Loading...
HomeMy WebLinkAboutpcmin03-23-10 KAUAI PLANNING COMMISSION REGULAR MEETING March 23, 2010 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, Caven Raco, at 9:15 a.m. at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room 2A-213. The following Commissioners were present: Mr. James Nishida Mr. Herman Texeira Ms. Paula Morikami Mr. Caven Raco Mr. Jan Kimura Mr. Hartwell Blake Ms. Camilla Matsumoto Discussion of the meeting, in effect, ensued: Swearing in of Chair, Caven Raco. APROVAL OF THE AGENDA Chair: Can I get an approval of the agenda? Mr. Texeira: So moved. Ms. Matsumoto: Second. Chair: All those in favor say aye, motion carries. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to approve the agenda, motion carried unanimously by voice vote. Ms. Matsumoto: Mr. Chair, I move that we approve the agenda and receive for the record all submittals, applications, staff reports, testimony and other addendums presented to the Commission relating to the posted agenda items listed. Mr. Texeira: Second. Chair: All those in favor say aye, motion carries. On motion made by Paula Morikami and seconded by Herman Texeira, to receive all submittals, applications, staff reports, testimony and other addendums presented to the Commission relating to the posted agenda items, motion carried unanimously by voice vote. GENERAL BUSINESS MATTERS Status Report (2/26/10) from Walton D. Y. Hong Esq., as to its efforts to relocate a cement batch plant for Use Permit U-89-47 Special Permit SP-89-20, Class IV Zoning Permit Z- IV-89-53 Tax Map Key 5-3-6• por. 114, Princeville Kaua'i = Glover Honsador LLC. Staff Report pertaining to this matter. Staff Planner Bryan Mamaclay read staff report and department recommendation (on file). Chair: Commissioners are there any questions for the planner? Seeing none then I will call the applicant up to add any comments. APR 2 7 2010 Mr. Walton Hong: Good morning Mr. Chairman and members of the Commission. For the record my name is Walton Hong representing the applicant. We have no additions or comments to make on the recommendations by the department and we ask that you approve the same. Mr. Kimura: I have a question. Have you guys considered any alternate sites beside Anahola in case Anahola falls through? Mr. Hong: No, we are putting our eggs in one basket in Anahola because it looks very, very promising. I can't disclose where the site is at this point in time but that is what is on our radar right now. It looks very, very good. Mr. Kimura: And has Princeville come up with any solutions for your guys? Mr. Hong: Other than the letter saying we have to get out by the end of this year. I don't want to speak for Princeville, I am not authorized to speak on behalf of Princeville but I feel at this point in time very confident we will be able to get another site and make the conditions that are set forth in this recommendation. Chair: Any more questions for Walton, thank you Walton. Is there anybody in the public that would like to testify on this agenda item, seeing none the I will bring the meeting back to order. What would the pleasure be of the Commission? I will entertain a motion to accept the report. Ms. Matsumoto: So moved. Ms. Morikami: Second. Mr. Texeira: Just curious Mr. Chair, in the original motion that was made by Paula about receiving, it was just to receive all of the... Chair: Correct. Mr. Texeira: Not to accept, just to receive. Ms. Morikami: Yes. Chair: If there is no discussion then I will call for the vote, all those in favor say aye, no, motion carries. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to accept staff report, motion carried unanimously by voice vote. COMMUNICATION Letter (2/23/10) from Carol Suzawa Chairperson Charter Review Commission, to Ian Costa and Members of the Planning Commission requesting comment relating to the Charter Review Commission's consideration of various Charter amendments that propose to revise the way in which Commission appointed department heads are hired and removed. Executive Session: Pursuant to Hawai'i Revised Statutes Sections 92-4 and 92-5(a)(4), the purpose of this executive session is to consult with the County's legal counsel on questions, issues status and procedural matters. This consultation involves consideration of the powers, duties privileges immunities and/or liabilities of the Commission and the County as they relate to these agenda items. Mr. Costa: There is no planner for this item but Mr. John Isobe is present from the Boards and Commissions. Chair: John, you can come up. Planning Commission Minutes 2 March 23 2010 Mr. John Isobe: Good morning Planning Commissioners. I am John Isobe, administrator for the office of Boards and Commissions and Executive Assistant to the Mayor. I am happy to answer any questions that you may have. Chair: Is there any questions for John? Mr. Blake: Right now with regard to the Planning Commission, the Commission selects, goes through its own selection process for a Director and we do the hiring. So the Director doesn't have to be confirmed by the Council at the present time. Mr. Isobe: That is correct. Mr. Blake: In the past and I am not sure if this was only a Planning Commission or Planning Department problem, the question was who has ultimate control over the Deputy Director? Because the Commission doesn't hire him and the question was whether the Mayor does or whether the Planning Director does and I am not sure how that was ever answered. Mr. Isobe: I believe that there was a County Attorney's opinion that indicated that the Planning Director appoints the Deputy Planning Director. Mr. Blake: And so does that mean that the Deputy is answerable only to the Director? Mr. Isobe: Well he is appointed by the Director and in the absence of the Director obviously takes the place of the Director. That being said I would assume that the Deputy Planning Director is also answerable to this body, the Planning Commission. Mr. Blake: Well the issue was whether the Deputy Director was answerable to the Mayor at the time. I don't remember what cause it. Do you remember that issue Ian? I don't remember why it came up it was just a source of spirited conversation. Mr. Costa: I don't believe it was answered beyond that the Deputy is appointed by the Director and it wasn't clarified beyond that. With respect to your question though, the Director and the Deputy are members of the administration and as a matter of reality we do answer to the Mayor. Mr. Blake: I remember this coming up also with regard to the Police Chief's secretary, personal secretary that was not a civil service appointment. Was the secretary ultimately answerable to the Mayor because the Chief was appointed by the Police Commission and the Chief hired his own personal secretary? So I am not sure whether those issues are even germane to this matter that we are discussing right now it is just something that, there are loose ends out there that I thought weren't tied up by this proposal. Mr. Isobe: This proposal primarily focuses on recommending a process that would alter how the Planning Director is appointed and removed which would be different from the way the current Charter specifies this. As stated, the current Charter specifies that this body, the Planning Commission, has the sole authority to appoint and remove the Planning Director. The recommended amendment or the proposed amendment that is being considered by the Charter Review Commission would take that process further where the Planning Commission would have the ability to set up the criteria for selection of the Planning Director and nominate 3 to 5 people who then the Mayor would appoint. And the Mayor could then only appoint from the list that was submitted by the Planning Commission. Thereafter, when the Mayor makes his or her appointment that nominee if you will or appointee would then be, that name would then be forwarded to the County Council and the County Council would need to confirm or approve the appointment that was made by the Mayor. So the process is somewhat similar to the way judges are selected in the State of Hawai'i or even how Commissioners are ultimately selected where the Mayor would have the appointing authority with confirmation from the County Council. Mr. Blake: That is also the situation with regard to the County Attorney, correct? Mr. Isobe: Yes. The attorney is somewhat similar to that. Planning Commission Minutes 3 March 23 2010 Mr. Blake: And the County Attorney by Charter represents the whole County, the Council and the Mayor. And the only time as I recall the County Attorney would line up with the Mayor if there was a disagreement between, specifically between the Mayor and the Council. Mr. Isobe: I cannot respond to that. I don't know. Mr. Blake: My question is what is the reason for having confirmation by the Council? Mr. Isobe: The whole idea initially as put forward was to ensure that there is accountability and complete transparency in the appointment of board appointed department heads. So the process rather than, currently as it stands, goes through the Commission, neither the Council or the Mayor has any say in the appointment and removal process. So the idea was to open it up so that there is a lot more transparency and a lot more opportunity for input, one, and second to ensure that everyone is clear in terms of what are duties and responsibilities of the appointee as it is moving forward. Mr. Blake: But removal would still start here. Mr. Isobe: Well removal would start with, it could start at the Planning Commission level but as the amendment is currently worded removal would be the prerogative of the Mayor with the approval of the Commission. So neither body has singular authority to remove the Director. Mr. Blake: So the Mayor appoints the Director subject to confirmation by the Council and the Mayor removes the Director subject to approval by the Commission. Mr. Isobe: Correct. Mr. Blake: Thank you. Mr. Nishida: The last Police Chief was hired by, I don't know what you would call him, head hunting firm or it was kind of subbed out to come up with the appointees for the review of the Police Commission. Mr. Isobe: I am not real sure how the process worked. What I do know though is that the last Police Chief was hired or appointed by the Police Commission, solely by the Police Commission. Mr. Nishida: This wouldn't preclude similar, well if it was a head hunter kind of process where an independent panel would come up with a preliminary screening this doesn't preclude that kind process? Mr. Isobe: No it does not. The process under which the Commission would deliberate and decide how a Director would be hired is really up to the Commission. So it would be this body that would decide the process that it would like to go through in order to make the selection process as well establish the criteria under which the selection would be made. And the only thing that the Commission in fact is required to do is submit a minimum of 3 names to a maximum of 5. Mr. Nishida: In my mind too it seemed to me that as far as the Police Commission and the Planning Commission was concerned the work that we do is significantly different. And I was kind of surprised when it was all lumped together as part of it. Can you talk a little bit about why it was all, the Police Chief, the Fire Chief...? Mr. Isobe: The reason that this came before the Charter Review Commission is the Charter Review Commission had established a subcommittee on County Governments and part of the recommendations that came out of this subcommittee was to look at altering if you will the methodology in which certain department heads are appointed and removed. There currently exists I guess the best way I can explain it is that there are three sections of the government. One part is the Mayor and the executive branch and that group of department heads are appointed and removed by the Mayor. The second would be the legislative branch which is the County Council and they have a group of department heads and staff members that are primarily appointed and Planning Commission Minutes 4 March 23 2010 removed by the County Council. Then there is a third section within the County where department heads and some of them you named, the Fire Chief, Police Chief, Liquor, Personnel Director and Planning Director are appointed and removed by Commissions. So the idea of the subcommittee was to begin to consolidate around two primary sections of government, one being the executive branch and the other being the legislative branch of government. Still involving however and recognizing the need for Commissions to in fact provide the processes for selection and nomination of their respective department heads. But ultimately to have the Mayor be the appointing authority and be that authority in conjunction with the respective Commissions who would not only appoint but also have direct involvement in evaluating the performance of these people along with the respective Commissions. Because currently as you know department heads, all department heads in the County are being evaluated on an annual basis but in the case of those department heads that are appointed by Commissions there is very little involvement by the Mayor in terms of evaluation of the performance of those department heads where this amendment would in fact allow the Mayor to also participate in that evaluation process that would occur on an annual basis. So again, the idea was to in fact begin to consolidate authority under a singular focus approach but still have Commissions play a substantial part in that process and then extend it out to ensure that there is the least amount of singular influence. I guess some people have called it political but I would rather look at it as singular influence. What was also inserted was confirmation or approval by the County Council. So to ensure that the process in fact follows and goes through a complete review by all the different areas, the Commission, the Mayor, as well as the legislative branch which is the Council. Ms. Morikami: I have a question. When the Charter, going back in history, what was the rationale in 1969 to set up the Planning Commission with the authority of appointing the Director? Why was that done versus the other department heads being appointed by the Mayor? Mr. Isobe: I cannot answer that question. I can try and research it but I cannot answer that, I don't know. Chair: I have one question John. You said that the Mayor under this new proposal the Mayor has the opportunity to participate in his review, right? Mr. Isobe: In the evaluation. Chair: Doesn't he have that authority now as an ex-officio member of this Commission? Mr. Isobe: He has if he is invited to the table by the Commission. But again sitting in an ex-officio capacity he does not have a vote. Mr. Blake: The Council appoints, does it appoint the Housing Director? Mr. Isobe: No. The Council primarily appoints the County Clerk and the legislative auditor and some of the staff members within the office of Council Services. Mr. Blake: The Council, does it still sit as the board for the Housing Department? Mr. Isobe: I think so but I am not positive. I am trying to recall in my head the exact ordinance. I cannot tell you if the ordinance was amended but at one point it did, yes. Ms. Morikami: Under this proposal the Mayor would determine based on the 3 to 5 names what his nominee would be and the appointment would be going to the County Council. I am just wondering what happens if the County Council does not confirm? Mr. Isobe: Then the Mayor would have to select another appointee from the list that was submitted by the Commission. Ms. Morikami: Thank you. Planning Commission Minutes 5 March 23 2010 Mr. Nishida: Can you talk about has this come up before, similar moves or can you talk about anything...? Mr. Isobe: Not to my knowledge. This process that is being proposed to my knowledge has not come up before. There has been discussion in the past about potentially changing the appointment process for the Director so the Director would be appointed directly by the Mayor but not through this multiple step process that is now being proposed. Mr. Blake: As far as authority and management goes, to me the Planning Director isn't the same, in the same situation as the County Attorney. And so I personally don't see any reason why it is necessary to have the Council confirm the Mayor's appointment of one of his own department heads. And so I think that accountability, I mean the Council has in the past often invited department heads to Council meetings on an official basis to address certain issues and that to me satisfies the transparency of accountability. I think it is just another layer or barrier if you will of efficiency to be answering all these different... well it is only two, superior authorities, three, Commission, Mayor, and Council. So in this case I feel, the Commission would send a list up to the Mayor after the Commission has gone through its selection process and then the Mayor decides and that is it. I just don't understand how it benefits the County to go through an additional step of having confirmation by the Council. And if the Mayor wants to dismiss a Director he still has to have Commission approval under the proposed amendment. So what happens when the Mayor wants to dismiss somebody, the Commission doesn't want to and the Council wants to. I mean there is any kind of mix in there that just causes, to me, a witches brew of problems. So I personally after reading this and discussing this feel that the confirmation by the Council of our department head is extraneous and not in the interest of efficiency. And I don't think that we lose any transparency by not having the Council be involved. Mr. Isobe: What I would recommend Commissioner, is the Charter Review Commission is still in the process of reviewing and considering this proposal. It has not rendered a decision either way. In fact the Commission met yesterday and opted to defer all of these appointment or proposed appointment amendments. So you still have an opportunity and the reason why the Charter Review Commission sent this communication is they really would like input from this body in terms of what you see as being a process that you believe would improve or if you believe that this process in fact would not work and to suggest something better. Chair: With that said, are there any more questions for John? Mr. Texeira: John, what is the timeframe for that process, for us to provide input to the Charter Commission? Mr. Isobe: At this point I am guessing that the final proposals that will be going before the voters need to get approved by the Charter Review Commission I would say by early summer, mid-summer at the very latest so the Commission can decide what amendments if any will be going on to the general election for consideration by the voters. So ultimately even if this body, the Planning Commission approved this and the Charter Review Commission approved it, the ultimate authority is the voters because the voters would have to decide whether or not the proposal would be something they would like to see go forward. Mr. Texeira: One more question John. So we have an opportunity to provide input collectively or could we individually send a submittal letter to the Charter Review Commission? Mr. Isobe: I believe as citizens you definitely can send a letter individually. Collectively if in fact it is the body's wish to submit a collective opinion on this matter but as individuals you can as long as you are not stating in that individual submittal that you are in fact representing the desires of the entire body. Chair: Thanks John, 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. There is an executive session on our agenda if there is any need and the Commissioners want to go into executive session we can do so. Mr. Blake: So are we just discussing this informally? Planning Commission Minutes 6 March 23 2010 Chair: Yes, we could discuss it informally now but if we need to know our duties and privileges as Commissioners I would suggest that we go into executive session to speak to our attorney to get the facts before we come out and discuss our opinions. Mr. Blake: Along the lines of my previous statements to Mr. Isobe, it appears to me that the whole, like he said, the purpose is to streamline things and clearly set the lines of authority. And right now it is just us, us meaning the Commission and the Director and that is simple for us. But if you are the Mayor and something is near and dear to your heart that isn't near and dear to our collective hearts then the Director is in the middle trying to figure out which way to go especially if there is contention. So he has to deal with two people, two bodies, the Mayor's office and this body. If we bring in the Council then you have 7 more people individually or another body that he has to deal with. And I know that if he didn't know how to dance before he became the department head he would know how to dance by then because you have to talk to everybody, convince everyone or please everyone or convince everyone that what you want to do is not going to be viewed by the others as negative. And that is just generally. As our system is set up the department heads that are Commission appointed are part of the administration. They are part of the administrative executive branch and they implement the laws for ordinances that are past by the legislative branch. So just like with the Federal system and the State system, you try not to have those lines blurred because it makes for more problems. So its not that I don't have any faith in the Council, after all they are elected by the people but to govern or just do their part in the governance of the County. But for purposes of administrative efficiency and accountability, administrative accountability, I think having the Council have to confirm the Director is extraneous because nothing prevents anyone from coming to the Council, excuse me, nothing prevents anyone from coming to the Commission during the selection process to speak for or against or neutrally any of the people who are applying for the position. I don't think it cuts anybody out and I have only been through one or two I think situations where the Commission had to appoint a new Director. The applicant submitted his resume or her resume and there was a time schedule for them to meet with the Commission. I don't recall anyone else ever speaking although they did submit letters of support and so to me the public is still involved, the Council can still be involved either as citizens or as an individual councilman or as a whole saying we support him or we don't for whatever reasons. And we have to take that into consideration when we are making our final recommendation for the Mayor. I think it makes it much more efficient for the Director not to have to be as concerned about how many bosses he has and it doesn't open the door to someone who says well, I have a right to pick the color of this building so by golly that is what I am going to do just because I can. So that is basically as I sit here today how I feel about this Charter recommendation, this Charter request, the Charter Commission's request. Chair: Is there any more discussion? Ms. Matsumoto: If you look at the request for continent here in item No. 3, I think you were talking about item No. 3, is there a way that you would rewrite that? Chair: Are you referring to Carol's, the first page? Ms. Matsumoto: Yes. Chair: The amendment process. Mr. Blake: What it does is give the Council veto power over an administrative appointment and I think that is blurring the lines between the executive branch and the legislative branch. And I personally would, "The Commission must select 3 to 5 nominees for submittal to the Mayor." The only difference there if that is adopted and the situation now is we would send a list up there, a formal list. I mean the Mayor will probably know informally who we are looking at and there is no problem with that, it's not a secret process. "The Mayor has 30 calendar days to appoint a Director from the list for a term not to exceed 4 years." I think the specific term is good because it ties in with the evaluation. It doesn't have to be a failure to reappoint for cause, you know you contract ran out in 4 years, that's it. So I don't get any heartburn over that. 30 calendar days, I mean if that wasn't there we would just make an Planning Commission Minutes 7 March 23 2010 appointment right there so I don't know, maybe that is too much time where the department has no firm hand on the rudder. As far as No. 3 goes I would just eliminate it because like I said I don't think there is any reason for the Council to have veto power over an administrative appointment. And the County Attorney represents the, the County Attorney is in that Council chamber every meeting and everything that, even though the Council has its own legislative assistants, everything that the Council does by way of ordinances and so forth comes to the County Attorney's office for review. So that is built into the Charter already. This I think creates more problems than solutions. Chair: Any more discussion? I would suggest that at the pleasure of the Commission that we could either do one of four things, one, just receive the report and have it go up with no comments or have it received and either we can talk about if we want to comment and send our minutes or comments up to the Charter Review Commission. Or, four, we could formally collectively as a Commission come up with our comments together and work on that before the deadline. That is three, so four would be to just submit individual comments but as John Isobe said it's not representing the Commission but just as citizens. What would be the pleasure of the Commission at this time with this agenda item? Mr. Blake: Do we get to go into executive session? Chair: We still do have the right to go into executive session as it is an agenda item. Mr. Dahilig: If the Commissioners feel they need any further clarifications regarding what is their current duties and obligations with respect to the Planning Director and his hiring and his oversight then we can definitely go into executive session to discuss what by Charter is mandated. Otherwise, I guess that would be pretty much the reason to go into executive session. Ms. Matsumoto: Do we make a motion to go into executive session? Chair: Sure. Ms. Matsumoto: Move to go into executive session pursuant to Hawai'i Revised Statutes Sections 92-4 and 92-5(a)(4), the purpose of this executive session is to consult with the County's legal counsel on questions, issues, status, and procedural matters. This consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Commission and the County as they relate to these agenda items. Mr. Blake: Second. Chair: All those in favor say aye, motion carries. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to go into executive session, motion carried unanimously by voice vote. Commission went into executive session at 10:09 a.m. Meeting was called back to order at 11:05 a.m. Chair: We are on item B.1for the review of the Charter Commission amendments and consideration. We have already taken public testimony and heard from the County. What would be the pleasure of the Commission now? Do I need to state what are options are? Ms. Morikami: Mr. Chair can we have the attorney restate our options. Chair: Our possible options I guess. Mr. Dahilig: In terms of what types of options you have with this request from the Chairperson of the Charter Review you can either individually, in you individual capacity and not as a representative of the whole Commission, submit testimony to the Charter Review Commission about suggested changes. You can remain silent, you have already received this for Planning Commission Minutes March 23 2010 the record and you can take no action on it and move into the next agenda item. Or, you can discuss a position that the Commission would like to take and have that be formally conveyed over to the Charter Review Commission by either an individual of the Planning Commission testifying on behalf the whole Planning Commission or directing the Director to create some type of statement on behalf of the Commission to transmit over with certain outlined issues that you would like to have conveyed over for their consideration. Ms. Morikami: Thank you. Chair: With that said I will call for the discussion if there is any discussion. Then I could entertain a motion. Mr. Blake: Just for the public understanding of what I think we are reviewing is that with regard to hiring a Planning Director we would act as a screening board. We would conduct the interviews and then make a list of up to 5, or 3 to 5 persons, to the Mayor for him to determine who he or she would like to have as the Director for the County. However when it comes to the issue, if it ever comes to the issue of dismissal or termination of the contract then the Mayor can recommend to the Commission but the Commission is the final decision maker on whether the Director stays or not. So what that would accomplish is having a more specific chain of command and having the Director answer to the Mayor as all of the other Directors, as most of the other Directors do for the day to day execution of the Director's duties. And so as far as the request that came down from the Charter Commission I agree with everything there except item 3 which calls for confirmation by the Council. I think that is intrusion into the executive authority and it is not necessary. Chair: Any more discussion, seeing none is there a motion on the floor? If there is no motion on the floor I move the agenda and... Mr. Blake: If there is no motion on the floor that means no action is taken? Chair: No action will be taken and we already received it for the record. If we wanted to comment as a Commission as a whole like the attorney has said we could either defer and then come up with concerns and our amendments that we want to convey to the Charter Commission. If not then we would just be silent. Ms. Morikami: But we do have, Mr. Chair, we do have the right to individually testify at the Charter Review Commission meeting right? Chair: Yes. I just want to be very clear that if any of our Commissioners do testify at the Charter Commission that you be individually stating your opinion as an individual and not representing the Commission or the Planning Department and be stated that that would be clear. Mr. Blake: So when do we decide what we are going to do? Chair: We can either decide now, I mean if we want to decide now and collectively as a body comment on the review or the amendments we can but I would have to entertain a motion to do that. If not then the last resort is that we do comment on an individual basis if you guys want to. Mr. Blake: I move that we return our comments to the Charter Commission if at all possible from the body. I think that simplifies matters. And then we can decide later exactly how we want to word that. Ms. Matsumoto: Second. Chair: Any discussion? Mr. Texeira: I missed that motion. Chair: The motion on the floor right now is to, is it to defer? Mr. Blake: To reply as a body. Planning Commission Minutes 9 March 23 2010 Chair: To reply as a body and maybe what we could do, do you want to have the department combine all of our comments together? Because if we do I would motion to defer the (inaudible) and then we would come back and review collectively our comments. Mr. Costa: So that would be to direct the department to, based on the comments made draft a formal response for the Commission to approve or adopt at a future meeting. Chair: And send over to the Charter Review Commission for comments. Mr. Texeira: One question Mr. Chair. How does the Director know what comments we want him to look at unless we discuss it now? Chair: I think our attorney can answer that if we can discuss it now or we can actually meet with the Director under the Sunshine law to discuss this. Mr. Dahilig: I would say that you can use the Planning Department as a way to aggregate the information for organizational purposes for the Commission to take a look at lets say a list of all the different concerns, but in terms of actually using the Director (inaudible). Chair: (Inaudible) and then as a whole he will present us a list for the public to review and for us to review publicly on what our individual comments were so that we can collectively come together as a whole and send our comments together as one. That is what is on the motion. Mr. Blake: He would be guided by the County Attorney? Mr. Dahilig: We could do that. Chair: So there is a motion on the floor to defer and accept comments, there was a second by Cammie, is there anymore discussion? Ms. Morikami: Just for clarification, when do these submittals have to be turned in for us to review? Chair: Do we want to defer to the next meeting? Mr. Dahilig: It's at your pleasure. Chair: So it's at your pleasure but I think if it's fresh in our mind, we want to keep moving forward. You don't see any issues with that, right? Mr. Costa: I think the Boards and Commission representative did state that there is some time but that is really up to the Commission how soon you want to get it to us and then we obviously won't put it on the agenda until we collected all of those and reconciled them. Chair: So we could defer it to the next meeting then. Mr. Blake: We are going to submit our comments by the next meeting. Chair: Prior to the next meeting so by the time, just keep in mind, by the time we have our packets that we could read everyone's comments if there are any comments and have discussion on that. Any more discussion before I call for the vote, seeing none, all those in favor say aye, no, motion carries. On motion made by Hartwell Blake and seconded by Camilla Matsumoto, to defer action, motion carried unanimously by voice vote. SUBDIVISION Mr. Nishida: The first item was tentative subdivision action S-2010-7, Cornerstone Hawai'i Holdings, LLC, it was deferred to 4/11/10. There were several tentative subdivision extension requests, Robinson Family, S-2006-17, Robinson Family Partners, approved 3-0, S- Planning Commission Minutes 10 March 23 2010 2006-27, Grove Farm Properties, Inc., approved 3-0, S-2008-16, Melvin & Clarence Soong, approved 3-0 and S-2009-16, Falko Partners, LLC, approved 3-0. Move to approve Subdivision report. Ms. Matsumoto: Second. Chair: All those in favor say aye, motion carries. On motion made by James Nishida and seconded by Camilla Matsumoto, to approve Subdivision Committee Report, motion carried unanimously by voice vote. UNFINISHED BUSINESS Use Permit U-2010-9, Variance Permit V-2010-3, Special Permit SP-2010-1, and Class IV Zoning Permit Z-IV-2010-10 to permit the construction and operation of a temporary concrete batch plant located on a private access road off the Kaumuali`i Highway, approx. 1.7 miles west of the Kaumuali`i Highway and Kipu Road intersection, and approx. 500 ft. north of that area generally referred to as Halfway Bridge, further identified as Tax Map Key 3-4-001:003 and affecting a 1 acre area of a 2893.705 acre parcel = Jas W. Glover, Ltd. [Director's Report received 2/23/10, hearing closed 3/9/10.1 Supplement No. 1 to Director's Report pertaining to this matter. Staff Planner Ka`aina Hull read staff report and department recommendation (on file). Chair: Are there any questions for the planner regarding the recommendation? Seeing none I will ask the applicant to come up if there is anything he wants to add. Mr. Walton Hong: Thank you Mr. Chairman and members of the Commission, for the record Walton Hong representing the applicant. We have no additions or changes to the proposed recommendation and we ask that the Commission approve the same. Chair: Thank you, are there any questions for the applicant, thank you Walton. Is there anybody in the public that would like to testify on this agenda item, seeing none I will bring the meeting back to order and entertain a motion. Ms. Morikami: Mr. Chair, move to approve supplement No. 1 to the Director's report pertaining to this matter, move to approve it as requested by the applicant. Mr. Blake: Second. Chair: I will call for discussion, if there are any amendments, deletions? All those in favor say aye, no, motion carries. On motion made by Paula Morikami and seconded by Hartwell Blake, to approve supplement No.1 to the Director's Report, motion carried unanimously by voice vote. Staff Report in response to request (1115110) from Hartwell H. K. Blake to the Planning Commission transmitting letter dated December 21, 2009 from Carlos R. Buhk regarding the status of conditions set forth by the Fifth Circuit Court Order, Civil No. 07-1-191, relating to the development of a condominium project consisting to eight (8 single-family residents on CPR units 1 to 8 and 72 multi-family units on CPR unit 9 for Use Permit U-2000-20 and Class IV Zoning Permit Z-IV-2007-24 Tax Map Key 2-8-09.1 K61oa Kauai = Koloa Creekside Estates LLC. [Communication 1/26/10, deferred 2/9/10.1 Chair: I will be recusing myself from this agenda item and have my Vice Chair come up and Chair this meeting. Vice Chair Texeira: Before I entertain the staff report I would like to ask for any testimony from the public in regard to this agenda item. Seeing none I would like the planner to provide an update on this. Planning Commission Minutes 11 March 23 2010 Mr. Costa: Actually this item was carried over. We did present at the last time this was on the agenda provide our response to the original status report that was provided by the applicant. So we did send that out and we have recently received a response from the applicant to that report that we last presented to you but have not...we received the recently and have not analyzed it or prepared a report in response to that yet. There is an additional request that came in from the applicant's representative that the County Attorney is reviewing. Mr. Dahilig: So based on that request it would be our office that would be requesting deferral of this agenda item until we can do that transmittal. Vice Chair: What is the Commission's desire? Ms. Morikami: Mr. Chair, before making the motion I just need clarification on this Design Guidelines for Land Units 1 to 8. I don't know who submitted this and when. I have a packet to go to back to previous meetings, I just need clarification who's report this was and when was this submitted? Vice Chair: Would you like the planner to respond to that? Staff The Design Guidelines as stated in this document was prepared by the applicant. It was provided during the pubic hearing process. I can't be specific as to the date but this evolved as a result of the testimony during the public hearing process and the issues and concerns relating to how the single family dwellings as well as the main condominium project would look like. So these guidelines stemmed from public testimony and issues that were raise during the public hearing process. Ms. Morikami: And did the Planning Commission at that time have discussion on that? Staff: I can't really recall any discussion but it is part of the record. It is referred to by the order, court order. Vice Chair: Anyone else wishing to address the planner, if not I will entertain a motion. Ms. Morikami: Mr. Chair, on this particular item, move to defer it. Ms. Matsumoto: Second. Vice Chair: Call for the question, any questions in regards to this matter? Mr. Blake: So this matter is being deferred so that the department can craft its reply to the supplement? Mr. Costa: To the applicant's recently received response to our last report. Mr. Blake: So the applicant submitted its status report, the department responded to it. Mr. Costa: Right, responded to it and had a number of comments on it. Mr. Blake: And this is their response to our response? Mr. Costa: That is correct. Mr. Blake: And we are now crafting our reply to that? Mr. Costa: Right. Vice Chair: Are we also seeking a response from the County Attorney as well? Mr. Dahilig: Yes, we will be advising the Planning Department accordingly. Vice Chair: Any other questions in regards to this matter, if not I will call for the vote, all those in favor say aye, those opposed, motion carried. Planning Commission Minutes 12 March 23 2010 On motion made by Paula Morikami and seconded by Camilla Matsumoto, to defer action, motion carried unanimously by voice vote. CONTINUED PUBLIC HEARING There were no continued public hearings. NEW PUBLIC HEARING Use Permit U-2010-12, Special Permit SP-2010-2, and Class IV Zoning Permit Z-IV- 2010-14 to permit the construction of a backup injection well and other facility improvements at the existing Waimea Wastewater Treatment Plant, located in Waimea on a gravel access road off of Kaumuali`i Highway, Approx. 45 miles west of the Kaumuali`i Highway and Huakai Road intersection, further identified as Tax Mal) Keys 1-2-006:036, 1-2-006:037, and 1-2-006:009, and affecting an area of approx. 6.3 acres = County ofKaua'i, Department ofPublie Works (Waimea Wastewater Treatment Plant). [Director's Report received 3/9/10.1 Staff Planner Ka`aina Hull read Director's report (on file). Chair: Are there any questions for the planner regarding the recommendation or the Director's report? If not then I will call the applicant up. Mr. Edward Tschuo: Good morning, for the record my name is Edward Tschupp. I am the Chief for the Wastewater Management Division of the County of Kaua'i, Department of Public Works. I appreciate your consideration of our request for a Use Permit for our expansion project. We are trying to meet what has developed into a situation where we have denied people connections to the Waimea sewage system because of lack of capacity. Fortunately over the last year we have qualified for Federal stimulus funding for this project and we are here today to inform, our design team is here and so if there are any questions on the project we are more than happy to share. We have no disagreements with the staff report and wish to request your approval of the project. Chair: Are there any questions for our Wastewater Division? I have one. If this proposal gets approved does it allow more development or more applications to go through? Is there a certain number or cap? Mr. Tschupp: The current plant is operating near its full capacity at 300,000 gallons per day. This would more than double that so that does leave a fair amount of capacity available for the community. That would come in the form of both ADU's which we have been denying (inaudible) but it is a significant expansion (inaudible). We did a facility plan a few years back, it was actually completed last year and in the facility plan we looked at a range of different options in terms of eventual full build-out of the wastewater plant. We are kind of taking one of the middle ground steps here, the full build-out which would include possibly sewer in Kekaha and really the adjacent property owner's development plans assuming that they are fully realized over the next 20 years or so. I could see where there would be a need for a future expansion. If memory serves correctly the full build-out, assuming all of those developments were to go through, would be about 1.2 or 1.3 million gallons a day so we are sort of getting halfway there. This will provide a considerable capacity for community development and I think it will be good to go for 20 years anyway. Mr. Kimura: This construction company you guys want to hire for this job, is it Kaua'i owned and operated? Mr. Tschuo: Actually this is a project that has already ...we have gone through the procurement and we are pursuing this project as a design build project. Our contractor is Bryant Construction which is Kaua'i based and they have assembled a team that includes both a design engineering firm which is HDR which is a national firm with Honolulu, strong Honolulu office. They have a number of local subcontractors and I think it is a really good team and I am very happy with the way the procurement has gone so far. Chair: Is there anybody in the public that would like to testify on this item? Planning Commission Minutes 13 March 23 2010 Mr. Mike Faye: Aloha Commissioners, for the record Mike Faye (inaudible). I am the Chairman of Kikiaoloa Land Company and we own the land around the sewage treatment plant. We provided the land to the County in the 1970's to build the existing sewage treatment plant. Kikiaoloa Land Company supports this application. We think that the findings of the staff are correct and we support them and agree with them. There is a lot more goes on than just what is happening with the expansion of this facility on that particular land because there is still some disposal issues that we work with. And I think we did object to the 1995 double injection well proposal because we were concerned about subsurface water. But to use it as a backup, the injection wells as a backup is the only practical, we agree that that is the only practical solution especially when what we had asked back then was to get it up to an R1 so we could get a reuse plan going together for the RI water. And as soon as that entered the calculation here the project became very acceptable to us so we do support it. I think you got a letter from the West Kauai Business and Professional Association in support. The question regarding the Kaua'i based, I would like to thank the County for selecting the Bryant/Aqua team. They are local and I need to reveal that I am one of the subcontractors under my Kikiaoloa Construction Company. My personal observation of it is these guys are...they made a great team with the County, working with the County has been very good and a lot of cooperative effort between the departments, the contractor, the landowner, the other issues of the land down there in Waimea. So I just want to say thanks to the County for putting a great project together especially having a shovel ready project read to go. Just remind everybody that the existing facility was built 38 years ago with no major upgrades with the exception of that one backup injection well. It was built when it was okay to dump that kind of water into the ocean and since then the bar has been raised and we, Kikiaoloa Land Company, receives the water. It was fine when it was sugar, now its corn so the conditions are changing so this is needed, it is very timely. We would really see this thing get done so again, thanks to the County, we support it and look forward to its completion. Chair: Are there any questions? Mr. Texeira: Mike, could you please explain the difference between the affluent coming from the sugar cane as apposed to corn use now, as to the quality and how it affects the water. Mr. Faye: I don't think I am the expert at that and I think the Bryant team has probably somebody here that can answer that but my point I was making is back in 1974 when this thing was completed we could mix the water with, the R2 water with the sugar cane irrigation water, we have a couple reservoirs there that we would mix them and that was acceptable back then. And the tail waters could eventually get down into the ocean that there was no major concern back then. But since then with the tightening up of clean water and Health Department rules that gets harder and harder to comply with, to comply with legally and where can that water be used. So by going to an R1 it just opens up as the staff reported far more existing uses. The Land Company and the Bryant Team, we have started some discussions along with some of our tenants on the land on how to best reuse that water, how we can best stretch the use of this water that we believe is going to become a resource for us, irrigation resource. When I say us I mean us, the community, as well as the tenants on our property and the Land Company it's self. For example we can get...there are large parks, very early stages but it does open up a tremendous reuse opportunity. Chair: Any more questions, is there anybody else in the public that would like to testify on this agenda item? Seeing none... Mr. Texeira: Along that same line can I ask the... Chair: The consultant? Mr. Texeira: As a follow up to my question to Mike could you describe the type of affluent coming out of sugar cane, the herbicide sugar cane water as apposed to corn? Mr. TschUp: I am not very knowledgeable about the agricultural use of the water. The County's position is that we are generating water, presently it is R2 quality. We are trying to upgrade to RI and the reuse possibilities as Mike indicated are far greater for RI quality water Planning Commission Minutes 14 March 23 2010 than they are for R2, parks, landscape irrigation and things of that nature. I know very little about the differences between the tail waters or the runoff or the water quality after sugar cane versus after corn. I don't know that. Mr. Costa: I guess Commissioner, to clarify were you asking how affluent from the plant can or cannot be used for corn versus sugar, because the way you stated it was runoff or affluent from the corn and sugar. Mr. Texeira: I was just specifically addressing the affluent coming out of the corn as apposed to sugar. Mr. Costa: After it has been used from, treated affluent used for irrigating corn and sugar. Mr. Texeira: I just wanted to know if the treatment process is more intense if you use runoff from corn as apposed to sugar. Mr. Costa: Well when you say runoff I assume you mean storm runoff which is a lot different from the affluent which is wastewater. Staff: I think what Mike might have been referring to is back when the plant was originally established you could use a certain quality of water or reuse water to irrigate crops in various different manners. Subsequent to its initial establishment laws, I believe DOH's regulations, restricted certain levels of reuse which thereby limited the reuse of the water that was being generated by the plant given its current or existing operations. With the proposed upgrades it will move it up from R2 to RI and reopen the ability to use or reuse that water for irrigation purposes I believe regardless of whether it is sugar or corn. Chair: Is that all the questions you had? Mr. Texeira: Yes. Chair: Jimmy. Mr. Nishida: So Ed, the water from the wastewater treatment comes out treated RI and it comes out Rl water... Mr. Tschuo: Presently R2. Mr. Nishida: But under this application it is going to be RI. Mr. Tschupp: Correct. Mr. Nishida: It is going to be pumped into the retention basin and from there is going to be utilized in the corn or wherever? Mr. Tschupp: Right now we actually pump either to the reservoir up above Waimea Town or to the so called isolation ditch system which is much closer to the plant. The isolation ditch system and this was part of the construction that was completed a couple of years ago with the backup well, if the isolation ditch gets full then it will automatically spill over to the backup well. So our desire actually is to retain both the isolation ditch as well as the ability to pump up to the reservoir but that would all be RI water because the reservoir behind town is a very good location from which to expand a reuse system into town. And that is where we would start to be able to do things like irrigating the park, with R1 water we could do that, with R2 water we cannot. Mr. Nishida: Can you describe the monitoring well, how the monitoring wells work and what they do? Mr. Tschupp: Presently and as a function of the permitting and construction of the backup injection well, at that time we committed to and went ahead and installed a single monitoring well. And the whole idea is the wells, the injection well is out by the highway. The Planning Commission Minutes 15 March 23 2010 plant is sitting about halfway back on the plane and the ground water that is of concern is back up above the bluff so that the Department of Water's wells in the area are all much further inland. So we put in a monitor well at the plant which is the intent was we would be able to cease any kind of migration of any kind of contaminants moving inland. The two additional monitor wells at this time, one of the things that happened is we didn't know what we were drilling, whether we were drilling into fresh water or sea water until we drilled that initial injection well, the backup injection well. At which point in time we found that yes, it is salt water, it is below the cap rock and it is salt water. And that salt water condition exists although not quite as salty at the same geologic zone underneath the plant. What happened is that our geologist basically said one is great and now we know that your injection is into salt water so that is good but for us to really be able to tell which way the groundwater is flowing you need 3 wells to define a plane, 3 points defines a plane. And with one well, hard to tell whether or not the natural groundwater flow is that way, that way, and the concern is that we don't want to see flow back inland and with 3 wells we will be able to determine that. Mr. Nishida: Will you also be able to determine the (inaudible)? Mr. Tschupp: It would validate presumably if you have 3 wells and they are showing that the natural groundwater under the plane is flowing towards the ocean that would be one of the things you would be able to determine with the 3 wells. Mr. Nishida: (Inaudible). Mr. Tschupp: I think there is a lot of complex geology happening, the fact that the injection well is injecting basically fresh water into salt water on a very limited basis as a backup condition, that could be beneficial in protecting the fresh water resources on the island. Where does that fresh water actually exit to the ocean and how mixed is it with salt water at that time, we don't know that. Mr. Nishida: I guess the important part is that the RI water is technically the kind of fresh water... Mr. Tschupp: Yes, R2 and RI are both fresh waters as compared to sea water and RI is a much superior quality water quality to the R2. Mr. Texeira: You know the RI quality, would it be good for taro patches? Mr. TSChupp: I am not entirely sure on the list of allowable uses whether taro cultivation is one of them. The Health Department has a list of allowable uses for Rl, R2 and R3, there is very little R3 in the State because it is not highly treated. And the list for RI are much more extensive, there is much more ability to legally use Rl than R2. Some of the distinctions that I can rattle off the top of my head is that with RI you do not need a 500 foot setback from populated areas for spray irrigation for lawns a so forth which is the case with R2. And there are certain kinds of crops that are allowable for irrigation with RI and whether taro is one of them I don't specifically know. Mr. Costa: I think another distinction I know of is if you use R2 you cannot use R2 on crops that you don't cook or process such as lettuce but you could use Rl for that. Chair: Any more questions, thanks Ed. Is there anyone else in the public that would like to testify on this agenda item? Seeing none I will call the meeting back to order, what would the pleasure be? We received all comments? Staff: We haven't received all the agency comments however the few that are pending are ones that will be caught up in the building permit review and/or approval, and/or denial. Chair: Approval or denial? Staf£ Pending their signature basically. Planning Commission Minutes 16 March 23 2010 Chair: What would be the pleasure of the Commission? We could either continue or close the public hearing. Mr. Nishida: Move to close public hearing. Ms. Matsumoto: Second. Chair: All those in favor say aye, motion carries. On motion made by James Nishida and seconded by Camilla Matsumoto, to close the public hearing, motion carried unanimously by voice vote. Chair: Are there any other motions? Mr. Nishida: Move to receive staff report and the additional... Chair: We received that. Mr. Nishida: Move to approve staff report as read. Mr. Texeira: Second it. Mr. Costa: Move to approve the request as recommended. Chair: Did you read your recommendations? Staff: I haven't read the conclusion or recommendation. Chair: But if the Commission has already read it then I don't see any reason why... Mr. Costa: I would for the benefit of the public allow the staff to read the conclusions and recommendation. Staff Planner Ka`aina Hull read conclusion and department recommendation (on file). Mr. Texeira: So Mr. Chair has the applicant reviewed the recommendation and how does he feel about it? Chair: I could call back the applicant. Ed, have you reviewed and concur with the department's recommendation? Mr. Tschupp: Yes. Chair: Yes, he does. With that said I will entertain a motion. We need to entertain a new motion because the motion wasn't seconded. Mr. Nishida: Move to approve staff report. Mr. Texeira: Second. Chair: Before I call for the vote is there any discussion, all those in favor say aye, no, motion carries. On motion made by James Nishida and seconded by Herman Texeira, to approve staff report, motion carried unanimously by voice vote. NEW BUSINESS For Acceptance into Record - Director's Reports for Projects Scheduled for Public Hearing for 4/13/10 Public Hearing. There were no Director's Reports for public hearing for 4/13/10. Planning Commission Minutes 17 March 23 2010 For Acceptance and Finalization - Director's Reports for Shoreline Determination. There were no Director's Reports for shoreline determination. Memorandum 3/17/10 from Deputy Planning Director Imaikalani Aiu to Caven Raco, Chair, Kaua'i Planning Commission, recommending the Commission consent to the issuance on Non-Conforming Use Certificates pertaining to Transient Vacation Rentals (see Agenda Attachment "A"). Staff Reports pertaining to the recommendation to consent to issuance of Non- Conforming Use Certificates for Transient Vacation Rentals listed in Attachment "A". Executive Session: Pursuant to Hawai'i Revised Statues Sections 92-4 and 92-5(a)(4), the purpose of this executive session is to consult with the County's legal counsel on questions, issues, status and procedural matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they related to this agenda item. Chair: Is there anyone in the public that would like to testify on this agenda item? We are on the non-conforming use certificates pertaining to transient vacation rentals. Ms. Caren Diamond: Aloha, my question was I wondered it you were going to do a staff report first and then I would testify after that. Chair: Can you state your name for the record? Ms. Diamond: Caren Diamond. Chair: The staff report pertaining to the recommendation, we did receive it for the record so I don't quite understand your question. Do you want the planner to...is there one, are you asking? Ms. Diamond: Yes. I wasn't sure if there was a new staff report. I did notice there was an amended one from two weeks ago. Chair: What date do you have on yours? Ms. Diamond: March 9, 2010. Chair: All the Commissioners and I have the March 23rd. Do you have a copy of the March 23rd9 Ms. Diamond: I don't know if I do. I picked up what was on the counter this morning. Let me ask my deputy if this one was on the counter. Mr. Aiu: It should have been available at the counter, yes. Chair: Do you want to borrow mine? Ms. Diamond: Sure. Chair: Do you need time to review? Ms. Diamond: Yes, that would be great. Maybe someone else can testify. Chair: I don't think there is anyone else here to testify on this agenda item. We will give you time, let me see if there is any discussion or if you have it right now you can...is there any discussion? Mr. Nishida: I have a question for Imai. Imai, the non-conforming use permit, because it is a vacation rental it kind of really is a use rather than any physical structure because you are Planning Commission Minutes 18 March 23 2010 using it to rent out to a certain kind of cliental and all of that. So what are the rules regarding expansion, reconstruction, that kind of thing for non-conforming use permits and are the vacation rentals different from the normal non-conforming use permit? Mr. Ain: Mike, before we answer that one what do you think, do you want to executive session this one because it involves some interpretation of the CZO. I can quote the sections to you but none of this has really come up to any sort of test in court. We have our application method and I can tell you that however I'd like the County Attorney to weigh in first. Mr. Dahilig: I would say that there is a distinction between use and structure and how those two are regulated is clear from case law, structure cannot be used in a manner to dictate or evaluate use. Does that answer your question? Mr. Nishida: Well it leads to another one. So structures that are within the SMA are subject to SMA rules regardless of...and those rules include some limitations to the type of permits you need when you expand a house or you repair, quote/end quote repair a house. There are some rules about that. Mr. Ain: Yes. Mr. Nishida: But outside of the SMA there are no rules regarding that, well actually there are... Mr. Aiu: Relative to a non-conforming structure you are speaking of or just relative to... Mr. Nishida: Relative to a non-conforming. Mr. Ain: Relative to a non-conforming structure you can improve or modify any non- conforming structure in any way that doesn't increase the non-conformity. The simplest example would be you had a house that pre-dates the CZO and it is closer to the property line than it should be. You cannot, if you want to do anything to that house you cannot move it still closer to the property line and increase that non-conformity. If you were only 3 feet you cannot go on that side of the house and expand it out there and make it 2 feet but on the sides where it conforms, you could add on to those sides. Mr. Nishida: So if the non-conforming use was the actual single family structure its self, well sometimes some non-conforming uses have too many units on the parcel. Mr. Ain: Yes, they built 3 before the laws (inaudible). Mr. Nishida: Can you expand on those physical, can you expand the floor plan on them? Because it is a single family use and that is what is non-conforming. Mr. Ain: Yes. Mr. Nishida: Technically you could expand the structure. Mr. Ain: This is where I think we should answer that question is the executive session. Mr. Dahili¢: You want to go into executive session? Mr. Nishida: No. Mr. Ain: Because it is an interpretation of the law. Chair: Any more discussion? Mr. Texeira: (Inaudible) only in...I am thinking of the Ag. lands. Mr. Ain: None of these are in Ag. lands. Mr. Texeira: I just wanted to be sure. Planning Commission Minutes 19 March 23 2010 Chair: We will open it back up to public testimony, is there anybody in the public to testify on this agenda item? Ms. Diamond: Caren Diamond for the record and thank you. I have a couple of comments. I want to address since you have taken these all together I am going to separate them out and address the two that are in Wainiha and those are Mapuana and Kolohala. I will address Mapuana first which... Chair: Could you give us the number? Ms. Diamond: Sure, it is TV-1385. Chair: And this is the only ones that you will be... Ms. Diamond: That is the only two that I will be addressing. And basically originally this application was denied and it was denied because it said the floor plans that were submitted showed lockouts between two separate dwellings and so the application was denied. And then Steven Long submitted a corrected TVR plan that omitted the lock-out door and all of a sudden the violation disappeared. There is a picture in your file, the Planning Department's picture of this downstairs room... Chair: I see the Commissioners moving through the stack ...pardon me, number 11. Ms. Diamond: It's this one. Chair: Let all of us get on that same page. Mr. Texeira: Which page is that? Ms. Diamond: I don't know it's just the one that was in the information that the Planning Department provided with the Maupuana application. Chair: In the middle of the packet, above, or... Ms. Diamond: Kind of towards the end. Chair: It's a pretty big packet. Maybe the department can...what was the TVR application number again? Mr. Kimura: 1385. Chair: What was the other one Caren? Ms. Diamond: The other one is TVNC-1025. Chair: We are on application TV-1385, Maupuana. We are going to discuss first TV- 1385, with that go ahead Caren. Ms. Diamond: So basically when you look at that picture but then I want you to think about what Planning is telling you, that it is okay to approve this vacation rental even though the ground floor is enclosed. And I want to direct you to the Protect Our Neighborhood `Ohana had put in different comments when these things were first published and I would ask you to please go back into your Planning files and find those comments. Essentially Maupuana advertises that they have a two-story cottage and two of the bedrooms are on the lower level and two of them are on the upper level. I hear your County Attorneys telling you well, if these things were built early on it is okay. But I am wondering and I have many, many questions, because if you research the Building Department file for this you will see, and the sales records for it, that there was a garage and it was a wood frame and it had a gravel floor. And it also had a finished basement. But nowhere in the original building did it have living quarters on the downstairs. Planning Commission Minutes 20 March 23 2010 And if you go further and you look at the Building Department files you will see in 2005 they were granted unsubstantial improvement to make this bigger, expand the downstairs use. And instead of it being a basement with gravel floor it is not being rented to visitors. And I want to ask you if you think that the County has any liability to let visitors stay on the ground floor of units that are in tsunami zones and that are in flood zones just because these units were constructed before the flood laws. The use of this property was never vacation rental on the ground floor. The use of this property was actually a residence that belonged to a friend of mine. It wasn't a vacation rental at all a long time ago. So I would ask you to consider whether you think the County has any liability and whether these should in fact be grandfathered in or whether the first assessment from Planning was actually the correct one that they should have been denied this permit. The second one I want to go over is Kolohala which is TVNC-1025. On both these applications or actually for the whole packet I noticed that no longer is the architect named whereas in the past when you had, the last time you came before on January 26, 2010, you had a packet that was presented and in it was named the architect of record for each of these applications. Three of those had Ian Costa as the architect of record and he also signed off on the projects. And so I note in these that no longer is the architect named and I am wondering why in fact that is. And again, on this application it says "based on the above the use of the lower floor will not affect the approval of a TVR registration." And in this one also if you look at the public record data and yet the old information it said it was a two-bedroom, two-bathroom house. And if you look at the bottom it had a garage with a wood frame/gravel floor and a finished basement. And again the improvements were made that were termed unsubstantial improvements. And I don't know when this property turned into the downstairs being livable or when the downstairs turned into being a vacation rental but by their own advertisement they say that "Kolohala studio is a private and peaceful place to enjoy you tropical vacation." It is a downstairs studio and the upstairs part of the house is not rented out, it is for the owners when they come to stay. And so I wonder is that not a multi-family? And I hope that you will ask those questions of you attorneys before you grant approvals for these two applications. And I will make one last note which is, are all of the people who registered for vacation rentals going to be grandfathered in bombai? Is that the intent? Because I see 18, 20, 36 coming before you and it looks to me like that is the intention of the Planning Department to have everybody who applied whether they had a legal multi-family or whether they had enclosed the downstairs. And I know that before you now the County Council just is going to send you a bill that deletes most of the language for this TVR ordinance. But that hasn't happened yet and I believe you are bound by the ordinance that is in affect, thank you. Chair: Any questions for Caren, thank you Caren. Is there more from that public that would like to testify on this agenda item? Mr. Jonathan Chun: Good afternoon Mr. Chair, Jonathan Chun. In regards to the comment on the last TVR, that happens to be one on my list as being a client. For the record the house was originally permitted by the County in 1981 prior to the Flood Plane ordinance. The plans at that time definitely showed an enclosed area so it was not a situation where the lower floor was enclosed after the fact, it was always enclosed, it was always allowed as a storage area, a bathroom and I think a laundry room, originally. The allegation by the Planning Department on this case is that there is a kitchen on the bottom floor which turns the bottom floor into another dwelling unit. I'd ask the Commission to look very carefully and to talk with their advisors on that but if you look at the pictures that were taken during the investigation there is no stove, there is no microwave, there is not even a hot plate over there. The only thing there are, are counter tops. Counter tops does not make a kitchen even under the CZO's ordinance. And it is not unlawful to change a room from a storeroom to a bedroom. Bedrooms are a permitted residential use in the Residential District. You don't need a Special Use permit to have a bedroom. That is all I have to say, any questions I will be happy to answer them. Chair: Are there any questions for Jonathan? Mr. Texeira: What is the intended use of that downstairs unit? Mr. Chun: The only thing I saw in the pictures was some crumpled mattress and blankets. I don't know whether they were sleeping there or somebody actually threw it in there Planning Commission Minutes 21 March 23 2010 because they have an extra thing. According to my client he does not rent it out at all, not separate, and the only time he only ever stays in there is if he needs to stay in there when he is on the island he stays in there. But he does not cook in there because there is no oven and no stove. Again I go back, I don't believe there is a violation of even sleeping in a storeroom. For example if you had a closet or a rec-room in your house and you decided to sleep in your rec- room would that be a violation of the CZO because you decided to sleep in your rec-room or in your living room? It is the same situation; just because I designated something as a room if I all of a sudden sleep there is that an unlawful use under the CZO. I don't believe so. I think the recommendation of the Planning Department is correct and if you have any further questions you can check with them but again, the whole situation, a room is a room is a room. Just because I am sleeping there doesn't make it illegal. Chair: Any more questions? Ms. Matsumoto: Caren had said something about the advertisement? Was it this one? Chair: She did say that the advertisement was on the first one. Mr. Texeira: So if they are advertising does it not mean that they are renting it? Mr. Ain: I believe the allegation was that the advertisement was that the upstairs is rented separately; the downstairs is not for rent. That does not constitute a lockout by what is enforced. What is enforced is a lockout is you rent basically what should be one house as two units. That is not the case here. Chair: Are there any more questions for the department or our Attorney on these issues? Seeing none I will entertain a motion on what is the pleasure of the Commission. Mr. Texeira: A question for Imai, do you want us to treat these units individually? Mr. Ain: No. The intent of, at least the way the department presented this was similar to the ones we have done before which is just a broad consent on all the NC applications listed. Chair: And as it reads on our agenda it is a consent agenda item or all. Mr. Blake: So we are able to address Caren's concerns? Mr. Aiu: I believe so. Both the buildings pre-date Flood ordinance and so therefore are legally constructed and Kolohala does not function as a lockout. Chair: If the Commissioners have (inaudible) concerns on these two applications can these two applications be pulled and get more clarification regarding the questions from the Commission if they have some? Mr. Aiu: If they have some, yes. Chair: I just wanted to put it out there that we don't have to consent to all, we have the ability to pull one or two if we need to and ask the department questions and defer an item or several if you guys do want to. Ms. Morikami: Mr. Chair is it possible for the Deputy to address the two again, the ones that are in question now? Mr. Aiu: Maupuana, 1385, was denied not because of a flood plane elevation, this like I said predates the flood plane, but was denied because it appeared to be a lockout. Subsequent inspections showed that it was not functioning as a lockout nor rented as a lockout. The second one that is brought up was denied because ostensibly, on our first inspections we found what appeared to be a separate dwelling unit on the lower level. However there were not basically the required appliances on that lower level to constitute a full kitchen and the CZO does clearly state that there will be construed to be as many dwelling units as there are kitchens in a house. So this was in this case one dwelling unit. The fact that the owner reserves a space for themselves does Planning Commission Minutes 22 March 23 2010 not constitute a violation of the TVR ordinance, that is not a lockout in the sense that it is rented separately, that is just a private space within the dwelling unit. Ms. Morikami: So based on the first one that Ms. Diamond discussed and the advertising that is taking place how do we address that? Mr. Aiu: The advertising? The advertising is not to rent a separate unit. There are not two units advertised. Basically you can rent the upstairs, it doesn't say or you can rent this. There are a few TVR's that we do construe as legal that give you the option, in some cases they have a legally constructed house and a guest house and you can choose to rent the main house or you can choose to rent the main house and the guest house for an added price. But they don't let you rent the guest house separately; you have to rent it together with the main house. So as long as they are doing that in situations where they don't entertain multiple bookings at the same time then it is not a lockout. Chair: Herman, you had a question? Mr. Texeira: So can the owner live downstairs and rent the upstairs? Mr. Ain: To parts down your question a little more, in this case what I believe the owner does is uses the place when they are on island, not necessarily lives fulltime downstairs. Because if the owner did live fulltime in the house what you would have is a home-stay and that would require a Use Permit, it would require a different permit than a non-conforming use certificate and that is what we would have directed the owner to do in that case. In this case as I understand it the owner uses the space in the, or reserves a space for themselves in the overall dwelling unit. So in this particular case, yes, they can. It is similar to if an owner kept a garage locked off because that is where they stored their car and surfboard and whatnot while they were off island. Nothing in the TVR ordinance says they cannot reserve that space for themselves. They just cannot have it function as a multi-family unit when it is not supposed to be a multi-family unit. Mr. Kimura: So they do their cooking where when they live downstairs like that? Mr. Am: I don't know where they do their cooking. Mr. Kimura: They are eating out every night? Mr. Ain: Perhaps. I can't say what they do when they are there, all we can do is look at the face of the law as what they met, it is not being rented separately and there are not the appliances there to make it a full kitchen when we look at what the evidence is presented to us. Mr. Dahilig: Commissioner, what I think you are touching on is really the issues concerning enforcement. When you send out inspectors and when you look at the dossier it is submitted, you are really looking at these applications in snapshots in time. And so I don't want the Commissioners to think that there may not be cat and mouse games that are going on. I mean that is a very logical reason why a lot of these may appear in conformance and then something happens after the fact. And because both the Planning Department and the Public Works Department work on a by complaint basis when they send out their inspectors there may be issues with them getting a heads up. We can't just enter a property without some type of permission or a search warrant. And if someone gets wind of inspectors coming there is nothing in there. So I don't want to minimize your comment because it is a reality but as far as what the Planning Department's representations are in this is that inspections as well as documentations gave them a clean bill of health for these particular applications. Mr. Texeira: So that begs the question then and we have asked that before, is enforcement staff adequate for the Planning Department to handle these issues? Mr. Aiu: It is not only a question of staff, you could always use more staff, I won't doubt that. If we had the budget to have 10 guys I would take 10 guys. But it is also another question; it is a question also of just due process. Like Mike said, we cannot just enter a property unannounced. We would have to get warrants. We would have to go through proper procedures to do that. It is not like issuing a speeding ticket in other words the way the inspections basically work. So yes, you do get that, you get what you ostensibly see as where do you cook when you Planning Commission Minutes 23 March 23 2010 are here? Did you just go hide the microwave from us when we came over? And perhaps they did but the rules we are bound by say that we are going to schedule an appointment with you and if somebody pulls something, they may. Not to say our inspectors don't have a nose and can't sniff things out but they also, when it comes down to what is in front of you, you have to first go with what is in front of you and then follow it up later. Mr. Kimura: The County's hands are tied pretty much. We have to give them ample notice that we are coming in to inspect their place and they can take out whatever they want to take out by the time you get there. Mr. Aiu: I wouldn't say our hands are tied but we drag a heavier weight so we move slower in other words. Mr. Blake: We have never made it a condition of a TVR outside of the VDA that there may be a drive-by inspection? Mr. Aiu: Have we done that? I am trying to recall if we have. Mr. Dahilig: There are no conditions in there. Mr. Blake: Do you see any problem with that? Mr. Dahilia: If you are asking for my legal opinion then I would ask that we go into executive session. Mr. Texeira: Isn't that why we are here to discuss that issue? Chair: We are here on that agenda item and recommending the Commission to consent agenda on the transient vacation rental applications but not actually on the law that is already approved and done already. Mr. Nishida: Wouldn't now be the time to put such a condition...? Chair: I know that there is something coming down the pipeline for us to review and I think this, at that time, would probably be appropriate. Mr. Blake: So is the department comfortable recommending No. 11 and No. 17 in light of Ms. Diamond's...? Mr. Aiu: Yes. Chair: I think Jan you asked for the floor? Mr. Kimura: I am done. Ms. Matsumoto: I have a question. You are saying you could use some help. Mr. Aiu: I am saying there is always going to be more issues than you have people. Now lets say in terms of we want 2 or 3 more people and it has to be looked at in terms of what the budget is this coming year, what space we have to put them in and many other side issues that come with the addition of staff. Especially in times when the budget is subject to a 6% cut this year. So it is difficult to step up enforcement right now. Ms. Matsumoto: I don't know if this is a good idea or not but would the Planning Department entertain the idea of using volunteers in that you would train people? Would that be appropriate? Mr. Am: That would carry some risks as well too because they would have to volunteer to enforce the law, not the result they may personally want to see through the law or want the law to be. This has to be taken on as a professional matter. Volunteer enforcement may carry some difficulties in terms of personnel and legal authority that really have not been vetted so before I could say absolutely yes I would have some hesitation with that. Planning Commission Minutes 24 March 23 2010 Ms. Morikami: Excuse me, on another matter pertaining to TVRs, how does the Planning Department go after people who do not do certificates? They just go out on their own, they are getting the homeowner's exemption and they just rent it out short term versus them doing the non-conforming use certificate? Mr. Aiu: Those are taken down through the normal enforcement procedures which is you first notice the violation and cease and desist and give us a compliance plan within, usually we mandate a timeframe of 15 days however that is not mandated by law. That is usually just our guideline. And from then on if they do not comply we continue to gather evidence of operation and eventually these cases will go to court. Ms. Morikami: How do you get wind of it to begin with? Mr. Ain: We get wind of it basically through complaints. Ms. Morikami: And then you follow up through that procedure, thank you. Mr. Texeira: So complaints are adequate justification for...? Mr. Ain: Well any time we get a complaint we do follow up. Sometimes the complaint leads somewhere, sometimes it does not but we do follow up whenever we get a complaint. Mr. Texeira: So the complaint is the trigger that you use? Mr. Ain: Yes, the complaint triggers an inspection. Mr. Blake: So let me see if I got this pictured properly in my mind, this Kolohala Studio, theirs is the residence? Mr. Ain: I believe it is the other way around. Mr. Blake: "Kolohala Studio is a private, peaceful place to enjoy", something, "tropical vacation. It is downstairs and the upstairs is not rented out". Mr. Ain: Okay, then it is downstairs that is rented out. Mr. Blake: The studio has been, part of it is cut off, has been blank, and upgraded and the kitchen and bathroom is new", something, "and counters". So they are representing they have a kitchen down there. Mr. Ain: They are representing that they have a kitchen in the downstairs? Mr. Blake: That is what it looks like in this ad. Mr. Ain: Because our inspection showed otherwise. You may want to ask the owner's representative about that. Mr. Blake: Well the thing is, to me like Jan has just been informed there are cat and mouse games that go on, we all know that. But if you are representing that you have a kitchen where you should not then how can you say, you come and inspect and you don't have a kitchen? And then the renter says where is the kitchen, I answered you r ad for a bedroom and a kitchen, bathroom and kitchen that are newly renovated or something. Where is it? Chair: I have a question. With that said we can have that conversation all day long on the cat and mouse. If we feel that that application be pulled and denied do we have that right as a Commission? Mr. Ain: Yes you do. Planning Commission Minutes 25 March 23 2010 Chair: So we could talk about it all day what they advertise and what the inspector has done but if we don't believe or see fit that something is going on then we have that right to deny. That is why we have this process of consent and looking and pulling the applicant. Mr. Kimura: Advertisement is advertisement. Chair: But as said by the department when they went out there to inspect everything is all kosher and all good but what we read in the advertisement... Mr. Nishida: (Inaudible). Chair: And then what they inspected was... Mr. Nishida: They inspected the unit that they are saying... Mr. Ain: That they are now saying has a kitchen. Mr. Nishida: It is advertising as it has it. Chair: So it is cat and mouse. He can send an inspector out there but then they find that there is none. Mr. Kimura: But what can we do about the advertisement? Mr. Aiu: Well the advertisement can be taken as evidence and you guys can consider it. Mr. Dahilig: Under the existing ordinance any advertisement is prima-facie evidence of a type of use which means in legal terms that it is what it is. Chair: And you can deny it. Ms. Morikami: Which one is that? Chair: Shall we take a recess? Let me take 45 minute recess. Commission recessed for lunch at 1:08 p.m. Meeting was called back to order at 1:59 p.m. Chair: We are still on item 4, Commissioners, what is your pleasure of if you have any more questions for the attorney? Ms. Matsumoto: Question, and this is not just directed to complaints that were pulled out from this but in general, could we include a requirement for all dwellings that are in violation where there have been complaints on them, could we impose or require that the inspectors include online or any kind of advertisement they get on that place into their report? Mr. June: Well we could look into that but you have to realize that the internet, there is often times when there is dated material where their may have been an advertisement back in 04, 02, or 07 and if there was a violation pre the ordinance it may have been cleared up. So it is difficult when you have the internet because you don't know when certain things are timed. Chair: Or posted. Mr. Blake: In light of what Cammie is asking why isn't it the applicant's duty to make sure that what is presented to the public for public consumption and public use is up to date? We are cutting them all this slack. Mr. Jung: In this particular case there is a lawsuit filed so just to clarify some of the issues given that there is liability to the County I would request that there be a motion to go into executive session as listed in the agenda item. Planning Commission Minutes 26 March 23 2010 Mr. Blake: Which is this, Kolohala? Mr. Jung: The D.G. Pali Uli. Chair: So if there is a need to go into executive session we can. But do you want to answer his questions about the duty, where is the applicant's duty? Mr. Aiu: The applicant's duty I think in that case is to their consumer which is not necessarily us. But I think if your question is more can we take what they put up there on the website as evidence and not have it to be on us to prove what date it was from but rather have it be on them that this is there, we don't have to prove what day its from is I think more what you are saying, right? Mr. Blake: Well if it appears on the internet today it is current as of today because they are the ones that put it on the internet. Mr. Jung: That is not necessarily true. If you leave a website up it is still up and available to be searched and found. If may have been dropped in terms of what was put on the website back in a previous date. Mr. Blake: But if that is my website... Mr. Ain: It is not always their website. Mr. Blake: Or whatever it is, the ad, I can take it off, I can change it any time I want, right? Mr. Aiu: Well I think that comes into the argument and this is kind of getting into powers and duties so I will call on the attorneys to stop if they need to get into executive session for this. Again, like was mentioned, advertisement constitutes the "is what it is" evidence and so yes indeed if the website is up there indeed there it is, right, that looks like evidence. Now all evidence can be questioned as to when it was put up, the owner's rep can come in and say, they can come in and say my bad, I never updated my website. I never got it up to date. That raises a question definitely with you but if subsequently more verifiable proof is offered that it was not, and I am not speaking of any particular case I am speaking of just hypothetical, that it was just the website was not updated. That is what you guys have to consider basically and that is the duty... Mr. Blake: I don't have any problem with that but to me they bear... Mr. Ain: They bear their job of coming in here and saying yes, I didn't update the website, right? Mr. Blake: Yes because it is an admission. Ms. Matsumoto: I would also like to include not only... Mr. Jung: Before we start including things I would request that a motion be made to go into executive session because you have to realize these are non-conforming use certificates at issue. Ms. Matsumoto: I move to go into executive session Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), the purpose of this executive session is to consult with the County's legal counsel on questions, issues, status and procedural matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they relate to these agenda items. Mr. Nishida: Second. Chair: All those in favor say aye, opposed, motion carries. Planning Commission Minutes 27 March 23 2010 On motion made by Camilla Matsumoto and seconded by James Nishida, to go into executive session, motion carried unanimously by voice vote. Commission went into executive session at 2:06 p.m. Meeting was called back to order at 2:46 p.m. Chair: What would be the pleasure of the Commission? Is there a motion on the floor to...? Mr. Texeira: Defer. Chair: You want to defer? Mr. Nishida: I would like to leave one out. Chair: That would be number 17. Mr. Nishida: Move to approve TVR applications 1 through 18 with the exception of 17, take 17 out and defer action on that one. Well a couple motions, right now is it just taking care of the 1 through 18 without 17. Mr. Blake: Second. Chair: Moved and seconded, any discussion? Mr. Texeira: I have one question, the other TVR requests, were there any advertisements in regards to those as well? We haven't done any research in regards to those as well? Mr. Aiu: We don't have any advertisements in our record. Chair: Any more discussion, any more amendments other than to just remove number 17? Seeing none all those in favor say aye, do you want me to do a roll call, opposed, motion carries. On motion made by James Nishida and seconded by Hartwell Blake, to approve TVR applications 1 through 16 and 18, motion carried unanimously by voice vote. Chair: Now we have another motion. Mr. Dahili¢: You didn't take action on 17 so you can either approve, deny, or defer action on 17. Mr. Nishida: Move to defer item No. 17 pending department review of the information obtained today and new recommendations. Ms. Morikami: Second. Chair: All those in favor say aye, opposed, motion carried. On motion made by James Nishida and seconded by Paula Morikami, to defer item 17, motion carried unanimously by voice vote. ADJOURNMENT Commission adjourned the meeting at 2:51 p.m. Planning Commission Minutes 28 March 23 2010 Respectfully Submitted. Lani L. Agoot Commission Support Clerk Planning Commission Minutes 29 March 23 2010