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HomeMy WebLinkAboutpcmin04-13-10 (2) KAUAI PLANNING COMMISSION REGULAR MEETING April 13, 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-2B. The following Commissioners were present: Mr. Herman Texeira Ms. Paula Morikami Mr. Caven Raco Mr. Jan Kimura Mr. Hartwell Blake Ms. Camilla Matsumoto Absent and excused: Mr. James Nishida Discussion of the meeting, in effect, ensued: APROVAL OF THE AGENDA Chair: Can I get an approval of the agenda? Mr. Texeira: So moved. Ms. Morikami: Second. Chair: All those in favor say aye, motion carries. On motion made by Herman Texeira and seconded by Paula Morikami, to approve the agenda, motion carried unanimously by voice vote. Ms. Morikami: Mr. Chair, move to approve the agenda and receive for the record all submittals, application, staff reports, testimony, and addendums presented to the Commission relating to the posted agenda items listed herein. Ms. Matsumoto: Second. Chair: All those in favor say aye, motion carries. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to receive all submittals, applications, staff reports, testimony, and addendums presented to the to the Commission relating to the posted agenda items, motion carried unanimously by voice vote. Chair: Minutes for the regular meeting of March 9, 2010 and the executive session of March 23, 2010, motion to approve. Mr. Texeira: Motion to approve. Ms. Morikami: Second. Chair: All those in favor, motion carries. On motion made by Herman Texeira and seconded by Paula Morikami, to approve regular minutes of 3/9/2010 and executive session minutes of 3/23/10, motion carried unanimously by voice vote. GENERAL BUSINESS MATTERS Request (3/8/10) from Mark and Diane Daniels to delete condition No. 3 of Use Permit U-90-38 and Class IV Zoning Permit Z-IV-90-51 relative to the operation of a 288 sq. ft. art study/gallery, Tax May Key 5-5-4:3, Hanalei, Kaua'i. Staff Report pertaining to this matter. Staff Planner Dale Cua: Thank you Mr. Chair, good morning members of the Commission. What I have handed out to you is a green folder that I have received from the applicant to be distributed to you for your reference. Staff Planner Dale Cua read staff report and department recommendation (on file). Chair: Is there any questions for the planner? Seeing none I will call the applicant up. Mr. Mark Daniels: Good morning, Mark Daniels and my wife Diane Daniels. I am here to answer questions if you want me to clarify any issues for you I would be happy to do so. Chair: Is there a brief presentation that you want to give to let us know about your business or background? Mr. Daniels: I will give you a brief profile. I have been here since 1981, almost 30 years, and I have set up this studio in 1990 to do my art as it has been my heart, my passion to do such a thing. And this is what has transpired in 20 years and I wish to continue it. Recently I turned 60 years old and I have seen my mortality and I see what my future lies, what my considerations are as for my property and my ability to use my property to ensure the welfare of my family. So I have been reluctant to relinquish the control over the possibility of selling the art studio and that would be my only concern that that would be a consideration taken. I wish to just continue. I don't know that necessarily we will ever sell it but I don't want to lose the option and doing the CPR essentially gives me an opportunity to access the equity in my property so that I can retire or have my wife retire. It is unknown at this point, I don't see my self ever stopping being an artist and selling my art but there is always the option that I would like to hold on to. So with your permission and with your consent I would like to proceed and continuing doing what I have been doing for the last 20 years. As you see in my portfolio I am passionate about the art and the beauty of this island and I wish to continue doing that and the CPR process as you saw in the report was held up by the wording and I hope through the housekeeping process that we can change that and continue on. Short of that, I love Kaua'i. I want to stay here and you folks can help me do that. Chair: Are there questions for the applicant? Mr. Texeira: Good morning. Can you just further explain why you were not able to secure a lease for rent outside of your property over the years? Mr. Daniels: Over the years there have been in fact places available but the conditions in the original Use Permit were for one year and within that one year there was nothing available. And as one year transpired the pattern evolved that I help my wife with her preschool and I am instrumental in keeping that activity going. And the impact which is particularly the vehicular impact was negligible and I decided that it was the right thing for me to do to keep on going with that format. I was actually encouraged by Planning at some point after that year to keep doing it as well. That is why. Chair: Any more questions? So the only reasoning that you find suitable is to delete that condition due to the reasoning that if you sell the property that whoever buys it has the same right of using it as a studio or retail space? Planning Commission Minutes 2 April 13, 2010 Mr. Daniels: That would be my intent. I would submit that whoever might buy it under the conditions that have been put forth, they would have the same restrictions that anyone would have. It wouldn't really alter or change the use or the nature of the business long term. Chair: Right now, Dale, the use is residential, correct? Staff: If you look on the location map in your packet the department has provided a copy of the zoning map and its location with respect to Hanalei Bay and Kuhi`o Highway. Presently the area is zoned Residential District, R-4, and actually the neighborhood is primarily in residential use. Chair: And the surrounding, immediate surroundings... Staff: Right. Right across the street is the Waioli Church. Chair: Do you want to comment on the recommendations from the department regarding their recommendations and their spin on this? Mr. Daniels: Thank you. I feel comfortable with what they have recommended. Mr. Texeira: Could I get a clarification Mr. Chair. His request is to delete and the staff's request is to continue the annual permitting, right? Chair: Maybe we can have the planner sort of put that into perspective for the Commission. Staff: The initial request is to primarily delete the condition in its entirety. Rather than deleting the entire condition staff felt that we would retain the same condition with the exception of the time. And we are just saying that the permits are limited to this 288 square foot gallery/studio. If there are any revisions that would increase the size of the gallery the applicant would be required to come back before the Planning Commission for its consideration. So we just limit it to that square footage right now. Mr. Texeira: But also it is only for one year at a time? Staff: No. If you look at the recommendation the language that is shown in brackets are to be deleted. So basically the revised condition will read and is shown underlined. And just for the record I will go ahead and read the revised condition, the revised condition will read, "Said permits are specifically for a 288 square foot art studio/gallery and shall not be altered or expanded unless approved by the Planning Commission." The rest of the language in brackets is being deleted. Mr. Texeira: Thank you. I understand the request I just don't understand why we can't continue the one year permit at a time, I just seem to have a conflict with that. Staff: I think just going back to the history, back when the permits were being applied for back in 1990 I think the Commission at the time wanted the applicant to explore or the possibility of moving to the commercial area within the one year time period. I think as the applicant noted in that one year time period no commercial space was available so they continued the use in this location. Mr. Texeira: It seems like the commercial town core of Hanalei has expanded so over the years there has been more available commercial space. I think the applicant just chose to stay on his property for the various reasons that he indicated. Staff: Right. I think at the same time we took into consideration the comments that were provided by the Hanalei Community Association. Chair: I have a question in regards to his concern is that in affect he has expressed that ...he is looking for this entitlement if he is able to sell the property that ...would this be reviewed as an alternate change and would it have to come in front of the Planning Commission? Planning Commission Minutes 3 April 13, 2010 If he has already stated that the entitlement, he is trying to keep the entitlement so if he sells that entitlement runs with the land. Staff: I think legally and the County Attorneys can correct me if I am wrong but I think the land use entitlements run with the land not specifically to an applicant. Chair: But would you say that under... if in his case that if he sells the property and he sells that entitlement and makes that representation to the seller that also he will be able to use this 288 square feet studio as a gallery. Is that an alternative that that new applicant or that new owner would have to come in front of the Commission? Staff: As long as the use remains the same, as an art studio/gallery. Mr. Jung: Just to clarify Chair, if I could. Generally permits run with the land and not with the person and the whole intent with that is the Planning Commission cannot control the person, they can control the land. So if he sells the property to someone else the new owner would essentially step into the shoes of the former applicant and would be still subject to the same conditions. So the new owner would not be able to, if this amendment is passed, the new owner would not be able to alter or expand that particular use beyond the 288 square foot art studio/gallery. Mr. Kimura: So basically what you are trying to do is just expand the commercial use instead of staying in Hanalei Town just expanding it out with this amendment? Mr. Jung: Can you repeat that? Mr. Kimura: Are we just expanding the commercial use other than Hanalei Town its self with this amendment? Mr. Jung: When you look at a Use Permit you look at how the use could be compatible with the area in which the request is and back in 1990 the Planning Commission felt it was a reasonable use but only for that period of one year which gave him the opportunity to go look elsewhere within that Hanalei Town proper. And now they are requesting that the amendment be made to delete the condition of the one year time prohibition, now they want to continue that use in that area. So that is what is before you now. Mr. Kimura: So what we are saying is (inaudible) a second art gallery a couple lots down from them. So if they come in for another permit too, a CPR or a Use Permit, we have to give that to them too? Mr. Jung: No. That would be in the discretion of the Planning Commission on whether or not you feel it is compatible with the area. Mr. Kimura: Two lots down, not compatible with the area. Mr. Jung: That would be in the Planning Commission's discretion. So you could deny that if they requested it. Mr. Costa: I see what you are saying, although we are not placing zoning on this property by continuing a commercial use we in fact are allowing commercial use. Chair: For the applicant I just have some concerns on having the entitlements run with the land for the use of selling it with the land. I am a big believer that entitlements don't sell with the land. But also in the event of a time that if the community right now the community is behind you but in the event that the community does not have a say or because it is going to be set in your property and in an entitlement and community members might not have a say how long it prolongs this process. Actually this recommendation shows no time limit or a status report or anything so I would like to ask for at least a status report if it is changed or altered or a new owner comes in. I think it allows the community to look at the time that things are changing or situations change that they are allowed to put their input into it. Planning Commission Minutes 4 April 13, 2010 Mr. Texeira: Mr. Chair, could I have a clarification on the recommendation by the Hanalei/Ha'ena Community Association because it seems like they are recommending, as I can read it, that the current owners continue to operate the specific businesses with the current owner. Chair: And not with the land. Mr. Texeira: Yes, not with the land. So it seems like they recommend... Chair: Maybe the planner can... Staff: Did you want a clarification from staff or from the HHCA? Chair: Do you want the clarification from the staff or a HHCA member? Mr. Texeira: If anybody is here. Chair: Lets hold that question, so are there any questions for the applicant before I relinquish it, seeing none, thank you. Is there anybody in the public that would like to speak on this agenda item? Ms. Barbara Robeson: Good morning, Barbara Robeson for the record. I am representing the Hanalei to HWena Community Association and before we begin with our additional comments I would just like to acknowledge how difficult this has been for the Community Association because of our close ties with Diane. She has been on the board, she has been the president and of course Hanalei is a small community and we all know and respect one another. But from the perspective of the Community Association we feel that it is our duty to allow friendship and personal relationships with people to not interfere or get in the way with what we believe are good land use planning practices. So just to kind of review some of the history and background which you have already discussed, it is residentially zoned, the gallery, the preschool, and their home. It is located along the school zone and Hanalei Elementary School is right across the street. According to the 1990 Use Permit, again, as you have discussed it was a temporary permit until commercial space was available. The two structures on the property, the gallery is in front on the school side and then in the back is their home on the second floor and then the first floor has the preschool. Again their current request is to amend condition No. 3 and change from a temporary permit to a permanent use in a residential neighborhood. And in our letter of course we discussed our concerns about this. But again the concerns are that, one of them, if the property is CPR'd and does get sold there is no guarantee that the new owners would live on the property or have any connection to the gallery or preschool. They could own the property but be living off-site. And of course with Diane and Mark living on site it has made it much more compatible in the neighborhood. It meets the standards of a Use Permit for compatibility where if it was CPR'd and sold it possibly would not. We believe because the original intent of the permit in 1990 was temporary that a phase out would be appropriate when the Daniels no longer own the property which you folks have just discussed. Kind of the more generic concerns that the Community Association had was the intensification of the commercial uses in non-commercial areas, the spot zoning concept and the continuing commercialization of residential areas. Now in terms of the staff report we respectfully disagree with the statement that talks about Use Permits run with the land because if you look at the CZO, Article 20 under Use Permits, section 8-20.5(b), it says "The Planning Commission may impose conditions on the permit involving any of the following matters," it lists location etc. But it also says "Other matters deemed necessary by the Planning Commission." And under section 8-20.6(b), "Upon findings of the Commission that a Use Permit may be granted consistent with the requirements of this Article, the permit shall be issued to the applicant on such terms and conditions and such a period of time as the facts may warrant," so again that kind of goes to your discussion about, the discussion that you just had. Attorney Jung said that generally Use Permits run with the land so that leaves you a door open there to use your discretion and change the condition that is recommended by the staff, thank you. Planning Commission Minutes 5 April 13, 2010 Ms. Matsumoto: So having said all of that what is your recommendation for language? Ms. Robeson: The second to the last paragraph we propose specific language for that condition. Ms. Matsumoto: And you still want to stick with that? Ms. Robeson: That is still our position, yes. Mr. Jung: I will respond to that. You are right it does say you can regulate time. So the focus is you can impose time restrictions on particular Use Permits, say good for one, two, 3 or four years, whatever the Commission finds reasonable. But in terms of regulating the person, the applicant is the one who comes in for the permit. Once the permit is issued, if you look at land use regulation of Planning in the law generally it does say zoning runs with the land. Ms. Robeson: Generally. Mr. Jung: Just so the Commission knows the exception that is usually noted in case law is if the ordinance or amendment to the CZO says in the particular ordinance that you can have this thing specific to a person. But under the Use Permit it doesn't say it can be specific to the person. Ms. Matsumoto: But you can put time. Mr. Jung: That is correct, you can put time. The whole idea is you don't want to chose a discriminatory route where if someone comes in and you like that person you will give them one year or you will give it only to that person versus if somebody else comes in and then you will give them two years. So it is to try and keep it consistent across the board. Ms. Morikami: I have a question. The permit was granted for one year, temporary permit, what happened in subsequent years? If it was granted for one year what happened the second year, third, fourth, all the way to the twentieth year? Chair: Do you want the Planner to answer that or the applicant? Ms. Morikami: The Planner. Staff Just going back to the condition it says that the "Planning Department shall reevaluate the subject permits and the applicant shall make every effort to relocate the retail portion of the use should retail space become available within Hanalei Town prior to that date." I think for the record the applicant has noted that in that one year period there was no commercial time, commercial space available to relocate his business into. Mr. Kimura: Just for that one year? Staff: Well as the conditions reads. Ms. Morikami: So it is 1990 the Planning Commission approved the referenced permits to operate the 288 square foot art gallery. From 1990 to 2010 how have we, it is a temporary permit for one year so my question is at the end of the one year what happened? Why are they still there? Do we extend every year, a year? Staff: Not quite clear based on the permit. It just says to reevaluate but it doesn't say whether it is done in house, through the Commission. Ms. Morikami: So basically if it was temporary for one year the temporary part has expired? Staff. To relocate his facility. I guess we can't force him to move into a place if there is no space available. There is a catch 22 from the standpoint that we were encouraging him to move but there was no space to move. Planning Commission Minutes 6 April 13, 2010 Mr. Kimura: Within that one year period. Staff The Commission gave him a one year period to relocate. Ms. Morikami: So from that point forward from 1991, 92, 93, he is just operating there without any decision by the Planning Commission or Planning Department to allow him to do that even with this condition? Staff: As I read the condition the department was given the task to reevaluate the permits but it is not quite clear what it entailed as far as whether we do it administratively or whether the applicant needed to come before the Commission for time extensions or reconsideration. Just reading the condition as is it didn't specify the process. Mr. Texeira: Can I ask the Planner a question? So did any evaluation take place subsequent to that one year to determine if in truth there was no adequate commercial space in Hanalei Town Core? Staff. I am not aware of any. Chair: There are a lot of variables on if it is available and if it is within his budget. The condition doesn't really outline all of that other than the department is allowed to evaluate it. Mr. Blake: Since this is a Use Permit it can come before the Commission at any time if someone in the neighborhood believes that the use, the non-conforming use is not compatible or is no longer compatible, isn't that correct? Mr. Costa: I believe through a petition perhaps. Mr. Blake: Because Use Permits are not forever, I mean that is why they are a Use Permit so even if a time limit is imposed it doesn't mean that ...for instance if you granted five years that doesn't mean that for five years they don't have to worry about anything. Is my interpretation correct? Mr. Costa: That is true. I guess somebody can always file a petition to revoke, modify, or amend. We have found as a matter of practice that even after the five years, at the fifth year it doesn't, although the permit was stated as being good for five years it doesn't automatically cease to exist if you will. Mr. Jung: If the Hanalei/Ha'ena Community Association is bothered by this particular use and whether or not it is compatible they can file a Chapter 12 petition to revoke, amend, and/or modify the existing permit to test the compatibility of whether or not it is (inaudible). Mr. Kimura: My concern is that if and when they do sell the property, I am not saying they will, but the new property owners might not be as caring and understanding as the Daniels. That is my biggest fear because right now the community loves the Daniels and the new property owners, who knows what they might do? And if we allow this permit they can do whatever they want basically and that scares me. Mr. Jung: Just for clarification they wouldn't be able to do whatever they wanted it would be limited only... Mr. Kimura: With the gallery I am talking about. Mr. Jung: The gallery is confined in the 288 square feet. Mr. Kimura: Yes but still they have some place to do business and they might not be as caring or understanding as the Daniels, that is my fear. Mr. Costa: That is always a concern and even though as stated by counsel it does generally run with the land. Often times representation to mitigate the impacts are made by the specific applicant. Planning Commission Minutes 7 April 13, 2010 Ms. Matsumoto: Is there a way for us to allow them to continue as long as they own the property and then when it gets sold to just end the right to have the commercial use on that property? Mr. Jung: I would advise against that given the general law is that it runs with the land. But you could impose a time restriction if you want to give them two more years or ten years but it would be up to you folks to see what is reasonable in your eyes for a specific time period. Ms. Matsumoto: We are talking about the art gallery but there is also a school on the property, right, so does it impact the school as well? Mr. June: The focus of the request is to the art gallery so I am not familiar with what the school... Ms. Matsumoto: It doesn't make since to me if we are focusing only on the gallery if there is this other operation going on. I think both are in my opinion good for the community but it still leaves that property use issues unresolved I guess I want to say. Mr. Jung: Dale, do you know what permit they have for the preschool? Staff: Maybe we could have the applicant explain how the two uses are connected. Chair: Are there any more questions for the Planner before I call the applicant up? Is there anybody else that would like to speak on this agenda item? Seeing none I will call the applicant to address the question of the Commissioner. Ms. Diane Daniels: Hi, I am Diane Daniels and I am the Director and the owner of Menehune School. I have had my school in Hanalei since 1974. It is a small school. It has been licensed by the Department of Human Services for 24 students. My current enrollment is 14. Typically that is about how many kids I have. It is kind of a mom and pop business, we have the structure in the back and the building was built my Mark and it was designed as a pre-school downstairs. The little structure in the front, the 288 square feet is as you can see in the portfolio we made, is on the same property so Mark, being as he is licensed with the Department of Human Services as a Director/Teacher, he is there all day long so that he can be on call. It is a symbiotic relationship. What was the question in regards to the school? Ms. Matsumoto: Permits, do you have a separate permit for that school? Ms. Daniels: Yes I do, Special Use Permit. As a matter of fact I believe there is a copy in the packet from the Planning Department that speaks to that. I got that permit in 1978, my school was started in 74 at the Waioli Church and I moved over to the private property when my mom and dad bought it. Ms. Matsumoto: So if you were to sell the property what is going to happen to the school? Ms. Daniels: I don't know. If somebody were to purchase the property the permit runs with the land, they may be a pre-school teacher. I taught for more than 35 years, someday I will probably retire hopefully. That would be the ultimate and the best case scenario. They don't need to use the permit if somebody were to purchase the property and not be interested, I don't know what happens to the permit at that time. I think it just disappears or maybe they can re- start it up. It runs with the land was my understanding when I was first given the permit. Staff. It is shown as exhibit 1 in your packet but it was a permit that was issued back in, that was approved by the Planning Commission back in February of 1978. Ms. Daniels: I would like to speak too, to the impact. As you said the community has all the opportunity and has had with my school since 1978, never a single complaint. With the gallery for 20 years, never a single complaint, it is a very comfortable, small operation there. And if this were to ever be sold in the future if we chose to do that the same restrictions would run with the permit to the new buyer. In other words the same square footage, the same signage, the same purpose. For instance it couldn't be a retail shop, the little gallery; it would have to be Planning Commission Minutes 8 April 13, 2010 a specific use, art. I am married to an artist so we support the arts and it is something that we feel is really valuable as well as the school that is a specific use. So we felt that that would be as it has been all along the comfort zone for the Planning Commission that there wouldn't be any changes. I understand your concern that somebody else might not be as caring but if they are not as caring I am certain that the Community Association and other residents in the area would step up and make a complaint at that time. I don't know what the complaint would be, again it is restricted by space and signage, use and it is a small town. Like was mentioned before I have been a member of Hanalei Community Association for 20 years, from the first onset of it. I have been the president for probably more than 10 years. I am very sensitive to the uses and the design and the feel in Hanalei. But that is for your folks to decide. Ms. Matsumoto: So if were to buy the property I would have to run the school? Ms. Daniels: Or not, you could use it for something else. But it is absolutely a special use, specific. Mr. Blake: What was your last comment Cammie? Ms. Matsumoto: If I were to buy the property I would have to run a school and an art gallery or not. Mr. Blake: Right. So it is not going to be a photography studio. Chair: Well that is the argumentative issue with this is the art gallery. I could say architecture is an art gallery. Mr. Blake: And that is the problem. Chair: And photography and there is no really...when we open a can of worms when we open an application like this. Art gallery to me, I can spin my wheels all day long and say what is an art gallery and what is not an art gallery. Mr. Blake: True. That to me is the problem, the definition. I don't know the applicants personally but I believe they are involved and well thought of in the community however the things that do make it more, that are of importance to the specific problem or application is that it is right across the street from a school. Is it still a Montessori School, Montessori School there but just with our experience with other people and other applicants in other types of projects and definitions, with them it has not been a problem of which I am aware at all. Too bad they cannot live forever there and run the school and the art gallery. That may be part of why we are here, just to go around and around with people who don't want to, not the Daniels but other people who don't what to stick by what is an obvious definition. And the issue I guess if I hear Mr. Kimura and Mr. Texeira is this is like spot zoning so if we just erase that one year condition then it is spot zoning tentatively forever. And of course if something goes haywire and you want to file one of those Chapter 12 petitions to revoke or amend and so forth that is a whole process again. And that is why I don't get a lot of heartburn out of suggestions that there be a regular status report just so that we don't lose track of what is going on. But then again you balance that with the community, they are there every day, they don't see any problems. We don't have to go look for problems to keep us busy. Ms. Matsumoto: I wonder if the applicant would be comfortable with a time limit. Mr. Daniels: What type of time limit would you refer to, my lifetime? Ms. Matsumoto: 10 years, 15 years. Mr. Daniels: One of the considerations is that I have a son and I want to leave him a legacy and I would rather not give up the opportunity to pass this on to my son so running with the land as the general understanding of the law goes, as the attorneys said, would be my preference. Of course I will defer to whatever decisions you folks make but my preference would be to have security and a type of monitoring of some sort where there was a visit perhaps from Planning or something like that would be more sufficient for me. Just to do a review periodically. But I can only offer you my sincere desire to keep it as modest as I have for all of Planning Commission Minutes 9 April 13, 2010 these years. I haven't been ostentatious with my presentation and I understand the compatibility issues you folks are concerned with. I am concerned with them as well. I am enjoying a lifetime for myself to do what I love to do. And essentially the only real distinction in my mind is the ability to sell to the public is what the permit is for because the activity will be there, that is what I do, I paint and I have a beautiful studio and I hope perhaps some of you will come out and visit someday. The activity is going to be there. It is the ability to sell to the public which is my specific issue on the permit and I would like to continue that as long as possible and that ideally passing to my son at least and then beyond. Of course I mentioned before when I spoke to the option to sell is merely a possibility but it is that possibility for me to design my future security because I don't have pension, I don't have trust fund, I just have my equity. And if I can pass it on that would be my hope and I don't know that that necessarily will happen I just don't want to lose that option. So I am hoping for the longest period of time you folks can grant me. Mr. Kimura: I have a question for the Planner. If we allow a temporary Use Permit can he sell the permit with the property? Staff: As mentioned before permits run with the land. Mr. Kimura: So if we go say 5 years, temporary permit, when he sells the land in 5 years it goes with the land, right? Is there anyway we can put some kind of request in there that when he sells the property the new owners have to come in for a re-evaluation? Staff: I don't see why you can't. I think as counsel has represented this body can impose a time limitation with the option to renew or re-evaluate or should something arise. Mr. Kimura: What they are asking for is a permanent permit, right, not a temporary permit. Staff: Yes, for that property. Mr. Kimura: So even if it is temporary it still goes with the land? Staff: With the amendment of the condition it wouldn't be temporary. Mr. Kimura: Say if it is temporary would that still go with the land or just the owner? Staff: Within that time period, yes. Chair: For clarification the actually recommendation and permits now is temporary and it is over due already so that permit now as of today is still running on a temporary which does not probably run with the land, right? Mr. Jung: You have to understand the permit is the permit. And when you look at if there is time limitation, how long the permit lasts, that is what the permit is good for and if it continues on, it continues on. But the problem is if you start regulating the person then you get into the realm of how can we link this to just one particular person when someone else might not have this particular condition imposed on them. That is why the focus is the time limitation. But when you look at the time limitation you have to look at what the infrastructure was already put in. This permit was issued back in 1990 based on the premises that he continue and build his art studio. He built his art studio so now if you guys impose a time limitation then you should take into consideration the infrastructure he put into that in terms of how long you want the duration of the permit to go. So it is a multi-variable approach on how you are going to balance all this stuff out. Mr. Texeira: Could I have a point of clarification again. At the time the permit was approved wasn't there a condition time condition imposed at that time of one year? Mr. Jung: That is correct. It was "The Planning Department shall re-evaluate the subject permits," which was that done? Planning Commission Minutes 10 April 13, 2010 Chair: As the planner said it wasn't done administratively or anything like that. There are no guidelines as to how to evaluate it, to come in front of the Commission or not. Mr. Daniels: May I add something? I did get a visit from the Planning Department, two members came out and encouraged me to continue and I don't have anything to show you in writing. These two men did show up and they were from the Planning Department and they encouraged me to continue. Chair: So, on his clarification it is a temporary permit, right? Staff: Right. Mr. Texeira: So again Mr. Chair, I am confused about the recommendation by the Planning staff for this process, could that be expanded? Could you further clarify that again please? Are you recommending exactly what? Staff: We are recommending that the use continue and be limited to just that 288 square feet. Mr. Texeira: But the use can continue unlimited, right? Staff There is no time limitation with the revised condition. Mr. Texeira: So that use would run with the landowner, with the property? Staff: With the property. Mr. Kimura: Can we make some kind of clarification on the type of art studio that they have and the new owners, if the do sell, can run? Right now it is painting. Can we clarify in the new amendment what kind of art studio they can run? Mr. Jung: You could do that but you have to understand, art is in the eye of the beholder. Mr. Kimura: That's right, you can get a welder to go over there and that is art and all of a sudden he is making trailers and he says that is my art. You know what I am saying, it varies. Mr. Jung: It does vary. Mr. Kimura: Right now, look at these pictures, it is beautiful but you can get some clown in there doing something else and call it art. Staff. Just for the record the art studio/gallery is limited to those confines, 288 square feet. Mr. Kimura: You can do wonders with 288 square feet. Staff: I am just saying it is limited to those confines. Mr. Kimura: I know that but what kind of art? Ms. Matsumoto: Could you limit it say for example to two dimensional? Mr. Daniels: I do 3 dimensional work already. Ms. Morikami: Can we limit it to saying Mark Daniels Gallery? Chair: Somebody could say Mark Daniels Architectural Studio too. Ms. Morikami: But Mark Daniels Gallery would kind of like discourage other people from... Planning Commission Minutes l l April 13, 2010 Chair: I think the Commission has prerogative in noting down all your concerns. I don't think it is limited to what we can do and what we can't. Mr. Daniels: May I add something please? I think the important feature here is that I know you have some legitimate concerns but I am really not prepared to pass on this building to somebody who is going to be an offender of any kind. And that you do have recourse in the form of the revocable permit for cause. And you mentioned something about a form that you folks present as a process to eliminate something that has an adverse impact to the community. And there is a remedy to the concerns that you are expressing. To speculate that something maybe is going to happen is a bit difficult for me to decide my future on. I would rather have you reassure yourselves with the remedy which is there and that if something were to go wrong that myself, I would be there with you to try to stop that. I don't intend to ever let something like that happen if it is in my control and it is to some degree to who I sell to. And so I appreciate your concerns but I think the remedies that you have will take care of your issues, thank you. Mr. Jung: Commissioner Kimura, if the condition as proposed by the Planning Department does meet your approval then if the art studio is altered or expanded then it would have to come back to the Planning Commission. Mr. Kimura: What I am trying to say is say another artist comes in and decides to do naked pictures and there is a pre-school running next door or a school right across the street, is that acceptable? It is art. That is my concern. What do you consider art? Art is in the eye of the beholder. Mr. Jung: Art is art and if it continues to say art gallery then it would be art. Mr. Kimura: I love this guys work and if you can find another steward close to him or anything like him that is great but who knows? Chair: My concern,,I understand the fabric of the community and I understand the use of, your use right now that the applicant has and I think it is a good hand shake and a good even playing field. My concern would be that if the property is sold or altered or any change in use that it allows the Commission to have its say and more importantly the community would have its say too at that time, if you do sell or if you do change. I am okay to not binding you down to any kind of ruling but if you change and if you change ownership or you hand down the property to your children, I think that is a legitimate use. I mean you could come in front of us and portray that is what you are doing. It allows at least at the time maybe a different face of the Commission to look at it but more importantly the community's input. I am going to try to insert a status report or if a change in ownership that the Planning Commission has that option. Mr. Blake: I have a question. Do we ever highlight a use? For instance the non- conforming uses shall continue to be compatible with the co-location with a school for young children and public school or something to that affect. So that we are not looking over his shoulder all day every day as to what he paints but there is a general understanding that it is co- located with a school for children and it is also arguably co-located with a public elementary school in close proximity. And so the use shall continue to be compatible or we don't have to say that? Mr. Ain: I would say you don't have to say that considering that the criteria for a Use Permit is that it is not contrary to the safety, morals, and welfare of the neighborhood. I may not be quoting that exactly. Mr. Blake: Because I can see Jan's point, if you are welding you have gas, smoke, noise and no one can really argue that metal sculpture doesn't have its own place in the art world. So if you just go straight art then the Commission, whoever makes it up at that time is faced with does that kind of art, is it compatible to the surrounding neighborhood or should it be in the industrial area. Ms. Morikami: Mr. Chair, continuing on with Mr. Blake's comments, if that should occur does the Planning Commission have the authority to remove the permit? Planning Commission Minutes 12 April 13, 2010 Mr. Jung: If I could just interject. I think we are going in circles here. I think if someone were to come in, if we are going to speculate, if someone were to come in to do welding operations then someone could make the argument that it is not technically art and they could initiate revocation proceedings. We would hold a full hearing on it to elaborate and determine whether or not it is a true use of that particular property. So if we want to go back and forth on determining what art is I think we just continue in circles. There is the possibility where initiation of revocation proceedings could happen to look at the details of how the permit was issued and whether or not they are complying with all the conditions. Ms. Morikami: The Planning Commission cannot just, lets say if there is a new owner and that owner is causing problems in the community, the Planning Commission just based on that, can it revoke the permit? Mr. Jung: The Planning Commission would have to, if an OSC was issued then a hearing would be held and if they wanted to amend the particular permit then there is that potential. Chair: Any more questions, thank you. Is there anybody in the public that would like to testify on this agenda item, seeing none, what would be the pleasure of the Commission? Mr. Blake: We would accept the recommendation first and then modify if we feel it is appropriate? Chair: Yes. Procedurally what we would do is entertain a motion, second on that motion, and then go into discussion and make any revisions that we have to the condition if we want to. Mr. Jung: That is correct and the report and the request have already been received for the record. Ms. Morikami: With that said Mr. Chair, move to approve the staff report. Ms. Matsumoto: Second. Chair: Before I call for the vote is there any discussion or additions or deletions that we want to add? Mr. Texeira: Just a discussion, so what we are essentially doing is we are expanding the commercial activity in Hanalei Town by the approval of this motion, am I correct? Mr. Jung: Actually that is not correct. They are not expanding what is beyond, they actually already issued permits. Mr. Texeira: But it is a temporary permit, correct? Mr. Jung: So if this thing passes it won't be a temporary permit it is will be a permanent permit so there is a difference. Mr. Ain: Yes. I would keep in mind the difference between a zoning and use permit. Zoning, once granted, is if we were to say that we are expanding the commercial use in Hanalei, in one area you are correct, a commercial use would stay there until it was found that it is incompatible with the area. That is one important difference. Once you grant the zoning it's very, very difficult to take away, much more so than a Use Permit. The other important difference is commercial zoning comes with a whole array of uses that they could have there if this property were to be rezoned commercial. They could have a gas station not just an art gallery if you were to rezone it commercial. So while yes, you are granting a semi-permanent commercial operation here and I don't want to down play that aspect of it that you should consider, you should also consider that it is along the spectrum from residential to full on commercial, it is not quite (inaudible) rezone to commercial. Because one, it can't be revoked and it is limited to the type of operation they can have. Planning Commission Minutes 13 April 13,2010 Mr. Texeira: But there is a message that we are sending to the community in a sense that we are approving a commercial activity in a residential zoned area. So why do we want to do that, what is the purpose? Mr. Aiu: That is up for the applicant's to justify to you and you to consider. If you don't believe that that commercial use is compatible with the area then, I mean that is the standard of granting a Use Permit. The Use Permit acknowledges that there are some uses which are not always recognized in the zoning ordinance that can be considered in any given zoning and if they are compatible basically. That compatibility question, the reason it comes before the Commission because that compatibility question is indeed presented to you. Mr. Jung: And just for the Commission's clarification, if you look under the CZO, Chapter 8-3.4 it denotes the uses that are permitted with a Use Permit. So retail are permitted with a Use Permit in the residential section but they have to come in for the Use Permit which as Imai explained you then go and look at the compatibility standard. Mr. Texeira: But why would we want to continue the Use Permit if the property is sold? I don't understand why we want to continue the Use Permit. The intent of the Use Permit was to satisfy the applicant's desire to have an art studio and school. Now when they retire it seems as though the intended use is no longer in play. Mr. Aiu: I would say Mr. Texeira that given what counsel has said that the permits generally run with the land that is something you also have to consider. The grounds that you grant the Use Permit on are not so much the applicant's and their desire to run this place it is about capability. Does anyone's desire to run an art studio and a pre-school there, is that operation as named and described in the application, is that compatible with the surrounding area. I am sorry, I am specifically avoiding your question of why would we want to do that because I am not going to advocate for the applicant's side. It would be improper for me to do that. Mr. Kimura: Can we continue with condition No. 3 but just eliminate him having to relocate his business, his art studio? Chair: So you would say just keep the whole entire recommendation on No. 3 and just the deletion where it says the applicant shall... Mr. Kimura: Effort to relocate the retail portion of his studio, the retail space within Hanalei Town. Just delete that and skip the condition as is. Chair: That is up for discussion Commissioners. You could propose that and we could talk about it. Ms. Matsumoto: Are you going to keep in one year? Mr. Kimura: One, two years, it doesn't matter. Ms. Matsumoto: How about eliminating one year and just keeping it temporary in nature. Mr. Kimura: We still need a time frame if it is temporary. Chair: I would say keeping in the time frame. I was going to suggest that it be a 3 year period being that Commissioners change every 3 years and get reappointed and (inaudible) that is an ongoing process that he does come up with a 3 year status report. As I said before I am just very hesitant to giving him the allowable use that if he sells that he has that right. I think really the community has their rights to in evaluating his use or the person that is going to be using it. So at that time, whoever buys it or whoever he hands it down to, we as the Commission or more importantly the community has a say in what they think (inaudible) at that time, in the future. Mr. Texeira: Mr. Chair, I don't know what advantage that would really have. If I was somebody trying to pursue the purchase of the property in the future with a 3 year limitation, I mean it doesn't seem like it is a real advantage. I don't understand why would that be imposed at this point. Planning Commission Minutes 14 April 13, 2010 Chair: All my point is that because the Commission changes every 3 years and we don't know what is going to happen in 3 years. I am just trying to provide an envelope in time so the community and the Commission have a say too and that we are not just left with that burden of that use just goes with the land and that is it, we cannot really evaluate it at that time other than if we have to revoke it and go through legal venues in trying to revoke it which is a nightmare. So that is why I say 3 years. Mr. Blake: In a perfect world we would just have no Use Permits because we would anticipate everything. However that is not the case and so we try to handle it with Use Permits. I get very nervous when I here words like permanent because to me a Use Permit by definition is not permanent. I like the point that Chair made about having a status report filed with the department every 3 years for the reasons stated because then it is not like what are we talking about, when did this happen, 25 years ago? It just stays current and that is with the expectation that the landowners or the permit holders will continue to perform as they have in the past to the ultimate benefit of the community as a whole. I can sympathize with Commissioner Texeira's outlook however I think that is balanced by imposing a 3 year, ongoing status report that the applicant has to file with the department. And the department, I expect that type of thing will come before the Commission and if nothing is amiss it is just to perform an acceptance. And it still gives the applicant the ability to profit from their good works and it gives the community a continuing avenue in case things change and these issues of non-compatibility. Chair: Any more comments on Jan's question? Mr. Texeira: Mr. Chair, I have no problem with the 3 year extension if it runs with the landowner or the property is sold, a 3 year extension, I don't have a problem with that. I think the applicant came in with a different purpose and that was to get a CPR on the property and would that serve the applicant's purposed and desire if we did a 3 year extension? How would the applicant feel about that particular request? Chair: Before we ask the applicant that, your question is, is his reasoning to get the CPR approved? Is that what it is? Mr. Texeira: Yes. Chair: I think the department can comment on that. The actual CPR has already been submitted in 2008 which is probably mapped and approved. Mr. Aiu: I don't know that the CPR is approved at this point but I would ask the applicant that. Chair: I can ask the applicant. Let me suspend the rules and ask the applicant if he can comment on the CPR status. Mr. Daniels: Thanks. As far as the CPR goes we have an application in and it hasn't been approved, that is where we are at. Chair: As far as the department is there any reasoning that his CPR documents would get messed up or not approved because of the use? Mr. Ain: Well apparently that is what is being represented to us through Real Estate Commission conditions. We would only look for...sorry, to just lay the ground work, we only comment, we are a commenting agency on CPRs and our usual, what we look for in our comments when we deliver them is compliance with the CZO. I would ask the applicant to elaborate on anything on why the Real Estate Commission wanted this condition confirmed. Mr. Daniels: My understanding was that, it is confusing as we have witnessed this morning and I want to eliminate the confusion, I feel that your considerations are...I respect your considerations and what your intent is. But as far as the legality of it I would have to defer to your attorney in terms of what the length and duration of the interpretation would be and then your annual evaluation would be something I would be very interested in pursuing further. I Planning Commission Minutes 15 April 13, 2010 don't know what that looks like or what that means. But the CPR has been applied for and it is in process but it has not been approved and that is where we are at. Mr. Aiu: In review of one of these things, like I said, what we look for is conformance and this condition as stated as Dale has mentioned is unclear so one of the things is conformance wise it can be raised to the question of are they conforming with their permit as granted. And that is as the applicant said one of the things they want to straighten out, that is one of the things we look for when we do CPRs. Other things are, are they putting on more units than they have density for and so forth. I think that is what this is relative to. Mr. Texeira: Could we ask the applicant how he felt about a 3 year extension? Mr. Daniels: I'm not sure what that means. What does that entail? Mr. Texeira: That is what was proposed. Chair: In our discussion my concern was that I would in the nature of the permit that right now the 1 year temporary permit is what is at hand right now and that is what is overdue at this time. In good housekeeping I think with the experience that the Commission has now and with my experience is, I guess his question is and if you want to comment, is if we imposed a 3 year status report to get the status and (inaudible). Mr. Daniels: That sounds fine to me. The nature of the status report would be a basic continuance, it is existing but with a review in a 3 year period. I don't have any problems with that. Chair: And then my other point was that at that point of you selling or change of ownership that all conditions of this permit is, not recorded but actually that whoever is occupying or will be occupying that the Commission has allowance to review the applicant at a new face value. Mr. Daniels: Full disclosure. Chair: Full disclosure at a new face and not what you are representing. Mr. Daniels: That is reasonable, I understand. And just keep in mind the aspect of me selling my gallery is a very, very long shot. I don't really see that happening. I am not going to stop being an artist and this is where I do my art. I just didn't want to lose that opportunity in case it were to present its self to me. The objective right now is really at some point in my future to retire my wife's business after 35 years but I just don't want to shut the door on any options that might present it's self to me. Chair: So I guess that is what Mr. Texeira (inaudible). Mr. Daniels: I hope I helped a bit and if you have some more questions... Chair: Are there any more questions for the applicant before I bring the meeting back to order, thank you. So what is the pleasure of the Commission? Ms. Matsumoto: So we are in the process of modifying that? Chair: Yes, we are in discussion and we can... Mr. Jung: Where you are at now is you could, because there was a motion to approve the staff report as recommended with the condition then you are in the discussion portion so you can make amendments to the staff report, the condition and the staff report. Mr. Kimura: So we make an amendment to change that 1 year to a 3 year? Chair: And a status report? Mr. Kimura: And a status report. Planning Commission Minutes 16 April 13, 2010 Chair: Is that a motion? Mr. Kimura: That is a motion. Mr. Jung: Sorry, you would have to just clarify exactly the language you want in a condition. Mr. Kimura: What do you want me to say? Mr. Jung: That is up to the Commission. Ms. Morikami: Said permit shall be temporary in nature for a 3 year period beginning from the date of this Planning Commission approval. Mr. Jung: The discussion focused around the issuance of a status report at a 3 year period. Chair: Commissioners, I think at this point we will take a caption break for 10 minutes. Are there any other conditions that the Commission has or issues? Mr. Kimura: Yes, eliminate that space, relocating his retail. Chair: Any more? Ms. Morikami: Yes, we have to include the status report. Chair: Yes, that is what the planner will try to craft for us. Mr. Texeira: Mr. Chair, so the permit would be temporary in nature and would that continue, is that the purpose to continue but it would be for 3 years instead of 1 year with a status report? Ms. Morikami: That is what seems to be the discussion. Commission recessed for caption break at 10:41 a.m. Meeting was called back to order at 11:04 a.m. Chair: The planner has some new language if he wants to read it for the Commission. Staff: Thank you Mr. Chair. Based on the discussions we had earlier this is what I have gathered and now condition 3 will read as follows, "The subject permits are specifically for a 288 square foot art studio/gallery and shall be re-evaluated by the Planning Commission every 3 years and be accompanied with a status report. However, the applicant shall make every effort to relocated the retail portion of the use should commercially zoned retail space become available within Hanalei Town. In the event of change of ownership the new owner shall notify the Planning Commission." Mr. Texeira: I have a question Mr. Chair. Again, is this a temporary 3 year permit or is this a permit that is approved with... Staff The permits are good for every 3 years. Well right now for 3 years with the option that it will be re-evaluated so basically in 3 years if the owner remains the same, status quo, in 6 years or 9 years or 12 years if the owners remain the same, status quo. Chair: Any more discussion. Ms. Matsumoto: The last sentence, "in the event of change of ownership the new owner shall notify the Planning Commission." Is notify enough? Chair: If the planner could expand on that. Planning Commission Minutes 17 April 13, 2010 Ms. Morikami: On that last sentence, "in the event of change of ownership the new owner shall notify the Planning Commission", what if we inserted "in the event of change of ownership the new owner shall amend the permit to officially change the ownership and confirm compliance with all conditions." Chair: Dale, you got all that? Read that slowly so we can write it down. Staff: "In the event of change of ownership the new owner shall amend the permit to officially change the ownership and confirm compliance with all conditions." Mr. Blake: How about "immediately." Staff. Just for clarification purposes again the last condition would read "In the event of change of ownership the new owner shall amend the permit to change the ownership and confirm compliance with all conditions." Ms. Morikami: "In the event of change of ownership the new owner shall amend the permit to officially change the ownership and confirm compliance with all conditions within the said time frame." Chair: Any discussion on the additions? Staff: Mr. Chair, just for understanding, so if the ownership changes from what I read the applicant needs to amend the permit? I mean if the use remains the same, for example the applicant has represented that he has a son so if the son continues his legacy and continues the status quo of the gallery does he need to amend the permit? Chair: I guess we don't have to say amend. Mr. Jung: That is why when helping Dale with the amendment I think just notification is enough to give the Commission the update so if there is a re-evaluation in the 3 years, every 3 years, then that would be registered in the full report that would come before the Commission. So I don't think it would be necessary to amend the name only of the permit since it is the use of the land and not necessarily the name. It would just be the relocation. Chair: Could you say that the new owner shall confirm the compliance with the conditions of the permit? Mr. Costa: I think Commissioner Morikami's amendment was to assure that no matter who the new applicant is that the permit be amended to reflect the new applicant. Chair: Yes because it is a change of applicant, right, the son would... Staff: The way the condition reads is if there is a change in ownership they just notify you folks otherwise if there is a change in use obviously there would be an amendment to the permit. At the same time a status report is required anyway, right, or I lost you folks? Chair: You didn't lose me, you might have lost Paula. Ms. Morikami: I just wanted to ensure that we would know what was taking place at the property should a new owner come in. Staff The way the condition reads as is the permit is good for a period of 3 years and they have to provide a status report. So like I mentioned before every 3 years if the use remains the same basically the owners can come and say I am still the owner, I am still doing the same thing. However if he passes it on to his son or if it is sold, the way the condition reads, then they are required to notify you folks that I am now the new owner of the property. Chair: So at that point that would amend the permit, right? Staff He would have to update you folks. Planning Commission Minutes 18 April 13, 2010 Mr. Jung: The status report effectively would in notifying the Commission of the change in ownership, would be docketed in the Planning Department's file which would notate the change and when the permit is re-evaluated then that change would be recognized. So think if it like a supplement once there is notification to the Planning Commission. So amending the actual permit just for a name isn't necessarily required because the permit runs with the land. I can try and explain it a different way if it will help. Staff: The way you look at it is like a hotel. Hotel names change. We don't require them to come back because ownership of a hotel changes. The one at Nokalii changed I don't know how many times, same thing. Ms. Matsumoto: But you want to be able to have the Commission review, to be notified and to be able to review the... Chair: But it is my understanding that is why the department feels that the status report will encompass that they cognitive of what (inaudible). Ms. Matsumoto: It will prompt a review. Chair: It would prompt a review, they would know. Ms. Morikami: Mr. Chair the other thing I wanted to mention was that I concur with Commissioner Kimura on that sentence "however the applicant shall make every effort to relocate the retail". That sentence can be deleted. Mr. Kimura: I concur. Ms. Morikami: That is what he mentioned so I thought he had a good point because we are doing the 3 years. Chair: I think the applicant should always try to make an effort to get to commercial zoning but if we want to take it out that is fine. Mr. Jung: Commissioners, I have to interject. We have to make this formal so once the amendment is approved, if this is what you want, approve the amendment or recommend changes and then you can make further changes to what was recommended before there is a finale vote. But we have to tally formally so there is a proper record on it. Chair: So we will go back to your first amendment regarding the owner shall notify. Are you, Paula, clear that you don't need that anymore or do you still feel that you want to add that? Ms. Morikami: Based on what the attorney has said here they are going to have to come back anyway for the status report so I will withdraw that amendment. Chair: Or that discussion and then as far as your concurrence... Mr. Kimura: I withdraw that. Chair: Do you still want "however the applicant shall make every effort to relate," that to be taken out? Mr. Kimura: No, we can just leave it as it is. Mr. Jung: If I could just recommend to the Commission how to handle this. If you want to amend the condition that Dale just passed out to you, sorry, amend the staff report as to the condition Dale just passed out to you, you can do that. And then if you want to further amend it one more time you can do that but we just need to properly follow the right protocol in terms of how you guys vote on each amendment. Chair: So we are back to square one, the condition that he handed out, is there any discussion or deletions that we want to add to that? If not then are there any more? If there are Planning Commission Minutes 19 April 13, 2010 no more then I will call for the vote. So on the condition it's self, all those in favor say aye, no, motion carried. Upon motion made to amend condition No. 3, motion carried unanimously by voice vote. Chair: We are back to the main motion to approve as amended. Mr. June: Right. As it stands right now you have a motion that amended the condition that was recommended by the Planning Department which you now have in your hands as condition No. 3, so this is what you can work with. Chair: So this is for the main vote. I will call for the vote, is there any more discussion, seeing none all those in favor say, no, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve the staff report as amended, motion carried unanimously by voice vote. Request (3/4/10) from Dr. Thomas Tannery to amend Use Permit U-2004-24, Variance Permit V-2004-10 and Class IV Zoning Permit Z-IV-2004-25 to create an existing open air pavilion by adding a roof and columns over 1,512 sq. ft. of existing concrete slabs besides the swimming pool, Tax Map Key 3-3-3:43, Puhi, Kauai = YMCA ofKaua'i. Staff 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 before I call the applicant up? Ms. Matsumoto: How are they going to do the parking lot? Staff: Essentially paved, that is what the primary concern is in that right now they are at 73 stalls however those 73 stalls service the existing facility but the development isn't full development yet. There is still a gymnasium and child care center still to be constructed. Chair: Any more questions, if the applicant could come up. Mr. Patrick Childs: Thank Mr. Chairman, my name is Patrick Childs. I am President of the YMCA. With me is Tom (Inaudible), the Director of the YMCA. The staff report is basically positive so we don't want to go into that but I would like to address the parking lot for an instant. The parking lot is covered with approximately two and a half to three inches of gravel at this time. That was a donation by the way from a local family. That has really ameliorated the dust. The dust is major important to us because of the swimming pool, that size of swimming pool can absorb dust very quickly and cause problems with our pumps and its expensive. We have not noticed any problems with dust since we have ameliorated the parking lot issue. Only but a tiny fraction of the parking lot is now covered with this gravel. So I just want to bring that to your attention. As to the pavilion its self I think the plans explain what it is for. It would be partially enclosed with lattice work so it would be fully aerated. We do have swim meets over there all the time. There is a need for this type of facility so the teams can have a gathering and base area. In fact they are pretty excited about it. It would also serve as a focus for birthday parties and events of that nature for YMCA members. So if there are any questions we would be glad to answer them. Chair: Commissioners are there any questions for the applicant? Mr. Childs: Thank you very much. Chair: Is there anybody in the public that would like to testify on this agenda item, seeing none I will bring the meeting back to order. What would be the pleasure of the Planning Commission Minutes 20 April 13, 2010 Commission? At the beginning of our agenda there was a motion to receive it so there is no need to receive it but we could request a motion... Ms. Morikami: Move to approve the staff report pursuant to the request of the applicant. Chair: Is there a second? Mr. Kimura: Second. Chair: Discussion? Ms. Matsumoto: It looks like this might have been a little bit before our encouraging green solutions so I just want to say that it would be great if when it comes time for this parking lot to be paved or covered that green solutions would be considered. Chair: I think that is something that we can address, Planning could address if they come in for a grading permit. Staff: Are you referring specifically to impervious or pervious-crete and whatnot? There has been a lot of discussion about pervious in the past few years and the department is still in the process of still researching that particular strategy of greening your facility. One issue that does come up with the pervious-crete is that it is generally used in more urban areas, those areas that have much more concrete. The problem that occurs for a place like Kaua'i which is a bit more rural is that there is a lot of tracking of dust given the amount of dirt and dust that is out there and it has a potential of clogging the surfaces and essentially making the pervious-crete, impervious. So there has been some discussion about it but the department is still researching whether or not it can be used to its best potential given the environment here. Mr. Blake: Just a point of information. I believe that Grove Farm's parking lot where their main office is uses that type of... it is a hardened surface that allows percolation. Chair: Any more discussion, seeing none I will call for the vote, all those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Jan Kimura, to approved staff report, motion carried unanimously by voice vote. Annual Status Report (3/30/10) from Kikiaoloa Land Company, as required by Condition No. 16 of Ordinance No. PM-2009-390. Staff Report pertaining to this matter. Staff Planner Bryan Mamaclay read staff report (on file). Chair: Are there any questions for the planner, seeing none I will call the applicant if there is anything he wants to add. Mr. Mike Faye: Good morning, my name is Mike Faye. I am the Chairman of the Board for Kikiaoloa Land Company. Chair: Are there any questions on the status report for Mike, seeing none, thank you. Is there anybody in the public that would like to testify on this agenda item, seeing none I will bring the meeting back to order. This is just a status report, Commission, and that we had taken a motion to receive at the beginning of the meeting. So if there is no discussion we will move the agenda item and go to the next. Building, Location Material and Final Design Review for a Single-Family Residence on Lot 12, Wainiha Subdivision II, 5-84-58, further identified as Tax Map Key (4) 5-8-009:051 = Craig Dobbin. Staff Report pertaining to this matter. Planning Commission Minutes 21 April 13, 2010 Staff Planner Lisa Ellen Smith read staff report (on file). Chair: Commissioners, are there any questions for the planner, if not is the applicant here? Staff: Yes, and the applicant's representative. Mr. Walton Hong: Good morning Mr. Chairman and members of the Commission. For the record my name is Walton Hong representing the applicant Craig Dobbin who is with me. And we also have Steven Collier, the architect. I would like to start by saying they made plans to attend this meeting before we learned of the court's decision earlier this week. I would like to make a few remarks because I think I know where we are heading at any rate. First of all we obviously do not concur with Judge Watanabe's decision because in the decision basically what she said is to direct the State surveyor to locate a shoreline which would be on the inner edge, not the seaward edge but the inner edge of the vegetation on the lot. This was something that I think is unprecedented and we are presently in the position of number one, seeing where the certified shoreline is going to be pursuant to Judge Watanabe's decision and from thereafter making a decision where do we go from there. That decision could be possibly based on an appeal to the State Supreme Court because of what we believe was an erroneous ruling in all (inaudible) to Jude Watanabe or possibly modifying or even redesigning the structure. We don't know what is going to happen so at this time we can't say what we are going to do so we do expect this matter to be deferred however I would like to make some comments for the record. First of all I think there is an issue here of whether or not we have vested our rights to build the house because vested rights relates to have you done everything and there are no discretionary acts remaining. And it is our position that we have vested our rights for several reasons, number one, this is not a new SMA Permit. This is not a Use Permit. This is pursuant to an SMA Permit that was granted back in 1984 and a Subdivision that was granted in 1984/85 with certain conditions. The reason why we are here are the conditions that you have the right to approve the location, citing and design of any proposed residence in the Subdivision. We came before you in October of last year with a design. You said go ahead. That was a preliminary approval granted, your discretion has been employed, yes the design is okay. The only thing left hanging was would we consider using a darker shade and this to me is not a discretionary if you ask would be consider using a darker shade. And what I would like to do is later in this presentation have Mr. Collier present to you what we have as a result of that consideration. However we feel that since all of the discretionary actions by the Commission is already been granted and acted upon, what we have before you is administerial or non-discretionary permits which allows us to proceed. We say this argument for the record, purely, because I know what Mr. Jung and Mr. Bronstein is going to come out and say. At any rate, so what I am going to ask this Commission to do just to avoid the necessity of Mr. Dobbin and/or Mr. Collier reappearing again at the time this comes up again for final review again, and remember, the reason you went into a two step process, preliminary approval and then a final approval was not because of the shoreline, not because of the design, but avoid the situation that Mr. Brescia faced where you gave him final approval and then he went and did the archeological and found burials. In this case following the preliminary approval we did go out, we did dig where the foundations of the house were going to be and we found nothing. An archeological inventory survey was presented to SHPD, State Historic Preservation Division, and they approved it. The only condition they imposed was that at such time that we are actually doing excavation on the building that we have a monitor, archeologist, present should any remains be uncovered during that process. So the purpose of the dual approval, preliminary and final, was based on the archeological concerns which we have addressed so there is no reason for that. So what I would like to request of this Commission if the Commission elects to defer is to say we make our presentation on the color scheme because no matter what happens on this house, whether it be modified, be left as designed, or be redesigned, the color scheme is going to be the same. Since we have this here available we would like to avoid the necessity of the gentlemen having to comeback again just to say do you approve the color scheme. So with that I would like to...as you recall one of the concerns raised by the Commission was, was the original color scheme too light. And we did give it consideration and came up with a different color scheme, a darker color scheme which I would like to have Mr. Collier present to you for Planning Commission Minutes 22 April 13, 2010 your consideration and then hopefully you will say okay, remember that, and that is how it is going to be if and when we come back with a new design. Chair: Walton, before we get into that process, I mean we don't need the architect to come back. If you have these on file and in your office, at the time of the final review approval I think that would be the best time for us to look at all of these. Mr. Hong: Okay but what I don't want is another repeat, well we don't like it, it is lighter, can you consider something else. If we can get at least a (inaudible) approval of the Commission to say this is okay no matter what the house looks like that is the color it is going to be then it will avoid any further questions about the color. That is what I am asking, just to avoid the necessity of him having to come back just in case there are any questions on the color. Mr. Jung: I will attempt to address that Commissioners, I think what Lisa Ellen laid out fairly well, what happened was there was a request for a certified shoreline. It went to the DLNR Chairperson, Chairperson approved it and then Harold Bronstein and Caren Diamond appealed that decision to the DLNR. DLNR then approved the Chairperson's recommendation but then they appealed further to the Circuit Court and they just got a vacation of that certification meaning the certification is no longer valid. It is important to note that our setback determination is premised on the certified shoreline so without a valid certified shoreline our setback determination is no longer valid. And the design review which is the stage we are at now, okay that is also premised on where the no-build zone ends, right, where the setback determination is. So if that line is going to change, potentially the line of where the final design review of the house, sorry, final location of the house will be could possibly change depending on how the court, not the court but how DLNR, BLNR, addresses where the certified shoreline is. So it may be a little premature to look at anything regarding this design review because we don't know exactly where the house is going to be. It is more likely than not that a house will be there it is just that we don't know what type of design elements the house may have. But in regard to the color scheme, I will leave that in the discretion of the Commission. But I would not take any official action on the color scheme but if you guys have... Chair: That is sort of what Walton is asking us is to give him some ramifications so his architect... Mr. Hong: Some idea from the Commission because you are right, there is going to be a house built on the property. Whether it is the original house plan that you looked at or whether it is a modification of that plan or redesign, Mr. Jung is correct, it is going to depend on where the shoreline is ultimately determined which determines the setback. But all we are asking is to get an idea from the Commission so we don't have to come back again like the last time, well the color scheme was too light would you consider a darker color scheme. We did and this is what comes out. I just want, if we could get the Commission's... and I understand it is not official but at least to raise the question is this okay with you so we don't have to bring back the architect again. That is all we are asking at this point in time. Chair: And all I am saying as the Chair is that I would like to first satisfy the condition of where the shoreline is at and where the house is at. I think looking at the finish and the texture and the color is appropriate at that time and not at this time right now. Mr. Hong: If the request is denied so be it. I thought we would just at least try to avoid having the architect come back. Chair: I just don't want to get too far ahead. Mr. Hong: Fair enough. Chair: In making arguments and discussions when we are not even there at that point, we are still trying to get the shoreline certification at this time. Mr. Hong: Okay, we tried. That is all the comments I have at this point in time. If there are any comments, I would like to reserve the ability to respond to whatever Mr. Bronstein or Ms. Diamond may bring up. Planning Commission Minutes 23 April 13, 2010 Chair: And for the record it is a better color scheme than you had last time but I don't want to get into all that right now. The Commission can go in circles in discussing that. Is there anybody else in the public that would like to testify on this agenda item? Mr. Bronstein: Mr. Chairman, members of the Commission my name is Harold Bronstein. I am here on behalf of Caren Diamond and Bo Blair, North Shore `Ghana and myself. I will assume that you all have seen the letter of April 9`I` I believe I sent over to the Commission which had attached as exhibit (b), the court's decision in this matter. And I have no problem at this time with the color of the house. Chair: Very good, thank you, move on please. Mr. Bronstein: To the extent that the report is suggesting to you to defer this matter we concur to the extent that it means that nothing you have done so far counts until you start over again with a new certified shoreline because with all due respect to this Commission, what we are doing in court is first to make sure the beach is available to the public. That is what the certified shoreline is about. For you it is a setback and I understand that but that is secondary to us establishing where the beach is and that is what that certified shoreline did for the public. To the extent that they need to go back and get a decision from the BLNR, how that is going to play out I do not know. Once that happens it can be submitted to Mr. Costa for another determination as to where the setback line is and we will comment on it then. I also point out that with respect to the SMA Permit that we are operating under the decision is quite clear, it has found that No. 2(b), "all building setbacks shall be measured from a current certified shoreline at the time of development and no part of any structure shall penetrate the Open Zone strip fronting the shoreline." And that has already been decided in Brescia vs. The North Shore "`Ohana, the Supreme Court talked about setting it back at least where the Open Zone is. And of course you have the new ordinance that you have to deal with from the County. As to vested rights, if that becomes an issue I will be glad to comment on them but I will simply say there are no vested rights at this time, thank you. Chair: Are there any questions for Mr. Bronstein, thank you. Is there anybody else in the public that would like to testify on this agenda item, seeing none I will bring the meeting back to order, again the recommendation from the department is to defer, what would the pleasure of the Commission be? Ms. Morikami: Mr. Chair, move to defer. Mr. Kimura: Second. Chair: Is there any discussion before I call for the vote to defer, seeing none all those in favor say aye, no, motion carries. On motion made by Paula Morikami and seconded by Jan Kimura, to defer action, motion carried unanimously by voice vote. COMMUNICATION Status Report (2/26/10) from State of Hawai'i, Department of Land and Natural Resources, State Parks Division, as to Condition No. 3 for Special Management Area Use Permit SMA(U)-2007-2, Tax Map Key (4) 5-9-008: por. 1, Ha ena, Kauai = State of Hawaii, Department of Land and Natural Resources. Staff Planner Lisa Ellen Smith read status report (on file). Chair: Questions for the planner, seeing none is there an applicant here? Staff: The applicant is here, the State Department of Parks is here. Chair: Is there anything that you want to add or comment on? Planning Commission Minutes 24 April 13, 2010 Unidentified Speaker: I just wanted to clarify at the Commission's please if you want me to summarize our report we can do that, answer any questions or clarifications, we can do that, we can do both. Chair: I think we have already read the summary. At this point are there any questions for the applicant? And could you just state your name for the record? Mr. Russell Kumabe: I am Russell Kumabe. I am the development branch Chief for the Division of State Parks, Department of Land and Natural Resources. Chair: Thank you, are there any questions? Mr. Kumabe: Could I maybe just do a couple of things? Chair: Sure. Mr. Kumabe: For the Commissions please, first I would like to make acknowledgements as far as the folks we have been working with from the Mena community on this and I would like to acknowledge Moku Alisis Chandler, Jeff Chandler, Ata Chandler-Flores, Kaimi Mosura, Noa Kaaumoana Texeira, Maka`ala Kaaumoana, National Tropical Botanical Gardens and Limahuli, Haole and Chipper Whichman, Kawika Winter and the staff at Limahuli. Through this experience and I call it an experience that we have had with the afore mentioned, we have learned quite a lot about Mena and we have learned that collaboration with the community is essential as far as what improvements are appropriate in addition to what we feel are needed. So I wanted to make that acknowledgement, thank you. We just had one question, clarification, for the Commission. Condition No. 3 or I should back track, this SMA Permit is for or was for the construction of the comfort station. As Planning staff had noted the nexus of this is the constructed wetlands system, individual wastewater system that will be before you later on today. Clarification that we just wanted we will comply whichever way the Commission wants, condition No. 3, the staff had noted, is a requirement for status reports on this particular project. So as the comfort station has already been completed, constructed, and in use, we just wanted some clarification, do we need to provide subsequent status reports on this project, so either way. Chair: Where does it end, that is the real question, does the planner have any comments regarding that condition because it could be read when does the status report end? Staff: This original permit, the SMA 2007-2, was for the comfort station, the comfort station has been completed since... Mr. Kumabe: It has been completed as of last year. Mr. Costa: That is part of a standard in language that we use, that we generally use when we create that condition, it is to until completion of the project and compliance with all conditions. So once those have been met you don't have to keep doing that forever. Mr. Kumabe: Thank you. Chair: If there are any questions for the applicant? Mr. Kimura: So everything is all good with all the people that you mentioned? Mr. Kumabe: You know we developed this relationship, working relationship, so we are working together on this. The constructed IWS project, that would be constructed wetlands project will be before you, you will learn more about the efforts that we have been kind of working together on. As much as possible we have learned that we will need to work and we will disagree but at least we have an understanding that we have the ability to try and work things out. So that is kind of like the lesson that we learned on that one. But to me everything seems good. Planning Commission Minutes 25 April 13, 2010 Mr. Costa: And if I could with respect to the previous comment about the status report, the constructed wetland is an integral part now to the comfort station so to some degree you are going to continue to at least give a status report on the construed wetland as it relates to the comfort station. Mr. Kumabe: So from what I hear until the point when we finish construction of, I'm sorry, if the Commission approves and we can go ahead and construct the individual wastewater system, up to that point when we are finished with construction we would assume that we would still be giving you status reports pursuant to this particular No. 3 condition. Chair: Thank you. Is there anybody in the public that would like to testify on this agenda item, seeing none I will bring the meeting back to order. Again Commissioners, this has been received and there is no motion or action that is needed. If there is no discussion I will move to the next agenda item. Letter (3/11/10) from Beryl Blaich, Coordinator, Malama Mahaulepu, requesting the Kauai Planning Commission review the conditional permits for the New Mahaulepu Quarry relating to U-92-36 SP-92-6 Z-IV-92-38, original applicant Grove Farm Company, transferred to current permit holder Jas W. Glover, Ltd. Related information: Letter dated March 10, 2010 by David Pirie of Jas Glover, Ltd., providing an annual status report to the State Land Use Commission relating to the existing status of LUC Docket No. SP92-382 (Use Permit U-92-36, Special Permit SP-92-6, and Class IV Zoning Permit Z-IV-92-38). Chair: Commissioners, before the planner, if I could entertain a motion to receive a letter that was given to us prior to us, dated April 13, 2010. Mr. Blake: So moved. Ms. Matsumoto: Second. Chair: All those in favor say aye, motion carries. On motion made by Hartwell Blake and seconded by Camilla Matsumoto, to receive letter dated 4/13/10, motion carried unanimously by voice vote. Staff Planner Bryan Mamaclay: First of all staff would like to hand out this photo, color photo. Some of you Commissioners may have said where is this photo that is being referenced on page 6, condition 5.d. So this is the photo that the condition makes reference to. I don't have anything else to add since this has been received as a communication but if you have any questions I am open to any questions that the Commission may have. Chair: Are there any questions for the planner regarding the status report, if not I will call for... Mr. Kimura: Can we request that a representative from Glover be here at the next meeting? Chair: I can. Is there anybody in the public that is from Jas Glover here? Seeing none, could we request that if we defer this for somebody from Glover to be here? Staff: I thought Walton Hong was here. Is he here in the audience? Chair: No, Walton slipped out. Staff: We can call him, staff can make a call. Chairman Raco, maybe just one bit of information, this permit as you may have seen, this was approved in 1992 by the Planning Commission. It was a Use Permit, Special Permit, and Class IV Zoning Permit. And as you can see there was a Land Use Commission Docket so that means this was a project that was greater than 15 acres in size so the ultimate decision was not with this body it was with the State Land Use Commission. So counsel can correct me if I am wrong but ultimately I think this may have planning Commission Minutes 26 April 13, 2010 to go through the protocol of having the Land Use Commission review this as well. That is my perspective. Mr. Jung: Just so Commissioners are aware, this property does exceed 15 acres so the Planning Commission sits as a recommending body up to the LUC. So the LUC handles the actual final approval of this particular project for the Special Permit. Ms. Blaich's request is that the Planning Commission evaluate the permits. As mentioned prior the evaluation of permits, if there is an allegation that there is noncompliance with any particular provision or condition then the proper protocol is to do a rule 12 petition to revoke, amend, or modify. So if you want to look into this you can refer this to the Planning Department to look into it or you can as Commission Kimura said, defer it to get a response from Glover as to the letter submitted by Ms. Blaich. Mr. Blake: Both letters, and the one from Ms. Romo? Mr. Jung: From Ms. Romo, from both. Mr. Blake: This picture that you have given us Bryan, is this supposed to represent the present site of the quarry? Staff: Yes. Mr. Blake: And based on what you know are the boundaries within which this quarry is taking place according to Hoyle? Staff: I cannot answer that accurately but if you look at that ...there was a plan submitted with the letter by Glover, it is an 11x17 map. The aerial photo is showing this particular area on this map and I know all of you don't have the photo but this is the area of the quarry and as you can see the legend shows areas being quarried, areas intended to be quarried. There is a ponding area and areas still under vegetation. You can see these areas on the photo. So I would make reference to this map to indicate that I believe, yes, they are within the parameters or boundaries of where they are supposed to be quarrying and not supposed to be quarrying. And again Ms. Blaich makes reference to a sink hole. It is an archeological site. It is not in the quarrying area, it is seaward of the quarry area as I understand. Mr. Blake: It's what? Staff: Seaward, more makai. Chair: So is it on this map? Staff. I believe not. Ms. Matsumoto: How far away is it? Staff. I don't know exactly how far. Mr. Kimura: That is one of the reasons why I asked for Glover to be here, so they could answer all our questions. Chair: Commissioner Kimura said that is why he would like to have Glover here to answer those questions on where allegedly the sink holes are. Mr. Blake: On this map that is on the Glover letter, where is the ocean? Staff: The ocean is on the bottom of the map. You see the word "ponding area", and that access roadway, that is right there on the color photo that shows the lime rock, the white bedrock, that is the area. So it is up... actually it is upside down, the map (inaudible) would be upside down to each other. So the ocean again is on the bottom of the map and the bare area is where you would see the word "ponding area" but it is pointing to the area below that. Mr. Blake: So we see Mahaulepu Road and the ocean is... Planning Commission Minutes 27 April 13, 2010 Staff: Is on the bottom of the map, below the contour lines. Mr. Kimura: This is the ocean way down here. According to that to that aerial photo it is quite a distance away. Mr. Blake: When I look at this map it says "areas still under vegetation". Does that mean that that "still" mean it is not going to always be under vegetation, they are going to be mining that whole hill, cutting it down? Staff: I really don't know how to answer that. I would have to ask Mr. Pirie from Glover. Chair: So that is why we should probably put it in to defer this matter so that we can have Glover here to answer these questions per Mr. Kimura's request. Mr. Blake: And just for the record, since the last report was... Mr. Costa: Commissioner Blake, I guess just in reference to your question, as noted on the drawing there is a denotation for areas still under vegetation but if you look there is also designation for areas intended to be quarried. Staff: Those would be the diagonal lines. Mr. Costa: So I guess in areas that note "areas still under vegetation" that also has the cross hatching, yes, the question is, and the answer would be those are areas intended to be quarried. Mr. Blake: Well I am glad we are going to have Glover here next meeting or whenever they are coming, the next meeting? Chair: We will schedule that they be present. I don't know if it is going to be the (inaudible) for scheduling but they will be here to answer these questions. Mr. Blake: Because looking at the map and what is being quarried now versus what is intended to be quarried it is like ten or eleven times more area which is significant. I noted in one of the letters that it had been 19 years since the Land Use permits were granted and it has been 4 years or so since mining actually began, is that correct? Mr. Costa: That might help to explain why very little of the intended quarry area has been actually quarried. Mr. Blake: I am sure that is a big reason why so much of the quarry area has yet to be or is not represented as being quarried but a 19 year old permit and you are just starting now it is like the whole Po'ipu/South Shore all over again, 1972 permits that are just now being executed. And just on general principals that is a concern to me. Chair: Any more questions for the applicant before I call for public testimony? If not, is there anybody in the public that would like to testify on this agenda item? Ms. Miriam Napua Wong Romo: Thank you for hearing us. My name is Miriam Napu Wong Romo and I have a little letter in communication with Beryl's letter. She couldn't be with us today because she has medical emergencies in Honolulu to take care of. In response to what our concerns are about this place I would like to read this letter (on file). Chair: Thank you Napua, are there any questions for Napua? Mr. Romp: I will try and answer them. Chair: Thank you. Planning Commission Minutes 28 April 13, 2010 Ms. Matsumoto: If we defer this item I would like to see the location of the sites that were described today in relation to the... Mr. Kimura: The Heiau and the cave. Ms. Matsumoto: Yes, where all that is. Chair: Can you come back up? One of the requests from the Commissioners is to if the meeting gets deferred can you provide an overall map of where all the artifacts and places that you have as far as a map so that we can... Ms. Romo: And this is deferred until today, later on today? Chair: No we are probably going to defer to another two more weeks so you would have time or a month. And color photos are loved by the Commission. Ms. Romo: By us too. Chair: And anything you can provide us. Ms. Matsumoto: We need to have a reference to the distances, locations and distances of everything you mentioned in relation to this site. Ms. Romo: Okay. Now we are dealing with two sites, two quarries, right? Ms. Matsumoto: Right, everything. Chair: All the information you think is prudent on more of a map so we can see an overall... Staff: Staff has a request too of Napua. Since you were making reference to this old quarry and the new quarry can you identify from Malama Mahaulepu's perspective where this old and new quarry is? From my perspective I don't know... Ms. Romo: Using their... Staff. If it's on their map if you could show it. Ms. Romo: Its not on this map but just to give you an idea this map, this is north and that is Hanalei, right, the ocean is way down here, the old quarry is down here, it is not on the map. The old quarry is here and there is, that is where Waiopili Heiau is and that is closer to the ocean, closer to the sink hole, the sink hole is right next to it. And the ocean is only about 40 feet away. And the petroglyphs are about 25 feet from the ocean. Mr. Kimura: Digital photos would be nice. Ms. Romo: A site inspection would be better, we will provide lunch. Mr. Texeira: Mr. Chair, as recommended, why can't we do a site visit? Chair: We could do a site visit. Personally I am born and raised here and I have been on that side of the island and I have stumbled upon the places she is talking about but if the Commission wants to do a site visit that is fine. For the record I will be absent. By reading her letter and from my memory I know where some of this stuff is at. But we could recommend a site visit, it has been a long time. Ms. Romo: Something new, we will provide lunch. Mr. Jung: Sorry to interject but unfortunately the Commissioners won't be able to accept lunch from Malama. Ms. Romo: Okay, we will make it potluck. Planning Commission Minutes 29 April 13, 2010 Mr. Kimura: I for one would like a site visit. Chair: So if the Commission feels that we want to, I forget the protocol on how we do that or if you want to do it before or after. Mr. Costa: We can arrange it. I guess I just would make sure that you outline your objective. Chair: Okay. Mr. Blake: Did I understand... Mr. Costa: Because we do have to agenda the site visit so we would need to outline exactly what you are going to do and as long as there is a nexus to what we are looking at here. Mr. Jung: Just for Commission's perspective I think in the discussion there is a comment that they want J. S. Glover to come and respond so you might want to think about, before a motion is made, how you want to do your time table of when the response is. And also if you do want to schedule a site visit when you can schedule a site visit and the priority of order and how you want to address that. Chair: So we will discuss that as we go forward but if there are no more questions I will let her go and we will take a 45 minute recess. We will continue public testimony. I am just taking a 45 minute recess at this time, thank you Napua. Commissioner Jan Kimura left at 12:24 p.m. Commission recessed for lunch at 12:24 p.m. Meeting was called back to order at 1:12 p.m. Chair: On the floor we were talking about a site visit and wanting to know if we still want to pursue a site visit. Is there any discussion? If not I will just keep taking public testimony and come back to this. Is there anybody else in the public that would like to testify on this agenda item for Mahaulepu? Mr. Walton Hong: Thank you Mr. Chairman. I am expecting David Pirie from Glover Honsador to be here, he is supposed to be here by now. At any rate as I understand the request is to investigate a permit but I believe the permit is a State Land Use Permit, it is issued by the State Land Use Commission and 1 am not sure if this is the appropriate body in which these concerns should be properly addressed. I am not very familiar with the background very frankly except that my basic understanding of this, there was a State Land Use Permit that required certain conditions to be met including status reports. The copy of the latest status report ...David Pirie from Glover is here, he just walked in, that James W. Glover Ltd. Has been filing status reports with the State Land Use Commission as is the normal procedure. And that is why we are a bit confused, number one why are we here before and secondly do you... is this the appropriate agency in which these concerns should be addressed or should it be addressed to the State Land Use Commission who is the issuing authority. Chair: If we have, if this isn't the appropriate place, being that it is on the agenda one of the Commissioners that is recused for this afternoon will come back but he had a few questions that he wanted to address to Glover particularly and he just had a question. So being that it is prudent or not or if this is the venue it is an agenda item and the Commissioner did have questions so I feel it is a prudent request to ask Glover to be here. Mr. Hong: Do we wait until Commissioner Kimura returns? Which one had the question? Chair: It was Commissioner Kimura and he had to be recused during recess to go to an errand he had to do. He will be back. Is there any body else in the public that would like to testify on this agenda item? Planning Commission Minutes 30 April 13, 2010 Ms. Tessie Kinnaman: Good afternoon Commissioners, Tessie Kinnaman for the record. I am speaking as a public member. This application, communication, with all the new rules and the laws going into affect I would think the Commission would request of the LUC if this is going back to the LUC, and for the applicant also, that all these Federal, State, and County laws and rules be imposed as additional conditions if that ever comes up. Like you need an EIS, NPDS, a CIA, Cultural Impact Assessment and I would think Public Works would be involved with this because of the ordinance 808, Grubbing and Grading. Although it is a quarry you are still grading. And another thing is the rehabilitation of the... rehabilitation plans for the old quarry site since there is a big gaping hole up above the sink whole with water accumulating it may weaken the structure of the rocks, who knows. Water does wonders to anything. And that is just my testimony for today. If you take into consideration all those permits and being that nationally we are being more environmentally aware of everything that affects our environment, thank you. Chair: Thank you, are there any questions for Tessie, seeing none, do you want to let the Commissioners know the same reminder that you did in the beginning? Mr. Jung: Mr. Hong does bring up an interesting question because it may be in the authority of the LUC because the Planning Commission, in issuing a Special Permit on agricultural land, if it is 15 acres or less then the Commission has the authority. But if it is 15 acres or more it is the Commission has the recommending authority to the LUC. So arguably if there is a request to revoke, amend, or modify, I think that authority may rest with the LUC. But it is an issue we still have to research and look into. Chair: And that is why we are asking to defer. Mr. Jung: Right. I believe the original request to defer from Commissioner Kimura was to get J. S. Glover here too to respond. Mr. Costa: We still have a Use Permit to account for County zoned Ag. Mr. Jung: Right, there is still the Use Permit in conjunction with the Special Permit so the Commission has the authority over the Use Permit. Ms. Matsumoto: And since things have changed since 1993 I also would like to recommend to, I guess if it is going to be going up to the Land Use Commission to look at even Health, agencies to include Health and Fish and Wildlife and SHPD just to make sure that the, I guess all the proper research is done. I would even suggest that we get all of that information before we even go out on a site visit so we will have a better frame of mind or reference. Mr. Costa: So again what we would do, we would forward the status report to those agencies. Ms. Matsumoto: And to get feedback from them. Mr. Costa: The only feedback is on the inquiry as well as the status report because there is no application. Staff: Just for clarification staff will forward the status report by Glover to these agencies for comments. Mr. Costa: As I understand it I think also the letter that is on the agenda. Ms. Matsumoto: Just the issue in that too that was presented to us. Staff: Beryl Blaich's letter and Napua Wong's letter, all of those letters? Ms. Matsumoto: Yes. Planning Commission Minutes 31 April 13, 2010 Mr. Texeira: I am not getting this real clearly. Could that be explained again? We want the Planning Department to go ahead and review and comment on the letter from, addressed to you the Chair, from Napua? Chair: Right and then also the status report from Glover to go to the agencies that she mentioned which is the Health Department, SHPD and the Fish and Wildlife. You did request Cammie, that that information comes back to us before we schedule a site visit? Ms. Matsumoto: Yes. Mr. Texeira: What about the letter from Beryl Blaich? Do we want Planning to review that letter and to comment and get back to us on their recommendations? Chair: Sure, we could request that. Mr. Jung: I think also, Mr. Texeira, I think that would be prudent for the department to look into that as well as with the County Attorney's office to see where the authority does lie, if it is with the LUC or if it is with the Planning Commission. I know there is dual authority as it relates to the Use Permit and the Special Use Permit and the Class IV that triggers the Use Permit. But with the LUC Permit we will have to do some research and how, if the Commission can recommend a petition to revoke, amend, or modify, up the LUC and how the procedures would be laid out for that and if you guys would collectively vote on that in a motion. So we do have to do some research. Mr. Texeira: Does that need to be outlined in our motion or just from this discussion... Chair: It is a request and it has been noted by the planner to provide that information to those agencies. So let me take more testimony, is there anybody else in the public that would like to testify on this agenda item? Seeing none I will call the meeting back to order. Mr. Blake: But the operation of the new quarry is still tied to the operation of the old quarry, right, according to what has been presented. Two years after, if I understand what was written, two years after operation begins on the new quarry the old quarry operations are to cease? Chair: Bryan, can you maybe address that question? Staff: Can you repeat that? Mr. Blake: As I understand it two years after the new quarry begins operations back in 1995, operation in the old quarry where the sink hole is and that, was supposed to cease. Is that correct? Staff: I don't know. I would have to research the files. Something is making me think that the old quarry was a separate permit application. I may be wrong. And then when they abandoned or they stopped that application they came to the new quarry. Again, I might be wrong to so I need to do some research myself. Mr. Blake: Has operations ceased at the old quarry? Staff: I don't know. I haven't been on this project. I haven't been there. I am not familiar with the quarry operations myself. Mr. Blake: My other concern was if operations have ceased at the old quarry did they just pick up and move or was there any restoration that was supposed to take place? Staff: Perhaps we could defer that to Mr. Pirie. Mr. Blake: Pardon me? Staff: We could defer those questions to Mr. Pirie. Planning Commission Minutes 32 April 13, 2010 Mr. Blake: That's fine. Mr. Costa: And obviously in our research and report back we would include the information at least with respect to what is in the files. Commissioner Jan Kimura returned at 1:30 p.m. Chair: Commissioner Kimura, the Glover representative is here, do you want to address your questions to him now? Mr. Kimura: Sure. Chair: Let me call the applicant up here for questions that the Commissioner had. Mr. David Pirie: David Pirie, Jas Glover Limited. I can answer questions as well as any other questions. Mr. Kimura: I am not too familiar with the site. The Heiau is located within what quarry, the new or the old? Mr. Pirie: The old quarry. Mr. Kimura: And how close are you guys to this Heiau? Mr. Pirie: The actual location is a bit vague with exactly where it is. There is an old part of the crushing plant that could be close to it. We have actually asked the, I forget what agency she is with but Nancy McMahon has come down and had a look with us. We invited her down and she identified a general area which we have ensured that we have no activities close to. Mr. Kimura: Over here it says "access to the hole and the cave from the quarry would be restricted or the cave sealed." What is the reasoning for that? Mr. Pirie: It was quite a long time ago there was an opening that appeared in a cave that was subsequently sealed. It is in a very, very old part of the quarry, probably maybe more than 500 or maybe even more than that, feet away from the closest we are now. It is more makai towards the sink hole. And that was sealed quite a long time ago in an area of the quarry that was inactive for more than 15 years or so. Mr. Kimura: So you guys sealed the cave? Mr. Pirie: Before we took over the operations it was sealed by Grove Farm Company. Mr. Costa: Do you know if that actually was required by SHPD or Nancy? Mr. Pirie: I am not sure but it was a mutual agreement where Grove Farm did it and they also actually gave us when we took over the operations of the quarry, gave us a line where we could not quarry any closer to the sink hole. And that was an informal arrangement that they did as stewards of the land and then passed on to us so the operations are a substantial distance away from the sink hole now. Mr. Kimura: Do you guys have an updated photo besides the on Bryan gave us today? Mr. Pirie: That is a photo of the new Mahaulepu Quarry. The old quarry we could get, yes. Mr. Kimura: Is the old quarry still in existence? Mr. Pirie: It is still in use and I will address the other question that one of the other Commissioners brought up. In terms of the permits state that after we commence operations at the new quarry, within two years we shall cease the operations at the old quarry. We commenced operations at the new quarry in August of last year so in August, 2011, we will cease operations at the old quarry. There is a grading and reclamation master plan that is a Planning Commission Minutes 33 April 13, 2010 condition of the permit that then comes into affect and actually in our agreement with the landowner they have obligations to restore the quarry according to the reclamation master plan. Mr. Kimura: Have you guys ever come across any burial sites yet? Mr. Pirie: No we haven't. Mr. Kimura: On the old or the new? Mr. Pirie: On the old or the new. Mr. Kimura: Over here it says "(inaudible) water pollution and soil, erosion, dust control...), anyway, it says the "condition is acknowledged and observed." What do you mean acknowledged and observed? What is being done? Mr. Pirie: Which one is that? Mr. Kimura: D.7. Chair: What page? Mr. Kimura: Page 3, No. 7. What is being done? It just says "acknowledged and observed." Mr. Pirie: Right. It is actually tied through condition 5 where we do have an NPDS Permit, a National Pollution Discharge Inhalation System Permit and a related Storm Water Plan and that is how we manage storm water runoff, erosion containment. Basically, in simple terms, we contain all water run on to the quarry, we contain up to a 10 year storm event which is for that location is eight and a half inches of rainfall if when five inches in a twenty four hour period. And we have constructed containment structures and retention so that none of that water leaves the property, the quarry site. So that is the permit that we have with the State Department of Health, Clean Water branch. Mr. Kimura: My request is can we have an updated photo, aerial photo of both sites? Something a little bit closer than what we have now? Mr. Pirie: The old side is probably about a mile away so it is a separate photograph. Mr. Kimura: I understand that. Mr. Pirie: I think I have something on file. Mr. Kimura: That is it for me. Chair: Is there any more questions for the applicant, thank you Walton. Mr. Pirie: Did you want me to address any of the...? Mr. Kimura: Didn't you have a question for him? Mr. Pirie: I could address any of the... Mr. Blake: I thought they were going to be addressed by the... Chair: No, this is this mornings question for the applicant, this is Honsador Glover or Glover, sorry. Did you have any questions for him directly? Mr. Blake: I think the concerns that have been voiced by the Commission have been noted and they will be addressed when we come back. Chair: Right, they will. Planning Commission Minutes 34 April 13, 2010 Mr. Kimura: One more question, sorry, will the public have access as being good stewards to the property to request maybe once a month for the public to get into the Heiau to clean it up as native Hawaiians? Mr. Pirie: Couple of things I would like to say to that, one is we would have to get the landowner, Grove Farm Company involved so I can't comment or give any assurance. And also as an active quarrying operation we fall under the Mine Safety and Health Administration and we just have to ensure that our safety regulations as well as our company policies are met. But it is something that we can consider or like I said after the close of operations and then there is no active operations there that could (inaudible). Mr. Kimura: So when we do have our meeting again can you have an answer for us by then? Mr. Pirie: I will investigate it. Mr. Kimura: Thank you. Chair: I will bring the meeting back to order and I will entertain a motion or what the pleasure would be of the Commission. We already received it but to probably defer this application for the requests of the Commissioners, for the department to answer the questions. Ms. Morikami: Mr. Chair, move that we defer this item until the staff can get the information together for the next meeting or scheduled for May 25th or thereafter. Mr. Kimura: Second. Chair: Is there any discussion? Mr. Texeira: Point of clarification Mr. Chair. We are asking the Planning Department to do exactly what, to review the letter from Beryl Blaich, also to respond to the letter, informational letter from Napua Wong? Are those the two items that we are asking the Planning Department to review? Chair: There are also requests from Commissioner Matsumoto to have the status report and letters that we have received forwarded over to the Health Department, SHPD, Fish and Wildlife and the request that counsel provides us an opinion on where our liabilities or concerns are, if that is our jurisdiction or LUC. Mr. Texeira: So all of those items. Chair: Yes. Mr. Costa: And then as I understand it the request to forward the letters to the Land Use Commission, Department of Health, and SHPD, I think part of that was to get their comments so the deferral would likely be until we get those responses back so that we can get all that information back to the Commission at the same time. Mr. Texeira: And that would take about what, about a month or so? Mr. Costa: Probably. That is about the normal time we allow for correspondence to go back and forth. Ms. Matsumoto: I would like to add something to that. I would like to add that we not limit it just to the agencies that were noted a few minutes ago but to all appropriate agencies. Chair: So there is a motion on the floor. I will call for the vote if there are no more questions or comments, all those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Jan Kimura, to defer action, motion carried unanimously by voice vote. Planning Commission Minutes 35 April 13, 2010 SUBDIVISION Ms. Matsumoto: For New Business, tentative subdivision extension request for 5-2009- 13, Grove Farm Properties Inc., TMK 3-3-003:41 was approved with a 2-0 vote. Item 5-2009- 14, Grove Farm Properties Inc., TMK 3-3-003:41 was approved with a 2-0 vote. Item 5-2009- 15, Grove Farm Properties Inc., TMK 3-3-003: 41 was approved with a 2-0 vote. Mr. Kimura: Second. Chair: All those in favor say aye, no, motion carries. Motion to approve Subdivision Committee Report, seconded by Jan Kimura, and unanimously carried by voice vote. UNFINISHDED BUSINESS Class IV Zoning Permit Z-IV-2010-12 to permit the construction and operation of a telecommunications facility comprised of a 70' monopole and associated equipment located on Kekaha Road, immediately north of the Kekaha Road and Kala Road intersection, Kekaha, Kaua'i, further identified as Tax Map Key 1-3-009:001, and containing a lot area of 1.943 acres = print Together with Nextel. [Director's Report received 2/23/10, hearing closed 3/9/10.1 Agency Comment (3/10/10) from Kaua'i Historic Preservation Review Commission. Executive Session: Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), the pumose 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. Staff Planner Ka`aina Hull: This project was deferred in order to receive communication from the Kaua'i Historic Preservation Review Commission concerning the application. Since that time, it should be attached to you folk's agenda. Essentially their comments, one was they concurred with the State Historic Preservation Division's assessment of the project as well as they stated that the monopole should be painted with a dark to medium earth tone colors in keeping with the surrounding context to minimize visual impacts. At the previous meeting the applicant did represent that he would be painting the pole in accordance with that recommendation from KHPRC. As such the department's recommendation stands as is. Chair: Is there any questions for the planner? I will call the applicant up, is there anything that you want to add? Unidentified Speaker: No. Chair: Are there any questions for the applicant, seeing no questions, thank you. Let me call for public testimony. Is there anybody in the public that would like to testify on this agenda item? Seeing none, I will call the meeting back to order. You already read the recommendation, right? Staff: I can read it back onto the record if that is your... Chair: Yes. Staff Planner Ka`aina Hull read staff report and department recommendation (on file). Chair: Are there any questions regarding the recommendation for the planner? Seeing none what would the pleasure be of the Commission? Ms. Morikami: Mr. Chair, move to approve the Class IV Zoning Permit Z-IV-2010-12, move to approve the recommendation made by the Planning Department pursuant to the applicant's request. Planning Commission Minutes 36 April 13, 2010 Mr. Kimura: Second. Chair: It has been seconded, is there any discussion, roll call. On motion made by Paula Morikami and seconded by Jan Kimura, to approve staff recommendation, motion carried by the following roll call vote: Ayes: Blake, Morikami, Matsumoto, Texeira, Kimura -5 Noes: Raco -1 Absent: Nishida -1 Not Voting: None -0 Use Permit U-2010-11 and Class IV Zoning Permit Z-IV-2010-13 to permit the construction and operation of a telecommunication facility comprised of a 70' monopine (a monopole designed to look like a pine tree) and associated equipment located on a property approx. 600' west of the Po'ipu Road and Malino Road intersection, Koloa, Kauai, further identified as Tax Map Key 2-8-010:009, and containing a lot area of 3 acres =Sprint Together with Nextel. (Director's Report received 2/23/10, hearing closed 3/9/10.1 Staff: Commissioners this application was deferred until this date in order for the department to research certain issues concerning this application. Since the time the application has been deem ne plus ultra and the recommendation stands as is. Chair: Is there any questions for the planner? Is there anything from the applicant they want to add? For the record he said no, is there anybody in the public that would like to testify on this agenda item? Ms. Tessie Kinnaman: Tessie Kinnaman for the record speaking as a public member. On the recommendations, number 2, page 4, "Prior to installation the applicant shall submit color scheme or samples." I spoke earlier with Ka`aina and he showed me a picture of the tower and it looks beautiful and more appealing than a skeletal monopine. So I would request that the applicant provide the Planning Commission as well as the Director a sample of the branches to see how full they look. I don't know if you have the picture in your papers there today but it does look nice and full. So if it is just going to be a skeletal pine tree then I don't think it would be pleasing for the community or anybody else to look at from the bypass road or from K61oa Road or from the eastern bypass. And I would like to know where the other locations are. I think that came up at the last Commission hearing, locations of other Nextel tower, Sprint/Nextel towers in the K6loa/Po'ipn area because there has been a number of towers. I know 5 years ago when I came to...there was an application for Kukui`ula location, Kukui`ula Store location across from the Fire Station and I did bring up the subject of all these little repeater towers dotting the island and I don't think we would like to see a proliferation of that unless it really starts to look real and natural. But that is my comment today and also, number 3, the proposed facility (inaudible), does that include if they transfer or sell their company to another entity? Because these days these companies buy each other out left and right so how is this going to affect this application, thank you very much. Chair: Are there any questions for Tessie? Is there anybody else in the public that would like to testify on this agenda item, seeing none I will entertain a motion. The recommendation has been read. Ms. Morikami: Mr. Chair, before doing that, in response to one of the comments she made I believe the Planning Department is working on putting together a map showing all the different telecommunication systems on the island. Ms. Kinnaman: If I may ask a quick question, what is the radius of these towers anyway as far as...? Staff: I think the applicant would be actually better to answer that question but in the past they basically stated that it depends on the terrain given the various hills, gullies, valleys. If it is relatively flat I think they have a very large radius but given the terrain, it is variable. Ms. Kinnaman: But if it is a flat terrain what is the radius. Planning Commission Minutes 37 April 13, 2010 Staff: We can ask the applicant. And more specifically you can also ask the applicant what might be the specific radius for that specific site. Chair: You can ask him yourself, he is right behind you. Ms. Kinnaman: Thank you. Chair: So what would be the pleasure of the Commission? Is there a motion? Mr. Costa: Maybe, Chair, just as a matter of clarification, should we ask the applicant? Chair: Okay. Mr. Carl Young: Carl Young, representative for Sprint/Nextel. The basic radius for antenna sites does depend on the terrain. One of the problems we have in Hawai'i is there is a lot of large trees and a lot of hills and a lot of valleys. And so if you were to go to a flat area it could actually go 4 or 5 miles if you are just covering a highway or a freeway. But when you get into areas like Hawai'i they usually only go about a mile in a radius, typically, and it depends on congestion as well. So as the needs develop, as people use the service more you need more antenna sites and that is basically what happens in down town Honolulu, you can have it on every block. But it has to be extremely congested. Mr. Costa: So given the flat terrain the limitation at some point, 4 to 5 mile radius limitation at some point would be the demand. Mr. Young: It has to do with demand. And it has to do with the technology as well as far as what each base station can handle so what they try to do is they try to optimize each station and try to have it produce more capacity. And so there are people increasing the size of the pipe, the microwave pipes because it is expensive to build these things everywhere, it is not something they want to do. So they prefer having far less because you have to pay rent at each one, you have to pay utility costs and so they try to maximize each one as best they can. Chair: Thank you. Is there a motion on the floor? Ms. Morikami: Mr. Chair, for Use Permit U-2010-11 and Class IV Zoning Permit Z-IV- 2010-13, move to approve the recommendation of the Planning Department pursuant to the applicant's request. Ms. Matsumoto: Second. Chair: Is there any discussion before I call for the vote, if not, roll call. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve staff recommendation, motion carried unanimously by the following roll call vote: Ayes: Blake, Morikami, Matsumoto, Texeira, Kimura, Raco -6 Noes: None -0 Absent: Nishida -1 Note Voting: None -0 Commissioner Herman Texeira was excused from meeting at 1:52 p.m. 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. [Deferred 3/23/10.1 Staff Report pertaining to this matter. Planning Commission Minutes 38 April 13, 2010 Chair: I think the Commission had comments and compiled comments so I think what rests now in our hands is that comments have been complied goes up to the Charter Commission for... Mr. Costa: I think it is really what form the Commission wants to send it up in. We have our proposal which Deputy Imai will reiterate. Deputy Director Imai Ant: Chair, you have the findings before you basically that compiles comments received from Commissioners on the floor and through written testimony. I would like to add one thing that two Commissioners are opposed to the amendment in its entirety. Other than that I don't think there is a need to really go through the comments one by one as I believe everyone has reviewed them and if they have any changes or modifications to what was put here. But since this is really your discussion I don't really think that there is a necessity to read it into the record unless anyone feels differently. Mr. Costa: So as I understood it your options are either to transmit the copulation as we put together which contains all the comments expressed or you could as a body go through each one and adopt them individually. Chair: So as for discussion I am okay in going in unified as it was presented to us. Mr. Costa: And just transmit the copulation as was done by staff. Chair: Yes, that would be my opinion. Ms. Morikami: So moved. Mr. Kimura: Second. Chair: Any discussion, all those in favor say aye, no, motion carries. On motion made by Paula Morikami and seconded by Jan Kimura, to transmit copulation of comments present to Commission by staff to Charter Review Commission, motion carried unanimously by voice vote. CONTINUED PUBLIC HEARING There were no continued public hearings. NEW PUBLIC HEARING Zoning Amendment ZA-2010-7 = Kauai Kai Assoicates Request: Expansion of the existing Waipouli Visitor Destination Area boundaries to recognize the existing Kaua'i Kailani time share development. Location: Waipouli Kauai. South of and abutting the Wana Road Kuhi`o Hi way intersection. Land Area: Approx. 1.719 acres. Tax Map Key: 4-3-9:41 & 50. Staff Report pertaining to this matter. The hearing was closed. Special Management Area Use Permit SMA(U)-2010-3 to permit construction of a secondary Individual Wastewater System Improvement in the form of a constructed wetland ecological system for the disposal of wastewater for the Ha'ena State Park comfort station near the end of Kuhi`o Highway, within Ha'ena State Park, further identified as Tax Map Key (4) 5-9- 008:001 and containing a total area of 50.38 acres = State of Hawaii, Department of Land and Natural Resources, Engineering Division. Staff Report pertaining to this matter. Planning Commission Minutes 39 April 13, 20I0 Staff Planner Lisa Ellen Smith read staff report (on file). Chair: Questions? I will call the applicant up. Ms. Katie Fernandez: Good afternoon Chair, Commissioners, my name is Katie Fernandez. I am a planner with PBR, Hawaii. I am privileged to be supporting a group of people here working on this project including Russell Kumabe who you heard from earlier. He is with DLNR, State Parks Development Branch, Valerie Suzuki who is DLNR, Engineering, Civil Engineer, Chad Derkin, an ecologist who has been assisting us with this project who is knowledgeable about constructed wetlands in Hawaii, as well as Allen Carpenter who is also with State Parks, Archeology Branch or State Parks, Archeologist. In general the group concurs with the staff report and doesn't have any recommendations or issues or problems with the staff report. I guess for the record I would like to talk about the project a little bit more since it is televised if that is alright. As staff noted the purpose of the project is to fulfill the previous SMA conditions as well as to honor the memorandum of agreement with the petitioners to intervene when the comfort station was expanded for ADA improvements. Over the last 4 years there has been a series of meetings between the petitioners and State Parks to try to fulfill this agreement to address the concerns about the existing comfort station, the septic system, and the leech field which we know is disposing of affluent or treated affluent over a know archeological site. Over the last 4 years there has been a series of meetings working on the design to try to locate this facility in the best place that is still functional to the existing comfort station that is there. The site is extremely tight, hemmed in to the west by the coastal dunes and the known archeological site. To the east is Lokee which exhibits wetland characteristics and is also culturally important. To the south you have Kuhi`o Highway which is also on the National Register. So there are a number of site factors going into play about where exactly this facility would be located. Now balancing all of these issues is also coming forward with a new type of technology that would also be amenable to the Department of Health and their Wastewater Treatment Branch and being able to get something approved. So over the course of the last 4 years the Civil Engineers have been working together with the community to try to site this constructed wetland in a place that is most culturally sensitive, most environmentally sensitive as it relates to the associated nearby existing wetland and still functional and approvable through the Department of Health. The SMA application goes into some detail about the constructed wetland and how it works and I could describe the treatment train now if the Commission desired, otherwise we could leave that for questions later on if there are any specific questions about how the wetland it's self works. And then in terms of SMA resources I guess I would like to reiterate the cultural importance of the park and that being the impetus for this project in the first place. In terms of mitigation archeological testing was done at the site where the wetland and its absorption beds are proposed. What the archeologist found was more clay type soils rather than sand which when they are looking for archeological features is a good sign that they are not running into sand. No archeological features were found however as part of this project we will be including an archeological monitoring plan and will be monitoring during all ground disturbing activities. And part of that plan will include a recovery plan incase features are discovered. Visual resources I think should also be touched upon because the wetland its self is considered a treatment facility by the Department of Health. It is required to be fenced. There must be a 6 foot high fence around it which what we are proposing to do is to coat the fence, paint it black so that it is not as reflective as a metal, chain link fence. And then also further soften that with plantings on the outside of the wetland as well, on the outside of the fence to try to soften the visual appearance of this safety measure that has to be on the site. Coastal resources, the whole purpose of the project is to improve water quality so we don't feel that any coastal resources will be impacted or harmed with this development. Same for wetland resources, State Parks was very careful to have the wetland, the existing wetland, Lokee, delineated and the Army Core of Engineers came out to the site and actually were probably more generous than the wetland consultants that were hired in terms of where exactly the wetland parameters were on site. But we elected to use a more conservative boundary just to be completely clear of the existing wetland. And finally I guess we should talk about coastal hazards. The site is in zone X, outside of the flood plane but it is within the tsunami evacuation Planning Commission Minutes 40 April 13, 2010 zone as is the majority of the park. So with that I think I will leave it to you for questions of me or anybody on the project team. Chair: Thank you, are there any questions. Let me take some public testimony; is there anybody in the public? Mr. Chipper Whicman: Aloha Commissioners, I am Chipper Whicman. I am wearing two hats, I am a resident and very involved in helping to malama the park as well as being involved as the Director of the National Tropical Botanical Garden consulting with them over the plant materials. It is hard to believe that we have been at this for 4 years because it has been a win/win all the way around. I am mainly here to tell you that while this project started in controversy as an intervener proceeding it very quickly changed to a cooperative partnership between the community and the State. I can't have enough good stuff to say about the people in the room here from the State today because they really came to the table not with their arm twisted behind their back but really they came with their arms out looking for a solution that would work for them as well as for our Hawaiian community. I think they see the potential benefits as I think our island will from this technology. If it works in this site and as Katie said, this was a touch site to plan for because you have wetlands, you have archeological sites, you are hemmed in, in every direction and the engineers made it work. So if you can make it work here I think you can make it work almost anywhere and it is a great technology, nature has been using it for millions of years and many other parts of the world use it to clean up things like sewage. And in an area as sensitive as Ha'ena State Park in terms of its cultural and natural resources I think it is a great model, it is a great place to demonstrate this technology. So hats off to the team that really worked on it and made it possible because I can tell you that the iwi kupuna that are in those dunes there are priceless, they are some of the most sacred parts of our cultural heritage. And to be able to take an existing leech field that is dumping untreated raw sewage onto the most sacred component of Hawaiian culture and find a solution is an awesome change. So anyway I am glad that it worked out that I was able to be here and share my part of this project, any questions? Mr. Costa: So given your experience here Chipper, what do you feel the feasibility is looking at something like this for Hanalei? Mr. Whicman: The scale, it is all about scale and Chad who is here today could maybe try and answer that. The scary part and I will be honest we saw in I think it was November last year, the biggest flood in anybody alive's lifetime. That is the scary part. When you have a wetland like this that is overrun by a flood you have the potential for contamination. That is not to say when the water table rises up all those ...it is already happening, right, but I am just saying that is, I would be very concerned about that in terms of Hanalei. However I think if we can pull it off, I mean Ke'e, the usage down there is pretty unbelievable. If we can pull it off over there and I think they have done a lot in terms of sizing it and looking at how much water flows through the comfort station so I think it is properly sized and if we can demonstrate that it works for that number of people I think we have some options. And there are places in Hanalei that are less subject to flood overruns, places like the pavilion west of pine trees, over in there. So there are places that I think we could demonstrate it but in terms of trying to deal with the whole town, I don't know, that is beyond my scope of experience. Was that your question Ian? Mr. Costa: I guess so. We have a long way to go but this sets the stage if you will. Mr. Whicman: I think it does. Mr. Costa: Mahalo. Chair: Any more questions, is there anybody else in the public? Seeing none... Mr. June: I would just like to also thank everybody in the room because this is the ne plus ultra of planning where everybody comes together. It saves us a lot of time and potential for lawsuits. At the County Attorney's office, we appreciate it. Mr. Costa: Yes, thanks for Chipper, you, from the community and from the State Parks for their open minds. Planning Commission Minutes 41 April 13,2010 Chair: I will entertain a motion. Ms. Morikami: Mr. Chair, move that we close this public hearing. Mr. Kimura: Second. Chair: All those in favor say aye, motion carries. On motion made by Paula Morikami and seconded by Jan Kimura, to close public hearing, motion carried unanimously by voice vote. Chair: We have received all the agency comments so. Staff: We did receive two yesterday. I have copies for all of you however we have yet to receive DOT and KHCRP's continents at this time. Chair: I think based on the foregoing we can... Mr. Kimura: Do we have to accept this into...? Chair: Yes, why don't you make a motion to receive comments. Mr. Kimura: Motion to receive these comments we just got today. Mr. Blake: Second. Chair: There is a motion on the floor to receive the agency comments, all those in favor say aye, motion carries. On motion made by Jan Kimura and seconded by Hartwell Blake, to receive agency comments, motion carried unanimously by voice vote. Chair: Lisa Ellen, you can go ahead and read the recommendation. Staff Planner Lisa Ellen read department recommendation (on file). Chair: Are there any questions on the recommendations? I will call the applicant, if there are any questions? Ms. Fernandez: A question about the first condition. I forgot to mention it in my presentation, it reads... Chair: Can you state you name for the record. Ms. Fernandez: Katie Fernandez, PBR, Hawaii, representing the applicant. It says "completion of the comfort station must happen within 2 years," would staff prefer that ...the comfort station is already constructed so I don't know if you want to re-word that to say constructed wetlands, be constructed. Chair: Is there any questions for the applicant? Seeing none, nobody wants to testify on this agenda item or on the recommendations? Seeing none I will entertain a motion. Ms. Morikami: Mr. Chair, move to approve the recommendations of the Planning Department pursuant to the applicant's request pending the comments from State DOT and KHPRC. Chair: And then do you want to also revise condition No. 1, right, as just recommended by the applicant. If you want to read it Lisa Ellen, again, so we can just catch it. Staff: "The applicant shall complete the construction of the constructed wetlands within 2 years of the date of the Planning Commission approval." Planning Commission Minutes 42 April 13, 2010 Chair: For that motion, that would be included in your motion, Paula. Ms. Morikami: So the motion would be to approve the recommendation of the Planning Department with the change just made on condition No. 1 to remove comfort station structure and replace it with wetlands pursuant to the applicant's request pending the status reports from DOT and KHPRC. Mr. Kimura: Second. Chair: Before I call for the vote is there any discussion, roll call. On motion made by Paula Morikami and seconded by Jan Kimura, to approve staff report as recommended pending agency comments from DOT and KHCRP, motion carried unanimously by the following roll call vote: Ayes: Morikami, Matsumoto, Blake, Kimura, Raco -5 Noes: None -0 Absent: Nishida, Texeira -2 Not Voting: None -0 NEW BUSINESS For Acceptance into Record - Director's Reports for Projects Scheduled for Public Hearing for 4/27/10 Public Hearing. Class IV Zoning Permit Z-IV-2010-15, Use Permit U-2010-14 and Special Permit SP- 2010-3 to construct and operate a pavilion consisting of an indoor auditorium, conference center, certified kitchen, and an outdoor amphitheater on a property located along Kuhi`o Highway, approx. 1,500 ft. northwest from the Highway's intersection with Kolo Road, Kilauea, Kauai, further identified as Tax Map Key 5-2-017:028, and affecting a 6.55 acres portion of a 15.17 acre property = Anaina Hou LLC. On motion made by Paula Morikami and seconded by Jan Kimura, to accept into record, motion carried unanimously by voice vote. For Acceptance and Finalization - Director's Report for Shoreline Setback and Activity Determination. Planning Director's Report pertaining to a shoreline setback and activity determination (SSCR-2010-6) for a shoreline setback determination, Kapa`a, Kauai, Tax Map Key (4) 4-5- 007:001, for acceptance by the Commission = County of Kauai, Pubic Works. Staff Planner Lisa Ellen Smith read Director's report (on file). Chair: Are there any questions from the Commission, no questions, let me call for public testimony. Is there anybody who wanted to speak on this agenda item, seeing none, read the conclusions. Staff Planner Lisa Ellen Smith read conclusion (on file). Chair: Are there any questions for the planner. For this acceptance we are only looking for a motion to accept into record the Director's report containing the shoreline setback determination. Ms. Morikami: So moved. Mr. Kimura: Second. Chair: Any discussion, all those in favor say aye, motion carries. Planning Commission Minutes 43 April 13, 2010 On motion made by Paula Morikami and seconded by Jan Kimura, to accept Director's Report for SSCR-2010-6, motion carried unanimously by voice vote. Planning Director's Report pertaining to a shoreline setback and activity determination (SSCR-2010-7) for a shoreline setback determination and Shoreline Setback Variance (SSV- 2010-1) to deviate from the standards of Section 8-27 of the Kauai County Code for repair of an existing roadway Anahola Kauai Tax Map Key (4) 4-8-018:028, 029, for acceptance and action by the Commission = County ofKaua% Pubic Works. Staff Planner Lisa Ellen Smith read Director's report (on file). Chair: Questions for the planner, if not our attorney will advise us on the three parts on this. Mr. Jung: As noted by the planner, Lisa Ellen, there is going to be three actions on this particular request. The first is to accept the shoreline setback determination by the Director and then the second is to waive the public hearing as noted by the planner as to why, because there is immediate risk of damage to the roadway. And then the final action is the action on the variance and whether or not you are going to approve the variance. If there are any questions, I know it is a fairly complicated bill so if I could address any questions let me know. Chair: Is there anybody in the public to testify on this agenda item? No questions, thank you, could I entertain a motion? Ms. Morikami: Mr. Chair, move to accept the Planning Director's report pertaining to the shoreline setback. Ms. Matsumoto: Second. Chair: All those in favor say aye, motion carries. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to accept Director's report for SSCR-2010-7, motion carried unanimously by voice vote. Ms. Morikami: Mr. Chair, move to waive the public hearing. Ms. Matsumoto: Second. Chair: All those in favor say aye, motion carries. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to waive public hearing, motion carried unanimously by voice vote. Ms. Morikami: Finally, Mr. Chair, move to approve the shoreline setback variance. Ms. Matsumoto: Second. Chair: All those in favor say aye, motion carried. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve SSV-2010-1, motion carried unanimously by voice vote. ADJOURNMENT The Commission adjourned the meeting at 3:08 p.m. Resp tfully Submitted. z Lam L. Agoot Commission Support Clerk Planning Commission Minutes 44 April 13, 2010