HomeMy WebLinkAboutpcmin06-22-10
KAUAI PLANNING COMMISSION
REGULAR MEETING
June 22, 2010
The regular meeting of the Planning Commission of the County of Kauai was called to order by
Chair, Caven Raco, at 9:09 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.
Ms. Matsumoto: Second.
Chair: All those in favor say aye.
On motion made by Herman Texeira and seconded by Camilla Matsumoto, to
approve the agenda, motion carried unanimously by voice vote.
Chair: Receipt of items for the record, if I could get a motion to receive into the record.
Mr. Kimura: So moved.
Ms. Matsumoto: Second.
Chair: All those in favor say aye.
On motion made by Jan Kimura and seconded by Camilla Matsumoto, to receive of
all items into the record, motion carried unanimously by voice vote.
Chair: Minutes of the regular meeting on May 11, 2010 and executive session meeting
minutes for May 11, 2010. If there are no comments I will entertain a motion.
Mr. Nishida: Move to approve regular meeting minutes of May 11, 2010 and the
executive session of May 11, 2010.
Ms. Matsumoto: Second.
Chair: All those in favor say aye, motion carries.
On motion made by James Nishida and seconded by Camilla Matsumoto, to
approve regular meeting minutes of May 11, 2010 and executive session minutes of May 11,
2010, motion carried unanimously by voice vote.
' JUL 2 7 2010
GENERAL BUSINESS
Request (5125/10) from Laurel Loo, Esq., on behalf of Safewav Inc. to amend
conditions of approval for Class IV Zoning Permit Z-IV-2009-7 to phase the project for a
commercial center in L-1hu`e, Hokulei Village, and its corresponding traffic improvements into
two (2) separate phases, Tax Map Key 3-3-003:046, L-ihu`e, Kauai.
Staff Report pertaining to this matter.
Staff Planner Kaaina Hull read staff report into record (on file).
Mr. Nishida: I have a question for Kaaina, "however we would be amenable to
immediate construction bonding should the applicant fail to reach substantial performance in
constructing the roundabout at the time a certificate of occupancy is issued to the Safeway
Supermarket Store". So that means that when they get the certificate of occupancy, at that time
then the bonding is required?
Staff: I think the bonding would be required prior to building permit approval.
Mr. Nishida: And would the improvements need to be made before the certificate of
occupancy?
Staff: I might defer that to the County Attorney because if the applicant did themselves
install the roundabout prior to the certificate of occupancy it would be on the shoulders of the
County to install the roundabout.
W. Nishida: So this one still requires, the bonding has to come in early but the
roundabout still has to be, their recommendation is the roundabout still be installed before the
certificate of occupancy for the Phase I.
Mr. Dahilig: The way I would read it Commissioner is that paragraph LA, currently
under the permit, requires that the applicant shall construct the roundabout. What the engineer is
recommending is that if that improvement did not reach substantial performance by the time the
certificate of occupancy is issued to the Safeway Supermarket Store, that the bond can be called
in to complete the improvements or actually do the full improvements.
W. Nishida: So they cannot get the certificate of occupancy until the...
Mr. Dahilig: The way I am reading it is they can receive the certificate of occupancy but
then the responsibility for constructing the roundabout could fall to the County if there is no
substantial performance on the roundabout.
Mr. Blake: Why is that?
W. Dahilig: That is the nature of the bond so if there is no performance and usually the
standard practice as part of an exaction that if someone doesn't build what they promise to build
and it is an improvement the County needs, that that bond would pay for it.
Staff: Just to clarify Commissioner Blake, what the specific request is on the table right
now is to phase out the project which the department has no objections to except for the specific
phasing of the roundabout was to Phase 11. In the event that Phase H doesn't occur and the
roundabout is never installed the bond is being instituted so that the County of Kauai can install
the roundabout on its own.
Mr. Blake: So the roundabout is going to go in irrespective of whether Phase H comes in.
Staff: You are essentially correct, if they never come in for Phase H then it would be on
the County of Kauai to call in the bond.
Chair: Any more questions Jimmy?
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June 22, 2010
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Mr. Nishida: No.
Mr. Blake: Nuhou Street is the one that goes past Costco and connects onto Knhi`o
Highway, right, or Kaumuali`i Highway?
Mr. Dahilig: Yes.
Mr. Blake: It goes past the school?
Staff. Yes.
Mr. Blake: Where are the crosswalks with regard to Nuhou Street in the vicinity of the
School and Safeway?
Staff: They are at the NuhoulKaneka Street intersection which is where the roundabout
would be installed.
Mr. Blake: That is the only one?
Chair: Do you have a map?
Staff: We have a map attached on the applicant's application.
Mr. Kimura: So if Phase H doesn't get built the County is responsible for the
roundabout? Is that what you are trying to tell me, the County will be paying for that?
Mr. Dahilig: What will happen is the bond is meant as a guarantee that will go in so in
lieu of the improvement money will come into the County (inaudible) for which they can use to
construct the roundabout that Safeway, in the event that they don't build it. So it wouldn't be on
the County's dime. It is like insurance, essentially.
Mr. Kimura: But if Phase II doesn't get built how long after that would the roundabout
be put in?
Mr. Dahilig: Right now what it is saying is the roundabout should be put in, in Phase I
but if by the time the Safeway Store does open and they do not reach substantial performance on
the roundabout that the County at that time has the right to exercise and call in the bond.
Chair: And for his clarification the bond is paid by the applicant. Although exhibit D
shows the sidewalk, it doesn't really show ...we don't have a blow up?
Staff: We don't have a blow up. I can double check in the previous files to see if we
have a blow up in the office.
Mr. Kimura: Even if Phase I gets built there would still be a big increase in traffic, right?
Mr. Dahilig: I am not an engineer so I can't answer but I would anticipate there would be
an increase in traffic. In terms of how to quantify that is for an engineer to...
Mr. Kimura: So it would make a lot of sense if we still put the roundabout during Phase I.
Mr. Dahilig: I think that is the engineer's recommendation.
Chair: From the TIR? You are talking Public Works?
Mr. Dahilig: Public Work's recommendation.
Mr. Kimura: For the pedestrians, right?
Mr. Dahilig: For the safety of the pedestrians and the traveling public.
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Mr. Kimura: I totally agree.
Mr. Blake: So the roundabout goes in during Phase I...
Mr. Kimura: You are stilling getting more increase in traffic, right?
Mr. Blake: Right.
Mr. Kimura: So for the safety of the pedestrians the roundabout should still be put in.
Mr. Blake: Right and they will put it in, right?
Mr. Kimura: During Phase I.
Mr. Blake: I understand the reason for the bond and all that but that is a whole other 3 or
4 years of delay so to me conditions like that should be made part of the overall project. If that is
the requirement you put it in. Because if we have to call the bond then you have to go through a
whole other process which is much less efficient than if Safeway does it as part of their Phase I
plan. Even if it comes at the end of Phase I. There should be a condition that doesn't change.
Mr. Nishida: I think we should, sorry to interrupt but I think we need to include some
other parts to this. The other half of the department's, the Engineering's comments include that
they still be held to 1 through 5 which I think is going to address some of the concerns that I now
we had in the original application. So I was wondering if...
Chair: 1 through 5 of the original conditions?
Mr. Nishida: Yes, which briefly Kaaina, you can just list briefly what they were?
Chair: Read 1 through 5.
Staff: 1(a) was the subject roundabout that was the subject of the discussion. 1(b) was a
pedestrian activated signal with in-pavement lighting and a pedestrian crosswalk at the access
point immediately adjacent to the intermediate school's bus access on Nuhou Street. Condition
No. 2 was a 4 foot hedge along Nuhou Street so as to discourage pedestrians from crossing at
any other area than the designated crosswalks. Condition No. 3 is flashing school warning signs
on Nuhou and Kaneka streets. And condition No. 4 is curbs, gutters, and sidewalks on the
Kalopa Street extension and condition No. 5 is a pedestrian crossing at Kalepa Street and
Ulumika Street intersection.
Mr. Nishida: Condition No. 1 actually is the roundabout but also what it is, is limiting
the vehicular points to access Safeway so that is why there are vehicles going to these two
vehicular points and all these other things that are involved. And what Engineering did was
remove the requirement for construction at the beginning and put in a bond, right?
Staff. I don't think they are necessarily removing the construction of the improvements
but they are just recommending that bonding be included as additional guarantees that the
roundabout is ultimately constructed.
Mr. Nishida: So this one, "The applicant shall install a pedestrian activated signal with
in-pavement lights and a pedestrian crosswalk at this access. The applicant shall install a raised
curb island." This is all part of the roundabout?
Staff: Correct.
Mr. Nishida: So this would be part of the bonding, the pedestrian crossing and that kind
of stuff whereas the other crosswalks at the other streets they recommend doing, that is part of
Phase I?
Staff: The thing is, Safeway isn't asking to phase out those improvements. I think the
concern with Public Works is that the phasing of the roundabout was to Phase H and so they
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June 22, 2010
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recommended to ensure that that roundabout is installed a bonding process. The other
improvements Safeway is saying they will construct in Phase I.
Chair: Any more questions?
Mr. Blake: So if I understand what is happening Phase I is underway. The roundabout
was part of the overall project conditions. It is shifted to Phase H and if Phase H does not happen
then the bond is going to be called because the County wants the roundabout to go in anyway, is
that correct Kaama?
Staff: The bond will be put into place, we would have to draft up a condition of approval
but I would imagine in some form prior to building permit approval of Phase I a bond shall be
instituted. And in the event that the roundabout is not installed the County may call in that bond.
Mr. Nishida: At the time of the certificate of occupancy the bond can be called.
Staff: It can be called, correct.
Mr. Blake: Is there any reasonable argument for not requiring the roundabout to be done
before the certificate of occupancy of Phase I is issued?
Staff: I think that is a question for the applicant as that is what they are applying is that
they do it during Phase Ii. And right now we are, with Public Works recommendation, we are
still holding to condition No. 1 which is to install the roundabout in Phase I with added insurance
via the bonding. So the justification, you might want to talk to the applicant for that.
Chair: Any more question before I call the applicant?
Mr. Texeira: Kaaina, in the applicant's amendment in the exhibit they provided for us
they mention on that last page that the applicant is timing its grand opening of Phase I to just
after, "Upon highway improvements are completed and this is recently estimated in the winter of
201 l." So looking at the time frame that was provided it would take about a year to complete
the, is it the site preparation for Phase I? Would it take about a year, is that a reasonable
assumption on the part of the applicant?
Staff: I would defer that question to the applicant.
Mr. Texeira: I will just wait then.
Chair: Any more questions Herman? If there are no more questions I will call the
applicant up.
Ms. Laurel Loo: Good morning Chairman Raco and Commissioners, Laurel Loo on
behalf of Safeway. I hope I can answer your questions. We have no objections to the
Department of Public Works comments that were distributed today. I do have a proposed
condition for you to consider regarding the phasing of the roundabout. We want the
Commissioners to know that we have met with Regency at Puakea, Chiefess and the YMCA, the
immediately adjacent people, the most populated areas that are adjacent to where the shopping
center will be built to advise them of our appearance today in front of the Planning Commission
and our plans to phase and have received no objection from them. In speaking to them it is clear
that everyone is excited about having Safeway come to Li11u`e and so we are proposing to time
our Phase I completion and opening with the completion of the Department of Transportation's
adjacent highway improvements.
I just read in the paper last week that now they anticipate a later date than the winter of
2011. Whatever that ultimate date may be in the area adjacent to where the shopping center will
be built, we are working with the Department of Transportation so that our opening can occur
shortly after or upon their completion in that area because we don't want to open without people
having the opportunity to turn into the shopping center from the highway. Unfortunately
because the economy as you can see from the application we have had difficulty filling Phase 11
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although we are hoping that with the construction of Phase I we will get interest and more
tenants in Phase R so that Phase II can be built seamlessly upon completion of Phase I.
So in response to your question about the building of the roundabout, the building of the
roundabout was specifically proposed by the applicant as the answer to how to calm traffic in the
area upon the opening of the entire shopping center, all of Phase I and Phase II which at that
point was just one entire shopping center. The supplemental traffic impact analysis is a very
thick document and has a lot of numbers in it but I think the upshot of it is that the traffic
engineers have concluded and Public Works has agreed that the roundabout is not recommended
to be built until Phase 11. The roundabout was to primarily address traffic in the area that would
be generated in large part because of the intersection going into the shopping center in Phase II
which will not happen until Phase II is built. So I think it is troublesome to require the
roundabout to be built as part of Phase I when it would not serve the same function that it was
envisioned. The function of the roundabout was envisioned upon completion of the entire
shopping center. And I think it is problematic to try to force an intersection improvement when
it is not warranted by a traffic study and the engineers who did them. The study has been given
to the Planning Department and we have met with Public Works and in meeting with the
engineers their agreement is that it should be built in Phase R and not Phase I.
But I understand the County's concerns about should Phase II never be built and we are
willing to propose language. Because the initial plan was to build the shopping center from the
highway going back the roundabout would only have been built at the completion of the entire
shopping center in any case. So my proposal is that we include language or words to the effect
and I provided it to your attorney to say "Upon completion of Phase I if Phase 11 is not under
construction the applicant shall post a bond to guarantee construction of the roundabout." One
caveat in when the roundabout is built is we believe that the roundabout will only adequately
function as a traffic enhancement tool when it is used in conjunction with Phase 11. In the
current request before you the applicant is agreeing to build four out of five accesses to the
shopping center just for Phase I. The last one is Phase II, the roundabout for Phase II, which
would serve as a primary access for that end of the shopping center. During the construction of
Phase I that will remain grassed, unapproachable, undeveloped, and vacant. There would be no
access into the shopping center from the roundabout.
I would just hate to tamper with the engineer's finding that the roundabout should be
built in our phasing application in Phase II and not Phase I. Not being an engineer I can't answer
all the questions about the increase although I am happy to give you the traffic impact analysis
report but it does conclude the Phase I of the project contributes approximately 4% of the total
traffic volume at the Nuhou(Kaneka Street intersection in the year 2012, "therefore, due to
minimal contribution from Phase I of the project a roundabout at NuhoulKaneka will be
constructed with Phase II". And it is later explained why it is recommended to be built in Phase
II. There are a lot of charts and a lot of numbers. We have gone over it with our consultants and
Mr. Kudo of Public Works and obviously with our many traffic engineers.
Chair: Thank you Laurel. Are there any questions for the applicant?
Mr. Blake: I wasn't when this initially came before the Commission so some of this may
have already been covered and if so just cut me off but I was looking at the preliminary
evaluation of October 28th regarding the landscape plan. Will they, meaning the developer, be
utilizing native plants?
Ms. Loo: Absolutely.
Mr. Blake: There will be trees within the actual parking spaces, is that correct?
Ms. Loo: We had provided and I have a copy with me of the initial application with a
very detailed explanation of the landscaping that includes a lot of trees, shrubs and native plants.
Mr. Blake: My concern is that when Wal-Mart went in there was a specific condition
that they were supposed to put in mature trees in the parking lot. They put in saplings, nobody
said anything and now the saplings are mature. But it took years for those trees to provide the
shade and to break up the massing of all that asphalt. So I would like to ask that the developer be
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especially cognizant of that fact and that large canopy trees that are planted not be potentially
large but large when they are put in.
Chair: Are you done Hartwell?
Staff: If I could just inject for a matter of clarification given the past testimony, while the
traffic impact analysis report has been amended to state that the roundabout is not warranted
during Phase R the County Engineer's comments do state that the traffic roundabout shall still be
installed. So I just had to interject to clarify that point.
Mr. Nishida: Laurel said that they would have 4 access points but condition No. 1 of the
original application says "The applicant shall be limited to 2 vehicular access points on Nuhou
Street". So where are access points and did I misunderstand?
Staff: They have 2 on Nuhou, 1 on the highway and then another on Kalopa Street.
Mr. Nishida: What you are saying is they are only going to have 1 access point during
Phase I and then the one where the roundabout was going to be is not going to be installed until
the roundabout gets installed.
Ms. Loo: I have a larger map that maybe Mr. Hull can pass out to you that explains
where the Phase I access points are or illustrates are.
Chair: So there are 4 ingress and egress into the project. What were you saying Jimmy?
Mr. Nishida: I just wanted to know the locations and what would happen...
Chair: Did you say 5 or did you say 4?
Ms. Loo: In Phase I we are building 4 out of all 5 accesses to the entire project. The last
access, 5, would be the roundabout when Phase R is built.
Chair: Because I see 5.
Ms. Loo: Total. So in response to...
Chair: Wait, I see 4, where is the 5`h?
Ms. Nishida: Yes, where are they?
Chair: Unless 5 is the pedestrian at the corner.
Ms. Loo: Access points at the top on the upper left hand are pedestrian. So in response
to what Mr. Hull just said about Public Works comments, if you read the comments you will see
that, if you read them clearly, the last paragraph of paragraph 1 is really confusing to me but they
are saying not building the roundabout in Phase I but posting a bond to ensure its completion. I
want to give the County the out because the traffic impact analysis report prepared by the traffic
engineer recommends that the roundabout be built in Phase R. If the County wants to build in
Phase R, if the County wants to build it earlier and override the traffic engineer's
recommendation we are willing to provide the bonding for that but I think the County should
leave its self an out as to when they want to build, if they want to build it earlier than Phase II.
We are proposing it be built in Phase R based on our traffic engineer's report.
If the County wants to build it earlier we would be willing to provide a bond to do that
but I think the County maybe wouldn't want to tie its self to when it would be built but make that
decision maybe at the completion of Phase I as opposed to today. And we are willing to provide
the language. We just want to provide that ability to the County upon the completion of Phase I.
I would oppose a bond being posted today because that would be 2 million dollars for the bond
sitting unused until Phase I is completed. I would have no objection to upon completion of
Phase I that the applicant post a bond or construct the roundabout if the County so desires but it
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June 22, 2010
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is not our desire to construct the roundabout in Phase I it is the County's desire from what I am
hearing.
Mr. Nishida: A question for Mike, back to the last sentence, it says...
Chair: Of what?
Mr. Nishida: Building and Engineering's recommendation in Public Works.
Chair: The one we just received this morning?
Mr. Nishida: Yes. Condition No. 1, the last sentence it says "However we would be
amenable to immediate construction bonding should the applicant fail to reach substantial
performance in constructing the roundabout at the time of the certificate of occupancy is issued
to the Safeway Supermarket Store". So the Safeway is going to be part of Phase I, right?
Ms. Loo: Right.
Mr. Nishida: So to me this sounds like if substantial construction to the roundabout at the
time of the certificate of occupancy immediate bonding is required.
Mr. Dahilig: What this says is that immediate bonding which is really if you read it in
two parts, "we would be amenable to construction bonding" which I would say right now,
"should the applicant fail to reach substantial performance in construction of the roundabout at
the time of the certificate of occupancy is issued to the Safeway Supermarket Store." That is the
timing element of when the County as attached to the bond would be making a call when to
move forward with the roundabout or not. So let's say that Safeway does not put in the
roundabout and maybe the TIAR as predicted does say that it is not warranted at the time, the
County has the option to yank the bond or not yank the bond once ...because the big draw here is
the Safeway Store and so essentially it could be a way to delay the roundabout in a sense and
evaluate. And yet, still guarantee that it can be build should the Phase I traffic show that maybe
it is warranted. So it gives the County the option to choose whether to put it in and in fact they
could say maybe it is better we wait a little longer before putting in the roundabout but that
would be the triggering mechanism from (inaudible).
Chair: Any more questions for the applicant? If not then I will take public testimony.
You have a question Herman?
Mr. Texeira: Laurel, in looking at your construction phasing schedule when you look at
the 2012 date for Safeway's construction, 2012 is the completed date or the start date?
Ms. Loo: That is the completed date. The last I read in the paper DOT said that it would
estimate completion in 2012 so we are targeting our completion to their completion of the
adjacent highway improvements. If it is earlier we are going to try to do it earlier.
Mr. Texeira: So that means that you will undertake Phase I about a year prior to that,
2011?
Ms. Loo: A year or maybe 14, 16, 18 months prior, yes.
Chair: So you would be starting this year or next year?
Ms. Loo: We want to submit our construction plans for Phase I right away.
Mr. Blake: This is just a side comment and I don't want to tell the engineers what to do
but recently when I was at a meeting with Grove Farm they were talking about the paving system
that permeable so that it doesn't all run off into the drainage system. And I am not sure if that
type of permeable surface is appropriate for a project of this size but if it is and I know the public
would appreciate the development looking into that so that all that non-point source pollution off
the asphalt in the parking lot doesn't flow down into Nawiliwili Harbor.
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Chair: Thank you. Is there anybody in the public that would like to testify on this
agenda item? Seeing no one, what would be the pleasure of the Commission? Do you want to
read the condition Kaaina?
Staff: In response to the County Engineer's comments the department would recommend
two conditions of approval be placed on to the existing conditions of approval. The first one
actually would be an amendment to LA which would state the following, "Prior to building
permit approval for any element of Phase I the applicant shall obtain a construction bond for the
single-lane roundabout improvement naming the County of Kauai as beneficiary. The County
may exercise its option to call in the bond should the applicant fail to reach substantial
performance in constructing the roundabout at a time the certificate of occupancy is issued to the
Safeway Supermarket Store."
Chair: These are conditions you have right now with you? We don't have it in our
packets.
Staff: No, this was just drafted in response to this morning's comments. I can read it
again.
Chair: Let me take a 2 minute recess and why don't you go make copies.
Commission recessed at 9:53 a.m.
Meeting was called back to order at 10:05 a.m.
Chair: So Kaaina, do you want to read the condition into the record?
Staff: The department would recommend two conditions of approval be added to the
existing conditions of approval. Actually LA should be amended to read as follows, "Prior to
building permit approval for any element of Phase I the applicant shall obtain a construction
bond for the single-lane roundabout improvement naming the County of Kauai as beneficiary.
The County may exercise its option to call in the bond should the applicant fail to reach
substantial performance in constructing the roundabout at the time a certificate of occupancy is
issued to the Safeway Supermarket Store." The second condition that should be added, No. 16,
"Pedestrian conditions 1 through 5 shall be implemented in Phase I and coordinated with Phase
11 improvements such that the pedestrian related improvements constructed in Phase I do not
need to be removed or require minimum modifications when Phase II is implemented."
Chair: Commissioners, any questions?
Mr. Nishida: I kind of have a problem with that. So LA is going to be replaced with
this?
Staff: No, this will be added to what currently exists in I.A.
Mr. Nishida: So you have LA and B already so where does this go?
Staff: I would just go in there or it could also be LA, sub-sect. 1.
Chair: Would the applicant like to comment on this?
Ms. Loo: Thank you. Just based on the fact that the only traffic engineer who has opined
on this subject in our supplemental TIAR has said that the roundabout should not be built until
Phase II is built I would suggest taking out the second sentence of I.A. It still provides the
County the bond but it triggers the certificate of occupancy to Safeway with substantial
performance in constructing the roundabout. And we are saying the roundabout should not be
built until Phase H is built although we are willing to provide the financial guarantee that it will
be built when the County wants it built. I don't think the County wants to tie it today to opening
of the Safeway store because that is a Phase I improvement. I think if we left the timing at the
County's discretion but not to occupancy of the Safeway store. It would be more... again, I think
it would be a better traffic situation because the roundabout was built to accommodate Phase II
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June 22, 2010
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and not Phase I, primarily, but this condition ties it to the completion and occupancy of Phase I
which I am not sure whether the County wants to do it but having said that we are willing to post
the bond during Phase I if that is what the County wants.
Mr. Texeira: I would like to see that in writing, that proposal, if that is possible.
Chair: That is something that we can entertain and have discussions if we want to delete
or modify the proposed condition from the department. I have one question, did the TZAR, I
know its study does its report on traffic but does it report on the pedestrian impact?
Ms. Loo: Yes it does.
Chair: And still the TZAR report suggests that still with that construction of Phase H that
that is where the roundabout would most likely be...
Ms. Loo: That is correct, because the pedestrians in relationship to the roundabout, the
majority of them should only be there to access Phase R. Until Phase II is built there is only
brush and grass and no access. In fact we want to build, there is a requirement that we build a
hedge along Nuhou to minimize pedestrians from running across Nuhou Street to the project so
we want to, until Phase II is built, direct as much of that pedestrian traffic toward that flashing
crosswalk light across the bus access. We don't want people crossing into the vacant brush
where the roundabout would eventually be and there is no reason for people to cross at that
intersection because there is nothing there to access now.
Chair: Right now condition No. 4, Kaaina, "The applicant shall install pedestrian
crossing at Kalepa Street and Ulu (inaudible)", but does sidewalk from Nuhou Road, I am not
really sure, does the sidewalk from Phase II continue all the way up to Phase I now?
Staff: The sidewalk up Nuhou Road right now goes all the way to the Regency as well as
on the school side it goes all the way, virtually, not all the way but virtually all the way up to the
YMCA.
Chair: So right now on the Safeway side the sidewalk goes all the way up to Kaumuali`i
Highway?
Staff: No, the sidewalk I believe goes only up to the intersection of Nuhou and Kaneka.
Chair: That is where the brush ends so there would be no need for...
Staff. I believe with the applicant's proposal right now once Phase I gets instituted there
will be a sidewalk all the way up to the highway.
Chair: Say that again?
Staff: Once Phase I is implemented the sidewalk on Nuhou Street on the Safeway side of
Nuhou Street will extend all the way to the highway.
Chair: Okay, are there any more questions?
Mr. Blake: Ms. Loo, how would you suggest proposed LA read?
Ms. Loo: I would just delete the last sentence of LA, don't tie the County to when it is
supposed to consider exercising its option. There will be a bond posted. If there is a need for the
roundabout the County can call in the bond. There will be a bond posted during Phase I for the
construction of the roundabout.
Mr. Blake: And right now it says prior to building permit approval for any element of
Phase I so the way this reads the bond goes up first and then building approval is issued.
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Ms. Loo: Right. We would actually prefer prior to the certificate of occupancy for Phase
I on the same theory that we don't believe the roundabout is necessary until Phase H. Why post
a bond a year and a half before it would ever be called on? It would still be a permit condition.
Mr. Costa: One of the problems with that is the certificate of occupancy is issued once
the building code requirements are met irrespective of any land use conditions. Occupancy is a
building code certificate. Once you meet the building code requirements it is issued and really
has little bearing on any off-site improvements or site improvements.
Staff: So essentially the department couldn't ensure that the bond was issued, it would
have to be Public Works. If it is going to be a condition of approval under a zoning permit
generally the department recommends that we do it prior to building permit approval so that the
department in signing off on the building permit doesn't sign off until said conditions are met.
Mr. Blake: Run that by me again?
Staff: If you issue a condition that needs to be me by the applicant prior to the certificate
of occupancy it is on the shoulders of Public Works to ensure that that condition is met. We
cannot hold them to it because we will have already signed off on their building permit. So
generally we recommend that any conditions of approval be mandated to be met prior to building
permit approval by the Planning Department. So before we sign off on the building permit we
ensure in this case that the bond has been posted.
Chair: The bond be posted at the time of building permit approval.
Staff: Prior to building permit approval.
Mr. Blake: This says for any element of Phase I so if they start grubbing, according to
this, they have to post a bond.
Staff: We don't sign off on the grading permit.
Mr. Blake: What is an element of building permit approval for any element? What is an
element?
Staff: Generally they are going to come in for the whole Phase I or bulk of plans with all
the buildings together but it is not uncommon to submit different buildings at different times.
Say they submit the Safeway building and then subsequent to that they submit a separate retailer
building, so essentially prior to the first building permit, whatever building it may be, it may be a
single building or it may be the entire Phase I complex but prior to the first signature going off
on that the bond shall be posted, essentially.
Mr. Costa: Each building will have a building permit so for Phase I you would probably
have at least 7 building permits.
Mr. Blake: And the way this reads if the building permit for the smallest building comes
in first the bond has to be posted.
Staff. Correct.
Mr. Blake: That is your understanding.
Ms. Loo: I am a little confused but this is why I would encourage my original proposal
which was upon completion of Phase I applicant shall post a bond, period.
Mr. Blake: Is there any way to, if Public Works issues a certificate of occupancy and
Safeway has yet to hand that bond over to the Department of Finance, how does or can the
County ensure that that happens simultaneously or very close to simultaneously?
Staff. Some of the discussion is really to have with Public Works but there is really no
way I would say that the Planning Department can ensure that that will happen simultaneously.
Planning Commission Minutes
June 22, 2010
11
Mr. Costa: From experience I am not sure even the Department of Public Works can
ensure that because the Building Division, again, the certificate of occupancy is a building code
requirement not a Public Works requirement. So the Building Division upon completion of its
final inspection, they issue a certificate of occupancy regardless of whether grading is complete
or any other non-building...
Chair: Laurel, when would you applicant or would your applicant entertain that, when
would be the soonest they could put the bond up? You said they could put the bond up today,
right, if they wanted to or are you saying you would rather put the bond up when Phase 11 is
started?
Ms. Loo: I would say immediately upon completion of Phase I the applicant shall post a
bond to complete the roundabout.
Chair: So what this condition is saying is that the department is requiring that the bond
be put up before, while in building permit approval.
Mr. Kimura: Looking at this, the applicant is asking for this project to be done in two
phases. We are allowing them to do it in two phases, we are already saving them tons of money
by doing that, right, in two phases, am I correct?
Ms. Loo: Yes.
Mr. Kimura: A roundabout should be something that you guys would be willing to do on
your own without all these problems we are having right now being that we are allowing you
guys to do this in two phases. I don't see a problem with the roundabout making a big issue of
the roundabout when we are allowing you guys to do it in two phases as it is.
Ms. Loo: The roundabout will be built. It is a question I think now of when it should be
built.
Mr. Kimura: What I am saying is the department is allowing you guys to do it in two
phases which they could have said no, you have to do it all at once.
Chair: Right now the department is not allowing anybody to do it in phases.
Mr. Kimura: Well the recommendations and with that being said they are saving you
guys a lot of money because of the economy, right, and giving back just a roundabout I don't
think is that big of a deal compared to the money you would be saving on the two phase project.
Ms. Loo: I think it is not whether to build the roundabout but it is when to build the
roundabout and if the Commission agrees that that decision should be made upon completion of
Phase I and if the County wants to make that decision we would be happy to defer that decision
making to them. If the County doesn't want to be held by who makes the decision then language
that immediately upon completion of Phase I a bond shall be posted for construction doesn't tie
anybody to a decision being made as to when it is built.
Mr. Kimura: I understand that but what I am trying to say is it is a give and take
situation and with the department recommending that we do it in two phases, allowing you guys
to do it in two phases and all they are asking for is the roundabout, you know what I am trying to
tell you?
Ms. Loo: Yes.
Chair: Any more questions?
Mr. Texeira: Going back to the cost of the roundabout, what are you folks estimating?
Ms. Loo: I don't know.
Planning Commission Minutes
June 22, 2010
12
Ms. Texeira: Does anybody have an estimate?
Chair: I don't have an estimate.
Mr. Texeira: I think, Laurel, originally you mentioned something about posting a 2
million dollar, having 2 million in some trust.
Ms. Loo: Right, I think that would be a minimum. The numbers I have heard for the
roundabout was between and 2 and 4 or maybe more, million.
Mr. Texeira: That is quite substantial.
Chair: Any more questions for Laurel, thank you. What would be the pleasure of the
Commission? I guess there are two options for us; either we defer the agenda item or...
Mr. Dahilig: You can defer the agenda item and decline to even take action on the
proposed changes to the issued permits or you can adopt the Planning Department's
recommendation in whole or adopt it with modifications as deemed by the Commission.
Chair: What would be the pleasure of the Commission or if we want to have discussion
on this matter I could entertain a motion.
Mr. Nishida: Move to approve staff report as amended, well it's not amended, as read
with the additional conditions or do you want an amendment? How do you want to do this?
Chair: We can go into discussion.
Mr. Nishida: Move to approve staff report as proposed by the department.
Chair: And the staff report would be the one that was handed out that was read by the
applicant so is there a second?
Ms. Morikami: Second.
Chair: Any discussion?
Mr. Texeira: Does that include the...?
Chair: That motion does include, is to approve that.
Mr. Texeira: I would be voting against it. I don't think we need to hold the developer
hostage for 2 to 4 million dollars during this time frame.
Chair: Any more discussion?
Ms. Morikami: Yes Mr. Chair, is the motion to approve the original staff report and then
we will later amend it to include these two conditions?
Chair: No, the motion is to approve as read by the...the staff report was just an
evaluation and upon the evaluation since we received it for the record that this is the conditions
as amended by the department as was read and was provided to us. And if you want me to have
the planner read it I can have him read it into the record.
Mr. Nishida: What I think Kaaina said when I asked him earlier was that this, what was
the first paragraph is going to be added as 1.A, subsection 1.
Staff: LA, subsection 1.
Mr. Nishida: So it is going to be added to the bottom of LA and then No. 16 is going to
be added at the end.
Planning Commission Minutes
June 22, 2010
13
Staff: Correct.
Chair: So that is the motion on the floor for discussion.
Mr. Nishida: As part of the discussion I have a question for the department.
Chair: Let me see if Paula...?
Ms. Morikami: Just parliamentary procedure wise, I thought we just make the motion t
approve the Phase I/Phase II separation and then we would do amendments afterwards but I
understand you are putting it all together.
Mr. Dahilia: That is the motion as I understand it.
Chair: Jimmy?
Staff: Just to interject, the motion is to approve Phase I/Phase II and then discuss the
amendments separate?
Mr. Dahilig: As far as what was stated I understand it would be the staff report as well as
the addendums to the staff report, all encompassing as one motion.
Mr. Nishida: So Ian, the problem with delaying the application of the bond is because the
department has no say over the issuing of the certificate of occupancy so there would be no
notification or anything to the department. It is not part of the normal, it is not something where
they would apply where as with building permits the department has to sign off on the building
plans, they review the plans and they sign off. So at that point that is why you are saying that,
that is why the department is proposing that at that time the bond be issued because you normally
have a time when you review.
Mr. Costa: Right, that is something that we have control over. I think the certificate of
occupancy is always one of the valuable hammers or carrots if you will for the applicant but that
is not something that we have control over.
Mr. Nishida: So what if as a compromise we give a date, say a year from now, a year and
a half from now and then you put that date in there. Is that something that the department can
work with?
Mr. Costa: It could, it is not much different than the occupancy. In other words if it
doesn't happen we still have to take some other means to make it happen and the means probably
would be some order to show cause or some mechanism like that.
Mr. Nishida: I see, whereas the way that the department is proposing you would just look
at the building permit application, you wouldn't sign off until the bond was posted.
Mr. Costa: Right and therefore if we don't sign off the building permit doesn't get issued
in the first place.
Mr. Nishida: So what I am proposing you would have to, if it didn't come in, you would
have to keep track of it for one thing and then if it didn't happen then it would be an order to
show cause.
Mr. Costa: Well we would ask nicely first but those don't usually work. If it is the intent
of the applicant not to take action on that item then it usually drags on.
Mr. Nishida: So if an order to show cause happened the building permit still continues
on, they can get a certificate of occupancy, they can do all that stuff because this is a zoning
violation and separate from building.
Mr. Costa: Correct.
Planning Commission Minutes
June 22, 2010
14
M r. Blake: I understand where the applicant is coming from, not tying up that money
right from the get go which should assist in the completion of the project. But my concern was
from the beginning that we don't get stuck with changing conditions that the ideal solution
would be the roundabout but now we have to compromise because of the world situation or
whatever. So if the posting of the bond is made a condition at the beginning that they tie up that
much money, however much money it is, if the posting of the bond happens at some later date
we have expect that they will post it. But if they don't then we are going to have to make them
post it.
Mr. Costa: Right and we would have to find some other means to encourage them I
guess if you will. Another way and it is all about timing but there will be a number of probably
tenant improvements once the buildings are complete so you are going to have some other
tenants coming in for building permits. We could hold off on those but I am not sure what kind
of leverage that gives us in the end. And I am just stating the reality of it, we lose control
basically once we sign off on the building permit. And that is an ongoing battle for the
department, we should be able to work with our sister agencies but everybody is held to different
standards.
Chair: Any more discussion?
Mr. Blake: I don't know if there is a way to compromise and I would like to see a
compromise. I think the ramifications are whether the project goes through, how soon it goes
through, what type of employment it provides for Kauai versus if they decide to not be
cooperative at all then the road to hell becomes paved with all our good intentions.
Mr. Costa: It is unfortunate that we don't operate as we would like to operate on trust but
perhaps another way is to just simply say that within a given time frame whether it is upon
completion of Phase I that if the bond is not posted within a certain time frame that the
department initiate an order to show cause. I am sure Safeway upon opening would not, it would
not serve them well.
Mr. Blake: I like that.
Mr. Texeira: I like that.
Mr. Costa: That way we would not have to go through any investigation to put together
an order to show cause if it doesn't happen (inaudible).
Mr. Texeira: So how would you word that?
Mr. Kimura: Didn't Laurel say that they would be willing to post a bond during the
construction phase of Phase I?
Mr. Costa: I have heard upon completion.
Mr. Kimura: I thought she said during.
Chair: She said completion. I asked her directly that question.
Mr. Costa: Part of it is we don't, unlike the Building Department who does foundation
inspection, framing inspection, and basically get approvals the whole way, once we approve the
building permit it doesn't come back to us so we need some other trigger.
Mr. Nishida: Ian, so actually a date in the future would have the same ramifications for
the department as upon completion of Phase I?
Mr. Costa: Sure.
Mr. Nishida: It wouldn't make a difference whether it was a date or upon completion.
Mr. Costa: Yes.
Planning Commission Minutes
June 22, 2010
15
Mr. Nishida: And then specifically to the recommendations to the department from
Public Works my dilemma is they are requiring an immediate posting of the construction bond.
And then wouldn't they be responsible for much of the bonding kind of things that happen or
who is responsible for the bonding, because bonding happens in subdivision, there are a whole
bunch different ways where improvements are bonded.
Mr. Costa: Actually in the case of this bond the Department of Public Works is as much
at stake because the bond value is based on the construction plans that they review and approve.
Mr. Blake: On the one hand we have the suggestion that the bond be posted at the
conclusion of Phase I and the beginning of Phase H. That gives the applicant the most leeway
with respect to the construction of the roundabout. The ultimate protection on the County side
would be to require it upfront and you are going to tie up that money and the applicant is going
to have to swallow hard but that is just the way it is to protect the County. Now the project
Phase I could take, the anticipation is what, 2 years?
Chair: 2014.
Mr. Blake: 3 years, but it could take 13 years so why not, well I feel that it is reasonable
to require the posting of the bond within x years whether you are finished or not. And that way
they have some leeway with regard to tying that money up but they know that the condition is
that you have 2 years or 3 years to post the bond and if you don't we are going to take action.
Now that entails more work on our part if they don't or can't but I think that we have gone the
extra mile to help out. And if the project does come to fruition then the people should profit
from that.
Mr. Costa: I guess I thought of two ways, one is to set a date, I mean if they estimate
construction to take 2 years for instance then you can set that based on time when that bond
should be posted.
Mr. Blake: I think before that.
Mr. Costa: Well whatever the Commission chooses. The other way is prior, being that
these involve roadway improvements and there are access points onto the roadway, so those in
improvements in Phase I and in Phase H need to be certified by the Department of Public Works
shall require a bond. The difficulty in that is the bond amount is based on the construction plans
which I am assuming will not be completed or submitted upon the completion of Phase I, right?
Chair: No one is going to do the construction...
Mr. Costa: I don't know if that question was asked but I don't know if they were going
to do all the construction plans for Phase I and Phase II and then just proceed with Phase I first
which would then facilitate the estimate of the bond. But again if there are no construction plans
for Phase II what do you base the bond on?
Mr. Nishida: I think we need clarification from Public Works regarding this.
Chair: Public Works provided the comment that they are (inaudible) of the applicant's
request. What would your question be to them?
Mr. Nishida: The question is how are they going to determine the bond and if they are
willing to accept the responsibility for that if we do something like that.
Mr. Costa: Make a condition.
Mr. Nishida: Because this is specific, according to Mike it is specific, they want the bond
now. I feel uncomfortable going anywhere different from what the recommendation is from the
department because they are the ones that reviewed the TIAR and they are the ones that are
responsible for the coming up of these conditions. So to me that is why I made the motion
because this reflects their conditions so that is why I made the motion to approve. Now if we are
Planning Comnassion Minutes
June 22, 2010
16
going to be different from that based on these kinds of questions I think they should be a little bit
more specific.
Staff: I will inject Commissioner Nishida that the way we read the comments it states
that they are in agreement that condition LA be maintained, that the roundabout be installed. So
in order for the Planning Department to sign off on its building permit the roundabout has to be
on that building permit for us to sign off on it. So essentially the construction plans will be in
place for the roundabout for which the bonding estimate could be established at which time also,
prior to signing off on the building permit, the Planning Department will require that bonding
take place.
Mr. Nishida: According to the amendment?
Staff: Allowing the amendments, correct.
Chair: And in their comments they do say that they would... if the applicant failed to
reach substantial performance and construction of the roundabout at the time of the certificate of
occupancy... so to me that is a trigger for them to set when this bond should be triggered.
Mr. Nishida: According to the question I asked Mike, oh, you mean to actually put the
installment...
Chair: That is Public Works. We are talking about what Public Works wants (inaudible).
My take on this is that I can see the logic of having Phase I be built out with the 3 access points
into the project and having the roundabout be built while in Phase H. I don't see any reason why
the roundabout should be built in Phase I because it only has the advantage for Phase II. Just
imagine if Phase I gets built and then the roundabout gets built, it doesn't really make sense to
me. I would hate to drive around that thing in circles just to get to Phase I. I would rather just
leave it as is and when the improvements come in Phase II then that is when we do the
roundabout. But that is just my personal feeling. As far as having the bond I understand that the
economy is what the economy is and I agree with Herman and tying up that money for the
developer to come and build a project now is light at the end of the tunnel for the building
industry and our economy.
So in your comment Jan about give and take I think they are giving and taking. I think
they are allowing the project to go through and in giving back they can build Phase II because I
don't think they will build Phase II without the roundabout. I think they will build it because
there is more potential and more advantages in building Phase II with the roundabout. But the
question is when do we trigger the bond and I don't think in my opinion is a Planning issue
unless I might be wrong. I think it is more or a Public Works responsibility and not the Planning
Department. Although we would like to implement and control that bond, reading Wally's
comments, he does have a trigger on when he wants that bond.
Mr. Nishida: You mean immediately.
Chair: Upon the completion of the certificate of occupancy which is what they will
trigger, right?
Mr. Nishida: No. What they said according to Mike's interpretation of what they said is
it is going to be an immediate construction bond, immediate.
Chair: Yes, immediate construction bonding should the applicant fail to reach substantial
performance in constructing the roundabout at the time of certificate of occupancy.
Mr. Nishida: Oh, you and I think alike, that was exactly my question and the answer
was?
Mr. Dahilig: It seems as if he wants the bond now, his trigger is he can call in the bond if
the roundabout is not substantially constructed at the time Safeway gets their certificate of
occupancy so there is a delay period. His expectation if you read it is that by maintaining
condition LA that roundabout is supposed to be built contemporaneously with the other
Planning Commission Minutes
June 22, 2010
17
improvements with Phase I. But he is saying if they cannot put it in by the time they open the
Safeway store then that gives him the option to call in the bond at that point.
Mr. Nishida: So if we wanted to amend it to reflect the certificate of occupancy that is
not what they are saying in this so we would be taking action, or to extend it to a period of time.
Mr. Dahilig: This is Kaaina's recommended condition based on Public Works
comments. Ultimately it is the prerogative of the Commission in terms of what they want to add
in or change based on the Planning Department's recommendation. But as it reads right now the
trigger time for when the County can take over construction of the roundabout should Safeway
fail to construct it would be at the time that the certificate of occupancy is issued for the Safeway
Supermarket.
Mr. Blake: So let's say that prior to building permit approval the applicant posts a bond
and they never build Phase 11. What happens to that bond money, does it just sit in the County
savings account?
Mr. Dahilig: The bond money would be held by the bonding company upon which time,
ultimately given who the developer is which is Safeway the one guarantee thing that will be built
on that site will be the Safeway Supermarket Store. And so tying it to what will most likely be
the guaranteed improvement is a trigger mechanism that Wally is suggesting that will allow them
to say when they can call up the bond and not tie it to the completion of Phase I or the
completion of Phase H or start of Phase II but rather something that is fixed and predictable in
time based on market conditions.
W. Blake: So if Safeway never goes through with Phase II, ever, the bonding company
has the money that the County can call to put that roundabout in anyway.
W. Dahilig: Correct.
Mr. Blake: And of course like Caven said if there is no Phase 11 then you don't want to
be going around in circles to get to Phase I so what happens to the bond money if that Phase 11 is
delayed or whatever happens in Phase II doesn't happen for a long, long time?
Mr. Dahilig: That is why the timing mechanism is triggered based on Phase I which in
Phase I includes the Safeway Supermarket.
W. Blake: So the timing mechanism is Phase I is done and we are going to proceed on
Phase II so then we put up the bond. I am sorry, gosh I still don't...
Mr. Dahilig: The timing mechanism is that Phase I has the Safeway Supermarket based
on the plans as well as another secondary primary store and a bunch of other boutique shops. If
you were to time it based on the completion of Phase I, let's say that you build the Safeway
store, you build one or two fast food restaurants but you don't build the boutique shops and you
tied the bonding to the completion of Phase I. Theoretically you would have to wait until all of
Phase I is built out before the Department of Public Works would be able to exercise its option to
bond. If you tie it to the beginning to Phase H, who knows if Phase II will even be built and as
far as I even understand it is up in the air. They want to build Phase II, yes, but right now that is
being phased in terms of (inaudible) phasing and can always be incumbent on economic factors.
But the one time element that will be virtually guaranteed is that Safeway is the
developer of the parcel and they are going to put their project up. And that is the one thing that
in terms of a delay and the timing giving them the opportunity to substantially perform that you
can peg in the ground and say this is when we shall call in the bond if you do not substantially
perform. So I think that is why it is being tied to a specific action versus the start of Phase 1, the
end of Phase I, the beginning of Phase II, and the end of Phase It, to provide a little bit more
predictability for the Department of Public works to move forward on the roundabout should it
be necessary.
Chair: Public Works trigger right now to trigger the bond would be the completion of
Phase 1.
Planning Commission Minutes
June 22, 2010
18
Mr. Dahilig: It would be the certificate of occupancy issued to Safeway which is part of
Phase I.
Chair: One thing I failed to mention is that even on Phase I if you look at the intersection
off of Nuhou Road to turn, they are really hurting themselves with their customers exiting
because there is only a right turn there, there is no left turn back down to where probably the
majority of their customers are coming from.
Mr. Texeira: My concern is do we want the roundabout if there is no Phase II?
Chair: That is the question. That is my question too is I don't want the roundabout if
there is no Phase H. But on the same note I think there will be Phase II, it is just a matter of
time. I don't see any reason for the roundabout if there is no Phase H, really, what is the
reasoning for that?
Mr. Costa: That ingressfegress that is served by the roundabout was an integral part of
the overall circulation. But obviously mostly warranted when the volume comes about but it also
does enhance irrespective of the increased volume, it does improve and enhance that particular
intersection both for vehicles as well as pedestrians.
Mr. Nishida: Let me make an amendment to this, well let me propose an amendment so
we can talk about something specifically about this particular thing. I move to amend the...
Chair: You cannot move. We have to vote.
Mr. Nishida: The original motion was to approve the, I understand, the original motion
was move to approve the report. If we want to amend the report then we make a motion to
amend, we amend, and then we finally do the whole thing.
Mr. Dahilia: You can do it that way.
Mr. Nishida: So I can go forward?
Mr. Dahilig: Yes.
Mr. Nishida: So prior to, what it says is prior to building permit approval because to me
what they said and from what Mike said it is immediate posting of the bond. But some of the
Commissioners have questions, right, so what I am saying, what would be more specific would
be prior to the certificate of occupancy or the certification of any improvements which might be
a driveway improvement, the applicant shall obtain a construction bond. Does that make sense?
Staff: I am a little unclear as far as the certification of any improvement.
Mr. Nishida: I think what Ian said earlier was upon the use of the driveway, any element
of Phase I. So it could be the certificate of occupancy, it could be the certification of the
driveway, it could be before any sort of use of that area, then they have to post a bond of Phase I.
Or is that too confusing?
Staff: I guess the question is the certificate of occupancy we can say there is a specific
agency handling that but as far as the use of any improvement; I am unclear as to...
Mr. Costa: Maybe you should be more specific in terms of driveway improvements or
roadway, both on and off-site roadway improvements.
Mr. Nishida: Because that could happen before the certificate of occupancy or is that part
of the certificate of occupancy?
Mr. Costa: Typically it is about the same. Most landowners want those to happen about
the same time.
Planning Commission Minutes
June 22, 2010
19
Mr. Nishida: So just leave it as certificate of occupancy then.
Mr. Costa: Or certification of any other on or off-site improvements.
Mr. Nishida: Certification of any on or off-site which includes certificate of occupancy.
Mr. Costa: Right.
Mr. Nishida: Certification, prior to certification of any on or off-site improvements for
any element of Phase I the applicant shall obtain a bond.
Mr. Costa: You might want to clarify that by adding by the Department of Public Works.
Mr. Nishida: Yes, did you get that Kaaina? Now is there a second?
Ms. Matsumoto: Is that a motion?
Chair: Is that a motion or that a discussion?
Mr. Nishida: Motion to amend the report.
Ms. Matsumoto: I second that.
Chair: Is there any discussion with that?
Mr. Texeira: I have a discussion. So what does that mean in terms of time frame?
Chair: The time frame, I guess the bonding would be established when the certificate of
occupancy, right, or improvements.
Mr. Nishida: Certification of any element.
Staff: The proposed language would be "Prior to certificate of occupancy or certification
of any on-site or off-site improvements by the Department of Public Works", and then on to the
language, "the applicant shall obtain a construction bond for the single lane roundabout
improvement."
Mr. Nishida: And an off-site improvement would be a driveway, Ian, an off-site would be
a driveway because it is not on their property?
Mr. Costa: Actually off-site would be, yes, to some degree it is beyond the property,
anything beyond the property line.
Mr. Nishida: Sidewalks, crosswalks.
Mr. Costa: Right, any improvements within the right-of-way or outside the property line.
Staff: Commissioner Nishida, did you want to amend any other language of that
condition? Because right now it would state that "prior to the certificate of occupancy the
applicant shall obtain a construction bond" and then it will go on to say that the County may
exercise its option to call in the bond at the time of certificate of occupancy issuance.
Chair: Redundant.
Staff. It is not only redundant, it says that a bond will be posted and then the County has
the option to immediately thereafter call it in.
Chair: We are in discussion right now, why can't the bond be triggered when the
completion of the Safeway is done and that is when...
Planning Commission Minutes
June 22, 2010
20
Mr. Nishida: I think there are two elements to what we are discussing, one is when they
post the bond and two, is when they trigger the bond. So by calling in the bond means you are
going to put in the improvements and that is, to me, Public Works decides that. As it says now,
what that did was it triggered it at the point of the first; it triggered the calling in of the bond to
make the improvements. But that is a Public Works call when they want to do that.
Chair: The bond, if I am correct, correct me if I am wrong, the bond is just assurance if
they decide not to build it, it is just insurance.
Mr. Nishida: But it's money.
Chair: So it is money so why can't the bond be triggered or issued at the time when they
are done with Safeway?
Mr. Nishida: That is what my proposal asks?
Mr. Dahilig: What they are suggesting is that the bond, so there is the issuance of the
bond by the bonding company and so that is one question we have. Then you have the calling in
of the bond at a specific point in time and that is what the Public Works Department is
recommending, when they want to be able to call it in. So the concern for the developer is the
earlier you put in the money on that bond in terms of issuing it, there is a carrying cost associated
with that and that is competing with the Department of Public Works saying we want to be able
to call in the money for the bond at this point in time because of certain considerations. So those
are your two competing elements here, when should they issue it and when can Public Works
call it. Public Works has already indicated its preference when they want to call in the bond.
Mr. Nishida: And as written, as my proposal asks, it happens simultaneously. The bond
is issued and they can call it at that time if they want to.
Chair: If the County wants to. So the trigger of the bond would be at the completion of
C of O of Safeway, certificate of occupancy, or issuance.
Mr. Nishida: Or any kind of on or off-site.
Staff: The issuance of the bond would be prior to C of O so it could be right up to
(inaudible) prior to issuance of the C of O the bond must be issued. And then the trigger as the
language is written or proposed, the trigger is at the time of C of O.
Ms. Morikami: Mr. Chair, just to make it simple I am just wondering what the negatives
would be if we just said prior to building permit approval for any element of Phase H the
applicant shall obtain a construction bond. Because that would be so clean and clear cut that if
they apply for Phase If that is when the bond is posted.
Chair: My only thought on that is that if they finish Phase I, they are up and rolling, they
have a delay on when they can build Phase H, they could take 5 years or they could take 20
years.
Ms. Morikami: But my understanding is the roundabout, the main purpose of doing the
roundabout is for the Phase H development so if that doesn't happen the roundabout may or may
not be necessary.
Chair: That is a good point.
Mr. Dahilig: I think based on what you are looking at in the conditions and you are
looking at where the roundabout is, by having the Public Works Department recommend that
condition LA be maintained, they are not saying that they concur specifically with the TIAR's
findings that the roundabout is necessary and only beneficial for Phase H. Because ultimately
there is other traffic based on his comments saying that there are other traffic and pedestrian
considerations that are coming in from other developments. That the timing of Phase H and the
roundabout may not necessarily only benefit Phase H but may also have implications on Phase I
Planning Commission Minutes
June 22, 2010
21
when you are looking at traffic flow in the area. So I don't think we can make that determination
from his comments that specifically they concur with the TIAR.
Chair: So we cannot have, what Paula is suggesting we cannot make that a condition.
Mr. Dahilie: Again, the Commission can do whatever it wants but in terms of a timing
perspective if you were to peg it to Phase 11 it is not a fixed point in time. And so theoretically
Public Works could never get the roundabout in there and bond it if Safeway does not choose to
exercise its right to construct Phase H.
Chair: But on the same note, Paula, what you are saying is there is no reason for the
roundabout in Phase I, right?
Mr. Nishida: Except that the responsibility for the interpretation of the TZAR is Public
Works and they specifically are saying that they want to tie the calling in of the bond to Phase I
and I think, I agree with what Mike was saying is they want to see whether Phase I which is the
Safeway store which is a big traffic generator, that the roundabout may be necessary in Phase I
rather than Phase H. And that is why they specifically tied the calling in of the bond at the
certificate of occupancy. So what my proposal does is that prior to the certificate of occupancy it
will be bonded and if upon a few months later or whenever the Safeway is fully
operational... and it is a problem because we have a school across there and you have a Safeway
right across. And the parents say I will pick you up across there, well I wouldn't do that but
maybe the parents are going to say that so you have this traffic. Or they don't even tell them and
before the bus they say I have 5 minutes, I am going to run over there and get a coke and run
back and it becomes a problem. I am guessing that is what Public Works ...but personally I
would like to be able to put that traffic calming thing there if it becomes a problem.
So what my amendment does is delay the posting of the bond until then which I agree,
actually I agree with Jan but I wanted to clarify it, so that we can vote on something. So what
this does is post a bond right to before the certificate of occupancy and the ability to call in the
bond happens right afterwards. I would send it to them to find out why they like the bond now
but if that is our call let's make the call now. And I think the main part is if traffic becomes a
problem they can call in the bond and put it in.
Chair: So what do you, if you read the comment from the TIAR, his opinion is saying
that the project will provide minimal percentage.
Mr. Nishida: I agree but that is the developer's consultant. We don't...
Chair: On the same note we are not engineers.
Mr. Nishida: Public Works is the engineer and is responsible for the interpretation of the
TIARs and to come up with a recommendation based on that. They are the engineers, we are
not.
Chair: So if we need clarification maybe we should defer this item and then maybe have
either the engineer come up and provide us more of the details.
Mr. Costa: I think Commissioner Nishida has a good point in that the Department of
Public Works is the expert to review and comment and make requirements based on the TIAR so
they did ask that we require the bond prior to completion or on completion of Phase I. I think
that is what we have to respond to.
Ms. Morikami: Can you reread the amendment?
Staff: The proposed language for the amendment from Commissioner Nishida would
read "Prior to certificate of occupancy or certification of any on-site or off-site improvement by
the Department of Public Works, the applicant shall obtain a construction bond for the single
lane roundabout improvement naming the County of Kauai as beneficiary. The County may
exercise its option to call in the bond should the applicant fail to reach substantial performance in
Planning Commission Minutes
June 22, 2010
22
constructing the roundabout at the time the certificate of occupancy is issued to the Safeway
Supermarket Store."
Mr. Texeira: Jimmy, wasn't that different from what you proposed? You were talking
about prior to the Safeway, the second time that you brought this up you mentioned Safeway...
Mr. Nishida: What did you read? You read the certificate of occupancy or the
certification of any on or off-site improvements?
Staff: The issuance of the bond is going to be for certificate of occupancy, prior to
certificate of occupancy or certification of any on-site or off-site improvements. The triggering
of the bond will be the issuance of the certificate of occupancy specifically for the Safeway
Store.
Mr. Texeira: You said off-site improvements or on-site, for the whole Phase I, right, not
for Safeway.
Staff: For the whole, excuse me, actually it should read "Prior to certificate of occupancy
or certification of any on-site or off-site improvements for any elements of Phase I".
Mr. Texeira: Mr. Chair, based on what was just recommended right now what is the time
frame between what was suggested by Public Works and what is being suggested right now?
What is the difference when you are going to be posting that bond or the issuance of that bond?
Mr. Dahilig: Based on what Jimmy's recommendation would be is it would be between
now and when Safeway decides to hold its grand opening and sell T-Bone steaks for a 1.99 a
pound.
Mr. Texeira: When you say grand opening you are talking about the grand opening of
Safeway?
Mr. Dahilie: Yes, that is pretty much, I am being slightly facetious but it is when they
can actually go inside and occupy the building.
Mr. Texeira: But that is the certificate. That is when they are going to call in the bond.
Mr. Dahilig: That is the trigger time.
Mr. Texeira: I am not talking about the trigger time I am talking about the issuance.
Mr. Dahilig: And it would be right before that.
Mr. Texeira: Right before it?
Staff: Any time from now until right before they could post the bond.
Mr. Dahilig: So they could reap the benefit of delaying the carrying cost of the bond up
until they have to occupy the building.
Mr. Kimura: So basically they will have 3 years, up to 3 years. When is Safeway
building?
Mr. Texeira: 2012.
Chair: They will have from now to 2012 to go in and build it and then prior to...
Mr. Texeira: I thought maybe the off-site and on-site improvements could be done in 6
months so once that begins that is going to trigger the issuance of the bond, right?
Chair: Yes.
Planning Commission Minutes
June 22, 2010
23
Mr. Nishida: Certification, certification is different from completion.
Chair: The certification is that they can open up the roads for the public to the entryway.
So as soon as they open the entryway and get the certificate of occupancy, either of those two
things that they do trigger a bond to be issued.
Mr. Costa: So the way it is worded, prior to them asking for the certificate of occupancy
they would file the bond. And then once they ask and get issued then Public Works can initiate
or draw or call on the bond.
Mr. Texeira: I just wanted to be sure that is what the amendment was going to read.
Chair: So the motion is on the floor.
Ms. Matsumoto: Does the motion need a second?
Mr. Dahilig: Motion to amend.
Mr. Nishida: She seconded it.
Staff. I will just inject for the last time. I know a lot of times it has gone into the
amendment but I just want to state for the record as previously stated by the department that this
is a zoning permit that we are reviewing. And right now the condition of calling in the issuance
of the bond will fall on the Public Works Department which we can work with the sister agency
but it isn't specifically beholden to...
Chair: Why don't you just get to the point and say that the Planning Department has no
control over the bond.
Staff: The Planning Department has no control over the issuance of the bond.
Mr. Costa: As we talked about before we do have, we can initiate other procedures
available to us.
Mr. Texeira: So would this be a recommendation to Public Works?
Chair: It is a condition of the original permit as amended.
Mr. Texeira: But Public Works doesn't have to follow that, am I correct, Public Works is
the determining agency so is the a recommendation or is this a condition?
Chair: It is a condition. It is not a recommendation, it is a condition.
Mr. Costa: It is a condition to the applicant but obviously it is a condition involving
Public Works, primarily.
Mr. Texeira: But they don't have to accept it is what I am asking.
Mr. Costa: But I think it is in line with what they recommended.
Mr. Dahilig: In terms of this exaction they don't have a hammer per say to require these
conditions based on any of their approvals it is because this is an exaction that falls under the
prevue of Planning and zoning so the only hammer you have is within the Planning Department.
Now let's say if they want to call in the bond it becomes incumbent on the two departments have
to work together to have the Planning Department impose this condition. But the Department of
Public Works based on its permits does not have the authority impose these types of conditions.
Chair: Does everyone understand the condition? Does the applicant have any comments
or want to say anything? No, so based on the amendment that was read is there any more
discussion?
Planning Commission Minutes
June 22, 2010
24
Ms. Morikami: Are we just taking No. 1 and not 16 at this time?
Mr. Dahilig: You are still on Jimmy's amendment to the motion.
Chair: I will call for the vote, all those in favor of the amendment as read say aye,
opposed, motion carries.
On motion made by James Nishida and seconded by Paula Morikand, to amend
condition LA, motion carried unanimously by voice vote.
Chair: Now we are back to the main motion for approval as amended, any discussion, all
those in favor say aye, opposed, motion carries.
On motion made by James Nishida and seconded by Paula Morikami, to approve
the staff report as amended, motion carried unanimously by voice vote.
Commission recessed for caption break at 11:22 a.m.
Meeting was called back to order at 11:37 a.m.
Request (6/14/10) from Kimo Perry on behalf of Kawaikini New Century Public Charter
School, to amend conditions of approval Special Permit SP-2009-1, Use Permit U-2009-15 and
Class IV Zoning Permit Z-IV-2009-15 to increase the square footage size of two classrooms and
a restroom originally proposed under the subject permits, Tax Map Key 3-4-007:002, Puhi,
Kauai.
Staff Report pertaining to this matter.
Staff Planner Kaaina Hull read staff report (on file).
Chair: Are there any comments for the planner? If not I will ask the applicant to come
up if he or she has anything to add regarding the staff report.
Ms. L.elani Spencer: Aloha Ka Ko, my name is Lelani Spencer and I am here on behalf of
the school. I am on the local School Board and Facilities Committee. No, nothing to add, it is
all there.
Chair: Are there any questions for the applicant? Let me take some public testimony. Is
there anybody in the public that would like to testify on this agenda item? Seeing none I could
have the planner read the recommendation.
Staff Planner Kaaina Hull read department recommendation (on file).
Chair: Any questions for the recommendations? I assume the applicant doesn't want to
add anything to the recommendation, right?
Ms. Spencer: No, it's complete.
Chair: What would be the pleasure of the Commission?
Mr. Nishida: Move to approve request of Kimo Perry on behalf of Kawaikini New
Century Public Charter School to amend conditions of approval, Special Permit SP-2009-1, Use
Permit U-2001-15, and Class IV Zoning Permit Z-IV-2009-15 to increase the square foot size of
two classrooms and a restroom proposed under the subject permits, Tax Map Key 3-4-007:002,
Puhi, Kauai.
Ms. Matsumoto: Second.
Chair: Any discussion?
Planning Commission Minutes
June 22, 2010
25
Ms. Morikami: Yes Mr. Chair, normally I would not approve something after the fact
regarding the square footage because it looks like based on their letter they already went over
what we approved earlier. But because this is a self contained area and it is a part of the overall
picture I have no problem in supporting it.
Chair: Any more discussion, if not all those in favor say aye, opposed, motion carries.
On motion made by James Nishida and seconded by Camilla Matsumoto, to
approve staff report, motion carried unanimously by voice vote.
COMMUNICATION
There were no communications.
SUBDIVISION
Mr. Nishida: Subdivision Committee meeting report, Tuesday, June 22, 2010, present,
myself, Cammie Matsumoto, and Jan Kimura, no general business, no communication, no
unfinished business. For tentative subdivision action, S-2010-8, Enrico Santelli Jr. Trust/Scott F.
Schweiger Trust/Riger M. & Judy Peckenpaugh, TMK: 2-5-001:001, 009, and 010, approved 3-
0. Tentative subdivision request 5-2010-10, John Ka`ana`ana, TMK: 4-1-008:026, approved 3-0.
Move to approve subdivision report.
Mr. Blake: Second.
Chair: Any discussion, amendments, seeing none all those in favor say aye, opposed,
motion carries.
On motion made James Nishida and seconded by Hartwell Blake, to approve
Subdivision Committee Report, motion carried unanimously by voice vote.
UNFINISHDED BUSINESS
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 Klauea Road, Kilauea,
further identified as Tax Map Key 5-2-004:080, and containing total parcel area of 16.953
acres = Dechka. [Hearing closed 6/8/10.1
Supplemental staff report pertaining to this matter.
Transmittal (6/15/10) from Land Strategies Hawaii, LLC, Authorized Agent,
transmitting two letters of agency (5/20/10 and 4/15/10); a stamped CPR plan with current
expiration date from licensed engineer, Ronald Wagner; a County Farm Dwelling Agreement;
and a letter (6/14/10) addressed to Wally Kudo, Kauai County Department of Public Works,
Engineering Division.
Staff Planer Lisa Ellen Smith read supplemental staff report (on file).
Chair: So these are the additional conditions Commissioners from the original application
that we already received for the record. Are there any questions regarding these two additional
conditions? What would be the pleasure of the Commission?
Mr. Nishida: I have a question for the attorney. Condition No. 2, "The applicant shall
comply with the submitted agriculture plan as presented for Sea Cliff Plantation, Lot No. 7, Unit
2, as required to be in compliance with HRS 205", this condition is going to be put on, is going
to be filed at the Bureau of Conveyances. What this condition requires them to do is to continue
with this farm plan so if they change the farm plan and some other things like they want to put in
a nursery do they have to come back here to change their farm plan?
Mr. Dahilig: That is a good question Commissioner. Quite frankly, procedurally I don't
think I have an answer to that because it is along a procedural line. Ultimately what the
Planning Commission Minutes
June 22, 2010
26
requirement is, is that a farm dwelling agreement and a farm plan be conditioned proceeding the
actual issuance of the permit. Now whether the Ag. plan changes but they are still maintaining
farming, I wouldn't see it as a situation where the Planning Department would have cause for
saying you are not doing some type of farming activity to be in compliance with Chapter 205. It
would probably be recommended that if they are going to amend their farm plan that they update
it. I think you start to have a problem when they don't comply with a farm plan or they don't do
any type of agricultural activity then you would start to have a situation where they are not in
compliance with Chapter 205.
Again these documents are meant for the County's benefit in order for us to say that we
are trying to hold these farming applicants, farm dwelling applicants to the requirements of
Chapter 205 in terms of what farming is. There is no definition of farming in the Hawai `i
Revised Statutes nor in case law in terms of exactly what that means so you could grow grass
and that could be farming. I don't want to say that is my opinion but I am just saying that is
something that is asserted and whether there is a legal basis for that or not is hard to say.
Mr. Nishida: The problem I have is condition No. 10 says "shall record all of the
conditions imposed under the subject permit with the deed to the property." I farm and
sometimes I grow papaya and the papaya plant (inaudible) and I stopped growing papaya. I had
a disease problem with watermelon and then I had to stop growing watermelon. So to me they
have to comply with 205 anyway but when you include the farm plan and tie it to the deed, when
somebody is doing due diligence on this property you are saying that they have to, the farm plan
says you have to plant ...I don't think anything would happen, people are going to do what they
are going to do but I don't want to see them change, come back to us to change a farm plan
because hey, it is agricultural land they have to comply with 205 anyway.
So those two things in conjunction, I don't know, the farm plan is one thing, you want
them to come in with a proposal for their farm. I don't agree with that on all parcels but
whatever. But to make them tie the farm plan its self to a deed, you are talking about an
agricultural use that under 205 provides more flexibility to what you can grow and this doesn't.
Because they are specific on their plan, they wanted to plant palms, turf, it wasn't grow
agricultural products like according to 205, we are going to be growing a variety of agricultural
products or blah, blah. That wasn't it, this was specific, palms and turf, and I have a problem
with that.
Mr. Texeira: Mr. Chair, aren't most farm plans specific?
Mr. Nishida: Yes but I am saying in order to change the plan because it is on the deed
they have to come back to us to change the, who do they go to, to change the farm plan? It is a
condition of...
Mr. Dahilia: What I think it is, is a condition preceding the actual issuance of the permit.
It is to show that you can have some kind of viable agricultural activity on the lands that are
being proposed to put this farm dwelling on. From a numbers and cents stand point that is the
evidence that the Planning Department as well as other consulting agencies are looking at. Now
irrespective of that I hear that your issue is really more so with the recording of that plan with the
Bureau of Conveyances and...
Mr. Nishida: Well we could change it. It says that the application shall comply with the
submitted agricultural plan. Now if you can say, I don't know, it is that particular Ag. plan and
Act 205 is more flexible regarding that and if you are going to buy Ag. land, to me, I don't know,
300 or 400 thousand an acre, I don't know what they would do but they would probably want to
do what they want to do in order to comply with 205. But what our condition says is much more
restrictive than what Act 205 says, Act 205 says you can horticulture this, horticulture that, or
vegetables, you can do pasture, you can do whatever. But this particular agriculture plan was
specific to palms, limes and turf and I have a problem with putting it on the deed. I don't know
how you are going to change that unless you just take it out. Well it is two together, its 2 and 10.
Chair: It is more of 10 because it is a really clear condition that it be recorded onto the
deed. So you are saying that you would like to remove condition 10?
Planning Commission Minutes
June 22, 2010
27
Mr. Nishida: I don't know. I just am saying that I have a problem with a specific Ag.
master plan being instituted as a condition for implementation on that property when Act 205
allows for a wider range. The guy wants to come in and he could raise horses on the 3 acres but
you wouldn't be able to get an Ag. dedication because personal horses is not allowed but you
could raise horses. Or if he wanted to raise cows, say for instance he wanted to raise a cow the
Ag. plan doesn't say that, the Ag. plan says turf, palms, and it is specific whereas Act 205...he
could raise fish, he could raise whatever. And so my problem is who are they going to come to
when ...he is either going to be in violation or he has to come back to us to change.
Chair: But whether he is in violation or not Act 205 is just for a condition in order to get
the tax and the financial break, right?
Mr. Nishida: No, Act 205 is the whole thing that allows urban, conservation...
Mr. Costa: Chapter.
Mr. Nishida: Oh, Chapter 205, not Act 205.
Ms. Matsumoto: This proposal, this application is symbiotic with the applicant and I
guess the contractor who is going to be taking care of the turf and all the other, the Meyer
lemons. I was concerned about, this relationship is great if it is working really well but is there
something in here that requires that agriculture always be taking place so that what if this
relationship and with all due respect I hope that it continues and is highly successful. But in
the event that something happens where this relationship doesn't work out I would like to have
the applicant always be and have agriculture produced and so I would like to have something in
here that says that... toward that. What if something happens where you are not working
together? You can't have your land become vacant. I mean you can't stop your agriculture.
You always have to have somebody involved. You always need to have an agent helping you
with your agriculture if you are not doing it yourself.
Mr. Nishida: What if we have a motion to approve? Are we at that stage?
Chair: We are in discussion right now.
Mr. Nishida: What I was thinking, I have a proposed amendment.
Chair: There is no motion on the floor. She has read the recommendation so if we
wanted to go into that discussion in amending then we could have a motion to approve as
amended with additional comments.
Mr. Nishida: So approve staff report, Special Management Area Use Permit SMA(U)-
2010-6, to permit construction of a farm dwelling in Sea Cliff Plantation on Iwalani Drive,
approximately .25 miles from Kilauea Road in Kilauea, further identified as Tax Map Key 5-2-
004:080, and containing a total parcel area of 16.953 acres, Dechka, hearing closed 6/8/10.
Chair: And if you could add in your motion to include the June 22nd additional
conditions are read by the planner.
Mr. Nishida: So moved, so added.
Chair: There is a motion on the floor, is there a second?
Ms. Morikami: Second.
Chair: So we are at discussion.
Mr. Nishida: What if we just, I don't know if this is going to satisfy Cammie but if some
kind of wording can be state that they need to be in compliance with HRS 205.
Chair: Well from a legal stand point do we have as a zoning entity to have them always
comply with the State?
Planning Commission Minutes
June 22, 2010
28
Mr. Dahilie: I think it is a reaffirmation of any State requirements that they are already
bound to hold to as part of the operation of their property. Again these documents that are in
there are meant as evidence the County has done on its (inaudible) its due diligence to ensure
that Chapter 205 is being complied with. But if you wish to have in terms of who enforces
Chapter 205 in this particular case, it really becomes a question of a State prerogative but at the
same time if you make it a condition of the permit you could have it be revoked or modified
based on non compliance of those regulations.
Chair: Let me just go back to Cammie's question, you just want to able to keep tabs on
them or you want to encourage that they keep the agriculture use going? We could add a
condition.
Mr. Kimura: We could request a status report every 3 years just to make sure they are
complying with everything that we ask.
Mr. Dahilig: Legally I don't think there is anything that can prohibit you from asking for
a status report as a condition of the permit.
Ms. Matsumoto: Should it be 3 years or 1 year? Some other projects...
Mr. Kimura: It takes a little while for things to grow.
Ms. Matsumoto: That's true.
Mr. Nishida: I think we need to have the Director address that.
Chair: From other applicants that we have given approval we have never given the
prerogative of them giving us a status report on their property rights on what they can do and
when they can do it. I feel I am stepping over the line because I know that Chapter 205 is the
State's rule and I don't want to be implementing that the landowner now provides the
Commission...
Mr. Kimura: I am just going off of her question.
Chair: They are already like the County Attorney said they are bound by Chapter 205
already. If they break the law then I don't want the Commission to be the police or the deciding
body to revoke or do anything like that. But those are my comments.
Ms. Matsumoto: And I agree with that. Also, in the newspaper, I think it was this
weekend, on Oahu they have been talking about cases where people have built these homes on
agriculture land and the State is having trouble with making sure that agricultural activities
always takes place on these kinds of properties. So I think that if you are on agricultural land it
would be nice to support agriculture as a viable economic entity in the islands, to sincerely honor
that.
Mr. Costa: As required by Chapter 205.
Chair: You know what I am thinking, right, it is just kind of funny that maybe our, not
legislators, but a coincidence that the applicant has representation of somebody that has power in
legislation that can encourage that.
Staff: The Planning Director has made a recommendation to modify condition No. 2 to
be more a suggestion. Can I read what he suggested?
W. Costa: Sure.
Staff: "The applicant has submitted an agricultural plan to the Planning Department and
the Planning Commission. The subject applicant for Sea Cliff, Lot 7, Unit 2, shall comply with
HRS 205."
Planning Commission Minutes
June 22, 2010
29
Mr. Nishida: I am good with that. You want me to withdraw the motion and make a new
motion?
Chair: There is no need to withdraw it you want to just...
Mr. Costa: You can move that as an amendment.
Mr. Nishida: I didn't move as an amendment?
Chair: You motioned to approve and we are in discussion to amend now.
Mr. Nishida: So moved.
Ms. Morikami: Second.
Chair: Any discussion?
Ms. Morikami: Yes, the word "subject", why do you have the word "subject"? Can you
reread it?
Chair: Can you read it again?
Staff: "The applicant has submitted an agricultural plan to the Planning Commission.
The subject applicant for Sea Cliff, Lot 7, Unit 2, shall comply with HRS 205." Do you want to
just say "the applicant", Commissioner?
Ms. Morikami: Yes because the use goes with the land.
Mr. Nishida: So moved.
Chair: And it has been seconded already and we are still in discussion. Can you read the
revised condition as amended?
Staff: "The applicant has submitted an agricultural plan to the Planning Commission.
The applicant of Sea Cliff, Lot 7, Unit 12, shall comply with HRS 205."
Chair: So the first motion of the three, as read, any more discussion? If not, all those in
favor say aye, opposed, motion carries for that amendment.
On motion made by James Nishida and seconded by Paula Morikami, to amend
condition No. 2 by removing the word "subject", motion carried unanimously by voice
vote.
Chair: The second motion is a motion to amend.
Mr. Dahilie: So the first motion was the motion to amend the motion to amend so you
are on the motion to amend now.
Ms. Morikami: Move to amend.
Chair: And approve.
Mr. Dahilie: No, then you have to go to a motion to approve.
Ms. Morikami: Mr. Chair, move to amend.
Ms. Matsumoto: Second.
Mr. Dahilie: He made the motion already on the floor, there is a standing motion to
amend based on his motion. So he made a second motion to amend the motion to remove the
word "subject" which that got approved so now you on a motion to amend his original motion.
Planning Commission Minutes
June 22, 2010
30
Chair: I will call for the vote then; all those in favor say aye, opposed, motion carries.
On motion made by James Nishida and seconded by Paula Morikami, to amend
condition No. 2 as amended, motion carried unanimously by voice vote.
Chair: And then motion to approve if there is no more discussion or amendments?
Mr. Texeira: I have one question W. Chair. By doing this amendment this would be a
broiler plate statement that would be applied to future Ag. plans?
Chair: I don't think it would be a broiler plate but if the planner could make it a normal
condition.
Staff: For agricultural lots.
Chair: Yes, being that applications change so you can make it dually noted.
Mr. Costa: Just a comment, bear in mind most of the single family homes in the Ag.
Districts do not come before you. This is before you because of Sea Cliff. But in any event we
will make sure we use this on future applications.
Ms. Morikami: On condition No. 10 would there be a problem deleting that regarding
the deed?
Mr. Nishida: I think that one there is good because the problem I had was putting that
condition No. 2 on.
Ms. Morikami: Thank you.
Chair: Any more discussion, if not, motion to approve as amended, all those in favor say
aye, opposed, motion carries.
On motion made by James Nishida and seconded by Paula Morikami, to approve
staff report as amended, motion carried unanimously by voice vote.
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.
(Communication Deferred 6!8(10.1
Chair: Is there any discussion?
Mr. Texeira: Mr. Chair, the reason for the deferral was to get some additional
information?
Chair: The reason for the deferral if I remember was to have the attorney for a little
question and answer exchange but due to scheduling the attorney that was in charge of this
matter could not be available today, right?
Mr. DahiliQ: Yes.
Mr. Texeira: So how do we move forward then?
Chair: Well if you still want questions and answers from the attorney we could defer
again I guess. If not we can continue our discussion.
Mr. Kimura: I did receive my answers to my questions.
Chair: Did you Herman?
Planning Commission Minutes
June 22, 2010
31
Mr. Texeira: I didn't have any questions but you are satisfied with your..?
Mr. Kimura: Yes.
Mr. Texeira: And what were your concerns if I could ask?
Mr. Kimura: It was more of a salary thing on who was making what and how much and
why. And I think we received that information today.
Mr. Texeira: From the Mayor.
Chair: Not from the Mayor but finding out what the salaries were.
Mr. Costa: That was the information I distributed from the Department of Personnel
Services. Also, I just wanted to make a comment, although the Commission could defer
implementation will be July 1St so I am not sure what deferring will actually achieve.
Chair: Any more discussion?
Ms. Morikami: I had a question for the County Attorney's office. Can you explain the
furlough time as far as when it gets lifted, who lifts it and how it all works out?
Mr. Dahilie: As far as my understanding, first off what would have to be agreed upon is
that an amendment to the budget reinstating the furlough days on behalf of Civil Service
appointed and exempt positions would have to be approved by the County Council and approved
by the Mayor. So essentially is the amendment to the budget first. Then what would have to
happen is you would have to look at each individual class of employee, so for instance Civil
Service, they would have to go into a renegotiation with HGEA to reinstate which I would say
they probably wouldn't have a problem reinstating. Then you would probably have to go into
negotiations with each of the different bargaining units. With respect to appointed positions,
again that would be for those that are in direct supervision of the Office of the Mayor that would
be the Mayor's prerogative to execute that. Then with respect to those department heads
appointed by and overseen by individual Commissions for instance this particular Commission,
then you would have to resend you action should you approve the salary reduction today.
Ms. Morikami: Based on that for those new hires coming in to fill vacancies this
furlough applies to them automatically?
Mr. Dahiliz That is correct.
Ms. Morikami: Thank you.
Mr. Kimura: The way I am reading this the Planning Director's salary for the fiscal year
of 2011. Are we just looking atone year?
Mr. Dahilig: Yes, it is just one year and it is largely the result of the way that the County
does its budgetary process on an annual versus by-annual situation so whether the furloughs
continue for another fiscal year ultimately remains to the discussion of next year's budget.
Mr. Kimura: So that comes before us again?
Mr. Dahilig: It could, potentially should they recommend furloughs again.
Mr. Kimura: So at the end of 2011 his salary goes back up the 9.23%?
Mr. Dahilig: Theoretically, yes, it would be at June 30, 2011 would be last day of
furloughs.
Chair: Any more questions? So we are on item No. D.2...
Planning Commission Minutes
June 22, 2010
32
Ms. Matsumoto: I have a question about hiring. The department can hire though, there is
no freeze on hiring, right?
Mr. Costa: No. We are in the process of advertising and we still need to go through and
get individual approvals to fill individual positions of which there are a few that are currently
dollar funded. But, no, there is no overall freeze per say. We do have to go through and get
approvals for each position that we are advertising for should we find an applicant that we want
to move forward on.
Ms. Matsumoto: Regarding that, I am glad for that because a freeze in hiring would be
even worse.
Mr. Costa: Thank you.
Chair: On that note, maybe I am confused but it is not the budgeted, were those salaries
kept in the budget or was that salary just dropped down to that dollar amount?
Mr. Costa: Prior to this fiscal year we had a number of positions that were dollar funded.
Those remain dollar funded. But any of the positions that became vacant in this fiscal year were
not dollar funded, I believe one position was funded for three quarters of the year but was the
extent of it. But we do have based on our department's review we do have enough funding in
place and flexibility to still fill that position and obviously three quarters of the year, given the
three quarters of the year funding and other vacant positions we are able to hire should we get the
approvals that we need to fill that position for a full year's salary. Again, we do have a number
of positions that we need to... we are advertising for and we have some flexibility on but
ultimately we do have to go in for approval on each one of those as we find potential candidates.
Mr. Dahilig: Before we get into more discussion about operations and hiring of the
Planning Department I would like to caution the Commissioners again, the posted agenda item is
relating to the reduction in particular to the Director's salary and so if we could try and steer to
the topic.
Mr. Costa: But thanks for acknowledging how it's all interrelated though.
Chair: Any more discussion regarding this agenda item? If not then is there anybody in
the public to testify on this agenda item? Seeing none, I will entertain a motion to...what would
be the motion?
Ms. Morikami: Mr. Chair...
Chair: It would be a motion to take action if we want to.
Ms. Morikami: Mr. Chair, I move that this Planning Commission approve the request by
the Office of the Mayor to take action of a 9.25% decrease in the Planning Director's salary for
fiscal year 2011.
Ms. Matsumoto: Second.
Chair: Any discussion, all those in favor say aye, opposed, motion carries.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to
approve request by Office of the Mayor to effectuate a 9.25% decrease in Planning
Director's salary for fiscal year 2011, motion carried unanimously by voice vote.
NEW PUBLIC HEARING
Use Permit U-2010-17 and Class N Zoning Permit Z-IV-2010-19 to outfit an exploration
well to install a new potable water supply 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`o Highway, further
Planning Commission Minutes
June 22, 2010
33
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 received 6/8110.1
Memorandum (6/16/10) from Planning Director transmitting agency comments.
Mr. Kimura: Mr. Chair, I will recuse myself because of my association with Princeville
on this agenda item.
Staff Planner Lisa Ellen Smith read staff report (on file).
Chair: Are there any questions for the planner?
Mr. Texeira: Lisa Ellen, this private water system to be developed, will it have any
agricultural implications? Will any of it be used for agricultural purposes in the area at all?
Staff: I did not read that in the application however the applicant may be able to address
that question.
Chair: Any more questions for the planner on the report? Seeing none I will call the
applicant up to answer...
Mr. Larry Dill: Good afternoon Chairman Raco and members of the Planning
Commission, my name is Larry Dill. I am the manager of Princeville Utilities. In response to
the Commissioner's question we don't have a great agricultural demand on our system, we have
a couple of nurseries and so in our water planning and demands we have taken those into account
but nothing beyond that right now. We don't irrigate the golf courses for instance, they don't use
any potable water, the ranch doesn't use any potable water for any of its Ag. uses right now.
They all use water from other sources.
Chair: Any more questions for the applicant? Larry, is there anything you wanted to add
for the recommendation?
Mr. Dill: No. We have read the report and we intend to comply with all the conditions,
we don't have any problems with them, we are just here to answer any questions you may have.
Chair: Thank you Larry. Is there anybody in the public who wants to testify on this
agenda item? Seeing none, I would read the recommendations.
Staff Planner read department recommendation (on file).
Chair: With that said, for recommendation No. 6, have you received all the agency
comments?
Staff: Yes I have.
Chair: Are there any questions?
Mr. Blake: I have one question. This is a private water system. Does the Department of
Water have any responsibility at all with regard to water quality, transmission and so forth? Or it
is all on Princeville?
Mr. Dahilig: I would say that is DOH's Kuleana regarding water quality.
Mr. Blake: So except for the permitting process the County is not...
Mr. Dahilig: Because it is private as far as their water system their water quality
standards would have to be reviewed and met by the Department of Health.
Mr. Blake: And anybody in Princeville proper that is not satisfied with their water calls
Princeville and not...
Planning Commission Minutes
June 22, 2010
34
Chair: Not the Water Department.
Mr. Costa: Correct.
Chair: And then for the record what we have received this morning, comments from the
Department of Health regarding their comments.
Staff: To address Commissioner Blake's question, on the Department of Water
Comments a complete waiver and release agreement from the Department of Water agreeing that
the domestic water service is not available from the Department of Water. I think they address
your concerns within their condition.
Chair: Any more questions?
Mr. Texeira: This development of Well No. 5, does this satisfy your development plans
for the area going forward or do you have plans in the future to develop any more Well sites?
Mr. Dill: We do have a couple other Well sites identified in the future. There is a
possibility and we are hoping it is the case that this Well will satisfy all our demands for a future
source but just in case that doesn't pan out that way we have back up plans for other Wells.
Chair: Larry, is there anything else you want to add or comment on the conditions as
read by the planner?
Mr. Dill: No, I have no comments.
Chair: Any more comments for the applicant or the planner regarding the
recommendation? Seeing none, what would be the pleasure of the Commission?
Ms. Morikami: Mr. Chair, move to close the public hearing on this item.
Mr. Nishida: Second.
Chair: All those in favor say aye, opposed, motion carried.
On motion made by Paula Morikami and seconded by James Nishida, to close
public hearing, motion carried unanimously voice vote.
Chair: Since we have received agency comments and we have read the recommendations
we could entertain an approval or denial.
Ms. Morikami: Mr. Chair, for item E.1, Princeville Utilities Company, Use Permit U-
2010-17 and Class IV Zoning Permit Z-IV-2010-19, move to approve the recommendation of the
Planning Department pursuant to the applicant's request.
Mr. Blake: Second.
Chair: Any discussion, other amendments or additions, all those in favor say aye,
opposed, motion carries.
On motion made by Paula Morikami and seconded by Hartwell Blake, to approve
staff recommendation, motion carried unanimously by voice vote.
Special Management Area Use Permit SMA(U)-2010-4 to repair and replace a damaged
rock seawall and Shoreline Setback Variance SSV-2010-2 to permit a variance to deviate from
the Comprehensive Zoning Ordinance 8-27.3(b) the shoreline setback for the Pono Kai Resort
Seawall shoreline Rarcel seaward of Kuhi`o Highway, in Kapa`a, further identified as Tax Map
Key 4-5-007:001, and containing a total parcel area of 2.502 acres. County of Kaua %
Department of Public Works.
Staff Report pertaining to this matter.
Planning Commission Minutes
June 22, 2010
35
Chair: What we probably want to do, if there are any questions for the planner? If not I
will call the representative up if there is anything he wants to add or questions.
Mr. Doug Haig: Good afternoon, I am Doug Haig with the County of Kauai,
Department of Public Works Building Division. I am the project manager for this project and
Warren Booker with Ocean Net is our leading designer, engineer for this project. We are here to
answer any questions. I think Lisa Ellen did an excellent job in her write up and discussion and I
have nothing to add.
Chair: Herman?
Mr. Texeira: I know it is a difficult project you are working on. My question to you is it
seems as though the erosion is impacting from Waikea Canal to the other canal. It is not only
that section but right across the library, etc., erosion is taking place quite rapidly. Is there a
master plan, anything in the works to address the entire erosion of that coastline?
Mr. Haig: There was budgeted funding for a study of this Kapa`a area. That study was
not assigned to me and I don't know the current status of that. At Kapa`a Beach Park we have
retreated which is we retreat if we can. And so you know there was a comfort station many years
ago that we demolished and put in the new comfort station. Recently when the pavilions got
undermined we pulled that back. During the construction of the path in Kapa`a Beach Park we
actually redesigned it to move it on the mauka side of the parking lot rather than the makai side.
So we are aware of it and we have taken steps proactively to do the right thing but this study will
give us a better idea. We do have Dr. Fletcher's study which gives you the erosion rates so we
have that but my understanding is Public Works was actually going to do a more detailed
engineering study of that stretch and it is pretty much the area you mentioned. Waikea Canal to
the Waikea Canal is my understanding of what they were going to study. We are also, in the
same area, Moanakai Road, are looking at the seawall there and actually we are doing a coastal
study, a sea engineering study there right now analyzing that situation before we move forward
with the design and repairs.
Mr. Texeira: The new wall is a planned to be 750 feet long?
Mr. Haig: Approximately.
Mr. Texeira: So is 150 more than what we currently have right now. How will that
impact the surrounding shoreline because of that wall? When I say surrounding I am going back
to the library and that particular area.
Mr. Haig: The existing wall on both ends is deteriorating so what we are trying to do is
design a wall that can handle... that will design properly so it won't do that. We are also on the
north end keeping the wall more mauka so I am hoping we will actually have some of the beach
park makai of the wall on the north end and we will slowly let that erode until it finally gets back
to the beach park. Now on the south end is the same kind of thing, we plan to be back enough
from the beach that we will actually have some of that existing elevation berm in place when we
are done. And then whatever the ocean does we can't stop and eventually it will come up and
meet as far as we have gone. Our plan, we believe we are sufficiently designed laterally to avoid
that destruction at the edges of the wall and that is why we went farther.
Mr. Texeira: So you don't envision putting a wall from one canal to the next in time?
Mr. Haig: We are not envisioning that at this point at all. I think if you look at the
erosion rates that is not something that is in the near future that would be necessary.
Mr. Texeira: Are you planning any sand replenishment to accommodate the sand that is
ending up in the Waikea Canal?
Mr. Haig: It is our goal to be able to utilize sand that was dredged from the river mouth,
the access for the boats, to be able to bring that back and do beach nourishment. Our challenge
Planning Commission Minutes
June 22, 2010
36
is coordinating with the Department of Health and satisfying all their needs. If we can't work it
out with the Department of Health we plan on putting that sand above the mean high tide line.
Mr. Texeira: Do you also plan to do studies to determine the movement of sand along
that shoreline, any sand studies?
Mr. Haig: That is the study I mentioned earlier that my understanding was budgeted for
Public Works.
Mr. Texeira: But it is no longer funded, am I correct?
Mr. Haig: I don't know. I am not sure what happened to that one. It wasn't assigned to
me so I am not sure where it ended up.
Mr. Texeira: It just seems like that would be an important study for the area. It is very
critical for Kapa`a, to maintain that shoreline.
Mr. Haig: My vague memory is a priority was put on Po`ipu Beach so that is my
memory is that they may have shifted those funds to be able to do the study at Po`ipu Beach,
Breneke's area so that may have occurred. But I think it is still on the radar that that is
something that needs to be done.
Mr. Texeira: Is it not possible for the State to fund such a study?
Mr. Haig: It is possible but highly unlikely. We are the County of Kauai, we are
concerned about Kauai. They gave us the beach park so I guess we have to...
W. Texeira: I understand that but we do have State legislators that represent us so they
should be hopefully doing something that ...It seems like we are looking at the short term
solution for that area. Since growing up in the area I have seen because of the jetties going out,
to me that is the problem so why don't we try to solve the problem so why don't we try to solve
the problem than just putting up these walls. I just don't quite understand trying to address that
because it keeps going into Waikea Canal. For the past 50 years it has been doing that.
W. Haig: And we tried to bring the State in with us specifically for what you mentioned
because clearly the jetties that were built by the State are interfering with the flow of sand along
the coastline. But right now the State is not eager participants. They do acknowledge they have
a problem. They dredged it and very shortly afterwards the dredged sand came back in so they
know they have a problem but their ability to start working on it is hard to say.
W. Texeira: So the State funds the dredging, am I correct?
W. Haig: That is correct.
Mr. Texeira: And what do they do with the material?
Mr. Haig: This is a great bureaucratic story, we work closely with them, we provided
them access for our beach park because we were told we could take that sand and immediately
put it along the beach on the other side of the jetty. And then we go caught between two State
agencies and we couldn't get the approval to put the sand in. And so that is why part of this
project we are going to do our best to get through the hoops and get the approval from all State
agencies to be able to use that sand on the beach.
W. Texeira: Thank you.
Chair: Jimmy?
Mr. Nishida: The design for your proposed design from mean sea level is going to be 3
feet below; the lowest point is you are going to dig down 3 feet from mean sea level?
Mr. Haig: That is correct.
Planning Commission Minutes
June 22, 2010
37
Mr. Nishida: And then what is the height of the wall? That wall is going to be like a
poured concrete wall?
Mr. Haig: No. What we are looking at is putting in sheet pile and the height is going to
be about the height of the bike path, the existing grade at that elevation, and then we are going to
be bringing the rocks that are along the coastline back in to reinforce the toe of the sheet pile.
Mr. Nishida: What does sheet pile mean?
Mr. Haig: Sheet pile is a, in this case we are right now looking between steel and vinyl.
It is a big sheet of metal, fairly thick, and it is shaped kind of U shaped, W shaped a little bit,
maybe M shaped to give it structural strength and then you can either vibrate them into the
ground or you pound them into the ground.
Mr. Nishida: So there will be no excavation for to the 3 feet below mean sea level?
Mr. Haig: We are figuring that the construction sequence will be to come in and drive
the sheet pile and then you are going to excavate right in front of the sheet pile a big enough area
and then you are going to grab the stones and bring them back and put them right next to the
sheet pile. In some places we may actually still have the sand berm makai of where we will be
working where it is wide enough. But clearly in the narrow areas we will just be brining the
rocks straight back.
Mr. Nishida: Are you expecting that that little beach there will continue to be there even
though there is that standing up slope above the (inaudible)?
Mr. Haig: Since we are retreating we are expecting certainly not to have a negative
impact on what little beach there is and clearly that beach is seasonal. The sand is constantly
moving depending on the winds, the swells, and right now you can walk along there. There are
certain times when you can't walk along there but we are retreating so it should definitely be an
improvement of what we have now and should not negatively impact the current sand situation.
Mr. Nishida: Were any burials or artifacts found in the construction of the bike path or
any kind of work that you guys are doing?
Mr. Haig: Not in that area. At Kapa`a Beach Park we did discover some bones and then
we treated them appropriately under the direction of the State Historic Preservation.
Mr. Nishida: That was when you were removing that bathroom?
Mr. Haig: I think it was when we were moving the fence because we did move the fence
a little and I think that is when we found them.
Chair: I think Hartwell wanted the floor.
Mr. Blake: My only question is what State agency prevented us from using our own
sand?
Mr. Haig: The Department of Health, Clean Water Branch relates and they are afraid of
the turbidity that would be introduced if we put the sand along the shoreline and the waves came
and...
Mr. Blake: That was sand that was already on the shoreline.
Mr. Haig: Logic works for us. The logic of it agrees with exactly what you are saying
but sometimes the regulations are, it is difficult sometimes.
Unidentified Speaker: Let me explain the difference, the problems that we have...
Chair: Can you state your name?
Planning Commission Minutes
June 22, 2010
38
Mr. Warren Booker: I am Warren Booker from Ocean Net and I am the consultant for
Doug on this project. The dredging that is done in the canal for the boat ramp is done under a
Core of Engineers nationwide permit. One of the conditions of a nationwide permit is you
cannot put the sand back on the shoreline, it has to be disposed o inland. From DLNR's
viewpoint anything that comes from a dredging project that directly affects the beach should go
back on the beach. So these two agencies don't agree with each other. The Health Department
is part of the Core's permit, they issue the State (inaudible) Water Quality Certification which
means if you put it in the water, and well under that nationwide permit you can't put it in the
water. If you want to put it in the water you have to get a full Core permit. So it is not only
State but Federal that interferes with putting the sand back. Now you might be able to take that
sand and apply for what is called a small scale beach nourishment permit which is a combined
State and Core permit and then put the sand back on the beach.
Chair: I like Doug's answer, it is difficult.
Mr. Costa: So I think what that is saying is you cannot put it back in the water but you
could through proper permitting put it back on the...I believe that is like above the shoreline.
Mr. Booker: You can put it above the mean higher high water. That gets it out the
Health Department and the Core's jurisdiction.
Mr. Costa: And over time some of that will be reclaimed I guess.
Mr. Haig: And that is very similar to the SMA Minor permit that we have for Lydgate
Ponds where we are dredging the sand and then we are putting the sand above the mean high tide
line so that we can use it there at the site.
Mr. Costa: In other words somewhat reconstruct the dune.
Mr. Haig: But this project, we are going to try to get that permit to be able to put it back
on the beach where it may be below the mean high tide, we are going to try and that is our
commitment to DLNR because they really encourage us to try to do that.
Mr. Costa: Just one more clarification. I did check and there is funding for a project to
study basically from canal to canal which will provide recommendations on what long term
actions should be taken. I didn't get clarification on what the timeline is or what the current
status is but there is funding in place.
Mr. Haig: And you are reminding me, the person who is managing that project retired
last month so it hasn't been reassigned probably at this point.
Chair: Any more questions?
Ms. Morikami: I just want to know your time frame, starting date and finish date if this is
approved?
Mr. Haig: We have funding available. We are hoping once we get our SMA permit then
we are going to finalize our permitting with DOH and Core, we are not sure how long that will
take. But hopefully this fall or early next year we will be able to start construction.
Ms. Morikami: And the entire project will take approximately how long?
Mr. Haig: We are looking at 2 months of actual construction time but it is going to take
time for the contractor to mobilize and get the materials.
Mr. Texeira: My question is going back to the sand that is dredged from the canal. Is
there a treatment process that you can go through to be able to nourish the beaches?
Planning Commission Minutes
June 22, 2010
39
Mr. Haig: They analyze the sand to see if it is the right granular size to be able to go
back and this sand has been ...we have the sand at our Kapa`a base yard that was dredged and it
was analyzed and it is ready to go back. Hopefully it will still be there when we are ready for it.
Mr. Costa: Sand does tend to disappear.
Chair: Any more questions? If not, is there anybody in the public that would like to
testify on this agenda item? Seeing none, the lunch is here Commissioners, we could motion to
close the public hearing and then come back after lunch and read the recommendations if we
want to.
Ms. Matsumoto: Move to close the public hearing.
Ms. Morikami: Second.
Chair: All those in favor say aye, opposed, motion carries to close the public hearing.
On motion made by Camilla Matsumoto and seconded by Paula Morikami, to close
the public hearing, motion carried unanimously by voice vote.
Chair: Do you want to read the recommendations?
Staff Planner Lisa Ellen Smith read department recommendation (on file).
Chair: Are there any questions regarding the recommendation or conditions? Doug, do
you have anything you want to add?
Mr. Haig: Sounds good to me.
Chair: What would be the pleasure of the Commission?
Ms. Morikami: Mr. Chair, move to approve the Planning Department's staff report
relating to the County of Kauai, Department of Public Works, Special Management Area Use
Permit SMA(U)-2010-4 as requested by the applicant.
Ms. Matsumoto: Second.
Chair: Any discussion? This is just for the first one which is the SMA, all those in favor
say aye, opposed, motion carries.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to
approve staff report for SMA(U)-2010-4, motion carried unanimously by voice vote.
Chair: Now a motion for approval of the shoreline setback variance.
Ms. Morikami: Mr. Chair, move to approve the Shoreline Setback Variance Permit SSV-
2010-2 with the applicant County of Kauai, Department of Public Works as recommended by
the Planning Department.
Ms. Matsumoto: Second.
Chair: Any additions, deletions or comments, all those in favor say aye, opposed, motion
carries.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to
approve Shoreline Setback Variance SSV-2010-2, motion carried unanimously by voice
vote.
Commission recessed for lunch at 1:00 p.m.
Meeting was called back to order at 1:56 p.m.
Planning Commission Minutes
June 22, 2010
40
Class IV Zoning Amendment Z-IV-2010-15, Use Permit U-2010-14 and Special Permit
SP-2010-3 to construct and operate a pavilion consisting of an indoor auditorium, conference
center, certified kitchen, and an outdoor amphitheater on a property located along Kuhi `o
Hi way, approx. 1,500 ft. northwest from the Highway's intersection with Kolo Road, Kilauea,
further identified as Tax Map Key 5-2-017:028, and affecting a 6.55 acre portion of a 15.17 acre
property = Anaina Hou. LLC [Postponed 4/27/10, Director's Report received 6/8/10.1
Memorandum (6/16/10) from Planning Director transmitting agency comments.
Petition for Intervention: Exhibit "A" and Certificate of Service (4/19/10) from Laurel
Loo, Esq., Shiramizu Loo & Nakamura, LLLP, Attorneys for Petitioner Kalihiwai Ridge
Community Association.
Notice of Withdrawal and Substitution of Counsel for Petitioner (6/7/10) from Laurel
Loo, Esq., Shiramizu Loo & Nakamura, Withdrawing Counsel for Petitioner Kalihiwai Ridge
Community Association and James Tagupa, Esq., Substituting and ApRearing as Counsel for
Kalihiwai Ridge Community Association.
Letters in Opposition/With Concerns to Application from:
1. Jean-Michel Gabet & Katherine Gabet (4/16/10).
2. Roy Gillett (4/19/10).
3. James Gair (4/14/10, 4/15/10,4/21/10).
4. Michael & Marilynn Gleeson (4/18/10).
5. Joan Yamaguchi (4/27/10).
6. Michelle McBrear (5/19/10).
7. Gordon & Roberta Haas (5/24/10).
8. Patricia & Glen Posner (5/24/10)
9. Michelle Carroll (Undated, Received 5/26/10).
10. Walter Ely, MD (5/31/10).
11. Joell J. Slade 6/3/10).
12. Jo Costa Thomas (6/2/10).
13. Mark A. Carey (5/18/10).
14. Dana Nadeau (6/8/10)
15. Jeanne Pheasant (Undated, Received 6/10/10).
Letters in Support of Application from:
1. Frank Rothchild (4/9/10).
2. Jay Furfaro, Councilmember (4/19/10).
3. Judy Brennan (4/22/10).
4. W. F. Brennan (4/22/10).
5. Mary Paterson (Undated, Received 4/26/10).
6. Jeannette Rothweiler and Thomas Dikeman (4123/10).
7. Jonathan McRoberts (Undated, Received 4/29/10 and 5/23/10).
8. Samantha and David Geimer (5/24/10).
9. Mike Dyer (5/26/10).
10. David Swenson (5/26/10).
11. Ben Welborn (6/1/10).
12. Sandra Ughoc-Lew (6/2/10).
13. Bra Tanaka (4/22/10).
14. James Nakagawa Painting (Undated, Received 6/15/10).
15. Clark A. Tyler (Undated, Received 6/15/10).
16. Hugh Rutan (4/21/10).
17. Paul D. Tjarks (6/15/10).
18. Marilyn Miller (Undated, Received 6/15/10).
19. Sean Mahoney (6/8/10).
20. Kyle Chock (Undated, Received 6/15/10).
21. Suzanna Kennedy (4/18/10).
22. Casey Holt (4/18/10).
Planning Commission Minutes
June 22, 2010
41
23. Eagle (Undated, Received (6/15/10).
24. Kathleen Luiten (4/17/10).
25. Lynn Leonard (4/15/10).
26. Jennifer Viets (Undated, Received 6/15/10).
27. Debra Rickert ((4/19/10).
28. Steve Star (Undated, Received 6/15/10).
29. Angelei Star (Undated, Received 6/15/10).
30. James C. Jennings & Dudley C. Wilson (4/20/10).
31. Susan Wolford (4/20/10).
32. Joe & Cynthia Halasey (Undated, Received 6/15/10).
33. Margaret B. and Tom G. Halasey (Undated, Received 6/15/10).
34. Joanna Faso (4/21/10).
35. Gary E. Smith (4/8/10).
36. Kamran Taleb (4/21(10).
37. Marci Winters (4/21/10).
38. Caryll Lutton (4119/10).
39. John & Francine Edson (6/4/10).
40. Jane E. Goo (Undated, Received 6/15/10).
41. Mindy & Larry Smith (5/6/10).
42. Shinn T. Hunt (5/4/10).
43. Keya Guimaraes (4/10/10).
44. Duane Carlson (4/24/10).
45. Joshua James (4122/10).
46. Meredith Murphy (Undated, Received 6/15/10).
47. Thomas Pickett & Katie Pickett (Undated, Received 6/15110).
48. Eva Joy Miner-Peru (4/22/10).
49. Lanae Anakalea (5/18/10).
50. Eric Bronstein (4/27/10).
51. Andrea Brower & Keone Kealoha (Undated, Received 6/15/10).
52. Bernard Goo (4/26110).
53. John C. Ferry (4/22/10).
54. Danny Shook (6/21/10).
55. Petition (4/27/10) with 20 signatures.
56. Petition (Undated Received 6/15/10) with 116 signatures.
Chair: Commissioners, we received a petition for intervention and because we have
received this petition we are conducting proceedings on this matter pursuant to section 1-6-11 of
our rules and practice and procedures of this Commission. Therefore, they will handle the
intervention before the matter, the Planning Department's presentation, and the opening of the
scheduled public hearing. At this time may I have Counsel for the petitioner, Counsel for the
applicant, and Counsel for the applicant, please come forward, before we get started if you
could state your name for the record please.
Mr. James Tagupa: Good afternoon Chairman Raco, members of the Commission, my
name is James Tagupa, I represent Kalihiwai Ridge Community Association, the petitioners for
intervention.
Mr. Randy Vatuseck: Good morning Mr. Chairman and members of the Commission, I
am Randy Vatuseck and I represent the applicant.
Mr. Justin Kohler: Good afternoon Commission Chair and members of the Commission,
Justin Kohler, Deputy County Attorney on behalf of Ian Costa, Director of Planning, Planning
Department.
Chair: With that said, Mr. Tagupa if you want to since this is your petition you can...
Mr. Tagupa: Thank you. The petitioner, the Kalihiwai Ridge Community Association
consists of members who own lots in the Kalihiwai Ridge Subdivision. The project by Anaina
Hou would clearly adversely affect its members. The Kalihiwai Ridge Subdivision borders the
project area on the mauka side off Pu`u Kumu Stream so it is the area that is just mauka of the
project area. A number of the lots border Pu'u Kumu Stream in the project area. Clearly based
Planning Commission Minutes
June 22, 2010
42
on the petition the application submitted by the applicant would clearly adversely affect the
members of the Kalihiwai Ridge Community Association. More particularly the noise, they are
proposing an outdoor amphitheater. The application clearly states that they are going to have all
types of media, amplified sounds; they want to have birthday parties, luaus, concerts. All these
things will clearly create a lot of noise and will affect the neighboring lots. They will be
directly affected by this application and clearly they should be admitted as interveners.
In addition to the adverse noise affects the petitioners in this matter in the intervention
would clearly be affected by traffic also. It appears from the planner's report that the TIAR that
was conducted was for the original project which was for the golf course, miniature golf course.
I drove by and it appears like the improvements have been completed or are about to be
completed which shows only maybe a two or three car stacking lane. The project is for an
indoor movie theater which can seat 250 people, an outdoor amphitheater which has seating for
250 plus additional seating on the grass which may even double the number that they have
seating for, maybe even more. To have an operation that could have more than 500 people at
one time and only have a two or three car stacking lane is not reasonable and is not sufficient to
handle the amount of traffic. And clearly the members of the KRC will be affected because the
entrance to their subdivision is just a little bit north of the project area. Also it appears that the
TIAR made some assumptions that the intersection where the Shell Station is would be metered
or lighted intersection which is not correct. And so we clearly believe that traffic and noise
would be clearly adverse affect upon the KRCA.
In addition the project its self is incompatible with the zoning. When the applicants
obtained their first permit I believe the entire property was zoned State, under the State Land Use
rules, it was designated as Urban and the County Zoning was Light Industrial. Since January the
Council reverted it back to what it was before the Urban zoning which is now agriculture. A
clearly the project in this matter is a commercial operation, a movie theater, an outdoor
amphitheater are clearly commercial uses and are clearly permitted in commercial zoned areas.
However in this matter they want to put a commercial operation in a State agriculturally zoned
area which is clearly incompatible to the zoning. It may be that a lot of people want theaters,
want a place to hold concerts and that is fine however not in this particular area and that is why
they are coming to you for a Special Use permit which the KRCA objects for this parcel of land.
There are also other issues, one involves the Shearwaters. It may be that the project area
is underneath the flight path, there has been no lighting plan that could be reviewed by members
of the public to comment on whether or not it is sufficient to protect the endangered birds that fly
over the area. Also the application does not mention what type of waste water or sewage system
that is going to be required. It is KRCA's opinion that it should be some type of private waste
water system instead of some biological process which I don't know that that means that they put
in their application, bio-filters. But there are a number of issues that need to be clarified or
explained by the applicant therefore we are asking that KRCA be admitted as an intervener.
They clearly meet all the standards for intervention and we are asking that they be allowed to
intervene in this application, thank you.
Chair: James, for the record, can you bullet point or highlight? You talked about a lot of
points, can you just give us the points and the reasoning that you need to intervene.
Mr. Taeupa: Clearly they are affected. That is the main standard that they are going to
be affected by the project and so the items that I listed are the affects that this project will have
on the KRCA and that is clearly noise, traffic, and incompatibility of the project with the zoning.
It is agricultural land and the applicant clearly has stated in their application, this is a commercial
venture. They are planning actually to have movies, to have concerts, to have birthday parties
and all types of commercial activities. And so the main standard is if they are affected by the
project and clearly they will be adversely affected so they should be admitted as interveners.
Chair: So those are the three parts, the noise, the traffic and the zoning.
Mr. Tasupa: That is right and addition to some other issues like the Shearwaters, we
don't believe that their application addresses that fully and also their sewer system, waste water
system for 500 or 600 people or however number of people that will be on that at one time.
Clearly those are issues that we would like resolved.
Planning Commission Minutes
June 22, 2010
43
Chair: Thank you.
Mr. Vatuseck: Thank you Mr. Chair, I will try to be brief. I think we need to be clear on
what this intervention is. This is an action by the Board of Directors of the Association. The
Board took this action without a meeting and without any notice to the members of the
Association that they were going out and seeking counsel and filing this intervention. In other
words they never told the members of the Association that they planned to do this. They never
even told them that they had done it, they just published a notice on the door of the Association
office. So when they say they are acting on behalf of the members that is not an entirely true
statement. We have looked at their bi-laws and we feel that technically the board is entitled to
take action based on its consensus as long as they publish it afterwards and so we don't think that
technically we can challenge the Boards right to hire counsel and to intervene. But the
Commission should understand that they are not speaking for all of the members of this
Association. The Association members, we have affidavits or declarations signed by 50
members of the Association representing 50 different units in the Association saying that they
were never notified that this action was going to be taken, saying they had no opportunity to
comment on the Board's decision to take this action, saying they do not agree with the Board's
action and that they support this project. And that the Board does not speak for them when it
says it is speaking for the Association.
So technically we are not apposing this intervention because there is enough law in the
State of Hawaii that says that adjoining landowners have standing to intervene in land use
proceedings and we don't want to jeopardize the pace of the hearings by having the Commission
deny a contested case hearing and then having a court reverse it later on and have to come back
to you. Because frankly the Association and the Board and everybody else in the community
should have an opportunity to be heard about this project and should have the opportunity to give
their input and state what their concerns are and give the applicant an opportunity to address
those concerns in this project.
So what we want to do is go forward, if it has to be in a contested case hearing, so be it,
but let's just have a hearing that is fair and respectful and civil and let the process work the way
it is supposed to. I did hear Mr. Tagupa mention twice in his presentation about what the
previous action of this Commission had been on Phase I of the Anaina Hou project and when I
was preparing for the hearing today I read the transcripts of those hearings and I saw that Mr.
Tagupa was the attorney for the Commission at the time that those hearings took place. And so
this is a concern to the applicant because there are concerns or questions as to whether a former
government attorney can represent a private party in the same matter, in a matter in which he or
she was personally and substantially involved. This just came to our attention, we are going to
have to look at it more carefully and if we are going to do something about it like make a
complaint or make a motion we will do it before the first contested case hearing but we are afraid
that if we didn't raise it at the time that we learned it, at this first hearing, that we would waive
that position. So we just want to put it on the record for now, ask Mr. Tagupa to think about it
and take a look at the Code of Professional Conduct and make his decision as we are making
ours.
Mr. Kohler: The department is taking no position on the petition.
Chair: With that said, Commissioners, are there any questions for the intervener and
the...
Mr. Nishida: Jim, the standards for the intervention said all parties can apply but
something about they have to show that they are above... that they are different from the general
public. What does that mean to you?
Mr. Tagupa: That means that there are no other parties that will be representing the
KRCA's interest which there aren't because if there were other interveners then maybe they have
the same position and maybe KRCA's interest would be protected. However in this case there is
only the applicant and there is no other party and with respect to the issues that involve the
KRCA, they are issues that are directly related to the KRCA members and so that is why the
KRCA should be admitted so that they can address the issues that relate directly to them. I
Planning Commission Minutes
June 22, 2010
44
would also like to respond to what Mr. Vatuseck was saying with respect to the petition to
intervene which was initiated because there was a unanimous decision by the Board of Directors.
Yes it is clear that maybe there are some people that are members that do not agree with that
however the Board of the KRCA manages the Association and that is within their powers.
One other thing too with respect to the earlier project, the Rules of Professional Conduct
state that I cannot represent a party against the government in a matter that I was involved in
however the earlier petition is not the same as this petition. The earlier petition was for the golf
course project on completely different zoning and basically I believe if I am not incorrect that
there was no contested case hearing and I believe that matter was approved. I don't even know if
I even mentioned anything, I may or may, but I did represent the Commission. However the
Decision and Order in the permit that was granted to the applicant clearly states that any of the
issues relating to future expansion was not addressed so none of these matters were addressed in
the first hearing. This is a completely different petition. The only thing is it is the same
applicant. But besides the same applicant it is a completely different project in a matter that
wasn't considered the last time they were before this Commission.
Chair: Any more questions Commissioners? If I could ask the parties to step back and
let the Commission deliberate. With that said is there any discussion?
Mr. Blake: As I understand this is Ag. land that got up-zoned to Industrial, that didn't fly
or the project didn't fly so it got back down to Ag. again. And now there is an application for a
Use Permit to make this commercial or to allow a commercial use. Is that correct?
Chair: Let me just, you are the planner, right, so why don't you...
Mr. Dahilig: Commissioners, maybe what I would suggest is rather than getting the
Planning Department's recommendation up first or the report up first that we more so stay with
the interest that are being evaluated in terms of the intervener or the petitioner for intervention.
Matters in terms of the history and anything related to the project I think should be discussed at a
later time but we should rather be focusing on the interest of the petitioner and whether those
interests need to be represented through intervention or not by intervention.
Mr. Blake: So we have an applicant, the application has generated quite a bit of interest
obviously. You have those who are for the application and against the application. So how does
intervention clear the water or make it easier to dispose of the various issues?
Mr. Dahilig: What the petitioner is representing is that they have a unique property
interest in this project that potentially could be infringed upon that cannot be defended or
adequately taken into account by the Planning Department's recommendations. And so they are
asking for separate status to intervene and represent its own interests rather than relying on the
Planning Department to represent their interests for them.
Mr. Blake: And if the Planning Department as it is structured represents the public
interest and they are a member of the public because they don't intervene and they get on the
record as being against the project and the Commission approves it, can't they still appeal?
Mr. Dahilig: Anyone can appeal.
Mr. Blake: So why allow intervention?
Mr. Dahilig: The intervention is meant to create a contested case situation where
potentially there is evidence that is not brought forward by the department that can be brought
forward by the interveners and put on the record and be taken into account before the
Commission decides to take any action on the petition.
Mr. Blake: Can't they do that anyway?
Mr. Dahilig: They can do it through public testimony but in order to have the level of
standing and potentially should the Planning Commission decide to grant the petition contrary to
Planning Commission Minutes
June 22, 2010
45
what their belief is that it gives them a right to exercise an appeal to the Fifth Circuit Court and
have that decision be reviewed by the circuit judge.
Mr. Blake: So they can testify against them and if it doesn't go their way, any of the
citizens that were against it can appeal.
Mr. Dahilig: Not in this particular case because the intervener status allows
that without intervention obviously our position would be null because there is not contested
case at that point, they have to exercise their right to a contested case hearing. In order to do that
they have to file a petition with this Commission 7 days prior to a publicly noticed hearing which
was posted quite a while ago and the only petition we received 7 days prior to today was the
petition from the Neighborhood Association of Kalihiwai Ridge.
Mr. Nishida: Who may intervene, "All persons who have some property interests in the
land, who lawfully reside on the land, or who otherwise can demonstrate that they will be so
directly and immediately affected by the proposed project that their interests in the proceeding is
clearly distinguishable from that of the general public and shall be admitted as parties,
interveners, upon timely written application for intervention". So Mike, this doesn't say like Mr.
Vatuseck said, this doesn't say to directly allow a neighboring person so did the argument that
Jim made qualify them for intervention on that argument?
Mr. Dahilig: That is a finding that you will have to make, whether, again, the petitioner
meets that standard. What I would comment is that Mr. Vatuseck's representation was that
beyond the scope of the rules and the ability to do contested case hearings pursuant to Chapter 91
of the Hawaii Revised Statutes that there is a large amount of case law out there that determines
what an intervener standing, what should be interpreted when determining intervener's right to
come in and get standing. And that standard is very broad with respect to who has a property
interest and it should read liberally with respect to what our rules are.
Mr. Nishida: So even this one that specifically says they should have some property
interest that can mean a neighboring property?
Mr. Dahilig: That is correct.
Mr. Nishida: And then the second thing I noticed about contested case hearings is that
once the contested case hearing starts, in this case we have a tremendous amount of support for
the project. Unless that support is organized in some manner where they can intervene they
really don't have, it is not a function the parties to the project would become the applicant, the
intervener, the County, and us as the decision makers. Or whoever the court hearings officer
was.
Mr. Dahilig: That is correct.
Mr. Nishida: So it is kind of cuts short the public hearing process where normally we
would take the project and we would listen to both sides and then we would make a decision.
Mr. Dahilig: Actually it elongates the process in the sense that the general public is, let's
say you decide to close the public hearing today, per your rules the public will no longer be able
to testify under a public hearing but they can still testify under Chapter 92 should this agenda
item come up again. But what happens is that the intervener, the department, and the applicant
get steered into a contested case hearing process under Chapter 91 of the Hawai `i Revised
Statues where then you determine the rights of that individual along with what is the Planning
Department's recommendation and that applicant's request.
Mr. Nishida: So at what point does the general public and the K-11auea Neighborhood
Association or people other than the intervener and the parties to the contested case hearing, at
what point do they provide input to the final decision?
Mr. Dahilig: That happens today.
Planning Commission Minutes
June 22, 2010
46
Mr. Nishida: And then after that we can use that information in the final, it happens
during the public hearing process you are saying?
Mr. Dahilie: Yes.
Mr. Nishida: And then the contested case hearing happens and then actually we have to
allow the testimony into the contested case hearing.
Mr. Dahilig: It can be folded in.
Mr. Nishida: And then at the end of that it becomes a decision.
Mr. Dahilie: Right, after evidence is presented in the contested case hearing.
Chair: Any more questions? I had one question regarding the Kalihiwai Neighborhood
Association, it is an association, right, it is not really a neighbor to have direct financial status or
affiliation it is an association, right? If the neighbor, why is it the neighbor?
Mr. Dahilig: The case law that has come out...again this is a liberal standard in terms of
who can apply for intervention status. I am not aware of what exactly the articles of
incorporation or how this community association is incorporated or created as a separate distinct
or individual body. But they are an entity that in some case law has been, a like entity that in
some case law has been represented and been allowed to intervene even though they don't have
necessarily the articles of incorporation or the fancy documentation that creates that entity. So
they are a group of interested persons that have come forward and wanting to seek intervention
status before the Commission and I think that the petition before you is at least legitimate on
those grounds to entertain.
Chair: Any more questions or discussion?
Mr. Blake: For purposes for intervention because your needs or your concerns cannot be
adequately otherwise represented, we are talking about a Use Permit here, right, and as I
understand Use Permits the burden of proof is on the applicant to show that the non-conforming
use that they are advocating is not incompatible with the general area and neighborhood. So if
intervention is not permitted and the Use Permit is granted the persons who feel or parties that
feel that their property rights were not adequately or could not adequately be represented still
have the avenue of seeking to have the Use Permit cancelled.
Mr. Dahilig: So what would happen in this particular case is let's say you deny today, it
would be a final decision on the petition which could be appealable to the Circuit Court. You
could still proceed with the action as presented by the Planning Department however should the
court deem that it was improper for the Planning Commission to deny the petition that Use
Permit validity would be pretty much cancelled out and you would have to restart the process
over again.
Mr. Blake: But we could deny intervention and deny the Use Permit also, right?
Mr. Dahilig: That is correct. Upon which time then if the applicant so chooses they can
come in and...
Mr. Blake: Reapply.
Mr. Dahilig: Or they can seek appellant review of that decision.
Mr. Blake: How can they seek appellant review for a Use Permit?
Mr. Dahilis: Because it is their right Commissioner.
Mr. Blake: That is true but if we have to decide whether it is compatible or not and we
say it is not, the judge is going to say it is?
Planning Commission Minutes
June 22, 2010
47
Mr. Dahilig: There is a litany of standards they can apply with respect to reviewing an
administrative decision. I can't speak for the judge, all I can say is that they have the right
should the application be denied to seek some type of appellant remedy should they disagree
with our decision.
Mr. Blake: Of course I was assuming everything was proper in a denial if it ever
happened.
Chair: But still the burden of proof would be on the applicant to provide that the Use
Permit is allowed and is usable. Like you said, the burden of proof is on the applicant and not us
or the community.
Mr. Kimura: Right here is says "The petitioner believes because it represents the 181
members of its association it would delay the process far less than having each member file a
separate request."
Chair: Are you reading from something so the Commissioners can follow you?
Mr. Kimura: Petition for Intervention, Laurel Loo, page 6. I heard earlier from the
applicant's lawyer that they do not represent the whole 181 members of this Kalihiwai Ridge
membership.
Chair: Yes and on the same note it is Laurel Lou and then we have another attorney that
is representing...
Mr. Kimura: So do we discard this?
Chair: I don't know, that is what I am asking.
W. Dahilig: He is just stepping in as counsel. The pleading should still stand and be
entertained by the Commission as is. It is just a substitution of counsel that we received for the
record (inaudible).
Chair: Is he working for the same firm?
Mr. Dahilig: I believe he is independent counsel from Shiramizu Loo and Nakamura.
W. Kimura: So some of the members of the association were wrongfully represented?
Mr. Dahilig: Again that is a representation by the applicant. Nothing else in their dossier
has come forward to show that that in fact is true. That is a representation from the applicant.
Chair: We could ask W. Vatuseck to come back up.
Mr. Kimura: We do have letters.
W. Dahilig: You do have letters.
Mr. Kimura: By homeowners of Kalihiwai Ridge.
W. Dahiiig: That is correct.
Chair: Can Mr. Vatuseck come up and provide us with any...
W. Dahilia: You can call him back up.
W. Kimura: Sure, exactly how many people are they representing or not representing.
Chair: Not only that but his claim was that the Kalihiwai...
Planning Commission Minutes
June 22, 2010
48
Mr. Dahilig: Just as a clarification we are not at a point where we should be taking into
account public testimony or any type of public comment on the petition. Right now what should
be the only matter before the Commission is determining whether the petitioner has an interest
that cannot be represented as the general public by the department. And then once the public
hearing has come into account and you are at a point where you can make a decision on the
petition. That is when the weight of public testimony should be taken in by each Commissioner
in evaluating how to decide on the matter.
Mr. Kimura: What I am saying is over here they are saying they are representing the
whole association when in actuality they are not so I am just trying to find out exactly who and
how much people they are representing. Just to find out if, I don't know.
Mr. Nishida: Follow up question, would that misrepresentation if it is, cause this
application to be not good?
Mr. Dahilie: What I would say is that the applicant has raised the issue but has not
objected to the petition in terms of adequacy of form and representation. It is still a question that
is legitimate before the Commission however neither opposing party, the Planning Department
nor the applicant has raised the issue to the point where they are opposing this petition for
intervention on those grounds.
Mr. Blake: I believe what the association is saying is or the intervention, let me back up,
the people who support the intervention are saying that we represent the association. They didn't
say we represent 100% of the landowners.
Mr. Kimura: Well it says 181 members.
W. Blake: But 181 members, they didn't say all 181 members have lined up on our side.
They are saying there are 181 members...
Mr. Kimura: Represents the 181 members of its association.
Mr. Blake: Right but it doesn't say that they all agree.
Mr. Kimura: Well according to this it seems like it.
W. Blake: It's just like...
Chair: They are representing them.
Mr. Kimura: They are representing the 181 members.
W. Blake: The President of the United States says I represent the United States but not
everybody agrees with him either. So I think it is just a technical thing that you have to be
careful about what we interpret from...
Mr. Kimura: I just wanted to know exactly how much they are representing.
Mr. Blake: I don't think they ever said.
Chair: We can ask W. Tagupa to come up and tell us.
Mr. Dahili¢: Again it is like I mentioned earlier, it is hard to ascertain exactly what are
the incorporating documents behind this association, is it an AOAO, is it a 501C3, is it just a
loose affiliation of individuals that happen to own lots in Kalihiwai Ridge and have come
together as a Hui and wanted to protest this. I don't know what the documents are. There has
been no objection regarding the actual process, sorry, let me rephrase that. There have been
declarations represented by W. Vatuseck that their process may not have been followed but no
one individually has come before the Commission to challenge the adequacy or sufficiency of
how this petition got filed and whether it was improper to have the petition actually filed on
behalf of the entity that is the association. Think of the association as another person, of a bunch
Planning Commission Minutes
June 22, 2010
49
of people that make up that one association. So everyone has their own individual right but they
have come together as this one, another individual that can come forward and say the association
is the one that is filing this petition.
Chair: So we cannot ask Mr. Tagupa about that?
Mr. Dahilie: You can ask any question you want.
Mr. Kimura: I would like to know.
Chair: I will suspend the rules and ask Mr. Tagupa to come up to answer a question from
a Commissioner.
Mr. Kimura: Can you tell me more or less how many members of Kalihiwai Ridge
Association members do you represent?
Mr. Tagupa: I represent the Association and the Association is managed by the Board
and the Board made the decision to file this petition for intervention. With respect to the exact
number of people who oppose or approve of this intervention, I don't really know. But I do
know that this community association, the KRCA, does have standing to intervene. I think the
case law is clear and also too, the fact that there is no objection to this we are asking that we be
allowed to intervene. If there was a problem somehow in this process well then that could be an
internal matter for the members of the KRCA, however with respect to this petition we do have
standing. Community associations have in the past been admitted as interveners including the
Kilauea Neighborhood Association in a number of cases including when this particular property
was zoned to Urban and they challenged it. So there is a lot of case law even though the rules
may not specify all the different interveners and the standards, as your attorney has indicated
there is a lot of case law that has allowed community associations to intervene in contested case
hearings. So that is why we filed the intervention because...
Mr. Kimura: I understand that but over here you didn't have a problem putting down
how many members you represent but you have a problem telling me exactly how many
members you do represent.
Mr. Tagupa: I believe that was a general statement and it wasn't meant to say that every
single person, that is just the number of members that is in the association. That is not saying
that ...there are always when you get that many people there is always going to be a number that
won't agree with what you do.
Mr. Kimura: Thank you.
Chair: Any more questions for Mr. Tagupa, if not what I want to do really is ask the
applicant's attorney to see if he wants to comment and give him his fair share.
Mr. Vatuseck: I can offer these 34 declarations to the Commission now. They are 34
declarations that are signed by 50 members of the association representing 50 units saying that
they did not authorize this. In fact I would offer if but I don't have 14 copies of each one. And
frankly Commissioner the answer is they never checked, they don't know how many members
they are representing because they never asked them. This is just something they did entirely on
their own without telling the members that they were doing it or giving the members an
opportunity to comment on it. And so what we are offering are declarations and testimony from
like I say 50 individuals who say not only did we not know about it but we don't agree with it
and we don't want them to speak for us.
Now they are an association, they are a corporation and they are acting through their
Board of Directors and under their bylaws they are entitled to do that. I am not challenging that.
All I am trying to say is that when you listen to it think about what it really is and what it really
is, is 8 guys who voted on their own to intervene in this because they don't like the project. And
so that is what it is and like I said before we did not file a formal objection to the intervention
because we don't want to go up to court and come back here. We think the people should have
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June 22, 2010
50
an opportunity to speak and be heard because if they have concerns that can addressed by the
project the project will address it and it will be better for everybody.
Chair: Any more questions for Mr. Vatuseck? Does the Planning Department Attorney
want to speak?
Mr. Kohler: We still take no position on this matter. This is a matter between the
petitioner and the applicant.
Chair: I will bring the meeting back to order, any other comments?
Ms. Morikami: I have a question for the County Attorney.
Chair: Which County Attorney?
Mr. Kohler: Mr. Dahilig is your attorney today.
Ms. Morikami: There was mention of the attorney for the intervener regarding the
conflict. Do you see a conflict?
Mr. Kohler: That is a question for your attorney.
Chair: He is the department's attorney, this is our attorney.
Mr. Dahilie: If you would like me to answer your question Commissioner unfortunately
I will have to ask that we enter into executive session for me to answer that question. Would you
like to enter into executive session?
Ms. Mor kami: I think it is an important point that we just need to clear up before we get
involved in this process so yes.
Chair: So if you want you can read the executive session, the normal language or we can
have the attorney read it.
Mr. Dahiliu: Commissioners, pursuant to Hawaii Revised Statutes Section 92-5(a)(4),
the Office of the County Attorney requests that the Planning Commission enter into an executive
session to consult with the Board's attorney on questions and issues pertaining to the Board's
powers, duties, privileges, immunities and liabilities as it pertains to this particular agenda item.
Chair: So is that a motion?
Ms. Morikami: So moved.
Ms. Matsumoto: Second.
Chair: All those in favor say aye, opposed.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, move
into executive session, motion carried unanimously by voice vote.
Commission went into executive session at 2:45 p.m.
Meeting was called back to order at 3:01 p.m.
Chair: I will entertain a motion if there is no more discussion.
W. Nishida: Move to approve intervener request for Kalihiwai Ridge Community
Association.
Ms. Matsumoto: Second.
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June 22, 2010
51
Chair: Any discussion?
Ms. Morikami: Yes Mr. Chair, I would like to move to have the Planning Commission
reserve its right to exercise any relevant privilege relating to conflicts of interest and
representation by Mr. Tagupa of the petitioner intervener.
Chair: Since there is a motion that would be a separate motion. Is that a motion? With
that motion is there a second? Is that a motion Paula?
Ms. Morikami: According to the attorney I need to make it as a motion so yes.
Chair: Is there a second?
Ms. Matsumoto: Second.
Chair: All those in favor say aye, opposed.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, that the
Planning Commission reserve its right to exercise an relevant privilege relating to conflicts
of interest and representation by Mr. Tagupa of the petitioner intervener, motion carried
unanimously by voice vote.
Chair: So back on the main motion to approve, any more discussion, seeing none all
those in favor say aye, opposed, motion carries.
On motion made by James Nishida and seconded by Camilla Matsumoto, to
approve intervener status as amended, motion carried unanimously by voice vote.
Chair: If I could ask the parties to come forward again. With that said, per my calendar,
my open date would be September 28`x.
Mr. Vatuseck: Is that for the hearing?
Chair: That would be for the hearing.
Mr. Tagupa: I am free on that day.
Mr. Kohler: That is fine with us.
Chair: Okay, let's set it for September 28`s and if I could get a motion. The Commission
will be setting a contested case hearing for September 28"'. May I have a motion to set the
contested hearing in the matter for September 281 and authorize the Chair on behalf of the
Commission to handle any logistical matters concerning the filing of the documents and sending
of the contested case hearing?
Ms. Morikami: So moved.
Mr. Nishida: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Paula Morikami and seconded by James Nishida, to set
contested case hearing date for September 28, 2010 and authorize Chair on behalf of the
Planning Commission to handle any logistical matters concerning the filing of the
documents and sending of the contested case hearing, motion carried unanimously voice
vote.
Hearing was closed.
Proposed Zoning Amendment ZA-2010-9 for an Ordinance to amend Section 8-27.8 of
the Kauai County Code, as amended by Ordinance No. 863 and Ordinance No. 8871, relating to
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June 22, 2010
52
the implementation of scientifically generated erosion based setbacks and establishing
procedures for the Planning Commission to determine whether activities proposed on property
abutting the shoreline are subject to a shoreline setback and activity determination = Kauai
County Planning Commission.
Staff Report pertaining to this matter.
Hearing was closed.
NEW BUSINESS
For Acceptance into Report - Director's Report for Proiects Scheduled for Public
Hearing for 7/13/10 Public Hearing.
Use Permit U-2010-18 and Class IV Zoning Permit Z-IV-2010-20 to construct
improvements to the existing Hanamd'ulu Wastewater Pump Station ()YWPS), involving the
replacement of two existing pumps and the addition of a generator room approx. 208 sq. ft. in
size, on a parcel situated on the makai end of Hanama`ulu Road, in Hanamd'ulu, approx. 2,500
ft. southeast of the Hanamd'ulu Road/Kuhi`o Highway intersection, further identified as Tax
Map Key 3-7-003:012, and containing a land area of 2,250 sq. ft. = County of Kauai,
Department of Public Works.
Director's Report pertaining to this matter.
On motion made by Camilla Matsumoto and seconded by Paula Morikami, to
receive Director's report into the record, motion carried unanimously by voice vote.
For Acceptance and Finalization - Director's Report for Shoreline Setback Activity
Determination. (NONE).
ADJOURNMENT
Commission adjourned the meeting at 5:03 p.m.
Respectfully Submitted.
Lani L. Agoot
Commission Support Clerk
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June 22, 2010
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