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KAUAI PLANNING COMMISSION
REGULAR MEETING
September 28, 2010
The regular meeting of the Planning Commission of the County of Kauai was called to order by
Chair, Caven Raco, at 9:16 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:
APPROVAL OF THE AGENDA
Chair: Can I get a motion to approve the agenda?
Ms. Matsumoto: So moved.
Mr. Kimura: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve
the agenda, motion carried unanimously by voice vote.
Chair: Can I get a motion for the receipt of the agenda items into the record?
Ms. Morikami: So moved.
Mr. Kimura: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Paula Morikami and seconded by Jan Kimura, to receive
agenda items into the record, motion carried unanimously by voice vote.
GENERAL BUSINESS MATTERS
Executive Session: Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-
5(a)(2&4) the pumose of this executive session is to discuss matters pertaining to the Planning
Director and if necessary, to consult with the County's legal counsel. This session pertains to
the evaluation of the Planning Director where consideration of matters affecting privacy will be
involved and if necessary, to consult with legal counsel regarding powers, duties, privileges,
immunities and/or liabilities of the Planning Commission as it relates to this agenda item.
Chair: I will be moving item A, general business matters, the executive session to the
back of agenda if I could get a motion.
Ms. Morikami: Mr. Chair, move to move item A, the executive session, to the end of
calendar.
Mr. Kimura: Second.
OCT262019
Mr. Kimura: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Paula Morikami and seconded by Jan Kimura, to move the
executive session to the end of calendar, motion carried unanimously by voice vote.
COMMUNICATION
Annual Status Report (8/18/10) from Max W. J. Graham, Jr., Esq., regarding Compliance
with Permit Conditions for Special Management Area Use Permit SMA(U)-2008-5, Use Permit
U-2008-4 and Class IV Zoning Permit Z-IV-2008-6, Tax Map Keys (4) 5-2-012:035, Kilauea,
Kauai = Charles M. Somers and West Sunset 32 Phase I LLC.
Staff Report pertaining to this matter.
Letter (Received 9/16/10) from Dan Green, relating to making a presentation on
"Hydrogen and Kauai" at the Planning Commission's October 28, 2010 meeting,
Chair: Items B.1 and 2, let me table that for now and go right into C, subdivision.
SUBDIVISION
Ms. Morikami: On the subdivision, on the last item, 2.A, I will be recusing myself
because of a possible conflict of interest. Excuse me, also D.2.b, thank you.
Mr. Nishida: Subdivision Committee Report, Tuesday, September 28, 2010, Subdivision
Committee Report No. 5, all present. Under new business we have tentative subdivision action
for six applications, this is for the bike path along by Kapa`a Sands in that area so it was S-2011-
04, Otsuka Estates, approved 3-0, S-2011-05, Otsuka Estates, approved 3-0, S-2011-06, Kapa`a
Sands, approved 3-0, S-2011-07, Gary Blaich, approved 3-0, S-2011-08, Gregg and Susan
Strickland, approved 3-0, and S-2011-09, J. Frederick/Gary Bolster(aka. Kauai Kai)/Creighton
S. Fuji/Masakatsu & Mieko Katsura, approved 3-0. So this is the subdivision that allows for the
bike path to pass in front of these properties. Under final subdivision action we had S-2007-20,
Kukui `ula Development Company (Hawai `i) LLC, was approved 3-0, and S-2009-19, Alexander
and Baldwin Properties, Ina./Mc Bryde Sugar Co. Ltd., approved 3-0. So one of these was for
the allowance of the new Pa`ahau extension and the other one was for the water tanks that was a
requirement of the project. Move to approve subdivision report.
Ms. Matsumoto: Second.
Mr. Nishida: We have to make two motions, move to approve subdivision report, item
D.1.
Ms. Matsumoto: Second.
Chair: Before we take a vote any discussion?
Mr. Blake: The lots that are subdivided off of these larger estate lots means that the
County will own the property under the bike path, not just for an easement?
Mr. Kimura: Yes.
Mr. Blake: These are all beach properties?
Mr. Kimura: No.
Mr. Blake: Or are they interior?
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September 28, 2010
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Mr. Nishida: I think some of them are along where you know when you get close to the
Lihi Park, over there is kind of along the beach and then the other ones are along the access road.
Mr. Kimura: At Kapa`a Shores?
Mr. Nishida: Right. That is the confusing part where they had to make changes based on
the land...
Mr. Costa: None of the parcels created are beach front parcels, most of them are roadside
parcels.
Chair: Any more discussion, all those in favor of the motion on the floor say aye, motion
carries.
On motion made by James Nishida and seconded by Camilla Matsumoto, to
approve Subdivision Report, item D.l, motion carried unanimously by voice vote.
Mr. Nishida: The second motion, move to approve subdivision report, item D.2.
Ms. Matsumoto: Second.
Chair: Any discussion, all those in favor say aye, motion carries.
On motion made by James Nishida and seconded by Camilla Matsumoto, to
approve subdivision report, item D.2, motion carried unanimously by voice vote.
UNFINISHED BUSINESS
Use Permit U-2010-20 and Class IV Zoning Permit Z-IV-2010-22 to construct an
administration building and covered pedestrian walkway at Kalaheo School, located on Maka
Road at the intersection of Maka Road and Pu`u Road Kalaheo Kauai further identified as
Tax Map Key 2-3-002:005 =State of Hawai `i, Department of Education. (Director's Report
received 7/13/10, hearing closed 7/27/10.1
Staff Planner Ka`aina Hull read supplemental report to the Director's Report (on file).
Chair: Are there any questions for the planner? Seeing none is there a representative
from the State of Hawai `i that wants to add to the supplement?
Mr. Thereon Nichols: My name is Thereon Nichols, I am a facilities planner and this is
Eric (inaudible), the principle. We have nothing to add we just appreciate your support and
understanding on this matter.
Chair: Are there any questions for the representative, seeing none, thank you, is there
anyone in the public that would like to testify on the item? Seeing none I will bring the meeting
back to order, being that he has read the recommendations what would be the pleasure of the
Commission?
Ms. Morikami: Mr. Chair, on item D.1, Use Permit U-2010-20 and Class IV Zoning
Permit Z-IV-2010-22, move to approve as recommended by the Planning Department pursuant
to the applicant's request.
Chair: Do we need a motion to receive the supplemental report or are we good on that?
Mr. Blake: Second.
Chair: So can you also motion to receive first and then approve, so motion to receive the
supplemental report for the record.
Ms. Morikami: For that item move to receive the supplemental report received.
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September 28, 2010
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Mr. Blake: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Paula Morikami and seconded by Hartwell Blake, to receive the
supplemental report, motion carried unanimously by voice vote.
Chair: Back to the main motion and we have a second, is there any discussion before I
call for the vote?
Ms. Matsumoto: Ka`aina, in No. 4 you talk about Best Management Practices but can we
add some language about encouraging recycling and using green practices? Just to encourage
that, remember that wonderful paragraph you made?
Staff: I think I know what condition you are referring to Commissioner. I don't have the
actual language on me, if we could perhaps break for a minute I can get it.
Chair: Is it just a condition to encourage recycling?
Ms. Matsumoto: Recycling and reusing in construction, encouraging the green practices
in construction. There was a paragraph in one of the applications that seemed to capture all of
that and I wanted to put that in to applications.
Chair: What I could do is take a 5 minute recess and if you want to go and grab that
condition so let me take a 5 minute recess.
Commission recessed at 9:30 a.m.
Meeting was called back to order at 9:41 a.m.
Chair: Do you want to read the proposed language?
Staff: Similar language that the Commission has imposed on other zoning permits
concerning green standards or strategies, the language goes as "The applicant is encouraged to
design and construct the proposed structures to meet or exceed Leadership in Energy and
environmental Design certification or another comparable State approved nationally recognized
and consensus based guideline standard or system."
Mr. Blake: Can you read it louder please?
Staff: "The applicant is encouraged to design and construct the proposed structures to
meet or exceed Leadership in Energy and Environmental Design, otherwise referred to as LEED,
certification or another comparable State approved nationally recognized and consensus based
guideline standard or system." What is in particular relevance to the proposed structure or
proposed permit is because there is actual language in the Hawaii Revised... this language was
modeled off of language in Hawaii Revised Statutes which encourages all State buildings and
facilities to be constructed to meet or exceed LEED certification or another State recognized
such as Green Globe System. LEED or Green Globes are essentially a point system in which
they can receive a type of ranking be it LEED certification, LEED silver, LEED gold, in which
they employ different strategies be it in the reusing or reduction of materials in construction as
well as Green strategies such as solar or wind in the operation of the building its self. This
language is take specifically from Hawaii Revised Statutes that applies to State buildings and
this is a State building that is being proposed right now.
Mr. Blake: I don't know if I heard you correctly but you said it applies during
construction and operation.
Staff: Correct, in construction the program of LEED, when they are constructing the
building they have to employ certain strategies and it is a check list and they have a LEED
certified individual overseeing the project to ensure that it meets those criteria. But among the
criteria is to use certain types of materials to construct the building as well as using certain
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September 28, 2010
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reused materials of recycling materials during construction as well as in the criteria is once the
facility or building in constructed that other types of standards are imposed be it recycling within
the facility, be it location to take advantage of trade winds, be it solar paneling or wind or
whatnot. And there are different ways to employ it but ultimately it takes in these various green
strategies and it is a nationally as well as State recognized system.
Chair: Any more discussion?
Ms. Morikami: Mr. Chair is that a new condition number or is it part of that number 4?
Chair: It will be a new condition so we would have to entertain a motion to entertain it.
Ms. Matsumoto: Move to add condition 7 to the application as read.
Ms. Morikami: Second.
Chair: Before I call for the vote is there any comment from the applicant?
Mr. Nichols: Yes, as he said all State buildings do have to meet that criteria, they need to
be built to the standard of LEED silver or to Green Globe. And though we are not going to
formally go for the LEED certificate we did do the check list as we went through the design
process and so we will be doing like he said many of the strategies to be green and sustainable.
Mr. Blake: You say you are not going to go through the formal drill?
Mr. Nichols: We will not go for the formal certification. That formal certification has a
cost impact and that happens about 6 months after the project is completed. At that point the
architect would assemble all the documents from both during the design process and also during
the construction process, the contractor needs to keep a lot of detailed records. When you go
formally then all those are compiled and they are sent off, if you are going for LEED, to the
Green Building Council and they review it and if they approve of the recommended number of
points that you are striving for then they will come back and give you a certification. So as a
practice for the DOE we are following the State intent, the law says to the extent possible. We
are following the check list for every single large CIP project and then we doing the formal
certification on representative projects. For example all of our new schools are getting the
official, let's say we are doing 5 classroom projects, they are all being built to that standard and
then we are choosing one of those to do the formal certification. The same on the support
facilities, for example we are building, it is under construction, Baldwin High School Library,
and we are seeking a formal certification for that to represent our support facilities like admin
and cafeterias.
Mr. Blake: And if you receive the certification is that more than just a feel good plaque?
Mr. Nichols: Visually what you see is that plaque but I think more importantly whether
you go for the formal or not it is the idea that yes, we as a community and stakeholders and
people are trying to build in a sustainable fashion. And so it really has re-fashioned I think the
thought process of everybody involved. It spills over, for example often, as the gentleman
mentioned, the school is encouraged to have a recycling program so if they didn't have one prior
to the project they can get a point on the check list by implementing something like that. So it
has a very positive effect whether you go for the formal or the informal.
Mr. Blake: Thank you.
Chair: If no more discussion...
Mr. Texeira: Mr. Chair, in line with condition 7, am I to assume that condition 7 will be
met by this project?
Mr. Nichols: Yes I think so. Again as you go through the design process you look at the
various points to be attained and you pick and choose ones that you think would be appropriate
for that particular project. So we typically then do a total and we see where we stand at the end
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September 28, 2010
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of the design process and our direction has always been to the consultants you need to try to get
LEED silver or better. Sometimes that is rather challenging, it depends on a lot of the details of
the actual building but anyway that is the intent and I think we were close on this one.
Ms. Matsumoto: It's more of a comment, we can't go back, we have to go forward, the
way some things were done cannot be done like that anymore and I would like to see this project
being that it is a school, we want to teach people how to go forward and go forward in the right
way. And so if they can say later on in the future we did these things and these things helped
advance the island and awareness forward. That would be a nice thing.
Mr. Nichols: That is what we are trying to do.
Ms. Matsumoto: It would be good for the children.
Chair: Any more discussion, if not all those in favor say aye, opposed, motion carries.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to add
condition No. 7, motion carried unanimously by voice vote.
Chair: We are back to the main motion for approval, any more discussion; all those in
favor say aye, opposed, motion carries.
On motion made by Paula Morikami and seconded by Hartwell Blake, to approve
supplemental report as amended, motion carried unanimously by voice vote.
Commission brought back item B.1 under Communication previously tabled.
Chair: We are back to item B.1 which I will bring back to order, B.1, for an annual status
report for application Use Permit SMA(U)-2008-5 and Use Permit U-2008-4 and Class IV
Zoning Permit Z-IV-2008-6 for TMK 5-2-012:35, Charles M. Somers.
Staff Planner Lisa Ellen Smith read staff report (on file).
Chair: With that are there any questions regarding the status report for the planner? If
not I can call the applicant's representative if he wants to add anything to the report.
Mr. Max Graham: Good morning Planning Commission members, Chairman Raco, I am
Max Graham and I represent the applicant Charles Somers and his entity which is West 32 Phase
I, LLC. I have presented a complete report where I have addressed all of the conditions and let
me just highlight a couple of items that I think the Commission is probably interested in. First
we have recorded in the Bureau of Conveyances a copy of the decision and order, the conditions
that apply to this project. So all of the conditions that were imposed as a result of the decision
and order have been recorded and will run against the property so that has been done. So all of
the conditions relating to no Bed and Breakfast, no Vacation Rentals, things like that, everything
has been recorded and will run against the property.
The second thing I think the Commission may be interested in is the status of the
Conservation easements. If you look at the board you will see our aerial photo of the property
and the property is outlined in yellow. As you can see the property line runs towards the ocean
over portions of the Kilauea Stream and then further mauka the stream cuts back into the
property so some large portions of the stream are actually within the property. If you look at my
report in the exhibits, exhibit 6 and exhibit 7 are the Conservation easements and if you go to the
last page of each document you will see the shaded portions outlining the easements. So just to
refresh your recollection of what happened in this case as a condition of approval the applicant
agreed to grand easement C.1 which is an 80.1 acre Conservation easement on the property. And
subsequently the applicant granted even though it wasn't required easement C.2 which was the
same type of Conservation easement and that is a 69.3 acre portion of the property.
So of the 161.88 acres that comprised lot 2 which is the subject property, 149.4 acres are
subject to these two Conservation easements. The easements are held by the Kauai Public Land
Trust and the result of the easements among other things is that all of the density on the land
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September 28, 2010
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subject to the easement has been given up so there is no further single family residential or farm
dwelling density. And then it is restricted in uses and it is restricted in the types of structures and
the total roof area of structures that can be constructed on the remainder of the property. And the
only site that is not part of the Conservation easement is the 12.4 acre home site and if you look
at those two maps of the easements you can see the home site as a small piece, the 12 acre piece
towards the end of Kahili Quarry Road. And if you will allow me I will go up to the board and I
will point out the general area. So all of the property is subject to an easement with the
exception of the 12 acre portion right around here and that is the area restricted to the home and
the pertinent structures. Everything else is part of the easement and you can see the river is part
of the property in this area and then further up cuts into the property.
And I should mention if you are familiar with it, the County has taken over the Kilauea
River cleanup project and so Mr. Somers will be participating in that project as well and in fact
will allow his property to be used as a staging area to help in the cleanup of the K17auea River. If
you have any other questions I would be happy to address them.
Mr. Kimura: I hear that you are going to allow access to the waterfall, who do we have
to contact?
Mr. Graham: The way we resolved that in the end of the hearing was that it would be
permitted at the applicant's discretion. Right now people go to the waterfall apparently on a
daily basis and there is no one checking in so I think the status quo will continue. Once the
house is constructed then there may be more control at that point. I will let the Planning
Department who the contact person will be.
W. Kimura: And Kahili Road, I went down there a couple of weeks ago, it is maintained
all the way up to the...are they going to continue because there is a big hole right there.
Mr. Graham: What happened, and this is my understanding, the road was cleaned up by
the movie production company that utilized the property for the film production earlier this
summer so it go cleaned all the way down to the entrance into the property. But the movie
company didn't do any more work beyond that point. When the applicant as part of his process
of constructing the home he also will be doing further improvements on the road including all the
way down to the end of, well all the way to the Quarry it's self, the Quarry property. So I am not
sure where the hole is in relation.
W. Kimura: It stopped right at the hole.
Mr. Graham: We will look into that. We do understand that we do have a duty to
improve the road all the way to the end of Kahili Quarry Road but remember that the Quarry
Road stops at the Quarry lot and so beyond that we don't have any ability to...
Mr. Kimura: When you say Quarry lot what do you mean? Where the old scale used to
be?
Mr. Graham: The road goes almost to the end of this property and then the whole point is
the Quarry lot which is not owned by Mr. Somers.
Mr. Kimura: So considering where the gate used to be is beyond that hole. Do you
remember where the gate used to be?
Mr. Graham: I don't know where the gate used to be.
Chair: Would the planner like to comment?
Staff: I have site inspected this property including Kahili Rock Quarry Road, it did end
at the end of the Somers property. Mr. Graham did send a letter authorizing the movie company
as well to do the grading all the way through however U.S. Fish and Wildlife didn't wish them to
proceed which is their land which is the further part. So under the condition of the approval, I
think it is 11, they are required to improve the drainage and the roadway all the way down.
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Mr. Kimura: So where the road is fixed, that is the end of...
Staff: It is the end of the Somers property.
Mr. Kimura: So no one is going to fix that big hole right there?
Staff: I was under the understanding that it was going to go through the U.S. Department
of Wildlife but I can check with the applicant.
Mr. Graham: You can check with us but our obligation is only to go up to that lot,
beyond that, Kahili Quarry Road, we don't have any ownership interest or easement interest so
we can't really go into the...
Mr. Kimura: So the Department of Wildlife said stop?
Staff: Yes. I did actually contact them and asked if they were going to be allowed to
proceed and I was told no by Stephanie of the U.S. Fish and Wildlife Services.
Mr. Kimura: That is pretty selfish.
Mr. Blake: What is your concern here?
Mr. Kimura: Going down the Rock Quarry Road, right where these guys fixed the road,
right at the very end where DLNR starts, the Department of Fish and Wildlife.
Mr. Blake: Where is that on the map?
Mr. Costa: The road allows people to go all the way down to the river but it does go on
Fish and Wildlife property to get there.
Mr. Kimura: Right where the road ends there is a huge hole, if you go down with a car
you can't get through and that is why they were talking about four wheel drive, you need a four
wheel drive truck to get down there. I mean they fixed the road all the way up that big hole but
you still need a four wheel drive to get across there. You still have the old timers of Kilauea that
love to go down there and fish.
Mr. Blake: And what is DLNR or Fish and Wildlife prohibiting?
Mr. Costa: They didn't give authorization for the movie crew to continue the
improvements they did.
Mr. Blake: How come, do we know?
Mr. Kimura: I think that is pretty selfish on their part. If somebody is willing to fix the
road and they say no.
Chair: I know that when we had discussions originally I know a Commissioner was
really ...he wanted to leave the road as is actually; he wanted to road to stay as is and no
improved.
Mr. Kimura: I would like to see it improved. At least that one hole right there.
Chair: Unfortunately I think where the hole is, is where the property ends and we have
no jurisdiction no does the application have authority.
Mr. Blake: Mr. Graham, according to condition 17 it says "Customary and traditional
rights and practices including without limitations those exercised for subsistence, culture,
religious access or gathering purposes as provided by the Hawaii State Constitution shall be
permitted." Does this apply to the whole 160 acres?
Mr. Graham: Yes.
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Mr. Blake: It does, good, thank you.
Chair: Any more questions for the applicant?
Mr. Texeira: Max, could you expand, this easement or this agreement is going to
extinguish 16 of the 32 lots, the 32 sites, potential building sites?
Mr. Graham: Yes.
Mr. Texeira: I thought the intent was to extinguish all of the sites expect for the current
improved building site. So in other words there is still 16 sites that could be...
Mr. Graham: No because you have two easements so all of the sites, actually since you
only have 12 acres outside of the easements the most you could have would be two homes down
there. And if you recall the initial application was for two homes and then the second caretaker
house was dropped and you only have the main home. So right now there would still be
potentially a right to build a second home within the 12 acres. You would have to go through the
entire process again to do that but all the other density has been given up.
Mr. Texeira: Is that written into the language?
Mr. Graham: Yes.
Mr. Texeira: Okay, I just wanted to be sure.
Mr. Graham: And it is written into the Conservation easements themselves.
Mr. Nishida: Max, the Conservation easements that the Kauai Public Land Trust owns
is related only to the development, right? The maintenance of the property and other uses other
than the housing is whose responsibility?
Mr. Graham: The applicant as owner is responsible for maintenance but the restrictions
apply to be enforced by the Kauai Public Land Trust. You have two easements but the language
in both easement documents is the same so it applies to the entire area covered by the easements,
the 148 acres.
Mr. Nishida: So as an example if they wanted to fence and ranch the area would they
need to go to Kauai Public Land Trust for approval?
Mr. Graham: To fences up, no, to ranch the area, it is an Ag. use, no, that is allowed.
Mr. Texeira: Max this is in regards to the streams we had discussed. I always thought
half of the stream would be owned by the abutting landowners but it seems like this is an unequal
distribution in terms of half of the steam is owned by the landowners on each side of the stream.
But it seems like it is not the case where the meets and bounds show that it is much less than that.
Mr. Graham: Actually I think when they do the surveys the actual survey, not the survey,
the actual ownership is to the middle of the stream as described in the deed but when they do the
survey they don't do actual... they don't try to figure out where the middle of the steam is. So
what they do is they just give you points on a line and when you look at that map there it just
looks like straight lines. But I believe most of that river is, the river bed is part of the property.
Mr. Texeira: Thank you.
Chair: 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...
Mr. Michael Kaplan: My name is Michael Kaplan, I am a Kilauea resident. The
applicant mentioned some further improvements to the road and I was just wondering what they
were intending on.
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Staff: According to the file and the report that I read it is the drainage grading for the
edges so the you are not overflowing and doing a complete runoff down in the area as well as the
crushed coral.
Mr. Kaplan: So no paving.
Staff: No.
Chair: Is there anybody else in the public, seeing none I will bring the meeting back to
order, what would be the pleasure of the Commission? This is a status report so we would just
be receiving it for the record.
Ms. Morikami: Mr. Chair, for item B.1 and B. La, move to receive it for the record.
Ms. Matsumoto: Second.
Chair: Any discussion, if not all those in favor say aye, opposed, motion carries.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to
receive the status report and staff report for the record, motion carried unanimously by
voice vote.
Commission brought back item B.2 under Communication previously tabled.
Chair: Item B.2 from Dan Green relating to a presentation on "Hydrogen on Kauai", is
the correspondent here by any chance? If we could get the department to give us more
information before we just put it on the agenda.
Mr. Costa: Well it is a communication to the Commission that requests time at the
October 28 meeting to provide a presentation on hydrogen energy and so this was forwarded to
the Commission to decide whether they were interested in having this presentation prior to that
organization showing up.
Chair: As the Chair I would just like again to ask the department before we put it on the
agenda if we could get more information on really what the presentation is going to be and
maybe an outline so we can have it reviewed before we just put a request on the agenda if the
Commission doesn't mind.
Ms. Morikami: I am just wondering on this item, Dan Green with "Hydrogen and
Kauai", is that an organization? Who are they?
Chair: In our packets all we received was just a letter. I would just like to get more
information and background.
Ms. Morikami: I agree.
Chair: So a motion to receive.
Ms. Morikami: So moved.
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 letter from Dan Green, motion carried unanimously by voice vote.
Use Permit U-2011-1 Class IV Zoning Permit Z-IV-2011-1, and Special Mana eg ment
Area Use Permit SMA(U)-201 1 -1 to permit the construction of a new single family residence,
accessory agricultural storage and office structures develo9pment of irrigation well accessory
Planning Commission Minutes
September 28, 2010
10
photovoltaic installation, demolition of structure and archaeological restoration of historical
auwai, rock walls, and terraces in Open-Space 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`6 Highway, further identified as Tax Map Key 5-2-012:019 & 5-
2-021:041:001 (por.) and containing approx. 18.164 acres = Hendrikus Group, Inc. [Director's
Report received 8/10/10, hearing closed 8/24/10.1
Supplemental Director's Report pertaining to this matter.
Staff Planner Lisa Ellen Smith read supplemental Director's report (on file).
Chair: Are there any questions for the planner? Seeing none I will ask the applicant if he
wants to come up and add anything.
Mr. Ben Welbourne: Good morning Chairman Raco and Commissioners, Ben
Welbourne, Landmark Consulting Services.
Mr. Hendrikus Shraven: Good morning, I am Hendrikus Shraven.
Mr. Welbourne: Nothing to add, I think the reason we are back here is the matter of the
illegal structures so we would like to first hear what the Commission has to say.
Chair: Are there any questions for the applicant? We have no questions so is there a
presentation or anything that you want to add to the report?
Mr. Welbourne: In that case we did have some dialogue regarding the unpermitted
structures and I guess I just want to reiterate a few points that we made during the last meeting.
We did look at the comprehensive zoning ordinance and there is no provision in the CZO for
after the fact permits, the term its self is no defined, neither is the term illegal structures. We
consulted with the Planning staff and also with some legal counsel and in the past our
understanding that the precedence or common practice has been to allow for the filing of permits
and encourage the applicant to comply with both zoning and permit requirements where there are
building and zoning violations. At the outset of this permitting effort knowing that we were
dealing with some illegal structures we did meet with Planning staff, Lisa Ellen Smith, and Les
Milnes came out to the property, looked at the site map, looked at the structures, and we
proposed to remedy the situation by obtaining zoning and building permits for those illegal
structures. And that is the basis of what we submitted to Planning and the decision that is really
before the Commission today.
Just to kind of further some more information that we did find out, although the zoning
ordinance doesn't address after the fact permits the grading ordinance, Chapter 22 of the Kauai
County Code, does provide for what is commonly referred to as an after the fact grading permit.
And similarly the building code, Chapter 12 Kauai County Code, specifies that if construction is
done without a permit the violator shall pay and inspection fee equal to the permit fee and the
common practice is to allow the issuance of the after the fact permits if the structures can be
made legal. And in this case we believe they can be. And I also want to reiterate that since they
acquired this property the structures have been vacant so we are talking about illegal structures
but we are not talking about illegal use of structures, they have been vacant and we are hoping to
resolve this and make them legal before any use occurs.
Chair: Are there any questions or comments? Let me see if there is anybody in the
public that would like to testify on this agenda item.
Ms. Maka`ala Kaumoana: Good morning Commissioners, Maka`ala Kaumoana, Kilauea
resident. I reviewed this application fairly thoroughly and I chose not to testify on the previous
item because I was an intervener in that process and well represented. And I want to simply
remind the Commission that one of the conditions that we attached to the previous matter was a
water quality testing regime, one prior to cleaning to get a baseline and one during and one post.
Because this is an active area which Commissioner Blake reminded us all of, for traditional
activities and gatherings, the quality of the in-stream resources of Kilauea Stream are important
for people's rights and for their (inaudible).
Planning Commission Minutes
September 28, 2010
11
So I ask this Commission to consider the possibility, it doesn't have to be expensive, it
doesn't have to be extensive, but I believe that it is a minor condition that might truly be
beneficial especially since this application includes some auwai work. They are going to be wet.
And while I am not opposing any of the work they are suggesting because I think restoration is a
good thing in this place and I believe these people will take care. I don't see any item in their
application addressing water quality. And so as is my vent, it is what I do, this is an item I would
like this Commission to consider. Again it doesn't have to be a big deal, they could hire any of
the local consultants, maybe just an item requiring them to consult the local hydrological
engineering firm or whatever. I am not asking them to spend a lot of money but I would like to
know that disturbances to the water ways are minimal and are measured and are known. This is
in addition to those requirements that you would apply related to BMP's. We all know how well
or not well silt fences function.
So I think especially since this project includes auwai I would like to see some, at least
three, one pre, one during and one post to make sure that the turbidity and siltation is identified
and controlled and mitigated as best as possible. And I am happy to provide consultation with
the applicant if that is something they would like to know more about, mahalo.
Chair: Maka`ala, you were talking about this application for the Hendrikus Group?
Ms. Kaumoana: I am because they are talking about auwai restoration. I was referring to
the previous one, you know I was an intervener in the Somers one and this was a condition that
we attached. One of their 18 conditions talks about water quality work, again, not a big deal.
Mr. Nishida: Maka`ala, can you describe that process that you are asking the
Commission to apply to this?
Ms. Kaumoana: Yes, I would ask that baseline data be collected in the water of the outlet
of the auwai to Kilauea Stream now so that we know the levels of suspended solids, so that we
know the levels of turbidity at that location. Then I would ask that that same investigation occur
when they are working, during their working, again especially because they are messing with the
auwai. And then I would ask that when they are all pan and they claim all pan, they say they are
pan, then somebody goes back and does it again to make sure that the work that they did, did not
negatively impact the in-stream resources of Kilauea Stream. I care also about the auwai but that
is totally on their property and I believe they care too.
Mr. Nishida: Physically it means somebody going down to the outlet and you want to
take it from the steam it's self?
Ms. Kaumoana: Yes because that is the impact that ...that is the public trust is the stream
its self.
Mr. Nishida They take a water sample, it gets sent out to a lab, somebody locally can go
over and take a water sample.
Ms. Kaumoana: There are plenty of people locally that can.
Mr. Nishida: And then that gets sent off to a lab and they come back with...
Ms. Kaumoana: A level.
Mr. Nishida: So that would be sedimentation, turbidity...
Ms. Kaumoana: We are looking for suspended solids and turbidity is a measurement
they can take and see right on site, it is a measurement that comes up. I am not interested in the
bacteria. I am not interested in some of the more expensive things but I am interested in what it
is now, what it is while they are working, we have to protect the o`opu and the opai.
Mr. Dahilig: Commissioners, if I can just ...if any Commissioner (inaudible) possible
condition as set forth by the testifier, as Max Graham mentioned on the previous agenda item the
Planning Commission Minutes
September 28, 2010
12
County is undertaking a stream cleanup of Kilauea Stream and Wailapa, Kilauea River and
Wailapa Stream and mainly it is to remove sediment and other debris that was in place during the
Koloko Damn breech. The turbidity in the river is at a high level because of a lot of the
emplacement of sediment that washed down. And in order to potentially facilitate the type of
condition that the testifier is asking for the project that is being proposed by the County will run
approximately until April to May of next year upon which time there will be time afterwards for
the river to actually re-equalize and come back to a level that is post construction. So if you are
looking at it from a baseline, trying to determine what a baseline is it may be difficult to
entertain, to identify what that baseline is given the ongoing construction that will be going on up
until spring of next year.
Ms. Kaumoana: However I could be wrong because with all due respect the work that
the County is doing still has to qualify under the Clean Water Act and I would assume that they
will be doing some water quality. It may be minimal but they will have to be doing some to
show that their work didn't make it worse.
Mr. Dahilig: That is correct. The County has received an NPDS permit to proceed with
construction. The Governor has waived all State requirements pertaining to environmental
because this is an emergency clean up.
Ms. Kaumoana: Right but the Clean Water Act is Federal.
Mr. Dahilig: So we do have an NPDS permit. Again as a caution to the Commission
should this type of requirement be inserted as part of the permit conditions that baseline
scientifically may not be an accurate reflection of what the turbidity levels are, especially the
suspended solids that are in the stream level given the ongoing construction.
Ms. Kaumoana: So it should show great improvement.
Mr. Dahilig: Just as a caution to the Commission.
Ms. Kaumoana: Mahalo, I appreciate it Counsel and also would make note that those
two efforts, they can talk to each other and figure out where the mud is going. And I don't know
what their restoration timeline is.
Ms. Matsumoto: In the Somers conditions which condition is it?
Ms. Kaumoana: It is one of the 18, it says that baseline water quality analysis will be
conducted again just as I described here, one during construction and one when pan.
Chair: Any more questions?
Mr. Nishida: Regarding this baseline data, right now just because there is that baseline it
doesn't mean anything as far as any kind of regulations or liability for the Hendrikus Group you
just want data regarding that particular outlet into the stream its self?
Ms. Kaumoana: All data is good and because they are working in the auwai and the
auwai leads to the stream I think it is part of their Kuleana. I would think they would want to.
Mr. Nishida: To know what the impact is.
Ms. Kaumoana: Yes because it may in fact improve things, it should. If they truly clean
the auwai then it should improve the quality of the water for the steam and it should improve the
in-stream resources as well. If I was the applicant I would want to show that. And again it is not
expensive. I think the dollar amount we put on Somers was five grand, that is really minimal and
we are doing a lot of volunteer stuff for that. We have actually been able to leverage that with
some Stanford work which has been very helpful to Kilauea but it doesn't have to be a big price
item. It needs to be correctly and with qualified people so that you know your data is true.
Chair: With your experience you are saying the five thousand is a minimal.
Planning Commission Minutes
September 28, 2010
13
Ms. Kaumoana: It is minimum and that is all I can offer because I....
Mr. Nishida: Regarding the use of the auwai, this particular auwai is probably not in use
right now so what is the requirements regarding opening up the auwai again, diverting the water
to the auwai?
Ms. Kaumoana: Department of Health. It will require a Department of Health permit, it
will be part of the Clean Water Act, it will be part of all of that.
Mr. Nishida: That is covered under a condition within that...
Staff: Yes sir.
Ms. Kaumoana: This process will help them. It shows credibility, it shows Kuleana, it
shows trying to be helpful.
Chair: Any more questions?
Mr. Texeira: Mr. Chair, could we have the applicant comment on what was just
mentioned right now?
Chair: If there are no more questions for Maka`ala, before I ask the applicant to come up
let me see if there is anybody else in the audience that would like to speak on this agenda item,
seeing none then you can come up.
Mr. Welbourne: Ben Welbourne. Commissioners, if you have the application in front of
you and you look at exhibit 6 you will see kind of near the bottom of the project area the auwai
that is on this property is really an isolated portion of an old auwai system that is disconnected
from the stream. And while it is part of the archeological inventory survey and it was identified
in the survey we are not proposing to restore that as an active auwai, doing so would require
extensive beyond permitting beyond the scope of the project involving other property owners,
Army Core of Engineers, and the State Clean Water Branch and we are not proposing to do that.
Impacts to the waterways would be strictly from runoff into the streams from inappropriate
handling of the grading activities or grubbing activities that are proposed but the Hendrikus
Group has come forward with some amazing progressive BMPs that are covered in the appendix.
So we are not proposing to restore water flow to the auwai. Hopefully some day we could get
there but it is going to require a whole separate permitting matter. And regarding Maka`ala's
comments I will let Hendrikus address that.
Mr. Shraven: I am not opposed to having any water samples done. We work with this all
the time because I do a lot of erosion control and wetlands installations so we deal with these
types of things all the time. And again I have no problem with doing the water samples if that is
needed.
Chair: Commissioners, any more questions for the applicant? For the record the
applicant is okay in doing a water study plan.
Mr. Shraven: Yes, that is fine if it is needed.
Mr. Nishida: I have a question for Maka`ala after.
Chair: Any more questions for the applicant?
Ms. Morikami: Based on what our attorney said the timeframe for the K7auea Stream
cleaning, what is your timeframe for the relocation of these dwellings? What is your timeframe
for the completion of the project from beginning to end?
Mr. Shraven: Well it depends a little bit as to when we get the permits so we will need a
grading permit and grubbing permit after we get the zoning permit and then we will see what our
timeline is. We hope to pretty much do this within the next year and a half.
Planning Commission Minutes
September 28, 2010
14
Ms. Morikami: So based on your timeframe, I mean what you described, that would be
completed before they started.
Mr. Dahilie: I guess just for clarification's sake, I am not a hydrologist so I don't know
how long it takes after the stream bed has been disturbed for it to equalize and come back to a
condition that can actually determine what a baseline is. I suspect that it's a long period of time
after the actual cleanup and the disturbance of the stream has been completed. So again I don't
want to give an opinion because I am not a hydrologist but it would be some period of time from
a scientific standpoint to let that area re-equalize after all that sediment has been taken out and
the waterway has to readjust to what the floor of the bed is.
Ms. Morikami: And upon completion of that work. If they are in the process of already
proceeding what would that sample... how would it be beneficial if we are in the process of doing
that?
Mr. Dahilig: I guess if the Commission would like a condition and would like to
determine what a real baseline is of the stream or the river and the stream then it would probably
be wise to have the condition not be required to be met until maybe a year to a year and a half
based on the applicant's time schedule. Maybe the planner would like to add to that.
Staff: There is one stream and one river on the property of record as noted in the site
plan and if you are looking at this you might want to suggest three, preconstruction, during the
construction and then post construction if it is going to take a year and a half. However I feel
that as counsel has suggested it may be degradated by the river sedimentation and debris work
that is scheduled to begin soon.
Ms. Morikami: The concern I have is we are working on two time schedules, one, the
cleanup of the stream and one, his project and so if we are going to require the water baseline
study prior, during, and after, the measure that the cleanup effort should be completed because
there is no purpose in doing it at the same time because what would that show. We won't know
the results until way after that and I was just wondering and that is why I asked the question on
the construction schedule.
Mr. Shraven: Can I ask a question?
Chair: If you could hold on, if counsel wanted to...
Mr. Dahilig: Again, I am not a hydrologist so I can't really comment on when would be
an appropriate time to sample the turbidity of the waterway. If the applicant is deciding to
undergo construction and completes construction by the time... well starts construction after the
project has been completed on the County's side then that is one thing. If there is, let's say he
completes the grading before the County's project is done then he may end up with a false
baseline.
Ms. Morikami: That is what I am trying to express is that there is going to be overlap and
so what would that study end up being?
Chair: In my opinion it is two different triggers, one, the County will be doing their
study and I wouldn't want to have the applicant be withheld on another trigger. I mean if he gets
his permits and he is ready to go let him go, the study would be paid one, by him, and one by the
Somers group. So having both overlap by two different triggers is really hard to coordinate and I
wouldn't want to have the Hendrikus Group wait for the County to get their approval of their
studies. It would just be two different studies.
Ms. Morikami: And that is the concern I am raising. I share your view.
Mr. DahiliQ: And maybe just as a suggestion because again, interpreting what the
testifier's comments were, they would like to see what is a post construction baseline and then
whether the auwai system should be activated or any other activities after the fact are affecting
the turbidity of the waterway. Maybe having a post sampling after a period of time, after the
Planning Commission Minutes
September 28, 2010
15
construction is completed, after the certificate of occupancy has been given to the applicant
would be a more appropriate means.
Chair: Any more questions for the applicant? If not, closing comments?
Mr. Shraven: I have a quick question, where do you propose to take the samples?
Because if you are taking the samples at the end of the creek, before the creek actually goes into
the river, if the County is below that doing their work then that would still be an accurate reading
of what we would be putting in the water at that point in time. So it wouldn't be like you would
take a sample in the middle of the river way down stream, you would take it at the mouth of the
creek as it goes into the river. Those should not be impacted by what happens down the river at
all.
Mr. Welboume: In talking to Hendrikus when Maka`ala was making her comments I
think that Maka`ala mentioned the more data points the better and I think that we could do
something pre-construction, during construction, and post construction and coordinate our efforts
with Maka`ala. I think we can add to the knowledge of what is going on by a fairly simple
condition. And just re-iterating on what Hendrikus said, the unnamed stream has a pretty steep
gradient and there is plenty of flow in there so we are not going to be affected by what is
happening in Kilauea Stream beyond just a short distance up that unnamed stream.
Chair: Let me call Maka`ala up, there is a question by Commissioner Nishida.
Mr. Nishida: Maka`ala, they are not going to restore the auwai so are you still interested
in getting these data points?
Ms. Kaumoana: I am and the good news is we have some baseline already because the
baseline for Somers is pan, so we have some baseline for Kilauea Stream its self. There is some
Department of Health stuff that is going on so for the stream its self what I was interested in is
the auwai. I guess I don't understand the term restore. To me if you restore an auwai it goes
somewhere, it doesn't become a pond. Anyway, I think what Mr. Hendrikus said is spot on, if
we can sample where anything coming straight down that stream, and steep makes it worse, not
better, into the Kilauea Stream, that makes good sense. Timing is an easy thing and I am not a
hydrologist either, I hire them, but what I am suggesting as a condition is that they retain, that
they identify and retain expertise to provide this and I can help them with that. And that would
also coordinate with whatever the County is doing.
Mr. Nishida: I think one of the questions they had was where you wanted to take the
baseline.
Ms. Maka`ala: And I think that is up to a hydrologist to determine. It is a very good
question and I am not the answer and at this point I think the landowner has the best sense where
his impacts might be and that is always a good thing. But what I am asking for is a condition
that this concern for the water is part of the permit and that they identify and solicit the opinion
of a qualified hydrologist. And Ben is willing to do that, they all want to do the right thing. I am
happy for the condition that we put in Somers because I think it shows that we care about our
auwai and our streams and I want to continue that pattern and that behavior for this Commission
because I think it is the right thing to do.
Chair: I agree with you, it is always a good thing to know what the stream is doing and
(inaudible) development or any kind of work around the stream at least we would know and have
factual backup information, when it happens, where it happens, how it happens is all logistics,
thank you. Is there anybody else in the public that would like to testify on this agenda item?
Seeing none I will bring the meeting back to order, Commissioners, this is decision making time
so what would be the pleasure of the Commission?
Ms. Morikami: Mr. Chair, can we ask the planner to work on some language regarding
that water baseline study?
Chair: Sure, I think the planner has crafted a condition and she can read the draft.
Planning Commission Minutes
September 28, 2010
16
Staff: Commissioners, this is a draft that you can modify, this would be required to be
amended condition No. 10, "The applicant shall provide for three water quality testing's, pre-
construction, during construction, and post construction." And can be modified as the
Commission desires.
Ms. Morikami: You are saying No. 10, what is No. 9?
Staff. No. 9 would be "Pursuant to Chapter 205 a farm dwelling agreement would be
required prior to building permit approval."
Chair: That was in the previous Director's report that we received the first time.
Mr. Texeira: Mr. Chair, going back to condition No. 10, you mentioned three water
quality testing's, what about the location?
Chair: We could enhance that and point out the two locations at the mouth of the streams
or the hydrologist could tell us. We are not the experts here.
Staff: "Applicant shall provide for three water quality testing's pre-construction, during
construction, and post construction as identified by a hydrologist."
Chair: Are you good with that? Before we go on that condition Commissioners, what I
would like to do is either entertain a motion for approval or denial and if we go into the approval
if we could then craft a condition and move forward. We are kind of jumping ahead of
ourselves. So with that is there a motion on the floor?
Ms. Morikami: Mr. Chair, on item D.1, Use Permit U-2011-1, Class IV Zoning Permit
Z-IV-2011-1, and Special Management Area Use Permit SMA(U)-2011-1, move to approve as
recommended by the department pursuant to the applicant's request.
Mr. Texeira: Second.
Chair: With that I will call for discussions if there is a condition that wants to be crafted
and reread. Let me just entertain a motion.
Ms. Morikami: Mr. Chair, move that we insert condition No. 9 as stated on the
supplementary No. 2 report and also condition No. 10 as we discussed regarding the baseline
water study and I would like the planner to read the language incorporating what Commissioner
Texeira included.
Ms. Matsumoto: Second.
Chair: So if we could have it read for the record.
Staff: Condition 10, "The applicant shall provide for three water quality testing's, pre-
construction, during construction, and post construction at locations as identified by a
hydrologist."
Chair: Let me take a two minute recess to craft that being that the Director wants to have
his input on that, so caption break.
Commission recessed at 10:48 a.m.
Meeting was called back to order at 11:07 a.m.
Chair: We had a motion on the floor, if you want to go ahead and read it again.
Staff: Thank you Chair. With the expertise of the public and my Director, Mr. Costa, we
have crafted the following language for condition No. 10, "Applicant shall provide for three
water quality samplings and analysis, pre-construction, during construction, and post
Planning Commission Minutes
September 28, 2010
17
construction at two locations, a) along Kilauea Stream at the northern most boundary of the
property, b) along unnamed stream at the northern most boundary of the property."
Chair: Did everyone catch that?
Mr. Kimura: On the unknown stream, that water comes up from, what was the property,
Eric Taylor, so if it goes down from Eric Taylors and goes down to Chris (inaudible), the Foo's,
past Pheluger's house on the bottom. So if the water quality comes out poorly who is
responsible for that?
Mr. Costa: I think the purpose of the test is not to try and ascertain who upstream but
whether activity on this property affects that water quality.
Mr. Kimura: So they are going to do one before and after.
Mr. Costa: Before, during and after. Before to establish what the baseline is, during, if
there was any change, and then after if there was any change.
Staff: I believe that these are data points as were requested by Maka`ala.
Chair: Any more questions on the motion on the floor to be added to condition No. 10 as
read by the planner, if there is no more discussion all those in favor of that condition say aye,
opposed, motion carries.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to add
condition No. 10, motion carried unanimously by voice vote.
Chair: Any more conditions on the main motion to approve, or any additions or
deletions, hearing none all those in favor for approval say aye, opposed, motion carries.
On motion made by Paula Morikami and seconded by Herman Texeira, to approve
supplemental Director's Report as amended, motion carried unanimously by voice vote.
Use Permit U-2010-22 and Class IV Zoning Permit Z-IV-2010-24 to establish and
operate a Go-Cart track and concession on a portion of the former Hale Kaua`i/Honsador
Lumber Yard situated at 5633 Kawaihau Road. The property is located on the south side of
Kawaihau Road, ap2rox. 300 ft. west of its intersection with Kuahale Street, further identified as
Tax Map Key 4-6-037:067, Kapa`a, Kauai, and containing a total area of 3.161 acres = Go-
Karts Kauai. [Director's Report received 8/10/10 and hearing closed 8110/10.1
Request for Withdrawal (9/17110) of Use Permit U-2010-22 and Class IV Zoning P ermit
Z-IV-2010-24 to establish and operate a Go-Cart track and concession on a portion of the former
Hale Kaua`i/Honsador Lumber Yard situated at 5633 Kawaihau Road, Kapa`a, Kauai.
Letter (7/28/10) from Jim Mayfield, President, Island Business and Commercial
Brokerage leasing agent who initially proposed the subject property to tenant, explaining why
property was chosen, and to provide personal observations.
Letters in Opposition/With Concerns to Application from:
1. Sunny Gail Mitsui (8/14/10)
2. Patrick Kittler (817/10)
3. Kathy and Randie Peters (8/15/10)
4. Gene N. Quint (8/17/10)
Chair: Our planner is Ka`aina and being that this is a withdrawal, are there any
comments or questions? Is there anybody in the public that would like to testify on this agenda
item? Seeing none I will entertain a motion to receive into the record for withdrawal.
Ms. Morikami: Mr. Chair, for item 3, Use Permit U-2010-22 and Class IV Zoning
Permit Z-IV-2010-24, move to receive that as well as communications a, b, and c.
Planning Commission Minutes
September 28, 2010
18
Mr. Kimura: Second.
Chair: Any discussion, if not all those in favor say aye, opposed, motion carries.
On motion made by Paula Morikami and seconded by Jan Kimura, to receive U-
2010-22, and Z-IV-2010-24 and communications a, b, and c, for withdrawal, motion
carried unanimously by voice vote.
Zoning Amendment ZA-2010-11 for a bill to consider the addition of an additional
section to Chapter 8, Article 24 relating, to the imposition of civil fine authority for the Count
Kauai Planning Department= County of Kaua `i Planninz Commission. 1Hearing closed
8/24/10, deferred 9/14/10.1
Staff Report Pertaining to this matter.
Planning Director Ian Costa read supplemental report (on file).
Mr. Kimura: How long before your guys do fine, or the other three Counties, before they
do start fining the people or the violators?
Mr. Costa: Well usually in the field the inspector would note an apparent violation and in
all three cases other than Maui, Maui was the only one that less than 5% they actually issued a
ticket in the field. And as expressed by all of them in most cases they prefer to go back to the
office, double check the files and research that permits have been issued for that particular... or
that that is indeed a violation. So those fines are served somewhat immediately after confirming
that there is a violation through certified mail.
Mr. Kimura: And in the meantime the violator has time to correct the violation?
Mr. Costa: I suppose if the inspector notifies someone on the field that he suspects a
violation but in all cases I think all the inspectors echoed that they felt uncomfortable actually
issuing the fine in the field. I guess the main reason being they didn't feel they were ...well they
preferred the Director to sign the notice if you will and put together the evidence needed to
confirm the violation. And again the other reason being through certified have the landowner in
writing, acknowledge receipt.
Ms. Morikami: Mr. Chair I have a couple questions for the Director. Based on this an
illegal dog house versus an illegal setback violation the fine would still be 1,000 dollars, it
doesn't matter the severity of the offense?
Mr. Costa: That is correct.
Ms. Morikami: So let's say you impose a 1,000 dollar fine for the dog house, how much
time is it from the time you fine the 1,000 dollars does the "per day" 1,000 dollars take affect?
How much time do you give them between the first 1,000 dollar fine and 1,000 dollars per day?
What is the time between the two?
Mr. Costa: Again, echoed by all three countries when they send out their initial notice it
requests that the landowner contact the department to provide a remedy. So there is an
opportunity for the landowner to provide a remedy before the fine is actually levied and if they
don't respond or provide an acceptable response within the timeframe allotted, and that
timeframe can be anywhere up to 30 days, it can be 15 days depending on the severity. So it
does give the landowner a chance to correct it immediately without facing a fine. However if no
action is taken then that first fine is automatic.
Ms. Morikami: Let's say the first fine was imposed then explain to me how...when does
the daily fine take affect? How much time from the first fine versus the daily?
Mr. Costa: Again they do in all cases ask for a proposed plan for compliance within
reason so in other words if there is say an addition that needs to be torn down they give some
Planning Commission Minutes
September 28, 2010
19
reasonable leeway for the work to be done. And if that work is not done or addressed at all
within that reasonable timeframe then they levy the daily fine for every day after that.
Ms. Morikami: So it is not consistent, each case it taken independent of each other?
Mr. Costa: Somewhat, to recognize the varying severity and willingness I guess if you
will of the landowner to correct the violation.
Ms. Morikami: In our last meeting I thought the concern was that for minor violations
versus major we would have some kind of guidelines based on what you found out from Maui,
the Big Island and Oahu, it is just a flat rate and then they would try and resolve it.
Mr. Costa: Yes and all their finds were for the daily fines not to exceed so they do
apparently make some discretionary calls in terms of whether they fine the maximum per day or
less than the maximum per day.
Ms. Morikami: And based on your proposed section A we are saying we are going to
eliminate "not to exceed". So whether it is a dog house or any other major violation you can't
say the dog house it 200 dollars a day and the setback violation is 1,000, you don't have that
option based on this recommended condition.
Mr. Costa: That is correct.
Chair: The severity, it is still a violation not matter what it is.
Mr. Costa: And I would admit after talking to the three counties and seeing clearly that
two out of the three have a maximum of 500 dollars that was a consideration but from testimony
from Maui it seems to work well for them. And obviously that can be appealed to in this case
the Commission or in their case whatever body handles those appeals.
Ms. Morikami: Thank you.
Ms. Matsumoto: Does Maui have a "not to exceed" phase?
Mr. Costa: Yes.
Chair: Any more questions for our Director?
Mr. Blake: Especially with grading violations from what I gather these violations go on
daily and the go on forever, that is the complaint. So if the policy of the County is against
entertaining violations and to urge the public to apply for the permits they are supposed to apply
for why not have the inspectors issue the ticket in the field so that if fines are imposed they are
imposed from the day the ticket is issued instead of however long it takes for us to get our act
together and get them with a certified mail to the (inaudible). And if he doesn't pick up his mail
that is another two or three weeks and then we have to go figure out how we are going to serve
him, or we going to tack it to his door or serve him by newspaper notice or so forth.
Mr. Costa: I guess I will respond to that in a couple parts. First of all with respect to
grading the Department of Public Works administers grading and they do have a separate fee or
fine schedule for that. We only get involved when grading occurs in the SMA through State
statute. There are fines, I believe it is 10,000.
Mr. Blake: That was just an example. You can pick another example if you want.
Mr. Costa: Well since I am touching on it, the SMA, 10,000, initial fine, and 10,000 a
day not to exceed 100,000. And all Counties treat SMA violations a little bit different, they
follow those much steeper fine schedules provided by the State statute. And then I guess the
term "the department getting its act together", I guess I would call it due diligence. But in
talking to the three counties all three of them felt uncomfortable issuing fines on the spot other
than like the extreme example that was pointed out by Maui is if they are building a revetment or
pouring concrete somewhere along the water's edge. But anything else I think it was clear that
Planning Commission Minutes
September 28, 2010
20
they ...once you issue that ticket it is done and there is no time to retract that after doing due
diligence. But that was just based on speaking to each of the three counties. It is just kind of
surprising; actually I would have thought the city and County of Honolulu would have had the
steeper fines but apparently not. But it has been a tough one, I mean there are at least in my
experience landowners that disregard what the laws are and there are landowners that ...I have
seen cases that have grading where the landowner just really thought he would just dig a little
area and because of slope and topography it was like 600 cubic yards or something like that.
But again I guess we don't necessarily want to be caught in having to judge whether
someone intended or not intended, did not intend to do something. But the spectrum of
violations are unlimited and most people don't realize a dog kennel or chicken coop actually
requires a zoning permit and so you get many of those. Or another case is where you pour a
driveway, if you call the Building Department and ask them if you need a building permit to pour
a driveway they will tell you no because a building permit is not required. So people don't
realize a zoning permit is a separate thing that has to be considered as well. So hitting somebody
for a 1,000 dollar fine for something they may have checked with Building. A fence under 6 feet
doesn't require a building permit but does require a zoning permit so there is a whole spectrum
of violations that could occur.
Mr. Kimura: Does one department let the applicant know that they don't need a permit
from...?
Mr. Costa: Through years of work they do, I believe now, instead of just saying no, no
permit is required they do say but you might want to check with the Planning Department.
Something like a chicken coop or dog kennel, they would not require a building permit or a fence
along your property line less than 6 feet.
Chair: Any more?
Mr. Blake: So we are going to be in line with everybody except Maui, except for the
amount of the fine?
Mr. Costa: We will be in line with Maui in terms of the...
Mr. Blake: With Maui, Oahu and Big Island are 500?
Mr. Costa: Right.
Mr. Blake: So the inspector goes out and sees something that he suspects is in
appropriate, comes back to the department, does his check at the department and at that point
with the Director's approval issues the ticket or violation report or whatever it is going to be
called.
Mr. Costa: The only portion we would not be in line, well aside from the amount which
we would be in line with Maui only, but with respect to the daily fine we would not be in line
with any of them because all three, their fine is not to exceed that amount.
Mr. Nishida: The Director covered my point but I just wanted to mention that as far as I
am concerned especially on these after-the-fact permits or these civil fines or whatever, the CZO
and zoning regulations is not a speed limit sign where it is right there when you are violating it.
You don't know in some cases. My neighbor had a 10 by 10 storage shed that was in violation
whereas a 6 by 6 or a smaller one wouldn't be in violation so he had to take it down. And then
from the department's standpoint they go out there and inform the landowner immediately, I
think that is included in you guys standard procedures because of the fact that zoning and the
CZO or building permit... well the zoning permit is a little bit different because I think most
people know that you need some kind of permit if you are going to add a shed to your house or
whatever. But it is the same thing, the requirements are in this book that is wherever it is, you
don't know where it is and so you go out there and you get the skills so you slap up a shed so
you can puleho because your daughter is coming home and you put something up that is going to
cost you 500 dollars. But then to fix it you have to hire a draftsman to come out and you have to
go through procedure with the Building Division and all that. I am not saying it is not a violation
planning Commission Minutes
September 28, 2010
21
but it is a difference in how you apply a fine or whatever and I think the department is well
aware of the problems regarding that.
Mr. Costa: One of the other issues too is and this really only has bearing on those
improvements that require a building permit and whereby a building permit is applied for and
issued, you call for an inspection and that is the building inspector. We have worked with them
for years to try and also get notified so that we can inspect something prior to it getting built but
they do not. So often times when we those through complaints and they are already there and I
must say not through the notice of the building inspector, they don't necessarily notify us. They
just make sure their building code requirements are met even if the building is in the wrong
location. But at is one of the tougher things we have to deal with. Or they will simply say you
don't need a building permit for this. And the example is the small shed, any of the Sears pre-
manufactured type sheds do not require a building permit but they do require a zoning permit.
So I don't believe Home Depot tells you, you better go check with the Planning Department. So
they are all out there and many of us have them.
Ms. Matsumoto: This is about the language here, in the first sentence, third line, so it
says "violations served, by mail or deliver with an order pursuant to this section", is it certified
mail?
Mr. Costa: Yes.
Ms. Matsumoto: So do you want to say certified mail? That is one question.
Mr. Costa: It should be "delivered".
Ms. Matsumoto: And I wanted to ask is it hand delivered?
Ms. Costa: 99% of the time it is certified mail. I am aware of certain instances and
certain landowners that routinely do not accept the certified mail and so the inspector hand
delivers those once they are not accepted. That is not the common practice we just know where
this person is.
Mr. Kimura: So they know if they have a certified mail coming from the County it is a
violation so they just don't accept it?
Mr. Costa: Yes. So our process is we attempt to mail it three times. If it is not received
or accepted then either we hand deliver it. Our only other recourse is through cooperation with
the Sheriff's Department and serving it.
Mr. Kimura: Why three times, if they don't accept it the first time...
Mr. Costa: I will have to find the basis of that. I don't know if counsel knows what rule
that is.
Ms. Matsumoto: So would you say it like this...
Mr. Costa: And I think that might be a postal thing, they will actually try and serve it
three times before it is actually returned.
Mr. Kimura: Once they deny it they send it right back or they keep trying to bring it
back?
Mr. Costa: I believe they return it if somebody physically does not accept it.
Ms. Matsumoto: So just for language then would you say...
Mr. Costa: Include certified mailing.
Planning Commission Minutes
September 28, 2010
22
Ms. Matsumoto: Something like "violation served, by certified mail, delivered, or served
with an order pursuant to this section." Do you want to say served also just to let people know
that this is how it is going to happen? These are one of the three ways that it is going to happen.
Mr. Costa: Yes and it might be prudent to add "personally served" or "physically
served".
Ms. Matsumoto: Yes, you can decide on this on what it would be. Do you want to make
a distinction between something that is hand delivered and served?
Mr. Costa: Not necessarily, it is either mail or physically served.
Ms. Matsumoto: So you can say by certified mail or served.
Mr. Dahilig: Commissioners, maybe I can just clarify the phrase "served", "serve"
essentially refers to service of process and there is a number of ways that service of process can
occur. They are both set forth in the Hawai `i Rules of Civil Procedures as well as the Hawai `i
Rules of Criminal Procedure and so that entails a number of methods including mail, personal
delivery, posting, etc. And so by leaving the phase "serve" in there it is pretty clear as to how
service of process is going to be conducted and it can be done in a number of legal ways.
Mr. Costa: So the term "served"...
Mr. Dahilig: The term "served" would suffice.
Ms. Morikami: I have one final question, let's say the violator has been served, has been
fined, in the department how do we ensure that follow up is done so that after 30 days or
whatever the time limit is the inspector knows that the inspector needs to go out and if the person
is still in violation then the daily starts? Are we going to have a system where so it doesn't fall
through the cracks? I am just wondering logistically how that is going to happen.
Mr. Costa: Currently each of the inspectors, well the particular inspector that serves a
notice or mails a notice tracks that sort of on a daily basis and I think we can work with our
information technologies department to incorporate that into one of our software so that notice
automatically pops up on a daily basis for those that run its course.
Ms. Morikami: Thank you.
Chair: Any more questions for the Director? Let me suspend the rules 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. I will entertain a motion to receive first and then to either approve or
deny.
Ms. Morikami: Mr. Chair, move to receive this communication, the supplemental report
from the Director.
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 receive
supplemental report, motion carried unanimously by voice vote.
Chair: And a motion for action. If it is approved then it would go to Council.
Mr. Costa: Yes.
Chair: For implementation.
Mr. Blake: A motion to implement?
Planning Commission Minutes
September 28, 2010
23
Chair: Motion to approve.
Mr. Blake: Move to approve the report.
Ms. Morikami: Second.
Chair: Any discussion, all those in favor say aye, opposed, motion carries.
On motion made by Hartwell Blake and seconded by Paula Morikami, to approve
supplemental report, motion carried unanimously by voice vote.
Class IV Zoning Permit Z-N-2010-15, Use Permit U-2010-14 and Special Permit SP-
2010-3 to construct and operate a pavilion consisting of an indoor auditorium, conference center,
certified kitchen, and an outdoor amphitheater on a property located along Kuhi`o Highway,
approx. 1,500 ft. northwest from the Highway's intersection with Kolo Road, K-Ilauea, further
identified as Tax Map Key 5-2-017:028, and affecting a 6.55 acre portion of a 15.17 acre
property = Anaina Hou, LLC. 1Postponed 4/27110, Director's Report received 618/10,
Intervener granted intervener status and contested case hearing scheduled for September 28,
2010, 6/22/10.1
Letters in Opposition/With Concerns to Application from:
1. Ed and Joyce McDowell (6/21/10)
2. Elaine Logan (6/24/10)
3. Lawrence Taubman (7/14/10)
Letters in Support of Application from:
1. Steve Backinoff (4/20/10)
2. Susie Chevalier-Puig (514/10)
3. Keone Kealoha for Kl11auea Neighborhood Association (6/1/10)
4. Gordon Perry & Family (6/8/10)
5. Gary A Pacheco (6/15/10)
6. Samantha Hamilton (6/15/10)
7. William Patterson (6/15/10)
8. Katie Brennan (6/15/10)
9. Faith Collier (6/16/10)
10. Diana Bowman (6/17/10)
11. Kehaulani Kekua (6/18/10)
12. Marcel and Lori Persoon (6/18/10)
13. Deborah Weaver (6/19/10)
14. Steve Whitney (6/20/10)
15. Markeeta Smith (6/20/10)
16. Rebekah Anderson (6/20/10)
17. Jennifer Stetts (6/20/10)
18. Maren Orion Oppenheimer (6/21/10)
19. Brian Lansing (6/21/10)
20. Amanda C. Gregg/Theresa Koki (6/22/10)
21. Elizabeth Kreitzer (6/22/10)
22. William Eckert (6/22/10)
23. Jody Linn, Cassiah Limm, Skyler Wilson (Undated Received 6/24/10)
24. Katie Paul (Undated, Received 6/24/10)
25. Andrew Pendleton (Undated, Received 6/24/10)
26. Edelle Sher (Undated, Received 6/24/10)
27. Chris Jaeb (Undated, Received 6/24//10)
28. Katherine Moves (Undated, Received 6/23/10)
29. Petition -17 Signatures (Undated, Received 6/23/10)
30. Petition - 158 Signatures (Undated, Received 6/24/10)
Appointment of Hearings Officer for Contested Case Hearing for Class IV Zoning Permi
Z-IV-2010-15, Use Permit U-2010-14 and Special Permit SP-2010-3.
Planning Commission Minutes
September 28, 2010
24
Chair: Our planner is Ka`aina, Ka`aina, we just have a letter from our counsel, right?
Staff: Yes, the department has nothing to offer at this time. I think counsel has written a
letter to the Commission.
Chair: So Commissioners, being that this is a contested case hearing and there is no
additional information from the department we can motion to receive item 5.b, the letters of
support of application, 5 through 30, so if we could have that first motion to receive into the
record.
Ms. Morikami: So moved.
Mr. Kimura: Second.
Chair: 5.b and a., all those in favor say aye, motion carries.
On motion made by Paula Morikami and seconded by Jan Kimura, to receive items
5.a, and 5.b, motion carried unanimously by voice vote.
Chair: Before I take the motion to appoint a public hearings officer, this is a public
hearing, again for the community...
Mr. Dahilie: The public hearing is closed.
Chair: It's closed but I would have to accept if anybody wants to speak, so is there
anybody in the public that would like to speak on this agenda item?
Ms. Kaumoana: Mahalo for the opportunity. I wasn't sure so I am not terribly prepared,
Maka`ala Kaumoana, resident, member of Kalihiwai Ridge Community Association and
concerned citizen about this particular site for a variety of reasons. Just to update the
Commission, I am one of the plaintiffs for some other action related to Shearwater protection and
so my interest on this particular development is focused on the potential Shearwater impact on a
professional basis. On a personal basis I live mauka of this site and at my house we can hear the
ocean. For many of the residents of Kalihiwai Ridge who live more makai, they are impacted by
noise from the highway, they can hear the trucks, they can hear the cars on Kuhi `o Highway. I
want this Commission to understand that I cannot, that I hear the ocean, that last night it woke
me up.
And so when we talk about standards for noise and we talk about the rules through the
Department of Health, about impacts of noise, I want to impart to this body my personal,
emotional plea to sensitivity to those of us who are Kupuna, who live mauka, live mauka by
choice for the solitude, live mauka my design, my husband and I do farm. This was land we
could afford. Yes we are one of only maybe four or five brown families up there but we are
there. And we fish and we farm and we care and we will fight hard to keep the peace and
solitude that we experience and we expect. I think that this development can be a tremendous
asset to the community. I am also a practitioner of Hula and I care a great deal about having
venu's for that. However, I want to impart to this Commission that when you are looking at
standards for noise anywhere on this island, it cannot just be what the Department of Health says.
It is not measured in decibels. My peace and peace of mind and ability to enjoy the quality of
life that we all want is not about decibels, it is about what I have a right to and the peace and
quiet of mauka lands, mahalo.
Chair: Is there anybody else in the public? If not I will call the meeting back to order,
Commissioners we are just asking for a motion to appoint the hearings officer for the contested
hearing for Class IV Zoning Permit Z-IV-2010-15 and Use Permit U-2010-14, and Special
Permit SP-2010-3.
Mr. Dahilig: And Commissioners, just for clarification, we have run the professional
services procurement process for this and based on the professional services procurement the
County Attorney is recommending that Richard Nakamura from the law firm of (inaudible)
Chong, Nishimoto and Nakamura serve as the Commission's hearings officer.
Planning Commission Minutes
September 28, 2010
25
Ms. Morikami: So moved.
Mr. Kimura: Second.
Chair: Any discussion?
Ms. Morikami: I just had a question for the attorney, when do you anticipate this
contested case hearing to take place?
Mr. Dahilie: Once the contract is finally executed the instructions to the attorneys
representing the parties is that the hearings officer will handle the logistics of the schedules and
so he will handle the pre-hearing conference as well as the filing of any pre-hearing motions as
well as the hearing. And then he will have to give back a proposed decision and order and
findings of fact for the Commission to entertain. It is similar to the process that we used in the
Femblum case where we had Mr. Kosaka serve as the Commission's hearings office and he came
back after about three months and gave the Commission a draft findings of fact, conclusions of
law to entertain, upon which the Commission adopted. So I can't specify an actual timeline but I
would expect that you would see a lot of activity once the contract is in place.
Ms. Morikami: Thank you.
Mr. Blake: Having reviewed the things that were submitted to us by the proponents of
the development it is obvious that it is supported by people who live in Kilauea and almost half
or more that live outside of Kilauea. And I am just using the mailing addresses and their stated
zip codes to determine that. What I noticed is that the people who are personally impacted, the
residents of Kalihiwai Ridge constitute the majority of those who are against the project. And
the people who live in the area and who would benefit from this development but aren't subject
to, or don't believe themselves to be subjected to the noise of course support the project. There
has been some concern about traffic but apparently that is not of major ...or doesn't reach the
proportion of concern that noise does. When we were going through the TVR exercise a large
part of the objections were because the neighboring TVR was party, party, party, and infringed
sometimes on a daily basis on the peace and tranquility of a neighboring home. So I can
sympathize with Ms. Kaumoana about wanting to preserve the solitude and the peace and
tranquility inherent in your choice to live mauka. To me, when I read the comments...
Mr. Dahilig: Commissioner, I just want to say a word of caution. Because we are in a
contested case hearing situation, I can understand responding to the testifier with respect to what
she is saying. But in regards to actual impressions and potential entry into deliberations based on
the testimony that has been given, we have not received the full gambit of evidence through a
contested case hearing yet. And so I would caution you as well as other Commissioners to
maybe keep personal impressions or deliberations on the subject matter as we see it right now to
a minimum until the contested case hearing is actually concluded. I am anticipating what you
may say so if I am wrong then I apologize but just as a caution to the Commissioners.
Mr. Blake: I am not sure what you are anticipating. Just a couple general comments,
when you say mitigate, to me you are saying it is here already and we are going to lessen that
versus not even getting it out there at all to begin with. Mitigation, to me, presupposes a high
level of something happening that we are now going to try to militate against. And that is one
way of I guess rectifying a situation and the other is not to let the situation develop at all. That is
something that concerns me because based on what we have heard the majority of the complaints
have to do with one aspect of this development, not the total development. And I just feel that
that is an important consideration.
Mr. Nishida: Mike, just to go over the contested case hearing procedure again, once this
thing starts, which it started, the procedure has started because we determined that there was
standing for a contested case hearing. The decision that comes back to us under the findings of
fact, they come up with a list of pertinent issues for the decision that they came up with, right?
Mr. Dahilig: That is correct.
Planning Commission Minutes
September 28, 2010
26
Mr. Nishida: Then they say what the relationship is according to the law that is involved
and whatever laws they find that are involved and they come out with a decision that we need to
endorse, I guess.
Mr. Dahilig: Yes.
Mr. Nishida: So this pile of public testimony only comes into play because a group or
community or individual or whatever would need to make an application that they are party to
this contested case hearing process. The public in general is not involved in the contested case
hearing unless they have been determined to be a party to the case.
Mr. Dahilig: Just to maybe clarify, the Commission back on June 22, 2010 received
through public hearing testimony as well as a request seven days prior to that public hearing for a
particular group which was the Neighborhood Association to intervene because they asserted that
their special interest could not be represented adequately by the government. So you approved
that and so they had received intervener status as a result of that Commission action upon which
at the close of the public hearing no other public entity or individual had come in requesting
intervener status. So they are the only ones that are entitled to participate moving forward in the
contested case hearing.
Mr. Nishida: So the only participants in the contested case hearing are Anaina Hou and
the Community Association.
Mr. Dahilig: And the County.
Mr. Nishida: And the County is going to be representing the County's interest.
Mr. Dahilig: The general public's interest and their recommendation is already at hand
and that recommendation, suggested modifications or changes to that recommendation could be
done at the request of the hearings office based on further evidence that is presented by the
intervener and also the applicant through the contested case hearing.
Mr. Nishida: And the normal process for the introduction for the previous testimony, as
part of the agreement, they are going to include testimony from the previous public hearing.
Mr. Dahilig: Yes because at the close of the public hearing, that dossier gets, as well as
the application, materials, there is no captioning I am told. That dossier of public testimony
(inaudible) as well a supporting documents that are in the possession of the Planning Department
as well as any of the supporting materials are going to be entered into evidence and considered
by the hearings officer in crafting the proposed decision and order.
Mr. Nishida: And then when that comes back to us, that whole list of things, findings of
fact, the relationship to the law and whatever decision comes back to us in entirety.
Mr. Dahilig: Correct. And at that time there could be the opportunity for the applicant,
the County, or the intervener to present oral closing arguments before the Commission entertains
what to do with the decision and order. And typically the actions the Commission would take is
to either accept, deny, or accept with modifications of the proposed hearings officer's report.
Mr. Nishida: And at that point is the public allowed to participate to provide additional
testimony?
Mr. Dahilig: It is up to the Chair's discretion because the procedure is held pursuant to
Chapter 91, not 92, and Chapter 92 exempts any 91 activity. So theoretically even this portion of
the meeting theoretically it is discretionary whether to receive public testimony.
Chair: If there are no more questions I will call for the vote, all those in favor say aye,
opposed, motion carries.
On motion made by Paula Morikami and seconded by Jan Kimura, to appoint
hearings officer, motion carried unanimously by voice vote.
Planning Commission Minutes
September 28, 2010
27
Commission recessed at 12:01 p.m.
Meeting was called back to order at 12:20 p.m.
NEW PUBLIC HEARING
Use Permit U-2011-3, Special Permit SP-2011-1 and Class IV Zoning Permit Z-IV-2011-
3 to permit the construction and operation of a solar power facility in Kapa`a, located approx.
500 ft. south of the Olohena Road, Ka`apuni Road and Kaehulua Road intersection, Kauai,
further identified as Tax Map Key 4-3-003:001 and affecting an area of approx. 4 acres = Kapa `a
Solor, LLC. (Director's Report received 9/14/10.1
Staff Planner Ka`aina Hull read Director's Report (on file).
Mr. Nishida: Did you notify the Land Use Commission of the project?
Staff: We did submit the project up to both the Land Use Commission as well as the
office of Planning for review and comments however they have not sent anything back.
Mr. Nishida: And you are not anticipating any too, right?
Staff: We wouldn't anticipate any comments just because generally... the Land Use
Commission doesn't review Special Permits unless it covers an area larger than 15 acres in size
and as such anything under 15 acres they refer back to the respective County bodies which would
be the Planning Commission in this case.
Chair: Any more questions for the planner, if the applicant wants to come add or present.
Mr. Kurt Bosshard: Thank you Chair. I am Kurt Bosshard, I am the president and sole
member of Kapa`a Solar LLC. I want to thank you and the Commissioners for giving me the
opportunity to share the project details with you. I think that when the meeting is done you will
agree with me that this is an opportunity for the island, for the community and a clear cut,
positive use of these four to five acres of land. I think it is the ideal location. Although it is near
Kapa`a Middle School and this property surrounds Kapa`a Middle School this property is not
below the middle school such that that drainage issue would be relevant to the middle school.
There is a drainage plan for the middle school that takes it through this property, this property is
165 acres however and this is but a small part of it that abuts Olohena Road just below the
Ka`apuni intersection.
The project its self would generate millions of dollars in State and Federal contributions
to the construction of the project. Kapa`a Solar builds the project and if I can get it done by the
end of the year, right now the status of the law is that I get a reimbursement of the construction
costs for approximately 50% of the project. This allows in my opinion KIUC to purchase the
power that is generated from this system at a reasonable rate and which rate I am sure is enjoyed
by the customers and members of KI(TC. Present at this time is a representative of KIUC and the
project coordinator and overseer from my contractor, REC. Kappa Solar has entered into a
contract with them to build the facility and we are actually ready to start it should you approve
this. We think it is a step forward in balancing the energy needs of the island and a small step
towards self sufficiency.
There isn't a project of this size presently ready to go. I know you Commissioners have
approved other of these alternative energy projects. I don't believe there are any of them that are
anywhere near as close to being ready to do this as we are. Fortunately I have been associated
with this property for some time. Mr. Carvalho and myself farm a portion of this property as
pasture that is immediately, almost immediately adjacent to where the panels are going to be
going. I think I am quite familiar the property, it was sugar cane lands up to a point a number of
years ago when I believe it was Lihu`e Plantation quit farming. It hasn't been farmed since that
time. As Mr. Hull has indicated the lands are primarily D and E quality which is the low end of
the scale, and there is some C which brings us here and that would probably be the portion of the
property that elevation wise, is a little lower. There are some steep slopes against Olohena Road
Planning Commission Minutes
September 28, 2010
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but the panels start on the ledge which is just below where that bank is. I know that people on
the Kapa`a side of the island are probably somewhat familiar with that location and if you have
driven by there you may have seen some shredding that is going on just below the
Ka`apuni/Olohena intersection and that is the site area.
The benefits of having it near the road are that it allows hookup to the KIUC power pole
that is close by the intersection of Ka`apuni and Olohena. I am not an engineer nor close to
considering myself to have technical knowledge of the project, that is what some of the other
individuals present are here to answer your questions about. But it is apparent that you need to
be close to a major power source or line to hook in to, to get your power in to. Not every place is
going to be suitable for a project like this so to some extend you have to take the bitter with the
sweet. You don't want to remove lands from agricultural use let's say but on the other hand you
do want to have solar generated power, everybody says we want to have that so you try to put it
in a place that is most suitable for that. And I think that you can't find a place probably at this
time that is immediately more suitable.
The hook up is relatively simple and the land it's self would not generate the kind of high
income productivity in agriculture that you would hope for. When you say it's a solar facility we
are not talking about significant structures, really what we have is the panels mounted on posts.
The posts don't really affect any drainage, the soil surface remains in vegetation and the panels
don't cover the ground. So you are not adding, I wouldn't think, much to any kind of water that
would move. If any minimal amount of water displacement which I don't believe there is much
of any, there are any neighbors that this would impact or any kind of environmental issues that
would be posed by that because you are surrounded by a large piece of property here which
gradually drains into the basin that is now a State owned. I would call it a swamp at this point
because it is overtaken with vegetation. There is much vegetation below this and there isn't any
property that could be impacted by it.
There has been discussion of drainage swales, can I approach the map? The drainage
swales that have been generally discussed on this large piece of property are located below the
project here on the steep corner where Olohena comes curving back towards the new bridge
which is at the bottom of the hill. So this property that is gradually sloping down is sloped away
from the road and the drainage basin is down here and then it goes down along the road more or
less and then into that State owned land. Some distance we are talking about, probably about
100 yards at least, below the culvert it's self. And then the school is here and has its own
drainage basin that actually goes next to the property where Mr. Carvalho and myself are
farming and so I am familiar with that area. I drive into that property a couple times a week at
least and I use the access road that comes from Olohena, if you have driven by there you have
seen the gate which is just above the new bridge. The water has to come down through here and
across that road and I am able to drive that road without any problem almost every day no matter
whether we have had a couple inches of rain or not. There is not any erosion to that road and so
right now we don't have an existing problem with water leaving the property.
The drainage beyond this side here goes back across the road and into the other valley
that is across the road. So I think that one of the other ...we did site that project after we
shredded it and sited it to be the optimum location in terms of any of the minor swales that were
on the property. Previously when we had looked at it we thought we would put it down in this
area but there is a little Swale that comes down in here, we weren't going to put it that far down
but it is even well above any of the lower areas of the property. And actually I don't think this
will add anything to that issue.
Mr. Nishida: Chair, I just wanted to talk about the drainage. Actually I am not an
engineer so what I was bringing up really was the question of the drainage or that Public Works
was addressing it. I was also wondering how the lot coverage was affected because I looked at it
the same way you did (inaudible). But what Ka`aina said is that this is going to affect your lot
coverage and then there ...Ka`aina, when you determine the lot coverage you are not talking
about ...you are talking about the panels its self, right, and so you have a number that is going to
affect the lot coverage. So Kurt, you realize that this is going to be taken away from that allotted
amount of lot coverage for roadways or buildings or whatever you are going to have for the rest
of the parcel.
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Mr. Bosshard: That is right and that is a good point that you are making. When we are
talking about suitability of a property people who are going to put up a project like this they have
to look at what the cost of the land is going to be to them because it has to pencil out in the end.
The primary issue primarily is going to be to find a location. Because the property is this large
and because it is suited for this and because I have a relationship with the property and the
person who owns it I am able to obtain a 50 year lease of that area. I will purchase it when and if
it becomes available through the other process of how that property is used.
Mr. Nishida: So this particular parcel, you are not the landowner then?
Mr. Bosshard: I am not the owner. I have a mortgage on the property so I have an
interest in the property in that fashion. That allows me to readily gain the advantage of being
able to use this property with a reasonable investment which furthers my ability to do this.
Mr. Nishida: So you are going to have meets and bounds for the project area?
Mr. Bosshard: Yes, we have a major engineering activity, surveying activity going on.
Mr. Nishida: Do you know at this point about how much land... you know why, one of
my overall concerns is that if there was a way to integrate an agricultural use of the property that
would be good. But if it is too limited I was kind of worried, I thought about goats and they like
to bump up against things, they like to chew on soft materials. So if you are having meets and
bounds already it limits...I guess the other question is how are you going to maintain the areas
on the other parts if you don't pasture?
Mr. Bosshard: I don't think I have shared this with you but I do own some sheep so I
would start out with seeing whether that worked. I wouldn't put any males in there, no rams
would be allowed but I think if I put young stock or female sheep in there, I could try that. I
have to see, I have some issues I have to work out just in terms of security and those types of
things. I would rather not have it be a condition that I have to have animals in there because I am
not sure how it would work and I do have a substantial investment in there and I would have to
make the right call on that. But if I could train the sheep in the fashion of dogs I would definitely
use them.
Mr. Nishida: Can you point out on there the meets and bounds of the project site?
Mr. Bosshard: This is just below the Ka`apuni/Olohena site and I would say that it goes
down here about a quarter of a mile down along Olohena Road. And then above that access road
I would say about 200 feet it cuts in here and then it is along the access road into the property.
That is the Kuleana. Actually I do own property along here, I own a 6 acre Kuleana right here
and I access my Kuleana through this property here. And then this, if you look down the hill
there is a bowl here and it is an amphitheater type of affect and this is about I'd say half of that
amphitheater is used for. So as you are looking in from Olohena Road this is mowed down here,
this is the part that is actually turning green now because I started shredded here because we
thought we might put it down in this area but then moved it up here to satisfy any drainage
concerns that could have otherwise existed.
Mr. Nishida: You mentioned earlier that the tax credit if applicable is going to reduce the
cost of paying for the electricity that comes across from here so how does that work? So that is
part of your agreement? Part of what is written in the agreement is if you get government money
then that is going to result in...?
Mr. Bosshard: I take the risk on that. You have a tax quote that is good for so long,
sometimes you don't know how long and KIUC says we will pay you this much for it. Mr.
Rensha can address this better than from their perspective and maybe I should leave it for them
so I don't step on his feet but they say we are going to pay you 20 cents for this power. They are
selling it to the consumer for much less. I wouldn't build this thing unless I felt that I could get
some of this money back from the government because it doesn't pencil out at 20 cents. So the
reason I am trying to get it built by the end of the year is I know that the code is going to be good
through that time. It is a risk, if I go to January or July, September of next year, the longer I go
the more chance of some governmental body might change the percentage of reimbursement.
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And KIUC does not take the blow for that; I take the blow for that because that reduces the
return to me if I don't get what I am expecting of the tax credits. My success, I think, would be
your success and the community's success because we want people I think to look at these things
and to build them. So people are going to be looking at me and saying how did it go for you and
I am going to tell them like it is, that is my style. Right now I am hoping for success and that
everybody shares in that to some extent.
Chair: Are there any more questions for the applicant?
Mr. Texeira: Mr. Bosshard, in your financing plan do you expect to get any financial aid
from any grants or loan guarantees from the Federal Government?
Mr. Bosshard: Great question. I am not expecting any but I applied and this is a fast
moving, changing situation we are in as a country or as a world. I don't think anybody really
knows exactly what is going on so you don't know how much money is out there and how long it
takes to access it. All of these things are recently passed into law whatever we are operating
under right now, it has been passed within the last year or two. And it is like the stimulus money
or whatever, you hear about 50% of it has been spent or 25% or whatever it is and it has been out
there for a while. There is grant money that is represented to be available and I have an attorney
who is familiar with this stuff and he has filled out an application for that but we will not get any
feedback on that for many months. Probably by the time I hear I will have built the facility
because I am intending on building it now. And Mr. Delaney the site manager will tell you what
it going on in terms of what they have going to actually do this. Because I want you to know
what I am asking is, of course, is that you approve it and that if possible you approve it today so
that we can mobilize which we are already doing actually in the hope that you will and we will
see how that goes, that is up to you guys.
Mr. Texeira: One more question, do you have any intent to expand this project at some
point down the road?
Mr. Bosshard: That would be entirely dependent on KIUC's need for the power. Mr.
Rensha can address that because ...I think it brings up the point that this is all new so when we
feed this power into their system they want to see what affect that has on their system. And it is
a relatively small project and they will be looking at this and they will be seeing how this is
going. If they come back and they say we want to add a couple acres of panels I am back with
you again perhaps depending of if we can work out a price but at this time there has been no
serious discussions of anything more. Again Mr. Rensha can address that.
Chair: Any more questions for the applicant? Do we want to bring up the KIUC
representative?
Mr. Nishida: Yes.
Mr. Steve Rensha: Thank you for this opportunity to speak to you today. I am Steve
Rensha, KIUC Senior Energy Solutions Engineer. As you have all witnessed in the community
it is very challenging to get renewable projects going. This project is an opportunity for the
island on many levels. The project has been approved by KIUC's board, both parties have
executed the purchase power agreement, the application is presently sitting in the PVC's office
waiting for review. When you look at siting for photovoltaic systems I don't see this project
being able to expand unless the load in this area grows significantly. When you are integrating
photovoltaic on an island system in particular you have system wide affects of photovoltaic
variability in the output and you have localized affects. The reason that this projected can be
sited on this land and interconnected on the circuit is that there is enough load to accommodate
the varying output of the project without affecting power quality for other individuals.
That being said this amount of generation is going to be put on the circuit, I think you
would have a hard time finding anywhere else on the planet that they are trying this amount of
photovoltaic generation. There is a lot of studies out there, there are circuits on the other islands
of Hawaii that are shut down from photovoltaic because of a small percentage of renewable on
their circuits. This project will go far beyond those guidelines on the order of 300 or more
percent beyond the guidelines that are currently being imposed on the (inaudible). KIUC does
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31
use these as guidelines but we believe the opportunity for distributed photovoltaic systems is
significant and we want to learn from this project what the effects are so island wide, we can
understand what are physical limitations on spreading these systems out.
There is opportunity to spread these out, there is more opportunity on the island to spread
these systems out as much as possible. As cloud cover passes the variability on the island as a
whole helps mitigate some of the impact to the photovoltaic versus just one very large project on
the island. What KIUC is trying to do with these photovoltaic projects is establish purchase
power agreements that are long term fixed price contracts. The power that we will be buying and
passing on to the membership today is the rate that it is going to be 20 years from now which is
an opportunity with photovoltaic that we don't have with other renewable sources today. I guess
that is about everything I have, KIUC is definitely looking forward to having the system
interconnected with our grid and see what we can all learn and anticipate on speaking on the
results of this project at a solar conference later this year so we call can learn from this
experience.
Additionally, this is going to be the largest fully operational photovoltaic project is all of
Hawaii. There is one project of this size on Ldna`i but the generation output is being reduced
right now due to the impact on the grid without the battery energy storage that is planned for this
project. We don't intend to put any additional infrastructure to enable us to integrate this system.
We will be monitoring power quality and learn from this experience and then if any issues arise
then we will mitigate them but we are not concerned at this point. Our intention is to learn from
this experience and see how we can roll out additional projects around the islands under
attractive rates that will be passed on directly to KIUC membership.
Mr. Texeira: A couple of questions, one is the fact that the photovoltaic system in place
you will have vaned energy coming into the grid at different times of the day so how will that
impact any brown outs or black outs because of the fact that the energy...
Mr. Rensha: The variability locally, you have to think of power flow from photovoltaic
as instantaneously, it is not just the time of day. Yes, you have the time of day that generation
output will vary from these farms if you have a totally clear sky. The trouble with photovoltaic
is we have clouds passing over that drops the output of these facilities dramatically. The affects
on the localized circuit is voltage dips but system wide that power loss from that facility is
noticed. Additionally, there is another larger project that is in the works down in the Koloa area,
that project is going to incorporate a large battery energy storage system that will help mitigate
that larger project but additionally help support that overall system, the overall community's
efforts in installing these photovoltaic systems. So battery energy storage is one alternative, it is
expensive, there is a certain amount of energy storage that is very good to have on the grid for
liability purposes. This specific project, there definitely won't be any system wide impacts on
this as we are growing. This project right now is about 30% of the overall island's generation
capacity in photovoltaic. So we are going to be Teaming from this. I don't anticipate any
adverse system wide affects at all but we will be learning a lot from the localize affects of this
large system being injected into this particular circuit.
Mr. Texeira: As you mentioned the fact that you are looking at battery storage, have you
also considered flywheel storage?
Mr. Rensha: Flywheel storage is good for the very short duration fluctuations. The
challenge is there are very limited products on the market, in the U.S. there are only a couple
large flywheel installations, one company owns the rights to the technology. There are small
flywheels in production, facilities, there is a flywheel installation here in town on a
manufacturing facility to help alleviate disturbance. It is one technology, for our application we
have not selected that technology due to the limited availability and we want the battery system
to do more. If we can get additional long duration storage versus very short duration output and
absorption it is better for the overall system. It is a good technology but it is not what we are
targeting.
Mr. Nishida: This one doesn't have battery storage, right?
Mr. Rensha: Correct.
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M r. Nishida: The one that you have in Koloa, how long are you talking about that
storage capacity?
Mr. Rensha: KNC has a request for information out right now. The parties that are
responding, their proposals are due in a very short amount of time. The minimum discharge
capacity from the battery will be 15 minutes but it could be on the duration of 6 to 8 hours
depending on the technology that is selected.
Mr. Nishida: For this particular project the percentage of the power produced compared
to the amount of power you are using in the area, the percentage is low enough so that you can
make up for the (inaudible), is that what you are saying?
Mr. Rensha: Our modeling is saying yes, it is fine. Again no one is operating with this
amount of penetration on a circuit. The guidelines are 15% generation on a distribution circuit.
This project is likely going to be over 50% of the power is going to be supplied from this project.
Mr. Nishida: 50%?
Mr. Rensha: 50% of that individual circuit. We don't anticipate any problems based on
our modeling. If we do have power quality issues due to the varying voltage we will mitigate
that with the other technologies but at this point we don't foresee any issues.
Mr. Nishida: And who is responsible for the mitigation?
Mr. Rensha: That would be KIUC.
Chair: Any more questions for the applicant?
Staff: I have one question Chair. Steve, just for clarification, the County recently
completed an energy sustainability plan for which KNC had much input on as well as you
yourself. One of the surprising or eyebrow raising points that the plan made was that (inaudible)
were on the whole battery storage issue is that absent KIUC's storage abilities that potentially
putting in place more renewable energy, specially solar and wind which have a variability issue
with them, that KNC would be forced to fire up what the report called spinning reserves. In
firing them up essentially approving more of these projects could, in effect, force the island into
using more petroleum than the renewable energy projects would attempt to prevent. Can you
address how this project fits into that?
Mr. Rensha: From this specific project we don't anticipate carrying additional spinning
reserve. One thing unique about Kauai being a member owned cooperative and our concern
about increasing our costs for fuel use, we do not carry a predetermined amount of spinning
reserve. On the other islands there is a large amount of their generation infrastructure that is
sitting in there spinning, burning fuel just in case that generator is needed. On Kauai we have a
much more elaborate system, a larger communication backbone. So our ability to carry less
spinning reserve is what occurs when load shedding occurs on island, it is a way to catch the
problem, mitigate the problem and then provide reliable power. Spinning reserve is an issue.
As these photovoltaic systems, island wide customer generation system, the County is
planning a system, these do have an effect on the overall grid. These intermittent resources are a
challenge. They will not cause increased fossil usage because of these renewable projects,
renewable projects will greatly offset the amount of fossil fuels. It is likely in the future
additional spinning reserve will be utilized as well as battery energy storage but again, we are all
learning from this process and definitely this project reduces the amount of fossil fuels that
KNC would have been burning to produce our electricity.
Chair: Any more questions?
W. Nishida: Steve, part of the mitigation sounded like, well part of the mitigation could
be a reduction in the amount of power that you would be taking from the solar?
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Mr. Rensha: No, we will not be limiting the power output for this facility at all. We will
be taking all the power. There are some electronic technologies that could be installed on those
individual circuits if there are power quality issues which we don't anticipate occurring. But we
will be purchasing any and all power produced from this system.
Mr. Nishida: Should there be a problem as far as the mitigation could it be, mitigations
that you would consider, could it be like in the millions of dollars?
Mr. Rensha: No, absolutely not. Large battery energy storage is in the order of millions
of dollars. One of our mitigating abilities is to add more load to the circuit and change around
the circuit configuration to add more demand on that circuit which would further alleviate the
impact of this. There are additional (inaudible) or SBC's that you could install in the field for
further costs but they are not on the order of millions of dollars.
Chair: Before I take public testimony the Commission's lunch is here so we will be
taking a recess and the recess will probably be an hour and a half being that we will be working
through lunch on an executive session. So if the Commission could motion to take a recess.
Ms. Morikami: Mr. Chair, earlier I mentioned, I made a motion to move the executive
session to the end of the calendar but I would like to now motion that we recess to go into
executive session at this time.
Chair: The public should know that the Commission will be working through this
executive session so we are recessing for at least probably an hour. With that said, is there a
second on that motion?
Mr. Texeira: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Paula Morikami and seconded by Herman Texeira, to go into
executive session, motion carried unanimously by voice vote.
Commission went into executive session at 1:00 p.m.
Meeting was called back to order at 2:40 p.m.
Commission Jan Kimura was excused at 2:30 p.m.
Chair: I think the Commissioner wanted to hear from the Solar site guy if you want to
come up.
Mr. Jeff Delaney: My name is Jeff Delaney. I am a resident of Pahoa on the Big Island
of Hawai `i and I would like to thank you for letting me talk today. I am also the Hawai `i
Operations Manager for REC Solar and I will be the on-site manager and superintendent for this
project. As I think Steve Rensha and Kurt mentioned this is a large project, 1.25 megawatt
ground mount. We will probably have a crew of about 25 people and most of them are localized,
some of my guys are here. We have done several projects on Kauai already, we did the Kauai
Costco three years ago, 280 KW ground mount at pioneer hybrid seed, 110 KW job on Longs
Drugs at the LYhu`e Mall and the 80 KW one of Kauai Community College you can see from the
road. Most of my guys here have been with us for two to three years. The company has kept
them busy, when we aren't working on Kauai, on jobs on Honolulu and some of them in
California. I think right now we have seven people on Kauai, we will probably be hiring
another 5 for this project.
As far as the site is concerned, when I look at the site and do a site inspection it is ideal
for solar because it is bowl shaped. The panels will almost lay on the natural grade so they can
conform with the ground. Runoff on this kind of system it is supported by steel posts in the
ground basically on an 8 foot by 9 foot grid. There will be 3 to 5 feet of space underneath the
poles. There aren't any cross beams on there, it is fairly open so these kinds of installations they
hardly ever affect drainage in other words there is no grading and grubbing required. We will be
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digging 12 inch piers, 6 to 7 feet deep to plant the poles so there is minimal intrusion on the site
and natural drainage to the area.
Another good thing about installations on a solar farm, they don't increase road traffic,
they are pretty much stand alone systems, they don't make any noise because they don't have
any moving parts and they require next to no maintenance. So they don't require people to make
trips to and from the site on a daily basis so they are minimally impactive on the areas where
they are built. This one should go pretty quickly because it straight forward. It has a good grade
on it so I don't see a lot of problems on this site. Like I say it is pretty ideal. It is South facing
and the natural tilt of the site in the bowl shape really lends it's self to solar. Those would be my
major comments on the job. From what I see it looks fairly easy, non-impactive, and it is a great
site for the installation. That coupled with we will probably have 100% local Kauai workforce.
Mr. Nishida: (Inaudible) from when you drive the truck on to start work do you finish?
Mr. Delaney: We are projecting if we can get a permit within three weeks we would
probably start digging holes, construction, on November 1st and hope to be done by the end of
the year, substantially complete. We may have some demobilization to do at the first of the year
but it should be, if everything falls into place, a two to three month project.
Mr. Nishida: Other places that you have installed the same how do they maintain the
grass?
W. Delaney: A lot of it depends on the environment. Since underneath the panels the
lack of sunlight cuts down on growth, generally speaking some people gravel it, some people
will just mow it. We have had a couple installations where they have used sheep or goats, goats
of course have caused damage to the panels because they will climb up on them. But generally
they are pretty low maintenance as long as you keep the grass cut. That is the main thing to keep
the grass cut. Like I say the life of these systems is about at least now 25 years, minimum
maintenance, you wash the panels once a year when they get dusty, check electrical connections
with thermal cameras and do standard system maintenance on a once a year basis. They are
pretty maintenance free.
Mr. Nishida: How many panels per pedestal?
Mr. Delaney: When you see the big sections like if you go to the top and you see the
little section, I believe it is 4 panels wide and maybe 20 panels long. (Inaudible) about 15 feet
wide and close to 100 feet long, there is a space in between them for shading and that space is
another 4 to 5 feet but it is basically big enough to drive a small tractor or something through
because you have to maintain spacing in the next row for shading. They are going to be at tilts
like about this. The good thing about this system is it will follow the natural contours of the land
so it will look pretty even.
Mr. Texeira: My question is as the technology improves do you envision doing
modifications to the existing plant?
Mr. Delaney: We don't envision that because simply the panels, they are crystalline
panels, they have a very long life. The output is going to stay pretty acceptable for 20 to 25
years. If any technology changes the only thing that might be upgraded would be the inverters
which are the electronic portion that changes the DC power to AC power to feed into the grids.
There are 4 of those units on this project and once again most of those are warrantied for 10 to 15
years, if they break down the will replace parts but if there was any technology that might change
or get large improvements in efficiency it would be the inverters. You swap them out like a
transformer, it is a standard electrical job, and it is pretty easy. But as far as the panels and the
basic system wiring I don't see any reason for that to change or be upgraded for the life of the
system, 20 to 25 years.
Chair: Commissioners, any more questions for the applicant, thank you. Being that this
is a public hearing is there anybody that would like to speak on the agenda item?
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Mr. Chris Nelson: My name is Chris Nelson. I have been a resident here for 4 years.
The last 3 years I have been an employee of REC, I started at the Kauai Costco over here. All
of our other guys, this guy Nate, he has been working with us also and he and I also do all the
maintenance when everyone went to California. I just want to say that we all are eager to get
back to work. A couple of the guys had to go to California because any type of construction is
almost dried up so I just want to say for the record we all want to get back to work and stay on
island too, where are our kids are at also, thank you.
Chair: Anybody else?
Mr. Corey Miller: My name is Corey Miller. I am going to be the mechanical foreman
on this upcoming job. I have been working for REC for two and a half years or so, started on
Longs and Pioneer on the Westside. I just wanted to jump on one thing that Chris missed is that
REC has done its absolute best, I was born at Wilcox Hospital, lived here my entire life, they
have done a great job at going above and beyond what they would have to do just to keep me
happy. They have flown me to Oahu, California, kind of bounced me around whenever there
wasn't work on Kauai or even in Hawaii. And we are now bringing on like he said 15 or more
local guys and it is good for Kauai, revenues on Kauai, thank you.
Chair: Anybody else in the public like to testify on this agenda item?
Mr. Steph Cuviello: My name is Steph Cuviello. I have been a Kauai resident for the
past 10 years. I am a recent hire of REC Solar. I have done my research into the company, they
are very reputable. All their employees are top notch. I have been doing construction on island
since that 10 years there is no other forum I would like to get in to but this new technology to
promote safer, greener, better for the island, better for the residents, better for everyone, thank
you.
Chair: Any more people that want to speak on this agenda item?
Mr. Nathan Keanini: My name is Nathan Keanini. I have also been a resident here for
about 2 and a half years, all my family is from Molokai. I just wanted to share with you that we
want to do this project not only to get back to work but we want to be able to see, like me and
Christopher here, we want to see our kids be able to benefit from this later on in the years to
come. Hopefully there will be more projects like this, thank you.
Chair: Anybody else?
Mr. Drew Bradley: My name is Drew Bradley. I am the Regional Manager for REC. I
live in Mdnoa on Oahu. I think this project is a great opportunity for Kauai because at the end
of this year this will be the biggest solar project in Hawaii. It will be bigger than the project on
Lanai and I think it is a great chance for Kauai to step out in front with renewable energy and
grab some of that limelight and be a leader, literally be able to say we have the biggest solar
system. Great technology, it is hard to imagine opposition to a project like this. I just can't think
of a single thing or any downside to it. Employment, dollars for the community, great for the
environment, but really it is about keeping people employed and making sure people have a job
so that they feel good. So that is my two cents worth, thank you.
Chair: Anybody else? Seeing none I will bring the meeting back order, this is a new
public hearing so if there is a motion to close the public hearing we can.
Ms. Morikami: So moved.
Mr. Blake: Second.
Chair: All those in favor say aye, opposed, motion carries.
On motion made by Paula Morikami and seconded by Hartwell Blake, to close the
public hearing, motion carried unanimously by voice vote.
Planning Commission Minutes
September 28, 2010
36
Chair: Commissioners we do have recommendations and have we received all the
comments from agencies?
Staff: We have received all their comments with the exception of the Department of
Water. The Planning Department doesn't anticipate any problems or concerns being brought up
by the Department of Water but in the event that there are they can be resolved with the applicant
during building permit review.
Chair: So with that I will just go ahead and move to reading the recommendations.
Staff Kaaina Hull read department recommendation (on file).
Chair: Does the applicant representative want to add anything to the conclusion or
recommendation?
Mr. Ron Agor: Aloha, my name is Ron Agor. We agree with the recommendation.
Chair: With that said, Commissioners, we can entertain a motion or if there is any
discussion?
Mr. Texeira: One last question, in terms of the purchase power agreement, will it be
comparable to what KE charges right now for its oil?
Mr. Bosshard: It should be less.
Mr. Texeira: And this purchase power agreement is for 20 years?
Mr. Bosshard: Yes.
Mr. Texeira: So would the price be the same for the next 20 years?
Mr. Bosshard: It is locked in at the same amount, the reason being that they can
negotiate that with me because they say well the cost to you to construct the project is less
because you are getting these assistances from the State and Federal government to encourage
this type of project.
Mr. Texeira: So it's open ended then, they can come back and re-negotiate with you
down the road.
Mr. Bosshard: After the 20 years, yes. They are locked in. I think it is a big benefit to
them. I tried to get more money Mr. Texeira, they said take a walk.
Mr. Texeira: Well it is a benefit to the island as well.
Mr. Bosshard: Glad to hear that.
Chair: Thank you, with that Commissioners, I will entertain a motion.
Ms. Morikami: Mr. Chair, on item E.1, Use Permit U-2011-3, Special Permit SP-2011-1,
and Class IV Zoning Permit Z-IV-2011-3, move that we approve the recommendations of the
Planning Department pursuant to the applicant's request.
Mr. Blake: Any discussions, additions, or deletions to the conditions?
Ms. Matsumoto: So Kaaina has another condition to put about, well this is not a building
per say, we would like to incorporate some of the sustainability language into the project.
Staff: Like the previous application we heard earlier this morning we imposed a
condition concerning LEED or Green Globes and this is not an actual, the proposal at hand is not
a habitable or commercial building which LEED or Green Globes has standards for. We can
incorporate some sustainable or renewable language and the additional condition could read, it
Planning Commission Minutes
September 28, 2010
37
would be condition No. 7, "The applicant is encouraged to employ sustainable measures
including but not limited to reusing and recycling materials during both the construction and
operation of the subject facility."
Chair: Commissioners, any discussion on this addition to the recommendations?
Mr. Texeira: Does the applicant have any problem with that?
Mr. Bosshard: No, that is fine.
Chair: So if you want to motion to add that as read by the planner, we can have the
planner read it again into the record.
Ms. Matsumoto: Move to add condition No. 7 as read by the planner.
Chair: And if you could read it into the record, Kaaina.
Staff: Condition No. 7, "The applicant is encouraged to employ sustainable measures
including but not limited to reusing and recycling materials during both the construction and
operation of the subject facility."
Chair: There is a motion on the floor, is there a second?
Mr. Nishida: Second.
Chair: All those in favor for the addition condition No. 7 say aye, opposed.
On motion made by Camilla Matsumoto and seconded by James Nishida, to add
condition No. 7, motion carried unanimously by voice vote.
Chair: Back to the main motion for approval, there is a second on the floor, any more
additions or deletions of conditions, if not all those in favor say aye, opposed, motion carries.
On motion made by Paula Morikami and seconded by Hartwell Blake, to approve
Director's Report as amended, motion carried unanimously by voice vote.
Use Permit U-2011-4, Special Permit SP-2011-2 and Class IV Zoning Permit Z-IV-2011-
4 to permit a helicopter tour landing area for visitation and viewing of HaIi`i Falls located on
Hali `i Stream approx. 1.5 miles west of Mlohana Crater, Kauai, further identified as Tax Map
Key 3-8-001:001 (affecting an area approx. 1,500 sq. ft.) = Inter-Island Helicopters, Inc.
1Director's Report received 9/14/10.1\
Staff Kaaina Hull read Director's Report (on file).
Chair: Commissioners, any questions for the planner?
Mr. Blake: Why is there so much less required of this applicant than the company that
applied at Manawaipuna Falls?
Staff: Virtually all the requirements with the exception of one has been imposed on this
application in that they were required to apply for and Use Permit, a Special Permit and a Class
IV Zoning Permit. As stated in the report applications are reviewed on a case to case basis. The
previous application you might be referring to, the requirements of 343, at this time the
department has determined that an assessment under the requirements of 343 of Hawaii Revised
Statutes is not required.
Mr. Blake: What is the difference?
Staff: The difference in this case and that case is that, and what was a specific trigger, is
the previous application proposed to land within the State Land Use Agriculture District and
after landing in the Ag. District the passengers would disembark and walk into the Conservation
Planning Commission Minutes
September 28, 2010
38
District. In this case before you they are landing within the Agriculture District and activities
including disembarking and viewing the falls will remain solely within the Agriculture District.
The applicant has gotten a determination from the Land Use Commission stating that indeed, the
activities proposed will be confined within the Agricultural District and not occurs within the
Conservation District.
Mr. Blake: Does the County permit landings at other than airports as part of the
helicopter tours for all of the tour companies on the island?
Staff: Historically the Planning Commission and the County as a whole has permitted
previous applications.
Mr. Blake: Has not?
Staff: Has permitted previous helicopter landing facility applications.
Mr. Blake: On a regular basis?
Staff: I don't know what you would say constitutes a regular basis. I can think of 3 or 4
besides the one currently under review.
Mr. Blake: That is permitted?
Staff: That was permitted.
Mr. Blake: That is continuously permitted.
Staff: Right now I believe 2 are continuously permitted. The other one I believe was in
operation for several years however the helicopter company went out of business and since then
the permit was withdrawn.
Mr. Blake: And the 2 that are flying pursuant to permits and landing pursuant to
Planning Department issued permits are what, which ones?
Staff: Well you have the one landing at Manawaipuna Falls which is Island Helicopters
and you have the one proposed that is also on Gay and Robinson land and is actually somewhat
of a sanctuary or environmental reserve under the operation of Keith Robinson. I believe the
helicopter tour company is Safari Helicopters but I may stand corrected on that, or Ni `ihau,
Niihau Helicopters.
Mr. Blake: Does Safari have a permit from the County?
Staff: It does.
W. Blake: For how many landings a day?
Staff: I would have to check on that for you. I also have to confirm if you are still
questioning about the previous applications the other application that I said was inactive, I will
have to double check on that and that was Papillion Helicopters. And in fact their permit may in
fact still be active, nobody is landing there but I will have to double check on whether or not they
are still active at this time. I am not sure.
Mr. Blake: The reason I ask is that when we entertained the application for
Manawaipuna Falls there was, as I recollect, a 2 year time limit during which the department was
going to evaluate the overall impact of what was going on with regard to flora, fauna, and over
flights and so forth. I think it has been 6 months or something since that happened.
Staff. It has been approximately a year since that happened and we have done, there was
a condition imposed that an annual review by the department would occur for the previous
applicant and ultimately a 2 year review by the Commission. That annual review has happened
by the department in which a site inspection was conducted and at this time there aren't any
concerns and additionally no complaints have been logged against that particular application.
Planning Commission Minutes
September 28, 2010
39
Mr. Blake: The other thing that concerned me was I think it was the last line of the
recommendation rendered by the department at that time, permitting landings at Manawaipuna
would open the flood gates, potentially and that concern is restated in this report issued by the
department. But from what has been given to us it looks like this company has been landing all
over the place all along for I don't know how many years, is that correct?
Staff: There have been complaints logged with the department about illegal landings and
indeed I think certain ads that have been presented to you speak to that situation. The
department has been unable to physically verify whether or not these landings are taking place
but I think the ads do speak for themselves but going above and beyond that essentially what is
before you is...like I said we haven't physically established whether or not illegal landings are
taking place. In the event that they were this application is attempting to rectify that situation.
Mr. Blake: Say that again please? In the event that they are breaking the law this
application is intended to rectify that situation?
Staff. I would also say that we have informed them and instructed them when they came
in for the permit that if they are landing there they cannot continue to land there. And we have
informed them that landing at this site without a permit is a violation of the Kauai County Code.
Mr. Blake: The other thing that concerned me was the advertising that is kind of
shocking to me about waterfall weddings and secret landings or...it is the type of thing that when
we were faced with the same type of advertising for TVRs it was considered horrific. But it
looks like there is a lot of that going on already so has the department confirmed the fact or the
assertion that the advertising has been taking place all these many years?
Staff: We are aware of the advertising. Like I said we have been unable to confirm
actual landings.
Mr. Blake: Did you ask the applicant if they have in fact been operating pursuant to this
type of advertising?
Staff: Yes.
Mr. Blake: And what did they say?
Staff: That it was occurring in the past however it is not occurring now.
Mr. Blake: It was occurring in the past up to when?
Staff: We didn't ask specifically the date. We were informed that it is not occurring at
this time.
Mr. Blake: Not to split hairs but at this time could be as of quarter after 3 today.
Staff: Well as of the date of this application which the department received roughly a
month ago and before that actual official receipt we were in discussions with them and it was
during the discussions that we learned that these landings were not taking place.
Chair: Any other questions for the planner Commissioners?
Mr. Nishida: Regarding the environmental assessment, so the last one, Robinson's one,
the people were walking along the roadway or pathway to the viewing area and that was within
the Conservation District?
Staff: Correct.
Mr. Nishida: One thing I wanted to see was a big map, I really cannot tell where... so can
we get that to identify where the falls are?
Planning Commission Minutes
September 28, 2010
40
Staff: Yes we can.
Mr. Nishida: And then 4 mile residence closest to the site is which way, Wailua
Homesteads or Kahili Mountain Park?
Staff: It is south west I believe, excuse me, south east.
Mr. Nishida: So that would be like by Kahili Mountain Park?
Staff: Yes.
Mr. Nishida: So the Seventh Day Adventist School is how far away from this site?
Staff: I will have to get back to you on the specific distance.
Mr. Nishida: And issue we talked about previous to the meeting, I wanted to hear about
that. Some people have brought it up as far as the environmental assessment. It would be a good
idea to have that so can you go over again some of the considerations regarding requiring the
environmental assessment?
Staff: Chapter 343 has a set of 9 triggers for which an environmental assessment or
environmental impact statement is required. Depending on the situation various overseeing
agencies have the authority to trigger pursuant to 343 the environmental assessment. This can be
done in consultation with legal counsel as well as OEQC but the respective agency has the
authority to determine whether or not the EA is required. We did submit to OEQC for comments
on this particular application however at this time we haven't received anything. In the event
that we do we will take it into consideration but I would remind the Commission that the
authority to determine whether or not an environmental assessment is required under 343 is the
Planning Department's and at this time the department has made the final determination. The
department has made the final determination that an environmental assessment or environmental
impact statement pursuant to the requirements of 343 are not required.
Mr. Nishida: And the reason for that is?
Staff: The trigger essentially being a...
Mr. Dahilie: As the planner mentioned, pursuant to HRS Section 343-5, the Hawaii
Revised Statues set forth triggers. There are 2 triggers that potentially could be applicable in this
case and it is under sub-section 7, A. sub-7 and A. sub-8. Under section A. sub-8 it is whether
you would "propose any reclassification of land classified as Conservation District by the State
Land Use Commission under Chapter 205, which really does not apply here. Or 8, sub-section
A.-8, propose the construction of any new or the expansion or modification of existing helicopter
facilities within the State that by way of their activities would affect any, A, land classified as
Conservation District by the State Land Use Commission under Chapter 205, B, (inaudible) as
defined in section 205-A-41, or C, any historic site designated in the National Register or
Hawaii Register provided for in the Historic Preservation Act of 1996, Public Law 89-665 or
Hawai `i Revised Statutes, Chapter 6.E or until the State wide inventory is completed. A historic
site that is found (inaudible) of the area affected by the helicopter facility is under consideration
for placement on the National Register or the Hawaii Register of Historic Places."
So the particular activity that is being proposed based on what the planner has described
is solely contained within the State Agricultural District therefore they have made that
determination that sub-section 8 does not apply in this case to trigger the first step to the 343
process which is to produce an environmental assessment.
Mr. Nishida: In this particular case though the Conservation line is right across the
stream from the landing site.
Mr. Dahilig: That is correct.
Planning Commission Minutes
September 28, 2010
41
Mr. Nishida: Although it is in the Agricultural District it is also right along that
Conservation line and helicopter landings in Conservation is not allowed, right?
Mr. Dahilig: That is correct. Well it's not that it is not allowed it is that it has to go
through again; it has to go through a 343 process before any type of governmental action can be
taken to permit that type of activity within the State Conservation District.
Mr. Nishida: Have any permits been given for landings in the State Conservation
District?
Mr. Dahilia: That is a question that I can't answer.
Staff: To my knowledge I am not aware of but it wouldn't fall under the County of
Kauai's jurisdiction that would be under DLNR, OCCL, that would be either approving, denying
or essentially reviewing a permit for an application in the Conservation District.
Mr. Nishida: So is it the County Attorney's view that if the helicopter's landing is
traversing the-will the helicopter's landings traverse the Conservation District, the flight path?
Staff: It is our understanding that the approach as well as take off from the proposed
facility will occur over the Agricultural District. As far as within the... ultimately all helicopters
fly over some portion of the Conservation District in their tours but the approach and if you take
the ceiling level versus the floor level imposed by the Federal Aviation Industry which is 1,500
feet, as we understand it the approach and take off at that height is occurring over the
Agricultural District.
Mr. Nishida: So when you get the big map you can point out that approach and all that.
So this being the third application for helicopter landings, a requirement for environmental
impact statement wouldn't be required? To me I would like to see an environmental impact
assessment.
Staff. I will also remind the Commission that in the first case, the Safari Helicopter case,
no environmental assessment was required.
Mr. Nishida: The Robinson one.
Staff: Yes. Ultimately it is not like we are going to be throwing out EA's just because
the helicopter landing facility requires one. Like we reiterated it is specifically the landing in the
Agriculture District and then traversing into the Conservation District that triggered the
environmental assessment. However in this case as well as in the previous case there was no
traversing or entering the Conservation District and as such the trigger was not required.
Mr. Blake: How far is the proposed landing area from the Conservation Boundary?
Staff: The Conservation Boundary essentially lies within the stream. I can take a closer
look but on approximation I would say roughly 1,000 feet I believe.
Mr. Blake: 1,000 feet.
Mr. Nishida: So it's right across the stream. There is a picture in the application of the
Conversation.
Mr. Blake: Is that your estimation?
Staff: That is something I would have to double check on and get back to you. We can
get an actual figure for the department when we provide the Commission with the actual map its
self. We can provide you with a more accurate number of distance from the Conservation line to
the helicopter landing facility.
Chair: This is what came in our packets.
Planning Commission Minutes
September 28, 2010
42
Staff: That is the application.
Mr. Blake: When I look at this map it shows the center line of the falls, it looks like the
stream is in the Conservation area and the Ag. area.
Staff. I believe that the line actually follows the stream and is actually within the stream.
So in essence a portion of the stream and/or falls is located within the Agricultural District and
also another portion is located within the Conservation District.
Mr. Blake: As I view this map it appears that the Conservation area is close enough to
the proposed landing site to be exposed to noise, dust and crop wash so even though you are
landing in the Ag. area it still seems to me that it will affect the Conservation area. So although
you are not landing right inside the State Conservation area and therefore not triggering section 8
there is still a direct affect. That is based on my view of the map.
Mr. Dahilig: I would like to remind the Commissioners also that in terms of authority of
accepting an EIS or an EA this body does not have the authority to accept those types of
documents. That authority is vested with the Planning Department. They are the agency that is
authorized to do that. In this particular case it is the Land Use Commission because that is all it
is, the Land Use Commission is the accepting authority. But in this particular case when you are
looking at the County's ...a planning permit is the first trigger permit that is involved, the
authority whether to sign off or not sign off or require a 343 document rests with the Planning
Department because they are the agency.
Mr. Blake: So we can accept or disregard their...
Mr. Dahilig: Again, all I can say is that in terms of who makes the determination
whether a 343 document is required and then once that 343 document is either complete or not
complete, that review and that final review and that determination is the Planning Departments,
not the Planning Commission. Once that disclosure requirement has been met under 343 then
the permits can begin to proceed to be processed by the Planning Commission but that is
normally the process that a 343 disclosure process would work under.
Mr. Blake: So a matter of procedure, if the Planning Department says it's not needed but
the Commission is not satisfied with that...
Mr. Dahilig: Then your recourse is to from a jurisdictional standpoint to either require
more information, not necessarily through a 343 process but require more information
concerning specific issues that may be raised either by the Commissioners or at public hearing.
Or, those issues can be mitigated through further permit conditions that are imposed by the
Planning Commission in the interest of public health, safety, and the public's welfare.
Mr. Blake: As far as I am concerned I don't have enough information and I am really
concerned about what looks like a (inaudible), it is happening already. (Inaudible) by this much
advertising, that concerns me. And it concerns me as much or more than a TVR does because
when helicopters first came to the island the fact that there was a helicopter tour of the island was
considered a dramatic addition to the amenities available to visitors and residents. Prior to the
formal institution or initiation of helicopter tours, if you had a helicopter you could go land
somewhere because it wasn't so frequent. It wasn't an issue to anyone. And then the tour
business grew which was good for the island and for the visitor to the point where over flight
paths and flight limits and landings in non-developed areas became a concern.
And so up to this application, or up to the last application I was of the opinion that
without a permit there was absolutely no landing unless it was an emergency. But when I look at
these ads it looks like it has been happening all along and I am thinking to myself, really, how
come. And I can understand the assertion that the department is not able to its self determine
whether this is happening or not but this is an admission against penal interest if you ask me
because it says we are doing it and we advertise it and this is how much it costs. And you pay
and make your reservations and we will take you in, just like that. If that is what is happening
then that really concerns me.
Planning Commission Minutes
September 28, 2010
43
Chair: Any more questions for the planner?
Ms. Matsumoto: Did they have a chance to see this packet, the applicant?
Staff: I don't think the applicant has seen the packet. That was submitted today and I
don't know if the applicant has gone up to the front which we just accepted it today, they haven't
seen the actual submission.
Ms. Matsumoto: I just also wanted to say that about business, it concerns me, we talk
about how much we value the visitor industry and how much it can help our economy on the
island. And then if you hear of things that are done that are too tourist, too visitor, they are
not...how can I say, appropriate, then it doesn't shed a good light on the island. I don't feel good
about the idea of visitors being taken advantage of that way. It's not necessarily only talking
about this particular application but about business in general. People come, they save their
money, many of them work hard and they come for a vacation to have a good time and I think
people on Kauai want to have them spend their money wisely and well and they go home and
feel good about their trip. That is just my comment, leave on a good note.
Mr. Blake: If the applicant hasn't seen this submission then I think they should see it and
respond to it.
Staff: I think they probably will once they come up.
Mr. Costa: To clarify, the document you were referring to as being advertising for the
applicant was not submitted by the applicant.
Mr. Blake: I can see why.
Mr. Costa: I am just clearing the record because I think you were inferring that it was
part of their application.
Chair: I don't think he said that.
Mr. Costa: It seemed to me that you were explaining that that was part of their
submission.
Mr. Blake: My understanding is it is not part of their submission.
Mr. Costa: Right.
Mr. Blake: And it concerns me that it exists out there and but for this having been
submitted to us I personally would never have known that it is going on already. It is the same
thing with the after the fact permits and advertising for illegal TVRs and etc. So if they can put
my mind at ease about this I would appreciate it, if the applicant can do that.
Chair: Any more Commissioners, questions, if not I will call the applicant up.
Mr. Robin Venuti: I am Robin Venuti, I am with Inter-Island Helicopters. I am the
secretary, new owner and Luca Rostanio is our chief pilot, Director of Operations and this is my
wife, Dana Venuti, she is the President, owner of Inter-Island Helicopters.
Chair: Is there anything that you want to add or make a presentation?
Mr. Venuti: Well it is pretty cut and dried by the application what we are requesting and
99% of it is represented correctly. A couple quick notes, we do not fly aircraft that seats 7
passengers, we only fly aircraft with 4 passengers so a total of 5 people would be on board. We
are only requesting 4 landings per day so that would be something that we would like to clear up
right off the bat. And then we would just like to address all the questions and concerns that you
guys have, it is very cut and dried. We would like to be able to land. We would like to be able to
view the waterfall, spend 45 minutes there and then depart again.
Planning commission Minutes
September 28, 2010
44
For someone outside of the community, I haven't been here long, but to come here and
see...I am from a desert, I am from southern Utah so to have an experience like this, some
people may go oh, wow, this little waterfall outside the Conservation area, nothing amazing. To
someone like me who sees something like that for the first time to be able to sit there and look at
that is truly amazing. And I think as she said, done right with the proper permits at the proper
time I think will be an experience that everyone will talk about and that will continue to set
Kauai apart just for the absolute phenomenal beauty that is here. It will be a spectacular thing,
done right, with the proper permits. And that is why we are here. If we can address right off the
bat the advertising, is that okay?
Chair: Yes, this is your time.
Mr. Venuti: We have been here a short time with the company, we are brand new owners
here, we are learning. We had things represented even to us that we didn't have full knowledge
of or full understanding and as soon it was brought to our attention, any ad that we have placed
and anyone can vouch for this. You can look at any new ad; anything that is out there that we
could take care of has been taken care of. We personally, she is in charge of all the advertising,
there has never been an ad place, never been a brochure printed that we have had done that we
have had any part of since we took over that has had anything to do with the waterfall landing,
advertising a waterfall landing. There are some things you can't take back, there are things that
are out there obviously that have been out there for years and years that we had no part of. We
understand taking over, we understand the responsibility we have to correct anything that is...we
are not new business owners, and we have owned helicopter companies in Utah for years, for
over 10 years.
So we are not new to the industry, we are not new to the regulations and the penalties of
violating regulations and things like that. So we understand the severity of it and we took action
as quickly as possible, some things were out of our hands but we did what we could to correct
anything that has... and that is why we are here, that is why we are here for this whole process.
We don't intend on doing anything illegal, we never have, we never operated that type of
business before. As soon as we spoke with Kaaina the first time, well before we had submitted
the application, formal application, we immediately stopped our landings. The only thing that I
would say that we have done differently is we have over flown the site numerous times just to
see if we did generate any type of complaints of anything like that which has generated
absolutely no noise complaints. But we are here to do it right, if there things to be addressed we
will gladly do that within reason.
Chair: Are there any questions?
Mr. Blake: When will they be back again?
Chair: Well we will take public testimony and we will call them back. We will have one
more chance to talk to them, Paula?
Ms. Morikami: I have a question, you are new owners, when did you become new
owners?
Mr. Venuti: Officially the whole paper took place about January 201h.
Ms. Morikami: 2010?
Mr. Venuti: Yes, 2010, and we have been slowly transitioning ownership as far as
operational control and everything of the company for the past 6 months.
Ms. Morikami: How many helicopters do you own?
Mr. Venuti: We operate 2 aircraft on Kauai.
Ms. Morikami: 2, 5 passenger?
Mr. Venuth Yes, 4 passengers, 5 places.
Planning Commission Minutes
September 28, 2010
45
Ms. Morikami: Thank you.
Mr. Nishida: Did you purchase the air rescue part of the business too?
Mr. Venuti: Well, I mean yes, we still want to offer all the services that Inter-Island has
offered in the past. So yes, we still continue to...Luca has been flying for the Fire Department
for well over 10 years so we still do support that. Obviously they are getting their own aircraft
and that will change but as of right now, yes, absolutely.
Mr. Nishida: Your operation is going to still continue at Burns Field?
Mr. Venuti: Yes, same location, same hanger, same building address, everything.
Mr. Nishida: What would it mean to relocate the operations to the L1nu`e Airport?
Mr. Venuti: For us I think it would be devastating.
W. Nishida: What would it mean though?
Mr. Venuti: For us to relocate to Lzhu`e?
Mr. Nishida: Yes.
Mr. Venuti: Everything that we came for would be gone to us, our own location, our own
hanger, operate out of our own place, a spot where we take off close to the tour route.
Everything about it would be devastating to us. I think we would close our doors if we had to
move to L1iu`e.
Chair: Anybody else? If not let me take some sure, you can say something.
Ms. Dana Venuti: I just want to say that in regards to what this gentleman said and to
what my husband said about the advertising. I have done my very best to make sure since we
have taken over to place things without the waterfall. There are preexisting ads all over, if they
were doing it illegally, we are sorry, we want to do things right and that is why we are here. We
don't want to land anywhere illegal, we don't want to make anybody made, and we don't want to
make our competition mad. We understand what they went through to get where they are.
Everybody should have to do it right and that is why we are here. We don't want to be given the
exception; we want to do it right and just run a good business, thanks.
Chair: Is there a signup sheet? Did you want to say something?
Mr. Luca Rostanio: I just wanted to answer some of the questions that he raised
regarding the actual location. When I inquired of the State Land Use Commission Office in
Honolulu regarding a boundary interpretation of the line between the Conservation and the
Agricultural land even for them they were kind of having a problem since the actual stream sits
between the two sides. One bank is Agriculture and the other is Conservation and they did not
have a straight answer to say it is 10 feet from this side and the other side is Conservation, where
to place the line. As best of judgment and common sense they agreed to place it in between the
line of the stream but it was not written anywhere or anything it is just that one side of the stream
is Conservation and the other side of the stream is Agriculture area. But there was nothing
specific to say it was in the middle of the stream, it is 10 feet on this side or 10 feet on the other.
It has been placed in there by the use of common sense.
For the concern regarding the possible downwash affecting the Conservation area, due to
geographical location of the specific site it will direct the fly in and out of the location and based
on the (inaudible) winds on the location, on one specific direction only, the in and out route of
the side is directly over water. So the concern of generating any dust or anything is not an option
and due to the size of the vegetation surrounding the location it does not allow to fly by the
location, blasting of the Conservation, you have to pull out from the location and fly away. So
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46
the impact of the downwash to the regards of the Conservation area and that is totally legit by the
way, it will not be an issue whatsoever.
Chair: With your experience you have landed there before?
Mr. Rostanio: At the actual site, no, we did not land at the actual site; number one
because it is to this day there is no physical space available to land a helicopter. Some
improvement and some of the requirements of the application, basically there is a guava tree that
has to be removed in order to allow enough room and safety clearance for a helicopter to
physically land there and the removal of some vegetation species of ginger that currently
covering the location. The only other thing that I want to add is before we chose this specific
location, I have been flying for (inaudible) for 10 years, I went through the in and out of
waterfall or waterfall location, severe (inaudible) provocation from the competition. We faced
numerous times surveys, private paid surveys, letters to DLNR level, State level and everything.
If you want to ask me, when they came over and said we would like to go through the
legal process and get the proper permit for the waterfall, to me it was devastating because I
didn't want to hear of the waterfall anymore. To me, I can make a living without the waterfall,
there are plenty of companies without the waterfall landing that make a living on this island. The
reason why I decided to go through the process was number one, we could not afford to have
legal assistance so from a helicopter pilot I had to improvise myself as a planner, land use
attorney and go through all certification processes. I got some serious help from the planner. It
was a very educational process but nothing that I was going to look forward to. I did it for the
simple reason that when we stopped providing the service of the waterfall, for many years we did
a lot returning and the same customers over and over again. We are probably on the island that
company that does more returning customers than anybody else and people that were going in to
the different locations that the company was using before when they heard the fact that the
location was no longer available, it was devastating for them and they were very upset.
I totally believe that Kauai, not just Inter-Island Helicopters, but the entire County, the
entire island, the entire helicopter industry on the island, due to the recent economy cannot afford
to send home more visitors that are not happy with what they wanted to do and what they
planned on doing on Kauai. The reason why I decided to go through the process is more to
serve them than anything else. To my personal pay check, having the waterfall, I do not generate
a living being on the ground, I make money flying. So to me personally it is not of any
advantage whatsoever. But the fact of seeing these people that deserve to be totally excited
about having something different to be offered to them, give them the possibility to see locations
of the island that are otherwise inaccessible... and I am not talking about somebody that is totally
fit and in good constitution and good health that can hike anywhere they want. I am talking
about people with disabilities that if we do not provide the access to such locations these people
will not be able to enjoy a portion of the island that we can provide to them.
The location was chosen, number one, because there was other activity in the same
location going on already. It was not a helicopter tour business but it was used commercially by
somebody else, people were going in there at the same location so it was previously used. The
water that goes away from the same stream that we planned on using, downstream it converged
into the Hanama`ulu ditch that as you guys know is widely used for the tubing activity
downstream. And then furthermore it goes down into the Wailua Waterfall, into the Fern Grotto
activity, the only navigatable stream of water in the State of Hawaii. That was the reason why
we chose that location.
You were right about the close proximity of the residential area, it is the Kahili Mountain
Park and it sits about 5 miles from the proposed site. The only business close by the location is
the Back Country Adventures Zip Line that is a little bit farther down on the same stream. Since
we started the application seriously in March or April, on purpose I tried to deviate from the
regular route trying to follow the route that we are required to future use of that location just to
see if the changes will generate any noise complaints, receive any phone calls from anybody and
so far we didn't receive any of them. That is basically it but the main reason why we are here
is unfortunately I can understand the frustration from some of the people in here and out there
in the industry of what was going on before. It is very difficult taking over a business and be
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47
able to answer and be responsible for the activity or whatever was going on in there, not under
our control.
So at some point we have to draw the line and say okay, what has been done so far and
we have seen it and you guys are very familiar with that, how many times do you have to deal
with after the fact permits. This is not an after the fact permit but it is a way of drawing the line
and getting rid of the old and start with new, provide some quality experience for the people that
come and visit the island. The fact of using the waterfall and extending the amount of land of
our flight, it will keep our day hours during the day longer. Our line people and the people that
work for us will generate more money and we are happily employing a lot of local people so it is
pretty much everything to gain and nothing to lose. I will never use any places that can create
any damage to the island, to the biological level and endangered species. Inter-Island Helicopter
for over 10 years has done more about this island for conservation D and C. I flew many times
up and down bogs of the Alakai Swamp removing the weeds and species, we are totally familiar
on rinsing and how it has to be done to rinse the skids of the helicopter and not spreading any
invasive species anywhere. We have the only approved wash rack in the State of Hawaii that
will allow us to rinse the helicopter at the end of the day.
So I would never do anything like that if I knew I was going to somehow compromise the
beauty of this island and the service that we can provide. I did it because (inaudible) it was
really sad to see these people walking away disappointed that we were not able to provide the
service they were used to and they really enjoyed. And I totally believe that all this going on for
years and years unfortunately has nothing to do with the business, it has nothing to do with the
Planning Department, it has nothing to do with the Conservation to care for the land or anything
it was just an extreme personal level friction that has been going on for years and we do not
associate with that. That is a childish and irresponsible way to conduct business and we are not
here for that. And we don't want to have anything to do with that. I tried to do my part and
approach this outside of this location in the past. I kind of did not receive the kind of response I
was hoping for but I want to make clear and for the record that we are not here to do anything
weird of anything, so thank you.
Chair: Our first testifier is Maka`ala.
Ms. Maka`ala Kaumoana: Aloha Commissioners, first I would like to say thank you for
organizing today's agenda for me personally because there was a lot of stuff just for me, thank
you. Through the Chair, before I make my statement I did provide a copy of my testimony
because I included, not in your packets, I handed it to Lam, I included a couple links that are
videos of some of the landings that they do now so in addition to the advertising. Also, through
the Chair if I may, I would like to have you clarify the precise ownership of this company. It is
my understanding that the new owners do not own 100% of this company.
Aloha Commissioners, I am Maka`ala Kaumoana. I am the Vice Chair of Hui Ho`omalo
I Kaaina and a community volunteer of Stop DAT. I first want to commend and support this
Commission for its reluctance to issue after the fact permits. Second I want to tell you that this is
an after the fact permit. Inter-Island Helicopters has been advertising and landing at waterfall
sites for well over a decade, probably two, without permits. They were ordered to ceases
landings in Wainiha and Kl-lauea prior to choosing this site where they thought no one would
notice. I have provided references to their web advertisements and Kauai resident complaints in
my written statement. Approving this application today is the worst kind of after the fact permit,
one which condones and promotes illegal activity that Kauai residents have been complaining
about for many years.
Further, this company has never cooperated with the Kauai Fly Neighborly Program
under Luca's direction as well, or the more recent attempts by Kaua`i's helicopter tour industry
to regulate its self, also under Luca's guidance. They fly where they like, when they like, how
they like, disturbing residents, visitors, and wildlife at will. No one, including me, takes
anything away from the expert flying skills of Mr. D`tillo and some of his other pilots or his
contribution to the emergency rescues on Kauai. We all respect and thank him for his service
and we have. However none of his good deeds provides nor promises special privileges or the
right to ignore community agreements of industry concerns. I am told this application for a
landing permit at a cascading stream, because when you issued a permit to Island Helicopters
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48
everyone promised there would not be any possible future applications for a waterfall landing. It
is however an application to land at fails.
We protested that permit as precedent and here we go. Hui Ho`omalo I Kaaina and Stop
DAT strongly urge this Commission not to reward the disrespectful behavior of this company by
granting this permit to land in yet another fragile and unique place on our Aina. Should you
choose to ignore the record of complaints, and I have many, if you call Kauai Police Department
and complain about helicopter over flights they give you my home number. We urge this
Commission to condition any permits issued by one, requiring full cooperation with the Kauai
Fly Neighborly Program including a one year review of any complaints received by either a) the
County of Kauai, b) the tour industry help line, c) or those made to Stop DAT, and we maintain
a website. All complaints must be make public and become part of the record in the review of
any permit issued to Inter-Island Helicopters or any other entity that benefits from this permit.
Two, requiring notice to Stop DAT, community watch volunteers when contracted flights will
disturb neighborhoods, pasture lands, wahipana. Other companies do this and it is very helpful.
We suggest and again I didn't realize the company had been at least partially sold, Mr.
D`tillo do what he does best, emergency rescue and response work and leave the tour business to
those companies who understand that the success of the tour industry depends on respect for the
communities and resources of Kauai. This applicant has never shown any such respect. Stop
DAT is a coalition of Kauai citizens and organizations that believe that air tourism should
respect residents. Air tourism should not, need not create undo noise and stress over residential
neighborhoods and scenic environmental areas. Stop DAT's goal is to stop disrespectful air
tourism everywhere on Kauai, mahalo.
Chair: Any questions for Maka`ala, thank you, Bonnie.
Ms. Bonnie Lofstead: My name is Bonnie Lofstead, my husband and I own Island
Helicopters, one of the oldest helicopter companies in Hawaii and on Kauai. We don't want to
be confused with the applicant which has often happened even during our hearings, Inter-Island
Helicopters and Island Helicopters. As you may recall Island Helicopters was granted landing
permits by the Kauai Planning Commission in March, 2009 which was a little over a year ago
but we didn't start until May or June of 2009, to land on a limited basis at Manawaipuna Falls.
The approval took us over 5 years to obtain which is a long time, due in part to the numerous
demands required by the Planning Commission. We are not upset with the long and expensive
process. It took us a long time and we were patient and felt that we were working on our merits.
But new do feel that equal treatment should be applied to similar applications.
We are also disturbed at the feeling that the applicant's past history, track record, and
disregard for the permitting policy may not have been taken in to consideration Island
Helicopters along with every other Kauai helicopter company has had to compete for the past 13
years with Inter-Island's unpermitted but advertised landings at multiple Kauai waterfalls. We
have submitted separately from my letter testimony which is all public record of approximately
140 pages of documentation of unpermitted waterfall landings performed by Inter-Island
Helicopters. The records span in a time of over 13 years to include pictures of several of the
different landing areas on Kauai and personal experiences from the many customers who paid
for their flights. Inter-Island has circumvented all the requirements for landings to include
advertising without permits. Inter-Island continues to this day to advertise their waterfall picnic
and swimming tour. I just came home from Oahu and they are at the airport.
I do hope that each of you will please look over this information in order to fully
understand our concerns. I am taking the time and the consideration to testify today to ask you
to review the record and credibility of the applicant. We spent 5 years working on this permit
and I promise the information packet will be informative and a fair description of our frustration
in running a business and having a business, operating a business, it is really hard to compete. I
feel the permit we have was earned. We have followed the rules and taken all the steps to satisfy
the concerns. I question why we had to follow strict protocol yet this company has not been
offered the same process. I am troubled by Inter-Island's broad public record of disregard for the
requirements necessary to promote and be honored with such a permit. We wonder what
assurances the Commission will be able to require of a company with a history of defiance to the
process and the system. Approving a permit may just be a vehicle for this company to continue
to land anywhere they please.
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Although Inter-Island's proposed landing area is very similar to Island Helicopters, both
landing on private Ag. land and in close proximity to Conservation land, Island Helicopters was
required to submit a full EIA to include flora, fauna, archeological and cultural studies and Inter-
Island Helicopters was not. Island Helicopters had several flight limitations imposed by the
Planning Commission including time at the falls; Inter-Island does not have these restrictions.
Island Helicopters was required to submit and enforce a plan to the Planning Commission to
prevent propagation of invasive species while Inter-Island was not. Island Helicopters was
required an updated flora and fauna report prior to renewal of its landing, this was not required of
Inter-Island either. I am not upset because a competitor may have a waterfall landing, I am upset
because Inter-Island Helicopters may be receiving favorable and unequal treatment in the
process, thank you.
Chair: Let me take a caption break.
Commission recessed at 4:07 p.m.
Meeting was called back to order at 4:26 p.m.
Chair: Were there any questions the Commissioners had for Bonnie? If not I will move
on to the next ...Donald.
Mr. Donald (Inaudible): Good afternoon Commissioners, my name is Donald
(inaudible). I am the Director of Maintenance for Inter-Island Helicopters. I am also a part time
employee with Niihau Helicopters and I have been for years. I have been a long time resident
of Kauai, in fact I moved back here in 1998 and previously was out assisting the U.S. Navy as a
civilian contractor. I took this job with Inter-Island because of the new owners basically. I find
them very trustworthy and very stand up in their trying to do things by the book. Whatever
reputation you have heard in the past, it is a new ball game now. I have a lot of respect for the
past owner also. And I had a very secure job on the Base working for the heavy lift operator
(inaudible) Corporation and I decided to take a chance and come down here in this economic
situation and take a job with the new owners.
I would like to address a couple of points that were made. Inter-Island's history initially
was the first waterfall landing company, and legally, 15 years ago with Pflueger. The property
was sold that that went away. So that company actually initiated the waterfall landings. You are
addressing the past items with the new owners, you can't associate one to the other just because
of the name, if you did you would never fly with Southwest Airlines because their pilots are all
drunks, that type of thing. In this economic situation any way to promote a positive fiscal benefit
to the Westside or Kauai as a whole is a plus. Right now we only have two helicopter
companies on the Westside, Niihau Helicopters and Inter-Island. Niihau is one of the three that
are allowed off-sites landings, you have Safari, you have Island, and you have Niihau obviously
which lands on Ni `ihau and are permitted to land on their own property. This would be the
fourth one but in the way it is not the fourth it was the first.
In addressing favoritism, you are saying one company is permitted because of Ag. land
private and you are trying to associate that with a company that has had to go through the process
because you are trying to do something on Conservation land. Those are two different points. I
just think this is a real positive benefit for Kauai. Inter-Island is a good company. These
owners are very good. It is only a positive benefit for the County and the State to provide a
business and anything we can do to promote tourism or business on the Westside or Kauai in
general is going to be a benefit. Thank you so much for your time.
Chair: That exhausts the list, is there anybody else?
Mr. Carl Itnparato: Aloha Commissioners, my name is Carl Imparato and I am speaking
this afternoon on behalf of the Kauai group of the Sierra Club. We ask that the Commission
deny the requested permits because approval of the permits would further expand the air tour
industry leading to more noise over Kaua`i's communities, scenic, and environmentally sensitive
areas. There are four points I would like to make, first of all the approval of these permits would
effectively open up all of Kauai to new helicopter landing sites. In mid 2006 the Planning
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Commission was asked to approve the landing area for helicopter tours on Robinson land.
Community testimony opposed that site, among other things the precedent setting nature of the
footprint of the helicopter tour industry. The Commission approved the landing area but said it
wasn't precedent setting.
In early 2009 the Planning Commission was asked to approve another landing area for
helicopter tours at Manawaipuna Falls. Again community testimony opposed this, again that
testimony cited the growth inducing and precedent setting nature of increasing the helicopter tour
industry. The Commission approved the landing area but again said it wasn't precedent setting.
Now you are being asked to approve yet another landing area for helicopter tours, you are being
told that this is not precedent setting and at the same time you are being asked to include a
condition that encourages the landowner to allow even more helicopter tour companies to land in
Kaua`i's interior.
So looking back the Planning Director's report in the Manawaipuna landing site docket
was absolutely correct when it stated that granting of these permits would establish a precedence
and that approval could be the catalyst for proliferation of private helicopter landing sites on
Kauai. If these requested permits are approved it will be virtually impossible for you to say no
to the next request for more landing sites throughout the island. You would have no rational
basis for saying yes to these permits but no to subsequent landing sites on other agricultural and
rural lands.
Second point is that the Commission's approval of these permits would lead to further
expansion of the air tour industry. The fundamental purpose for this application is to stimulate
additional tourist demand for air tours. It is obvious that Inter-Island's intent is to create a
product that draws more customers than it has today. If the product is successful and draws more
customers then Inter-Island will obviously add more flights on underutilized helicopters or add
more helicopters to the fleet. Simply put, more customers equals more flights equals more noise.
Third, the applicant, Inter-Island Helicopters is without any doubt the most disrespectful
helicopter tour company on Kauai and the least deserving of any discretionary permits and
public benefits. The overwhelming majority of helicopter noise problems on the North Shore of
Kauai where I live are related to one single helicopter company and that is Inter-Island. It is the
one company that has consistently refused to participate in the Fly Neighborly Program,
consistently ignored the fly neighborly routes. Over the past month much of the North Shore of
Kauai has been virtually free of helicopter tour noise and the reason is that Inter-Island has been
out of sight for this last month while this request has been pending before the Planning
Commission. But that is not the case for February, March, April, May, June, and July when the
new owners had the company and still Inter-Island helicopters were flying low through Hanalei.
If you grant these permits what is to say that that good behavior won't end and the disrespectful
flying will continue.
So if any good is it to come from this permit application it would be from the Planning
Commission conditioning your approval if you are going to approve any of these permits on
future behavior. And that brings me to the last point, if you decide that you do want to grant the
requested permits please grant approval only subject to three mitigation measures. One, respect
for Kauai residents, approval must be contingent on a requirement that Inter-Island complies
with the Fly Neighborly Program and the designated flight routes. And to be meaningful the
requested permits must be subject to revocation for noncompliance of that requirement as well as
other noise nuisance complaints brought to the Planning Department. Number two, net reduction
in daily flights. Now the application states that granting the requested permits would result in a
40 percent reduction in the number of daily flights which are currently between 10 and 14 flights
a day. If that is true than approvals should be contingent on a condition that Inter-Island will
conduct no more than 6 to 9 flights per day on the island, that is the 40% reduction. Get it in
writing.
Third and finally, respect for the environment. Approval and granting this new public
benefit to a company should be contingent on Inter-Island's agreeing not to fly deep into Kalalau
Valley and Hanakapiai Valley, the two Napali Cost valleys where Inter-Island Helicopter's noisy
operations impact he greatest number of hikers, and that is residents and tourist, who are seeking
solitude. In conclusion, bit by bit the Planning Commission has been opening up more and more
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51
of Kauai to air tourism and noise pollution. We would like to see this go no further and that you
deny the permits. But if you are going to consider granting the permits then please protect the
public interest by conditioning approval on the 3 mitigation outlined above. Thank you for your
patience with this somewhat lengthy testimony.
Chair: Thank you Carl.
Mr. Nishida: I have a question, you testimony has consistently been that there is going to
be an increase in the waterfall landings if the waterfall landings are permitted. Do you belong to
that Stop DAT?
Mr. Imparato: Yes, I am a member.
Mr. Nishida: So is there any way that some of these landings can be something that you
can endorse based on different conditions? I know you cannot speak for the group but is there
any way that that could possibly happen?
Mr. Imparato: I think so because again, there are a number of concerns, the first is not
increasing the total amount of noise on the island. So when all of these applications have come
before you they said it was going to be less noise because there are going to be fewer flights. So
that is a benefit as long as you get it in writing and people don't start adding more flights
afterwards. Secondly, and I will speak now for my neighborhood in Hanalei and I will speak for
the Sierra Club's concern about the hiking areas, to the extent that you grant permission to land
at some remote waterfalls which are arguably out of the public's earshot and line of sight, then
condition that on getting the helicopter tours out of some of the other areas where they do impact
people. Get some conditions that say we will let you land here but no more in some of the more
tourist frequented or resident frequented valleys on the Napali Coast or up Waimea Canyon.
So I think there is a tradeoff here and indeed, if you have something which is valuable or
a remote landing site and can say we will give you this benefit and in return you benefit the
community by not being where they see you all the time and hear you then that is a valid
consideration.
Mr. Nishida: I was talking more specifically about the group, so is the group an
organized group of individuals that are identifiable and consistent?
Mr. Imparato: Right, there is a core membership and then there is a larger membership, I
would say about 40 but then there are the organizations that are key participants in Stop DAT
and those include 1000 Friends of Kauai, the Sierra Club and the Hanalei to Hd'ena Community
Association. So there is a group and indeed we have put together a list of things that we wanted
to engage with the helicopter tour industry on. For example it is very difficult to identify the
helicopters with the exception of Inter-Islands because they run a different type of helicopter and
it's got distinguishing features. So we have asked for GPS locators or the helicopters because
then it would be clear who is flying in the areas they shouldn't be flying. So there are a number
of things like that where we feel that we can do something which allows the tour industry to
operate but protects the public and basically puts in some mechanisms so that we can basically
see who is doing the wrong things and enforce against people who are doing the wrong things. It
is a great group. It has a list of 3 or 4 things that it really asks the helicopter tour industry to
consider.
Ms. Matsumoto: So have you worked with other companies toward that and have you
been successful?
Mr. Imparato: I would say we haven't been successful as of yet. We about 2 years ago
started our campaign and the first things that we really wanted to see were GPS on the
helicopters and actually on the tour aircraft as well because the 6 winged aircraft at this point are
an even bigger problem than the helicopters. But the helicopter tour industry decided it wanted
to go its own direction on this and create its own hotline which we did not want to participate in
for the simple reason that it's like asking the military to investigate its own torture or police to
investigate abuses. If there is going to be a hotline it really has to be something that has public
input as well for credibility. So we haven't been actively engaged, we are talking to some of
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52
them again because we would like to work together. And I will say in defense of the good
intentions of the tour industry it may not want to work closely with the citizens at this point, it
may not want to have the definitive GPS locators on the aircraft but I do believe that again, with
the exception of Inter-Island virtually all of the helicopter tour companies on the island have
been participating in the tour hotline. And I would say that probably 80 to 90 percent of their
over flights that were in places where they shouldn't have been have ceased. So I think there is
good faith on the part of a lot of the helicopter tour operators.
Chair: Any more questions, thank you Carl. Is there anybody else in the public that
would like to testify on this agenda item? Seeing none I will bring the meeting back to order,
Cammie?
Ms. Matsumoto: I did have a question of I guess it would be the current owners. How
long did the previous owner own the company?
Mr. Venuti: About 26 years.
Ms. Matsumoto: Consistently, it was one...
Mr. Venuti: In the beginning there were partners but he has been the staple throughout
the whole time.
Ms. Matsumoto: One person was a staple for the entire 20 years?
Mr. Venuti: Yes.
Ms. Matsumoto: And you bought that from him, bought the company from him?
Mr. Venuti: Yes.
Mr. Texeira: Are you the sole owner?
Mr. Venuti: She and I are, yes, she is the President, 51% owner, and I am 49% owner.
Mr. Nishida: Have you heard anything from Maka`ala or Carl that you wouldn't consider
for your operation?
W. Venuti: I wrote down two things here, the one would be the net reduction in daily
flights. If I have the possibility to increase the amount of flights I would do that. I am a business
owner, I would fly more if I could fly more, but hands down, that is one thing I would do. Other
than that the Fly Neighborly, I had never specifically heard of this program but I will vouch
hands down for Luca, he did all of my training here on the island. He, exactly what I just spoke
of with her after this and we are going to get the exact map from her and go over it, Maka`ala.
Every point that Luca pointed out to me, don't go deep into Kalalau, don't go into to Hanakapei,
stay offshore at Hanalei, come on at this exact point. If you have to fly Kipu watch for this place
here, exact point is exactly what he teaches. I can vouch for the pilots we have now, we have all
been trained that way, we will follow that. I have no problems with the Fly Neighborly and that
type of stuff, absolutely no problem with that.
Mr. Nishida: Your operation in Utah, what is your market, tourist?
Mr. Venuti: We do a little bit of tourist, maybe 15% of what we do, 20% of what we do
is tourist. We do a lot of work for the government mostly involving animals.
Mr. Nishida: And what do the tourists go to see?
Mr. Venuti: Zion National Park and the Grand Canyon.
Mr. Nishida: And the rules regarding landings?
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Mr. Venuti: Absolutely more strict than here. There are landing sites in the Grand
Canyon, we are working on acquiring two of them, we will be the first company in the State of
Utah to have a landing permit in the Grand Canyon. But they are very specific. They have
already been approved, there are only a certain amount of them that are available and there won't
be more. We have worked with the Air Tour Act; we are very familiar with all the regulations.
Mr. Nishida: For me one of the things about the environmental assessment is that it is an
excuse to say that there is no environmental degradation. So when the environmental assessment
is utilized it is something that the Commission can look at and in fact, like Mike defined, it is not
up to us to identify, to make the determination. So not having an environmental assessment
which is like a lower one than a statement its self is really putting the burden on you folks to
come up with...
Mr. Venuti: Yes.
Mr. Nishida: So that means biologists or whatever in order to satisfy our questions
whereas the way Mike described it in an assessment, you know what I mean it makes it more
discretionary on our part when that assessment is not available.
Mr. Venuti: We haven't done an entire....
Mr. Nishida: So that being one consideration I have a lot of questions about the
environmental impact and the testimony that has come from your company so far is there is no
environmental impact. The testimony from the Planning Department is that the triggers for the
environmental impact was not triggered so that leaves the burden on you to go hire these guys to
come in front of us to say something. Second, technically, I had forgotten until he came up, but
actually there is that landing on Niihau too so actually there are getting to be quite a bit of
landings. So from the Commission's end, I will tell you the general feeling, it's hard for us, the
helicopter is one of those things that is hard for the Commission to approve.
For me it is like you guys are getting the brunt of this Inter-Island Helicopter hangover
and then to me what I would suggest is rather than having a vote today based on the information,
that we defer and then you guys talk to Carl. Because you guys have the mainland experience
and I think in this case it is a much stricter experience. The Grand Canyon is like it went through
a huge mess that they had to clean up so to me I think what Carl is talking about is really
something that you guys might be able to agree about or maybe not, but you may be able to agree
on some of that stuff. If we defer rather than voting on it maybe you can come back with
something from the Stop DAT. They are saying it is an identifiable group that you can meet with
principles that are a core group so you can get a good idea. I don't know what it would mean but
maybe you could agree on some of the things that they are trying to do and then you can come up
with some conditions with Kaaina that would make it work for us. But I am only speaking for
myself but I think in general this is just one of those things and I think you realize it is hard for
community people to approve these helicopter landings especially since this is several along the
way.
Mr. Venuti: Yes. We don't want to have any negative impact. Obviously there is going
to be some impact on something, we want to do this with the least amount of impact. One of the
very first things that we did was to get a well respected botanist who looked over the entire area,
endangered species and those types of things. So we are aware of that and that is why we are
here.
Mr. Nishida: And unlike the Robinsons it looks like as far as...I saw Ken Woods and he
looked through it and he said it is mostly non-native invasive species and Ken is thorough so you
are going to have that. But all of this kind of thing would come out in an environmental
assessment but that is hundreds of thousands ...I don't know what it is actually but would come
out. But the department is saying based on the triggers they cannot do it so that would depend on
you guys to come in front, I think for me, I would need Ken talking or... although the report was
good. I would need a lot more presentation to approve because I have to point to a person and
say okay, this person is saying goes ahead.
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And then you have the community group which I really think you are going to be able to
get some, like the GPS thing they want, I don't see a reason why not. You know what I mean, it
is like the technology is there, it is fairly cheap, you can confirm things. I don't know, it just
seems like it to me. The department hasn't come to scold me for doing this but I would think
there would be a way, you know you might be able to agree with a community group rather than
telling us...I don't think it is such a good idea for us that you have to talk to them and settle
something before it comes back to us but to me, it would provide a lot more testimony if you can
meet with them and agree. If you can get them to come here and say you know what, these are
the rules that these guys have agreed with, we don't like it but we can live with it. It would be
more helpful than having us vote on something with that in the community.
Staff: I guess I would look to the counsel on this but at this point the department would
amiable, particularly since it is the Commission's suggestion, to sitting down with both parties
unless counsel has any objection to that.
Mr. Dahilie: Ultimately if the Planning Department wants to incorporate community
input before it gives its final recommendations for entertainment by the Commission I don't see
a legal problem with that.
Ms. Matsumoto: I have a question about the transition from the previous owners to you,
how many pilots do they have employed and did that change from when you took over.
Mr. Venuti: There was kind of a period of almost inactivity with Inter-Island for about 6
months before we actually purchased the company.
Ms. Matsumoto: But before the 6 months.
Mr. Venuti: Luca might be better...
Mr. Rostanio: I was the only one.
Ms. Matsumoto: One pilot.
Mr. Rostanio: Luca Rostanio for the record. During the last period Ken D `Atillo and
myself were the two pilots, active pilots for Inter-Island Helicopters. And to answer a couple of
the concerns raised by Maka`ala earlier and the gentleman from the Sierra Club, one thing to
keep in mind is that over the years Inter-Island Helicopters had a unique niche of business on this
island that as not carried out by anybody else. Until about a year ago we were the only ones
pretty much doing all the utility work on the island that requires a complete different type of
flying than just the regular sightseeing tour that the general public is used to. We were serving
the forestry, the State, search and rescue, invasive species, (inaudible) the National Tropical
Botanical Garden, we were completing an invasive species survey they required, low level
flying, power line patrol. Yesterday morning if you were looking around the island you probably
saw the red helicopter flying 50 feet from the power line, well we were doing our job, we were
doing KIUC inspections of the power line around the island. To an untrained eye they might
have said oh, there goes Ken D`Atillo flying illegally again. It is not that way.
I have been flying Kauai personally for 13 years, I never received despite what they say,
I never received a noise complaint by the FAA, I have never been investigated for a noise related
issue on a sightseeing tour. I have been mistakenly exchanged for other people doing harvest
operations, doing other types of flying, as soon as they see a type of helicopter like ours and to
go back to the Sierra Club guy, currently on the island there are 5 types of helicopters like the
one we are currently flying.
Chair: Excuse me, you have to appoint to us. It is not them against you. And you
answered her question and I saw you yesterday morning pass my house, I was watching you and
it was 6:30 in the morning and you did fly over my house.
Mr. Rostanio: It wasn't me at 6:30. I started at 8:10 so it wasn't me.
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Chair: So with that are there any more questions for the applicant? Any closing remarks,
I will give you the floor if you need to.
Mr. Rostamo: Anything that you need or that you think will make your job and your
decision easier that we can provide to you, some maps were mentioned earlier or anything, let us
know. And if we can make your job as easy as possible and to satisfy any questions that you
might have or anything that we can do to make your job easier you are more than welcome to.
Like I said we are not represented by a legal assistant through the process, it is a learning curve
for us. I have never done this before. I tried to use the best common since as I could, if there is
anything else I can do let me know.
Chair: With that I will bring the meeting back to order. The report does have the
conditions and if we want to at least close the public hearing.
Ms. Morikami: Mr. Chair, move that we close this public hearing.
Mr. Texeira: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Camilla Matsumoto and seconded by Herman Texeira, to close
the public hearing, motion carried unanimously by voice vote.
Chair: What would be the pleasure of the Commission, to read the recommendation or
the hearing is closed.
Mr. Blake: How is the public input component going to be facilitated?
Staff: Which public input?
Mr. Blake: We were just talking about or Jimmy was just asking the applicant if there
was anything that they could agree on with the Sierra Club and the other watch dog organization
so that if and when it does come back it is limited in scope to the things they cannot agree on. I
thought that Caven asked if there was going to be a public input component to the final
recommendation.
Staff: I can't say exactly the details of working that component into say a supplemental
Director's report but as of now I think what we kind of agreed to was in the event both the
applicant and the Fly Neighborly program or organization were willing to sit down the
department would be willing to sit down as a third party, a defacto third party mediator to a
certain extent. And whether or not they come to an agreement and they can propose those
conditions with the department, whether or not they would propose those conditions at the next
meeting that they are scheduled for or whether or not the department would recommend them as
conditions, I don't think we have quite worked out. But in some manner it would be established
that way or perhaps they may not be able to come to a consensus.
Mr. Blake: So is the ones on the applicant to initiate the meeting?
Staff: It would be on the applicant to initiate the meeting. We would facilitate to the
extent possible but the ones would be on the applicant to initiate those meetings with say Carl or
Maka`ala or anybody else within that organization.
Chair: I wouldn't have staff or the department facilitate anything, it is the applicant's
application here and it is up to him to either chase the community members that they want to
comment and if the Commission wants to defer action, we can for two weeks and have it be
brought back on the agenda and hear from them. If there is nothing from them we can make
decision making then. So it is really our prerogative to him another two weeks to come up with
better testimony and reply back to what he has heard today, give him a chance, we can. Or we
can make a decision today.
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Staff: I would just like to add concerning the public input component, the Commission
and at the department's recommendation has taken action of the same day of hearing the initial
application previously, one in particular to date. Generally though when reviewing cases in
which there seems to be a fair amount of public input or fair amount of public objection to the
project, generally it is the department's recommendation that action be scheduled for another day
specifically to allow that 7 day period or window in which public testimony can be submitted
after the close of public hearing.
Ms. Morikami: Mr. Chair, as far as giving them two weeks I think that we probably need
more time to schedule a meeting where all the players can sit down and see what can be worked
out. I am not really sure if we should say within two weeks, if we just deferred and when the
applicant, if the applicant is ready to come back in then they could come back in.
Staff: I will just inject that...
Chair: Let me first ask this, does the Commission want to defer this today for action? If
we do then let's just motion to defer and with that I can make a closing comment to the applicant
if we want to have the applicant know that he has a hill to climb.
Ms. Morikami: Mr. Chair I am ready to vote today but if it is the consensus of the
Commission to defer it I will go along with the deferral.
Mr. Nishida: For me I need two things, one, I don't think ...I could vote today but the
vote would be based on the lack of testimony regarding the environmental impact, it was
presented to us that there wasn't enough testimony regarding that. And because of the issue of
the landings I would like at least, I would like to see some of the conditions that ...some of the
conditions seem reasonable that Carl asked for, Carl and Maka`ala asked for, participation in the
Fly Neighborly program and all that sounds reasonable to me. So what I would really like to see
is that we develop some kind of helicopter landing plan but that might open it up to even more.
So I would like to see that there be more ...that they meet and then come back with some
conditions.
Chair: Any more comments?
Ms. Matsumoto: I think people have to work together and communicate with each other
because this is a really small island, this is not Utah. Utah, you can't even compare, the space,
the air space alone at the sites is not comparable to what we have here. So if you are going to do
business here I think it is really important to work well with the community. It is too small of a
place. We don't have a whole lot of waterfalls, we have incredibly beautiful spots on the island,
natural and scenic places. You can say we have an abundance of that but it is also very limited.
So there is no room for fighting and thinking that one company has the right over another
company. That is not going to work in the long run in my opinion.
Chair: Commissioners, you want to defer then?
Mr. Texeira: I am ready for the vote.
Chair: If we are going to call for the vote actually what I would like to do if we are going
to call for the vote is probably go into executive session and go from there so Hartwell, are you
ready to vote or are you wanting to defer?
Mr. Blake: I am in the same boat as Jimmy. I am ready to vote but there are questions
that would influence the vote because of the lack of information.
Mr. Nishida: That being said I move to defer, given that there are new owners, move to
defer to the next meeting and if they call in and they decide to set up a meeting they can call you
and try and reschedule for another time. Do we have a time limit to this?
Staff: The application was, well the hearing was closed today so that would give roughly
60 days from today before action needs to be taken.
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Mr. Nishida: I am going to move to defer until the next meeting but if they are unable to
work out something, if they are close to working out something and they need more time then
they can call you and the department can decide to defer. I would like to set a time so they
would know but if there is no resolution... but if they need one week more until the next
meeting...
Staff: I think if you give the latitude that you just defer and once we have a resolution or
if it is pushed all the way to the end then we will bring it back to the Commission.
Mr. Nishida: Okay, move to defer.
Chair: Is there a second?
Mr. Blake: Second.
Chair: Discussion?
Ms. Matsumoto: How about doing it the opposite because I heard earlier that maybe two
weeks wasn't enough time to get the groups together.
Chair: Let me just say something real quick. If we motion to defer it is on the applicant
to resolve the issue that you have heard today from the Commission. If you do not then we have
60 days to deliberate and that is up to us on how we are going to come down with this decision
making. It is not the Planning Department's Kuleana or responsibility to make you guys meet.
If I were you I would probably follow Carl home so you know where he lives so there are no
excuses where he is at, when he's at, if he is returning your call. I would seriously do that. If it
is really important to you, you follow him home and your wife follow Maka`ala home. That is
how I see this application. You have heard all the concerns and with that I don't think it is for us
as a Commission to find when you can meet, what time and all that. That is your responsibility.
So I don't think we need to deliberate any more on when they are going to meet or how they are
going to meet so with that there is a motion on the floor, if there are no more comments I will
call for the vote, all those in favor for a deferral say aye, opposed, motion to defer.
On motion made by James Nishida and seconded by Hartwell Blake, to defer action,
motion carried unanimously by voice vote.
NEW BUSINESS
For Acceptance into Record - Director's Report(s) for Proiect(s) Scheduled for
Public Hearing on 10/12/10.
Special Permit SP-2011-3, Use Permit U-2011-5 and Class IV Zoning Permit Z-IV-2011-
5 to permit the operation of outdoor recreation activities and the construction of recreation
facilities, including zip-line facilities, on lands located 4pprox..25 miles east of Kipp Road and
Aakukui Road intersection. Kauai, further identified as Tax Map Keys 3-3-001:001:001, 3-3-
018:002, and 3-1-002:001, and affecting an area approx. 5 acres = Outfitters Kauai, Ltd.
Director's Report pertaining to this matter.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to
receive into the record, motion carried unanimously by voice vote.
For Acceptance and Finalization - Director's Report for Shoreline Setback Activity
Determination. (NONE).
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ADJOURNMENT
Commission adjourned the meeting at 5:08 p.m.
Respectfully Submitted.
A00
Lani Agoot
Commission Support Clerk
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