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KAUAI PLANNING COMMISSION
REGULAR MEETING
October 12, 2010
The regular meeting of the Planning Commission of the County of Kauai was called to order by
Vice Chair, Herman Texeira at 9:10 a.m. at the Lihu`e Civic Center, Mo`ikeha Building, in
meeting roo2A-2B. The following Commissioners were present:
Mr. Herman Texeira
Ms. Paula Morikami
Mr. Jan Kimura
Mr. Hartwell Blake
Mr. James Nishida
Ms. Camilla Matsumoto
Absent and Excused:
Mr. Caven Raco
Discussion of the meeting, in effect, ensued:
APPROVAL OF THE AGENDA
Vice Chair: Before I move forward with the approval of the agenda I would like to
change the order of the agenda and the second item, A.2, the executive session, will be moved to
the last item. So with that in mind I would like to have a motion to approve.
Ms. Morikami: Mr. Chair, on item A.2, move to the end of the calendar.
Ms. Matsumoto: Second.
Vice Chair: All those in favor, opposed, motion carries.
On motion made by Paula Morikami and seconded by Camilla Matsumoto to move
agenda item A.2 to the end of the agenda, motion carried unanimously by voice vote.
Vice Chair: The next item is the approval of the agenda.
Mr. Blake: So moved.
Ms. Morikami: Second.
Vice Chair: All those in favor, opposed, motion carried.
On motion made by Hartwell Blake and seconded by Paula Morikami, to approve
the agenda, motion carried unanimously by voice vote.
Vice Chair: I would like to also entertain a motion for the receipt of items for the record.
Ms. Morikami: Move to receive those items.
Ms. Matsumoto: Second.
Vice Chair: All those in favor say aye, opposed, motion carried.
On motion made by Paula Morikami and seconded Camilla Matsumoto, to receive
items into the record, motion carried unanimously by voice vote.
Vice Chair: The minutes of September 14, 2010, I would like to entertain a motion.
NOV L 3 2010
Ms. Morikami: Mr. Chair move to approve the minutes.
Ms. Matsumoto: Second.
Vice Chair: All those in favor say aye, opposed, motion carried.
On motion made Paula Morikami and seconded by Camilla Matsumoto, to approve
Planning Commission meeting minutes of September 14, 2010, motion carried unanimously
by voice vote.
GENERAL BUSINESS
Annual Status Report and Request from Keith Robinson (8/2/10) for an additional time
extension for Special Permit SP-2006-2, Use Permit U-2006-28 and Class IV Zoning Permit Z-
IV-2006-31 to continue operating a helicopter landing facility and botanical tours on Nonc,12
Ridge, Makaweli, Kauai, Tax Map Key 1-7-001:-11 = Keith Robinson Helicopters.
Staff Report pertaining to this matter.
Staff Planner Kaaina Hull read staff report (on file).
Vice Chair: Any questions for the planner?
Mr. Nishida: Kaaina, since the first, I think Mike went up to look at the site and
everything, have you guys gone up after that to confirm what is going on or take pictures or
anything like that?
Staff: On the first one and the second one, we have not conducted a third tour of the
operation.
Mr. Nishida: So it has been two years.
Staff: It has been two years.
Mr. Nishida: And the second one, the site was okay?
Staff: Yes, it was confirmed that he was in fact participating in soil conservation as well
as rare endangered species planting.
Mr. Nishida: And the site it's self there was no...the helicopter wash wasn't destroying
the site or anything like that?
Staff: I don't have any notation on that from the previous planner.
Vice Chair: Anybody else?
Mr. Blake: How many helicopter companies are flying into this botanical preserve?
Staff: The landing site has been approved for two helicopter landing companies and I
believe those two right now are Safari Helicopters and Niihau Helicopters. As presented by the
applicant he is averaging about a landing every week to two weeks, excuse me, a landing in
which passengers are touring the operation about one per every week or two weeks.
Mr. Blake: So we have two helicopters landing on the interior on that Nonopahu Ridge.
We have another one that is landing at Manawaipuna Falls, and we have a fourth helicopter
company that wants to land at Hali`i Falls, four companies. How many companies are there on
Kauai?
Staff: I believe there are three more helicopter companies but I am not sure. I would
have to confirm that.
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October 12, 2010
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Mr. Blake: So the majority of the companies, is it safe to say then that the majority of the
helicopter companies on Kauai are making interior landings?
Staff: I would have to confirm if there are three more or if there are more.
Mr. Blake: And the policy of the department is not to have ...well we can't to say not to
have any landings, not to have a proliferation of landings?
Staff: I would say there is a concern over a proliferation of landings however it is not an
outright established policy that has been adopted.
Mr. Blake: When I read the submission by the applicant these trips help finance a soil
conservation and reclamation and erosion effort. And my question then is how much longer
before this effort is complete? Or will this go on forever?
Staff: I would advise to direct the question to the applicant.
Vice Chair: We can direct that to the applicant, anybody else?
Ms. Morikami: Mr. Chair, in answering Commissioner Blake's question, I believe there
are 10 helicopter companies now existing on Kauai of which 4 have landing rights outside their
base whether it is Lzhu`e or Port Allen. And I share the same concerns as you because with 10
companies I think we need some guidelines and policies established so that we are not having a
problem when it becomes a proliferation all over the island. And so with 10 companies now
existing, we have Island Helicopters already flying, Robinson is the second along with Safari,
they land at the same location, and we have an application for Inter-Island. And it concerns me
that, we are giving them 2 year temporary permits but I think the Planning Department and
Planning Commission needs to look at some guidelines so that we don't have all 10 of them
coming in and requesting to land elsewhere. And that is my concern.
Mr. Blake: Part of my question is the result of me not having been here when this one
was originally granted so I thought that Island Helicopters was the first one and that was going to
be a 2 year trial run to see not only whether it worked but how if affected the island residents,
flora, fauna, and so forth. This permit has some or exists for a reason in addition to providing
another venue for tourism or whoever wants to take a trip and it also takes place on the owner's
land. The owner also has a helicopter that is being utilized which somewhat differentiates it
from the Manawaipuna situation. And of course Hali`i Falls is strictly scenic to provide another
or expand the flying experience. And of course we are faced with, the helicopters already criss-
cross the island and fly around the peripheral of the island.
And so the concern has been, that has been voiced by the public, has been making it a
busy aerial street above the island, all the noise and intrusion that the helicopters bring with
them. And every one of these permits has been for 2 years. So I am concerned about and I will
address this to the applicant, is this an ongoing project or is there some light at the end of the
tunnel when the damns or catchments or the soil conservation measures are in place, number
one. And secondly, other concerns which are outside this permit have to do with the one permit
that has been granted already and the other application that is before us.
Vice Chair: With that in mind if there are no more questions by the Commissioners I
would like to call on the applicant. Please state your name.
Mr. Keith Robinson: Thank you ladies and gentlemen, my name is Keith Robinson. I
am the applicant in the afore mentioned matter. What questions do you have?
Vice Chair: First of all, you have heard the evaluation by our planner, do you have any
concerns or questions of are you in agreement with the evaluation that was brought forward this
morning?
Mr. Robinson: No, not really. I think that it basically covered pretty much all of what is
happening up there, yes. Now if you people want I can easily supply you with a background of
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October 12, 2010
3
this matter which goes back some 20 or 25 years and I can give you some other facts which this
Commission may not know. I could do that if you wish to take the time.
Vice Chair: Is it the pleasure of this Commission to hear those?
Mr. Blake: I think it is certainly a worthwhile effort. Every time it rains you see that
brown ring around the island and you wonder how much of our top soil we are losing.
Vice Chair: Okay Mr. Robinson, thank you, we would like to hear more from you.
Mr. Robinson: We have a number of extremely serious environmental situations out
there. First of all and I am sorry to have to say this but there is a very, very serious, I might even
say catastrophic soil overgrazing situation in West Kauai. Now it is not only in West Kauai, it
is in other Hawaiian Islands too wherever livestock have gone but it is particularly bad in this
deep country of West Kauai both on Makaweli Ranch and on State lands in Waimea Canyon.
And it is starting to be bad on the Na Pali also. I understand that guidelines on the mainland,
U.S. Federal Guidelines call for a loss of no more than about one or two tons per acre of soil per
year. The soil conservation work or measuring work in my reserve as a result of or was financed
by this helicopter landing permit indicates that those red earth patches on West Kauai,
depending on their slope, they are losing between 180 and 230 tons per acre per year. The island
is dissolving under us basically. That is an infinitely more serious situation than just a helicopter
landing here and there.
We are looking at a major environmental catastrophic and I regret to say but it is the
truth. I have had a serious disagreement with certain other members of the family for years over
this, this overgrazing is unfortunately a traditional although albeit unwritten policy in Makaweli
Ranch. And we have an even more serious situation on in Waimea Canyon on the State lands.
My original proposal to the Planning Commission was to see if I could try to reclaim 10 acres of
land from this kind of destruction and I have been reasonably successful. Only 2 of the soil traps
have been measured, there were about 8 or 10 soil traps, those 2 soil traps in the last 2 years have
trapped about something like 50 tons of soil but we believe that the overall is more like 200 to
250. Not all of it was measured like I said. Now this is significant considering it came off of a
small red earth patch area that was only estimated to be about 7 or 10 acres maximum and it
could be a good deal smaller than that.
So we have a real serious problem that is a lot worse than anything a helicopter could do,
the grazing animals are literally destroying the western side of the island. They are also
destroying Hawaiian native plants and trees. But grazing animals are by no means the only
problem there, there are about 8 major causes for the extinction of Hawai`i's native flora. I
won't try to go into all 8 of them here because I know you have other things to address today but
I will say this, that Hawai`i's native plants and tress evolved for millions of years in benign
isolation in tropical islands. And in that benign isolation they faced no threats or challenges of
any sort, there was very little competition so they lost their competitive abilities and became
what I call biologically incompetent. Now I am not going to say that a lot of these species were
very beautifully, I am not going to say that a lot of these species didn't have some very unusual
characteristics, very scientifically valuable characteristics but I am going to say that they had lost
their competitive abilities and had lost their biological efficiency.
Now meanwhile out in the wider world there were tens of thousands, hundreds of
thousands of plant species evolving in the savage competition of continental ecosystems where
they routinely faced and overcame tremendous threats to their viability. And as a result these
species from the continental ecosystems became highly aggressive, highly efficient life forms
and when the isolation of these islands and many other tropical islands throughout the world, this
rule also applies to other islands, not just Hawaii but to other tropical islands all over the world.
When man deliberately or accidently introduced tens of thousands of other species from other
parts of the world there was just no contest. The best analogy I can make for you is the native
Hawaiian plants and trees were like an athlete who has had an easy life and has never had to train
for anything and who's never done anything and then all of a sudden he is put into the Olympics
to compete against world class athletes. You know what is going to happen, he is going to be
soundly beaten at everything and that this is exactly what happened to our native flora. It is
going out fast of about 22 to 24 hundred species of native plants and trees in Hawaii. It divides
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roughly into thirds, one third is still holding their own, one third is declining but not yet in
eminent danger of extinction, and about one third or about some seven or eight hundred species
are in eminent danger of extinction.
I am not going to say the ancient Polynesians did not have a lot to do with this, they did,
we now know from the fossil record that a lot of this stuff was extinct before the western contact.
But in the years since the western contact the situation has only gotten worse. As the time I
started my endangered species rescue work back in the 1980s, Hawaii's native plants and trees
were going extinct at an average rate of one species every 9 months and that rate has I believe
only accelerated in the succeeding years. Now my original idea and this was long before
helicopters became common or controversial on Kauai, this was back around 1984, I was going
to establish three botanical reserves serviced by helicopters, one in the super dry country on
Niihau which would try to protect dry land Hawaiian species, one in the uplands of West Kauai
where I am working now which would try to protect what we call the (inaudible) species, these
species that are neither wet land or day land but in between, and one over in Wainiha, very wet
lands that the family owns, lands which are very comparable to the Na Pali Coast where a
catastrophic crisis is underway. And that is as of now the only one that is operating that way, is
the one of West Kauai which has been very successful. These endangered Hawaiian plants and
trees are not going to make it in the wild anymore, they are only going to survive in intensive
cultivation and that cultivation is going to be extremely expensive which is why I thought there
should be...try to support it with tourism.
Now I am not going to claim to you that I have solved all the problems in the world here
but I have been lucky in those reserves. There are some species of plants and trees basically that
only exist in my reserves now and nowhere else in the world or in very low numbers anywhere
else in the world. These native Hawaiian plants and trees, the environment has changed so badly
around them that an awful lot of them can no longer survive in the wild but only under intensive
protection and cultivation. Which is why I have repeatedly said to my friends and even to certain
members of this Planning Commission that I have suggested that it be a policy of this
Commission that whenever it grants a helicopter landing permit somewhere, that is a perfect
opportunity to have native Hawaiian plants and trees protected in the wild and that it should say
as a condition of granting of such permits that such applicants shall plant and maintain these
species that were formerly common to their area. That is basically where I stand right now, this
reserve that we are discussing right now...well I will give you two illustrations and not bore you
with anything else.
There was originally a highly unusual variety of native cotton on the island of Niihau. I
believe the sheep have gotten to that native variety of cotton and I believe it is gone now but I
still have a large number of plants which are flowering and seeding profusely in this reserve that
has been established and the rescue work is being funded by these helicopter landing fees. Also,
over in Waimea Canyon there is a variety of (inaudible), is a species that is only found on
Kauai. There are two varieties of it, the more beautiful one is found in limited numbers on the
Na Pali Coast, there were a couple of trees in the upper part of Kipu Kai years ago and there
were a few trees, 2 or 3 trees over on Nono Mountain. If any of your are curious you can go and
see this species, it is in cultivation, it is in a yard right across from the Garden Island Newspaper
Publishing Company just on the Wailua side and a little bit back towards Hanalei on that side of
the street. You can see these (inaudible) trees in a closed area.
Now that particular species or variety on Na Pali is probably down to its last 20 to 50
trees (inaudible) in Waimea Canyon which isn't quite as beautiful but is still a notable species, is
probably down to its last 8 or 10 probably within the next year. I already have about 10 to 20
from Waimea Canyon (inaudible) as mature seeding trees in the first reserve that I created and
this reserve that is being worked on now will hopefully have another 20 to 30 within the next
year. I already have a lot of the plants in cans and I am just waiting for the winter rains to come.
So I hope that will give you some idea of what is going on and if there are any further questions.
This was my original idea 20 years ago. Of course now helicopters are everywhere and a lot of
people are getting upset about it but originally I wanted to have 3 reserves, one in an ultra-dry
area, one in a dry upland forest area of West Kauai, and one is the extremely wet area and try to
save species from those forest type areas in those separate reserves. There are species now
which are primarily found in my reserve and nowhere else in the world and it is being funded by
this work.
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Vice Chair: Thank you Mr. Robinson, are there any questions?
Mr. Nishida: This reserve, do you have it fenced off?
Mr. Robinson: I haven't completely fenced it off yet, no, I am getting a little older now,
and not quite as spry as I once was and there are other problems that I have to take care of. I
have put in about 2,000 feet of fence, a little over 2,000 feet of fence but a little under 2,000 feet
still remains to be done, electric fence. The areas that I have fenced so far have very largely
excluded livestock from the place but the project remains to be completed. I would say that there
has been a reduction of about 80% of what was going through there before.
Mr. Nishida: The existing landing site?
Mr. Robinson: Is completely fenced with an electric fence.
Mr. Nishida: How does Lex Rigley go up? Does he actually go up there or does he
review the pictures? How does he make his review because I noticed you had one kind of
recently, 2010. Was the last once in 2006, Lex's review of your project?
Mr. Robinson: I don't understand what you are saying. Are you asking me the last time
an investigator of this Commission investigated my place, is that what you are asking about?
Mr. Nishida: Actually what I wanted to do is I wanted to make sure the site its self
wasn't being degraded. I think what you are doing is commendable, is extraordinary but what I
wanted was some way by somebody to confirm that the site is not being degraded. To get some
idea of potential landings, what is the impact. The only other EA that came in was for Robinson
family lands at Manawaipuna and they said there was no significant impact but I wanted some
way to kind of resolve and see whether there is an impact over time of the landings themselves.
And your area, that area where they are currently landing is kind of on the top of a ridge?
Mr. Robinson: Yes.
Mr. Nishida: And Manawaipuna is landing kind of on an existing access road to the
intake for the irrigation so it is a little different, they are kind of two different areas.
Mr. Robinson: And much different conditions, vastly different conditions. The down
drafts and wind shears at Manawaipuna just plain frighten me.
Mr. Nishida: I was wondering if there was some way that through your existing
maintenance of your site, of that particular landing site there could be some way that we could
look at some report coming back from either NRCS or the department where they could assess
whether there is...
Mr. Robinson: I have had an NRCS man up there within the past few months or a year,
yes, he wrote a letter to me and I believe this letter I forwarded to you, did I not?
Mr. Nishida: Yes, I saw it but it was in reference to the project rather than the site its
self, the actual landing site. The letter was in reference to your project, your reclamation project.
Is there a way that there could be a report by them of the site its self? Do you send them up...?
Mr. Robinson: I suppose so. That is easily enough done. I have repeatedly asked some
of your shall I say agents or investigators or whatever to come up there but they are pretty
overworked I understand and they haven't been too eager to go up there. They did go at first, in
the first couple of years they checked it pretty carefully and closely but when they began to see
that what was going on was actually improving the land I guess they lost interest and went off to
other more urgent work, what they considered to be more urgent. I guess they are taking it on
faith. I have asked them up a couple of times and frankly they weren't too interested because
they said Keith, we have much more urgent stuff elsewhere and the last time we checked you
were making really good progress so forget about it. But if you assign somebody of if anyone of
you wants to go up and check it personally, yes.
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Now I am not going to say the conditions are perfect up there. We have just been
through a really nasty drought but I will say this that in the years before I took over that 10 acre
piece that was part of the Makaweli Ranch and the top of that ridge was basically as bare as the
top of my head, there just wasn't anything there. And since that time ...on the mainland the
farmers up there consider that it is a heavy use of fertilizer if they have to use 10 or 20 pounds of
fertilizer per acre. I had a two acre piece fenced off for the helicopter landing and for the
botanical tours. Now if you have grazing animals just standing on the land for years and years
the soil gets exhausted, the plants grow up, the plants take nutrients from the soil, the animal
comes along, the animal eats the plants, the animal is sent off to slaughter. Basically what we
are doing is we are eating the harvesting machine that takes the nutrients out of the soil. So as
the years go by there are less and less nutrients in the soil and the plants grow more and more
slowly and finally the soil is exhausted, no more fertility and that just increases your erosion
problem.
At the time I took over the top of that ridge was pretty barren because of all the
overgrazing and I decided I wanted to try and grass up the place and work on and apply some
fertilizer in that two acre area to try to make the grass grow again. I did not get a response ...as I
said 10 or 20 pounds of fertilizer per acre is considered to be an awful lot by farmers on the
mainland. I did not get a response from that grass in that two acre place until I had put in 550
pounds of fertilizer in those two acres. And then the grass slowly began to recover but it is still
not very enthusiastic but this just illustrates to you the awful things that are happening in the
watersheds and uplands of West Kauai as the result of overgrazing.
Mr. Nishida: So that site actually the limitation to the site you haven't reached to four
landings per day or whatever the...
Mr. Robinson: I have had to be very careful with the expenditure of money and the
landings are presently averaging about two a week, sometimes three. Once in a great while we
get four or five a week, in other words one per day, but then the next week or two we frequently
seem to fall off and there are times when you get only one or even zero a week. So it pretty
much averages out I would say to about one a day, roughly.
Mr. Nishida: So could the site accommodate four landings a day?
Mr. Robinson: It could accommodate up to ten landings a day easily and maybe even
more.
Mr. Nishida: The site its self as far as with the prop wash and all that, the prop wash is
not going to affect... if it was to that maximum amount would it affect the site?
Mr. Robinson: If the land was bare...
Mr. Nishida: No, the way you have improved it.
Mr. Robinson: Any use of machinery over land will create an impact. You create an
impact if you run a vehicle over the land. Yes, there would be some but it can be minimized.
The amount of tourism on the Na Pali Coast trail for instance produces something like 7 tons of
rubbish per year over in Kalalau and that all has to be taken out by helicopter. So you get
impacts no matter what kind of human use there is of land.
Vice Chair: Anybody else?
Ms. Morikami: I have a couple questions for Niihau Helicopters and Safari. Where are
they home based and can you explain the flight pattern getting up to that ridge?
Mr. Robinson: Safari is based right here in Lihu` e and it flies the regular routes that
everybody else does. Niihau Helicopters has one machine and is based right by the house where
I live, you might say I am the night watchman who watches over the hanger and the helicopter.
In order to get to my place from its base it would have to fly for about four miles or so over
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uninhabited Robinson land. The only house it might pass over in flying up there would be my
brother's house but he is the owner of the helicopter company anyway.
Ms. Morikami: And where do you live?
Mr. Robinson: About three quarters of a mile mauka of the government highway above
Pakala.
Mr. Kimura: Can you supply us with some pictures of the landing site within the next
month?
Mr. Robinson: I don't have them on me right now. I do have pictures of soil erosion and
things like that but I unfortunately do not have any pictures of the landing site. Maybe I should
have brought them along.
Mr. Kimura: You can just send them into the department and they can distribute them
out to us.
Mr. Robinson: Sure. I believe, correct me if I am wrong, didn't I submit some about
two, three, or four years ago?
Staff: In the original file we do have pictures and if it pleases the Commission if we want
to take a break and we can...
Mr. Kimura: Well that is two or three years ago. We are looking at now if you don't
mind please.
Mr. Robinson: That can be done.
Mr. Blake: You said you had envisioned three different sites on the island...
Mr. Robinson: No. One on Niihau, one in the dry land forest of West Kauai, one from
super dry areas, in other words Niihau is a super dry area so that is an ecological dry land
system of its own. Then there is what is called the dry upland forest of the island, these are
forests which existed in the dry uplands usually in the leeward uplands of each island of Hawaii.
Those are your forests where you find the most diversity and the most interesting rare and
endangered plant species. But then there is a much wetter type of habitat that occurs in places
like Hanalei Mountain in Wainiha or the Na Pali Coast. My original plan was to create one
helicopter landing and make a reserve around endangered species on Niihau, one up on West
Kauai where basically I have my work now and then one is Wainiha and pull in all as much as
possible the dying plants and trees from the Na Pali Coast because they are simply not going to
survive on the Na Pali Coast. The only way we can save them now is to put them into protective
cultivation in a habitat like Wainiha. In my own time I have seen an enormous die off of native
plants on the Na Pali Coast and one of Hawai`i's most well know botanist, Dr. Charles
(inaudible), the former head of Hawaiian Arboretum over on Oahu, before he died he asked me
to pull in everything I could from the Na Pali and put it in Wainiha because it just wasn't going
to make it on the Na Pali. And he was right.
Mr. Blake: Does the Manawaipuna site serve or can it serve as one of the preserves for
the Na Pali?
Mr. Robinson: Not for the Na Pali stuff but, well yes, for some of the Na Pali stuff it
could, you could put in the Na Pali variety on monroydendra, it is a little on the wet side but you
might be able to get away with some of the Hibiscus that were formerly grown in the leeward,
uplands of Kauai, the white Hibiscus or if not the white Hibiscus from Waimea Canyon and the
white Hibiscus from places like Limahuli which was a wetter variety. Yes, I have repeatedly
scratched my head and wondered why this was not a condition of any helicopter landings that
were granted in remote areas of Kauai, make is a condition. It is the only way you are going to
save some of those species, it is the only way and there are something like 800 of those species
out there and they are going extinct at an average rate of one every month. And don't kid
yourself, to keep those alive you have to do an awful lot of work. It takes a lot of hand
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cultivation. For instance from April to about this past September 21, I was carrying 600 pounds
of water a day up that ridge to the top of the ridge to keep those plants watered and keep them
alive, trucking it in and carrying it up the hill.
Vice Chair: Anybody else?
Ms. Morikami: I have another question, does Niihau Helicopters do regular tours in
addition to what you are doing, the ridge?
Mr. Robinson: Do they go to that ridge?
Ms. Morikami: No, do you have Niihau Helicopters just doing other tours besides...?
Mr. Robinson: I am not involved with Niihau Helicopters. Niihau Helicopters is my
brother's company. He flies over to Niihau, he does tours to Niihau and he also works with the
military in a support capacity there but the primary intent, basic purpose for which that helicopter
was purchased, this was way back in 85 or 86, the primary intent was for medical evacuation of
people on Niihau and it has saved several lives since then.
Ms. Morikami: And then on Safari Helicopters who has landing rights now, they fly
other tours in addition to going up to your land?
Mr. Robinson: Yes, they fly other tours. But remember this, as long as they are on the
ground and as long as the tourist are being shepherded through my reserve and looking at the
plants and looking at the pictures of plants and having the environmental situation explained to
them which they seem to like, as long as that helicopter is on the ground it is not flying, it is not
making a racket.
Ms. Morikami: Thank you.
Vice Chair: Thank you Mr. Robinson. Is there anybody in the public that would like to
make any comment in regards to this application?
Mr. Blake: I have one question. Mr. Robinson, how long do you think it will take before
you can call your project a success, that 10 acres?
Mr. Robinson: Never, not during my lifetime. I will give you an illustration. I probably
shouldn't talk too much about this but years ago when I was starting my endangered species
reserve the environmental community was frantic to have somebody, the species were dying off
right and left as I have indicated and the environmental committee was eager to have somebody,
anybody do the work but they didn't want to do the work or pay the bills themselves. You will
notice that activists are usually that way, any kind of activist, they want to make a racket but they
don't want to do the work or pay the bills. Anyway I finally told them that I would try to save
some of the endangered species but I specified that I would only do so as long as they respected
our private property rights. If they ever attacked us in any way I would refuse to do the work if
they tried to seize the work instead of doing it themselves, which the U. S. Fish and Wildlife
Service at one point did propose to do just that, I said I would just let the whole thing die.
Well eventually the environmentalist had promised they would never attack us, well they
broke their promise and they attacked us and I retaliated by walking off the job in the main
reserve that I had over on the Westside. And it turned out that the eco-nazi's weren't quite as
smart as they thought and since then no one has been able to grow some of the species that I
formerly grew and it now looks as though two or three of Hawai`i's rarest and most beautiful
species may go extinct as a result. Neither the Feds nor the environmental groups were able to
duplicate my work. The point is that as soon as I walked off the job those plants began to go
extinct and in many cases they were individually fenced, they were even individually fenced
against pigs and animals like that. And they had been well watered, they were growing in ideal
conditions, within two or three years afterwards most of them, and some of them were trees 20
feet tall, almost all of them were dead because they were no longer being tended.
Planning Commission Minutes
October 12, 2010
9
So the point is that when you are working with endangered Hawaiian species you just
have to constantly grinding along and grinding along. Now I don't want to create a sense of
doom in this Planning Commission but there is no one, especially not in the Robinson family,
rising up after me to continue doing the kind of work that I do and when I am dead this whole
thing is probably going to collapse. I am sorry; we are just buying a little time for these species.
Now they are biologically incompetent, they are being replaced by things like Java Plum and
Guava may not be very attractive but they are a lot tougher and a lot more durable.
Ms. Matsumoto: I want to applaud you for all your efforts and I think that it is really
evident and it is at a point where human beings have to help bring back the plants. They are not
going to grow by themselves; it has gone beyond that point. We have a very difficult example in
Kaho'olawe, when you go there it is completely denuded, it is the saddest place and you go up
on the ridge and they will show you the one Willy Tree that is growing and it looks like ...and
they carry water to water it. And so it is at that point and many places up in Koke`e it is that way
already, it is really hard to see. I think it is wonderful that you are trying to bring back and take
care of the native Hawaiian plants.
Mr. Robinson: Well thank you madam.
Ms. Matsumoto: It is going to take like you said, you asked that question how long is it
going to take, it will be life times.
Mr. Robinson: Yes, and anytime something stops working and drops the ball you lose.
something and it is gone forever. That is just the way it is. We are going to have to accept that
situation, we are fighting a retrograde fight to try to save some of those species. I am sorry, that
is the way it is, Kaho'olawe was destroyed by livestock. It was a dry island, it should never have
been overgrazed the way it was. The livestock did far more damage than the bombing did.
Vice Chair: Thank you Mr. Robinson. I thank you for all that you do and I applaud you
continuing efforts in this regard and sometimes by yourself I would assume.
Mr. Robinson: Well if you are crazy you sit around just mumbling and talking to
yourself, if you are crazier you go jousting with windmills, and if you have completely lost it
then you try to save Hawaiian endangered species.
Vice Chair: Thank you very much, Kaaina, would you like to go ahead and finish?
Staff Planner Kaaina Hull read department recommendations (on file).
Vice Chair: What is the wish of this Commission?
Mr. Blake: Move to accept the report.
Ms. Matsumoto: Second.
Vice Chair: All those in favor say aye, those opposed, motion carried.
On motion made by Hartwell Blake and seconded by Camilla Matsumoto, to accept
the staff report, motion carried unanimously by voice vote.
Mr. Blake: Move to accept the recommendation to continue the Special Permit for
another two years, Special Permit 2006-2, Use Permit 2006-28, and Class IV Zoning Permit Z-
IV-2006-31, until October 12, 2012.
Ms. Matsumoto: Second.
Vice Chair: All those in favor say aye, opposed, motion carried.
On motion made by Hartwell Blake and seconded by Camilla Matsumoto, to accept
staff recommendation, motion carried unanimously by voice vote.
Planning Commission Minutes
October 12, 2010
10
Commission recessed at 10:06 a.m.
Meeting was called back to order at 10:26 a.m.
COMMUNICATION
Special Management Area Use Permit SMA(LT)-2010-5 to permit a rock fall mitigation
project located along the Na Pali Coast State Park at the western end of the Kalalau Trail, further
identified as Tax Map Key 5-9-001:001 and 5-9-001:002, proposed project area is approx. 5.8
acres of the total parcel of 11,250 acres = Department of Land and Natural Resources.
[Approved 618110.1
Staff Report pertaining to this matter.
Staff Planner Lisa Ellen Smith read staff report (on file).
Vice Chair: Are there any questions for the planner? If not I will call on the applicant.
Mr. Tobias Kohler: Good morning, my name is Tobias Kohler. I am the authorized
representative for matters relating to this SMA permit before you. I would be happy to take ...let
me just bring you guys up to speed on a couple schedule items because that was a concern that
the public and you guys had as this project came around. The project is actively under way and
the bigger things that have come up now are that we had climbers go up to this block 2, which if
you recall was a large, very, very large rock formation that was above the sea cave so block 2
was hanging above the beach and the sea cave where campers frequently set up shop. And these
climbers did a detailed inspection of the fishers that surround that block and found that they did
not present the eminent issues so as a result of that inspection this large block 2 will not be
coming down as part of this project. Furthermore, all the activities over the beach areas have
ceased, they have completed the work on the cliff faces that front the beach. There are a number
of reasons for that, one of them being permit conditions, others being just smart with the winter
waves slowly starting to make their way. We needed to be off that beach and that is indeed the
case.
As of the report that was submitted to you guys we had climbers inspecting block 1 above
the waterfall which if you recall is above the waterfall and from helicopter and ground with
binocular inspections showed the same concern with fishers or cracks surrounding it. Climbers
were able to go up to that block 1 and kind of clear out the cracks and see if they continued and
at this point the State is not willing to say that they are not going to bring down block 1. It is
probably not going to come down as part of the current project. So in terms of the piece of
information I want to share there is that block 1 which is perched above the waterfall, its
assessment has not changed it is just that the State is just deciding to deal with block 1 at a later
time.
And then finally as for the overall contactor's schedule the progress report I got as of
yesterday was that the scaling which is the knocking off of rocks off the cliff face is still moving
along, is likely to end this week or early next week, with the remainder of the time allotted for
the project spent cleaning up and restoring the area. A number of dates have been floating
around in the media and before this Commission when we originally presented we were going to
look to be out by November 7`h' we moved that forward to November 1" to accommodate
campers that had made reservations because we thought we could finish the project by then.
And that is basically the date we are looking at right now, we are going to stand by opening the
park again for the general public on November 1St. And so that is basically what I have for you
right now.
Mr. Nishida: So as of November 1st this particular permit is going to be over or are you
going to keep the permit open for the two years to determine whether you are going to remove
block 1 or not?
Mr. Kohler: We would like to leave the permit open as the State considers its options
with the block 1 situation.
Planning Commission Minutes
October 12, 2010
11
Ms. Matsumoto: All in all you assessment of the project has been good? You feel good
about what you have been doing so far?
Mr. Kohler: There is a couple I guess pieces of information that we found through going
through this process, one is that the analogy is let's say there are a million rocks on that cliff that
could fall. We are going for the best bang for your buck in knocking down as many of the
smaller rocks as we possibly can. In assessing the block 1 and block 2 situation those are one of
those million and with block 2 it clearly presented a situation where it is not presenting the threat
that we, given the information that we had at the time, it is not presenting the threat that we had.
And then block 1, in looking at it and looking at the project schedule and kind of where we are at
right now is not the right time to bring down block 1. Not to say that the State is not considering
an action at a future date. Everything is on schedule. I guess that is what I wanted to say in
summarizing and looking at the different blocks and getting the best bang for our buck.
Ms. Matsumoto: It seems that you have taken really good care of that area actually and
spent a lot of time assessing what you have needed to do and how to do it and you have learned a
lot about the landscape of that area and paid special attention to it.
Mr. Kohler: Yes, thank you. We spent a lot of time with the contractor out there looking
at ways to not go in there and use a bulldozer approach, for example we left as many trees
standing as we possibly could with the option to take them down if they interfered with the
helicopter operations. So you will notice in a lot of the pictures that the impacts to a lot of the
vegetation are going to be less than we originally thought they would be which works better with
the location that we are working in.
Mr. Kimura: You are talking about taking out those rocks at a later date, so are you guys
going to take all the machines back out, figure out when you guys want to do it next year, bring
all the machines back in. Isn't the cost going to double? Why not take it out now?
Mr. Kohler: There are a number of reasons why we can't do it right now. I can't speak
to the contractual, I can only speak to the compliance, one thing is we are coming into the winter
right now and working up on ropes with the likelihood of rain and things like that it just gets a
little bit more complicated. And from a cost standpoint I can understand where that argument
could be made but at this time we have a project window, we have people who have made plans
and flown all the way around the world to go and make this their vacation and that is the best we
can do right now.
Mr. Kimura: But wasn't that in the plan to take care of all three blocks and take it out
before November, what was the date, November 15th? Wasn't that the plan? So if you take it
out now, it was already in the plan to take it out by November 7th. And now you are telling me
because winter is coming up, it is already planned for the 17th, why not take it out while you have
the equipment there now? It is just going to cost the State more money to do it later.
Mr. Russell Kumabe: Aloha Commissioners, my name is Russell Kumabe. I am the
Development Branch (inaudible) State Parks. Commissioner Kimura, as far as your question, I
think with this project for various we were kind of set in a really narrow timeframe to try and do
that and that was the plan that we really wanted to take down those two blocks. Upon closer
assessment when our technical staff from ACOM went and check out block 2, above the sea
cave, it appeared that after close scrutiny, being on the ground, literally on the side of the
mountain, looking all around as opposed to from an assessment far away, they determined that
block 2 pretty much appeared to be less of an eminent hazard or it was anchored more securely
than previously thought or what can be seen from the ground. So the call was made to as far as
optimize whatever (inaudible) time we have there to pretty much have that area. But the State
will follow through with management measures for that area, we are still concerned about people
going in the sea cave and around that area and having things still coming down.
So what we are going to do it we are going to be doing a combination of things, the best
we can do right now is post up what we call our hazard warning signage and signage around the
cave area and see if we can try and fix that either with some permanent features there. And
during the summertime when the beach is kind of big then we can post signs around the area to
kind of keep people out. So Commissioner Kimura as far as block 2 that was the decision made
Planning Commission Minutes
October 12, 2010
12
in the field. Now for the block 1 we agree we really wanted to take care of that eminent hazard
but what is happening as Toby explained we I do believe did the best we can to address the other
eminent hazards around in that area. You folks remember and it is in the report the area of block
1, there is also an adjacent area 1 which is pretty much the adjacent slopes, those areas are or
have been cleaned up and that debris removal is happening right now. So as far as for the block
1 the call was made as far as it appears that that is going to take a lot more time than what we
have up to the middle of November.
So what we want to do is allow us the time to plan this out and come back, it is going to
double our costs but we cannot help. I think this is one thing where we committed that we are
going to be in and out of there by November so that is the time frame we want to commit to. But
we did also say that if we need to finish up we are going to come back and finish it. So we will
definitely not walk away from this and leave this unattended but what we want is just to, since
we got additional information that Tobias's folks had provided us with the onsite scrutiny of the
area. At least we have more information now than what we had before so now we can plan out
appropriately. It is going to bare an additional cost and it is going to cut into my project costs
but it is something where I think we reiterated before, the reason we are doing this is for public
safety and it is for the safety of everybody that is around that area. I hope that kind of answered
your question Commissioner Kimura.
Mr. Kimura: Are you from Kauai?
Mr. Kumabe: No, I am from Honolulu but my folks are from Kauai.
Mr. Kimura: Whose decision was it to start this thing during the winter or fall?
Everyone knows or everyone that lives here knows that our rainy season starts at the end of July.
I would be common sense to do it in the beginning of summer instead of doing it in the rainy
season. We had a dry season this year, you guys are fortunate enough to get it done or do what
you guys are doing but common sense, if you are living on Kauai, anybody that lives on Kauai
knows that our rainy season starts at the end of July, you have July, September, October,
November. And to start the project in the middle of our rainy season, to me it is wasted money
really. Now you guys have to stop because it is winter season coming up and you have to bring
all that equipment back in and start all over again. I just can't figure out why anybody would
start a project in the middle of the rainy season.
Mr. Kumabe: I think for this project per say we had a couple of deadlines that were
looming that developed the project to start when it did as far as back in September and a large
part of it was the funding where our funding was going to go away, was going to lapse so we
needed to (inaudible). Before that we wanted to get all the regulatory ducks in line, Federal,
Army Core Permits, the Department of Health, water quality, NPDS permits which kind of took
longer than what we had planned on. We wanted to do this job pretty much at the timeframe you
wanted to do, we wanted to do that too but we were caught at a point where we were on the cusp
of losing the funding so we had to get that done. Then as far as trying to get all the regulatory
stuff in place, we got that, and we decided that since we had gotten all the permits although it
was a short window we figured we would try and do this because the area is an eminent concern
for us being with the amount of people that utilize the area. So that has driven us to maybe make
these decisions that may not appear to be practical but I think the driving force was that we
wanted to address the public safety aspect.
Mr. Kimura: One more thing, you said you guys had to start to project, of course the
permitting took longer than you guys expected, by doing the job so you don't lose the funding
isn't it going to cost us more now by doing the job, by rushing the job? By starting it in the
middle of the rainy season let's say.
Mr. Kumabe: We had thought that...
Mr. Kimura: Is that money still in the funding?
Mr. Kumabe: Yes.
Planning Commission Minutes
October 12, 2010
13
Mr. Kohler: The contract had to be awarded by a certain date, the funds had to be
committed by a certain date so that was one timeline, another timeline was we have a whole slew
of permits and one of them says we have to work between and don't quote me on this, May lst to
late September so we had to be off the beach my a certain date in September which we met. And
then finally we cannot predict when exactly all of our permits are going to come in so we did our
best judging when that was coming in. The final straw that we had to consider was that there is a
reservation system and people were... before the computerized system came online people were
able to make reservations well in advance and so we also had to take into consideration, it is one
thing to cancel someone's twenty dollar a night reservation which is what it used to be but it is
another thing if they have spent thousands of dollars in airfare and the backlash that we had to
deal with there. And so then we looked at primary holiday periods which was the July 4th
holiday and the Labor Day holiday and we said you know what, after a Labor Day holiday kids
go back to school, the travel starts to drop off and that is a good window where we step on the
fewest amount of toes and we are still in compliance with permits.
Mr. Kimura: So what you are trying to tell me is that the vacation of the people that
come here is more important than the safety of the people live here? Is that what you are trying
to tell me?
Mr. Kumabe: No. I think what Tobias was just trying to include was other factors as far
as having that short window but the overriding concern is public safety. Whether we have
visitors going into the area, locals, or what, basically it is public safety that is where we are
coming from. We thought that we could have done block 1 within the timeframe that we had
Commissioner Kimura but upon closer scrutiny ACOM's tech team up there it appeared that the
work probably would involve a longer timeframe than anticipated. We tried and we learned
from this and unfortunately we would have loved to have brought everything down that we
wanted to in this timeframe and we were planning to, we thought we certainly could with the
information that we have. But now with the additional information that we have received being
out in the field at least now we know a more realistic timeframe and assessment and demands on
that. Yes, it will involve additional public funds, that is obvious, but we do have a contract and
that one is not going to go in until the job is done. So on that part funds from that contract we
can still use that for when we come back to do that work, it is not additional funds or new funds
that we need to include. We will be using existing funds that we have and if we need additional
funds then we do have... DLNR is looking at funds for rock fall mitigation State wide that we
can hopefully use for these types of purposes.
Mr. Kimura: So the safety of the people came first and that is why you started it during
the wet season.
Mr. Kumabe: That is why we wanted to crunch the timeframe because we wanted to
kind of get it at a point where after the summer rush during the slower periods as winter comes,
less people, boom, we try to nail it all one time and reopen it, get it ready and reopen it next year
when we have the larger rush. That is what we were thinking about, it sounds like we are not
finished but when we go back, your point is well taken as far as understanding the right times to
do things and we will definitely take that into consideration.
Mr. Kimura: Thank you.
Vice Chair: Anybody else?
Ms. Morikami: I have a question, on photo 14, that huge boulder, were you able to
remove the entire boulder? I see photo 15 and 16 showing that it has been dismantled, is that the
entire...?
Mr. Kohler: It actually extends probably another foot or two below photo 14 and given
that there was no, absolutely no connection between that rock and the cliff face what the workers
did was they used their pry bars to clear out some of the pebbles behind it and they insert, it
looks like a floor mat, a rubber floor mat that you would buy, a welcome mat for your house.
That is the airbags, they slid it into that fisher and expanded it with air and believe it or not that
whole thing just popped right off.
Planning Commission Minutes
October 12, 2010
14
Ms. Matsumoto: And we don't have a photo of that landing? I just wanted to see the size
of that.
Mr. Kohler: It fractured; they haven't had to do any cracking on the beach so that little
bobcat has been able to lift up all the pieces that have fallen so they haven't had to use a
jackhammer on the beach at all. Literally everything that has fallen down has had cracks in it to
the degree that it fell apart into pieces no bigger than this basically.
Ms. Morikami: That is on photo 14? It broke up as it fell?
Mr. Kohler: Correct.
Vice Chair: Anybody else? Is there anybody in the public who would like to comment
on this project? Do you have a question?
Mr. Blake: So the money to come back next year and finish the job is already set aside,
you don't have to find new money?
Mr. Kumabe: It would probably come from two parts, one is the existing contract, we
will utilize whatever monies we have from there, if additional funds are needed I do believe the
department has funds for rock fall rock scaling that has been appropriated.
Ms. Matsumoto: I just wanted to say it is a big job and all things considered including
the timing I think you worked really fast, it is pretty amazing and the State should be
commended for that.
Mr. Kumabe: The State would like to acknowledge ACOM because they were our eyes
and ears on this project as well as most of the brains so anyway we would like to acknowledge
them and also acknowledge the Commission for at least understanding our intentions and what
we are trying to do out there, thank you.
Vice Chair: As I mentioned, anybody from the public that would like to speak on this
project proposal? If not I just have one question, did you have a geologist on site, archeologist, I
am sorry.
Mr. Kohler: The archeologist visited the site; he has been out there multiple days.
Vice Chair: I would just to know his reaction to what, his observation as to what he saw.
Mr. Allen Carpenter: Good morning Commissioners, Allen Carpenter, Archeologist for
the State Parks Division. There was a condition for archeological monitoring during this, it is
somewhat problematic because you can't really be in the vicinity of the sites when they are doing
the rock work because it is dangerous. You asked for my impressions, I would say first and
foremost I am a little bit taken aback at just how destructive the process is and how much rock
comes down. The area will look different particularly on the ground. I was optimistic though
(inaudible) the fact that the cliff really maintains all the character it always has and I think the
average person won't really even be able to tell that there has been this project going on. Most
of the rocks are relatively small, down to literally fist size and some silt. The cleanup is ongoing,
the contractor is supposed to make it look just as it was when they started. Of course that is
literally an impossibility especially given the vegetation, etc.
In terms of cultural sites there is one set of terraces in the vicinity. We thought it would
be little impacted and some rocks have rolled through it, it is a flat set of terraces kind of like if
you image a system of loi. But the rocks come down at such a velocity that they literally just fly
right over it and they end up down on the beach or in the vegetation below it. So the integrity of
those sites are pretty much the same when the project is done. We may have to remove a few
stones but I think the impacts for this particular project are less than impacts of the illegal
campers over the years. In fact we have actually removed structures built by people in recent
years on those same terraces so those will be gone because we are doing that at the same time.
Planning Commission Minutes
October 12, 2010
15
The other thing we haven't touched on yet is that is gave us a unprecedented opportunity
to clean the area up so we have broken down numerous illegal campsites, we have removed
rubbish, we have replaced signage, we are going to rehabilitate the toilets which is a huge issue
for a lot of people if you have been there. Quite frankly they are disgusting as is and those will
be as good as new when people come back on November 1st. We have painted shelters, we have
installed replacement and brand new signage so I think when people do come back they will be
impressed with how clean the area is and that it really has a face lift which is far more becoming
of the natural resources out of there.
Vice Chair: Any comments anybody? If not, I thank you very much. Just for the record
this report has already been received so this is just a status report. Just for the public to know
that as we go through this agenda, at 11:30 we will be stopping whatever we are doing to meet
with the Mayor and we will be having lunch at that time and then reconvening after lunch. So
we will be running to 11:30.
SUBDIVISION
Mr. Nishida: Subdivision Committee meeting, Tuesday, October 12, 2010, all members
present. There was no general business, communications, or unfinished business. New business,
final subdivision action, S-2009-16, Falko Partners LLC, TMK 5-1-003:006, 010, 029, approved
3-0. Tentative subdivision extension request, S-2006-47, Opaeka Falls Land Company, LLC,
TMK 4-2-003:012, 065, 066, approved 3-0. Tentative subdivision extension request, S-2007-36,
Take Yamashiro/Kenji Yamashiro/Sue Ann Takata, TMK 4-6-004:020,022, approved as
amended. Move to approve subdivision report.
Ms. Matsumoto: Second.
Mr. Nishida: Just one quick thing, Hartwell was asking me about how the Falko
Partner's project, how the Ag. Master Plan would be implemented and I wanted to say that what
they did was they set up an agricultural easement for the property and set up an entity to manage
that. And then they have some farmers, I think they have one farmer already on the property and
then the people that buy the units in there can participate in the maintenance of supporting the
farmers that are in that easement. So it is quite a good project, quite a good plan I think for these
Ag. subdivisions and you guys should be commended. Do you have any questions?
Mr. Blake: I have a question.
Vice Chair: Would you like the applicant to come up to discuss that?
Mr. Blake: Yes.
Vice Chair: Could the applicant please come up?
Mr. Blake: On page 2, conditions of tentative approval at the bottom, it says "An
agricultural master plan should describe the proposed uses, marketing and business plans
associated with such activities and the manner in which the agricultural and related uses of the
property will comply with HRS Chapter 205." And my question was how many agricultural
dwellings are on this property?
Ms. Smith: The subdivision is for 11 lots.
Vice Chair: Could you just mention your name?
Ms. Smith: I am Doran Smith for the applicant.
Mr. Blake: So there will be 11 agricultural dwellings.
Ms. Smith: 11 lots.
Mr. Blake: Are you allowed to have one dwelling on each lot?
Planning Commission Minutes
October 12, 2010
16
Ms. Smith: It varies from lot to lot.
Mr. Blake: How many total dwellings can you put up?
Ms. Smith: The maximum would be 63.
Mr. Blake: Can you explain, synthesize these conditions of approval that have been
approved as to exactly how the agricultural pursuits will be effective on this property?
Ms. Smith: Certainly. This is a copy of our agricultural master plan that the Planning
Department has a copy of and also the Subdivision Committee had a copy of and reviewed and
approved. The way that we have set this up, ever since 2006 we have a nursery operation on the
property, we have over 25 acres dedicated as Ag. easements in perpetuity and another 25 acres
dedicated as Ag. activity areas. Each lot owner can chose to farm their own Ag. activity area
or/and participate in the nursery operation. We have an entity that manages it and we have also
developed a community farming aspect to it in which we lease for a very nominal fee to
community farmers land on which they can farm and they can sell their produce.
Mr. Blake: So can anyone who purchases one of these units not farm at all?
Ms. Smith: No, they must farm.
Mr. Blake: They have to farm.
Ms. Smith: Yes.
Mr. Blake: And if they don't farm somebody else is going to farm it for them?
Ms. Smith: Correct.
Mr. Nishida: Can you go over the legal notifications; you guys had like three different
areas the requirement...
Ms. Smith: Yes, of course. We have in the deed that goes with the land there is a
reproduction of Chapter 205 which requires compliance, requires every unit owner to farm.
They are also required to execute an agreement to farm when they purchase the land, it is in the
master declaration, the covenants, conditions, and restrictions and they agree to that as well when
they purchase the land. And then we have agreed as the applicant to incorporate all of that into
every document that every buyer gets upon purchase and then that is in addition to the County's
requirement that each purchaser execute a farm dwelling agreement when they actually apply for
a building permit. So there are four back stops to ensure that every homeowner complies with
Chapter 205.
Mr. Blake: And I noticed that the property size is about 319 acres.
Ms. Smith: That is correct.
Mr. Blake: So how many acres are presently under cultivation?
Mr. Smith: Presently we are farming about, actively farming with Kaikola Farming
which is Ben Ferris, a farmer in Kilauea, he is actively cultivating 9 acres right now, 7 to 9 acres.
Ms. Smith: Of those 300 acres, 75% of them are not in farmable soil. The portion that is
in class B soil we have either dedicated as an Ag. easement area or an Ag. activity area.
Mr. Blake: And that was another one of my questions, how much of the soil is class B
and C, excuse me, class A and B?
Ms. Smith: There is no class A soil on the property at all, and class B, there is about 40
acres total but as I said, of that, actually 26. Something is dedicated as a Ag. easement in
perpetuity and that is the most fertile of the class B soil. The rest of it extends sort of in to C and
Planning Commission Minutes
October 12, 2010
17
it is very windy and aired, that is where the Ag. activity areas are. So we have centered our
suggested farming areas for all the homeowners in the class B soil areas.
Vice Chair: Any more questions? Anybody else have any questions or comments they
would like to make, if not, thank you. Going back to the motion, a motion was made and
seconded and I called for the question and now I will call for the vote, all those in favor say aye,
those opposed, motion carried.
On motion made by James Nishida and seconded by Camilla Matsumoto, to
approve Subdivision Committee Report, motion carried unanimously by voice vote.
UNFINISHED BUSINESS
Letter Received 9/16/10) from Dan Green, relating to making a presentation on
"Hydrogen and Kauai" at the Planning Commission's October 26, 2010 meeting. (Deferred for
more information 9/28/10).
Vice Chair: This is just to be accepted, we don't have to vote on this item, we are just
receiving for the record.
Mr. Costa: Commissioners, there was a request that was originally placed by this
organization to provide a presentation at the next Commission meeting two weeks from today
and at the last meeting I think the Commission requested more information. So we did forward
that request and I believe some information was handed out and that is really all we have. They
are awaiting our notifying them as to whether they would be able to come and give you that
presentation which I guess they are saying according to this handout about 45 minutes.
Vice Chair: Just for further explanation for the public, this is relating to Dan Green
making a presentation to the Planning Commission on October 28th regarding Hydrogen and
Kauai.
NEW PUBLIC HEARING
Special Permit SP-2011-3, Use Permit U-2011-5 and Class IV Zoning Permit Z-IV-2011-
5 to permit the operation of outdoor recreation activities and the construction of recreation
facilities, including zip-line facilities, on lands located approx..25 miles east of the Kipp Road
and Aakukui Road intersection, Kauai, further identified as Tax Map Keys 3-3-001:001, 3-3-
018L002, and affecting an area of approx. 5 acres= Outfitters Kauai. Ltd. [Director's Report
received 9/28/10.1
Staff Planner Kaaina Hull read Director's report (on file).
Mr. Nishida: How does the department reconcile the requirement for the establishment
of Ag. tourism rules and how it applies to these kinds of applications? I don't know if it is 205
or 205-A but one of them...
Staff: The establishment of Ag. tourism rules I think relates to... actually I will defer that
to counsel.
Mr. Jung: 205-4.5 and 205-5 actually allow the County's to do an Ag. tourism ordinance
but as of this date no Ag. tourism ordinance has been approved by the Council.
Mr. Nishida: Isn't the wording of that no uses will be allowed until that ordinance has
been established?
Mr. Jung: No, you can actually come in for a Special Permit which Kaaina just identified
the five criteria unusual and reasonable use. Under Chapter 205-6 it actually allows for unusual
and reasonable uses for permissible uses within 205-4.5.
Planning Commission Minutes
October 12, 2010
18
Mr. Nishida: So how does that get reconciled then the requirement for the establishment
of the ordinance before such uses and the Special Permit which was set up a long time ago? Do
you get my question?
Mr. June: Yes, the legislature, I think when they passed that provision about Ag. tourism
ordinances I think it was set up for Ag. operations to entertain guests to visit the farming
activities.
Mr. Nishida: So we are allowing commercial, recreational, but not just guests though,
you are talking about tours and whatnot. So are you saying that a farmer farming his land cannot
set up a tour where somebody establishes a zip-line can't qualify under this Special Permit?
Mr. June: That is kind of a loaded question but I think if someone were to come in and
apply then they would have to probably, if they wanted to establish some kind of farming
operation tour, then given the commercial nature of the tour versus the farming operation then I
think the department would have to access whether or not that would be a trigger for a Special
Permit without the Ag. tourism ordinance.
Mr. Nishida: So there is no...because this is not an Ag. operation but it is being
conducted on farm land, agriculturally zoned land, they can come in under the Special Permit?
Mr. June: Yes, under Chapter 205-6.
Vice Chair: Anybody else?
Mr. Blake: I didn't catch why we didn't need to require permits before but now we have
to.
Staff: Previously the department interpreted the kayaking, hiking, and biking tours as
day use operations which under the Kauai County Code are outright permitted via a Class I
zoning permit.
Mr. Blake: As what kind of operation?
Staff: Day use operation.
Mr. Blake: And now it is called what?
Staff: Given the more commercial nature of it or given our re-review and assessment and
given the expansion of the operation we are interpreting it as a commercial activity and as such
are requiring a Use Permit.
Mr. Blake: But if they were paying for kayaking, biking, and so forth weren't they
commercial before too?
Staff. At the time it was...the SMA Permit was triggered for the commercial activity but
solely for the staging of the activities where the fees were collected. That is to say that an SMA
Permit was required specifically for where the kayaking or hiking tours were staged in
Nawiliwili Harbor however the operation as a whole was not interpreted as a commercial activity
it was interpreted as a day use activity.
Mr. Blake: So how do we resolve the now? Are we going to go back and make the old
permits comply too?
Staff: That is essentially what you are doing right now is because it is before this
Commission then technically the entire permit is in front of this Commission or the entire
operation is in front of this Commission. You are reviewing the activity as a whole.
Mr. June: Commissioner Blake, just to expand on that I think what the department is
attempting to do now that there is a proposed activity, new activity in addition to what already
Planning Commission Minutes
October 12, 2010
19
exists, because of the expansion of that proposed use of the property, they want to require
commercial operations to come in and regulate it and get permits.
Mr. Blake: In this case or in similar situations the owner of the operation decides not to
expand does that mean that the previously initiated activities just continue unpermitted,
uninspected and everything?
Mr. Jung: I don't think it is that they have been unpermitted. I think they have been
permitted under different classes like a Class I or II permit. So if they came in inquiring about
what permits they needed in the past and they were issued a permit then those permits are good
until they want to expand the use of the property given the shift of the interpretation of the
policy.
Mr. Blake: So if they came in before for what was considered day use activities but not
commercial that was okay then, it's not okay now, and what transpired in the past is just safe so
to speak from departmental review?
Mr. Jung: Of course we would have to address each one on a case by case basis to see
what type of permits were issued but if it was one that is seeking to expand and they did inquire
about what permits they needed this is now the policy interpretation of what outdoor recreation
is, if it is commercially based.
Mr. Blake: So could you redefine the new policy?
Mr. Jung: I think Kaaina wants to explore the department's policy.
Staff: I would be careful as saying policy or now it is a practice or interpretation but we
are looking at previously it was interpreted that the commercial activity or should I say the
commercial use would solely be applied to that area in which fees were collected and/or the tour
was staged, not the entire say if there are trails, there is biking, there is kayaking, not the entire
operation. This was several years ago the way the department interpreted it. Now the
department is interpreting that in addition to the staging and colleting of fees the entire area in
which the project encompasses actually requires to be reviewed under the Use Permit standards
given its commercial nature.
Ms. Morikami: I have a question, continuing on with what Commissioner Blake is
asking, were the 6 zip-lines granted a permit for or was it not necessary, the existing 6 zip-lines?
I know they want to expand but were the 6 zip-lines required to get a permit of any kind and did
they?
Staff: No, those were done ...the permit that was permitted or should I say outright
permitted previously was for hiking, biking, and kayaking as well a tractor pull. The zip-lines
were not incorporated under those permits they were done without any appropriate zoning
permits. It was when they came in to discuss these zip-lines that gone up and I don't know if
there was a misinterpretation that they had been previously permitted for certain recreation
activities that they thought they could go ahead and construct and operate those facilities
however we informed them that those were not covered under the previous permit and they
would have to get a new permit. And under the department's new or revised interpretation of
outdoor recreation or commercial recreation they indeed would have to get a Use Permit for not
only the zip-lines but in fact the whole operation.
Ms. Morikami: So based on what you said those 6 existing zip-lines right now have no
permit and we are trying to correct the problem not having a permit.
Staff: This is partly an attempt to come into compliance with the County Code on behalf
of the applicant.
Ms. Morikami: Were they in violation of not having a permit prior to today?
Staff. Technically they were, yes.
Planning Commission Minutes
October 12, 2010
20
Ms. Morikami: And the change of interpretation of what commercial use is, that is what
you are trying to address here?
Staff: Both of those, yes. Essentially there are two things going on and one is we have
changed our interpretation in which not only the zip-lines but as well as the other ongoing
activities need to get the. Use Permit, and secondly an attempt to come into compliance with the
County Code, specifically the zip-lines.
Ms. Morikami: Do you think the applicant; I mean was it a grey area where they were
not aware that they needed a permit?
Staff: I would direct that question to the applicant.
Vice Chair: Anybody else, Cammie.
Ms. Matsumoto: I have a question. How many other companies exist like this, other zip-
line operations on the island and where?
Staff: The ones I can think of off the top of my head right now would be three, one
would be on Princeville Ranch, the other would be in Hanamd'ulu and the third would be at
Rapozo crossing somewhat near LThu`e I believe. And I can say that for the Hanamd'ulu
operation I believe the bulk of their operations actually occur within the Conservation District.
Whether or not the zip-lines occur in agriculture, the actual zip-lines because they have other
hiking and biking as well, whether or not the zip-line occurs in Conservation is under the
jurisdiction of the Department of Land and Natural Resources or it occurs in the Agricultural
District which is under the County's jurisdiction, I will have to get back to you on that one.
Ms. Matsumoto: Let's just say if I wanted to go hiking in the area and there is a zip-line
operation going on I can just go by myself and do that? Would that company say oh, sorry, you
can't come because we have this operation here?
Staff. Well ultimately with the department's interpretation of commercial activity this is
applying on private lands so in the event that a private landowner wants to let an individual
access his site free of charge then indeed that wouldn't be considered or we wouldn't interpret
that as a commercial activity and therefore requiring a use permit. In the event that the
landowner or a lessee of the land (inaudible) is giving access in whatever fashion it be, be it on a
mountain bike, be it on a kayak, be it on a walking tour, for a fee then indeed the department
under this interpretation would view that as a commercial activity and require a Use Permit in the
Agricultural District as well as a Special Permit.
Ms. Matsumoto: Do you know when these other companies started, how long have they
been in existence? I guess I am trying to get to do you see a rise in this type of commercial
activity in recent years?
Staff. I can look in to that for you. I can't say whether or not the activity right now
would constitute a spike. I wouldn't come to that conclusion at this point but we can further
research that for the Commission.
Vice Chair: Anybody else?
Mr. Blake: So none of the other zip-line activities that are run by other companies are
permitted yet?
Staff: I don't have that information, what I can say is that with this particular applicant
coming in it is essentially the trigger for the department, was the trigger for the department's
reassessment of interpretation between day use and commercial use. Whether or not the other
companies that have zip-line activities were permitted previously under day use and therefore
outright permitted, I cannot speak to that. But I think as legal counsel is getting at it wouldn't
necessarily... our new interpretation wouldn't necessarily equate that we have to now go out and
serve the existing operations notices of violation if they get it under day use. What it would
constitute is in the event that these companies come in for an expansion of use then indeed we
Planning Commission Minutes
October 12, 2010
21
would go through the Use Permit process. Now if they are operating zip-lines without even a
day use classification and therefore a Class I zoning permit then indeed those companies are
operating in violation of the County Code.
Mr. Nishida: Do zip-lines require a building permit?
Staff: They do. So in the event that say the Commission approves it they would still,
despite the fact that they have been previously constructed, they would still have to go through
the building permit process.
Mr. Blake: And there would be an inspection of all the previously erected structures?
Staff: Can you repeat that question Commissioner Blake?
Mr. Blake: As I understand it, because the company wishes to expand its activities it has
triggered a reevaluation of the manner in which these are viewed and the issuance of permits
specifically for those things. And it is also my understanding based on what was just said that
there are six or more existing zip-line structures that are presently in use. So does this expansion
request cause the department to go out and inspect not only the ones that are going to come up
but the ones that have already been built without permits.
Staff: The department has already gone out for which three of the existing zip-lines were
inspected, not all six were inspected.
Mr. Blake: Are these inspections conducted by Planning or by Public Works?
Staff: The inspection that I am referring to was conducted by Planning. The Public
Works would be done either at time of building permit review or in the event that Public Works
served them with a building permit violation. But at this time I don't believe Public Works has
made any inspection of these facilities.
Mr. Blake: What concerned me when I read this or one of the things that concerned me
was who inspects these things for safety and structural integrity and on and on with regard to
protection of the public.
Staff: That would ultimately come under the prevue of the Public Works Department as
well as and I think the applicant speaks to certain standards or criteria that they constructed these
facilities in. But indeed absent the Public Works Department or building permit review indeed
the structural integrity has not necessarily been researched by the County.
Mr. Blake: And that is why I asked is Public Works going to get involved in this.
Mr. Costa: I believe they would only, the building inspector would inspect only via an
issuance of a building permit.
Mr. Blake: So we may be issuing building permits for the new structures but the old ones
didn't require a building permit so they are just there.
Staff: As I previously stated in the event that the Planning Commission approves the
zoning permit before you right now, even though the structures have been constructed they
would still have to go through building permit review at which time the Public Works
Department would do their inspections on these previously constructed facilities.
Ms. Matsumoto: Just a comment, I am thinking that I would like to see both departments
work hand in hand. It doesn't make sense to me for us to be doing one thing, approving
something, and then the other side not.
Staff. Essentially there are two sets of permits that are being reviewed. The zoning
permit which is the jurisdiction of either the Planning Department or the Planning Commission,
once the zoning permit is issued, while you have given approval to these structures they are still
in violation of the County Code because they have not been up to date via the building permit
Planning Commission Minutes
October 12, 2010
22
process. And then the building permit process is not going to be initiated until the zoning permit
approval is given. So first the Planning Commission gives zoning permit approval and then the
Public Works Department will commence their review of the building permit.
Mr. Costa: I would also suggest in terms of your question regarding structural integrity
absent a building permit and subsequent building inspection review, I would ask the applicant
by what means they figure out whether they are structurally stable or not. Because many of these
are, as we understand, are just put up. I don't know if a structural engineer is involved or not or
just cross the finger method.
Staff. I can state that within the application the applicant states that materials and
construction standards are set by the Association for Challenge Course Technology, ACCT,
"Design, construction and operation training inspections are conducted by consultant Michael
Reddish, of Adventure Ropes Course, experienced as a practitioner of this industry." So it was a
private consultation that occurred and ultimately standards established outside government
prevue...and they can speak more to that design criteria.
Mr. Nishida: Kaaina, the way this zoning process works which you have explained
would be the building permit would be generated after the zoning with Use Permit, the Special
Permit would be approved. But once the Special Permit is approved I think what Cammie was
looking at was whether we were actually going to get these permits coming in, the request for the
building permits to actually come in or not. So once this is approved you really could just
continue on without the building permit, how does that work?
Staff: In the event that the Commission approves the zoning permit the applicant still is
in violation of the County Code because they have not received the appropriate building permits.
And I think particularly given that we are now on notice that it is in operation without the permit
it would be incumbent upon the applicant to apply for those permits or face looking at being
served with notice of violations from the Building Department.
Mr. Costa: And perhaps we could incorporate a condition to that affect.
Mr. Nishida: I think you have compliance to requirements of Public Works but no
specific requirement for building permit application for the existing structures.
Staff: In the event that the Commission decides to approve under certain conditions we
can look at including say in condition number 5, the applicant shall comply with the
requirements of the State Department of Health, Fire Department, Water Department, and Public
Works, we could insert something speaking specifically to building permit review and approval
for previously constructed facilities.
Ms. Morikami: I am just curious if it is the wishes of the Planning Commission to not
grant the expansion what would be the status of the 6 existing zip-lines? Let's say we say no
expansion and just as if, how would we ensure that those 6 existing would have building
permits?
Staff: Sorry, could you repeat that question Commissioner Morikami?
Ms. Morikami: We are saying that if we do the 6 additional zip-lines that everything will
work out because they will come in for the building permits for all 12. I am saying if we don't
approve the 6 expansion, the 6 zip-lines expanding, how do we make sure that the 6 existing are
in compliance?
Vice Chair: Excuse me Kaaina, can we take up that question after lunch? I am sorry but
the Mayor is here already so we are ready to have lunch and then we will be continuing this
Special Permit after lunch and that would be about one o'clock.
Commission recessed for lunch and executive session at 11:39 a.m.
Meeting called back to order at 1:46 p.m.
Planning Commission Minutes
October 12, 2010
23
Vice Chair: This is in regards to Special Permit SP-2011-3, Use Permit U-2011-5, and
Class IV Zoning Permit Z-IV-201-5, Outfitters Kauai, Ltd. At this point we would like to have
the applicant...
Mr. Shawn Combs: Good afternoon Commissioners, Shawn Combs from Land
Strategies.
Mr. Rick Haviland: Rick Haviland, Outfitters Kauai, Ltd.
Vice Chair: Do any of the Commissioners have any comments or any questions they
want to ask of the applicant?
Mr. Blake: I have a question, the same on I asked before. Who inspects to ensure the
structural integrity of your towers?
Mr. Haviland: Good question Commissioner Blake. The safety is of course really, really
important to us and there is an association of operators of challenge courses, ropes courses, zip-
lines, that have developed a formal set of standards. There are accredited practitioners of the
stands and we have a consultant that has worked with us on the design, construction, and
development of the operations procedures and the inspection and staff training. We do daily,
weekly, and monthly inspections and it is a formal documented process of the items that we
inspect. And we additionally have a consultant come in annually and do an annual inspection.
Mr. Blake: So you keep a daily log.
Mr. Haviland: The daily inspection doesn't involve a log but we do keep records of the
inspections.
Mr. Blake: What inspection frequency requires log entries or do you require log entries?
Mr. Haviland: The monthly inspection has a log and the annual inspection has a log.
The inspections are quite rigorous. Everybody rides the cables including the guides. We are
very interested in safety. Our procedures are really excellent, they are designed to be protective
not only to the passengers but to the guides and the systems are redundant, and we have an
excellent safety record. And we are determined to keep it that way.
Mr. Blake: Thank you.
Ms. Morikami: How long has your zip-line operation been in business?
Mr. Haviland: We started in 2005.
Ms. Morikami: Thank you.
Vice Chair: Any other Commissioners want to...?
Ms. Matsumoto: I have a question about safety. Is there a common injury that occurs?
Mr. Haviland: The most difficult thing for us slips and falls when people are walking,
otherwise we don't really, we don't have accidents riding the zip-line we don't have any
accidents. Slips and falls are the things that are a little bit to an extent of our control but we try
and mitigate that by doing trail maintenance.
Vice Chair: Anybody from the public wishing to speak on this agenda item?
Ms. Penny Fernandez: Hello, my name is Penny Fernandez. I have a Kuleana property
near the area that they are running the zip-lines and I just wanted to express some concerns. I
had previously talked to Mr. Haviland about it earlier this afternoon but my concerns are noise
factors, hours of operation, if there is a possibility of night operations in commercial use. To
ensure that there is no infringement onto other properties because it is a very dense area so how
would that be ensured that that would not happen. And I also enquired on what area of these
Planning Commission Minutes
October 12, 2010
24
parcels he was planning to do his operations because it is three parcels as I understand it to be on
and they are quite large parcels. So I wanted to confirm if there was going to be a certain area
that it would be limited to. It does say 5 acres on the application but I am not certain where that
would be. And those are my main concerns I wanted to express.
Mr. Nishida: You are living on the Kuleana right now?
Ms. Fernandez: No.
Mr. Nishida: So your concern is from your Kuleana is?
Ms. Fernandez: Yes.
Mr. Nishida: And where is your Kuleana?
Ms. Fernandez: It is just before, well I can give you the parcels but they are next to the
smaller parcels of Grove Farm.
Mr. Nishida: Across the stream?
Ms. Fernandez: Yes, it is across but I believe two of the parcels that they are requesting
permits are on the Grove Farm side which is on the same side as me so I just wanted to
confirm...there are some boundaries and they are clear of the boundaries.
Mr. Nishida: Kaaina, is there a big map?
Staff: There is a map included in the application however I don't know if it is going to
specifically address where the Kuleana lot is. That can be provided for the Commission at a
subsequent date.
Mr. Nishida: Yes,' can you give the tax map key so he can identify the parcel next time?
Ms. Fernandez: Sure.
Vice Chair: Any other questions?
Mr. Blake: As I understand it they stage at Nawiliwili, paddle up, kayak up the river to
the mango tree or that area and from there they take trails, the customers would take trails to the
zip-line towers. Now are those the destinations or are there destinations past the zip-line towers,
hiking destinations?
Staff: I believe those are the primary destinations however I don't think that is the sole
purpose of all of their tours is the zip-line destinations. I believe they also have areas in which
they are just visiting absent the zip-line destination but I will direct that question to the applicant.
Mr. Blake: And this is all taking place on Grove Farm land?
Staff: Grove Farm as well as Kipu Ranch.
Mr. Blake: And the map that you are referring to shows the roots that are utilized for
hiking from the disembarkation point on the river and the location of the 6 existing towers and
the proposed locations of the new towers?
Staff. It has the proposed locations of the new towers as well as various canopy
walkways; it doesn't have every single trail in detail.
Mr. Blake: So it has the existing towers also on the map?
Staff: The location of them, correct.
Mr. Blake: Is it readily available?
Planning Commission Minutes
October 12, 2010
25
Staff: We can ask the applicant that, if they can provide a further detailed site plan. If
they don't have it on them right now, like I said we can provide the Commission with that at a
subsequent date.
Vice Chair: Any other Commissioners?
Mr. Kimura: Is there a map showing where the other 6 zip-lines are going to be and,
actually it is two questions, are we going through the after the fact permit and permitting the next
6 zip-lines? Is it together or is it two separate things?
Staff: It is together.
Mr. Kimura: You to approve one you have to approve two.
Staff. Essentially that is what the applicant is asking however...
Mr. Kimura: But we don't have to do it that way.
Staff: It is at the Commission's discretion if they want to approve it if there are certain
conditions of approval that the Commission wants to impose.
Mr. Kimura: I can't find a map saying where they are going to put the other 6 zip-lines in
here. They are asking for 6 more but they don't have it down on the map showing us where it is
going to be.
Mr. Jung: You can always request more information from the applicant.
Mr. Kimura: Oh definitely.
Staff: I can state that the description of the zip-lines in the application has the
approximate distance from the existing zip-lines.
Mr. Kimura: But it doesn't show...
Staff: The exact locations.
Mr. Kimura: Yes, they show the first 3 or so. I don't know maybe I didn't find it yet.
Did anybody else find it?
Vice Chair: No. At this point I would like to, as you are seeking that, I would like to
continue if there is anybody else in the public that would like to testify on this?
Ms. Elaine Dunbar: Good afternoon, Elaine Dunbar. In the staff report, 8,9 and 10 seem
pretty irrelevant at this point regarding this application and it looks as if the staff report is relying
on section 8-205 of the Kauai County Code, 1987 when it should be placing more emphases on
HRS 205 as permitted uses in agriculture. First off this not a permitted use on Ag. land and it
doesn't even come close to resembling an unusual use that would be permitted on Ag. lands so I
don't know where you guys are going with this. It is strange stuff to me, thank you, you just
need to follow the HRS, thank you.
Vice Chair: Anybody else?
Ms. Cheryl Lovell-Obatake: For the record my name is Cheryl Lovell-Obatake. I did get
some maps however I am concerned about the demarcation lines through the 5 acres that are
going to be in use or will be or not be. I would concur with the comments make by the previous
speaker on the actions required on the Planning Director's report. I too, like you, would like to
see the map on the board and sort of let the audience know as to where these areas are located. I
know Mr. Haviland very well. I am the former Nawiliwili Bay Watershed Council Chairperson.
As I understand there are three, there were three kayak companies in Hulaia and with a
memorandum of agreement with the community and the watershed there are some agreements.
Planning Commission Minutes
October 12, 2010
26
One of them are no businesses on Sunday and also the capacity of guests would be 60/60/60, and
because there is an absence of the Aloha Canoes and Kayaks, they went out of business, they
have split the 60 among the two operations.
I do have some concerns and perhaps they may be relevant or not, on both sides of the
stream of Na Hulaia stream further mauka. The National Wildlife has ownership on the banks of
the stream and I am not saying there is a total impact from the applicant but there are some
concerns I feel that should be addressed on section 106 being that it is Federal property on both
sides. And I am (inaudible) talking about the zip-lines in the area but because of the traversing
on Hulaia River. I have some questions regarding the concerns of historical properties. As you
know this Hulaia Wildlife Refuge is located within the areas and it would be good to verify by
the maps as to where the operations will be at a total of 5 acres, plus. Section 106 is the
Advisory Council and Historic Preservation which Hawaiian organizations and individual
Hawaiians and even Kuleana landowners are involved in the process with 106, Federal grants are
granted on private property or whatever impacts that it will cause on the aina.
Limaloa is a very familiar awardee for me, I did a lot of studies on Limaloa on the
National Wildlife Refuge there. And there is a lot of history of (inaudible) and Kahunas, strong
Kahunas in that area and black awa and further up mauka as you go up to K3pu. I am aware of
the history and Ms. Fernandez, her grandfather Ed Crow and my grandfather were in the police
force and my grandfather and her grandfather ran against each other in the Chief of Police. So I
understand what areas she is addressing especially on Kuleana lands. Hopefully in all fairness
that the research for section 106 needs to be complied with, there are a lot of native Hawaiians,
especially in that area where the black awa has grown, thank you.
Vice Chair: Anybody else wishing to testify?
Mr. Adam King: Aloha Commission, my name is Adam King. I am an employee with
Outfitters Kauai since 1997 and I have know Mr. Havidland for over 20 years, raised here on
the island pretty much doing what I love. I consider myself maybe a career tour guide. I love
the island, I love sharing that love of the island with our guests. Outfitters, the mission statement
of Outfitters has been a relatively low impact company, biking, kayaking, and so forth. The zip-
lining, and I actually really do respect Mr. Haviland for his innovation, he has come up with a lot
of fresh ideas that other companies on the island say oh that looks cool, let's start out trip. So by
coming up here and kind of asking for these approvals and applications, it is definitely a
transitional time for the County of Kauai going from what was once mostly agriculture now to
more of we have ecotourism and a lot of that kind of stuff.
So looking into these permits I can see how some of it is relatively new here for the
Commission and I just applaud Mr. Haviland for trying to come up and seek the right permitting
for these zip-lines and whatnot in part of keeping Outfitters Kauai an innovative company. And
that is one of the reasons why I have been there for so long. This was supposed to be a two year
plan back in the days of going to KCC and I said hey, I love what I do, the Hulaia River are and
whatnot, canoes. I was able to get my Captain's license so moving up in the company that way
and keeping it real innovative. So that is what I think Mr. Haviland is doing. Although the zip-
lines take more impact than our kayak operations or whatnot it still is a relatively low impact
compared to a lot of other things that could be going on. You have a cable between trees and
you do need platforms and whatnot to get down but I do believe that it is relatively low impact.
A lot of the areas that we work on are along the streambed in the more low lying forest areas
which are not necessarily the best for Ag. operations. All I am saying is I appreciate you guys
looking into this and looking over the application.
Mr. Blake: How long have you been working there?
Mr. King: I have been working there since 1997.
Mr. Blake: When you conduct the tours do you utilize the historical names for the
different places, terrain features and so forth or have you made up new names?
Mr. King: No, I don't make anything up. I was a student at KCC when I first started. I
was taking courses with Dennis Chun in Hawaiian studies. You mentioned Koolawai, a few
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October 12, 2010
27
trips over there, very interested in a lot of the cultural stuff. I got my associates degree there in
Liberal Arts with a lot of emphases on botany and Hawaiian history and so forth and I have done
a lot of reading and a lot of studies in the area. From what I have read I have drawn most of my
own truths and things that I am not familiar about I say I am not familiar about. I generally
won't make up such and such names for such and such an area. I have done a lot of research on
my own and transited that along to a lot of our other staff. Preserving the natural history of the
island and whatnot is something really big for our company, talking a lot about the native plants,
a lot about the history of the area. As you folks were saying earlier there is a lot of history in a
lot of these lands and it is really nice to share that with the guests that come on our tours.
Mr. Blake: So there is an ongoing program to maintain the old names?
Mr. King: Somewhat, in our training protocol everyone gets trained by a series of
trainers and we try to correct certain people if they mispronouncing some of the names of the
areas or whatnot. So we definitely have a pretty interactive crew at Outfitters, we are all pretty
knowledgeable on a lot of the natural history areas that we are going through.
Vice Chair: Thank you.
Mr. (Inaudible Aloha, my name is (inaudible). I am also working for Outfitters. I have
been with Rick Havidland for about a year and a half. I am here to support (inaudible) and also
to reaffirm what Adam King said. We are culturally sensitive there. I am part Hawaiian and I
want to make sure that is stays status quo. I do believe I am involved because of that reason. I
have also lived in the area for a while and I know Cheryl and Ms. Fernandez. I do know I am not
really versed in it, I want to learn more but as far as keeping things in line ...and like Mr. King
explained there are certain loi' in the area and as we walk the tours through we do explain what
they are, we do give some history on the Chinese and Japanese there about the pasture it's self
and how it was obtained and what is being done. So a lot of history is involved there. Included
with that is actually explaining the history and the culture to the visitors that have come by and
with that we have expanded outside of that. Most of the people coming down are very different
who come to Kauai, they want to know and learn more, they want to see a lot of our nature.
And as you explain these things you can see their minds expand and they want to learn more and
preserve more.
So I think it is a good thing that this is happening. I know it is a work in progress like
Mr. King explained, we are here to make sure that we do things properly and work with the
people involved like Cheryl and Ms. Fernandez here with whatever concerns they have. My job,
hopefully, is working with Outfitters is making sure that we comply and all work together and
are considerate about any concerns that are going on. I will be involved for a few more years
and I hope we move in the right direction. And I know this is a new thing. I have told a lot of
people this is a fairly new industry and it is expanding but it is a great way to share what we
have. If any of you have walked into the area a lot of it is private so we explain to a lot of the
visitors that come there that not too many locals get to see it so we are exposing this to anyone
who wants to come through and enjoy it. And a little adventure to make it nice. But again, other
than that, a lot of cultural things and it is something we are expanding on every day. Hopefully
we can work together and make this advantageous to everybody, thank you.
Vice Chair: Anybody have any questions, thank you, Elaine?
Ms. Dunbar: I am just trying to get clear on what this is and how it fits in with permits
and unusual uses on Ag. lands and so now I am hearing this is an eco-tour? Or did they just
decide to go that direction? Because I think flying down the river and shouting Hawaiian names
is not necessarily an eco-tour and even if it were classified as an eco-tour I don't think it fits
within the parameters of 205. Have you guys read 205? I appreciate that this is an innovative
business and everybody is excited about how new it is and what a great adventure it is but there
are laws where certain things are permitted on Ag. lands and certain things are not permitted. So
how is all this justifying what they are doing according to 205?
Mr. Jung: Mr. Dunbar, you are correct in that HRS 205 does have a delineated list of
what are permissible uses within that particular SLUD District which is the State Land Use
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October 12, 2010
28
District. However Chapter 205-6 allows for a Special Permit for not specially permitted uses
within that specific confined list so it allows the Commission discretion in making a decision...
Ms. Dunbar: Yes, that is what I wanted to ask you or the planner, exactly where did you
find that little morsel in the unusual uses?
Mr. Jung: If you look at our Chapter 13 of the Planning Commission Rules and
Procedure there are 5 criteria in which you can assess what is an unusual and reasonable use.
Ms. Dunbar: And how does this one fit in?
Mr. Jung: That is up to the Commission to decide whether or not it is an unusual and
reasonable use.
Ms. Dunbar: So because it is unusual it can just be unusual, it is vague and it is abstract,
it is unusual. Isn't there anymore clearly defined unusual?
Mr. Jung: You can look at Chapter 13 or our Planning Commission Rules and it will
indentify the five criteria.
Ms. Dunbar: So you can't identify right now off the top of your head.
Mr. June: It is in the planner's report as well if you want to go take a look at the
planner's report.
Ms. Dunbar: I did.
Mr. Jung: And it lists each one of those five criteria. I think what maybe you should
understand is most of our land is in Conservation and Ag. Districts. If someone wants to do a
rezone into one or our Residential Districts or a Rural District they can do that but if it is for a
limited small activity then this specific procedure is available to them to come in and apply for
this unusual and reasonable use which is on this small property. So technically they can come in
and apply under this process.
Ms. Dunbar: So I guess that leaves it open for just about anything anybody wants to do
on Ag. land. There is no clear definition of unusual use is there?
Mr. Jung: You can speak to the legislature about changing the law...
Ms. Dunbar: No, no, no, you guys are supposed to look a the books, you are the ones in
charge of doing that and a lot of times it's not being done in this County, it is very vague
interpretations, that is all it is, thank you.
Vice Chair: Anybody else wishing to testify?
Mr. Jeff Hendrickson: Hello, my name is Jeff Hendrickson. I am with Shipwreck Subs
Catering. I have been catering for Outfitters for about 16 years now and people come here to this
island to have fun and with Outfitters they have a great time. They get out and paddle a little bit,
walk on a trail, and get to learn about folklore here. The people that are behind me here are great
people, they are very safe, the trails are all kept clean. I have been out there. I have done
catering onsite at different places. If I had a dollar for every person that said I had a great time
with Outfitters I wouldn't even be here right now. But the whole thing about it is people coming
here, that is what makes our island unique and different, it's not just to go on Captain Andy's or
some of the other fun activities, people want to go out and hike, take a kayak and paddle down
the river and do some zip-lining and that is what they are coming here for. It's not just to go on a
boat ride or a helicopter ride. And all of us pretty much we have been working a long time here
with Rick and Julie and even with this economy being slow and everything he has pretty much
found a way to keep busy and that is good for our island, it is good for us, we all have families
and houses here. So I am asking please to approve this application for the good of the island and
everybody involved.
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October 12, 2010
29
Vice Chair: Thank you.
Ms. Heather Scott: Hi, my name is Heather Scott and I have worked for Outfitters since
1999. Adam was a young guy then and he and I, I think, were on the same two year plan and we
are still there. And the reason we are still at Outfitters is because the Havilands take a lot of
pride in their home and in the land and they really want to share that with every guest that comes
to the island. So Outfitters is about going and having fun on a zip-line but it is about sharing the
knowledge and the history and the folklore even more. We do our best to leave a small footprint
wherever we can. As new guides are trained and come in we encourage longevity and people
who live here on the island and are able to buy homes and build families are more likely to
protect the land around them and that is what we do. We teach our guests about the beauty of
Kauai and the history of Kauai so they take a little bit of that with them after their tour. So I
would hope that you can see that we try and go beyond just having fun, we are concerned about
the land and everything that you are all concerned about as well.
Vice Chair: Thank you, anybody else?
Mr. Erin Holman: I am Erin Holman. I work at Outfitters. I do a lot of the trail
maintenance and vehicle and structure maintenance. The one thing I have noticed they pay a lot
of attention to is erosion control and keeping a lot of their traffic activities on existing trails and
roads that were developed during the cane era. As far as the permitting process that we are going
through this is not unique as people get out and do more things. The environment here is unique
in the fact that the vast majority of the land is private. If you want to go check something out,
usually if you turn off the highway you run into a yellow gate. So I think the steps that we are
taking here are going to be very important in the future as more people want to responsibly see
what is going on with the island and learn about the culture and the history of these islands. I
hope you approve this application and we will work through this and address everybody's issues.
Vice Chair: Anybody else?
Ms. Lovell-Obatake: For the record again my name is Cheryl Lovell-Obatake.
According to the Planning Director's report there is a 60 day, November 26, 2010. I think
maybe I am requesting that you defer your decision based upon the concerns of Ms. Fernandez
and identifying on the map for all clear review where these areas are. I just wanted to read into
the records the project description and use, "The applicant is proposing to operate the
commercial recreation zip-line activity and construction of the corresponding facilities. The
applicant proposes to construct and operate a total of 12 zip-line facilities, 6 of the zip-lines have
been previously constructed however they have not received the appropriate zoning permits. The
other 6 zip-lines are future proposals." Whether there are words written into this report I just
wanted to say it into the record and to the viewing audience that may have concerns in the area,
especially Kuleana lands, thank you for your time, please defer.
Vice Chair: At this point I would like to entertain a motion to close the public hearing.
Ms. Morikami: So moved.
Mr. Kimura: I wanted to call the applicant back up.
Vice Chair: We want to call the applicant back up please. We have a question by a
Commissioner.
Mr. Kimura: I wanted to request if we could get a little more information, pictures, and
exact locations where these zip-lines are and will be located.
Mr. Haviland: Okay Mr. Kimura. Have you had a chance to have a look at the USGS
map in the application?
Mr. Kimura: Whatever you gave me here.
Mr. Haviland: There is a map there that shows the existing zip-lines.
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October 12, 2010
30
Mr. Kimura: I know the existing ones. You guys proposed 6 more new ones, right?
Mr. Haviland: Right, and if we could reference that map then I can tell where the
intended new construction is.
Mr. Kimura: It's really not my job to figure out where these zip-lines are going to be. As
an applicant I feel like the map should have been one, larger, so we all can see where the existing
zip-lines are and where you propose to put the next 6 zip-lines. And for you to say that we have
the map here and you can show us where it is going to be, as an applicant I feel that you should
have already done that on the map its self rather than have us figure out, okay, you see where zip
1 is, well 50 feet to the right is going to zip 4 or zip 12. It should have been on a map, as the
applicant, to provide us with that kind of information ahead of time. So with that I would like to
request a little bit more information and would like to... can I make a motion?
Vice Chair: Do we need a motion or can we just have a request? Just a request if we
could have a larger map to begin with, right?
Mr. Kimura: For sure, something that is going to show me exactly where all your zip-
lines are going to be or your proposed zip-lines. I don't think that is asking too much.
Mr. Haviland: We are agreeable to that.
Mr. Kimura: Thank you.
Ms. Matsumoto: How many people can go on one zip-line, how often, how many people
and also why is there a need for so many, adding more?
Mr. Haviland: Well it is one at a time and some of the zip-lines are built side by side so
that two people can go together, father/daughter, husband/wife, whatever, the share the fun. And
why do we need new ones, we are trying to take an opportunity as we go through this really
pretty lengthy, complicated process to position ourselves to be competitive in the future as this
business grows and new operators come in. So because it is honestly a pretty long, difficult,
expensive process we wanted to take this as an opportunity to consolidate our efforts and not
have to go through the time difficulty and expense again and to take up your time again at a later
date. So that is the purpose for combining the applications.
Vice Chair: Jan?
Mr. Kimura: If you could, could you put everything on one big map with your kayak,
pickup/drop off points, hiking trails, bike trails, your tractor pull, all that on one map. I am
trying to find it, I know I saw something here that showed your, I think it was your bike trail but
if you could have it all on one map where we don't have to flip through this whole thing. I
would just outline different things like yellow would be your wagon pull; it would be a lot easier
on the Commission. I am just speaking for myself but I would appreciate it.
Vice Chair: So do you think you could comply with that request?
Mr. Haviland: Certainly.
Mr. Nishida: So Rick, Haiku Road, the access, first of all the two locations for the zip-
lines, 1, 2, and 3, 4, 5, and 6, they are kind of significantly separate from each other. What
would you say, how far apart (inaudible)?
Mr. Haviland: About a mile and a half.
Mr. Nishida: Are the two of them integrated in the tour or is it...?
Mr. Haviland: We do a tour where you go in both areas and we do other ones where you
only do one or the other. And one of the ideas of adding some zip-lines is there are 3 here and 3
here, we want to add 3 in each location so that we can work out our program so that we don't
need to go between the two and each of them sort of has legs on their own. If I could just to use
this as an opportunity to speak to Ms. Fernandez's concerns, we had a talk, I am aware of where
Planning Commission Minutes
October 12, 2010
31
her Kuleana is and our intention is to actually move the other direction from her. So I think that
the impacts of the new lines will not be greater on her property. I was glad I had a chance to talk
to her and learn what her concerns are. We have a lot of respect for the Kuleana lands in the area
and we have really tried to be considerate and respectful of the Kuleana owners. I think our
record shows that, we don't have a single complaint. We came in on our own and initiated this
process it is not the result of complaints. Ms. Fernandez was concerned about nighttime
operations. We don't do night time operations. We don't intend to for safety reasons and now
that I know what her concerns are I am less inclined to do nighttime operations. We won't be
doing that.
Mr. Nishida: So all the collection of money is down at the harbor? All tours start, well
can you describe the collection and the start of the tours?
Mr. Haviland: Some tours start at our office in Po`ipu and the financial transactions are
handled there, others start at our operations center at Nawiliwili Small Boat Harbor and in that
case the financial transactions are handled at that location.
Mr. Nishida: Then they get in a van...
Mr. Haviland: They kayak from the harbor, they go in vans from the retail facility in
Po`ipu.
Mr. Nishida: So the access to zip-lines 4, 5, and 6 is through Haiku Road or do you...?
Mr. Haviland: No, we don't use Haiku Road at all. We come onto the Kipu Ranch
property by motor vehicle on Kipu Road or we come up Hulaia River.
Mr. Nishida: And then when you access the... so you pass through Kipu Ranch lands and
then you are entering into the area directly below ...the land around the zip-line, the two zip-line
locations are forest, they are not pasture, right?
Mr. Haviland: The zip-line locations make use of lands that are steep and unsuitable for
pasture which is the agricultural use of the lands.
Mr. Nishida: So do you have to actually enter into a gate into the zip-line area because
the cattle are kept out of that area or is it part of a larger fenced area?
Mr. Haviland: It is part of a larger pasture area and the cattle if they are in a particular
pasture where a zip-line launching pad may be located right on the very rim of the valley the
cattle will all around the area except that we fence off the immediate area of the facility that
carries the cable. So that would be the pole or the tree and the anchor for safety, we don't want
the cattle rubbing on the support structures. The fence areas are as nominal as possible because
we want to keep all the land in Ag.
Mr. Nishida: And then you are going to show us the trails, the bicycle trails, and the
wagon trail.
Mr. Haviland: Yes, I can submit that, it is pretty easy for me to do.
Mr. Kimura: In addition to that can you add on Ms. Fernandez's Kuleana land on the
same map so we know where everything is when you point out the zip-lines that you are
proposing so we know more or less where this Kuleana land is? And I didn't know that we are
talking about two different properties, Kipu Ranch and Grove Farm.
Mr. Haviland: Yes, that is correct.
Mr. Kimura: So can you put the two different parcels where Kipu Ranch starts and
where Grove Farm begins on the same map?
Mr. Haviland: It is kind of difficult to translate information from the topographical maps
to the tax map keys so we can provide the tax maps that show the parcels.
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October 12, 2010
32
Mr. Kimura: So these two parcels you have, the Kipu Ranch and the proposed Grove
Farm, how far apart are they?
Mr. Haviland: They are contiguous.
Mr. Kimura: That is what I am talking about; they are right next to each other, right?
Mr. Haviland: Yes.
Mr. Kimura: Can you just draw aline on the map, it doesn't have to be technical.
Mr. Haviland: Sure.
Mr. Kimura: I just want to know how far apart these parties are and where you want to
put the new zip-lines.
Mr. Haviland: Okay.
Mr. Kimura: And if you could kind of circle where Ms. Fernandez's property is.
Mr. Haviland: Best I can.
Mr. Kimura: Thank you very much.
Vice Chair: With that in mind I would like to entertain a motion to continue the public
hearing.
Mr. Nishida: Move to continue public hearing.
Ms. Morikami: Second.
Vice Chair: So there has been a motion to continue public hearing until our next
meeting, at that point you will be showing us the maps, thank you very much.
Staff: For clarification Commissioner Texeira, the continuation for public hearing is
October 26th.
Vice Chair: So the next public hearing on this matter would be October 26th, would you
be able to have that map available at that date, is that enough time? Okay, thank you very much,
there is a motion on the floor.
Ms. Morikami: Second.
Vice Chair: All those in favor say aye, motion approved.
On motion made by James Nishida and seconded by Paula Morikami, to continue
public hearing to 10126/10, motion carried unanimously by voice vote.
Commission recessed at 2:37 p.m.
Meeting called back to order at 2:47 p.m.
Proposed adoption and amendment of administrative rules pertaining to the Practice and
Procedure of the Kauai Planning Commission:
1. Adoption of a proposed Chapter 6A relating to non-conforming use certificate
appeals;
2. Amendment of Chapter 1 pertaining to the definitions; and
3. Amendment of Chapter 9 relating to appeals from the Planning Director = County of
Kaua `i Planninn Commission.
Planning Commission Minutes
October 12, 2010
33
Staff Report pertaining to this matter.
Deputy Planning Director Imai Ain: Thank you Chair and Commissioners. First of all I
apologize for the lateness of the report but I think I have a pretty good excuse as to why it was
late. My excuse is my son was born two weeks ago. With that in mind, considering that he
report was only provided today the staff is going to recommend deferral after reading the report
(on file).
Vice Chair: Do we need to receive this for the record?
Mr. Ain: Yes as the report was only distributed today the report needs to be received for
the record.
Vice Chair: Is there a motion to that effect please?
Ms. Morikami: Motion to receive?
Mr. Jung: Just for clarification I think Imai just passed out the report so it wasn't
included in the packet when you received the items.
Ms. Morikami: So it is going to be on the next meeting agenda?
Mr. Jung: That is up to the Commission. I think the department is asking for a deferral
but it is the scheduled public hearing today so you might want to see if there is anyone in the
public that wants to testify.
Vice Chair: Is there anybody in the public that would like to testify on this? Since there
is no one in the public wishing to testify we can go ahead and receive this for the record.
Ms. Morikami: Is the public hearing considered still open?
Mr. Costa: Until you close it.
Mr. Aiu: So you guys can either close the hearing today and defer action or keep the
hearing open.
Mr. Kimura: Or close the hearing and vote on it.
Mr. Ain: You could do that as well.
Ms. Morikami: Mr. Chair, move that we close this public hearing.
Mr. Kimura: Second.
Vice Chair: All t hose in favor say aye, opposed, motion carries.
On motion made by Paula Morikami and seconded by Jan Kimura, to close the
public hearing, motion carried unanimously by voice vote.
Ms. Morikami: Mr. Chair, move that we received this communication for the record.
Mr. Kimura: Second.
Vice Chair: All those in favor say aye, motion carried.
On motion made by Paula Morikami and seconded by Jan Kimura, to receive the
report staff report, motion carried unanimously by voice vote.
Ms. Morikami: Mr. Chair, move that we defer this matter.
Ms. Matsumoto: Second.
Planning Commission Minutes
October 12, 2010
34
Vice Chair: All those in favor say aye, motion carried.
On motion made by Paula Morikami and seconded by Camilla Matsumoto, to defer
action, motion carried unanimously by voice vote.
Vice Chair: Any other housekeeping matters?
Mr. Costa: Yes. I would request on item D.1 which was regarding the Hydro energy, the
reason we put it on was to let them know whether they could or could not come to the next
meeting because they are planning on coming unless we tell them.
Mr. Kimura: I thought we were going to go over it before we made a decision to put
them on.
Mr. Nishida: Actually I think we can decide. Just from my end there is no...the subject
of hydrogen is a huge thing and it requires a lot of infrastructure improvements and a lot of
technology improvements. I think the guys wants air time and time for the Commission to look
at it but to me either the department or the administration has to look at a comprehensive energy
plan. I think they already passed something and without relating to an actual either study or...
Mr. Costa: Permit application, yes, there is no pending application before you.
Mr. Nishida: Yes and given that the Commission rotates and changes and without that I
would say we might as wait, especially on something like hydrogen unless we wanted to hear
some...
Mr. Costa: That was my concern, it doesn't apply to a specific application it is general
information. I am not sure...
Vice Chair: That we need to have at this point. Do we need to have any kind of motion
to that affect?
Mr. Costa: No.
For Acceptance into Record - Director's Report(s) for Proiect(s) Scheduled for
Public Hearing on 10126/10. NONE
For Acceptance and Finalization - Director's Report for Shoreline Setback Activity
Determination. NONE
ADJOURNMENT
Commission adjourned the meeting at 2:59 p.m.
Respectfully Submitted.
8ct ,
Lani Agoot
Commission Support Clerk
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