HomeMy WebLinkAboutpcmin04-27-10
KAUAI PLANNING COMMISSION
REGULAR MEETING
April 27, 2010
The regular meeting of the Planning Commission of the County of Kauai was called to order by
Chair, Caven Raco, at 9:11 a.m. at the Lihu`e Civic Center, Mo`ikeha Building, in meeting 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: Before I call the meeting, an approval of the agenda our attorney has some
revisions to our agenda.
Mr. Dahilie: Items E.I and F. La relating to Anaina Hou are not on the agenda today and
postponed until the applicant meets the proper notice requirements pursuant to Chapter 8 of the
Kauai County Code.
Chair: With that amendment could I get a motion to approve the agenda as amended?
Mr. Texeira: So moved.
Mr. Kimura: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Herman Texeira and seconded by Jan Kimura, to approve
agenda as amended, motion carried unanimously by voice vote.
Chair: Is there a motion to receive?
Ms. Morikami: Mr. Chair, move to approve the agenda and receive for the record all
submittals, applications, staff reports, testimony and addendums presented to the Commission
related to the posted agenda and the items listed.
Chair: Is there a second?
Mr. Texeira: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Paula Morikami and seconded by Herman Texeira, to receive
all submittals, applications, staff reports, testimony and addendums presented to the
Commission related to the posted agenda items, motion carried unanimously by voice vote.
Planning Commission Minutes 1
April 27, 2010
MAY 2 5 2010
GENERAL BUSINESS MATTERS
There were no general business matters.
COMMUNICATION
Communication (4/13/10) from Mark and Diane Daniells requesting reconsideration of
the Planning Commission's decision on April 13, 2010 to approve the modification of Condition
No. 3 of the subject permits and requests amending it to delete the second sentence
Chair: Dale, if there is anything that...
Staff Planner Dale Cua: There is none from staff.
Chair: Is there anybody in the public that would like to testify on this agenda item, B.1?
Is there any discussion? Seeing none I will move to the next agenda item.
Communication (4/19/10) from Barbara Robeson for Hanalei to Hd'ena Community
Association, requesting reconsideration of actions taken by the Planning Commission Item A-1
Agenda April 13, 2010.
Chair: Is there anybody in public that would like to testify on this agenda item?
Mr. Mark Daniells: Good morning Commissioners, I am Mark Daniells. I am
representing the first item on your agenda. I am the owner of the gallery requesting for the
removal of my requirement to...
Chair: Excuse me, we are on item B.2.
Mr. Daniells: I am sorry. This is regarding the letter from Barbara Robeson.
Chair: Okay.
Mr. Daniells: May I respond to this?
Chair: Sure.
Mr. Daniells: I don't know the procedures here as well as perhaps other people do but I
would like to make comments regarding this letter. I don't feel that full representation of the
Community Association has been provided on the letter head and I have evidence to support that.
And as such there is a narrower representation here and that the Daniells in fact who are affected
by this letter are haven't been represented by the Hanalei/Hd'ena Community Association. We
were never given a forum to rebut this assertion, these letters. That is the essence of my feelings
and I feel that there is a very narrow representation from our Community Association and I am
sorry for that, that it made it this far. I would have liked to have taken care of this out on the
North Shore. That is essentially what I wish to add to this. There was a meeting a week prior to
the April 13th meeting where there were votes taken including my wife who was a former
Director and apparently they have not had elections and conveniently for the purposes of our
situation was not counted or notified of any proper procedural issues. And in fact regarding our
situation we did not have the opportunity to present ourselves to the Hanalei Community
Association and I feel that is an unfair situation. I would like to interject that in here so that is all
I need to say at this time.
Chair: Thank you Mark.
Ms. Barbara Robeson: Barbara Robeson for the record. You do have our request for
reconsideration of this agenda item which is B.2. I just want to confirm with you all that I did
have the opportunity to personally contact the current board members and was able to discuss
with 8 or 9 of them, 8 of the 9 of them and get approval to submit this request for reconsideration
due to the timeline of having to have it filed with the Planning Department on the 20th of April.
We don't have any additional information to provide to you. You have the facts and the various
concerns that we had in front of you which would include the determination of whether the
permit was temporary or not which we believe it is. Various procedural errors that were listed in
planning Commission Minutes 2
April 27, 2010
our request and then potential permit violations that we felt you needed to consider before you
make your final decision, thank you very much.
Chair: Is there any questions, is there anybody else in the public that would like to speak
on this agenda item? Seeing none, any discussion regarding the reconsideration on item B.2?
Ms. Matsumoto: Mr. Chair, would it be possible to go into executive session for items
B.1 and B.2?
Chair: Being that we are on item B.2...
Mr. Dahilie: Is there a particular legal question that you would like me to provide advice
or counsel on?
Ms. Matsumoto: Yes. In particular I would like to go through this communication from
HanaleilHd'ena Community Association.
Mr. Dahilie: I would say at this point I would need more specificity with respect to what
questions of law I would probably need to answer with respect to counsel and advice.
Ms. Matsumoto: I am concerned about the procedural matters that were brought up in
this communication and I would like to just make sure that we are doing the right thing.
Mr. Dahilie: Procedural pursuant to Chapter 8 of the Kauai County Code?
Ms. Matsumoto: Yes.
Mr. Dahilie: I could definitely answer that in executive session.
Ms. Matsumoto: I would like to make a motion to go into executive session, and just
read the whole thing?
Mr. Dahilie: Commissioners, based on the request from the Commissioner I would like
to request the Commission make a motion to enter into executive session, item B.2, for the
purpose of consulting with the Commission's counsel with respect to the question of law that the
Commissioner has before.
Ms. Matsumoto: So moved.
Mr. Blake: Second.
Chair: All those in favor say aye, no, motion carries.
On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to go into
executive session, motion carried unanimously by voice vote.
Commission went into executive session at 9:14 a.m.
Meeting was called back to order at 10:24 a.m.
Chair: We are on item B.2 for communication from Barbara Robeson. Is there any
discussion on this agenda item?
Ms. Matsumoto: Mr. Chair, on page 2 of the communication, item 8, condition No. 9
states it has to do with the hours of operation. I would like to suggest that the Planning
Department go out and make an investigation of this, an inspection.
Chair: So noted. We will direct the department to send an inspector out there to
specifically look at condition No. 9 which states the operation of hours. Is there any more
discussion?
Planning Commission Minutes 3
April 27, 2010
Mr. Costa: It seems like that would also relate to condition 8, point No. 8, condition 9
and the conflict with school.
Ms. Matsumoto: Yes.
Chair: Is there any more discussion before I move to the next agenda item? No
discussion.
Letter of Transmittal and Status Report dated April 20, 2010 by Katie Davis of
EnviroServices and training Center LLC for the Department of Transportation Airport Division,
as required by Condition No. 8 of Special Management Area Use Permit SMA(U -2U 0
Shoreline Setback variance SSV-2008-3, Tax Map Key (4) 3-5-001:008, L-1hu`e Kauai = State
of Hawaii, Department of Transportation, Airports Division.
Staff Planner Lisa Ellen Smith: Thank you Chair and Commissioners. This is the status
and progress report for the Ahukini Landfill site. The attached status and progress report is
provided by the Department of transportation, Airports Division via the letter date April 20,
2010. Pursuant to condition No. 8 of the April 22, 2008 to amend and approve the subject permit
request to stabilize site erosion and pollution runoff at the inactive Ahukini Landfill site for the
temporary placement of sandbags, sandbag berm and erosion control measures landward of the
shoreline. The applicant's attached letter provides a status report as mandated by condition No.
8 and the subsequent hearing for the Ahukini Landfill site. All conditions of the original permit
are addressed by the applicant in the attached letter.
Chair: Are there any questions for the planner?
Mr. Texeira: When do they plan to... so this is a temporary action they are requesting, the
sandbag, the use of sandbags?
Staff. This is the remediation action. They received their permit in 2008 and these are
the conditions of that permit. The temporary part is the sandbags and the berm. I actually
believe that their attached report does say that they should start in September, ending in
February, 2011.
Mr. Texeira: Is that DOT over there?
Staff: Yes sir.
Mr. Texeira: Maybe at some point I would like as them some questions about that.
Chair: Are there any more questions for the planner? If I could call the applicant up,
Katie Davis, is there anything you wanted to add to the report?
Ms. Katie Davis: I have nothing to add.
Chair: Commissioner?
Mr. Texeira: Good morning. I just wanted to if you could expand on the sandbagging. I
know that in 2008 we had gone through that permitting process and that it was approved, etc. I
am just saying in terms of the more permanent, beyond the sandbagging, could you discuss you
plans for that?
Ms. Davis: The sandbags were only going to be used during the construction phase. The
design of the construction is actually to stabilize that side of the cliff so they won't be needed
after the construction is finished.
Mr. Costa: So in effect I believe the sandbagging and the berm was a mitigative measure
to prevent any of the old dump rubbish from going in the ocean while they were stabilizing the
hill.
Mr. Texeira: So once that happens what is going to happen to the sandbags?
Planning Commission Minutes 4
April 27, 2010
Mr. Frank Coffey: I can speak to that, Frank Coffey from (inaudible). Once the is done
the sand is going to be delivered to the airport, Lihu`e airport, it will be taken off of the dump
site and given to the maintenance folks.
Mr. Kimura: Is this a State job?
Mr. Coffey: That is correct, DOT.
Mr. Texeira: So the sandbags will be in that plastic, whatever bag, what is it?
Mr. Coffey: Polycarbonate, plastic container.
Mr. Texeira: And that will be stored some place.
Mr. Coffey: Right and we are (inaudible) that the actual sand be compatible with the
natural sand that is here on the beach, (inaudible), rather than construction sand.
Chair: Any more questions for the applicant, thank you. Is there anybody in the public
that would like to testify on this agenda item? Seeing none, we already had a motion to receive
this communication, if there are no comments or discussion I will move to the next agenda item.
SUBDIVSION
Ms. Matsumoto: Item D.1, tentative subdivision action for 5-2010-09, Kayak Wailua,
LLC, TMK: 4-1-006: 34, the recommendation was that it was approved. Item D.2, tentative
subdivision extension request for 5-2006-24, D.R. Horton/Schuler Homes, TMK: 3-7-003:020
was also approved.
Chair: Motion to approve?
Ms. Matsumoto: Move to approve.
Mr. Kimura: Second.
Chair: All those in favor say aye, no, motion carries.
On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve
Subdivision Committee Report, motion carried unanimously by voice vote.
UNFINISHED BUSINESS
Non Conforming Use Certificate TV-1025-NCU, Tax Map Key 5-8-001:006 D.G. Pali
Uli, pertaining to single family Transient Vacation Rental usage at 7169 Alamihi Road Wainiha
Kauai.
Supplemental Staff Report pertaining to this matter.
Deputy Director Imai Ain read additional findings and amended conclusion and
recommendation (on file).
Chair: Are there any questions for the planner? Is there anybody in the public that would
like to testify on this agenda item? Seeing none I could entertain a motion of if there is any
discussion.
Ms. Morikami: Move to approve nonconforming use certificate TV-1025-NCU, Tax
Map Key 5-8-11:006, D.G. Pali Uli.
Ms. Matsumoto: Second.
Chair: Any discussion before I call for the vote? All those in favor say aye, no, motion
carries.
Planning Commission Minutes 5
April 27, 2010
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to
approve TV-1025-NCU, motion carried unanimously by voice vote.
NEW PUBLIC HEARING
Class IV Zoning Permit Z-I V-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`6 Highwa ,
approx. 1,500 ft northwest from the Hi hway'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. [Director's Report received 4/13/10.1
a. Petition for Intervention; Exhibit "A" and Certificate of Service (4/19/10) fro
Laurel Loo, Esq., Shirmizu Loo & Nakamura, LLLP, Attorneys for Petitioner
Kalihiwai Ridge Community Association.
b. Staff Report pertaining to this matter.
c. Letter (4/19/10) from Frank Rothschild, in support of application.
d. Letter (4/14/10) from James Gair, in opposition of application.
e. Letter 4/15/10) from James Gair President Kilauea Ridge Community Association
representing 181 members against this proposed development
f. Testimony 4/16/10) Jean-Michel Gabet and Katherine Gabet opposed to this project
g. Letter 4/19/10 from Roy Gillette, against project.
h. Letter (Undated, Received 4/21/10) from Jonathan McRoberts, in favor of
application.
i. Letter 4/19/10) from Councilmember Jay Furfaro to acknowledge support for the
plans to build several community amenities at the Kilauea Pavilion Anaina Hou
project.
Item was postponed.
Proposed Bill No. 2355 (Zoning Amendment ZA-2010-8) for an Ordinance to amend
Section 8-17.8 of the Kauai County Code, as amended by Ordinance No. 864 and Ordinance
No. 876, relating to the improvement of standards to regulate alternative visitor accommodations
and structures within the Agricultural, Open, and Residential Districts outside of designate
Visitor Destination Areas = Kauai County Council.
Staff Report pertaining to this matter.
Chair: Imai, I know that usually you just read, are you going to be reading the report all
the way through for the Commissioners?
Deputy Director Imai Ain: No, I would read the basics of the report. I would skip over
the reading of the proposed ordinance obviously and then if you would like I could stop prior to
the conclusion and recommendation if you want to take testimony there.
Chair: So you would be reading the preliminary evaluation that we are just handing out
right now?
Mr. Ain: Actually what I would be reading and that is when I would move on to the
second report and reserve the conclusions for the end. However, Chair, as a matter of record can
I get the...what I just handed out is a supplemental staff report as of today and a piece of
testimony from Hempey and Meyers received today if I could get those received for the record.
Chair: Can I get a motion to receive the supplemental report and the letter from Dan
Hempey.
Ms. Morikami: So moved.
Mr. Kimura: Second.
Chair: All those in favor say aye, no, motion carries.
Planning Commission Minutes 6
April 27, 2010
On motion made by Paula Morikami and seconded by Jan Kimura, to receive
supplemental staff report and written testimony from Dan Hempey, motion carried
unanimously by voice vote.
Deputy Director Imai Ain read staff report and supplemental report (on file).
Ms. Matsumoto: I think we need to back track. On page 6, section 8-17.10, item (c), I
think it should read to complete the sentence it says here "to the satisfaction of the Planning
Director that a dwelling unit was being used as a vacation rental on an ongoing basis." I think
we need something, "since March 7, 2008."
Mr. Ain: I see what you are saying Commissioner Matsumoto, if we kept "prior to" there
it would probably work. The strike probably went a little far there. "On an ongoing basis prior
to March 7, 2008," that makes sense now, right?
Ms. Matsumoto: So "prior to March 7, 2008."
Chair: Any more questions before going on to the supplemental (read by Mr. Ain, on
file).
Mr. Ain: I will hold off on the conclusion and recommendation.
Chair: Are there any more questions for the planner? Seeing none, I will ask if there is
anyone in the public that would like to testify on this agenda ...let me just get a motion to open
the public hearing.
Mr. Texeira: So moved.
Ms. Matsumoto: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Herman Texeira and seconded by Camilla, to open public
hearing, motion carried unanimously by voice vote.
Chair: First speaker, Mel.
Mr. Mel Rapozo: Thank you Commissioners, Mel Rapozo. I am testifying as an
individual citizen. Although it seems like deja vu...what are my time restrictions here?
Chair: Three minutes.
Mr. Rapozo: And I can come back, actually I have two parts and the first part really is
about the deja vu. I guess it was 2006 when the original TVR bill was passed. I was on the
Council at the time and in fact the Council felt, they were satisfied that vacation rentals on Ag.
land were not in compliance with State law. Since then there have been many attempts to allow
vacation rentals on Ag. land and this most recent attempt with this bill that is in front of you is
probably the most disturbing because of not only what it is attempting to do but what it is taking
out. I mean all the enforcement. Just to think that you could apply for a certificate without being
in compliance with State of County law. But I am not alone because back in October of 08
Sandra Lee Kutimoto, she is the Chairperson of the Board of education had the same questions
that I have and in fact sent a request for an official opinion from the Attorney General. And I am
not sure if you folks have this opinion or not, I don't think you do. I don't think the Council
does. I am not even sure the County Attorney's office does because this opinion, again the
request was made in October of 08 and August I9th of 09, this opinion was issued to Ms.
Kutimoto and it was signed by both Bryan Yee who is the Deputy Attorney General, in charge of
land use, as well as approved by Mark Bennett.
I don't think I can cover the entire opinion in three minutes, or two minutes now but let
me just highlight what they said and they were posed the exact same questions that I have been
asking since 2006. The bottom line is in the opinion of the State Attorney General if a B & B or
TVR on a working farm or operation can only be justified as Ag. Tourism, the B & B or TVR is
Planning Commission Minutes - 7
April 27, 2010
not allowed and that pertains to Ag. Tourism which we still don't have an Ag. tourism bill. But
further, it talks about TVRs and B & B's on Ag. land in general, on any lands, not just Ag.
tourism lands. And in fact the House Committee on Ag...and the nice thing about Attorney
General's opinions is it is all backed up by source, whether it is a committee report at the
legislature. And in this case it says "the House Committee on Agriculture and on Water, Land
and Ocean Resources deleted the reference to overnight accommodations. The Committee has
reported that," and this is pertaining to allowable uses in the Chapter in the State law, "the
Committee has reported that they had amended the bill by removing overnight accommodations
from the list of accessory facilities the Counties would be allowed to regulate." They basically,
it was, in a draft ...one of the legislators tried to put it in, it was removed. CanI just have
another minute because I think is important you know what the State Attorney General is saying
about this issue.
They took out the reference to overnight accommodations because they didn't want the
Counties to be able to regulate that because it is against the State law. "It appears that the
legislature intended the proviso to apply," I'm sorry, I will skip that part because it is not real
critical. They are talking about Ag. tourism. "The fact that a lot existed prior to June 4, 1976 is
irrelevant to whether a B & B or TVR is allowable. The purpose of Act 99," which is again in
the session laws, "was to prevent, quote, the development of urban type residential communities
in the guise of agricultural subdivisions,' and this was straight out of the Conference Committee
reports, number 2-76, 1976 Senate Journal. "It appears that single family dwellings may be built
on lots existing before June 4, 1976 without the need for any agricultural activity. But there is
nothing to suggest that the right to build a single family dwelling without the need for
agricultural activity encompasses a right to use the single family dwelling for B & B or TVR. A
B & B or TVR are not listed among the activities or uses allowed on agricultural lands under
sections 205-2(d) and 205-4.5." It is not listed as an accessory use.
Section 15-1503, Hawaii Administrative Rules further defines farm dwelling as "a single
family dwelling located on and used in connection with a farm or where agricultural activity
provides income to the family occupying the dwelling." Again, that is the definition in the
Administrative Rules and it specifies a single family dwelling. And in the bill I noticed one of
the things they are taking out is the prohibition of a lock-out. So you can actually have, you
could convert your single family into a multi-family, that is crazy. "We are not aware of any
justification for a B & B or TVR as being compatible with any other agricultural use or activity."
Now this is the one that I think is the most important and this is pertaining to the Counties.
Section 205-5(b) provides that "Counties may further define the accessory, agricultural uses
services described in sections 205-2 and 205-4.5 however we believe that Counties cannot allow
a B & B or a TVR on Agricultural lands under section 205-5(b)." I have been screaming that
since 2006. And I don't know why we continue, we meaning this County, continues to try and
pretend that doesn't exist. This is the County Attorney's opinion and they believe that Counties
cannot allow it, plain and simple. Because a B & B and TVR are not similar to any of the listed
items they are not bonafied agricultural services or accessory agricultural uses and Counties may
not allow them on agricultural lands under section 205-5.
This is not Mel Rapozo anymore. Pretend I never said this in the past. This is coming
from our Attorney General. Legislative history because we always hear that, well Mel, we don't
know what the intent was, we don't know what the legislative history was. Well again, the
Attorney General's opinions always have that. Legislative history supports this conclusion. In
1991 the legislature amended section 205-5(b) to allow Counties to define bonafied agricultural
services. The Conference Committee on Act 281, session laws of Hawaii, 1991, reported that
"the purpose of this bill is to make it easier for farmers and ranchers to locate bonafied accessory
agricultural services and uses on Ag. lands, even when the agricultural activity such as
cultivation of crops or pasturing of livestock to which the services and uses are accessory, are not
conducted on the same premises. Your Committee Conference has amended this measure to
require that to be accessory to the permitted agricultural activities a service or use must support
the agricultural activities of the fee or leasehold owners." That's it. I don't know how much
clearer you can make it. If it doesn't apply to the farming activity and believe me, tourist do not
support the farming activity, it is not allowable. "A B & B and TVR are unrelated and do not
support," again now, this is not me, "a B & B and TVR are unrelated and do not support the
agricultural use of a property except that they produce revenue." If revenue production unrelated
to agriculture were an appropriate criteria, section 205-5(b) would have essentially been rendered
meaningless.
Planning Commission Minutes 8
April 27, 2010
"In summary, we are not aware of any justification by which a County," which is us,
"may allow a B & B or a TVR on Ag. lands as a permissible use under sections 205-2(d), 205-
4.5(a), or 205-5.(b)." That came from Mr. Mark Bennett himself. I hope and I pray that once
and for all we can believe what the law book has told us for a long, long time. If you have any
questions I will be glad to answer them.
Chair: I had one question for the planner. Do you have this on record, the Attorney...?
Mr. Ain: No we do not.
Chair: Can you provide us a copy?
Mr. Rapozo: It took me a long ...I will but I just want to say that I have asked this body, I
have asked the County Attorneys, I have asked the County Council to ask the Attorney General
for an opinion because this is significant. This is a huge change. And you are the first to hear
this because I just got it. Even though it is an older, it is not old it is an 09 opinion, late 09. I
just finally got my hands on it. And I appreciate you asking the question because I think before
we start tampering with these laws we have to make sure that we are legal. And yes, opinions
are opinions but I think as it pertains to a State law, 205, which governs agricultural lands, we
should talk to the attorneys that represent the State versus the County. No offense to the County
Attorneys but I think that is where I would have started, thank you.
Chair: Mel, definitely a copy for the Commissioners.
Mr. Rapozo: If I could get a copy of your supplemental report. I couldn't get one earlier,
could I get one? I will trade you.
Chair: Mel, did you have any more comments or is that the main one?
Mr. Rapozo: I do for the bill its self (inaudible).
Chair: Are there any questions for Mel, thanks Mel, Lorna.
Ms. Lorna Nishimitsu: Thank you, Lorna Nishimitsu on behalf of Justin and Michelle
Hughes. I think it is important to point out that although Mel is correct in saying that you cannot
under the sections, statutory provisions he quoted, allow TVR use, what he fails to recognize or
fails to point out is that they are permitted under 205-6. The Special Permit process has been in
place for a very long time and all that bill No. 2355 proposes to do is to recognize that the
Special Permit process can be applied to Ag. TVRs. What ordinance 864 did was it took away
the rights of people on Ag. lands who were operating TVRs to apply for a Special Permit. And
that Special Permit process exists to give people rights to do or rights to use their land with your
permission of course, or the Land Use Commission's permission, for what it is not zoned after
you consider the impacts and mitigation that can be put in place. So bill 2355 only says that if
you were operating a TVR before ordinance 864 was created you can apply for a Special Permit.
But what I think this Commission needs to look at is not only giving these operators a
right to do what anybody else on any other zoned lands can do, if I want to create a school I have
to go and get a Special Permit if I want to do it on Ag. land because schools are not permitted
anywhere under our laws. You have to get special authorization to operate a school. If I want to
do a church on Ag. land I have to come in for a Special Permit. So this Commission and the
Land Use Commission has recognized that there are certain uses which are appropriate in
agricultural districts because they cannot be fit in other locations. And that is the fact finding
that you have to do and that is the process that has been in place for many, many years. So we
are not trying to undo all of the work the Council did back in 2006. We are just trying and I
think the effort is to try and give Ag. TVR operators who can provide information to this
Commission that my use existed before, probably in reliance on the Kobayashi opinion, my use
has not created any problems and if you feel that there are problems they can be appropriately
mitigated and it gives them the ability to come before you.
Finally, I think what this Commission needs to recognize and I will end it here, is that the
Ag. tracks are far larger than the residential tracks. It is far easier to mitigate impacts to a
Planning Commission Minutes 9
April 27, 2010
community and allowing an Ag. TVR use does not eliminate the ability to continue using these
Ag. pieces for agricultural activities. And in my case my clients have dedicated Ag. lands, Ag.
uses, along with, their TVRs are operating while their Ag. activities are occurring so please
consider that.
Chair: Are there any questions for Lorna? So Lorna, you client right now continues to
use their Ag. parcel for TVRs right now?
Ms. Nishimitsu: They applied for the NUC and there has been no denial, no approval,
there has been nothing.
Chair: But are they still operating?
Ms. Nishimitsu: I believe they still are.
Chair: And that right is because of the State law of the 206.
Ms. Nishimitsu: They are unique, they occupy the dwellings periodically. It is not just
pure rental, they move from rental to rental as it is being rented so it is their residence although
not 365 days a year. They engage in agricultural activity and although right now the market isn't
that good for tropical flowers, they have made sales so they are deriving income from those
agricultural activities on all of the lands where they have their TVR operations. So they are
actually kind of different than some of the other applicants who you may be dealing with.
Mr. Kimura: How many rentals do they have on the property?
Ms. Nishimitsu: They have four properties so 4 separate lots, one per lot.
Mr. Kimura: It is all in the same area?
Ms. Nishimitsu: No. One is...
Mr. Dahilie: Commissioners, again I would caution the Commission that we are
discussing the bill and not specific transient vacation rentals so I would caution the Commission
against discussing the facts of a particular TVR operation for the purposes of this noticed
discussion pursuant to Chapter 92.
Chair: Thank you Lorna.
Mr. Blake: I hope I am not going outside the boundaries of what we can ask, so these
four residences support agriculture?
Mr. Dahilie: Again Commissioner, I would caution against asking about specific TVR
operations as it pertains to an actual applicant or dwelling and right now we are discussing the
broader law at hand. And so I would suggest that if we are going to be discussing a specific
TVR it needs to be noticed pursuant to Chapter 92.
Mr. Kimura: I don't know if this pertains to the law but can somebody's Ag. land that is
not suitable for farming, can we rezone it to residential?
Mr. Dahilie: If that is a legal question regarding the rights, duties and privileges as a
Commission and the County in general you need to ask me that question and I can address it in
executive session.
Chair: Thanks Lorna, is there anybody else in the public that would like to testify on this
agenda item?
Ms. Caren Diamond: Aloha, Caren Diamond. This bill before you, just to give it a little
context, you had the agricultural vacation rental expanding the vacation rental bill before you,
you failed to take any action and it went to the Council. They had sixteen different meetings on
it. They did not take any action. Then there were amendments that expanded the scope of it and
they decided it had to come back to you. What I heard was the Council, you know this is kind of
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like a political hot potato, nobody wants to do anything but hot potato is here for you now. And
we are hoping as a community that this Commission takes this really seriously. This is a gutting
of the vacation rental ordinance that the community, the vacation rental people, everybody put a
lot of time into it and this completely guts it. This takes away everything from it. It is not like
this is being granted because the vacation rental bill was implemented so well, it wasn't. It was a
huge failure of this Planning Department. There has been zero accountability, zero. Although it
has been on the website and there is the possibility that IT could do a lot of things, how many
and in what community, which community has been impacted the most, where they are located,
all kinds of things could happen but nothing has been requested of them, nothing has come out.
Now you are being asked to gut this bill. This morning I did a count on the website,
basically planning approvals island wide, vacation rentals, transient vacation rentals outside the
visitor destination area are 356. Of those 302 of them were granted by the Planning Department
and 54 of them were granted by this body. So again, 356 total island wide. How many are there
on the North Shore? Do you know how many are in Wainiha, Hd'ena? Far more than half, so
there are 193 of those are between Wainiha and Hanalei. Those are small, rural districts that are
governed by the North Shore Plan. It is not just the General Plan that is cited it is the North
Shore Plan as well, 193 in our area. Of that, 69 in Wainiha were granted by the Planning
Commission and 12 of them were granted by this Commission. And in Hanalei 86 vacation
rentals were granted by the Planning Department, 26 of them additionally were granted by this
Commission making 112 total in Hanalei. Again 193 vacation rentals in our little area.
They are taking compliance of Special Management Area laws out of the bill. Whether it
is in or out of the bill this County, this Planning Commission still must abide by the Special
Management Area rules which require you to look at the accumulated impact of this much tourist
development. I am asking you as a body called the Planning Commission to actually please plan.
This is Hanalei, is Wainiha and Hd'ena a resort now? If it is you guys have come in the back
door. I didn't see any zoning changes. If you feel and if the County feels like it should be a
resort come the front way and come and ask for a zoning change to resort. But at the moment it
is residential and there is a huge accumulated impact from this amount of vacation rentals that
have been approved. And now on top of this approval what this bill before you does is open it
up wide again. There are no more dates on it anymore, you didn't apply, come pay your 500
bucks, you can apply now.
Have we sold out our communities? Yes, we have. But this body can make it right
because this bill that is before you, this garbage bill, you could make it right. You can expand
the scope of Bed and Breakfasts because for people who are actually living on their property and
having it that is a different thing than transient vacation rentals. You can do some studies. You
can actually make some rules and regulations that will affect the North Shore area where the
most amount of vacation rentals are now accumulated. Is it suitable? There are perimeters, what
residential areas we are supposed to have.
Chair: Caren...
Ms. Diamond: I won't go much longer.
Chair: I am just trying, for the Commission, we have these amendments for this bill,
whatever has proliferated in the present and in the past we have this bill in front of us. Is there
anything that you want to comment...?
Ms. Diamond: I am commenting on this bill, this is specific because what happens is it
takes out inspections. You have all the people who never applied...
Chair: What part is that that you know of that we can look so the Commission can follow
your train of thought?
Ms. Diamond: On page 2, the very first paragraph says "permitting processes should
consider the accumulative impact that a large concentration of alternative visitor units can have
on a residential neighborhood." Basically I am asking this Commission to do just that because
we have this huge amount and what this bill is doing, when it says that you can come back in for
your 500 dollars but there are no longer any inspections and there is no longer anything. You no
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April 27, 2010
longer have to comply with Federal flood laws. You no longer have to comply with Special
Management Area laws or County zoning ordinances.
Chair: Excuse me, what page is that?
Ms. Diamond: You don't have to apply for anything, page 2 at the top.
Chair: Of the staff report?
Ms. Diamond: Yes.
Chair: You said (d)?
Ms. Diamond: Yes. And Planning is citing that for their background, at the very top,
"permitting processes should consider the cumulative impact that a large concentration of
alternative visitor units can have on a residential neighborhood."
Chair: Okay, anymore...?
Ms. Diamond: Yes. And then if you go down to that first bullet point it says there
should be a grandfathering provision for existing TVRs but it also says the recommendations
address amortization of TVRs outside of the VDA by nullifying the NCU when the owner
discontinues use. So there were all kinds of things that were thought about originally which
wasn't to allow vacation rentals to happen forever in perpetuity. And the bill that you have
before you basically doesn't include, if you look at page 4, 8-17.7, Amendments to visitor
designation area designations, if you look at all of those there are things that are supposed to
comply if you are going to make an area a resort. What I am saying to you is that this area has
been made a resort but none of these things actually comply and it actually isn't a resort, it
actually still is residential. But what you being asked to do is to gut anything that ever kept
everything from being made resort. And now we have two classes of property owners in one
area where the property owners that applied for these nonconforming use certificates get to do it
forever and ever and the people who actually either lived in their place or didn't apply don't ever
get that right. And now as you open it up people who decide that they want to have that right
that didn't have it before can come in and apply. What we have in our neighborhood is a lot
people that didn't apply. A lot of people knew they couldn't meet the burdens of that bill.
Chair: If you could just stick to the points. I just want to go straight to your points.
Ms. Diamond: By removing the March 30, 2009 date it makes it open ended for
anybody to come and apply.
Chair: What page again is that?
Ms. Diamond: That is on page 6. That is the part where everything is being taken out.
You no longer have to be in compliance with State and County land use or planning laws
including but not limited to HRS, Chapter 205, the Comprehensive Zoning Ordinance, Special
Management Area, Flood Plane Management and shoreline setback laws. You don't have to be
in compliance with anything. But I do believe this County still has to be in compliance with
Federal flood laws, they still have to be in compliance with Special Management Area laws
whether it is taken out of this bill or not. How do you say you don't want to be in compliance
but you are going to grant people this right forever and ever and ever?
Ms. Matsumoto: May I ask a question?
Chair: This is one of the questions that I have highlighted that we could ask and I think
we can discuss ...I am just trying to take notes from the public, things that we can discuss.
Anything else Caren?
Ms. Diamond: Yes. There are no longer any conditions so when you apply all you have
to do now is show that you have a current valid TAT license, that's it, and we believe that our
community deserves much better than this. And making it a resort, we ask you to do it with full
Sunshine transparency, in the open, not to turn Hd'ena/Hanalei into resorts. There is more than
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April 27, 2010
noise in the neighborhood and I just want to reiterate a few things if I can from the North Shore
General Plan which says, the first recommendation was "all visitor accommodations resort units
should be confined to the Princeville resort area." Another recommendation is that the values
and lifestyle of the local residents should not be unreasonably compromised to accommodate the
tourist industry. Hastered and Fee, the consultant who did the report said "what is clear from
available data is the disproportionate impact being felt by the neighborhoods of the North Shore
about the presence of TVRs." We are asking you to consider the North Shore, it is a special
planning area. Don't lump it in with all this because more than half, almost two thirds of the
approvals have happened in just a few square miles and most of it is in the ocean front, some of
the most sensitive, some of the most sacred beautiful lands that is culturally still used by the
people who live there today. And this is the Planning Commission and this is no way to plan.
Chair: Is there anybody else in the public that would like to testify on this agenda item?
Mr. Rapozo: Thank you Commissioners. I appreciate the extra time. I don't come here
often and I promise I will be brief. And just to address what Lorna talked about as far as the
Special Use Permit, she is exactly right. What I didn't mention though, in that opinion that in
fact, here it is, it says "at the outset we advise that the Land Use Commission is the appropriate
agency to interpret what activities are legally permitted in the Ag. District and what the
appropriate standards for granting a Special Permit are." So basically I think if you read the
entire opinion I think you will see that basically they wanted to keep the authority away from the
Counties to allow TVRs and B & Bs on Ag. land. And I think because of what they envisioned
back when they passed this ordinance and the State passed 205 they saw a possible opportunity
for people to circumvent so I think that is why this opinion is framed the way it is to prevent that.
As far as the bill its self, if this Commission and the Council decides to move forward I
just want to talk about and I will go to page 6 on the top, No. 6, the removal of the no interior
lockouts. I don't understand why that is in there unless we want to convert single family to
multi-family because that is what happens when you lockout a unit in a single family residence it
becomes a multi-family dwelling. And why that is taken out is beyond me. Next one down and
I think Caren touched on, the removal of the deadline, we have taken out the deadline so we open
it up really for more and more which in fact in 2006 when Council passed the bill it was to cap
the numbers of vacation rentals. Below that on (c), again touched on by Caren, the fact that we
are not going to require them to be in compliance with the law and still accept their applications?
That in its self may not be so bad but if you look at on page 7, in the middle of the page, in the
added section which is (b) where the Planning Director will issue a provisional certificate upon
the application so regardless if they are in compliance with shoreline laws, CZO, which the CZO
encompasses many different laws, they will be allowed to operate. I don't understand why that
would be taken out. I am not sure who authored this bill. I know Tim Bynum signed it but I
can't imagine why he would remove that which is really the teeth in this whole, part of the teeth
in this issue.
On page 7 we talk about the, on the top of the page, subsection (d), they are xing out any
reference to Chapter 205. Why would you take out the reference to the State law only unless you
don't want to abide by the State law and I think that is what that intent was, take out 205 so we
can make our own rules. But unfortunately we cannot do that. You have to abide by Chapter
205 because that is the State law. On page 8, removing the requirement that every application be
physically inspected, again, I don't see the logic in that. Why would you allow a permit or grant
a permit if you haven't inspected the property is beyond me. We are taking out all the
requirements for the Planning Commission to promulgate the administrative rules. I don't get
that. Why would you not have rules? I think you need administrative rules. I think that is part
of the reason why we have so many problems is we operated without rules on many occasions.
Removal of the deadline in section 8 on page 8, taking out March 30, 2008, and again if they
miss the deadline they get 60 days to pay a fine and after that they have a year. So you basically
have a year after this ordinance is passed which could be two years from now to continue to
operate on Ag. land and that is simply no right.
Again, page 9 talks about the renewals that in fact even the renewals you don't have to be
in compliance so you could operate an illegal TVR based on the fact that you are not in
compliance with any of those CZO's or shoreline laws and still renew your application or renew
your use permit and not have corrected those items. That makes no sense. And then the one that
is really bothersome is taking out the, part of the strength of the bill that was passed was the
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April 27, 20I0
ability for the residents of this island, if there was a TVR that was operating outside of the scope
or in a manner that was a detriment to the neighborhood, anybody could come up and file a
petition to modify or revoke. This takes it out. Now you have to go obtain standing and that
again I question why, if in fact we are trying to live and co-exist with TVRs in residential
neighborhoods then I would think the public should not be closed out. And in fact if they come
up here and they say we want you to review this because of, anybody should be able to do that
and not just someone that can prove standing.
And to remove the unpermitted use language, again, baffles me. And if course the
biggest baffle for me was the conclusion and recommendation by the Planning Department
where it says "ordinance 864 and 876 contain provisions that run counter or beyond the stated
intent of the General Plan and conclusions of the study by Helbert, Hastered and Fee, the
proposed amendment aligns closer with the stated intent of the General Plan. Based on the
foregoing, ZA-2010-8 should be approved." Now the Planning Department is recommending
that you folks approve this as it is written and I am saying that regardless of what the General
Plan says, the General Plan is a guiding document, it does not trump State law. So as we prepare
and debate this issue, I think the General Plan is very valuable but we cannot forget that Chapter
205 is the State law that governs our actions here on Kauai. So with that, I appreciate again,
Mr. Chair and Commissioners, appreciate the extra time. I know how hard it is to control that
clock and appreciate your time and patience.
Chair: Thank you, are there any questions for Mel? I have one question, did you say
that section A, 206, that...
Mr. Rapozo: Which one?
Chair: Section A, 206, the provision for the Special Permit for allowing TVRs on Ag.
lands, that the LUC regulates that?
Mr. Rapozo: No. What I am saying, and again I failed to when I read the opinion from,
the Attorney General's opinion, it says at the outset and this is how they preface their opinion,
"we advise that the Land Use Commission is the appropriate agency to interpret what activities
are legally permitted in the Ag. District and what the appropriate standards for granting a Special
Permit are." So basically what they are saying is it is for the Land Use Commission to determine
what in fact should be granted a Special Use permit.
Chair: Don't forget that copy.
Mr. Rapozo: I will get that to you.
Mr. Kimura: If and when we do go into executive session for this, if we do go, can we
have that report before the executive session?
Mr. Rapozo: You will have it.
Mr. Costa: The opinion?
Mr. Kimura: The Attorney General's.
Chair: We could defer the item and let us digest the information and the comments that
we got from today and come back and bring it up at the next meeting. You as the Commission
have that opportunity to defer this today. No decision making needs to be made today.
Mr. Rapozo: And that is all I am asking that we digest it all.
Mr. Dahilie: Just for a legal clarification and although I don't know exactly the proviso
this proposal is referring to in the Attorney General's opinion that is not legally binding by law,
the particular section that says that the Planning Commission does not have the authority to
determine what is appropriate on or not on...was it appropriate activity pursuant to a Special
Permit, the standards, yes, are put forth by the Land Use Commission but the discretionary
authority for any activity under 15 acres lies solely with this Commission. So just for a
clarification point that although there may be certain standards for what a Special Permit can be
Planning Commission Minutes 14
April 27, 2010
issued for the actual discretional authority does lie with this Commission for any activities that
are under 15 acres.
Chair: So I guess from the Commission, (inaudible), if we could have that as a note
maybe for the next meeting for comments because that is new information for me too that you
just said that the County has the...
Mr. Dahilig: Planning Commission.
Chair: Planning Commission has the authority for under 15 acres.
Mr. Dahilig: Yes, under 205 you are the body, you issued one last meeting and
specifically that was on the Kahili Adventist School so it is not something that the Commission
has not seen before with respect to exercising authority under Chapter 205 because it is delegated
by statute to the Planning Commission for anything under 15 acres.
Chair: Let me just call for anybody else in the public before we close the public hearing
and go into discussion. Is there anybody in the public that would like to testify more on this
agenda item? Seeing none I will call the meeting back to order and we can make a motion to
close the public hearing.
Mr. Texeira: Motion to close the public hearing.
Mr. Morikami: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Herman Texeira and seconded by Paula Morikami, to close the
public hearing, motion carried unanimously by voice vote.
Chair: So, discussion from the Commission?
Mr. Texeira: Does she want to testify?
Chair: I think she stood up right when I was calling for the vote so I would have to
suspend the rules and accept public testimony again.
Mr. Dahilig: Based on the fact that you can either motion to reconsider the closing of
the public hearing or you can let the public hearing closure stand as an action that the
Commission has taken and allow Ms. Diamond to provide comments but I would suggest that it
not be considered as part of the public hearing portion.
Mr. Blake: Didn't you ask if anybody else from the public wanted to testify?
Chair: Yes.
Mr. Blake: Any you didn't want to testify then?
Ms. Diamond: I actually don't want to testify, I want to comment on closing the public
hearing.
Chair: As the Chair I would just like to go into discussion. I don't think this would be,
really I think the Commission is going to get...has new information and will bring this time
probably back up in the next meeting.
Ms. Diamond: Thank you, Caren Diamond. I just wanted to say that it seems you make
rushes to close the hearings these days but because new things are going to come up for this one
it would have been nice to leave it open for additional public comments, thank you.
Chair: Any other discussion?
Planning Commission Minutes 15
April 27, 2010
Mr. Texeira: One question pertaining to that matter, so if it comes up on the agenda
again, we defer...
Chair: We can defer and then under Sunshine law it will come back on the agenda and
public hearing will be back open.
Mr. Dahilie: Actually it is public testimony.
Chair: It is not the end of it.
Mr. Texeira: Exactly, that is what I wanted to be sure of.
Chair: If we wanted to defer.
Mr. Dahilie: Every individual in the public has a right to provide comment on a posted
agenda item pursuant to Chapter 92.
Chair: At this point if the Commission, Commissioner Matsumoto and Hartwell had
some questions regarding some of the amendments, would that discussion be relevant in the
executive discussion is that something we can talk about?
Mr. Dahilie: Maybe I should ask Commissioner Matsumoto, are you asking for a legal
opinion regarding the interpretation of how legally the proposed amendments interface with
Chapter 205?
Ms. Matsumoto: Yes.
Mr. Dahilie: I guess based on that premises it is something that I would have to entertain
in executive session for consultation with me as your attorney.
Chair: And I guess that is the same for you Hartwell on your question regarding page 8,
item (h) regarding the operator as defined?
Mr. Blake: Yes, I wanted the legal basis for that.
Mr. Dahilie: And whether it is legal under Chapter 205?
Mr. Blake: Pardon me?
Mr. Dahilie: Whether the amendments as presented are compliant with Chapter 205?
Mr. Blake: Yes.
Chair: So if we could get a motion to go into executive session to answer those
questions, I will entertain a motion.
Ms. Matsumoto: So moved.
Chair: So someone needs to read that, the executive session.
Mr. Dahilig: Pursuant to Chapter 92 I would request a motion that the Commission go
into executive session on agenda item E.2, relating to the proposed bill 2355 to consult with the
Commission's attorney pursuant to Chapter 92.
Ms. Matsumoto: So moved.
Mr. Texeira: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Camilla Matsumoto and seconded by Herman Texcira, to go
into executive session, motion carried unanimously by voice vote.
Planning Commission Minutes 16
April 27, 2010
Commission went into executive session at 11:50 a.m.
Executive session ended at 12:52 p.m.
Commission recessed for lunch at 12:52 p.m.
Meeting was called back to order at 1:36 p.m.
Chair: We are on item E.2, the proposed bill 2355, we left with executive session and we
are into discussions, is there any discussion? If there is no discussion what would be the pleasure
of the Commission?
Ms. Morikami: Move to recommend to the County Council approval of this measure.
Chair: Is there a second?
Ms. Morikami: The amendment will come after. I am just making the motion.
Chair: Let's just second it and then we can go into discussion and if there are
amendments we can have it as a discussion.
Ms. Matsumoto: Second.
Chair: Being that we are in discussion now are there any amendments, deletions, or
additions?
Ms. Morikami: Mr. Chair, move to amend the bill by including the supplemental
recommendation of the Planning Department that we received here. It is supplemental staff
report dated 4/27, today, which refers to the last paragraph continued onto the back page.
Chair: Okay, there might be one mishap that I did. The planner did not read his
recommendations into the record but received it and there is a motion on the floor.
Mr. Dahilig: Procedurally I don't think it is a problem to have him still produce his
recommendations for the record and if the Commissioner feels it is warranted to withdraw her
motion based on the recommendation then she can withdraw it or she can let it stand as is.
Chair: So would you mind withdrawing so we can have the recommendation at least be
read into the record?
Ms. Morikami: I move to...
Chair: Who seconded it?
Ms. Matsumoto: I seconded it so I will withdraw.
Chair: That is how we got into discussion. So with that said if the planner could read his
recommendation.
Deputy Director Imai Ain read department recommendation (on file).
Chair: And for the record we have already received this for the record and there was a
motion and it was carried so now we are back to the main motion or another main motion.
Ms. Morikami: So I am going to Mr. Chair, move to recommend to the County Council
approval of ZA-2010-8.
Ms. Matsumoto: Second.
Chair: Before I call for the vote is there any discussions?
Planning Commission Minutes 17
April 27, 2010
Mr. Texeira: So the vote is calling for us to approve all of the items as shown in the
report, the staff report?
Chair: Yes, approve and transmit to...
Mr. Texeira: As amended.
Mr. Blake: And the amendments such as the deletion of multiple references to existing
laws are solely for the purpose of steam lining the, if you will, this ordinance. It is not meant in
any manner to imply that any specific statutes or ordinances that have been lined out no longer
apply. They apply regardless of whether or not they are in there or not.
Mr. Dahilia: These laws still have force and affect regardless of the activity. Before I
further answer your question Commissioner I do want to ask clarification from Commissioner
Morikami whether her motion includes the recommendation for the amendment that Deputy
Director Ain...
Ms. Morikami: I would like to propose two amendments which one of them is the...
Mr. Dahilia: So right now this is...
Ms. Morikami: It's the main motion and then I have two amendments to propose.
Mr. Dahilia: So what I would suggest is as you look throughout the meat of the
legislation the actual language pertaining to 205, Special Permits, Flood ordinances lined out but
functionally the enforcement of those and the reissuance of certificates comes later on as part of
the renewal process. So there is an opportunity for the Planning Director to, based on the way I
am reading the bill, to withhold approval of a renewal should a TVR be found in violation of any
of those statutes. And that is I guess the way I am reading the bill as it came down. So
enforcement is not given away but it is placed in the context of renewal and withholding of the
renewal certificates until such time as that person or applicant is in compliance with those laws.
Mr. Blake: So we are here today discussing Ag. TVRs, not urban TVRs.
Mr. Dahilia: The meat of the legislation as proposed discusses the Special Permit
process and the Special Permit process is triggered for those applicants with TVRs that are on
land designated agricultural by Chapter 205 of the Hawaii Revised Statutes.
Mr. Texeira: I am a little bit confused, as always, but I thought we had something like 40
or so, there was a number anyway that may be coming before us.
Mr. Aiu: Right now we have received for applications of TVRs on Ag. land 41
applications. Of those, this is not an exact number, but I think 6 met the criteria to be approved,
the rest of them did not, they were denied. So we know of at least those 41 that would probably
want to come in for a Special Permit. Judging by complaints we have received on illegal TVRs
we know there are others out there. And if you consider the time we considered the bill 2298
which also proposed a Special Permit process, we received 50 pieces of testimony, individual
pieces of testimony which tends to lead you to think that there are at least 50 Ag. TVRs out
there.
Mr. Texeira: So those 6 that you feel they are okay.
Mr. Aiu: They are okay by the current law. They were the only ones that met the current
law.
Mr. Texeira: So they won't be becoming before us.
Mr. Ain: They meet the (inaudible).
Mr. Texeira: So that is the discretion of the Planning Department then.l
Mr. Aiu: The discretion of the Planning Department would be the Special Permit.
Planning Commission Minutes 18
April 27, 2010
Mr. Dahilig: And just to add on again that discretion to recommend approval or non-
approval, the final authority rests with the Planning Commission (inaudible).
Mr. Texeira: But that is my question, it won't even come before us on the matter of the 6
applicants, it won't even come before the Commission, correct, because they have already been,
based on your criteria already met...
Mr. Aiu: They have already met the pre-existing criteria, yes.
Mr. Costa: If we processed those before March 30m they didn't have to come before the
Commission.
Chair: Any more questions?
Mr. Kimura: What.about changing the administrative application processing fee from
500 to 1,500 dollars, would that be acceptable?
Chair: If he wants to change that and amend that he would have to make a motion to
amend that?
Mr. Dahilia: Make a motion to amend Commissioner Morikami's motion which is
approving the bill.
Chair: By changing it from 500 to 1,500.
Mr. Dahilie: If that is the will of the Commission.
Chair: But we would have to vote that separate?
Mr. Kimura: So we would have to vote on that first before we make an amendment to
the...
Chair: No, you would have to make a motion to change it now and then we will see how
the Commission votes. So if you want to make a motion...
Mr. Kimura: I would like to make a motion to change the fee of 500 dollars to 1,500
dollars.
Chair: In regards to section 8-17.10, item (c), or (d).
Mr. Ain: (d) and there is also a fee in (h).
Chair: You said (d) and (h) or just (d).
Mr. Kimura: It is the same thing, right?
Chair: I am just going off of the staff report, sorry. So your motion would be to amend
the fee from 500 to 1,500 on item number 8-17.10(d) and (h).
Mr. Dahilie: Yes, it would be 8-17.10(d) and (g), (d) and (g).
Chair: There is a motion on the floor, is there any second?
Ms. Morikami: Second.
Chair: Is there any discussion before I call for the vote on the amendment?
Mr. Texeira: Yes. I would just like to know the basis of the 1,500, is that...?
Planning Commission Minutes 19
April 27, 2010
Mr. Kimura: I think the amount of money that you have to pay, 500 dollars for the staff
to redo everything for the late fee, I think it is unacceptable for the amount of work they have to
do, 500 dollars to me is way too cheap.
Mr. Texeira: I understand, that makes a lot of sense. I just don't know why it is 1,500,
why not 2,000, why not (inaudible).
Mr. Kimura: I first suggested 20,000 but they said that was outrageous. Do you want to
change it?
Mr. Texeira: No, I don't know what is, I have no clue. I am just questioning. I don't
know what is the best amount to charge.
Mr. Kimura: I feel that would be a little bit more acceptable than 2,000 or 5,000 for the
amount of work they have to do. I figured 1,500 would be justifiable in my opinion.
Mr. Texeira: I understand that. So are we going to discuss any other amendments or are
we just taking one at a time?
Chair: We are just taking one at a time. So I will call for the vote, all those in favor say
aye, no, motion carries.
On motion made by Jan Kimura and seconded by Paula Morikami, to amend item
8-17.10(d) and (h), motion carried unanimously by voice vote.
Chair: Any more amendments?
Ms. Morikami: Mr. Chair, move to amend the bill to include the staff report
recommendations that we received today.
Chair: You are talking about the supplemental?
Ms. Morikami: Supplemental report.
Ms. Matsumoto: Second.
Chair: Any discussion? That would be the supplemental staff report.
Mr. Texeira: And the motion is to...
Chair: The motion is to just receive or amend the...add this to the, so let me just restate
the motion. The motion would be to add the supplemental staff report into the record, part of the
record for transmitting over to Council. And there is a second so I will call for the vote, any
more discussion?
Mr. Blake: This is a motion to receive?
Chair: Motion to add...
Mr. Blake: Motion to amend.
Mr. Dahilig: Amend the bill.
Chair: Amend the bill so we can add this supplemental staff report.
Mr. Blake: Second.
Chair: There is a second already so all those in favor say aye, no, motion carries.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to
amend bill 2355 to include supplemental staff report recommendation, motion carried
unanimously by voice vote.
planning Commission Minutes 20
April 27, 2010
Chair: Any more amendments or deletions or comments, everybody good? For
discussion sake I will voting against the motion to approve the report being that I said it on the
floor that I wanted to read the judges or the Attorney General's comments. And I did say on the
floor that I would defer. I would prefer a deferral but there is a motion on the floor so I will be
voting against but for discussion I wanted to let the Commission know my reason. I will call for
the vote, all those in favor say aye...
Mr. Aiu: Chair may I suggest we roll call this?
Chair: Roll call.
Ms. Morikami: Just to clarify, we are voting on the motion and not...
Chair: The main motion to approve and transmit as amended to the Council.
Ms. Morikami: Thank you.
Chair: Roll call.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to
approve ZA-2010-8 as amended and transmit to the Kauai County Council, motion
carried by the following roll call vote:
Ayes: Kimura, Blake, Morikami, Matsumoto -4
Noes: Texeira, Raco -2
Absent: Nishida -1
Not Voting: None -0
NEW BUSINESS
For Acceptance into Record - Director's Reports for Projects for Scheduled for Public
Hearing for 5111/10 Public Hearing.
There were no Director's reports.
For Acceptance and Finalization - Director's Report's for Shoreline Activity
Determination.
Planning Director's Report pertaining to SSCR-2010-8 for a shoreline activity
determination, Hd'ena, Kauai, Tax Map Key 4) 5-9-003:040, for acceptance by the
Commission = Limahuli Valley Trust, LLC.
Director's Report pertaining to this matter.
Staff Planner Lisa Ellen Smith read Director's report (on file).
Chair: Are there any questions for the planner regarding this shoreline acceptance for the
shoreline determination?
Mr. Blake: I have a question about the recommendation. The last sentence says "the
Planning Commission is advised that its action of acceptance and date thereof must adhere to the
time requirements imposed on the Planning Director's decision to accept and approve the
shoreline determination as noted under Kauai County Code 8-27, sub 3." So the Planning
Director has advised us to accept this report. We can vote not to accept it though, right,
without...
Staff: At this time?
Mr. Blake: Yes, as long as it is within that time limit.
Planning Commission Minutes 21
April 27, 2010
Staff: In the section that you are quoting is "within 120 days from the day the application
is deemed complete by the Director, the Director shall approve, approve with conditions, or deny
the application for approval determination in accordance with the criteria set forth in this article.
The Director may also issue a determination that the proposed activity or structure is not subject
to this article because it is outside the shoreline setback area."
Mr. Blake: And the Director has...
Staff: Accepted this, this is an existing house.
Mr. Blake: So the question is whether we are going to accept his acceptance.
Staff. It is an interesting law.
Mr. Blake: I just questioned the must.
Chair: If there are no more questions I will ask for public testimony if there is any. Is
there anybody in the public that would like to testify on this agenda item, seeing none I will
entertain a motion if the Commission wants to accept it.
Ms. Morikami: Mr. Chair, move to accept the shoreline setback determination as
recommended by the Planning Director.
Ms. Matsumoto: Second.
Chair: Any discussion, all those in favor say aye, no, motion carries.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to
accept shoreline setback determination as recommended by the Planning Director, motion
carried unanimously by voice vote.
Memorandum (4/21/10 from Deputy Planning Director Imaikalani Am to Caven Raco,
Chair, Kauai Planning Commission, recommending the Commission consent to the issuance on
Non-Conforming Use Certificates, TVNC-1061, Tax Map Key 5-3-005:004, Gary Stice and TV-
1387-NCU, Tax Map Key 5-3-007:011, `Anini Beach LLC pertaining to Transient Vacation
Rentals.
Deputy Director Imai Aiu read memorandum (on file).
Mr. Aiu: If necessary I can read into the staff report.
Chair: Let me check with the Commission, is there any reason he needs to read it? Are
there any questions for the planner? Seeing none 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. Ain: Chair, I would just like to note for the record that for TV-1378-NCU we are
recommending that it be approved as a TVR as was permitted with the lower level being uses
only as an enclosed study and playroom as their permit plans represent.
Chair: So TV-1378 is approved as a TVR in that there is a playroom...
Mr. Aiu: Enclosed study and playroom on the lower level. That is what their plans
represented and that is what we are conditioning them to continue renting it out as.
Chair: And there is no floor plan in our packet that shows (inaudible).
Mr. Ain: There is no floor plan in your packet that shows that. We do have those on
record though if you do need them.
Mr. Texeira: And that is after an on-site inspection, right?
Mr. Aiu: Pardon me?
Planning Commission Minutes 22
April 27, 2010
Mr. Texeira: You did an on-site inspection?
Mr. Aiu: Yes we did.
Mr. Texeira: And based on that you are making your recommendations.
Mr. Aiu: Yes.
Chair: Are there any more questions for the planner? What would be the pleasure of the
Commission?
Ms. Morikami: Mr. Chair, for TVNC-1061 and TV-1378-NCU, move to consent to the
issuance of non-conforming use certificates for these two.
Chair: Is there a second?
Ms. Matsumoto: Second.
Chair: Before I call for the vote is there any discussion?
Mr. Texeira: Yes, Mr. Chair, is it possible that we could somehow recommend that this
applicant's site be inspected now and again? I don't know how to phrase it but if this going to be
a one-time thing we are not going to be...it won't be open to any other inspections unless
somebody from the public complains about it?
Mr. Ain: As the law stands today there are renewals that have to be completed by July
31St of every year. At that time the department can inspect as part of the renewal. We also can
inspect if anyone complains or as part of just compliance.
Mr. Texeira: Would this inspection have to be announced or can it be unannounced?
Mr. Aiu: The inspections always have to be announced.
Mr. Texeira: So can you kind of explain that? How much time do you need?
Mr. Ain: We don't really run off of an ordinance mandated guideline of how much time
you need but basically just as we notify the applicants that we are coming out. Usually we try to
do it in a week.
Mr. Texeira: Does the applicant need to confirm that they received a notice?
Mr. Aiu: Like a written notice?
Mr. Texeira: Do they have to respond to that notice?
Mr. Ain: For inspection, you know if they don't then we are under, we can say that we
cannot renew your application.
Mr. Texeira: But can you inspect? If you send out a notice and the applicant does not,
let's say the applicant is maybe not on the island, right, and you send out a notice and the
applicant doesn't respond can you go ahead and do an inspection based on...?
Mr. Costa: Its usually kind of hard to get inside though.
Mr. Dahilig: The legal option is that the department can always request our office to
initiate a search warrant to the courts to enter the premises and it is always an option in the event
that an individual that does not want to comply with the notice and we can go ahead and compel
inspection, basically under a legal proceeding. We are more than happy to do that.
Planning Commission Minutes 23
April 27, 2010
Mr. Costa: We have done that I believe only on two occasions and that is usually in an
enforcement effort. In the case of an application, I think in this case if the applicant deadline
lapses we probably wouldn't be compelled to get a search warrant to approve an application.
Mr. Texeira: I hear you. I wasn't thinking of something as drastic as that I was just
thinking of just a standard operating procedure from the notice is sent out, can you go ahead and
proceed to inspect let's say within 7 days. Is there something, is there a written thing or this is
just at the discretion of the department when you do the inspection? Is it arbitrary?
Mr. Ain: I wouldn't say so much it is arbitrary. For the sake of staff you want to
schedule it as timely as possible however there is no hard and fast rule of that an inspection must
be completed within x number of days, nor is there any hard and fast rule that says we send out a
notice or nor is it the practice of the department to say we send out a notice, we are coming
Wednesday, deal. We are coming whether you like it or not.
Mr. Texeira: I know it has to be reasonable amount of time.
Mr. Costa: And actually historically we have operated, if we issue a permit or we have a
permit that we have approved and during construction we believe, at least historically, authorized
to do a site inspection. If we have an application alone, I am not sure is authorization. But in all
cases we do ask for permission, it just facilitates the inspection much better.
Mr. Kimura: Do we have to give them an exact date that the inspection will take place?
Mr. Costa: Usually if we want to go inside, yes, we have to make arrangements for that.
Mr. Kimura: So if these guys are doing something illegally, again, we let them know we
are coming in next week Friday, they have from now until next week Friday to take out the
stove, take out the ice box.
Mr. Costa: Essentially yes. I think the flip side is if we were to just without
authorization enter the house I think we would run all kinds of exposure.
Mr. Kimura: What if the residence is home and they are already notified that you guys
will be coming out and not give them a certain time or certain date, within the month of May we
will be coming out. So that way if they do take out the stove they can't rent it out for another
month. Do you know what I am saying, because they are going to leave it out for a month not
knowing when you guys are showing up?
Mr. Costa: I think it is easiest to say if someone was trying to make arrangements to
come out to your house you wouldn't appreciate them not announcing it.
Ms. Matsumoto: I think that is an interesting point because I got a notice or my father
got a notice on Oahu about working being done on the road in the area and it said a certain
period it is going to take place within this certain time. And within this certain time we have to
make all these different provisions because of the work and it was not specific and so my father
had to live like that for that entire period.
Mr. Costa: But that was more a function of delivering a service as opposed to legal
consequences. We are fixing your road so...as opposed to we might render your house illegal.
Mr. Kimura: No, you give them notice that you will be coming by but just not on Friday,
just one day in May.
Mr. Costa: Well we have done that. An example would be a certain project in
(inaudible) had a number of units, it was almost impossible to pick a certain time so we just said
over a certain period of a certain couple of days we would be inspecting all of them so we have
done that.
Mr. Kimura: You know where I am going with that.
Planning Commission Minutes 24
April 27, 2010
Mr. Costa: Yes and the courtesy and disclosure I guess almost facilitates the cat and
mouse game.
Chair: We can talk about that all day so, sorry.
Ms. Morikami: I was going to continue talking about that. I was just wondering if upon
submittal of their permit request they could sign a form that says this authorizes the Planning
Department inspector to inspect the unit four times a year.
Chair: My question to that would be being that we just approved the amendments that
are going to Council wouldn't it be prudent to add that information in that amendment that we
just approved regarding the TVRs?
Mr. Costa: We could I guess.
Mr. Kimura: Or you could go to Council when they have their meeting and bring that up.
Chair: Personally I would rather act as a body and not as an individual.
Mr. Costa: It has more impact and I guess credibility as a body. To do that though you
would have to go through reconsideration?
Chair: We could reconsider and add that amendment to just approve that amendment.
We always talk about that same issue so in the best interest of always this issue coming up about
when the inspector can go it would be prudent to add that information now to the one we just did.
Ms. Morikami: Does the attorney have anything to say?
Mr. Dahilig: I would say that it is standard for some permits to already have the
applicant agree to an entry without for instance a warrant and search. These certificates are
likened to those permits and generally if it is a condition of the certificate and I think this is
where you are trying to go Commissioner Texeira. Then obviously they would have to let the
inspector in. But I think for the purposes of this discussion right now I don't think we have or
are able to ascertain whether the applicants are at this point willing to give up their right to
having a warrant search and allow warrantless searches to happen. So I think it is definitely
something you can look at down the line but that would probably have to be a discussion and
facilitation between the applicant and the department.
Mr. Kimura: If they are not doing anything wrong they wouldn't object, right?
Mr. Dahilig: Well that is what it is. In legal terms, it is what it is.
Mr. Blake: If someone complains that there is an illegal act occurring then you have
probably cause to go to the court to get a search warrant and if they are not there then you can
forcefully enter.
Mr. Dahilig: Exactly.
Mr. Blake: Because it is like any other crime. But if the purpose of the inspection other
than to detect crime is enforcement then we should do it in a manner that does not unreasonably
inhibit us from proper enforcement. Everybody, I mean it is like an article of faith that while
most of the people who conduct these vacation type activities are legal there is always that
percentage, and it is not a small percentage, that will be playing this cat and mouse game. I
thought I, I can't refer specifically but aren't they supposed to have someone who is available
2417, an agent? So you call the agent and say hi, I will be down there tomorrow or today, well
tomorrow, not in the next minute. But it has to facilitate inspection, not just we are going there
because we have to come and check the box off four times a year. So to me I don't think we
need to codify inspection shall be preceded by certified mail return receipt request and on and on
and on. I mean the purpose is to inspect to make sure you are doing what you are supposed to be
doing and so again, reasonable but the cat is never going to tell the mouse when it is coming.
Planning Commission Minutes - 25
April 27, 2010
Mr. Costa: As a matter of clarification, did I hear correctly that a complaint is grounds to
get a search warrant?
Mr. Blake: Yes but the warrant allows you to, if the judge...
Mr. Costa: We would have an awful lot of search warrants.
Mr. Blake: If the judge finds probable cause then he will issue the warrant and then you
can enter forcibly if you have to.
Mr. Costa: I guess we have operated on the basis that we needed to exhaust
administrative remedies, namely, ask first. But wow, we could get a lot of search warrants
based on complaints.
Mr. Blake: I mean it is not easy to get a search warrant.
Mr. Dahilig: Obviously based on the complaint our office would have to make a case to
a judge why there is probable cause that a violation is occurring outside an area that we can't
visibly see and that we need entry into a dwelling or even let's say a suitcase or something. And
so our office is prepared should the Planning Department want to have us pursue warrants for
these types of un-noticed searches. But I think that is going to require a discussion further with
the Planning Department whether as a matter of practice you as a Commissioner would like to
see more surprise enforcement versus noticed enforcement.
Mr. Blake: You have to give the judge probably cause, you can't just call up and say
because you don't like them, say I see smoke coming out of the windows and I assume they are
frying eggs in there. It has got to be convincing, sufficiently convincing to the judge. He is not
going to just willy-nilly issue search warrants. Those are difficult to obtain and they should be.
But as far as other inspections you can call and tell them you are coming, call the agent who is
supposed to be available 2417, give them a reasonable time to meet you down at the premises and
go down. We are not going in to make sure that it is clean and neat and so forth, we are just
looking to enforce the conditions that they are supposed to be present and observing as a means
of continuing this non-permitted use, or what do you call them, NUCs.
Mr. Dahilie: Non-conforming use certificates.
Mr. Blake: Non-conforming use certificates, that is all, and hopefully every time we go
down there they are in compliance. So I think in order to give aloha you have to get aloha back
too, it's not all one sided.
Chair: Any more discussions regarding the inspection process? So there is a motion on
the floor to approve the memorandum for these two transient vacation rentals, and second, so is
there any more discussion? If not I will call for a roll call.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to
consent to the issuance of Non-conforming Use Certificates, TVNC-1061 and TV-1378-
NCU, motion carried by the following roll call vote:
Ayes: Kimura, Blake, Morikami, Matsumoto, Texeira, Raco -6
Noes: None -0
Absent: Nishida -1
Not Voting: None -0
ADJOURNMENT
Commission adjourned the meeting at 2:19 p.m.
Respec ally Submitted.
Lam Agoot
Commission Support I k
Planning Commission Minutes 26
April 27, 2010