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HomeMy WebLinkAboutpcmin06-08-10 KAUAI PLANNING COMMISSION REGULAR MEETING June 8, 2010 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, Caven Raco, at 9:07 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 Mr. James Nishida Ms. Camilla Matsumoto Discussion of the meeting, in effect, ensued: APROVAL OF THE AGENDA Chair: Can I get an approval of the agenda? Mr. Texeira: So moved. Mr. Nishida: Second. Chair: All those in favor say aye, motion carries. On motion made by Herman Texeira and seconded by James Nishida, to approve the agenda, motion carried unanimously by voice vote. Chair: There will be a revision on the agenda on item F.3.b, we will move that up to E.3 so we will hearing both at the same time with separate motions. For the record can I get a motion for receipt into the record? Mr. Nishida: So moved. Mr. Texeira: Second. Chair: All those in favor say aye, motion carries. On motion made by James Nishida and seconded by Herman Texeira, for receipt of items into the record, motion carried unanimously by voice vote. GENERAL BUSINESS MATTERS Request to Withdraw Special Management Area Use Permit SMA(U)-2008-12, Use Permit U-2008-7 and Class IV Zoning Permit Z-IV-2008-9 and Request to Refine Building Setback Line Established by Condition 4 of Special Management Area Use Permit SMA(U)-82- 2 as it affects Lot 17, Crater Hill, Kilauea, Kauai, further identified as Tax Map Key 5-2- 004:090, and containing a total parcel area of 5.385 acres = Mark Hurt. Staff Report pertaining to this matter. Staff Planner Lisa Ellen Smith read staff report (on file). Planning Commission Minutes June 8, 2010 1 JUL 13 2010 Chair: Are there any questions for the planner regarding the withdrawal? If not, is the applicant here, if the applicant wishes to add anything. Mr. Avery Youn: Good morning, my name is Avery Youn. I am the authorized agent for the applicant. Could I put up some exhibits before I begin? Chair: Sure. Mr. Youn: This property has been for sale for several years and when the applicant found out it was going to be taken off the market, this is after the Commission gave the extension for the previously approved residence, it was going to be taken off the market and the previous owner was going to build that house on there. This applicant reviewed the plans before it was taken off the market and after reviewing the plans he concluded that the design of the residence was not appropriate to the character of the Crater Hill Subdivision, it was too modern and the footprint was too big and it was too high up on the hill. So he purchased the property to prevent this residence from being constructed on that site. Another reason is because it would significantly impede into the view plane from his existing house which is on the adjoining lot to the west, it would impede his view plane and that is the reason for the purchase. The house that was proposed to be constructed was 5,800 square feet, that would have been the building footprint and although there is a 25 foot height limit on the North Shore because it was constructed on a slope it consisted of 3 stories because of the basement level. And on the lower end it would have been about 33 feet high which would further impede the view plane not only from his house but from the surrounding residents as well. Therefore the main purpose of this application is to protect the scenic view planes. It is to prevent construction of a residential design that the applicant believes is inappropriate to the Crater Hill setting. And the third reason is to allow construction of a smaller, lower profile, unobtrusive animal barn at a lower elevation. It would be a lot less visible from the neighboring residents with less interference into existing scenic view planes as compared to the previously approved house. In order to accomplish this, an adjustment to the building setback like is necessary. Can I go to the board? I know this map is small scale, I think you all have it in your packets. This is the subject lot right here. This lot here is where the applicant has his existing house. This lot here is a lot which a previous Commission in the 90's relocated the setback line so you do have precedence. This one here is a proposal of how the existing setback line is, this upper part being the buildable area, this lower part being un-buildable. This green line shows how we want to adjust the line. This area here is where the 5,800 square foot residence was proposed to be built. This are down here is how we adjusted the setback line to show where the barn could be at a lower elevation. This shows a super imposition of the barn from the road across the valley. This is called Pali Moana Road where their existing house is. The bigger house was supposed to be located right at this location up here, the barn is here. This drawing is a little out of scale, the barn is a little too high. It should be about there. I believe in your packet if you look at exhibit 14 there is a letter in there showing what I explained up there that the setback line was removed almost for the same reason, it lowered the buildable area to a lower elevation similar to what we are proposing here. The previously approved initial design would have been extremely visible from across the K-11auea River also and the Kahili Makai Subdivision as well as Kahili Beach, better known as Rock Quarry. The barn is not visible from the beach when we went down there to check back to take pictures. We didn't do it because it was not visible at all. The residence that was proposed to be built there would have been visible. So in this case we are trying to improve a view plane situation by lowering the elevation of the buildable site and minimizing the size of the barn so that it is not visible from the beach and from across the beach access road going down to Rock Quarry. The beauty of this application is that it will prevent an inappropriately designed house to be built while preserving scenic view plane for the applicant and his neighbors and the surrounding residents around his area. The intent of the withdrawal of the previous application is that this applicant does not want to build that house, nor does he want it seen at that elevation, at Planning Commission Minutes June 8, 2010 2 this location. He thinks that the size and the design is too big, he prefers to build a barn only, at a lower elevation and the barn is only 830 square feet I believe and 17 feet high. So we think overall substituting a small barn for the residence, this barn of which is about 15% the size of the proposed larger residence. We think it will be better for that area. It will not impede on anybody's view plane. Lowering the building setback line does not go into any kind of drainage area, the site is big enough, it is two and a half acres, I believe, whereby there is more than enough room to relocate the building setback line. One more important thing is that the building setback line, where we pulled it down to include the location of the barn, we eliminated a portion of it. I believe the current buildable portion on that side is 2.2 acres with the revised setback line has been reduced to 1.7 and pulled down to a lower elevation. On the SMA conditions originally in establishing this building setback line I remember clearly that one of the reasons why this line was set at that location is it was taken from the view from Kilauea Town and the elevation there topographically is around 300 to 320 feet above sea level. It was taken through there and the line was shot so that nothing would have been protruding over and above the horizon line when viewed from Kilauea Town and that Kilauea Town topography is around 300 to 320. I believe this proposal is around 180 so we are well below the topography knowing that it won't be visible at all from the town and from the parking area. In saying that we know clearly that the original intent of the SMA condition on establishing the building setback line is still valid, this relocation or adjustment to the setback line will not need to make any kind of corrections to the original SMA conditions or approval. With that, do you have any questions? With me today is Bruce Wale, he a representative of the owner also and he is the designer for the barn and for the remodeling if the residence next door. Mr. Nishida: The owner is not giving up the rights to build, just the existing application. Mr. Youn: That is correct. He is not giving up that right he is just trying not to allow the approved house from being built in that location. Mr. Nishida: So any further building would have to come and start all over again. Mr. Youn: Any further would have to come before, you can make it a condition now that any further residence on this site must come before this Commission because we all know that the first residence is exempt from the SMA. But I believe us coming through you know, you can require such a condition. Mr. Nishida: Question for Lisa Ellen. Process wise the things that we have to approve is the request to withdraw the various permits and the refinement of the building setback line. The barn its self is handled within the department, not in front of us. Staff: This is actually located in Open STR, Open Special Treatment Resource and therefore it requires, as I understand it, a Class IV and a Use Permit and has an application, E.3.a, however I am not able to locate a copy of my report in here. It is to be heard later today or the barn specifically and I did write a condition within that report that was very specific as just permitting this barn if the Commission agrees to the withdrawal and the setback line refinement. Mr. Youn: Excuse me, you can correct me if I am wrong but if I understand the CZO a barn is a permitted use in the Open zone. The Use Permit is for the Open Special Treatment Resource District and that usually Class III Permit procedure however the department has opted to run it through a Class IV. Chair: Any more questions for Avery? Mr. Blake: So the barn does not suffice as one of the homes for the density that is allowed? It is just an accessory building? Mr. Youn: In my review of these plans this is a real barn, there is not bathroom, there is only a barn space, no plumbing. Planning Commission Minutes June 8, 2010 3 Mr. Blake: So a house could still be built there. Mr. Youn: A house could still be built because it is an entirely separate lot. Not this house though and you will have the right to review any other future house that comes on this site. Mr. Texeira: Avery, as you mentioned we have the right to review any other project on that site that comes before us. My question is, what can we do as a Commission when they do come to us, if they did? Mr. Youn: Well I am not sure if you agree with this applicant but if you review the exhibit before you of the house that was proposed here is very modern and contemporary in design which may not be appropriate for Crater Hill. And even the size was quite big for its prominent location on this site. So should another proposal come in for a residence at this site at least this Commission could assure that it is a lot more compatible. I am not sure if you can limit size and such unless the applicant represents that or puts in a deed restriction that it shall be no greater than x number of square feet. Mr. Texeira: Because if the property was sold at some point the new landowner could come in with their own plans, right? Mr. Youn: A new landowner could come in before you and ask for another house within this buildable area. I wondered about this same issue because in asking to relocate a setback line so that you don't build a house or prevent someone else from building a house and maybe you should consider not building there also. However this applicant has represented that he is building only a barn and he has no intent to build a residence there but he did not want to give up his bundle of rights you might say to allow a future residence on that site in the event he does have to sell it later. But at this point in time he has no intention of selling it. Chair: Any more questions? Avery, I had a question, the red line is the proposed, right? Mr. Youn: Correct, the old one for this site, for this lot 17. Chair: The new one is the green one. Mr. Youn: The new one is the green one. Chair: So that would actually allow the house to be built more on the slope then. The buildable area would be more on the sloping side, right? Mr. Youn: Yes, at this point barn but maybe future house. I am not sure what is going to happen in the future but that buildable site would allow it to be at a lower elevation. Ms. Matsumoto: It might be in here but just out of curiosity what kind of farm animals are you talking about? Mr. Youn: Its miniature horses. There is a lady with miniature horses now that is trying to get rid of her horses and this person is going to take it over. I can't remember her name but he is going to take her horses and house them at this location, Jeanine Hayshitake. Chair: Is there anybody in the public that would like to testify on this agenda item? Seeing none, Lisa Ellen, on this proposed refined setback line, on your site visit on May 24 were you just looking at the floodway elevations or were you looking at building heights or proposed building heights? How did you determine that? Staff: I went to the site which has done some clearing and grading for surveying purposes to get to survey the line so the whole boundary of the property has been cleared. So I inspected and where they proposed the site which is kind of in a valley or if you look at this it appears to be more located in the valley area because it is out of sight. And then I went across to Planning Conunission Minutes June 8, 2010 4 Wailapa Road and I could see back and looking back where it would be based on the fact that I could see the grubbing and the exposed dirt. Chair: So it was just based on... Staff: They had cited the proposed building and then I looked from across the way as well. Chair: But as far as the proposed building setback line that is just determined here on the maps? Staff: They had staked it out as well. Chair: How did they stake that out? Staff: Stakes with flags. Chair: So they just made a curved line out there or how did they do that? Staff: There is a stake I would say and I hope the applicant if they want to jump in, was staked I would say every 20 or 30 feet, roughly, so they could get a line of sight. Chair: And you don't have any pictures of that? Staff: I do. I unfortunately did not have an opportunity to prepare exhibits for this but I can present pictures later today if you would like. Chair: It just seems the new setback line is more on the hillside even though the proposed barn is on the lower side. I mean if they come back and build a home, they do have the right if I am correct? Staff. Correct. Chair: They wouldn't be able to build on the higher elevation like where the existing setback is. It pushes the building area down the slope. Staff: That is correct and it will still have to come in, any residence on the lot will still have to come in for a Class IV use permit. Chair: But the set back is what we would be approving today and it would allow them to be more on the hillside. Staff. Yes. Mr. Texeira: I am just wondering what the trade off is. Chair: I understand that the barn is on the lower side now but in the future the building site will be on the hill. Staff. Correct. Chair: Are there any more questions for the planner? Would this have to be two motions, one to withdraw and another to do the refine? Mr. Jung: Yes, that would be the cleanest way if there were two motions, one to withdraw and one to approve the refinement of the setback. Ms. Mor kami: I was just wondering about ...I am waiting for her conclusion and recommendation. Planning Commission Minute June 8, 2010 5 Chair: You can read the recommendation. Staff Planner Lisa Ellen Smith read conclusion and department recommendation (on file). Chair: Are there any questions for the planner? Do you have those pictures? Do you have to print them out? Staff: I would have to print them out, yes. Chair: Do you guys want to see the pictures? Mr. Texeira: Yes. Chair: We will take a 5 minute break and you don't have to print out all of them, just the reference of it and then we will come back. Commission recessed at 9:35 a.m. Meeting was called back to order at 9:48 a.m. Chair: Commissioners, there are some pictures. I think Hartwell you have the pictures in front of you for the staking and also on the board. With that if there are no more questions what I would like to do it is probably defer this agenda item so if I could get a motion to defer. Mr. Nishida: So moved. Ms. Morikami: Second. Chair: All those in favor say aye...what I am going to do is defer now and then bring up item E.2 regarding the barn and then we will go back and then do separate motions. Mr. Jung: And for the record Commissioners the public hearing was notice at 9:00 for this and not 1:00. Chair: All those in favor say aye, no, motion carries. On motion made by James Nishida and seconded by Paula Morikami, to defer action, motion carried unanimously by voice vote. Chair: So if you could read the report for item E.2. Use Permit U-2010-16 and Class IV Zoning Permit Z-IV-2010-18 to permit a barn in the Open (O)/Special Treatment-Resource (ST-R) District within Sea Cliff Plantation on Makanaano Drive Uprox 25 miles from the intersection of Pali Moana in Ki-lauea further identified as Tax Map Key 5-2-004:090, and containing a total parcel area of 5.385 acres = Mark Hurt. Staff Report pertaining to this matter. Staff Planner Lisa Ellen Smith read staff report (on file). Chair: Are there any questions for the planner? Mr. Nishida: Lisa Ellen, did we get anything back from engineering? What have we gotten back for this particular permit? Staff: There was a supplemental submitted today we received for this project, State Department of Health and Historic. Planning Commission Minutes June 8, 2010 6 Mr. Nishida: My question is I have seen some house lots and I look at them and I wonder who approved that lot because it is stuck on the side of a hill or on a cinder cone and that kind of thing. By approving this building site we are not saying... what do they have to comply with as far as the erosion and that kind of thing, the safety of building on a slope on highly erodible soils and that kind of thing? Because we don't approve that, right, we are approving a building site. Staff: That is correct. Mr. Nishida: So who does that? Ian, is that engineering? Do they have standards for construction on a slope? Mr. Costa: That would come up in the building permit approval as to whether any grading would be involved and what the standards are for doing that grading and likewise erosion control. Mr. Nishida: It is part of the grading permit. Mr. Costa: If the building permit or if the proposal on the building permit involves or requires grading, yes and typically on a slope lot it would. Mr. Blake: But on this one in the farm plan I think one of the comments was that it is highly erodible and if it is a farm they don't really need a permit to plow, right, and turn the land and cultivate. Mr. Costa: If they get approval of a plan with the Natural Resource and Conservation Service they may be exempt for the Ag. activity but that doesn't include the associated grading for the construction of structures. Mr. Blake: So are Best Management Practices imposed on a farming operation? Mr. Costa: I believe in our Natural Resource and Conservation Service plan it would, yes, and if it didn't then it wouldn't have that exemption and it also would through the grading permit. Mr. Blake: I was just wondering because the soil in and of its self isn't the most highly productive. Because it is Ag. zoned we have to have an Ag. component to their property and so they have to grow grass, sod, palms, and limes as I understand it. Mr. June: Actually I think you are talking about another project. That is the Dechka project. This is the Hurt project. This I believe they are doing miniature horses. Mr. Blake: Okay, I will save that question for the next one. Chair: Any more questions? Ms. Matsumoto: The horses, I don't know who to ask this of, I guess the applicant. What are they going to eat? Are they going to bring in the food? Are they going to grow vegetation for the horses? Chair: We can probably take that question when I call the applicant up. Any more question for the planner? Mr. Nishida: I would like a clarification. I think that a grading permit is required no matter how big a grading... there are certain standards as far as how much you grade whether it is agricultural or building or whatever. But I think you have to get one from either Resource Conservation Service or the County, Ian that is a requirement if you are doing a certain size, I just want clarification, you cannot just grade because it is Ag. lands you don't have to get a permit. I think you have to get a conservation plan or a grading permit if you are going to... Planning Commission Minutes June ll, 2010 7 Mr. Costa: That is correct. Mr. Nishida: But the size of each requirement is different like the grading permit for the County is like 1 acre or so many tons. Mr. June: I think the standard is the 100 cubic yards or cubic feet, one of the two. Mr. Costa: 100 cubic yards. Mr. Nishida: And that is the County's grading standard. Mr. Costa: Correct. Mr. Nishida: But we don't know what the conservation plan requires, we don't know what the Resource Conservation, I think it is Resource Conservation, we don't know what their requirements are. Chair: Any more questions for Lisa Ellen? If not let me call the applicant up to address Cammie's question. Mr. Avery Youn: My name is Avery Youn representing the applicant. Can I go to the board and explain the pictures first? These are the pictures of the site. The first picture is taken from the end of the cul-de-sac right over the edge and looking down this grass strip here. This first picture actually is the buildable area which is this red line however it goes much further down below. You mentioned what are the horses going to eat. This part is going to be converted to a pasture for the barn. This second picture is a stake where the barn is to be located and if you look at this one, this stake is situated right about where that barn is. If you look at this lower picture here you will see a little graded area and that stake is where this graded are is. It was just cleared so that we could stake out the property. This next stake here shows the existing building setback line. If you look at this picture here that stake is situated way in this corner here which would be about here, right here. This bottom picture here just shows the view from Pali Moana Road which is the same view as this one. You can see where that little grey area is, where this stake is, where the barn is proposed to go. Chair: Any more questions for Avery? Mr. Nishida: Avery, regarding the grading, the conservation plan or the grading permit. Do you have a problem with putting that as prior to building permit compliance with the grading ordinance? Mr. Youn: During the building permit procedure we have to comply with it anyway and I believe it is 100 cubic yards or more triggers the grading permit and we go up to 150 cubic yards of removal or excavation or fill of which we are not going to go beyond it anyway. Mr. Nishida: So for the building permit that is clear. Mr. Youn: Yes. Mr. Nishida: I was thinking about for the removal of the other trees in that area. I guess that would be a conservation plan or whoever does that because it is Ag. land. Mr. Youn: Usually the Soil and Water Conservation Service but in this case it is probably not going to be necessary unless we clear and grub but we probably have to go through the grubbing permit process if we are going to put more grass in there. Mr. Nishida: So that is going to be with the County. Mr. Youn: Yes. Also in addressing the barn its self we know that the Special Treatment Resource was put in there because this is a major landmark on the North Shore. Crater Hill is a Planning Commission Minutes June 8, 2010 8 prominent land feature and I believe that is the reason it was put in there and more so now because we have the wildlife habitat right next to it. In fact it is right above this lot halfway up that hill. If you stand on this lot you will see the Shearwaters walking up around that hill and Nenes all over, even on this property so that is why I truly believe the landmark or Special Treatment Resource was for that purpose, the landmark and the bird habitat. And if this barn is to impact any of that I think it is better than what was proposed before. We took it out of the view corridor, we lowered it, and we made it a lot smaller so it doesn't interfere with the landmark designation or the wildlife habitat. As far as feeding I know they are both, not necessarily grain fed but hey fed, and there will be pastured areas for them to graze in. There is also going to be two pigs and two goats. You have to understand what this man does for a living, he works for Disneyland. Chair: So he is a true farmer. Mr. Youn: Any more questions? Ms. Morikami: I have one regarding the bathroom. Mr. Youn: Yes, I forgot to address that. I am sorry I said earlier that there will be no plumbing. There has to be plumbing to water the animals. The bathroom if you look at exhibit 9, it shows ...the toilet is not drawn in there but the extension on the outside of that barn there is a little room with an outside door, it is going to be a toilet only. And the reason is because the main house is over 1,000 feet away. There is no shower facility or anything else in there, just a toilet. Chair: Is there any intentions for living quarters there? Mr. Youn: No. It is not designed for that. I would like to add that we forgot to mention earlier what we represented that it should be made a condition that any future residential development on this site shall require Planning Commission design review and approval through a Class IV Zoning Permit. Chair: Any more question for Avery, thank you Avery. Is there anybody in the public that would like to speak on this agenda item? Seeing none if it is okay with the Commission I will have the planner read the recommendation and if I could have a motion to close the public hearing on this agenda item. Ms. Morikami: So moved. Ms. Matsumoto: Second. Chair: All those in favor say aye, no, motion carries. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to close public hearing, motion carried unanimously by voice vote. Staff Planner Lisa Ellen Smith read department recommendation (on file). Chair: We will hold off on that condition and that amendment, are there any questions regarding the recommendation from the planner? If not I will go back to item E.1 for a motion to withdraw Use Permit U-2008-12 and Use Permit U-2008-7 and Class IV Zoning Permit Z-IV- 2008-9. Mr. Nishida: So moved. Mr. Kimura: Second. Chair: Any discussion? Planning Commission Minutes June 8, 2010 9 Ms. Matsumoto: There was in another application, I circled it but I can't find it, a reference to encouraging, we can't require but we can encourage green practices in building. It was really nicely written, can we add something like that? Staff: I believe we can. Someone had the condition. I believe that is in the Anaina Ho report. Chair: Is that the only condition that you... Ms. Matsumoto: I'm sorry. I am out of place here. Chair: That is okay, this is just for the withdrawal. What I am going to do is ask for this motion for withdrawal and then a motion to either approve or deny the setback reconfiguration and then we will go back to the main motion on the barn. Or not main motion but then go to that after, it is going to be three parts. So the first part for the applicant to withdraw so if there is no discussion, all those in favor say aye, opposed. On motion made by James Nishida and seconded by Jan Kimura, to withdraw U- 2008-12, U-2008-7 and Z-IV-2008-9, motion carried unanimously by voice vote. Chair: Next would be to approve or deny the refinement of the building setback. Ms. Morikami: Mr. Chair, move to approve the request to refine the building setback line established by condition 4 pursuant to the recommendations of the Planning Department. Chair: And those recommendations have been read, is there a second? Mr. Kimura: Second. Chair: Any discussion, all those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Jan Kimura, to approve staff report regarding refinement of setback, motion carried unanimously by voice vote. Chair: We are back to the barn regarding Canarie's comment. What we could do is have a motion to approve or deny and then go into discussion and then add or delete amendments. Ms. Morikami: Mr. Chair, for item E.2, Use Permit U-2010-16 and Class IV Zoning Permit Z-IV-2010-18, move to approve pursuant to the recommendations of the department as requested by the applicant. Mr. Kimura: Second. Chair: So now we are in discussion so we are back with I guess the first order of business was that amendment by the applicant as represented to add the review process. Mr. Costa: I guess I would just recommend that the Commission take the applicant's representative up on his suggestion or offer to include that condition that any future construction proposal or project or proposed structure be required to come to the Commission for approval via a Class IV. Chair: And design review. Mr. Costa: And design review. Chair: So if the planner could read that added condition. Planning Commission Minutes June 8, 2010 10 Staff: "Any future residential development on this site shall require a Class IV Zoning and Use Permit and design review by the Planning Commission." Mr. Nishida: You want a motion to amend? Chair: We can motion to amend. Mr. Nishida: Move to amend as read by the planner. Ms. Morikami: Second. Chair: All those in favor for that amendment to be added say aye, no, motion carries. On motion made by James Nishida and seconded by Paula Morikami, to amend staff report, motion carried unanimously by voice vote. Chair: Any more amendments? Ms. Matsumoto: I found it. It is in the Anaina Ho packet on page 8. It is the Planning Director's report. Chair: Do you have that condition Cammie? Ms. Matsumoto: Let me take a 5 minute recess so the planner can catch up and maybe get a copy of that. Commission recessed at 10:17 a.m. Meeting called back to order at 10:31 a.m. Chair: There is a proposed amendment. Do you want to read that language for the Commissioners? Staff: Commissioner Matsumoto asked that I read this really well written statement from another report from a conclusion and then the condition if you don't mind. This is from a separate report, "While there is no State or County legislating mandating leadership and energy environmental design lead certification or any other of the like such as green globes it may be appropriate to officially encourage the applicant to certify the site's respective building as a LEED rated or other State approved nationally recognized consensus based guideline stand or system so as to further promote environmental responsibility in sustainable design. Such certification is in keeping with sustainable and environmental (inaudible) embodied within... "again, this is from another report and I want to thank Kaaina Hull for writing that. The condition as suggested by the Commissioner is the following; "The applicant is encouraged to design the construction of the building to meet or exceed leadership and energy design certification or other comparable State approved nationally recognized consensus based guideline standard or system." Chair: With that are there any comments or questions? If not if anybody wants to motion to add that. Ms. Matsumoto: I move to add that condition as read by the planner into the conditions. Ms. Morikami: Second. Chair: And that would be condition No. 10, all those in favor say aye, opposed. On motion made by Camilla Matsumoto and seconded by Paula Morikami, to add condition No. 10, motion carried unanimously by voice vote. Planning Commission Minutes June 8, 2010 ti Chair: Any more amendments before I go back to the main motion for approval as amended, all those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Jan Kimura, to approve staff report as amended, motion carried unanimously by voice vote. Building Location Material and Final Design Review for a Single-Family Residence on Lot 12, Wainiha Subdivision 1 1, and further identified as Tax Map Key 5-9-009:051 = Craig Dobbin. Staff Report pertaining to this matter. Staff Planner Lisa Ellen Smith read staff report (on file). Chair: Commissioners, as we read through the content and the remarks from the planner are there any questions regarding her revised report, if not I will call the applicant up. 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 in this matter. I will get to this when I have to get to it as far as the display however first of all I would like to commend the staff for the comprehensive report that they gave setting forth the conditions and how these conditions have been met. We are once again before you pursuant to SMA(U)-84-2 and Subdivision S-84-58 which contain a number of pertinent conditions. I thing very briefly a brief history on this probably set the tone of where we are and why we are here today. The SMA and Subdivision approvals for this subdivision were given in 1984. The shoreline for lot 12 was surveyed in December of 2008 with the State surveyors adopting the crest of the beach dune as the shoreline. Caren Diamond and Beau Blair appealed the certified shoreline and after several extensions of time to act the Board of Land and Natural Resources, on June 19, 2009, confirmed the shoreline and dismissed the appeal. The shoreline was then certified as being the crest of the beach dune on June 25, 2009, valid for a period of one year. On July 20, 2009 Diamond and Blair filed an appeal with the Fifth Circuit Court. In the meantime Mr. Dobbin had his residence designed based on the certified shoreline and submitted it to the Planning Commission for design review and approval on August 28, 2009. By that time because of the problems dealing with lot 6 and b&. Brescia the department changed its procedure to a two-step process. Instead of giving final approval they said we were going to get preliminary approval with these conditions and with a final approval thereafter. So on October 27th the Planning Commission approved the proposed site and design with the conditions elaborated by the staff. The Planning Commission at the time also approved the shoreline setback determination of 70 feet from the certified shoreline for lot 12. Mr. Dobbin then proceeded to meet the conditions for the preliminary approval such as obtaining comments and consent of the Department of Land and Natural Resources as to the landscaping, doing the archeological inventory survey and having that approved by the State Historic Preservation Division. On April 16, the Fifth Circuit Court reversed the State surveyor's determination and remanded the matter back to DLNR for redetermination certification within 45 days. At the Planning Commission meeting on April 13, 2010 the Commission voted to defer action in view of the court's decision. On May 21, 2010 the Board of Land and Natural Resources issued an amended Findings of Fact, Conclusions of Law, and Decision and Order which approved and affirmed the shoreline as certified on July 25, 2009. In other words the State surveyor's office went right back to the same line it did the previous year. The appellants have filed a notice of appeal with the Fifth Circuit Court appealing the Board of Land and Natural Resources amended Findings of Fact, Conclusions of Law, and Decision and Order. This appeal was filed on May 25, 2010. So with that brief history what are the issues before you today? First of all I think where is the shoreline? There is no question that the shoreline has been approved, affirmed, and certified to be that which was published for certification on June 8, 2008, which is the same Planning Commission Minutes June 8, 2010 12 shoreline that was certified on June 25, 2009. In anticipation that the appellants may argue that the June 25, 2009 certified shoreline was vacated by the Fifth Circuit Court and therefore there is no current certification I would respond as follows. The amended Findings of Fact, Conclusions of Law, and Decision and Order of the Board of Land and Natural Resources of May 21, 2010 specifically states, "The certified shoreline as delineated on the shoreline survey map that was published for certification on June 8, 2008 is hereby approved and affirmed. The Chairperson of the Board of Land and Natural Resources hereby enters a final certification of the shoreline pursuant to the revised shoreline survey map that was published on June 8, 2008." Basically what they are saying is this is the shoreline and we are certifying it to be such. I would note that the decision by the board of Land and Natural Resources in its amended Findings is not the same thing as the first publication for shoreline certification. If you go in for the first time they publish a proposed certification in which there are public comments and from there the department makes a decision where the shoreline should be. This recertified shoreline is the result of an appeal which was determined first by the Board of Land and Natural Resources and appealed to the Circuit and then reaffirmed upon remand. There is thus no requirements for publication of the proposed shoreline in the environmental noticed. The appellants may also attempt to argue that there is no certified shoreline without a map indicating the certified shoreline. I submit that the pendency of the map should not hold up the process in this case. The condition of approval is that at the time of building permit application the applicant shall provide the Planning Department with a valid shoreline certified by the State of Hawaii. The language in the Board of Land and Natural Resources amended Findings of Facts, Conclusions of Law, and Decision and Order of May 21, 2010 indisputably shows where the shoreline has been certified. The map is a tool to locate the shoreline as certified. Also, the condition is not that we have to show a current shoreline certification at the time of your approval, it is at the time that we apply for a building permit. The appellants may also argue that the latest certification is not according to the court's order that says vacated and remanded back to the State surveyor's of Board of Land and Natural Resources for taking a second look at it and coming back again with a certification. We don't agree that the latest certification was not in conjunction or not in compliance with the court's order. However, this is a matter between the State Board of Land and Natural Resources and the Fifth Circuit Court. If the appellants feel or the interveners feel that the court order was not followed then it doesn't affect you, it affects DLNR stating it's position why before Judge Watanabe again. This should not hold up this process. So at that point in time the next issue I think is, can the Planning Commission proceed to grant final approval at today's meeting and we say the answer is clearly yes. The law is clear; there is no stay of an agency's decision merely because an appeal has been filed. Chapter 91 is the Hawai `i Administrative Procedures Act and section 91-14(c) of the Hawaii Revised Statutes clearly states that, quote, "The proceedings for review shall not stay enforcement of the agency decision or the confirmation of any find as a judgment pursuant to section 92-17(g). But the reviewing court may issue a stay if certain criteria have been met." The language specifically says it is not the agency that issues the stay order it is the reviewing court. So unless and until the appellants can persuade the Fifth Circuit Court to issue a stay order you must continue to act according to your duties and responsibilities as though there is no stay. To stay the proceedings without a court order would be against the express language of section 91-14(c) of the Hawaii Revised Statutes. The appellants may argue that not delaying the process would enable Mr. Dobbin to vest his rights. That is true. But it is also the process. Mr. Dobbin has been for more than a year and a half trying to get approval for his single family residence in a subdivision in which there are a number of other residents already built. He has followed the law. He has met all required administrative and judicial processes. He has relied upon and met all of the conditions of the preliminary approval given to him on October 27, 2009. There is no reason why Mr. Dobbin should be denied his final approval just because the process might give him vested rights. This is the entire basis for vested rights where a person gets approval and begins to rely on those approvals. Otherwise and in violation of law Mr. Dobbin's constitution and statutory rights to enable him to seek and gain approvals in a orderly and expeditious manner and enjoy a reasonable use of his property will clearly be violated. Planning Commission Minutes June 8, 2010 13 The third issue, should the Planning Commission grant final approval. I must be remembered that the Special Management Area permit for this entire subdivision has already been granted. It was granted back in 1984. It is only because of certain conditions on that permit that we are here before you. So what is Mr. Dobbin proposing, he is proposing a single family residence that is set back 70 feet from the certified shoreline. This is almost half of the lot's depth. The proposed house will have 3,061 square feet of living area on an 18,084 square foot lot. The lot coverage following the 70 foot setback line is only 21 percent, less than half of the allowable 50 percent maxed out in residential zoning. Now he cannot move the house further back because you cannot put the septic system makai of the house in the shoreline setback area so it has to be mauka of the house and he only has so much room. Remember is pushed back, he only has half of the lot to use so he is really pushing for that. Also, any redesign or relocating of the house will entail additional excavation and I don't think anybody would want additional excavation if possible. Remember he dug up the foundations based on the current design and from that we got the archeological inventory survey approved by the State Historic Preservation Division. At your meeting on April 13 we presented the color board and drawings and I have them again in front of you for your consideration. I know it is hard to tell from a little chip what the thing looks like so what we did is we took the color samples and imposed it on the drawing with the same color to show. There are other elevation drawings of the house if you want to flip through with the same color scheme to show what the house will look like. One of the conditions was we consider a darker color. We did consider a darker color however we feel that the darker color would not do justice to the design and that this particular color scheme is not obtrusive, is not glaring, and it will blend in the environment. Unfortunately the drawings of the house do not show any landscaping it's just a plain house so it will be further minimized or reduced by vegetation and landscaping. He did his archeological inventory survey as I said, digging trenches where the foundations would be. This survey was reviewed and approved by the State Historic Preservation Division. He provided a copy of his landscape plan and I again commend Lisa Ellen Smith for comparing the two landscaping plans and showing that there will be no landscaping within 30 feet of the certified shoreline and the landscaping will be minimized. It was actually reduced from what he originally proposed. He has met every condition of the preliminary approval given to him in October. He has done everything that is required of him in the approval process. We maintain that he deserves your favorable consideration and we respectfully request the same. Thank you for your time and I will be glad to respond to any questions. I don't know what Mr. Bronstein will say. I would like to also have a chance to respond to anything that he may bring up not covered in my testimony. Chair: Are there any questions for Walton? Is there anybody in the public that would like to testify on this agenda item? Mr. Harold Bronstein: Mr. Chair, members of the Commission my name is Harold Bronstein and I represent Caren Diamond, Beau Blair, and the North Shore `Ohana with respect to this matter and I have represented them before this Commission and in the Fifth Circuit Court and other places. I would like to submit for the record and I ask the Chairperson to receive a letter which outlines the arguments and there is about 9 or 10 copies, if I may. The letter outlines the arguments concerning this matter and the posture it is in. There were some misstated dates but I don't think that is real important, we can cover it right now. We were here on April 13th or 16th, I don't remember the exact date, but I had submitted at that point the Findings of Fact and Conclusions of Law that were entered by the court on April 6th in which it did vacate the original decision by the Board of Land and Natural Resources and really by its Chairperson and not by its self. And what it did was, one, it vacated the Findings of Fact and Conclusions of Law that were issued. It also vacated the certified shoreline that was published on June 8, 2008 and affirmed by the BLNR on June 25, 2009. The court also said to the board that they should give due way to the appellants, that is Ms. Diamond and Ms. Blair's testimony and proposed evidence and to correctly apply the applicable statutes case law and administrative rules within 45 days of this order. The court finally said in its Decision and Order, "Any further certified shoreline Planning Commission Minutes June 8, 2010 14 proceedings before the BLNR shall mandatory be consistent with this court's Findings of Fact, Conclusions of Law, and Decision and Order." So the court says here you go BLNR, do it again but do it correctly and do it the way I am telling you that I think it should be done. The Board, on the 45th day, May 21, 2010, again through its Chairperson and not the Board, denied the appeal again and approved the same survey map that was published for certification on June 8, 2008. That had already been vacated by the court once but the Board is back here now saying we are doing it again anyway, court. The amended decision is simply not consistent with the court's Findings of April 6, 2010, its Decision and Order. The court in its April 6, 2010 Decision and Order, Conclusion of Law, No. 9, "The map of the certified shoreline published on June 8, 2008 and signed by the Chairperson on June 25, 2009, based upon the conditions existing on December 4, 2007, does not correctly reflect the upper reaches of the wash of the waves at high tide during the season of year in which the highest wash of the waves occurs as provided in HRS 2005, A.1." They can't say it any more clear, the line you are accept, Board, is wrong. The line that the court told them is wrong they are coming back and saying no, we are right. I am not clear how they get there but I am clear that there is a very viable issue here on the appeal again because you cannot come back to a court and say you told me to do something and I didn't do it. Or, I didn't do it because I think it is wrong what you said. If they wanted to do that they needed to appeal that decision. Neither the State or to my knowledge Mr. Hong's client appealed that decision. They are back here saying move on the shoreline that the court has already said was wrong but we now say is right again. Mr. Hong says to you it is none of your business it is between the State and I guess the appellant's, my clients. That is wrong. The applicant, Mr. Dobbin, is the one who proposed the shoreline. The applicant is the one who moves that process. The applicant is a party to the lawsuit that is not just between the State and my clients, there are three parties to that issue and the applicant is one of them. They want that shoreline. They don't want to move it back another 20 feet. And when they say they had a landscaping plan approve, that is true based on the June 25th certification, 2009. The court vacated that. Mr. Hong in his letter to the Planning Department or the Commission says, "The current shoreline certification remains valid until June 26, 2010. We accordingly humbly request that this request be scheduled at your June 8, 2010 meeting if at all possible as there is no reason to delay consideration of this request." That is wrong as a matter of law. The June 25, 2009 certification was vacated by the court, done, over, nada. They have recertified or have issued a final decision again using the same map but dated May 21St. That certification is good for one year. I don't want to argue Mr. Hong's case on that issue but that is the reality of the law. I understand that and I am sure Mr. Hong understood that. And I will represent to you that I spoke to Linda Chow, the A.G. who represented the State in this action yesterday. It is her opinion and the A.G.'s opinion that there is a one year life for that new certification. Now that new certification happens to be the same thing that already has been rejected once by the court but there is a one year life on that. You shouldn't get pushed into rushing into a judgment that you don't have to make until the court really clarifies what they are saying. Also you cannot rely on the June 26 h map because that map has to be recertified and whether there has been a map submitted or not or how that plays out, I don't know. The A.G. told me she did not know whether it had been resubmitted but she didn't think it had been. The talk about the 30 feet and the landscaping plan, if the court again throws this out that landscaping plan is out. Where the house will be sited if that is thrown out again I do not know. I do know that the public trust requires as much beach as reasonably possible. I do know the court accepted that as a matter of law and that is why among other reasons the June 25th certification, the map that was published on June 8th, was thrown out. You have the ability to stay this matter and to wait until the court decides this. You don't have to decide this today. There is no need to decide this today. I understand about motions to stay and if necessary I will file one with the court but that takes time also. In my letter to you I said I would get it done in the next 7 days. I intend to do that if you intend to go forward and issue the right to apply for a building permit because that is a mistake. You should do this right. This is an important issue. Every shoreline is important. We are talking approximately 20 feet that we believe belongs to the public. And the court on April 6, 2010 believes in its opinion that Planning Commission Minutes June 8, 2010 15 it belongs to the public. I understand this gentleman wants to build a house. All we ask is it is done in a correct manner with due process under the law for everyone, not just him. I will suggest to you there are many ways you can go. I will tell you if my recollection is correct that on lot 2 the Planning Commission did the same thing, waited for the Circuit Court decision. There is precedent to do that in this subdivision. Chair: Harold can you wrap it up? Mr. Bronstein: Sure. Don't issue authorization for a building permit. It is premature, it is wrong, and you should wait and see what the Circuit Court does given on this set of facts it has already said once that the June 25 h certification is wrong. I tend to believe they will say that again, thank you. Chair: Any questions for Harold? Is there anybody else in the public that would like to testify on this agenda item? Seeing none then I will bring the meeting back to order. Is there anything that you would like to comment? Mr. Jung: I will do my best to answer any questions but let me just give a brief overview of what is happening. What we are looking at is the design review which was a requirement of a condition from an old SMA. So the house is subject to a design review for placement and design. Back in 09 the certified shoreline was done by the Chairperson of the DLNR, Mr. Bronstein appealed that decision, it went to the Board of Land and Natural Resources, the Board of Land and Natural Resources took action and affirmed the Chairperson's decision. Subsequent to that Mr. Bronstein on behalf of his clients appealed that decision to the Circuit Court. In that Circuit Court appeal they won their case and now the court ordered them on remand to go back to take into evidence of not just the current year shoreline but also the evidence that Ms. Diamond and Blair presented. So BLNR went and did that in the 45 days that they had, they reissued a new certification, they call it a recertification, but they identified the certified shoreline the same number that was previously issued. I think it was KA313. So the problem that the Commission is faced with is legally you are not bound to stop taking action. There has been no filing of any motion to stay so an agency determination can be enforced and can go forward unless there is a motion to stay. Right now there is none so nothing is legally stopping you from taking action today. The problem is what happens if the case goes forward on the new agency appeal, what happens when or if the certified shoreline is re- designated to a different area. But just as a procedure of law the deference is given to the Board of Land and Natural Resources in identifying where this certified shoreline is. So the State surveyor based on the approval by the Chairperson of the DLNR and then the approval by BLNR would most likely give deference. But it is highly speculative as to what is going to happen if we go forward and wait on a new agency appeal after they just spent a year and a half through the courts. Now I know Mr. Hong raised the issue of what vested rights he may have and if you want me to address that issue since it is one of the most complex legal theories within land use we can go into executive session to look at that issue. But as of right now because this is for design review and the setback determination which was made on the certified shoreline which was in that same location, that same certified shoreline number, KA313, it is still 70 feet. So that house can be put up there right now until there is a motion to stay or injunction that stops the building permit from being issued. Mr. Blake: So when it came back from the DLNR, it came back from BLNR to DLNR and DLNR was ordered to take into consideration the Blair and Diamond representations nothing changed? Mr. Jung: They recertified in the same location because they found the dune crest was the certified shoreline. Mr. Blake: So even after the inclusion of this additional evidence the line stayed where it was before? Planning Commission Minutes June 8, 2010 16 Mr. Jung: From my guess the Board of Land and Natural Resources took into consideration that evidence, whatever that may be in how they make their decisions, and weighed that evidence and made a determination. And with the dual system of Planning here in Hawai `i it becomes very complicated when you have one agency authorizing an approval and then you have another agency that can issue an approval based on that approval. If there is no stay on that approval then that agency is entitled to go forward because nothing stops that agency decision until there is either an injunction or a motion to stay. Mr. Blake: My question is when it came back down for reconsideration or recertification did the placement of the line change? Mr. Jung: No it did not and I don't know the reason or rationale why that happened. Mr. Blake: Well that is neither here nor there with regard to what I am asking. I just want to know if the line changed or not. So as far as the applicant's position, it hasn't changed either as far as they design review, color, and non-reflective materials and so forth. And placement is where placement was. Mr. Jung: That is correct and as Lisa Ellen explained we did this two part system for design review so we can look at issuing conditions in the preliminary review and then a final review so we can ensure those conditions are met to avoid the Brescia issue. So once he completed those conditions technically if he has satisfied or the Commissioners feel that he satisfactorily completed those then he can move forward and get his building permits. You can authorize the design review. But the question that Mr. Bronstein presents is he is intending as he represented to file a motion to stay this particular decision by BLNR. How that affects this agency's determination of the design review would be a legal question to go into executive session to see whether or not Mr. Hong's client would be vested based on this decision. Mr. Blake: Well whether or not Mr. Bronstein files a motion even though that is his intention as he has stated has nothing to do with our decision. Mr. Jung: That is correct. Your decision is solely on the design elements of the house and the placement of that house based on the setback determination that was made and not appealed by Mr. Bronstein's clients. Mr. Bronstein: (Inaudible). Chair: We are in discussion, go ahead. Mr. Blake: We can't bifurcate this can we, approve the design but not the placement? Mr. Jung: He has satisfied the conditions, you can take action or you can deny but because he satisfied the conditions it would be problematic to deny. Or, you can look at deferring but you have to have a reason to defer. Mr. Blake: And if the design review and placement is approved does that result in rights that vest even if there is an adverse decision down the line as far as... Mr. Jung: Again that would be a question for executive session. Mr. Blake: I move we go into executive session to discuss the issue of vesting with regard to this case. Chair: Before we take a motion to go into executive session are there any more questions for the attorney? Mr. Texeira: I have a question for our County Attorney. Mr. Bronstein's testimony on page 2 which states that; "does not correctly reflect the upper reaches of the wash of the waves at Pinning Commission Minutes June 8, 2010 17 the high tide during the season of the year that is the highest wash of the waves occurs". How do you respond to that? Mr. Jung: DLNR or the Chairperson of the DLNR and its staff, if it is appealed up to BLNR, they take a multi-variable approach to how to identify the certified shoreline. So often times there is a map that is submitted and the State surveyor can go out and they can do an inspection and then testimony can be received by people who are an interested party so they look at several different factors and I can't speak to them off the top of my head but I can point you to where they are. If you look in your packet in Mr. Hong's submittal which is the Decision and Order denying the appeal of the shoreline certification for Mr. Dobbin's TMK on page 4 starting with paragraph No. 24, continuing through paragraph 29, and that delineates the process in which they identify the certified shoreline. Which again it is a very complex thing because it is sort of a subjective test based on the State surveyor and the representations by staff based on these criteria such as sand beach, perched beach cliff, rocky shoreline, etc., or a combination thereof. They also look at debris lines, vegetation lines, wet lines, artificial structures, dune crests, erosion scarps, salt deposits, discoloration, and salt water dependant biota. And you can continue reading it you so choose. And again the Planning Commission and Planning Department does not have this authority, it rests with the BLNR to identify and decide where that certified shoreline is. And based on the certified shoreline we can issue our setback determination which in this case was 70 feet. Mr. Texeira: So that was clearly delineated. Mr. Jung: Because the certified shoreline was put in the same exact place as the original shoreline certification back in 08 and 09 then that setback is the same setback. Mr. Nishida: What is the date of the current certified shoreline? Mr. Jung: The recertified shoreline appears to be and this is based on my interpretation of this mandated order, May 21, 2010 where it says "The Chairperson of the Board of Land and Natural Resources hereby enters final certification of the shoreline pursuant to the revised shoreline survey may that was published for certification back on June 8, 2008." Mr. Nishida: So they have one year to submit the building permit application from May 21, 1010? Well anyway, this is the date of the certified shoreline. Mr. Jung: The recertification. Mr. Nishida: Recertified so whatever timelines start from this date, May 21st Mr. Jung: And that is not clear to me because I tried calling Ms. Chow who is the Deputy A.G., she made a representation to Mr. Bronstein that it is good for that one year until May 21, 2011 but I can't confirm that. Mr. Nishida: Then according to Mr. Bronstein's testimony, in here on 3, from the Judge, it says "this matter is remanded to the BLNR with specific instructions to appropriately consider and give due weight to applicant's proposed evidence and to correctly apply the applicable statutes, case law, and administrative rules within 45 days of this order." So what happened was that we got issued the amended Findings of Fact and all that stuff, taking what the department, I don't know if it was DLNR or BLNR, but what they are saying is that they have done this and this is what they have come up with. Mr. Jung: That is correct. Ms. Matsumoto: In Bronstein's report, No. 9, he has the date December 4, 2007. 1 don't understand that. I guess I am just thinking about the North Shore and when waves are big, usually big in the winter time so I personally have a concern about when measurements are made because if it is made in June that doesn't really reflect what happens naturally on the North Shore Planning Commission Minutes June 8, 2010 18 in the winter time. I really say that with the applicant's interest in mind and safety. The waves are high, they are high period. We don't have any control over that. Mr. June: It is the Board of Land and Natural Resources that is the final call on where that certified shoreline is. Ms. Matsumoto: And when the tests are made, when the measurements are made. Mr. Jung: When they take their multi-variable approach on how they make that determination. I know it is complicated where we have to base an action on another agencies action and if you don't fully understand (inaudible) and why they took that certain action. But we are tasked to because of this SMA condition for a design review of Mr. Dobbin's house, we are tasked to take action on this. Chair: And most important I think the history of having this two-step was to identify or trigger or do an archeological study to find if there are burials. That is why we moved to the two-step. So if there are no more questions do we want to go into executive session? Mr. Blake: Yes. Chair: Are we only asking a couple questions? Mr. Blake: I am interested in the vesting issue and who bears the burden of proof for convincing the Commission as to which interpretation we should take regarding the DLNR or BLNR's... Mr. Jung: Well you should recognize that BLNR has made a decision and their decision is valid. Mr. Blake: But that doesn't bind us does it? Mr. Jung: It binds you in your decision making based on their recommendation. Mr. Blake: So if we don't understand what they are doing it is tough? Mr. Jung: Unless there is a motion to stay for a re-challenge of that particular appeal but you have to honor the agency's decision. Mr. Blake: Whether you understand it or not? Whether you understand how they got their or not? Mr. Jung: Because it is a determination by the authority that is vested with making that authority. Chair: Your question is not how they came about that but to understand it, right? Mr. Blake: With regard to what Commissioner Matsumoto's concern was. I mean I sympathize, I understand exactly what she is saying and today it is up here in the summertime and wintertime it is up here so where is the line? I mean what do you do, take an average, is that what they do? And so if we don't know what they do then are we bound to accept that regardless of whether we understand what they do? Mr. Jung: There are a lot of things I don't understand and unfortunately we have to take the recommendations of certain agencies that have the authority to make those recommendations and honor those recommendations. Unless of course there is a motion to stay that recommendation or there is an injunction stopping the Commission from taking action. Mr. Blake: Neither of which are before us today. Planning Commission Minutes June 8, 2010 19 Mr. June: Right. And what is before you is the certified shoreline has been reissued and the question before you is whether or not you are going to approve the... Mr. Texeira: There is an appeal in the courts. Mr. June: There is an appeal but it does not stay. Mr. Blake: Well that is one of the issues I would like to discuss in executive session. Chair: So we will make it a brief 20 minute discussion in executive session on just that. Mr. Texeira: Mr. Chair, I was just going to mention or I was going to ask if he could make a comment. Chair: Harold, I will have you up but if you could just be real brief. I gave you a lot of time on your first testimony. Mr. Bronstein: I appreciate that Mr. Chairperson and I tried to use it wisely. I just want to clear up, this whole process; the BLNR didn't make a decision the Chairperson did, he is the designative one; it doesn't go to the full Board. This just so you understand the process. Number two, the court's Conclusion of Law in rejecting the shoreline that was published June 8, 200...I forget my dates. If you look at page 2 of my letter, at the top that is the court's order No. 4 saying "shall be consistent with this court's Findings of Fact, Conclusions of Law, and Decision and Oder." And what it found was that the shoreline does not correctly reflect the, and the quote there, "upper reaches of the wash of the waves at high tide during season of the year in which the highest wash of the wave occurs", is the definition of the shoreline and of which the court is saying they did not prove, that they were wrong. And they come back and give you the same one again, that is a highly interesting way they come back and say to the court you just told me I am wrong but now I am telling you I am right again. That is the point and that is what that quotation talks about. And you can talk about the multi-variable approach all you want, this is what the shoreline says and if you go back to the Steven's case which the Hawaii Supreme Court decided in lot 2 of this subdivision you will get into what is the shoreline and how to do it and how you are looking for the upper reaches of the wash of the waves. In other words how far it goes, exactly what the Commissioner was talking about in the wintertime. So I think you have to understand that as a practical matter they entered their order, their amended Findings on May 20. I received it on May 24th. I left town on May 25 h for 12 days but before I went I immediately filed a notice of appeal again. I only got back in town on Sunday, yesterday was my first day. There will be a motion to stay if I have to. There will be a motion for injunction, whatever I have to do. And what I am saying to you is since you have a year from May 21St don't rush to judgment, either wait to see what happens or do something that waits so you can say approve but no building permit issued until the court case is resolved or whatever. But there is too much here at stake to rush to judgment and you don't have to, there is a year from May 20, thank you for your time. Chair: Walton, briefly, do you want to do it now or do you want to do it afterwards? Mr. Hone: I think this may have some beating on your executive session, first of all just to clarify Commissioner Matsumoto's question about the June certification and when the winter months or when the waves are the highest. Actually the process is the applicant's surveyor goes out and surveys the property and determines where the shoreline should be during the season of the year when the waves are the highest at high tide. In this particular case this was done on December 4, 2007 it is just that when you go through the process the shoreline is finally certified based on the December 4th survey. So it is not like it was surveyed in June when the water wasn't as high just so you understand the process. Obviously we don't agree with Mr. Bronstein's reading of the court's Decision and Order and I will leave it up to your legal counsel to discuss with you how he reads it. I think I read it totally different. What the Fifth Circuit Court under my interpretation said was that because the DLNR did not consider non-current Planning Commission Minutes June 8, 2010 20 conditions, in other words we are arguing that when you do the shoreline since the shoreline survey is only good for one year that you only consider the conditions during that period of time rather than going back so many years and saying okay, the wash of waves may have been higher 3 years ago. The court said that DLNR was wrong in not considering or restricting it's self to current conditions and that also when the DLNR said the evidence provided by the appellants were anecdotal and therefore... what they said was go back, look at the evidence supplied by the appellants again. Don't just say it is anecdotal and don't consider it because it wasn't in the current conditions. That is exactly what DLNR did, they went back and they said we looked at the evidence provided by the appellants, we looked at the evidence provided by Mr. Dobbin and for these particular reasons we think the shoreline should be here again. And that is exactly what they did according to what we understand the court order to say. I don't ask you to believe me, I would defer to your legal counsel. He has a copy of both Decisions and Orders and he can better advise you or should be the person to advise you in this respect, thank you. Chair: Any questions for Walton? Seeing none, is there a motion to go into executive session? Mr. Blake: So moved. Mr. Nishida: Second. Mr. Jung: Pursuant to FIRS 92-5(a), without noticing the executive session on the agenda where the executive session was not anticipated in advance, executive session will be held upon two-thirds vote of the members which shall be a majority of the members to which the board is entitled. HRS Section 92-4. The reason for holding the executive session is to discuss the duties, privileges, rights, and liabilities of the Commission. Chair: Roll call. On motion made by Hartwell Blake and seconded by James Nishida, to go into executive session, motion carried by the following roll call vote: Ayes: Matsumoto, Texeira, Kimura, Blake, Morikami, Nishida Raco -7 Noes: None -0 Absent: None -0 Not Voting: None -0 Commission went into executive session at 11:38 a.m. Meeting was called back to order at 12:14 p.m. Chair: Is there any discussion? Are there any questions for Walton? Ms. Matsumoto: I took notes when you were speaking and your issue is the shoreline setback. That is your greatest issue in this. Mr. Bronstein: The issue in court is the actual shoreline that does help determine setbacks. But more importantly determines what beach the public has to use. So if the shoreline is pushed back 20 feet I don't know what it does to the house but I do know it gives the public 20 more feet of beach. Ms. Matsumoto: Thank you. Chair: Any more questions for Harold or Walton? Walton, do you have some closing comments? Planning Commission Mantes June 8, 2010 21 Mr. Hone: Thank you Mr. Chairman. I surmise the issue that is on everybody's mind is should there or should there not be a decision making today. I would like to just say this that under Chapter 91 there is no stay by law unless the court issues a stay. Now let's say this Commission acts on it today, if Mr. Bronstein proceeds as he has said he would do to file a motion with the court for a stay there is not guarantee the court is going to grant it. If you don't act today then we will have to come back again. If you grant it and the court grants the stay then we can't move. So we are trying to avoid the necessity of having to come back again before you. I think by your trying to stay the matter would be violative of law on Mr. Dobbin's rights, legal rights, but by issuing if Mr. Bronstein is successfully in persuading the Fifth Circuit Court to issue a stay or some type of injunctive relief then it is no different than if you didn't act today. But if the court doesn't want to do it and you don't act today then what, we are going to come back again? How many times do we come back before you for I am assuming a house that meets your approval as to design, colors, etc., other than the issue of the shoreline, thank you. Chair: Are there any questions for Mr. Hong? If not what would be...did you read the recommendations yet? So you can read the recommendations. Staff Planner Lisa Ellen Smith read department recommendation (on file). Chair: What would be the pleasure of the Commission? Ms. Morikami: Mr. Chair, move to approve the recommendations of the Planning Department pursuant to the applicant's request for the final design review for a single family residence on Lot 12, Wainiha Subdivision H, S-84-58. Mr. Kimura: Second. Chair: Is there any discussion? Ms. Matsumoto: I am still concerned about the matter of it being in court and I think could we say something about, add something to say that we can approve the design and if the court makes a decision about the setback that the applicant will have to redesign. I am not articulating it well but we talked a little bit about that, to come back for reconsideration. Mr. June: I would need about maybe a half hour to take a look at how we can approach that if we can at all. So I don't know if it would be prudent to take lunch now before action is taken. Chair: Well the lunch is not here. What I would like to do is maybe defer the item if that is possible and then go to the next agenda item. Is there any more discussion? Mr. Blake: With regard to what Commissioner Matsumoto's concern is, is it appropriate for us to approve in the same manner that Brescia was approved where any building or any effort that takes place during the pendency of the appeal is at the applicant's... the applicant assumes the risk of an adverse decision and having to start all over again. Am I stating that correctly? Mr. Costa: I believe the court did that, not the Commission. Mr. Blake: Well can we impose or insert that type of a condition? Mr. June: I would advise against that type of condition that you proceed at your own risk. Mr. Blake: Telling them they proceed at their own risk? Well why should we open the County up to a vesting question? Mr. June: That is a question we discussed in the executive session and if you are still not satisfied with the answer we can go back in. Planning Commission Minutes June 8, 2010 22 Mr. Blake: I know what the explanation was but do we have to stick our necks out and say well fine, vest. Mr. Jung: As Commissioners with each agenda item you put your neck out, you have to weigh the evidence and make a decision. So if there is a particular condition you guys are looking at I can address that condition during lunch. Chair: Any more discussion? What I would ask is maybe a motion to table the agenda's item for clarification from our attorney. 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 table agenda item A.2, motion carried unanimously by voice vote. COMMUNICATION Communication (5/17/10) from the Office of the Mayor requesting the Planning Commission to take action to effectuate a 9.23% decrease in the Planning Director's salary for Fiscal Year 2011 as a temporary cutting measure in the plan to utilize furloughs. Mr. Jung: If the Commission has any questions about the furlough plan and how it will be implemented in terms of the Mayor's appointees I will be happy to answer any questions. Chair: So in our packets we did receive a communication from the Mayor regarding the Director's decrease in salary, is there any discussion? Mr. Texeira: How does the Director feel about it? Ms. Mor kami: Mr. Chair, the concern I have is that should the furloughs end for some reason I guess my concern is that if the furloughs should end the salary reduction should also end. And so somehow I would like to make a motion to that when the time comes because should the furloughs be shortened then I think the reduction should also be in line with when the furloughs end. Chair: So when the furlough ends his salary goes back to where it was. Ms. Morikami: Yes. Mr. Jung: Maybe I should just clarify. The furlough plan, you have furloughs and salary reduction for appointees. Furloughs are to contract employees through HGEA and UPW. As appointees and because Mr. Costa is an appointee of the Commission you have the jurisdiction to decide what his salary is based on a range established by the Salary Commission. So the Mayor is asking to effectuate this 9.23% salary reduction in his pay to sort of go along with all the other employees that are on the furlough plan. I will be taking the same reduction. Mr. Kimura: So with this cut does he still have to show up 5 days a week? Mr. Jung: The policy is that because they are appointees they encourage to no attend work during the times of office closure but if there is something that needs to be done and requires his attendance then it is suggested that he perform his work. Because the furlough is closing the office for two days a month but a salary reduction is just reducing a salary. I know it sounds complex but if there are any further questions I can get our personnel attorney who is actually on vacation to address any questions. Planning Commission Minutes June 8, 2010 23 Chair: So we could simply defer this item until he gets back if the Commission wishes to? Mr. Jung: If the Commission still has questions about the process for the furlough plan I can arrange for that. Mr. Texeira: I have a question. In regards to that time frame we are looking at this as effective the next fiscal, July 1. Mr. Jung: July 1, Fiscal Year 2011. Mr. Texeira: So we should act on it prior to July 1St then, by the next meeting. Mr. Jung: Correct. But if I can address any questions now I will do my best. W. Nishida: So the salary deduction is, that is why we have to do this because we determine his salary based on that formula. But we can also increase his salary based on that too should the furloughs end. Mr. Jung: From my understanding as long as it is within the range the Salary Commission issued. Chair: Is there anybody in the public that would like to speak on this agenda item? Seeing none what would be the pleasure of the Commission with comments from Commissioner Kimura with a motion to defer? Is there a motion to defer? W. Jung: Can you identify a date just to be clear? Mr. Kimura: Next Planning Commission, June 22nd Chair: Is there a second? Ms. Matsumoto: Second. Chair: Any discussion before I call for the vote, all those in favor say aye, opposed, motion carries to defer this item. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to defer action to 6/22/10, motion carried unanimously by voice vote. NEW PUBLIC HEARING Special Management Area Use Permit SMA(U)-2010-6 to permit construction of a farm dwelling in Sea Cliff Plantation on Iwalani Drive, approx..25 miles from Kilauea Road, in Kilauea further identified as Tax Map Key 5-2-004:080, and containing total parcel area of 16.953 acres = Dechka. Hearing was closed. Chair: We are going back to item A. 2 for Craig Dobbin at TMK: 5-9-009:051, and I think one of our Commissioners, which Commissioner asked for clarification? Ms. Matsumoto: Not clarification but to add a condition. Chair: Add a condition because there was a motion on the floor to approve and there were some amendments so is there an amendment that you want to add? Ms. Matsumoto: I am just going to read this. This was a document that was signed by Ian Costa, "Construction of the proposed residence shall not commence until a determination is Planning Commission Minutes June 8, 2010 24 made by the Circuit Court regarding the appeal on the shoreline determination, Civil No. 10-1- 0016. The applicant shall contact the Planning Department once a determination is made." So that is the proposed. Chair: Did the planner catch all that? Ms. Matsumoto: I can give a copy of this. Staff: My only question is I think the Civil Court No. might be different. Chair: Right. So can you read it into the record so all the Commissioners are...? Staff. To be added as I believe condition No. 11 as there were 10 in the initial preliminary, "Construction of the proposed residence shall not commence until a determination is made by the Circuit Court regarding the appeal of the shoreline determination. The applicant shall contact the Planning Department once a determination is made." Chair: Any discussion on that amendment for item A.2 for Craig Dobbin? Ms. Morikami: Mr. Chair, on that particular amendment I will be voting against it only because we are here for a final design review. We as the Commission have already voted for that shoreline setback determination and we approved it. So at this time I cannot support that amendment, thank you. Chair: I am fine with the condition as far as discussion. I think it is another catchall, anymore discussion? Mr. Nishida: So should the amendment be approve we are not going to see this back again, right, the shoreline certification is going to happen and the approval is already given. Chair: He would proceed with his construction documents for submittal to build his house to the building division and it would go to the Planning Department for review and everything else would go through. Mr. Blake: But he cannot build until there is a court decision even though everything else is in place, is that what the condition says? Chair: Can you just read the condition again real slowly? Staff: "Construction of the proposed residence shall not commence until determination is made by the Circuit Court regarding the appeal on the shoreline determination. The applicant shall contact the Planning Department once a determination is made." Chair: And Commissioner Morikami's comment was because we have already given the approval of the shoreline certification that... Ms. Morikami: We already in a previous meeting voted in favor of the shoreline determination and it is my feeling that we are here for our final design review. The shoreline setback is another matter but we already gave approval. So what happens outside this room of who files an appeal I feel is not within our jurisdiction here to be determining what conditions we impose based on what is happening outside since we already approved the shoreline setback initially. Mr. Blake: Are you saying that we approved the setback upon which the design review is based upon which the proposed design is based. So if we move to approve today without the amendment the applicant can proceed to secure his building permits and start pounding nails. That is what you are saying? Planning Commission Minutes June 8, 2010 25 Mr. Jung: No. The condition as read would entitle the applicant to go and submit his building plans for building permit review and building permit issuance but he couldn't commence construction. Mr. Blake: I am talking about what Commissioner Morikami's reservation was, she said she would not be supporting that, is that correct? Ms. Morikami: Yes because if you read the language that was just read to us on the amendment it says once a shoreline determination is made. We already made that. What happens in the courts after this is not, we are not discussing that, we are actually discussing the final design review criteria. We already approved the shoreline setback and unless we get notice that that has been changed we are voting on the final subdivision which includes what was presented today. But the shoreline setback has already been approved by us and nothing has changed as of today. We have not received any documentation telling us otherwise. That is just how I feel regarding the process and the procedure of this Planning Commission and what our role is and I think that the shoreline setback determination is not in our County jurisdiction but it lies with the State. And we followed when we approved the shoreline setback determination, we followed the guidelines of the State initially and that is all we have before us right now, is giving them final design review based on that. That is why I am objecting. Mr. Blake: So the Commission having accepted or having recognized the shoreline setback as promulgated by the State Mr. Jung: Actually if I could just interject and clarify. The DLNR issues the shoreline certification. The Planning Department determines the shoreline setback. Mr. Blake: Excuse me, having accepted the certification. So your position is that the certification is final despite the assertion that it has been appealed and may not be final, ultimately may not be final. But it is final today so as far as today is concerned or because we are just talking about what is happening today you are not convinced that the amendment is appropriate? I am trying to understand your position. Ms. Morikami: I guess we have no documentation here today that says ...we don't have anything, court orders or anything regarding this matter. We got the certification, we voted on the shoreline setback and so that is what we have in front of us. Testimony may come in from the outside but it is my feeling that this Commission needs to look at what we have at hand. It is a final design review. We did it in two stages. This is the second stage having already approved the shoreline setback designation. So I am just having a problem with doing a condition like that because as far as I am concerned it has been set. What happens outside, if it comes back to the Planning Commission we will have to address it then but as of right now I don't have any court documentations or anything saying appeal, what the result was from the court, it is just down the road. But we are here for the final design review. That is really why we are here listening to this. Mr. Blake: Again, let me try to understand you position. So you feel that the amendment, the proposed amendment, discusses something for which there is nothing before us to make that determination, is that accurate? Ms. Morikami: Yes. If we had documentation here from the court, a court order or something to that effect of course that would change the picture completely. So that is just my opinion. Mr. Blake: I feel like Solomon. I agree with both sides. Ms. Matsumoto: I think it is very difficult. I guess because of the matter being in court, going to court, that is what concerns me because when it reaches that level things can get complicated and I feel it is best to wait. Mr. Blake: So would you rather defer? Planning Commission Minutes June 8, 2010 26 Ms. Matsumoto: Wait until the decision as the condition says. That is why I am suggesting that we put that condition in. It is very difficult. Mr. Blake: How many days do you have to appeal, to file your appeal? Mr. Jung: From the BLNR decision? Mr. Blake: Yes. Mr. Jung: I don't know if Harold wants to come back up. I haven't seen his notice of appeal. Mr. Blake: Well that is the hang up. Chair: That is the hang up because right now the burden of proof is unfortunately not on the applicant and not on the department but with a concerned citizen that he can really choose to either say I going to do the appeal. And if he doesn't do the appeal the applicant will be hung up on this one condition and you could get an offset so the decision making ...I see you Harold but let us just have a discussion if you may. Mr. Bronstein: The appeal has been filed. Mr. Blake: But we don't have it. That is the problem. Chair: It's not here and that is where I guess the reservation is with ...is that what you are trying to say? Ms. Morikami: Yes. Mr. Bronstein: Then defer for two weeks. Chair: Harold, if you don't mind we are just having a discussion. Mr. Bronstein: I do. Chair: Well let us have our discussion first and then if one of the Commissioners has questions towards you then we could ask you to come up. Until then let's just have our discussion. So the appeal may be set forth but you are right, it's not here. Did we receive a copy? Mr. Nishida: This would allow, the amendment would allow ...the amendment is almost redundant except that it would allow the applicant to submit to the Building Division for review of all the building plans and all of that which takes some time, and routing through all the different agencies to get the approvals. Since as testified the appeal has already been filed so if there is a change it would apply anyway, right, it applies anyway except that this way it allows the applicant to move forward and get at least the approvals for the building plans. If there are no changes the thing would proceed. If there are changes it would apply because the court would have the final say on this. So the amendment allows for movement by the applicant and it makes it clear to the applicant that the court, which is the way it is too, the court has the final say. The only problem I have with it is should they not proceed in a timely manner then it is a problem for the applicant because it is in the hands of the court or the attorneys or whatever. Chair: Any more comments? Do we need to have it read one more time? Is there anybody who wants to hear from Harold or the applicant? Mr. Blake: To me if you are proposing something you have the burden of proving your proposal is well founded and well grounded. In this case we have, as I see it, we have the applicant who has gone through all of the steps that he has been required to go through and is Planning Commission Minutes June 8, 2010 27 awaiting our decision which will confirm the fact that he has gone through all of his steps. Then we have the concerned citizens and they are acting on the behalf of the public which we all act for the greater good of public. And the concerned citizens have made an assertion that is not supported today, here. And so if you go with, I am not sure how it affects the concerned citizens if we grant his request because the concerned citizens can still file a motion to stay. But if we don't do anything now because we are going to wait for proof if you will that what was said is in fact, is a fact then we are holding the applicant up when the applicant has done everything he can do. Does that make sense? Well it makes sense to me. Mr. Nishida: I have a question for Paula. Paula, there are two parts to your concern though as far as in the future, one is whether the appeal is made or not which Harold said was filed. But it is also the decision sometime in the future too. Ms. Morikami: We can't really determine when the decision is going to be reached and there is a time limit on the shoreline determination and so I don't want to put the Planning Commission in that situation where there is a timeline on the shoreline when it is good for, one year and let's say the court doesn't rule for a year and a half. We are here to discuss the final design review and I think we need to focus on that. That is why I am saying that the shoreline is something outside what we are discussing today because we would not be here at the final review if we didn't approve the shoreline setback. Chair: But the condition says shoreline determination, not the shoreline certification. Ms. Morikami: I am referring to the shoreline determination by the Planning Department and this Planning Commission. Mr. Costa: Which was done based on the previous approval of the certified shoreline. Chair: So you are clear between the certification and the setback. Ms. Morikami: Yes. The certification by the State we approved by doing the shoreline determination here at one of our meetings before. Chair: So what do you meant two parts? To me I just read one part in here. Mr. Nishida: The part about the in case the court should over turn the certification on the May 2lst. That is why I was asking you if that was another part to the...well what she was saying was it wasn't in evidence. But there are two things that are not in evidence, one is the appeal but Harold said the thing was appealed but the other part to that was that some determination on that appeal is some time in the future. So in my mind what I understand Paula to say is it is something that is outside of what the Commission has to work with here so she feels that the decision should be made now. Ms. Morikami: On the final design review and that is what we are discussing. Mr. Blake: But it is not unusual to hold off on your decision until the final decision maker makes its decision so that you don't have to back track, back fill and take up more time now that you wouldn't have had to. So to me whatever the court decides is whatever the court is going to decide. We don't have to worry about that now. We just know that somebody else may be making a decision that could affect what we decide. And since they are the superior authority the question is whether we want to take a chance and have to go back and do this all over again or wait until we know what we have to do. Or wait until we know exactly what the parameters are within which we have to make our own decision. Chair: Correct me if I am wrong Lisa Ellen, the determination, the certified determination has been, it is on record. Planning Commission Minutes June 8, 2010 28 Staff. It was recorded in July of last year shortly after their certified shoreline was completed June 25, 2009. It was at the second meeting in July of 2009 when the 70 foot setback was established at that time by this Commission. Chair: So that has been set. Mr. Blake: So we have two opinions from the State as to when that certification expires, one opinion is the certification was originally determined in 08 and so this was just a confirmation of that so it doesn't increase the time. And the other determination is the time starts when the confirmation came down, a whole new year starts, is that correct? Staff: I am going to defer to our County Attorney. Mr. June: The bottom line is you are in design review right now. Shoreline certification was done, it was appealed and then it was redone again. Mr. Blake: Was it redone or did they just say no, this is it? Mr. June: What it says in the order is it is recertified. Mr. Blake: Recertified. Mr. June: From the decision of the BLNR denying the appeal. Mr. Blake: So if it was certified on January 31st and runs until the next January 31St and it was appealed on June 6th and recertified that means it runs until June 6t``, not January 31St. And that is what we have two opinions on or is one of those opinions you know to be wrong? Mr. June: I haven't spoken to either Linda Chow or Ian Hirakawa so I don't know where the problem is in terms of why they are not agreeing on a specific date. But the bottom line is you are in design review. So the shoreline certification was done, determination setback was made so now you take those two parameters and make your decision on the design review based on where the no build zone is established. I don't want to say it's irrelevant whether or not it goes on for another year or not but it was made and it was recertified. Chair: If no more discussion can we have a roll call on this amendment? On motion made by Camilla Matsumoto and seconded by James Nishida, to add condition 11, motion carried by the following roll call vote: Ayes: Matsumoto, Texeira, Blake, Nishida -4 Noes: Morikami, Raco -2 Absent: Kimura -1 Not Voting: None -0 Chair: Are there any more amendments? Let me take a 5 minute recess. Commission recessed at 2:42 p.m. Meeting was called back to order at 2:51 p.m. Chair: Are there any more amendments to the conditions? So there is a main motion on the floor to approve as amended, any discussion before I call for the vote to approve? Ms. Morikami: Mr. Chair, I will be supporting the approval. I will be voting in favor of it although I want the record to show that I am opposed to the amendment proposed. Chair: Any more discussion, all those in favor say aye, opposed, motion carries. Punning Commission Minutes June 8, 2010 29 On motion made by Paula Morikami and seconded by Jan Kimura, to approve the staff report as amended, motion carried unanimously by voice vote. NEW PUBLIC BEARING Special Management Area Use Permit SMA(U)-2010-5 to permit a rock fall mitigation project located along the Na Pali Coast State Park at the western end of the Kalalau Trail, further identified as Tax May Key 5-9-001:001 and 5-9-001:002, proposed project area is approx. 5.8 acres of the total parcel of 11,250 acres = Department of Land and Natural Resources. Staff Report pertaining to this matter. Staff Planner Lisa Ellen Smith read staff report (on file). Chair: The Commission has read the Findings so let's just jump right into it and see if there is anybody from the State that will answer any of the Commissioner's questions. If you can state your name for the record and if there is anything you want to add to the report. Mr. Tobias Kohler: My name is Tobias Kohler, I work for A.E.COM and I am the authorized representative named on this project. I am very grateful to Lisa Ellen and the Planning staff for putting together a comprehensive report. I wanted to just add some clarifications and just highlights for this project. This project is slated to last 60 days beginning on September 7`h. Our construction window basically opens on September 7th and would be completed early November. I know that in the staff report it mentions the 3 months there, September, October, and November, but I wanted to make it clear that we are going to be well out of there after the first week of November. And like it was mentioned earlier this is essentially a maintenance activity. Similar activities happen in other State parks and other State agencies perform rock fall mitigations as well it is just that we have come before you guys and a number of other regulatory agencies because a), we recognize the sensitive nature of the location but we also want to ensure that we are in compliance with all Federal, State, and County laws. As mentioned earlier there is a public safety issue here prompted by a number of incident, in summary basically in 2007 the State Parks was made aware of a rock fall incident at the park which prompted amongst other things a statewide assessment of rock fall hazards in State parks. In this case because of the heavy user load a rock fall hazard analysis was conducted for this area specifically. The outcome of this study was that the State immediately closed major areas that were frequented by backpackers and in fact were permitted camping was allowed while the State decided on the best course of action for that location. Due to continued heavy use of the closed areas, repeated vandalism and removal of State signage indicating the hazards and the closed areas the State has decided to move forward with the mitigation project to make the area safer. Not necessarily reopen all the areas but make the most heavily used areas safer to use. We have been internally working through different ways to accomplish this project for over a year now and as part of that process we have come over to Kauai and held outreach meetings in Hanalei and Kekaha. We have issued newspaper notifications of our plans and through our various other permits that we are applying for or have received have requested input from the public on that and made the public aware. What I would like to do now is step up to the poster boards and show you guys some of the key aspects of the project and then I will return and hopefully be able to answer any questions that you may have. So on this first poster panel here on your right you have an image of the Kalalau Beach, section of the Kalalau Beach. The Kalalau Valley is well off to the side here so we are at the very end of what is known as the Kalalau Trail. I have highlighted a couple of areas here that I will talk about in more detail later but in summary the trail basically ends at the Hoolea Falls here, there are rock fall hazards associated with all these little boulders and rocks you see sticking through some of the green vegetation here. There are two blocks which I will highlight in a moment; you can see one I have marked here perched right above the waterfall. The waterfall is the primary water source for the campers which attracts the population to this area and is basically presenting the greatest risk to the State. Just for reference, highlighting a couple things, Planning Commission Minutes June 8, 2010 30 I mentioned this block here, the waterfall, in a minute you guys may have questions about culturally sensitive or archeological sites I will talk about. This little white dot here I will talk about but that is where the nearest archeological site is and it is pretty heavily disturbed. I will talk a little bit in a minute about the composting toilets and the receiving area in a minute as well but that is what the yellow oval area is the receiving area. These two roof tops you see are the State cabins for maintenance and the helipad. And before I forget I actually made handouts for you guys too. I have five images and the same five images are in the handout. When I started my presentation I mentioned that what prompted was a public health and safety issue. This image here is of the sea cave that is around the corner from the waterfall and in the spring and summer time people actually set up tents in this cave. This whole area above it is subject to constant, nearly constant little rock fall I guess you could call it but I guess the biggest issue in this area and I will push this over is you will see this large rock on the beach. There is a large block on the cliff above it which we are calling block 2 that has no bottom support underneath it and it has fishers, cracks all the way around it which, to a rock fall engineer means that it is going to come down imminently. And because of the heavy use of this cave and the block right above it, it is recommended for removal. So this is what we have called sea cave in the application and such just for reference. Talk a little bit about how the project is going to work. The contractor would arrive on site and the first thing they would do would be setting up BNWs just like a construction project. The permits we have received require the project to be temporary in nature and all the impacts that we are to have to be temporary in nature. And what I mean by that is that all the rock scaling and removal operations need to happen and we need to be out of there and not have any impacts essentially. So what we have proposed to do is first set up geo-textile fiber matting spread out a certain distance from the cliff base on the beach areas and then in the waterfall areas set up a temporary diversion pipe from the base of the lowest pool to where it comes out onto the sand. And then equally lay out geo-textile fabric, it is a really high strength cloth essentially and that would be the first thing. And the reason for that is to as we bring down the material be able to tell what we brought down and what was there beforehand. We are responsible for removing all the material that we bring down. Next, the actual rock fall mitigation would happen as reported in our application by hand and by the use of air bags, mostly by hand. And how that works is workers would suspend themselves from high on the cliff and use big crowbars essentially and knock rocks off the face of the cliff that appear to be less than 50% imbedded in the cliff face. The rocks would be knocked off the cliff in a systematic from top to bottom manner, an engineer would certify each section as they progressed through the rock scaling to make sure it is cleared and then as part of that process we are proposing to bring down two blocks. Block 1 I already mentioned is perched above the waterfall. It has as well cracks all the way around it meaning you could stick your arm in the pukas going all the way around it. It has no bottom support meaning it is actually perched out hanging over. If you were to stand underneath it, it would come away from the cliff face. And the way a rock fall engineer removes that is they stuff air bags into that crack with a hose down to a compressor and they start pumping up the air bags until the rock separates from the cliff. And so that method is proposed for the two blocks to bring them down. There is no way for us to tell whether the full volume of the whole block or how deep the cracks go whether the full volume of the block would come down so for all of our estimates that you see in our application and our packet it is conservative, it is a laser cut with the cliff face. Once the rocks have fallen obviously some of them are going to be bigger than others a jackhammer or some sort of tool will be used to crack these rocks so that a human can move them into a bag. From there a helicopter will lift the bag over to the receiving area where the debris that was brought down onto our mats is then deposited. On this illustration there was a point that we didn't know cost wise what the project was going to cost and so we divided it into two areas and kind of prioritized base bid, extended bid, and then bids for the blocks. And so the yellow area is over the beach and the issues, that is a person standing there by the way and you can also see the rocks on the beach right there. So there is the beach access, if we weren't going Planning Conunission Minutes June 8, 2010 31 to have enough money to do the over beach area that we would have to put signs up here constantly telling people essentially this area is permanently closed. If this project doesn't happen essentially State Parks is going to be faced with closing the Na Pali Costa, the Kalalau Trail, a safe distance from this area given all the issues which I am sure many are aware of the number of people that go there with permits which in theory you can control. But even more so people who are out there for other reasons and the risks that are presented by them being out there as well. I want to make it clear also that this project is not a silver bullet. This project is to reduce the risks and make it safer for people to pass through and use this area and then leave again. At one point camping was permitted under these trees, it is doubtful in fact unlikely that camping will ever be allowed under these Kukui Trees ever again. Every one of these Kukui Tree trunks have big holes in the bark and they are fresh holes meaning rocks are coming down all the time. And so this is merely to allow safer access along this trail to get to the water, going out to the beach and do your thing and then move back and spend the night in safe camping areas. Further down the beach, this probably about a quarter mile down the beach you used to be able to walk from Kalalau in the summer along this coast to the next beach over. And in the 90s there was a huge cave here that people used to camp in as well and that cave is no longer there. This, is a rock fall that has closed this cave. So we are faced with the reality of Mother Nature doing her thing but the problem is we have so many people out there and people are coming from all over the world and you can only do so much to educate them. I felt it was important to show you guys what it looks like from the base of the waterfall down to where the water enters the sandy beach so on the left of this image you can see just a little bit of the toe of the waterfall. And you can see how the water makes it way down to the beach. This area would be heavily impacted by the bringing down of block I, this is also the area like I said before to minimize our impacts we would lay down a pipe and we would cover with matting. The question will come up and I will just nip this one in the bud, how much of these plants will come back? Well if you look at the images and I am a botanist, I will tell you 85% of these plants are shrubby weeds and they will be back because there is water and they will be back within on the order of a month or two. The date palms are introduced, somebody put them there. Given the experiences I had out there somebody will probably bring a date palm back and there is banana. So the impacts to vegetation will be total and at the same time given the water source that same type of vegetation will come back. Getting back to the receiving area, right now the receiving area is covered in an invasive tree call Java Plum, it is very common, it is bird disbursed and it self disburses. The trunks are generally about 3 to 5 inches in diameter and in order to have a helicopter safely transport a load and drop it in there we are proposing to remove the Java Plum, the weedy species from the receiving area. We have specified that Kukui Trees, one on one border and one on the other, be left in place. There is no reason to take those out. So that is the receiving area. I guess finally the construction effort like I said was going to last 60 days. We have closed the reservation system already so we are no longer accepting reservations starting the day after Labor Day. That is when the mobilization will begin. And I think for imagery that is all I have. We have gone back and forth many times about when to do this project. There is no good time. This is a major revenue source for the State Park system and if you have been following the news the State actually just recently raised the permitting fees required. So the State Parks is truly depending on the revenue from this State Park. We are proposing to do the work in the fall because the Army Corp. requires us to working during summer months. Essentially we are working on the tail end of the summer months because that is when the beach is the widest. So we have the least opportunity to interfere with a turtle hauling out on the beach, the least opportunity to interfere with a monk seal hauling out on the beach. During the summer, actually we were just out there two weeks ago and the beach is like 300 feet wide now and that was going into June so by the fail the beach will be 400 plus feet wide. And so the chance of us impacting the ocean are basically zero and our plan is to be done and out there before any kind of real winter swells start to take the beach away. Planning Commission Minutes June 8, 2010 32 I think that was the extent of the briefing I had for you guys, if you have any questions I will be happy to answer them. I am also joined today, I am sorry, by Russell Kumabe who is with State Parks. He is the CIP Programs Director. I am also joined by Alvin Satogata who is with the Engineering Division and he is the design engineer for this project. I am also joined by Alan Carpenter, he is the State Parks Archeologist and I am also joined by my friend and colleague Artilan Niku who is the rock fall engineer and recognized expert in that field in the State of Hawaii. Chair: How do we get the perspective of the scale of this project? Mr. Kohler: The perspective of the scale of this project is best, how do you characterize it, well we had multiple bids come in saying they could do it in 60 days which was... there are rock fall projects that last as long as a year going on in the State right now. So it is not anywhere near the biggest project anybody has ever gone after. The receiving area, the reason we chose that is it is the only place that is devoid of archeological sensitive material and it is of sufficient size for us to be able to place between 3 to 5 or so feet thick of the material that would move from off the beach and the stream area as we restore the site. Chair: Any more questions for the applicant? Ms. Morikami: I have a couple Mr. Chair. You mentioned that you are taking no more reservations prior to the September 1 date, how are you notifying the hikers that don't need reservations, who just hike into the area. How are you going to stop them from entering this particular area? Mr. Kohler: That is a very good question and that issue has been raised. The construction operation will make its self visible enough to ensure that people who are more permanently there do not enter the construction site. The contractor will not be allowed to allow anybody outside of a State Parks employee or their staff in the work area. So the trail will be closed beyond a certain point, there will be signage that says that on the trail and then any stragglers that are left in there will be turned around by a person. Mr. Costa: Along with safety fences, the netting? Mr. Kohler: They were going to put the orange fencing. Mr. Kumabe: In addition to whatever physical barriers we can along that trail section. I do believe that we are hoping to close down for those of you are familiar with the Kalalau Trail there are several major sections, Kalalau Beach is the tail end, the middle section is Hanakoa. So as much as possible through press releases, our website, we are going to be notifying or have information out that from Hanakoa to Kalalau we are recommending having that part closed down. And as Toby has mentioned for anyone that should straggle into the Kalalau Beach section there will be monitors from our construction crew that will ensure that. But to make sure that that doesn't happen too we will make sure that we do have some kind of physical barriers in which in which it could be apparent not to cross this point. Sorry, Russell Kumabe, State Parks Development branch. Ms. Morikami: The other question I had was what kind of manpower are you looking at for this job, how many people are involved in this? Mr. Kohler: From the bids that came in I believe the largest crew that was proposed was 12 individuals so with an engineer, an inspecting engineer maybe that would make it 13 and then a State Parks representative coming and going it might be 14 individuals. Proposals came in differently whether they would spend the night or not. Ms. Morikami: And they all get in by helicopter? Mr. Kohler: That is correct, that is all we are permitted. Planning Commission Minutes June 8, 2010 33 Ms. Morikami: Thank you. Chair: Are these local contractors? Who are the people that bid on this project? Mr. Alvin Satogata: Alvin Satogata from DLNR, Engineering. Contractors, we have two actually that submitted. One has a local office and the other one is a mainland company but they are rock fall mitigation experienced. Mr. Costa: Which means they do most of the work while repelling. Mr. Kohler: Correct, they are certified, they carry special insurance and training and certifications for that. Mr. Costa: So would the closed area include the restrooms or the composting toilets? Mr. Kohler: The fact of the matter is that whole area there will be closed. I believe Hanakoa is where the next set of restrooms are which is why the State Parks is deciding to close the trail at that point rather than some intermediate point where people would have to hike half a mile. W. Costa: And I just ask that because I think we all know that there are a number of residents that live there so they would use the bathroom somewhere. Ms. Matsumoto: Did you already talk about the archeological sites? Did you talk about those two sites? What are they? W. Alan Carpenter: Good afternoon Commissioners, I am Alan Carpenter, Archeologist with State Parks. First of all let me say that Na Pali is spectacular archeologically, the whole park and it is truly a cultural treasure and archeological sites are prevalent throughout the park which actually is I think the only traditional district in the State that is entirely publicly owned outside of perhaps Kahoolawi. So we don't take these kinds of things lightly, there are resources here that are very valuable to locals and particularly Hawaiians and it is our responsibility to protect them. This particular locale is at the sort of outside edge of Kalalau Valley and it actually meets a ridge that goes up and over and separates Kalalau from the adjacent valley of Honopu. The valley bottoms or where the vast majority of sites are and the development emanates out from there but it becomes less and less as you get away from the center of the streams and that is exactly where this point is. There is not a tremendous amount of archeology here and the site that is here in the vicinity is quite heavily impacted by modern campers and erosion. All we know about it is it is a series of terraces very heavily overgrown and eroded but at the moment quite stable so it doesn't appear that they are going to be damaged by current activities. And the engineers have assured us that any of the rock fall will fall adjacent to the base of the cliffs and not on the sites themselves. Of course we will make the contractors aware of it and keep them out of that area in terms of staging activities and transport, etc., but we do not expect anything to be damaged through this project. As Toby has mentioned the receiving area back here behind the ranger shack or as I prefer to call it a farm dwelling is devoid of archeological sites and it is actually a very actively eroding area covered with (inaudible) rock fall and the rock that we add there will actually sort of very much mimic the natural conditions that are already there. In terms of compliance we have consulted with SHPD, we have requested a determination of no historic sites affected which they agreed with presuming that the scope of the project is as we have portrayed to them. Mr. Texeira: The shoreline access, kayakers, and swimmers, how are they prevented from ...will they be allowed to hit that shoreline or will you just block them from entering that shore? Mr. Kumabe: Commissioner Texeira that is a good point. As much as possible we can try and get the outreach of the word. That is the way we are hoping to try and I guess address Planning Commission Minutes June 8, 2010 34 that access to the Park. Obviously we can't but beach barricades so as much as possible we are going to try and do an extensive effort to try and get the word out. There will be people that will be coming in, maybe they don't ready, they don't listen, they come in so that is where Toby has mentioned that the work crew that we have out there and especially if we have State Parks personnel staff out there we definitely have to monitor that situation and turn them away. Mr. Texeira: I guess you can advertise as well. Mr. Carpenter: And if I might add we only allow legal boat landings up through labor day so from Memorial Day to Labor Day is the period and that is really because of the unsafe conditions that begin to develop and swells come in the winter. So actually because of the period of the project it becomes much more difficult for people to land and we don't I think even on a normal year that we wouldn't be closed the boat traffic diminishes greatly after Labor Day. Mr. Kohler: We have certain monitoring requirements for the endangered species that can land and so the construction staff will have to keep an eye on the beach and the waterline so the construction crew will have to watching the beach. Mr. Texeira: Will the construction crew or anybody be over-nighting, staying in that area just to be sure that nobody goes into that area? Mr. Kohler: I mentioned that the proposals came in with various ways of doing it and in our discussions we couldn't see how zero people would stay on the beach at night. Somebody is going to have to stay overnight and I cannot speak to whether or not that is contractually required right now but any wise contractor would leave someone by their gear. Mr. Texeira: The crew will be flown in and out daily, most of the crew members? Mr. Kohler: That is currently at the discretion of the contractor. Like I mentioned one contractor claimed that they were going to work 8 to 5 and not on weekends and we have to take their word on it. Another contractor with a smaller crew wanted to overnight. Mr. Texeira: Concerning block 1 and block 2, those are the only areas you plan to take rocks from that face of the walls? Mr. Kohler: Let me make sure that we all understand this correctly, the green and yellow areas area where rock scaling will take place. Rock scaling consists of a worker suspended on a rope with a crowbar knocking rocks off the face of the cliff that appear to be less than 50% embedded. So that will be you find a rock and you knock it loose. Block 1 and block 2 however will require the more specialized technique using the airbags to remove them from the cliff face. So there are two different methods of the removal that will be employed, all manually. Mr. Texeira: As you know the erosion process is going on all the time. Mr. Kohler: That is correct. Mr. Texeira: It almost seems like you are kind of enhancing the erosion process by doing what you are doing. I just want to address that, can you address that? Mr. Kohler: That is a fair question and that question has been asked many times before. It is established that the first one or two rain storms after you do an activity like this the cliff face will be a little bit less stable but in the longer run, remember how I mentioned this is to increase safety, this not to eliminate the hazard. It will result in more stable cliff face in the near term and over time erosion will create a similar situation and I can't put a timeline on it, it is on the order of years at least. The erosion will create a similar surface to what we are repairing now essentially except for the blocks, we can't put the blocks back up. Planning Commission Minutes June 8,2010 35 Mr. Texeira: So this will probably be an ongoing process. I don't mean every year but maybe every 10 years or so you will have to repeat this process to protect the campers and hikers in that area? Mr. Kumabe: As far as for the management of that area Commissioner, as Tobias had mentioned I guess the maintenance effort that we are doing right now is to take out the most eminent. As discussion went on, sure, nature process goes on and you will have this reoccurring. From a management standpoint we would like to at least have the areas where people are camping now which is closer to the waterfall pretty much closed out even after we do our maintenance scaling effort. We will need to take steps to ensure that nobody should be camping in those areas. On the makai areas, the beach areas, that is fine because you are out of any type of rock fall zone, (inaudible) of the rock fall zones so we will continue to let people camp on the makai side to the extent that we can sustain that. But as far as for the other areas, yes, from a management standpoint we are going to have to have a means to block that area off and keep people away. To answer your question would there be reoccurring, I do believe it would have to come on the order of monitoring after we do this to see if we did take out most of the significant rubble, loose stuff. Through time if there is more loose stuff that should be generated definitely it is our responsibility for public safety so we would have to at least monitor the situation and address that. Mr. Texeira: I know you discussed a couple of scenarios internally as to how to treat this problem, is this the least expensive process or are there better processes that are more expensive that you just can't afford at this time? Mr. Kumabe: As far as scaling, usually scaling, I will defer to my team members as well but as far as for scaling, scaling has proven to be the least costly option. For this particular project area because of the remoteness the cost increases because of the remoteness of the area. And as Toby has mentioned we had gone through or had pretty much obtained a variety of Federal and State environmental permits. One of them with the Department of Health is that we are going to have to remove the materials that do come down fronting the beach area. Normally with scaling efforts we could leave the materials or push them off to the side, not a problem. In this area here we are going to have to move them out and the price tag goes up so to answer your question Commissioner, scaling is the part that is the least costly it is the removal of the materials that is adding more dollar signs on this project. I could defer to Artilan and he could explain more of the different types of mitigation methods. Mr. Artilan Niku: Thank you Russell. Commissioner, there are other methods that could be use to stabilize or I should say secure that whole area but most of these methods are much more intrusive in terms of esthetics and we would like to make sure whatever method is used would have the least impact in terms of maintaining the existing condition of the park. There are methods including meshing the site using high strength material, soil (inaudible), all of which would be clearly visible. So we went through all of these and because of the fact that this park is unique for what it is it was a decision that was made, it was a management decision that was made that we need to make sure that after the mitigation we return the park to the closest as possible to what it was before. Chair: Any more questions? Seeing none let me see if there is anyone in the public that would like to testify on this agenda item. Mr. Kurt Bosshard: My name is Kurt Bosshard and I am here to oppose the project. Jimmy, by the way this isn't a visitor destination area. Kalalau is a super special management area I would say. My primary concern is that the representations of the State that they are only going to close this park for 60 days, only 60 days, it isn't going to happen. Once they get working on there and they are only taking out such a small part of what the danger is that they are going to say either we have aggravated the problem or upon further review this is such a dangerous area that we can't have people coming to the valley. Because the work they are doing is only on the very far end of the valley and yet they are going to close everything from Hanakoa down. If you read the assessment it is all about this is just a maintenance project. It is hard to take the State seriously when they say they are going to do maintenance in Kalalau Valley Planning Conunission Minutes June 8, 2010 36 because they do absolutely nothing to maintain Kalalau Valley. The toilets for example are a health hazard. If you were going to protect the public you'd clean the toilets and make them to where the people weren't crapping in the sand, up the valley, or whatever else. The trail is a disaster. If it wasn't for guys who were just volunteering up there and a guy who lives up there who they periodically cite for illegal camping, the trail is a great hazard even right up to the end in Kalalau. In terms of other problems that exist, the goats, everybody knows they are a problem. The goats have trails that cause further erosion. Rather than spending a million dollars on this project and bringing all these guys down here to give you this sales job, kill the goats, whatever you have to do to kill the goats. You read the Garden Island Newspaper, there are being people hauled out of Kalalau for one health hazard or another. The rocks are a hazard. The rocks one day will fall on somebody, maybe there, maybe 100 yards down the beach, maybe 200 yards down the beach, maybe at Honopu. When they say the rocks don't have support, just look at the Pali, the Pali is just one rock after another suspended in the air. It is hard to believe when you look at these rocks that they are actually holding on to the side of the valley. Which leads me back to my primary concern which is ultimately what they are going to do, what they want to do, is close Kalalau Valley because they can't even maintain the toilets. To use the million dollars appropriately they would make the trail safer if they were concerned about the overall safety. It is more likely that somebody is going to fall off the trail. The trail is overgrown, eroded, and people in places don't even know where to pass because it is so difficult to tell where it is appropriate to walk. Now in terms of the archeology, this is something that really kind of irritates me. The archeologist says about the site closest to No. 1, all we know about it is it is a series of terraces and doesn't appear it will be damaged. I think that is a quote. Do you like that for a certainty that nothing is going to happen? If you look at their assessment they have almost nothing about the archeology of the area in there. The archeologist comes down here, I don't know if it is this fellow or the guy from the University and they say it's the hippies or the guys that are camping illegally causing all the damage down there. Well it isn't. It is the invasive species that are growing in all the terraces and tearing everything up down there, guava, Java Plum, lantana and every other bad plant that exists. The valley is a mess. It's not because 40 people are camping there it is because of the lack of concern of the State about the condition of the valley. The State makes all kinds of money off this valley. They promote it in every visitor publication, sell it to the tourist, they sell it as a vision and if you go there you would be disappointed. And really you can't blame the illegal campers. It is a problem, the people leave their rubbish but the State has more ability to deal with those issues than to knock a few rocks off the side of the Pali. The State comes down and they come down from Honolulu and they have their ideas about what they want to do. Do we want to close our park here because we are worried about a lawsuit? The cure could be that we limit lawsuits in these areas where there is this kind of an eminent hazard. When they say we are going to close that end to camping, they will never close that end to camping without closing the valley because people are going to go where they are going to go. And you could go down there tonight and there will 15, to 20 people camping in that area. You put up signs and the signs go away. Well that is way it is, this is a wild place. It is rusty, it rusts out and then what you have is metal poles sticking up out of the ground where the base of the thing was and there is nobody to take care of that. I suppose that you are probably going to approve this because these gentlemen have positions within the State and that you would like to please them. I hope that you might reconsider that position though before you vote on this and think about whether you want to close that off. Some of you guys may not use it but what is it that we are losing when we take all our beaches and our camping areas like this and we turn them into dog paths and other concrete areas where you can't go down to the beach with all the tourist riding their skateboards or people walking their dogs and all that kind of stuff. What are we doing in the coastal areas? Don't cut people off from camping in these places. Chair: Any questions? Planning Commission Minutes June 8, 2010 37 Ms. Matsumoto: I have a question. So what would you like to have done here? Mr. Bosshard: I would just leave it as it is and use the million dollars to take the boards off the toilets, that is the health issue that is happening in Kalalau right now. I would like it to be a healthier place and I would use the money to haul the rubbish out of the valley and to improve the trail. Ms. Matsumoto: How about the rocks? Mr. Bosshard: The rocks are there already. When they take out these rocks you have to understand that there are rocks all up and down the bank there and the rocks are going to fall and people will get hurt over a period of time. I am sure going back to the native occupation the Hawaiians were getting knocked over by rocks as well. It will happen and it probably won't be in that area because the odds are there are so many other areas it will probably be another area of that whole Pali down there. The odds are because you are doing such a small bit of the cliff side. And like Mr. Texeira said once we start this where does this end? If you come and you say this is a hazard that has to be dealt with otherwise the State faces a liability and you go and take care of this and it doesn't improve the situation what is the conclusion to that? The conclusion is you have to shut Kalalau down. You are taking the first step down a slippery slope, 60 days is a long time to close the park and there is no guarantee it is only going to take 60 days. I agree it is a dangerous, all of Kalalau is dangerous and it is not near a hospital and you take your chances when you are down there. If you are my age you could have a heart attack and I am not going to get to a hospital, possibly. Chair: Any more questions, thank you. Is there anybody else, seeing none... Mr. Blake: I have a question for the applicant. Chair: Can the applicant come back up? W. Blake: Block 1, if block 1 were to break loose or when it breaks loose it falls down to the bottom of the, to the foot of the cliff. W. Kohler: It will inundate the lower pool of the waterfall most definitely. W. Blake: So it may fill the lower pool which means the water will just continue to run over that rock or through it. Mr. Kohler: Or through it, over time the silt would fill the little cracks and the water would rise to the surface and it would return to surface flow again. Mr. Blake: Because I think, you know I believe Mr. Bosshard has a point. If you are camping in the cave you can see the rock fall line, you can hear them rolling and they fall in a line and you would have to be blind not to see where the danger area is. You are not going to be stupid and put your tent there or walk there or be a risk taker or what. It is an 11 mile hike. It is one of the last wild places on Kauai. I don't think you are ever going to allow people in and make it completely safe. It is not going to be like a shopping mall. And so to me if you are going to go in there and go camping you are assuming some risks. And I don't have any desire to see anybody who may be fool hearty going in there to get hurt but still the price that you pay to keep some nitwit safe is to close it off to everybody it appears to me. I haven't been on the trail in a while, I know there are places where it does cave in or wash away and if you come up on that portion of the trail it is your decision whether you want to chance it or turn around and go back. It concerns me where you draw the line between making it totally safe for the public and leaving it the wild place that it is. And that is what makes it attractive and that is what the State advertises. Pretty soon the logical extension of this is signs everywhere, this place is safe, this place is not. Mr. Kohler: If I may, you started out by speaking about the evidence of the rock fall and erosion that is happening out there and even from our most recent visit there are 10 if not 50 Planning Commission Minutes June 8, 2010 38 to100 people a day that, you can see the footprints, that walk. They are all not informed because they are missing the fresh gash in the bark of the tree as they walk by it. They are literally on the beach sitting in the shade of the cliff because the shade makes sense to them and not the little pebbles on the sand all around them. The gentleman who testified just before us made some very, very valid points and they have been on our minds throughout this whole process. I need to point out that these funds that are being used for this are specifically for rock fall hazard mitigation in State parks. As much as we would like to do the types of work that were discussed earlier these funds are appropriated for a very specific purpose. It is specifically for public safety. Mr. Kumabe: Commissioner Blake, to kind of go along the lines of what you were saying as far as for the types of management issues what we were concerned about was the immediate eminent hazards of people that are going to be traversing in there. We have smart people going in there, people that are kind of careless, people that don't listen, but none the less we do not want to see anybody get hurt. That is our bottom line. Nobody should get hurt on our watch on this side. So that is why we are taking these measures. Now we need to address maybe the larger issue of proper maintenance of the area, management, we need to do that. That would take some time. That would take some resources. That will take the types of resources that we don't have right now but that doesn't preclude us from going in that direction of doing the proper management applications. Now that would take time. I know that things have been festering or it appears that things appear to be neglected and that is true because like all public agencies we are contingent upon funding and we can maintain as well as we can fund. But we are at the stage right now at this critical point, we are on notice, we had done the study, these areas are eminent public hazards we have to address. Mr. Blake: Assuming for the sake of argument the studies have been done and we are on notice and if in the opinion of an expert we can't make it safe then we close it, right? Mr. Kumabe: That is correct and from the information that we had from the assessment a least for the areas that we are doing now we know that since people are going in there and we are as much as possible going to take time for us to totally close down if we needed to, Kalalau area, it is going to take time. But in the meantime we need to take steps even for people that may not listen, may refuse to listen or may have notions that they should be there we are still responsible for their safety. Chair: Russell, hold that thought, we have to change the tape. Commissioner recessed at 3:54 p.m. Meeting was called back to order at 3:58 p.m. Mr. Kumabe: The only point I was trying to make is that for public safety and we do have larger management issues that we definitely are going to have to deal with and improve. The testifier that came before us he pointed out a lot of gaping holes that we have. I will admit it, we have them. What are we going to do about it? We are going to do something about it. So this is a start and I need to clarify that this section is going to be closed for 60 days for this part so as far as for the scaling part it is going to be closed 60 days. As far as the other management type of policies that may come down, sure, but we are going to have to really think about and talk with our Kauai folks as far as what is the best course of management action. We had as Toby mentioned earlier, we had two public meetings on this project in which we were wanting to get this kind of input. We had gotten some great feedback as far as clarification on the techniques and things to that affect but as far as for management issues as far as Kalalau we really were expecting to receive a lot more than we have. I see the comments that came before us, at least issues that we do need to discuss and address so the point I am trying to make to close down is that we are doing this for public safety reasons. Yes we have larger management issues that we are going to have to deal with. Chair: Who asked that question, Hartwell? Planning Commission Minutes June 8, 2010 39 Mr. Blake: I was just echoing Mr. Bosshard's concerns because I really sympathize with what he is saying because safety is paramount in almost any endeavor. And if the State campaigns Kalalau does all over the world then you can certainly make an argument for the State ensuring that the people that it is inviting to visit Kalalau are not in eminent danger. But if that is the concern on the one hand and the concern on the other hand is if you can't make it safe and you are going to continue to either not going to campaign it anymore, the Na Pali is the crown jewel of the park system as far as I am concerned in the whole State of Hawaii, that you close it down. It is visited by very, very few people and I think that this is a very real concern because you know I don't want to get into the typical Kauai argument about Honolulu people making all the rules for Kauai but often times that is the case. They don't know. They are not here. From where they sit in the air conditioned legislative rooms it sounds very reasonable to close the place down because it is dangerous and so they do. And there are people that live here that have been going in there before it was considered dangerous even though the conditions haven't changed at all and now they cannot go or they are not supposed to go. They are going to suffer some penalty for getting caught in there. I am glad that the State is conscious of the safety issue but I am very concerned about what happens if the safety issue takes on a life of its own and burgeons on and on and on. Actually not on and on and on, on and on one time and then we are precluded from going in there and especially the people who live here and have always gone in there and now to look for the rocks and they know not to walk under the coconut trees because it could fall on you so everybody suffers. It's the road to hell it is paved with good intentions. I don't have a solution that I could propose right now, I don't know if I would ever propose a solution but I think it is a very, very legitimate concern. Mr. Costa: I had to sort or react to your comment because from what I saw and I have only been there once but from what I saw most of the people that are there are not the ones that live here. That was my first time, born and raised. Do you folks actively advertise to hike into Kalalau because I am not aware of that? Mr. Carpenter: I think Kalalau is definitely the poster child for the State, it is Hawaiian Airlines, it is back packer magazine. It is not us. Mr. Costa: But it is a picture of it, it is not go hike in, camp. Mr. Carpenter: Right but everybody sees that and they want to find out where that is and of course they will end up at our site but we don't advertise. Mr. Costa: I wanted to make that clear because I haven't been aware of any advertisement to go hike to Kalalau. W. Carpenter: I don't think we need to. Mr. Costa: But I mean Kalalau, pictures of Kalalau occur as frequently as many others places. Mr. Carpenter: It is known the world over though, absolutely. Ms. Matsumoto: Looking at the site of your project I can see, I think there is a need to address these areas. You know you talk about fractures and you can visibly see that rocks are loose so that is a concern and these look like pretty big pieces, they are not small. And mind you even a boulder that is this large is lethal, potentially lethal so when you look at these pieces here I think it is important to consider that. I don't like the idea of closing the park but for 60 days for safety I think that is a really good, that is not very long if you can do that within that period of time. Mr. Kohler: We are required by permits to be off the beach by the last day of October I believe. Planning Commission Minutes June 8, 2010 40 Ms. Matsumoto: And you are going to be, part of the project is you are going to clean it up, right, it is going to be restored. Mr. Kohler: Correct. I don't know that we have plans to put plants in the ground right now, we haven't worked out those details but the detail is that we will be removing all the debris that we knock off the cliff face including from the stream area. We are not allowed to alter the stream bed essentially or we have not requested to change the course of the stream. Chair: In any case if it goes past the 60 days, if the contractor is not done what kind of ramification or is there a guarantee for the public to know when it will be open? Mr. Kohler: I have to leave that to the contract... Mr. Niku: The contract was bid with 60 working days and we specified the dates that we briefed. The penalty I believe, we have liquidated damage, I don't have the exact number but I think it is like 150 dollars a day. But as Russell was describing we need to get out of there early November and that is part of the bid or the proposal. Chair: But in all cases in construction it is never done... Mr. Niku: This one because of the timeline, we specified 60 working days, September 7th to early November. Chair: So there could be a probability of stopping in November and reopening it again to finish the job in June, right, I mean that could probably happen, right? Mr. Niku: Part of the issue would be (inaudible) of rocks falling into the ocean so we will probably have to... Mr. Kohler: Our Army Corp. permit, our NPDS permit and our 401 which is supposed to come in within the next month or two all stipulate that we have to be off that beach by the end of October. Now the soonest we are allowed to go back I believe is May 1st, April 30ih. We can work in the waterfall stream area past that date which is why we are going to November 7th but that is really for clean up. The scaling piece is not what is going to take the most time, it is the moving of the material to the receiving area that is going to take the most time and we will know very early on if there is an issue with timing. Mr. Niku: Let me just add we will have a full time presence, an engineer, on site and we will be monitoring construction activities and when it gets to a cutoff point where we have suspicions that we may have to abandon whatever else has to take place in order to complete the work that is a call we will be making. However as Toby has indicated that the priority will be the waterfall area and the first thing that we make sure to address will be in that area. That is where the majority of people will be going for water, for washing and that is where the traffic is. So at one point we will determine where the cutoff point will be and we will make that call. Chair: But ultimately the community will just have to sit tight and wait until you make that call. Mr. Niku: It is two months and within those two months we will be finished. That is what we have been tasked with. Chair: How long did it take you guys to get the Army Corp. permitting done? Mr. Kohler: The Army Corp. permit took us about 8 months and it is conditional on other permits always, very typical, and so it is conditional on the NPDS permit which if you are not familiar with has to do with storm water hitting your construction site and then running off and how do you manage that water. And we received that and we are working during the dry months. It was also contingent on a 401 water quality certification from the Department of Health Clean Water branch as well and they are charged with ensuring water quality meets State Planning Commission Minutes June 8, 2010 41 standards. And because it is a State park we had to get an individual water quality certification rather than a blanket one and that one we are still in the process of working on and it will have taken us 16 months to acquire the 401 water quality certification. Chair: So with all this permit processing and allocated funds that you guys have now to do this work that the State has is there any extra funding that say no guarantee after two months that the project doesn't get done, is there extra funding to register all those permits back again and in a year you can come commence work in April? Is that funding secured or is it all this one time shot? Mr. Kohler: I hear two things in what you are saying. One thing is how long are the permits good for, the permits we are receiving are good for, the Corp. is good for 5 years, water quality certification is good for at least 2 or 3 years so the question of us being compliant when we go back to do the work, it can be done. Mr. Kumabe: Chair Raco, as far as for the funding situation if we come to a point where we probably need more funds let's say something else pops up, that is something in which we do, you are right, in a sense the funding we have now for this project is allocated just for this project. The question is do you guys have additional funding in case things need to be completed, something else pops up what are you guys going to do, do you guys have money? That one, we do have I guess sources of funds that we can try and see if we can apply to this, CIP funds, but if it is of a magnitude where we would need a large amount then we would have to go before the leg. to request funding. But if it is to finish up let's say work perhaps that we were not able to complete or additional things came up I do believe we would try and see what available funding we do have. So to answer your question yes, the money is just for this project only. If we need additional funding, if there are large amounts, then we would need to seek additional funds. If it is an amount in which we could try and fund from other sources we will try. The bottom line is that we will try to get this job completed no matter what with the funding we have and with whatever else available funding we can get. Chair: That is my worst case scenario is that the State runs out of funds with all these budgets and the economy there is I can see potentially the argument that the concerned citizen has that the construction budget does not come out in two months and you have to stop because of weather and permitting, you have to wait for the next year even though all the permitting is probably already there that you have to go through the leg. for funding. And that is why I asked the attorney so what representative covers that district, is it Mena or is it Roland but in the bureaucratic process when it goes to the leg. how do we small people here on Kauai really, who can we call to say that job has to get done and put it on someone's agenda with the rest of the representatives (inaudible). Mr. Kumabe: Right now we are kind of in a precarious situation, we do have funding to do these safety projects, unfortunately we don't have the operational funding to...like other agencies around the monies that we received come from different pots so unfortunately you can't shift them around to make sense of, common sense to apply them one way. With that being said I guess to reiterate, to answer your question, whatever else we need to finish up this project we will find a way. Chair: For all sacred practices from our ancestors, how are you guys going to handle that if something does come up while in construction or if something prolongs the time? How do you guys handle that? Mr. Kumabe: If unforeseen types of things are encountered, is that what you are asking? Chair: I guess what I am asking is if any Hawaiian sacred practices want to be done in that area because of its place. Mr. Kumabe: The practitioners, that one as much as possible we are trying to exhaust or we are trying to do an extensive outreach to make sure that we can try and get at least all the stakeholders. If there are practitioners out there that do have that concern or need to utilize the Planning Commission Minutes June 8, 2010 42 area we need to find out who they are and talk with them. To the extent that we could we tried to get in touch with as many people as possible and so far no specific practitioners and/or types of specific activities within that particular section have been identified to us. That doesn't preclude us if we know about it then we do need to accommodate that particular right that they have. To answer your question if we do find out about it we do have to find a way to accommodate their right. Chair: My last question is if you get approval when are you going to start on this project? Mr. Kumabe: The start date would be September 7th, day after Labor Day, Tuesday. Chair: So after Labor Day, two months, from then it will be... Mr. Kumabe: All the way to the end of October is what we are shooting for. Mr. Chair: In your recommendations do you have kind of a status report or anything that the State will have to come back in front of us to provide us a status report or anything like that just in case they go over? Staff. I did not write a condition such as a status report however I did say before and after photographs of the area shall be submitted. Chair: So we could get a status report then. Mr. Blake: Do you allow winter camping? Mr. Kohler: My understanding is that there is a higher permit load permitted for the summer and a reduced permit load issued for the winter. That is the best I have right now. Mr. Blake: I would like Mr. Bosshard a question. Kurt, the camping area stretches all along the beach wherever there is beach in Kalalau at the foot of the valley and Ho `olea Falls is the campers primary water source and bathing area. Is it feasible, when is the last time you were down there? Mr. Bosshard: I will take the fifth about this year and then twice or three times last summer. Mr. Blake: Is it feasible, you have to cross the river to get to the campsite and the river is a bigger water source than the falls so is it possible to divide the park so that you can camp up to a certain demarcation line and thereafter there is no camping so that the whole place isn't closed up from Hanakoa Falls? Mr. Bosshard: Sure, there are lots of camping areas, right now they are not designated though. There are people camping there but they are not designated or permitted. I would agree with the State to say that it is impractical that you can keep people from going to the most beautiful place in the world by saying don't cross this line. They will cross the line and this is the problem that the State has is that they can't put their arm around somebody and say don't go here or don't go there. The people will go where they are going to go. And then the upshot of that is, just for the people watching this perhaps, is that the State could solve this problem by just making the law be that lawsuits wouldn't be successful where the State makes reasonable efforts to warn people. But they have such a high standard of having to warn people or they will get sued if people get hurt in these circumstances. And really the problem is with us because we vote for those laws apparently when we vote for the people that allow everybody to sue us for whatever problem they run in to when they go into these wild places. So that would be just as a general thing there. Are you able to get a camping permit for November 15th Mr. Kumabe: Yes. Mr. Bosshard: So as of November 7th you are opening it back up. Planning Commission Minutes June 8, 2010 43 Mr. Blake: Just for you information Mr. Bosshard is an attorney so he knows of what he speaks regarding lawsuits. Mr. Kumabe: Just to go along with what Kurt was saying about the State's efforts and trying to limit liabilities and things to that effect, that is one reality and what we have done as far as in the Kalalau Beach area we had posted signage. We can post signs up the ying yang and just fingers crossed and people listen to them but as of 2008 we had posted our own park signs that had closed down the area from the comfort station all the way down to the waterfall. We had explicit signs, area closed, do not go beyond this point, area closed, and park signs. In 200912010 we had put what we call Act 82 signs which are natural hazard warning signs. Those are the ones that standards were passed by the legislature in which enacted by our board rules, administrative rules, that specified how the signs should look, the type of verbiage, where they should be placed, etc. The thing about those signs is that rather than staff making a decision as far as where the signs are the board did so it was one in which we had to go in front of the board to get approval to place the signs in these areas. Now we had placed those signs in the later part of last year and this year and we had tried to close down the Kalalau Trail area from the comfort station all the way down to the waterfall, even points before that, even before if you are heading down to Hanakoa side along the trail from the helipad. All along the trail, area closed, area closed. Now I have to admit the residents at Kalalau, they are kind of neat, they take them out and they stack them right by our storage shed rather than just throwing them in the bushes. But none the less the act is that we had authority and direction to put up those closure signs and they were taken down. So we are taking steps to address that part and the bottom line is yes, it provides the State some indemnification but the larger issue that we just don't want anybody to get hurt. So we just want to tell people with adequate approved language this area is closed and we will continue to need to reinstall those signs again and replace those signs. Kurt, like you said we don't have anybody that can say hey, you can't be here. If we had the budget we could have people roaming around Kalalau but we just don't have that type of management operational budget. It comes back down to we do have management issues and situations that we need to address and think about but this will take us some time to do it in an appropriate, proper manner. Commissioner Blake, as much as possible, the direction now is we will try to get at least a reality check with our folks on Kauai and with Kauai stakeholders as far as what is the appropriate way to do that as opposed to having someone from downtown in an air conditioned office making all the decisions. So as much as possible we want that reality check. I think it benefits everybody, especially benefits us as managers and stewards of the area to make the right decisions. Mr. Blake: As is often the case in a construction project you are not able to finish by the end of October it is going to stay closed until you can come back next year and finish it. Mr. Kumabe: And I guess as Artilan had mentioned and Tobias and Alan also is that I guess it depends on what part is still outstanding. If it is the area right around the waterfall which is not on the coastal makai areas I do believe we could address those issues. And to answer your question will the park be closed any longer than that, I do believe the longest tolerance we have is as Toby has mentioned is the first few days in November. That is the only tolerance we have. As far as for the makai areas we do have to get out of there by the end of October. Now if it involves other types of remedial work that we do not need to move masses of debris out or it is more remedial and things to that affect we could do that. The thing is that we just want to make sure that while we are doing the massive debris removal, transport type activities we really don't want anybody around because we really don't want anybody in harm's way. And then the management decision on that, what do we do after that, we do seriously need to think about redirecting where the camping areas should be and accommodate alternative camping areas. What we can do in that regard too is to prepare alternate sites, to try to get the word out. Most of us feel that people who have permits are the ones that listen to what we need Planning Commission Minutes June 8, 2010 44 to do and things to that affect. So if that trend continues that people do listen with the permits then they will be cognizant that there are alternative areas they can go whereas before this part here and now cannot anymore, you go to areas closer. You mentioned the stream, that is an alternative as far as a water source that people can use in case we still need to keep the waterfall area closed that is true, it is a matter of informing people as far as what options or alternatives they have. So the from the time we have now and during the project time is time in which we need to think and set the types of management directions and policies that we need to make for this area of Kalalau. Mr. Blake: It would make me feel more comfortable if we received from the State a worst case scenario before they started work. Mr. Kumabe: Could you maybe kind of specify? I don't know what you mean by worst case scenario. Mr. Blake: Like what is going to happen if we are not through with the rock fall remediation with regard to keeping the park open. What is going to happen if Ho'olea Falls is off limits or continues to be off limits past the remediation time. How will the State discharge its safety responsibilities generally speaking? Ideal you would have a cowboy riding up and down the beach. If you can't do that what are we going to do? Mr. Bosshard: The reality is that the State cannot meet any standard of keeping the public safe down there. Chair: Are you addressing that question to the State? Mr. Blake: I was asking Mr. Kumabe. I was just informing him that I would feel more comfortable in light of everything that we have discussed if the State was able to, if it didn't start looking at the problem when the problem started, to anticipate the problem. Chair: So that question you want to address it to Mr. Kumabe. Mr. Jung: I think Commissioners we need to get back to our rules and how they are set up. If you do want to discuss this you can make a motion to discuss it or if you still have question for the applicant you can continue to ask him questions as long as they are relevant to the particular permit at hand. Mr. Blake: Well I hope my question is relevant. So he is coming in and asking us for a permit so I am saying what about this or that. Chair: So you want that answer to be from... Mr. Blake: Mr. Kumabe. Mr. Kumabe: As far as for developing a worst case scenario, I guess that was the initial question, overall question that you had? Mr. Blake: The overall question is how will the State address or anticipate addressing problems that you can see coming up, cropping up down the road? In a perfect world you never have these problems, everything would go according to plan, perfect weather and everything but we know that that is never the case in a construction job, ever. So what are the situations that you anticipate or reasonably anticipate and how are you going to meet them without closing the park for one or more years until you are able to get the funding back and so forth? Mr. Kohler: I want to point out so we can kind of frame in all the worst case scenarios. One thing is how does it take to take one of those blocks off the cliff face, one or two days. So we are talking four or five work days to take two blocks off the cliff face. The air bag opens the crack and either a lot falls off or a chunk falls off and there is no more crack anymore. So that is the removal of the blocks. The scaling will happen at a certain rate, the contractors know the Planning Commission Minutes June 8, 2010 45 area that needs to be done. What I am getting at is that bringing the rocks down is a fairly certain activity. It will happen at a certain production rate. The unknowns if I were to start to speculate into worst case scenarios have to do with the removal of the material and its transport to the receiving area. In that scenario the material is all down. The risk of something falling would only be from a helicopter dropping a bag. So it is actually the area that would need to be closed and remain closed would be smaller relatively. So we are not going to try and come up with all sorts of crazy worst case scenarios say that it is mainly the clean up area. Another main reason and it came up earlier why we are closing this area to begin with, it is not like a rock will fall off the cliff and go and hit the State cabin it is the fact that there aren't toilets available for safe public use. The receiving area is immediately mauka of the current comfort station. I have to give Russell credit; his group has purchased new toilets. There is an inordinate amount of regulatory issues we need to navigate through and site selection that need to happen for new toilets to be placed. So we are moving a lot of different projects through slowly, this one is ready now to move so as we come up with worst case scenarios you will see that they are going to have to do with the timing of moving the material and not necessarily an unpredictable rock slide. Mr. Blake: Once the rocks are down there is not that much safety problems. Mr. Kumabe: I think the safety problem would be the hauling of the rocks because we have to use helicopters and stuff and it will be transported up so that is the problem. Commissioner Blake, I guess the short answer to your question is that if we have to keep that area of the park closed we will have to keep it closed until we can finish the job if it is not completed. That is the bottom line. Mr. Blake: And it is just going to be that area that the... Mr. Kumabe: It would have to be that area that we are doing if we have to answer your question. I think that is what you are eluding to, what are you guys going to do in case this part you guys cannot finish up, what are you guys going to do. Mr. Blake: Are you going to close the whole park or just that area? Mr. Kumabe: Not the whole park, it is just for that area. Like you had mentioned that is a beautiful trail and it has a lot of resources and amenities. We are just focusing on the very tail end of it so we really don't need to close down the other parts that will not be affected by this project so we will keep the place open. But I guess the short answer to your question is yes, if we don't finish the job we are going to have to keep that area closed. Mr. Blake: That tail area. Mr. Costa: And it is primarily because the toilets are in that area. Mr. Kumabe: There are the toilets and the waterfall so if they know there is another option for water hopefully we can direct everybody that way but yes it is both the toilets and the water and the waterfall. Mr. Costa: I have to say I waited 50 years. I cannot see why somebody cannot wait 2 months. Mr. Blake: But that is by choice. Mr. Costa: Not at all. Mr. Blake: There is another set of toilets though, right? There are two sets of toilets. Mr. Kumabe: As far as for the Kalalau area we do have the one that we have been showing pictures of but we do have another set of toilets further in, in the camping area. Planning Commission Minutes June 8, 2010 46 Mr. Blake: Closer to the river. Mr. Carpenter: There is one more, a single toilet so we would have problems with capacity but to answer your question about whether we are going to allow camping we are going to do whatever we can and we are offering and issuing permits right now after November. Sorry, after October 31St so people are getting them right now. We are expecting them and planning for it to be open then. Chair: Hartwell are you good? This is a public hearing and we can always either continue the public hearing or defer the matter. Let me turn the floor over to Cammie. Ms. Matsumoto: I appreciate everyone's appreciation for the Na Pali coastline and being able to go and visit there. I just want to say that maybe those 60 days, that would be an opportunity for people to go and see the other beautiful parts of Kauai. There are a lot of places to hike and see so it could be a win/win. Chair: With that said I will call the meeting back to order, again Commissioners we can either entertain a motion to close the public hearing... Ms. Morikami: Mr. Chair, move that we close the public hearing. Mr. Nishida: Second. Chair: Any discussion, all those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by James Nishida, to close the public hearing, motion carried unanimously by voice vote. Chair: All agencies have come in, right? Staff: The only agency comments that I am missing, the Office of State Planning hasn't submitted anything and the Department of Land and Natural Resources, Land Management, they weren't submitted. As well, KHCRP was to hear this last hearing date for KHCRP which is the Kauai Historic Preservation Review Commission, they did not have quorum so therefore as it is stated in my report they will be hearing in on Thursday. It was actually scheduled previously but they didn't have quorum. Mr. Costa: They do have a 2 month window that is only open for a little while. I just want to suggest that we could, I know that KHCRP will probably make some recommendations but it is recommendations only and we could because we have in the past take action or actually we have already closed the public hearing but those would be pending those comments. Mr. Kumabe: We will be, there will be project teams and staff will be attending the review commission meeting on Thursday so we could answer any questions that they have. Chair: So we should probably take action on this today being that Historic... Mr. Costa: You are not going to get significant, changing any conditions from them. Chair: The Office of State Planning? Staff: They probably would have responded by now. I can follow up if you so desire. Chair: So do you guys want to hear the recommendations or defer to the next meeting? Mr. Nishida: I think we should decide. Planning Con n fission Minutes June 8, 2010 47 Ms. Morikami: Mr. Chair, being that on the recommendation No. 6 it says other agency comments have to be abided by I think we could take action today. Chair: If that is the pleasure of the Commission then if the planner... Mr. Costa: And the next meeting we have a full calendar. Chair: So if you could read the conclusions. Staff Planner Lisa Ellen Smith read conclusion and department recommendation (on file). Chair: Are there any questions for the planner? Are there any additions from the applicant that you want to comment on? Mr. Kumabe: Not at this time. Chair: What would be the pleasure of the Commission? Ms. Morikami: Mr. Chair, move that this Planning Commission approve the recommendations of the Planning Department pursuant to their request. This is for Special Management Area Use Permit SMA(U)-2010-5. Ms. Matsumoto: Second. Chair: Are we good on the application numbers, 2010-5, discussion? Mr. Blake: Were you going to ask for a status report? Chair: I cannot ask. Mr. Blake: You were interested in having the State submit. Chair: Jimmy, you were interested. Mr. Nishida: Russell, we can have a status report? We wanted a status report 30 days before the end of the contract if the contract was going to be extended. Mr. Kumabe: 30 days before the end of the contract or the project? Mr. Costa: Well they have to be out in October, right, you guys have to be out. Mr. Kumabe: Right. So you wanted that status report... Mr. Nishida: If something was going wrong where you would have to extend. Because most of the rock fall mitigation is going to happen, you are going to know the total rock that came down and any problems with any extension. Mr. Kumabe: Commissioner Nishida, just to clarify, a status report is during the construction period so it would be as Tobias mentioned the first of October, the first October meeting that you folks have? Yes, we have no objections to that. Chair: We just want to make sure you send something in writing but try to be here, present, if the Commission has any questions if you are extending the time. Mr. Blake: Why don't we have it whether they are going to extend it or not? Chair: We can do that too. Just provide us with a status report. Okay, we will wait for our planner to catch up, are there anymore conditions for discussion? Planning Commission Minutes June 8, 2010 48 Staff: Condition No. 7 to be added if it pleases the Commission, "A status report shall be submitted by October 1St, 2010, detailing the progress of the project." Mr. Kohler: Were we going to present that at the October 12th meeting? Staff: That's fine, I am sorry. Chair: You can provide us before the meeting because we will need it for our packets so it is the date she provided, October 1St Staff: For the October 12`h meeting. Mr. Kumabe: The deadline is October 1St Chair: All those in favor ...is there a motion? Mr. Nishida: So moved to amend the staff report as read by the planner. Ms. Morikami: Second. Chair: All those in favor say aye, motion carries. On motion made by James Nishida seconded by Paula Morikami, to amend staff report, motion carried unanimously by voice vote. Chair: Any other conditions or amendments? Then the motion would be to approve. Ms. Morika: Mr. Chair, move to approve Special Management Area Use Permit SMA(U)-2010-5 as amended. Ms. Matsumoto: Second. Chair: All those in favor say aye, opposed. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to approve staff report as amended, motion carried unanimously by voice vote. Staff: We have a setback. Mr. Jung: Item F.3.b. Chair: We will be moving out of order here to agenda item F.3.b. SSCR-2010-10 for a shoreline setback actives determination, Tax Map Key 5-9-001:001 and 5-9-001:002, Na Pali State Park, along the west side of the Kalalau Valley to the east and west of Ho`olea Stream, having a project area of 5.8 acres on two parcels containing 11,250 acres, for acceptance by the Planning Commission = State of Hawaii, DLNR, Dept. of Parks. Director's Report pertaining to this matter. Staff: There is a correction on the agenda, this is my fault, I mislabeled. Chair: It has been noted on the record so you can continue. Staff Planner read Director's report (on file). Chair: For all the Commissioners, have you guys all read the shoreline setback determination? If not I will just move straight into the applicant, if there are any questions or continents that you want to add? Planning Commission Minutes June 8, 2010 49 Mr. Kohler: No. Chair: I will entertain a motion for acceptance and finalization of the Director's report for shoreline setback activity determination for SSCR-2010-10, TMK: 5-9-001:001 and 5-9- 001:002. Ms. Morikami: So moved. Mr. Nishida: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by James Nishida, to approve SSCR-2010-10, motion carried unanimously by voice vote. NEW BUSINESS For Acceptance into Record - Director's Report for Proiect Scheduled for Public Hearing for 6/22/10 Public hearing. Use Permit U-2010-17 and Class IV Zoning Permit Z-IV-2010-19 to outfit an exploration well to install a new potable water supply well referred to as Well No. 5, on property located in Princeville, on Agricultural zone land mauka of the Princeville Airport Facilities via access from a private access road approx. 1.2 miles mauka of its intersection with Kuhi`6 Highway, further identified as Tax Map Key 5-3-001:002, and affecting an area of approx. 1.68 acres = Princeville Utilities Company, Inc. Director's Report Pertaining to this matter. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to accept Director's Report, motion carried unanimously by voice vote. 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 the Kuhi`6 Highway, approx. 1,500 ft. northwest from the Highway's intersection with Kolo Road, Kilauea, further identified as Tax Map Key 5-2017:028, and affecting a 6.55 acre portion of a 15.17 acre property =Anaina Hou. LLC. 1Postponed 4/27/10.1 Director's Report pertaining to this matter. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to accept Director's Report, motion carried unanimously by voice vote. For Acceptance and Finalization - Director's Report for Shoreline Setback Activity Determination. SSCR-2010-9 for a shoreline setback activity determination, Tax Map Key 3-9-006:001, Wailua, Kauai, having a project area of 1 acre on a parcel 39.046 acres, for acceptance by the Planning Commission = County of Kauai, Department of Public Works. Director's Report pertaining to this matter. Staff Planner read Director's report (on file). Chair: Are there any question regarding the Director's report on.the shoreline activity determination? If not I will ask if there is anybody in the public that would like to testify on this agenda item? Seeing none what would be the pleasure of the Commission? There is no public Planning Com¢ussion Minutes - June 8, 2010 50 hearing, just for a motion to accept into record the Director's Report for shoreline activity determination for SSCR-2010-9, Department of Public Works. Mr. Nishida: So moved. Ms. Matsumoto: Second. Mr. June: Just for clarification that is to accept the Director's report, not necessarily for the record but actually accept the report. Mr. Nishida: So moved. Ms. Matsumoto: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by James Nishida and seconded by Camilla Matsumoto, to accept the Director's report for SSCR-2010-9, motion carried unanimously by voice vote. ADJOURNMENT Commission adjourned the meeting at 5:00 p.m. Respectfully Submitted. Lani L. Agoot Commission Support erk Planning Commission Minutes June 8, 2010 51