205 specifically states that there is a 5,000 dollar violation to the farm dwelling, well actually it is for everything, per event. Are there other things in the CZO that states it that way whereas Act 205 on Ag. lands, the violation is 5,000 dollars per event, Planning Commission Minutes August 24, 2010 23 within 6 months another 5,000. There are specific guidelines like that. Does the CZO allow for different kinds of other similar rules like for fines? Mr. Costa: There is such a provision in the CZO and I believe it used to be 500. Mr. Nishida: And this was zoning and use violations? Mr. Costa: Yes. Mr. Nishida: Or whatever other violations, the 500, and what this is going to do is two things, it is going to raise it to 1,000 and will allow civil penalties. Mr. Costa: Right, give the department the authority to at least levy those. Mr. Nishida: Actually the CZO will still remain the same unless you change that specific... wouldn't it still be 500? Because you are not changing the CZO with this, right, you are just allowing civil penalties for up to 1,000 dollars per day. The CZO limits would still be in effect, right? Mr. Costa: I believe we would need to address that in our recommendation as well so that we are not conflicting. Mr. Nishida: And building code violations would come under you? Mr. Costa: No. Mr. Nishida: The building code has different... Mr. Dahili g: Public Works. Mr. Nishida: The Building Division. So how does that work, the Building Division one? Mr. Dahilig: Donald Fujimoto has the authority to levy a fine of up to 1,000 dollars a day. Mr. Nishida: So the Building Division has that civil authority. Mr. Dahilig: Civil authority right now. Mr. Nishida: And that is what we are asking for the Planning Department for the prevue or whatever the Planning Department oversees. Mr. Dahilig: Yes. Mr. Nishida: And theirs is 1,000 per day for building code violations. Mr. Dahilig: That is correct, building, energy code. W. Costa: I am not clear on that whether they actually, I am not aware that they actually issue tickets, building inspectors. Mr. Dahilig: They have the authority as to whether they actually issue... W. Nishida: They just issue the violation. W. Dahilig: They are just issuing violations right now and the bulk of those are still being handled by the Prosecutor's office. So right now as a matter of practice all the violations are referred to the Prosecutor's office and it is her discretion whether to act on enforcing and moving forward on the violations or not. Planning Commission Minutes August 24, 2010 24 Mr. Nishida: And you would still have that option under this, under this you would still have that same option to go through the...the County Attorneys would still handle them anyway. Mr. Dahilia: The County Attorney's office would handle these more on the civil side like an injunction type of proceeding. We don't have the authority to go in and seek criminal penalties or criminal fines. That is again the Prosecutor's Kuleana. Mr. Nishida: So the arbitrary and capricious, that issue is not entirely under your decision alone, you would still consult with a County Attorney in order to issue the...what did you just call it? Mr. Dahilig: Civil fine. Mr. Nishida: So the County Attorney, it would still come from the County Attorney's office actually, a civil fine. Mr. Costa: Once we get into the practice... Mr. Nishida: You would just say should from your end. Mr. Dahilie: It would actually be in the form of a letter with his signature saying you are being levied a fine of x amount of days. Mr. Nishida: But you would consult with them. Mr. Costa: Generally, yes, like we do on most cases. Ms. Morikami: I am just curious. May I ask the Director a question? What would you consider in the Planning Department a minor infraction versus major? Give me an example of what is considered a minor fine versus a major fine. I guess I want to know the severity of it. Mr. Costa: I guess I would look at it in terms of the value of the action we are seeking. In other words if it is a small dog house for instance for lack of a better example the leverage or value of having to remove that is far less than say a house. Ms. Morikami: How about TVR violations? Mr. Costa: Again use, I am not sure how at this point in time I would qualify minor versus ...an illegal use is an illegal use. Ms. Morikami: I think that is why the guidelines are important so that you are not stuck with the discretionary where it is arbitrary and capricious; we just kind of have guidelines that the Planning Department would follow. Mr. Costa: That is why I touched upon use versus structure. I think structure is a little easier to come up with a spectrum with what is simple to complex but use is always complex. Ms. Morikami: Thank you. Chair: If there are no more questions I will ask for public testimony, is there anybody in the public that would like to testify on this agenda item? Seeing none I will bring the meeting back to order and if there is a motion to continue public hearing or close public hearing. Mr. Blake: Motion to close the public hearing. Ms. Morikami: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by Hartwell Blake and seconded by Paula Morikami, to close the public hearing, motion carried unanimously by voice vote. Planning Commission Minutes August 24, 2010 25 Chair: We wouldn't have to set a date for this. Mr. Dahilig: You can defer the matter. Chair: We will just defer the matter. Mr. Costa: If you close the public hearing then we will bring it back when we have the recommendation. Chair: Being that we need a caption break what I want to do first is go into executive session for the items that we tabled. Mr. Dahili~: I would vote first on the executive session on item D.I.a. Chair: D.La and what about can we go into executive session also for A.2? Mr. DahiliQ: Yes. Chair: So Commissioners if we could get a...we will go into A.2 first and we will vote on that one and then we will open another motion for D.1. Mr. Dahilig: There is a motion on the table for that. You don't need to do a motion for D.1. Chair: So just A.2 then. So if I could get a motion to go into executive session so we could hit two items, both A.2 and D.1. Ms. Morikami: So moved. Ms. Matsumoto: Second. Chair: Someone needs to read it just for the record. Mr. Dahilig: It would be A.2, going into executive session relating to a communication from Malcolm Fernandez, Personnel Director, relating to certifications of satisfactory performance pursuant to procedures established by the Personnel Director on the annual evaluations for nonelected employees due to the Personnel Director no later than October 25, 2010. This executive session will be pursuant to the exception in Chapter 92 relating to a personnel matter. Chair: There is a motion on the floor, there is a second, all those in favor say aye, opposed. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to go into executive session for agenda item A.2, motion carried unanimously by voice vote. Chair: There is a motion on the floor for D.1, all those in favor to go into executive session say aye, opposed, motion carries. On motion made by James Nishida and seconded by Paula Morikami, to go into executive session on agenda item D.1, motion carried unanimously by voice vote. Commission went into executive session at 11:50 a.m. Meeting was called back to order at 1:57 p.m. Chair: There is a motion to table item D.1, James Christiansen and there is a second, before I call for the vote is there any discussion, if not all those in favor say aye, opposed, motion carries. Planning Commission Minutes August 24, 2010 26 On motion made by Paula Morikami and seconded by James Nishida, to table agenda item D.1, motion carried unanimously by voice vote. NEW BUSINESS For Acceptance into Record-Director's Report(s) for Project(s) Scheduled for Public Hearing on 9/14/10. NONE For Acceptance and Finalization - Director's Report for Shoreline Setback Activity Determination. Shoreline Setback Determination SSD-2011-10 and Shoreline Setback Commission Review SSCR-2011-1 for a shoreline activity determination, Tax Map Key 2-5-011, 013, 014, and 015, for acceptance by the Planning Commission = Kukui`ula Development Co. (Hawai`i) LLC. Director's Report pertaining to this matter. Commissioner Morikami was recused from this agenda item. Mr. Texeira: Move to accept the shoreline setback determination SSD-2011-10 and shoreline setback Commission review SSCR-2011-1. Mr. Kimura: Second. Chair: All those in favor say aye, motion carries. On motion made by Herman Texeira and seconded by Jan Kimura, to accept the Director's Report, motion carried unanimously by voice vote. ADJOURNMENT Commission adjourned the meeting at 2:05 p.m. Respectfully Submitted. Qfap~-; ox~,12L: Lam Agoot Commission Support Clerk Planning Commission Minutes August 24, 2010 27