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KAUAI PLANNING COMMISSION
REGULAR MEETING
October 26, 2010
The regular meeting of the Planning Commission of the County of Kauai was called to order by
Chair, Caven Raco at 9:09 a.m. at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room
2A-2B. The following Commissioners were present:
Mr. Herman Texeira
Ms. Paula Morikami
Mr. Jan Kimura
Mr. Hartwell Blake
Mr. James Nishida
Mr. Caven Raco
Absent and excused:
Ms. Camilla Matsumoto
Discussion of the meeting, in effect, ensued:
APPROVAL OF THE AGENDA
Chair: Can I get a motion to approve the agenda?
Mr. Texeira: So moved.
Mr. Nishida: Second.
Chair: Prior to us approving we need to make some amendments. So what we will do is
we will be making a revision on the revision on the agenda for item A.3 to be heard first after we
approve the minutes.
Mr. Texeira: So moved.
Mr. Nishida: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Herman Texeira and seconded by James Nishida, to approve
the agenda as amended, motion carried unanimously by voice vote.
Chair: Can I get a motion to receive items into the record?
Mr. Nishida: So moved.
Mr. Texeira: Second.
Chair: All those in favor say aye.
On motion made by James Nishida and seconded by Herman Texeira, to receive
items into the record, motion carried unanimously by voice vote.
Chair: And then the meeting minutes for September 28`h, if there are no revisions I will
entertain a motion to approve.
Ms. Morikami: Move to approve.
Mr. Nishida: Second.
DEC 14 2010
Chair: All those in favor say aye, motion carried.
On motion made by Paula Morikami and seconded by James Nishida, to approve
Planning Commission meeting minutes for September 28, 2010, motion carried
unanimously by voice vote.
GENERAL BUSINESS MATTERS
Executive Session: Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(2 &
4), the of this executive session is to discuss matters pertaining to the Planning Director
and, if necessary, to consult with the County's legal counsel. This session pertains to the
evaluation of the Planning Director where consideration of matters affecting privacy will be
involved and, if necessary, to consult with legal counsel regarding the powers, duties, privileges,
immunities. and/or liabilities of the Planning Commission as it relates to this agenda item.
Chair: Item A.3 calls for an executive session and if the attorney wants to read it.
Mr. Jung: Pursuant to Hawaii Revised Statutes sections 92-4 an 92-5(a)(2 & 4), the
purpose of this executive session is to discuss matters pertaining to the Planning Director and, if
necessary, to consult with the County's legal counsel. This session pertains to the evaluation of
the Planning Director where consideration of matters affecting privacy will be involved and, if
necessary, to consult with legal counsel regarding the powers, duties, privileges, immunities,
and/or liabilities of the Planning Commission as it relates to this agenda item.
Chair: With that I will entertain a motion to go into executive session.
Mr. Texeira: So moved.
Mr. Nishida: Second.
Chair: All those in favor say aye.
On motion made by Herman Texeira and seconded by James Nishida, to go into
executive session, motion carried unanimously by voice vote.
Commission went into executive session at 9:20 a.m.
Meeting was called back to order at 11:20 a.m.
Annual Status Report 9/10/10) submitted by Michael J. Belles, Esq., regarding
Compliance with Permit Conditions for Special Management Area Use Permit SMA(U)-2007-
13, Project Development Use Permit P.D.U-2007-25, and Class IV Zoning Permit Z-IV-2007-29,
Tax Map Keys 2-8-16:3 & 4 and 2-8-15:43, 44 & 82, Po`ipu, Kauai = Po `ipu Sheraton Kauai
Resort (SVO Pacific, Inc.).
Staff Report relating to this matter.
Staff Planner Lisa Ellen Smith read staff report (on file).
Chair: Commissioners, are there any questions for the planner?
Ms. Morikami: I have a question. On the original condition No. 5, "Applicant shall
substantially commence construction of the project", what is the definition of substantially
commence construction?
Mr. Costa: The definition we have used historically is completion of the site work,
grading, and the completion also of building foundations.
Ms. Morikami: Thank you.
Planning Commission Minutes
October 26, 2010
2
Chair: Commissioners, any more questions, if not is the applicant or the applicant's
representative here?
Mr. Michael Belles: Good morning Mr. Chairman and members of the Planning
Commission, for the record my name is Michael Belles representing the applicant. And sitting
immediately behind me is Mr. Greg Kamm of Greg Kamm Planning and Management. I would
like to begin by thanking Ms. Smith for her thorough and comprehensive report which
summarizes the status of the application and our third annual status report to the Commission. I
quite frankly give her a great deal of credit for going through a number of boxes and volumes of
paper involving this comprehensive project. I have been involved with this project since its
rebuild after 1996 when Kobayashi still owned the property and basically followed through with
the current ownership with SVO. I would also like to thank the Planning Director for his help
and assistance in working on the annual report as well as the help and assistance with all the
permits that are currently pending with the County.
The best way to break it out in summary form is that we are focusing primarily now on
the makai portion of the hotel portion of the development because obviously to remain
competitive in this environment in the tourist industry we have to make essential upgrades so
that we can maintain the standards of the Sheraton flag. And toward that end we do have four
permits that we are actually hoping to have finally reviewed and approved by the end of this year
and work commencing soon thereafter. And that would involve the Point Restaurant, the pool,
the pool bar, as well as the breezeway and kitchen. So those are permits that were more along
the lines of renovations, repairs, and then the other permits for the balance of the property mauka
of Hoonani Road, those are more long term, require more intense review by the various County
and State agencies. And I will say that those are working their way, I don't know that slowly is a
fair word but working their way through the permitting pipeline.
And I hope, frankly, to have a better grasp on that and be able to report to you more
definitively next year about this time in terms of where we are with those permits. But that will
involve the balance of the project and as some of you may recall who were on the Commission at
that time, that is the timeshare component of the project and that will be done largely in two
phases. We will begin by building units on the undeveloped portion which is immediately
abutting Po`ipu Beach Road and then the subsequent phase will be the existing hotel units which
are mauka of Hoonani Road. Those will be torn down and replaced by timeshare units consistent
in design with what we have immediately makai of Po`ipu Beach Road. And again for those of
you who haven't been involved since day one I apologize for that but without getting into too
much minutia and detail I hope that suffices but I will be more than happy to respond to any
questions you may have. In end I would respectfully request that you support the staff
recommendation to accept the annual status report and again if you have any questions I would
be happy to respond to them Mr. Chairman, thank you.
Chair: Thank you Mike, any questions for the applicant's representative? Let me see if
there is anybody in the public, is there anybody in the public ...you have a question Hartwell?
Mr. Blake: Do you have any idea when the permits will be approved?
Mr. Belles: The permits on the hotel renovations, we are hoping that they will be
complete and ready to construct by the end of this year so the last quarter of this year. The
balance of the permits mauka of Hoonani Road, we are looking ...the fairest way I can
characterize it is sometime next year. And a lot will be depending on the State, National, and
International economy in terms of our ability to move on those, coupled together with continuing
discussions with the various County and State agencies that we must work with to complete the
building permits on those.
Mr. Blake: And the transportation TDM, Transportation Demand Management
measures for employees, have there been any specific plans either initiated or to be initiated or
that still a work in progress?
Mr. Belles: That is still very much a work in progress because that would largely be
triggered by development mauka of Hoonani Road because anything we are doing on the hotel
largely reflects impacts that are there today because we are not increasing hotel unit counts and
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October 26, 2010
3
we don't expect the impacts to be any greater. Additional employees as well as services to
clients and customers to the hotel timeshare project, that would obviously be a trigger for a
complete and comprehensive transportation plan.
Mr. Blake: The development of a blasting plan, will that consist primarily of the warning
to the public or is there something you are going to do besides just drill and blast or something
that you can do besides just drill and blast?
Mr. Belles: It is going to be a combination. I think some of you, especially those of you
that have lived on the South Shore remember when the South Shore was referred to as ground
zero and there were problems with blasting and dust and other problems associated with those
types of issues. And the commitment by SVO, the applicant, was they wanted to work closely
with the community in terms of notices to the various stakeholders and neighbors and people
living in the community as well as working with the various governmental agencies to minimize
those types of impacts.
Mr. Blake: Thank you very much.
Mr. Belles: I would like to offer one additional comment Mr. Chair, if it's okay with
you. In response to the question about Commissioner Morikawa, we do have a letter that is part
of the presentation that was given to you as exhibit C which talks about full approval and if I
may read it, it is just two brief paragraphs. It is a letter addressed to Mr. Costa and signed by Mr.
Kamm and it just says, the pertinent part, "Per your request this letter once fully executed will
document the Planning Department's definition of quote, full approval, close quote, as such
phases used and contained in condition No. 5 of Special Management Use Permit for the project.
As you confirmed it was the Planning Department's original intent for quote, full approval, close
quote, to mean the applicant's acquirement of all necessary permits and approvals from all
government agencies and departments necessary to allow for all construction approved by the
subject permits." So that was the definition that was afforded for full approval.
I think that recognized what Planning and all other people involved in permitting actually
lived through and that is until you are able to work with the various County and State agencies
and fully understand the nature and extent of the improvements, revisions are constantly being
made to permits and the applications. Once that is finally resolved you are really in no position
to move forward until you have that final signoff. And it is not fair to characterize it as the
government bureaucracy or the applicant or anybody else dragging their feet. That is just the
nature of the business.
Mr. Blake: I just have one other concern, actually the community, I have heard this
voiced several times, is how long will the dust screens stay up. And I realize you can't answer
that right now but the concern was that if work starts and then stops how long do the dust screens
stay up in the hopes that work will start again soon. I don't know if there is any guideline for
that but that was a big concern.
Mr. Belles: And this is not intended to sound facetious it will stay up as long as
necessary. I mean that from the standpoint of the past relationship that SVO and Sheraton have
enjoyed with the community and that is we want to make sure that whatever we do has a
minimum impact. I would like to say no impact but we now that is not the reality of
development and construction but we really want to minimize any impacts to the neighbors. And
if we have to maintain the dust screens on portions or all the project it will be done as necessary
and we will continue as we have in the past to work with our neighbors to limit the impact on our
neighbors. The reality is from a legal standpoint and as well you know Mr. Blake, dust, noise,
nuisances of those types typically translates into litigation claims and damages and we obviously
want to minimize that wherever possible.
Mr. Blake: I would like to also acknowledge that the Sheraton has been very responsive
in Koloa, very, very responsive, a pleasure to work with, thank you very much.
Mr. Belles: Thank you. I will relate those sentiments to our client.
Chair: Is there anybody in the public that would like to testify on this agenda item?
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October 26, 2010
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Ms. Cheryl Lovell-Obatake: Thank you, for the record my name is Cheryl Lovell-
Obatake. I would like to address this question if I may Mr. Chairman, to the County Attorney. I
remember this application SVO and I remember two brothers testified for this application and it
was the Blake brothers. I am asking the County Attorney is this a conflict of interest to have Mr.
Blake voting for this application if before he was in approval of this application when I heard
him testify several years ago.
Mr. Dahilig: That is an attorney/client privileged matter that if Mr. Blake believes that he
has a conflict of interest in this matter that he can bring that up with me and we can discuss it.
The item that is up before the Commission this morning is the acceptance of a status report, there
is no amendments or changes to the permit that is currently issued. So if Mr. Blake believes that
he has an issue he can raise it with me and whatever communication that is, that is an
attorney/client privileged communication that I will not discuss further before the public.
Ms. Lovell-Obatake: Well thank you for clearing my conscience from the years back of
remembering this application because I have testified several times on this application and I
recall all the comments made, thank you.
Chair: Is there anybody else? Seeing none, what would be the pleasure of the
Commission?
Ms. Morikami: Mr. Chair, on item A.1, move to accept the status report for the record.
Mr. Kimura: Second.
Chair: Any discussion, all those in favor say aye, opposed, motion carries.
On motion made by Paula Morikami and seconded by Jan Kimura, to accept status
report, motion carried unanimously by voice vote.
Request (9/27/10) submitted by Michael J. Belles, requesting a two-year extension of
time in which to commence the implementation of the project as approved by the Planning
Commission by amending Condition No. 7 of Special Management Area Use Permit SMA(U)-
20.08-4, Tax Map Key 4-3-2:12, Wailua, Kauai = Consolidated Resorts, Inc. nka Consolidated
Maui. Inc..
Staff Report relating to this matter.
Staff Planner Lisa Ellen Smith read staff report (on file).
Chair: Any questions for the planner?
Mr. Kimura: Do you know who the potential owners will be?
Staff: I do not. I don't know if they have released it from bankruptcy proceedings.
Chair: Is the applicant's representative here?
Mr. Belles: Good morning again Mr. Chairman and members of the Planning
Commission, for the record Michael Belles representing the applicant. I want to begin again by
thanking both Ms. Smith and Mr. Costa for their help and support in continuing to work with my
client in our efforts to work through the bankruptcy first and then get this project back on track
again. In terms of the opening of the escrow which just occurred within the last two weeks, we
are looking at about a 45 to 60 day period for due diligence to take place on behalf of the
respective purchaser who is looking at the property right now.
And just briefly by way of background, since this property has been advertised and been
on the market under the opuses of the bankruptcy court and the bankruptcy trustee there were
over 100 inquiries made about the property and ultimately 7 entities deemed it warranted to
actually submit written proposals on the purchase of the property and one is being entertained
right now. Because of the nature of the bankruptcy proceedings the identity of the prospective
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October 26, 2010
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purchaser must remain confidential and to be honest with you I don't even know and it was a
question I didn't even want to ask. I apologize for that but I think you will note later in the staff
report was actually a recommendation that assuming escrow is concluded there is a
recommended condition that we then advise the Planning Commission and Planning Department
of the identity of who that purchaser will be and we will be more than happy to do that. We
would just simply ask that it not happen immediately, that you give us a reasonable period of
time whether it be 60 or 90.days to notify the County so that you then will be in a position to
know who the purchaser is.
But I can assure you, having talked to the client, that they were very interested in
(inaudible) through the various people expressing interest in the property to identify ultimately a
purchaser who cared about Waipouli/Wailua corridor and who wanted to do right by the property
and not simply maintain what we have there but we do have, and quite candidly, dated properties
along that corridor and the intent is really to enhance this project quite dramatically and to really
more than simply give it a face lift but make it more functional, more attractive, and really
spruce up the neighborhood so to speak. This is the intent of the client and once the information
is available to us and we can disclose it we will.
Beyond that, the other request I would like to make is that the permit as I understand is
only going to be good until this time next year, 2011. Recognizing that going through the
escrow, closing, letting the successful bidder assuming we are successful in closing this escrow,
have a chance to look at permits that are outstanding right now, give them an opportunity to
decide if this is still a viable project for them or some revisions or modifications need to be
made. And also recognize that the bankruptcy court as I mentioned earlier who is overseeing
this process, it is going to take several months for them to review and approve whatever we agree
to do. So conservatively we are looking at maybe 6 months and maybe as long as 9 months for
us to conclude this whole process and I would be very reluctant to come back a year from now to
tell you that everything is still confidential or that we still have a ways to go. And to me, if you
agree, we would like to ask that the permits be good until this time in 2012 which will give
whoever the successful bidder is an opportunity to again study carefully the permits, make
whatever revisions are necessary and, if need be, even report back to the Commission where they
intend to go with the Commission. And obviously if their proposal is substantially different from
what the Commission approved they would have to come back and amend the permits anyway.
One other issue that was addressed in the staff report was the issue of the relocation of
the pedestrian walkway and the bikeway. Initially it was proposed to be located on the mauka
portion of the property, the County has since communicated with us that they would like it now
to be on the makai portion of the property. And the point is we will use our best efforts to work
with the County in wherever they want to locate it and when they make a final decision we will
do our best to accommodate that. One qualification I would like to make is that please recognize
that whatever we do, again it is overseen by the bankruptcy court and we will petition the court,
we will recommend that we include an agreement with the County but at the end of the day the
court has the final say over that. But with that qualification we will continue to work with the
County and make every effort to accommodate them on the location of the pedestrian way and
bike path. And beyond that I have nothing more to add and would be more than happy to
respond to any questions the Commission may have.
Mr. Nishida: That point you made about the relocation of the bike path and the
bankruptcy court, the bankruptcy court can say that they don't want to do that?
Mr. Belles: Absolutely. In fact where we are at right now is that once the bankruptcy
court steps into the process and Mr. Blake knows this all too well, it basically stays anything that
government or the applicant can do. And we can't do anything unless we petition the court and I
will leave it to the Deputy County Attorney to advise you as well if he has a different opinion.
But all we can do is request to the court and recommend to the court but at the end of the day it is
the court that has the final say in terms of how the property is to be disposed of and what permits
are to be complied with and what conditions are to be complied with.
Mr. Nishida: So they can change... all the conditions are up for grabs in the bankruptcy
proceeding? That is the wrong thing to say but the bankruptcy court has the final say on the
conditions and everything?
Planning Commission Minutes
October 26, 2010
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Mr. Belles: Legally the bankruptcy court has full authority but courts like other
governmental institutions usually have deference to other governments like municipalities and
decisions and as long as it is not inconsistent with the asset which is what they are looking at
protecting the interest of the lender, they usually will support that. But again I can't give you a
guarantee on that but there is deference and respect for decisions made by other governmental
bodies. It isn't just simply a decision made in a vacuum.
Ms. Morikami: So that also applies to the public beach access?
Mr. Belles: Correct, we would have to petition to support that. It is our understanding at
this point in time there probably would not be a reason for either the trustee or the court to deny
the relocation unless it were to create some unreasonable encumbrance on the property and we
don't know that that would be the case.
Mr. Texeira: Has the bankruptcy court given you a deadline, they have been patient I
assume, is there a timeline in which they are going to say to conclude your...?
Mr. Belles: I am going to look over my shoulder to see because that, I don't know the
answer to myself if there is an absolute deadline. Typically they monitor these types of
proceedings until it comes to a conclusion, rarely is there an absolute deadline given but let me
just confirm that for one second. There is no deadline. And all I can add to that is that everyone
is moving in due hast to get this project back on track and get it renovated, built, and occupied.
Everyone has a financial incentive to make it happen as soon as possible.
Chair: Are there any more questions?
Mr. Kimura: What is the timeline for the bike path and will the bankruptcy affect that
timeline? My understanding is the County wants to...
Mr. Dahilig: Pretty much we are at the mercy of the Federal Court.
Mr. Kimura: So the bike path cannot continue until...
Mr. Dahilig: Again it is, yes, whatever the bankruptcy judge in Honolulu ...and I am not
familiar with what exactly has been going on with the bike path and maybe that is a more
appropriate question and maybe I can get an answer for you from either Doug Haig or our in-
house counsel but from the way the bankruptcies work, we are at the mercy of the bankruptcy
judge.
Mr. Kimura: So there is nothing in our power that we can do to confirm that this
property will...?
Mr. Dahilig: Everything is frozen and until I don't know if it is Jude Ferris or whoever,
we just have to wait and see.
Mr. Kimura: So the plans for the bike path are on hold.
Mr. Dahilig: Again I would say that it is really a question that I can get an answer for
you from ...maybe our planner would have more insight on it but I am not intimately involved
with that project.
Mr. Kimura: With us giving them a two year extension, will that affect the bike path for
two years or just until the bankruptcy court decides what they are going to do?
Mr. Dahilig: That is it.
Mr. Kimura: So if we don't give them the extension where would we sit with the
continuation of the bike path?
Planning Commission Minutes
October 26, 2010
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Mr. Dahilie: That is a good question. Ultimately once the case is disposed of and if the
County is to go so far as to institute a condemnation preceding the County will always that that
exercise of power. But in terms of a timeline, with all the moving parts that are going on it is
hard for me to give you a gage as to whether two years is appropriate or is not appropriate,
whether it should be longer or shorter. It is a request and that is it.
Ms. Belles: If I may, what I can offer and this would be subject obviously to the trustee
and bankruptcy court and to the attorney representing my client in the bankruptcy proceeding, I
believe we could probably put the court and the trustee on notice that we are looking into options
in terms of the location of the possible bike path and pedestrian walkway and that with that a
court may agree to have whatever is ultimately determined by the County of Kaua`i...again I
can't guarantee that but I can ask the client to use its best efforts to give it basically a Chinese
menu, column A or column B, it will be one the two so at least know what the range is. If the
court is reasonable and fair which most courts are and if it does not impact the value of the
property and the interests of the lender I am inclined to believe that that might be approved and
no guarantees. But new could make that effort if that is the desire of the Commission.
Mr. Kimura: If and when we do have new owners of the property do they have to come
in for a permit to us again and we can re-condition? Or however the court says it goes and that is
the end and we have no say?
Mr. Dahilie: It would take an evaluation of what the ruling is of the judge if there was a
bankruptcy, whatever plan if there is a plan that is set forth either to exit bankruptcy or if the is
an actual decree for... again there are a number of things that could happen and whatever the
court decrees we have to evaluate and take a look at that and move accordingly. Like Mr. Belles
said there are no guarantees right now in terms of what exactly we can bank on because of the
authority the Federal Court does have in this matter.
Mr. Kimura: So there is a high possibility that we might have to change the path.
Chair: The path is not part of this application.
Mr. Dahilie; The path is not part of this application. I am not a betting man, I would bet
on UH this weekend but in this particular case I don't think I would...
Chair: Any more questions?
Mr. Nishida: Question for the department. The economic conditions, normally we don't
take into consideration, we are not supposed to take into consideration whether an individual can
complete the project or not financially, right. But in this case we are sort of using economic
conditions to justify an extension. How does the department reconcile those things and as far as
the direction to the Commission, how we do we decide. Regardless of the economic conditions I
don't see a problem with what the applicant wants to do as far as the hotel renovations and the
access and the bike path and all of that. But ultimately isn't that where we are supposed to make
our decision and the economic conditions really are separate from the decision? I was kind of
concerned when they put that in the report and what is our role in looking at that.
Mr. Costa: Well you are correct in that typically the quote economic conditions aren't
necessarily justification for the Commission's decision although I don't believe a property being
in foreclosure is what we have historically used as quote economic conditions. I think it is a
special circumstance beyond economics in terms of the state of the economy which is again; we
don't normally use that as justification for or against. In this case it is a special circumstance that
was recognized a year ago and that is what is being asked today.
Mr. Dahilia: So Mike, what would happen ...not so much about this one, but say we
make changes based on because we think the project is not right but the economic conditions are
a certain way. I don't know, can you add anything?
Mr. Belles: Let me say a couple of things. There are a couple of rules that come into
play that I think all of you have heard ad nauseum but one is that permits run with the land and
as long as whoever the subsequent permittee is substantially complies with the conditions that
Planning Commission Minutes
October 26, 2010
8
you previously imposed on the prior applicant, as long as there is substantial compliance that
landowner, that developer is free to do that. Only if the person stepping into the shoes of the
prior permittee makes substantive changes, then you have the authority to say come back for a
new permit or a different permit.
Mr. Nishida: What would happen if say we think that it cannot done, if we think the
conditions would warrant like a non-action we couldn't yank the permits or...
Mr. Belles: Typically not and I think just following the precedent of what this
Commission has done and the history since the adoption of the CZO in 1972, that has rarely been
a consideration. It is actually a rule and requirement articulated in the State Land Use
Commission rules and Reg.s but it is not a standard that has been adopted by the County of
Kauai. And as said by another Commissioner, you know these are extraordinary times and it
has required a deviation from standard operating procedures in terms of how landowners and
developers proceed with their projects as well as how government has worked with landowners
and developers. And it has probably been one of the first times that I can remember in 33 years
of doing this where government has actually worked hand in hand with the development
community and with landowners whether it is a single family residential homeowner or a large
developer just because of the necessity of the times. And we are seeing time honored institutions
collapsing over night and we are seeing economic stresses that we haven't seen since the great
depression.
So I think in light of that and in light of the extraordinary circumstances, I don't believe it
is unreasonable to deviate from prior precedent and the other thing I point to you is that under the
Special Management Area Use Permit that you issued, remember the SMA is very broad in the
authority that it gives to the Commission. It allows you to look at social, economic, historical,
all those types of issues that typically don't come into play with other permits which are a little
more straight forward and have more narrow confines in terms of what your discretion is. The
SMA permit gives you a very broad authority and it is only in those cases of abuse of discretion
where you can be taken to task on that but I do believe that the state of the economy in this day
and age for not only this project but any project is a very valid consideration for the Planning
Commission and for the County of Kauai. Government on a national State and County level is
subsidizing private enterprise like it never has before in terms of promotions, economic
development and all these types of things. Question if you asked that 3 years ago should we be
doing this I think the uniform response would have been absolutely not, this is no place for
government. But I think we are in a new world order today that necessitates these extreme
responses both by government as well as by extreme initiative and creativity on the part of
individual landowners and developers however large or small they may be.
Mr. Nishida: So if you withstand the time limit longer than the normal 1 year you are
saying that because these are extraordinary circumstances, once the economy gets back we can
go back to the 1 year extensions?
Mr. Belles: Correct, because the precedent and I think the factual foundation for
everything you are doing is already set in the staff report that was prepared by your staff and just
what is happening in the world, the nation, and the State and the County today. It is happening
every day at every level that I am aware of and these are things that were unprecedented 2 years
ago. I don't know if there is an alternative, you can always just simply say no but I don't know
that most people with families and friends could survive under those circumstances. And any
permit under the SMA laws and your own rules and reg.s are 2 years unless otherwise
established by the Commission so you still retain that authority.
Mr. Blake: A comment on the "our inclusion", quote, in light of the continued economic
climate that this refers to the national climate and not a personal situation since we have stated in
the past as was already stated that your personal situation, economic situation does not come into
play in the final analysis of whether we do something or not do something. That was my
concern.
Staff: This statement was actually made in the December, 2009 staff report by Mike
Laureta and it was continued on this one, just so you know.
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October 26, 2010
9
Chair: Any more questions for the applicant, thank you Mike. Is there anybody in the
public that would like to testify on this agenda item? Seeing none I will bring the meeting back
to order, what would be the pleasure of the Commission?
Ms. Morikami: Mr. Chair, on item A.2, move that we approve the request from the
applicant as recommended in the staff report for a 2 year extension.
Mr. Kimura: Second.
Chair: All those in favor say aye, opposed, motion carried.
On motion made by Paula Morikami and seconded by Jan Kimura, to approve staff
recommendation, motion carried unanimously by voice vote.
COMMUNICATION (NONE)
SUBDIVISION (NONE)
UNFINISHED BUSINESS
Proposed adoption and amendment of administration 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 Planning- Commission.
4.
[Staff Report received 10/12/10, hearing closed 10/12/10.1
Supplemental Staff Report pertaining to this matter.
Deputy Director Imai Aiu read staff report (on file).
Chair: Commissioners, are there any questions?
Mr. Nishida: The changes are bolded and underlined?
Mr. Ain: In what follows, the changes proposed by the original draft of the rules are
underlined, the changes proposed either by the department review or the Small Business
Committee review are underlined and bolded as a way to try and differentiate between the two
different sets of amendments.
Mr. Nishida: But both bolded and underlined is what we are approving?
Mr. Aiu: Yes, is addition to the existing rules.
Mr. Nishida: So go over that again? The underlined one is...
Mr. Aiu: Is what was proposed by the original... by the first proposal that came before
the Commission, those rules then went before the Small Business Committee, they suggested a
second round of revisions. Those revisions are noted, bolded and underlined.
Mr. Nishida: The nonconforming use certificate appeals, this is an appeal of the decision
of the Director.
Mr. Aiu: Yes, the Decision of the Director.
Mr. Nishida: So this is the process to either revoke or can someone ...what are the
conditions that somebody contests that approval shouldn't have been given?
Planning Commission Minutes
October 26, 2010
10
Mr. Aiu: False or misleading information on the application or...basically that is what it
comes down to now is false or misleading information of the application, proof that they did not
qualify. If they have some kind of evidence that can show that they did not qualify for a
nonconforming use certificate, and should not have been given one due falsified history of prior
application or history of continued violations that have gone on past the period that they should
have remedied those violations, those types of things. What has notably been removed is the
standards for loss of quiet enjoyment, that is no longer grounds by which you can petition for
revocation.
Chair: But on the new Chapter it is not in here, not struck out. Where is it?
Mr. Ain: It is on 6.a, I believe and it is under "Persons may appeal the Director's
decision with regard to the NCU", "Any member of the public", 6.a.1, "who has compelling
evidence that an NCU was granted based on false or misleading information provided by the
applicant."
Mr. Nishida: So where the rules are silent the provisions of Chapter 6 shall govern?
Mr. Aiu: Yes. Chapter 6 already sets up our contested case and agency hearings so we
would rely back on those rules rather than rewrite an entire new set of rules for this specific type
of (inaudible) addressing specific cases within the specific hearing instance.
Mr. Nishida: On the 6.a-5, "Filing of Documents", "A completed petition shall be filed
with the Planning Department," and that is the petition to either contest the denial of an NCU or
revoke the NCU based on the conditions?
Mr. Ain: Yes.
Mr. Nishida: "Upon filing the Planning Department will assign a hearing date to convene
with at least 120 days from the hearing date, or shall within 120 days request to the Planning
Commission that the matter be postponed." This is what was added. So what it says is "A
completed petition shall be filed with the Planning Department. Upon filing the Planning
Department will assign a hearing date to convene within at least 120 days from the hearing date."
Mr. Ain: That is an error, sorry. That should say "filing date."
Mr. Nishida: Imai, can you read the corrected one?
Mr. Aiu: "Completed petition shall be filed with the Planning Department. Upon filing
the Planning Department will assign a hearing date to convene within at least 120 days from the
filing date, or shall within 120 days request the Planning Commission that the matter be
postponed when the amount of pending Commission business includes due consideration of the
matter."
Mr. Nishida: So the addition to that allows up until the hearing date to postpone?
Mr. Ain: Yes. So within 120 days you either have to hear it or you guys have to decide,
with the applicant getting to come up and present their case, decide to postpone it. But either
way they in some form get their time before you.
Mr. Blake: Just for clarification, who can file for an NCU, a nonconforming use permit?
Mr. Aiu: To apply for a nonconforming use permit? Any operator of a TVR who, well
practically anybody can come in and apply, really, you fill out the application and you apply.
Those who will be granted a nonconforming use certificate are those who can prove operation
prior to March 7, 2008, they can prove the prior operation and meet those qualifications.
Mr. Blake: And those are for TVR's outside the VDA?
Mr. Ain: Outside the Visitor Destination Area, yes.
Planning Commission Minutes
October 26, 2010
11
Mr. Blake: So if everyone who has one now, has a valid permit now, applies for renewal
next year, we will have the same amount next year as we have this year if everyone applies?
Mr. Ain: Yes.
Mr. Blake: And if someone who is operating validly right now does not apply next year
and then applies again the following year in 2012, are they out?
Mr. Ain: They would be out, yes, because they would have basically lapsed. The
assumption would be that they have voluntarily abandoned their use for a year.
Mr. Blake: And therefore forever foreclosed.
Mr. Ain: I hate to say always and forever because there are all sorts of appeal courses
that go beyond this Commission that I cannot comment on what would happen there and then but
for the purposes of what happens within this authority, yes.
Mr. Costa: Based on the nonconforming section of the CZO a nonconforming use the
that ceases for a year or more now has to comply or if that use has been outlawed they cannot
reestablish it.
Mr. Blake: So if it's a nonconforming use and it has lapsed they can reapply but they are
precluded from using as a reason for reinvigorating their permit the fact that they had operated in
the past.
Mr. Costa: Yes, saying that they operated in the past is, I guess, claiming that they are a
quote nonconforming use and if that nonconforming use ceases for a year or more then it cannot
be reestablished.
Mr. Nishida: When is the date of that? The date must have happened already where the
one year starts.
Mr. Ain: It is now an annual renewal so it is upon your approval.
Mr. Nishida: Were you asking about people that didn't apply?
Mr. Blake: No, if they were legal last year and then failed to apply this year that their use
lapses.
Mr. Nishida: Right, so what is the date, when does the one year start?
Mr. Ain: The one year is annual so it starts upon the approval of their application. Or are
you referring to something else?
Mr. Nishida: I think what he said is he asked what happens if they don't apply?
Mr. Ain: Well if they don't apply, exactly what Commissioner Blake described. I think
you are speaking of somebody who doesn't even go through the first application process.
Mr. Nishida: What is the date, they have one year to apply, right?
Mr. Ain: Yes. That is the date of the passage of the latest ordinance which is, I cannot
quote it off the top of my head but it is sometime in September, right?
Mr. Dahilig: August 16th or 18th.
Mr. Nishida: So August 16th or 181h and that is written in the law that you have one year
to apply?
Mr. Dahilig: Yes, the provisions of ordinance 904 prescribe that from the date that the
Mayor had signed off on legislation the applicants for NCU's would be required to come in
Planning Commission Minutes
October 26, 2010
12
within 60 days to avoid paying a 1,500 dollar penalty upon which if they have up to a year
between the date of the legislation and the one year time period to come in and provide the
application. So if they came in on the 61St day they would have to pay 1,500 dollars and still be
able to have their application processed. Upon which time no applications would be accepted
afterwards because it would be at the presumption that if you did not apply within a year of the
legislation becoming active by signature of the Mayor that you are voluntarily abandoning the us
and therefore would be affirmative upon the applicant to prove why their reasons why they
didn't apply was not voluntary. So it becomes their burden to bear but that is the County's
presumption based on the ordinance 904.
Mr. Nishida: And if a property is sold before application, what happens before or after an
application is made when a property is sold? A two part question, the property gets sold; they
never applied for the NCU, what happens?
Mr. Dahilig: The physical activity of the use we would perceive that as running with the
land, it is not a permit but for instance let's say on January 1st the legislation was signed just for
the sake of the argument and that the use was running prior to March 7, 2008. But in between
that time let's say someone comes in on January 1st of the following year or January 2nd of the
following and they try to apply, we would still look at it as if-the transfer of ownership does not
change the actual function of the legislation.
Mr. Nishida: So they could use the previous owner's paperwork and whatnot in order to
justify the continued use of the...
Mr. Dahilig: That is essentially what the case would be. The way the legislation is
written it is not who uses it whether the property has been used.
Mr. Nishida: And that answers the question whether it can be transferred. So these
NCUs can be transferred (inaudible).
Mr. Dahilig: That is the understanding that given the theory of Planning nationwide
especially in States like California and New York, you would look at permits as running with the
land and you wouldn't necessarily have those types of ownership conditions being a trigger for
these permits to lapse. And that is I think the position of both myself and my compod. Ian Jung.
Mr. Nishida: Soto justify the permit it is not just have a GE Tax license. What do they
need to justify, what is the department using to say that it was in operation prior to March 7?
Mr. Ain: Besides the GE and the Tax license we are looking at basically proof of
payment of those tax licenses prior to the March 7th date and records of stays prior to the March
7m date.
Mr. Nishida: All those things must be in evidence?
Mr. Aiu: All those things must be.
Mr. Nishida: If one of them is missing...
Mr. Aiu: If one of them is missing we will inform the applicant that it is missing and
then at that time they have x amount of time to make that up. Should the information stay
missing for a year then they will have been said not to have proved their case and the same will
happen to them.
Mr. Nishida: So technically an application... so everybody who applies gets it.
Mr. Aiu: As long as they can prove.
Mr. Nishida: But say something is missing; they are going to get their application? It
sounded like they could get their ...oh, you are saying they are not going to get their approval.
Mr. Aiu: They are not going to get approval until they provide the information, yes.
Planning Commission Minutes
October 26, 2010
13
Mr. Costa: The requirements are in the ordinance and if they don't have something
included then it is an incomplete application until made complete.
Mr. Nishida: And then it cannot be approved because it is incomplete.
Mr. Aiu: Exactly.
Mr. Nishida: Has the department approved TVR applications up to this point, have some
applications been approved?
Mr. Aiu: We have received new NCU applications. I cannot right now say if they have
been approved or not. I am assuming you are talking about under the new ordinance.
Mr. Nishida: Yes.
Mr. Aiu: I honestly would have to go back and look at the records to say definitively. I
know we have some that have come in under the new ordinance that meet the qualifications,
whether we have said you are approved yet and have come to that point in processing I really
can't say at this point.
Mr. Nishida: So those people that are approved under the previous wave of applications,
are their permits still good?
Mr. Ain: Their permits are still valid, yes.
Mr. Nishida: So you have some NCU permits out there that are good and valid.
Mr. Aiu: We have many out there that are still good.
Mr. Nishida: The new applications are the ones that are in the process of being approved.
Mr. Aiu: Yes.
Mr. Dahilig: If anything was granted under the provisions of ordinance 864 and 876,
those are considered still valid and running.
Mr. Nishida: And also some of those were initially denied and then we approved them
and they are still valid.
Mr. Ain: They are still valid, yes, like Mike said they were approved under the
(inaudible).
Mr. Costa: Provided they have been renewing it.
Mr. Nishida: Because some of them the year is up already.
Mr. Aiu: Yes, some of them the year is up already.
Mr. Costa: We are actually into the second year in some.
Ms. Morikami: I have a question, so based on that ordinance 904 do we happen to know
how many applications came in for the NCU permits since the 60 days has lapsed?
Mr. Ain: We don't have a solid number but our estimates are running at about 100.
Ms. Morikami: So 100 applications approximately have come in within the 60 day
deadline.
Mr. Aiu: Yes.
Planning Commission Minutes
October 26, 2010
14
Chair: But he Commission won't be reviewing those though, the department will.
Mr. Costa: That's right. We have received just under 100 I believe and roughly at least
based on...we have gone through roughly half of those to differentiate which ones require a Use
Permit and are on Ag, lands. And based on that I believe it is roughly 60% of those applications
that we have gone through are on Ag. land so there is roughly 40% that they didn't file the first
time around and are filing now that are not on Ag. land.
Chair: Let me see if there is anybody in the public that would like to testify on this
agenda item.
Mr. Aiu: Chair, can I just make one clarification. You did say that the Commission
wouldn't be seeing any of those 100.
Chair: Yes because the department...
Mr. Aiu: You won't be seeing any of those that are nonconforming use certificates
solely. You will be seeing the ones that are on Ag. land because they do require a Special
Permit.
Chair: Right. Seeing no one in the public that would like to testify I will bring the
meeting back to order. What would be the pleasure of the Commission?
Ms. Morikami; Mr. Chair, for item D.1, move that we approve the proposed adoption
and amendment of administrative rules pertaining to the practice and procedure of the County
Planning Commission as stated in the staff report.
Mr. Kimura: Second.
Chair: All those in favor say aye, opposed, motion carries.
On motion made by Paula Morikami and seconded by Jan Kimura, to approve staff
report, motion carried unanimously by voice vote.
Commission recessed for lunch at 12:38 p.m.
Meeting was called back to order at 1:39 p.m.
CONTINUED 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 K3pu Road
and Aakukui Road intersection, Kauai, further identified as Tax Map Keys 3-3-001:001, 3-3-
018:002, and 3-1-002:001, and affecting an area of approx. 5 acres = Outfitters Kauai, Ltd.
[Director's Report received 9/28/10, hearing continued 10/12/10.1
a. Testimony (10/12/10) from Chris Kauwe.
b. Agency comment from United States Department of Interior. Fish and Wildlife
Service, Kauai National Wildlife Refuge Complex (10/12/10.
Staff Planner Kaaina Hull read supplement to the Director's report (on file).
Chair: Commissioners, are there any questions for the planner? Seeing none, I will call
the applicant's representative up if there is anything they want to add.
Mr. Shawn Combs: Good afternoon Mr. Chairman and members of the Commission, my
name is Shawn Combs, I am assisting the applicant.
Mr. Rick Haviland: Rick Haviland, President of Outfitters Kauai.
Planning Commission Minutes
October 26, 2010
15
Chair: Is there anything that you want to add as read by the planner?
Mr. Haviland: I would like to thank the members of the Planning Department, Mr. Ian
Costa, Kaaina Hull, Imai Aiu, Lisa Ellen Smith and all those that helped us with the application,
thank you.
Chair: Commissioners, are there any questions for the representative or the applicant?
Mr. Nishida: Can you go and point out the structures (inaudible).
Mr. Haviland: The different parcels that we operate on are quite large. We have the
Kipu Ranch parcels and the Grove Farm parcels. We have a key here on this map, it is color
coded, white is pasture lands, green is wooded, steep lands, and we have a color coded foot
trail/van route, farm wagon/bike routes, and existing zip-lines are in black. Proposed future zip-
lines are in red. For the most part you'll see that there are two areas and for the most part we
access this area from the river by kayaking, returning by motorize canoe and for the most part we
access this area by van from Kipu Road. We connect the two areas across the existing ranch
roads using both farm wagons that are pulled by four-wheel drive tractors and vans.
We have our existing facilities plotted on here and we operate the tours, the programs
operate in different ways, they are packaged in different formations. One way that people would
take the zip-line tour with us would be to come onto the ranch right here and to ride zip-line 1, 2,
3, and return by canopy walkways. The proposed future zip-lines would tie into the back end of
those existing lines, future zip 7, future zip 8 and 9. Coming over here to this area the existing
zip-lines go from here, there is a canopy walkway to zip-line 4, walk to zip-line 5 and 6. Now in
this area the proposed future lines would be at the front end so in that case future zip-line 10
leads to 11, leads to 12 and then ties into the existing.
Mr. Costa: Rick, what is a canopy walkway?
Mr. Haviland: A canopy walkway would be a cable suspended bridge or walkway that
goes through the tree tops. Ours for the most part start at ground level and go over real steep
terrain like for example this one, you can see by looking at the contours. It is just a pleasant,
pretty way to go through a beautiful area and see interesting things, have a good time, learn
about the area.
Mr. Kimura: So they want to go from that bottom section of zip-lines (inaudible).
Mr. Haviland: They could do it either by van or by farm wagon going on the Kipu Ranch
Road system from here to here. The scarlet color here indicates a van route and the yellow line
indicates a four-wheel drive tractor farm wagon route.
Mr. Kimura: Have you guys worked out your differences with the Kuleana land owners?
Mr. Haviland: I spoke with Ms. Fernandez. I had correspondence with here, she asked
me if I would send her this information which I did and I enclosed a letter saying that I hoped we
had addressed her concerns and that I hoped she would be able to support our application.
Ms. Kimura: Did she respond?
Mr. Haviland: I have not heard from her. Her Kuleana property is located right in here,
it is in yellow.
Mr. Costa: What activity do you do that is adjacent to her Kuleana?
Mr. Haviland: We actually have quite a distance between that property and our activities
and we don't really have anything right in that vicinity.
Mr. Kimura: So there is no kayak ride going up there?
Planning Commission Minutes
October 26, 2010
16
Mr. Haviland: No sir, the navigateable end of the river is down here so when we get to
here, this is where we land our kayaks.
Mr. Kimura: Okay.
Chair: Where are the falls?
Mr. Haviland: Kipu Falls is, I believe, at this contour line right here.
Chair: And that is all Grove Farm's property, right?
Mr. Haviland: Grove Farm on one side, William Hyde-Rice on the other.
Chair: And who is regulating that or governing that?
Mr. Haviland: As far as my understanding there is no regulation of that area, people
come and go freely. We don't invite people to come there and we don't tell people not to go
there, it is up to the landowners and I don't believe that there is any regulation of the area.
Chair: So what are the chances of someone jumping on the future zip 3?
Mr. Haviland: That is a good question, we lock them up. We lock them so that you can't
get on them and they are posted with signs.
Mr. Blake: Is there a pier or landing, a kayak landing spot in the Hulaia River?
Mr. Haviland: Yes, there is a small wooden dock or excuse me, I am not sure I
understood the question correctly, could you come again with that Hartwell?
Mr. Blake: Is there a pier at the upper reaches of the Hulaia River?
Mr. Haviland: I misunderstood, no there is not. At the Ndwiliwili small boat harbor we
have a small pier but at the upper end we land in the shallow water and step out of the kayaks.
Mr. Blake: One of the members of the public last week, I am not sure why she didn't ask
this, I think she came late, asked it the trails, waterways, docking and parking facilities are open
to the public.
Mr. Haviland: The trails that are on private lands are not, our landowners don't want
that. The parking facilities at Nawiliwili small boat harbor, those are a public facility. Were
there other questions that I didn't address?
Mr. Blake: And you said there are no docks up river?
Mr. Haviland: No.
Mr. Blake: Thank you.
Mr. Texeira: Your zip-lines, do they cross the streams?
Mr. Haviland: Some do and some do not.
Mr. Texeira: The ones that do, what is the height of the zip-lines as it goes over the
stream?
Mr. Haviland: One of them, two of them are quite tall, well over 100 feet, one of them is
about 60 feet I would say.
Mr. Texeira: So does it prevent anybody else from kayaking up there, anybody that is
kayaking in that area?
Planning Commission Minutes
October 26, 2010
17
Mr. Haviland: No, the river is for the use of the general public, it is a public resource.
Mr. Blake: Rick, the farm wagon tours occur on a private road or a County road?
Mr. Haviland: Private.
Mr. Kimura: How many tours a day do you take on each zip-line?
Mr. Haviland: That really varies and it is based on demand so some days we may do
only a couple, other days we may do 6 or 8 or more.
Mr. Kimura: How many guests per tour?
Mr. Haviland: The number of guests per tour varies based on the transportation that we
are using. The tours where we use our farm wagon and our motorized canoes, those tours max
out at 20 passengers, the tours where we use the 15 passenger vans, those max out at 14
passengers.
Mr. Kimura: When you say motorized canoes (inaudible) go with farm wagon or bike
route?
Mr. Haviland: If they kayak up the river then they return back down the river on the
motorized canoe.
Mr. Kimura: Say you want to take them on a zip-line from the kayaks.
Mr. Haviland: If they go on the zip-lines from the kayaks then what they will do is they
will kayak up to here and they will walk to an agricultural road, get on a farm wagon, and ride to
here. Then they will take the zip-lines which lead them to a trail that takes them back down to
the river where they will get on a motorized canoe and return to the Nawiliwili small boat harbor.
It is kind of complex.
Mr. Kimura: So those that come up with kayaks would only be able to access the zip-
lines on the bottom section there?
Mr. Haviland: Unless we transport them by farm wagon or van over to here which we
sometimes do. The tours are packaged different ways to hit what people want to do, how much
time they have available, how much they want to do.
Mr. Costa: So then if they just do the tour that is limited to the lower zip-line area what
length of time a tour is that versus the other?
Mr. Haviland: If they do the version where they kayak, do the zip-lines, ride the farm
wagon, and then hike back down and take the motorized canoe back. That is our longest tour.
That is about an 8 hour trip. We have other trips that packaged to be only 3 and 4 hour tours so
if people want to do a half day thing that they can have that or if they are up for all day they can
do that.
Mr. Costa: So to do both zip-line areas that would not be that 8 hour tour?
Mr. Haviland: No. The way we have things packaged now, in order to do this zip-line
and this zip-line you would come with us onto the property on a van, go here, then load up and
come over here and do these and then go back out the same way you came in.
Mr. Costa: And the length of time on that?
Mr. Haviland: That would be about a 5 hour and trip that is door to door.
Chair: You guys are not doing the ATV tours too?
Mr. Haviland: No.
Planning Commission Minutes
October 26, 2010
t8
Mr. Costa: One question, what is the length of the zip-lines, both the longest zip-lines,
the existing ones...
Mr. Haviland: The longest one existing right here is about 1,800 feet speaking
approximately.
Mr. Costa: And proposed?
Mr. Haviland: A proposed one would be getting closer to around 2,000 and the exact
locations would be subject to suitability. So these termination locations could move a little bit
but these are pretty close to the areas depending on things like...
Mr. Costa: Where you mount the supports.
Mr. Haviland: Exactly.
Mr. Kimura: Do you have any type of silt fencing to prevent mud runoff into the streams
because I notice you guys cross a lot streams here with your wagons and your vans. Is there any
type of silt screening to prevent mud into the streams?
Mr. Haviland: Actually we don't cross any streams where there aren't existing bridges
that I am aware of with our vans and farm wagons.
Mr. Kimura: How about your hiking trials? Over a period of time there is going to be
mud.
Mr. Haviland: Yes, we haven't found there to be problem with erosion, we are pretty
careful about that. We do have places where we put down ground cloth. I guess in a way you
could call it silt fencing but we are pretty careful about erosion and trial maintenance. We are
sure open to having experts help us with recommendations and we have done that, we have had
Charlie Cobb Adams work with us on trials and we love to learn and do better so we are wide
open to that.
Mr. Kimura: I just thought you guys had something in place already.
Mr. Haviland: We do have some.
Mr. Texeira: You know that overhead, the zip-lines crossing the stream, the Hulaia
Stream, how many current crossings do you have over the stream?
Mr. Haviland: Right now over Hulaia, one.
Mr. Texeira: Just one and how many are you proposing?
Mr. Haviland: Three more.
Mr. Texeira: Who controls the air space over the stream?
Mr. Haviland: The landowner's boundaries are contiguous so if you look, this is a TMK
here that is blown way up, and it doesn't show the river as such but the river follows the
boundary line and the boundary is on the William Hyde-Rice side of the river. So I am not
technically knowledgeable about the question that you asked but there is not a public parcel in
between the two, the boundaries are contiguous.
Mr. Nishida: In putting those zip-lines up do you have to get any kind of permit from
somebody or you can just put up a line and you don't have to... well I guess it more a question
for the department. Did you have to do any of that permitting for those high, long, zip-lines
other than here?
Mr. Haviland: No.
Planning Commission Minutes
October 26, 2010
19
Staff: I will just interject here Commissioner Nishida they did get a permit to operate the
kayak tours on Hulaia Stream from DLNR however they haven't received a permit to operate the
zip-lines specifically across Hulaia. But at the same time we have submitted for comments in
this application to the Department of Land and Natural Resources and over the past month and a
half they have not sent back any concerns.
Mr. Nishida: How high over the stream are those lines?
Mr. Haviland: The existing line is about 60 feet over the stream.
Mr. Nishida: The proposed lines.
Mr. Haviland: The proposed ones will be taller, they will be pretty tall. I would say over
100 feet.
Mr. Nishida: Kaaina, do you see any other places to go for comments, or Ian? Nobody
had control over that kind of stringing a line...
Mr. Costa: Other than DLNR I am not aware. I have heard the Fire Department express
their concerns before on knowing where the zip-lines are and that was more a caution when they
do brush fires and they fly the helicopter around with the bucket they kind of need to know when
they might snag lines.
Mr. Haviland: We do work with the Fire Department in fact we have given the Fire
Department the combination to our locked gate at this location so that they can access the Kipu
Falls area from our lower trails to do rescues and they use that area to access for safety purposes.
Mr. Nishida: And you sent this to Fire Department?
Staff: We sent this to the Fire Department. They had no comments.
Mr. Nishida: They know the height of the lines and all that?
Staff: Yes, the entire application was sent to them.
Mr. Kimura: Did they comment?
Staff: No.
Mr. Costa: I would imagine the zip-lines are typically below the canopy of the trees.
Mr. Haviland: They are close, they go from ...they are consistent with the rim of the
valley and they dip down close to the canopy of the trees.
Mr. Costa: So in many cases they are actually above the canopy.
Mr. Haviland: Yes.
Mr. Costa: And then just to clarify, I think you asked about how many crossings? I see
one crossing on Hulaia Stream but possibly two crossings on the unnamed stream or is that a
named stream?
Mr. Haviland: This is a seasonal stream here and we do, we cross this stream and we
swim at the stream. This is a water zip-line.
Mr. Costa: A water zip-line?
Mr. Haviland: Yes. All of our zip-lines except that one are lines where people are
harnessed up in waist and chest harnesses, we put them on the cable, we take them off, there is
no way anybody is coming off that cable unless we put them on or take them off. But this one
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October 26, 2010
20
down here is at a little swimming hole and it is a short, low zip-line and it is just a guava stick
tied on to a cable and people hold on and they go out over the water and they drop down about 8
feet into the water. It is fun for swimming. It is probably about 75 feet long.
Mr. Texeira: Do you have bathroom facilities up there?
Mr. Haviland: Yes and they are plotted on the map. We have 7 portables in 4 different
locations and they are indicated by these stars on the map. We try to do a really good job on the
sanitation and I think we do. It is a good, clean area, it is important. We try to pay attention to
that, thank you.
Mr. Costa: It looks like based on your drawing you have two porta-potty locations in
each zip-line area, is that right?
Mr. Haviland: Yes. When we do the future lines, if we are able to, if there are more
called for we are fine with doing that. We want to do a real good job on the sanitation.
Mr. Nishida: Once you string the lines, well how thick is that cable?
Mr. Haviland: Half inch.
Mr. Nishida: It has to be clear cable from one end to the other because it rolls on a pulley
or something?
Mr. Haviland: Yes it is called galvanized aircraft cable.
Mr. Nishida: I kind of have a problem with the thing stringing across the valley like that.
I wonder if we could get something, it would be the Fire Department. That would be one and
what Ian brought up. What would be the highest it would go Rick?
Mr. Haviland: Probably around 125 feet, 100 feet from the ground but the distance above
the trees wouldn't be that great.
Mr. Nishida: Yes, but right over the river is probably where it would be, the open spots
would probably be the highest, right over the river.
Mr. Haviland: Yes.
Staff: Rick, just so you understand what the Commissioner is getting at, is there an area
for which the lines are crossing that there really is no tree cover or it appears to be 100 feet or 80
feet from the ground. That is to say...
Mr. Haviland: I would say no, it is pretty heavily forested throughout the valley, it is
very overgrown.
Staff: And the streams that you are crossing are seasonal streams or are they like the
open Hulaia Stream in which say if individuals are accessing, can they navigate those area
streams that you folks have your lines across right now or are proposing to have them?
Mr. Haviland: We are above the navigatable end of the river by a whole lot.
Mr. Nishida: That one 2,000 foot proposed line, the stream is like 10 feet across and
shallow or...
Mr. Haviland: I would say right there I would guess it to be about probably 25 feet
across and shallow.
Mr. Nishida: And much of it is wooded then except for those brief spaces that might be
100 feet.
Mr. Haviland: Yes, it is a heavy canopy of trees down there.
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21
Mr. Nishida: And how much above the tree line are you?
Mr. Haviland: The trees are pretty tall. I would say it would be within 20 to 25 feet of
the tree tops.
Mr. Nishida: Your clients, are they always guided in that area?
Mr. Haviland: Yes.
Mr. Nishida: So if they are missing ...they are never missing long because they have to
get on a van and they are not allowed to roam around.
Mr. Haviland: No, they are guided tours. That is what we do, that is our agreement with
the landowners. People are supervised.
Mr. Kimura: Have you guys come across any historical sites yet on the property?
Mr. Haviland: No, we were in consultation with the archeologist and there is a lot of
history in the valley but for the most part we are not in the areas.
Mr. Nishida: I have one more question. The zip-line basis, can we get a description of
the pole and the depth of the foundation and manner of construction for the bases for these zip-
lines?
Mr. Haviland: Where we use the poles they are, the size of the pole and the size of the
hole is called out by the designer. For the most part the poles are about 8 feet deep; they are
slightly wider than the base of the pole. We use a concrete disk at the bottom of the hole that
receives the pole. The poles are wrapped in stainless steel termite barrier before they are set and
then the earth around them is compacted as they are set with a hydraulic ram and the anchors are
also the size of the anchors and the number and location of the anchors are called out by the
engineer. And they are for the most part big concrete disks that are set in long cylindrical holes
that are drilled at an angle and then there is a long big heavy steel rod that goes through the disk
and comes out of earth. And then the backfill is done in stages, first with rock and then with soil
and again it is compressed. And then guy lines go from the cable attachment bolts down to the
anchors and cable guys are placed.
Mr. Costa: Those would be similar to the guy wires for utility poles?
Mr. Haviland: Yes.
Mr. Costa: With the concrete plugs on the end.
Mr. Haviland: Yes.
Mr. Nishida: Your equipment would be like a backhoe or excavator.
Mr. Haviland: You know what works really well Jimmy, is a bobcat with a auger on it
and then line trucks also are useful for that, they have big augers and they also have the crab
claw that can handle the pull. And they also are the equipment that has the hydraulic tamper on
it.
Mr. Nishida: The pole site, the base sites are well away from the river then.
Mr. Haviland: Yes.
Mr. Texeira: What about the opai, any opai that comes down that stream at all, the
smaller streams and the oopu, any historical records of oopu?
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22
Mr. Haviland: We will occasionally see the opai and I would guess that there are oopu in
the stream but I think not so many. I was talking with Don Heacock about that and he feels that
the tilapia and bass and other species have done a number on those natives unfortunately.
Mr. Blake: Did you distribute this today?
Mr. Haviland: No. That is our brochure but I didn't distribute it.
Mr. Blake: I just noticed it says Po`ipn Whale Watch, sea kayaks (inaudible). My
question was whether you were permitted for that activity.
Mr. Haviland: As you know we have a permit to launch our kayaks at Kukui`ula Small
Boat Harbor and as you also know we have been working with the Lawa`i Kai Advisory Group
on that.
Mr. Blake: So that is still in progress?
Mr. Haviland: Yes. The next meeting is November 91h.
Mr. Blake: I don't have any other questions.
Mr. Texeira: Going back to your crossings over Hulaia Stream, you said you have one
existing and three proposed.
Mr. Haviland: Yes.
Mr. Texeira: I have a problem with the crossing over the stream, it just seems like that
should be kind of untouched when you cross the stream. Is that the only choices you have? Do
you have to cross the stream? Especially you are proposing three more stream crossings, right?
You could not maybe route some of those?
Mr. Haviland: Well those locations would work well based on the terrain and the
topography and that is important for laying out zip-lines. We surveyed the area and that is what
we applied for. I think that it would make for an excellent zip-line that would be fun and
exciting and sell well and that is why we applied for it.
Mr. Kimura: Where is this?
Mr. Haviland: That is on Kipu Ranch, which would be right about here.
Mr. Kimura: I was asking him about this picture here, this tunnel they have going
through.
Chair: Are there records of that Kaaina? Rick, you can take your seat.
Staff: I believe that is an existing water irrigation tunnel.
Chair: Was there an archeological study for this project or did they need to do that?
Staff: One wasn't required. DLNR/SHPD did not come back with any comments or
concerns about this particular application.
Mr. Blake: The last time you were here one of your employees talked about maintaining
the original names of the different terrain features and not making up names
Mr. Haviland: I recall that.
Mr. Blake: What is your understanding of what Hulaia means? Do any tourists ask you
what the stream name means?
Mr. Haviland: You know I couldn't tell you what it means Hartwell.
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23
Mr. Blake: It might be interesting.
Chair: If there are no more questions then I will see if there is anybody in the public that
would like to testify on this agenda item. Is there anybody in the public that would like to testify
on this agenda item? Maybe you can tell us what it means.
Ms. Cheryl Lovell-Obatake: It is the thrusting. For the record my name is Cheryl
Lovell-Obatake. Because of the fertility of the area and its soil the thrusting was sexual
intercourse of the land, Hulaia. I want to thank Mr. Haviland for the TMK's that he has
exhibited on the board. I think it would be interesting to refer to the TMKs more than the GPS
or GIS for the fact that identifying the Kuleana lands, especially 331, especially parcel 1. You
will see that there are a lot of Kuleana lands along that area. Like I said I did some studies on
this property for a family, the Halemanu family and the Charmans, Mr. Blake is I know
somewhat related to. But I have some concerns regarding the report which goes back to 1998
regarding the U.S. Fish and Wildlife Service and I am so surprised that DLNR has not responded
to the questions that you may have been asking or comments that you need from them of
historical properties. They should be adhered to, to this Commission.
I am under the understanding that the State Historic Preservation Division is absent.
(Inaudible) even records are going to be leaving Kauai sometime this week regarding all of our
records of our historical properties, even grave sites, this week. I would advise you to find out
more about it because since things like the application that is coming about, how can you refer
back to any recordation regarding particular areas. It is very important for native Hawaiians and
for Kuleana landowners especially.
But I want to get back to...there was a letter from Mayor Kusaka in April, 2005, which
she had requested that the U.S. Fish and Wildlife Service be informed about the different
changes and even kayak applications that have been coming about and has been about. I am very
perturbed about Shannon Smith's letter that is in the record, it has nothing to do with wildlife,
but just to say mahalo for the tour, blah, blah, blah. There is nothing environmental that the
Wildlife has put into these records. I have distributed to you the memorandum of agreement. I
have distributed to you the minutes of our meetings regarding the memorandum of agreement
with Hulaia Kayak Association. And looking at the amount of people, 90 times 6, that is what,
540 a week plus another operator, another 540. That is 1,000, over, 1,080.
I think we have been having problems and have been doing a lot with the watershed
regarding even invasive species. We talk about Alakai Swamp, we talk about, well actually Mr.
Keith Robinson was here before you at the last meeting and all of the invasive species and what
he is trying to preserve. Well gosh, isn't this the same, or isn't it somewhat familiar that we
should be preserving what is there in Hulaia? Well it is not happening. But I have some
reservations that DLNR should be corresponding with you. I know that this application has until
November 26th although I would like to prolong it and I am in (inaudible) for my decision. I
have friends that have told me hey, if they are going to pass this well you know what, this is what
my friend told me, she said don't let it run with the owner. I mean let it run with the owner and
not the land if you do pass this application. I am kind of perturbed that even the history is not
even available for you Commissioners. It is a very, very important area and I am very surprised
that not much has come out from DLNR and I think they should be investigated, thank you.
Chair: Any questions?
Mr. Nishida: Cheryl, specifically the impact of this you said was the amount of people
that is utilizing the area?
Ms. Lovell-Obatake: Well according to the amount that is allowed. There were 3 kayak
associations, I mean 3 kayak companies, 60, 60, 60. Well somebody like (inaudible) just took
that other 60 and divided it among 2. As much as possible you don't really want more people
there. We hear it from Mr. Keith Robinson how many people are traversing up there. And the
invasive species like the Miconia and other endangered species like the sea lamprey from the
boats. We have a problem, there is a water quality problem and I am surprised that people are
swimming where there is cattle and poor water quality. Has anybody tested the water? Did Mr.
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October 26, 2010
24
Heacock test the water for health purposes, or the Department of Health? I didn't see anything.
I went through this whole application, nothing.
Mr. Nishida: What about the actual zip-lines and the zip-line sites?
Ms. Lovell-Obatake: I have some reservations regarding that. I believe that if I owned
land I would own land straight up and straight down. There is no demarcation line, they may
have said they surveyed it but when I look at the application, 5 acres out of what, was it 5,000
somewhat square feet. How is this surveyed? I am uncertain. And looking at where the wildlife
is and they are crossing over, are they going over onto the wildlife property? That is when
section 106 kicks in and it needs to be complies with. And if you don't know section 106 it is on
the Advisory Council on Historic Preservation. And they need to consult with native Hawaiians,
especially the Kuleana land owners. And it was in that letter too that even LaFrance, Kapaka
Arbaleta had mentioned. I gave you some minutes. I gave you the MCA. I am compelled to
come here because I have an obligation, a conscious obligation. I have traversed that river all
my life. I lived in Niumalo at the mouth of the stream and I fished and crabbed and did
everything else even with Kauai Canoe Club. My heart is there.
Mr. Nishida: Thanks.
Chair: Anymore questions?
Mr. Nishida: I have one for Kaaina. The permit, because the zip-line structure it's self is
maintained really according to standards that is in the hands of the applicant, normally a Use
Permit would run with the land. But in this case is that the same thing because this is really a
structural kind of...do you have any thoughts?
Staff: In the Use Permit you are reviewing, evaluating and taking action on the use and
as such the use its self is what you are approving and therefore if you find that the use is
compatible on this particular piece of property then indeed it is in a sense transferable as long as
the next person owning it is in compliance with those conditions you have imposed upon the
application.
Mr. Nishida: Technically we are approving the use and not the structure it's self. But in
this case the applicant is including what structures we are actually approving along with that use.
So they still would have to amend the Use Permit if they added another one.
Staff: Correct.
Mr. Nishida: Actually what we are approving is the use and not so much the structures.
Actually what we are approving is the use and not so much the structures.
Staff: You are doing both the use and the structures themselves. In the event that
additional facilities are proposed, yes, it would be considered an expansion of services and/or
uses and would have to return to the Planning Commission for your evaluation and action.
Mr. Nishida: Thank you.
Mr. Kimura: Kaaina, this letter from Chris Kauwe, question No. 4, replanting, removal
of invasive species, water quality testing, it says (inaudible).
Staff. I would direct that to the applicant.
Chair: We will call the applicant back up. But with that, first, is there anybody else in the
public that would like to testify on this agenda item? Seeing none, you have more?
Ms. Lovell-Obatake: For the record my name is Cheryl Lovell-Obatake. I would request
that if this passes or if you approve it that it not run with the land but run with the applicant,
thank you.
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25
Chair: Let me call the applicant back up. One of the concerns, are you okay with that if
that was a condition?
Mr. Haviland: We are the applicant so yes.
Chair: In the event of resolve or anything like that that the application could be
(inaudible) annulled?
Mr. Haviland: I would be agreeable to that.
Mr. Nishida: I think we need the attorney.
Chair: Yes. I think the last applications from my experience here is that if the applicant
agrees to a condition like that then the application in my view would be that if he is okay with
that.
Mr. Nishida: Ian, is that true?
Mr. Costa: We did have a conversation earlier with the County Attorney and I think we
would still get their counseling but I believe that was stated earlier.
Chair: Let me bring the attorney in since he walked back into the room. In the event that
the discussions between the applicant and myself is that would he be in agreement in having the
permit null if the operations stopped. And with his cooperation he did say yes.
Mr. Dahilig: That is an interesting question Commissioner. If it is with the consent of
the...we do have in the statute and is part of the CZO, that if there has been an abandonment of
use for a year that typically and this goes for any type of use, that typically that use is considered
abandoned and you can interpret that the permit is no longer in force and affect if there is no
actual use on that permit within a year. So if the Commission would like to maybe restate that
provision of the CZO as it applies to this particular situation where if there is an abandonment of
use, a clear abandonment of use for a year period, that the permit shall be null and void.
Chair: With the consent of the...
Mr. Dahilig: With the consent of the applicant.
Mr. Nishida: I think the question was different though. The question was the applicant is
agreeing...
Mr. Kimura: The permit runs with the applicant and not the land.
Mr. Dahilig: That particular question, it is an interesting debate among American Jurors
Prudence with respect to whether a permit would run with the land or would run with the person.
Typically what you see in a lot of the jurisdictions across the country, it tends to border upon the
best practice to not have those types of provisions in the permit given the litany of other types of
constitutional and other types of laws that may come into play. If the applicant is willing to
consent to on the record regarding this obviously that bode well in the Commission's favor but it
is a type of provision that our office would discourage given the way the case law has come out
regarding those types of provisions.
Mr. Blake: What do you discourage?
Mr. Dahilig: Having a permit run with the person versus the land.
Mr. Blake: My concern is that a corporation, the only difference between a corporation
and a person like you is that it is not warm, it can live, die, get married, have children, it can do
everything a person can do. The Supreme Court of the United States has allowed corporations to
now make donations to public elections because they too have been given the right of free
speech. So the good, the true, and the beautiful, corporations are just like anybody else.
However when it comes to Use permits you can have the corporation and the shareholders can
Planning Commission Minutes
October 26, 2010
26
change every single day by selling shares, having elections and so forth. So it becomes difficult,
I think, to call anyone to task in a corporation.
And recently down at Po`ipu where a corporation was found to have been criminally
liable for breeching a historic trail, Judge Senda help the corporation liable, fined the
corporation, and she also said if I recall correctly and I hope I am not misstating her, I don't want
to just issue an order that is responded to on corporate letterhead, I want somebody responsible.
So the manager had to go to the same type of counseling that any other criminal defendant would
have to go to and that, in my opinion, made the corporation much more anxious to get right with
the lord, so to speak. So in a case like this we are fortunate that it provides a unique avenue to
visitors and residents alike however it is operating under the guidelines of a Use permit. And
one of the big protections to the public of a Use permit is that if anyone feels that the use is no
longer compatible they have the right to come before the Commission to ask that action be taken
in that regard.
That is my reservation with having these Use permits run with the land. Because the land
didn't come in and ask to be allowed to be subjected to a different use, an applicant came in and
asked. And so to me the applicant should continue to bear the responsibility of staying legal and
not only legal but stay being compatible. That is my reservation with having; again, I am just
repeating myself now but having it run with the land. I think it should stay with the applicant
and if the corporate structure or ownership changes I would prefer to know who is the new
owner rather than having to chase some unknown person down because the original applicant
who has proven to be a good citizen is no longer involved. You have some other person out
there that wants to push the envelope.
Mr. Texeira: Going back to your existing zip-lines and your proposed, what percentage
are you increasing your zip-line activity?
Mr. Haviland: I am not sure exactly in what context you are asking the question. The
number of lines would double from 6 to 12 but I don't think the number of passengers will
change that much. The footage would approximately double too. The facilities are pretty small,
when you look on the map they are all on a scale, because the lines look really big but they are
really only half inch lines, you can barely see them in reality. I don't know if I answered your
question sir.
Mr. Texeira: I just want to see reasonable use of this area and where do you draw the line
in terms of reasonable use, how much is reasonable use and that is why I am questioning, if you
are doubling your usage, not so much in terms of people but in terms of the zip-lines then what is
a reasonable use. I am just trying to determine that in my own mind.
Mr. Haviland: From my perspective I can tell you that we have tried really hard to be
more or less invisible to the general public. If we hadn't stepped forward to do this probably you
wouldn't even really know we were there. The users of our facilities are for the most part
visitors that come out with us and if they weren't with us they would be at public beaches and
public parks and recreating in public facilities. We take on the burden of bringing them onto our
lands and providing them with recreational facilities, sanitary facilities, etc. We provide jobs,
our economic impact is really important to people, we have people in the company that have
mortgages, that have children. So I think in that context it is very reasonable and also just one
last thing is that also I think we have done a really good job of making use of lands that are not
otherwise useful in preserving that open space and open space look and feel but still providing a
strong economic benefit.
Mr. Texeira: By increasing as I said your zip-lines, your liner feet of that how much do
you plan to expand your employment base?
Mr. Haviland: Our client base?
Mr. Texeira: Employment base.
Mr. Haviland: I would hope to be able to grow the number of jobs we provide, so much
of that is dependent on economic conditions that are just way outside of our control. Although
Planning Commission Minutes
October 26, 2010
27
we employ more people than we did in 2007 our income is not as much as it was in 2007. I
would hope that we would be able to grow our company a little, provide a few more jobs, do a
little better. That is part of why we are asking to do this.
Mr. Blake: I want to make one more pitch for the... if this is approved then I would like
to have a condition included that if, well let me ask a question first. Are you the owner and
manager of the company?
Mr. Haviland: It is a corporation and my wife and I are the shareholders. I am the
president, Julie is the Vice President and we work every day and we are the responsible people,
primarily me.
Mr. Blake: So if the ownership of the corporation and the management of the corporation
changes then I would like to ask that a condition be included that states that any change in
ownership or management would require the applicant to come back and inform the Commission
of that fact so that we have the opportunity to meet the new applicant.
Mr. Costa: I believe that is a condition that we have included in many occasions.
Mr. Blake: Is it in this one?
Staff. No and the reason being ...I will defer that to the County Attorney because he has
the answer on that one.
Mr. Costa: If I hear correctly you are saying that should the ownership change that the
Commission be informed or notified as opposed to the permit being null and void.
Mr. Blake: I am not asking that the permit be null and void but when I say change of
ownership, right now the whole of the ownership and management is with Mr. and Mrs., Rick
and his wife. If it changes in any respect then I would like to ask that the new owners or
additional owners come in to the Commission so that we know who is running the show and who
is ultimately responsible for making sure that this use stays compatible.
Mr. Dahilig: I would say that as long as it is, I believe it is compulsory to have the permit
holder report to the Commission regarding potential change in ownership whether it be by a
merger, a buyout, or a change in actually corporate structure, etc. However if it reopens the issue
regarding whether the permit is valid or not other than just a simple reporting or a simple status
of ownership then I would discourage it from going any further than just that.
Mr. Blake: I don't see it reopening for that purpose unless they are not compatible
anymore. But as long as they are doing what they are supposed to be doing then that is just fine?
Mr. Dahilip: I believe if you were to just, like a status report that comes before the
Commission that if there was a ownership change that at least something had to be filed with the
Commission. Typically like what you do see like in Liquor Commissions where there is a
change in even as much as a corporate Director, that kind of stuff does need to be received by the
Liquor Commission. So I don't see anything that is necessarily wrong with the Commission
asking that that information be conveyed if there is a change in ownership.
Mr. Blake: And how often is a status report required in this case?
Mr. Costa: I was just going to touch on that. That is another vehicle or condition I think
that we have used to at least be able to see an advance or see shortly thereafter should ownership
be contemplated, change in ownership be contemplated that we can adjust accordingly. But
typically we do an annual status report.
Mr. Blake: For this Use Permit, an annual status report?
Mr. Costa: On permits we have more often than not included an annual status report.
Planning Commission Minutes
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28
Mr. Blake: I only have one other comment. This is on the subject that Ms. Obatake
raised is it is a historical area and the reason that I asked you if you had any understanding of
what the name meant was because I think it is important. It might bear some research.
Mr. Haviland: I agree and I am embarrassed that I couldn't answer. I knew but I forgot
and when I sat down all the guys that I work with said we know but they weren't sitting up here,
I was and I apologize for not being able to answer that. I agree it is important.
Chair: Jan.
Mr. Kimura: Here is says the replanting and removal of invasive species or water quality
testing. And then you answered yes on a limited basis. What do you mean by that?
Mr. Haviland: Will there be restorative plantings, yes, we have, we have planted Kukui
Trees and others.
Mr. Kimura: What about water testing?
Mr. Haviland: Water testing, we have done that and we have gotten good results. We
most recently, the most recent water testing was done last summer.
Mr. Kimura: And who do those results go to?
Mr. Haviland: We do it privately and we have done it different ways over the years. We
have gotten good results that have made us kind of relax about it. When we first went into the
area we wanted to establish that it was safe and we used kits and contractors to do it. And then
we have done it different times over the years, we have taken science classes from area schools,
we have taken them on complementary kayak trips and they have done water testing. Most
recently, this past summer, it was done at the request of a movie production company and they
had a contractor do it.
Mr. Kimura: Have you ever tested for lepto?
Mr. Haviland: I am not sure that there is a test for that. What we are concerned about is
primarily is choloform, is it safe for people to swim in.
Mr. Kimura: Well normally when you have cattle interacting in the rivers you do have a
lot of lepto in the water.
Mr. Haviland: We have had many, many, many people in the water over the years going
back to 1998 and I am not aware of a single case of confirmed lepto as a result of any activity
with Outfitters Kauai.
Mr. Kimura: That you know of.
Mr. Haviland: That's right.
Mr. Kimura: Second question, who is the gentleman to your right and what is his role in
all this? I haven't heard him speak the whole time you have been here, the last two meetings.
Mr. Combs: Again, my name is Shawn Combs from Land Strategies. I drafted the
application and I have been assisting Rick in putting together the information and he is doing the
presentation right now, I am not.
Mr. Kimura: I thought you were the silent partner.
Mr. Combs: No, not a partner.
Mr. Haviland: Shawn has been the main point of contact with the department and he has
done a lot of work and I am very appreciative of his help. He has been quite here but he has
done most of the work.
Planning Commission Minutes
October 26, 2010
29
Mr. Kimura: So are you going to get that water tested for lepto?
Mr. Haviland: I will look into that. I have talked with the District health people about
lepto and it is something that I am concerned about but it has been a while. I am just trying to
remember, I don't know if you...I will look into that, let's leave it at that.
Mr. Kimura: Thank you.
Chair: Any more questions? With that, Commissioners, it is a public hearing so if the
Commission is satisfied then we can close the public hearing.
Ms. Morikami: Mr. Chair, move that we close the public hearing.
Mr. Kimura: Second.
Chair: All those in favor say aye, motion carries.
On motion made by Paula Morikami and seconded by Jan Kimura, to close the
public hearing, motion carried unanimously by voice vote.
Chair: Since we are waiting for a couple agency comments we will proceed.
Ms. Morikami: I have a question for the planner. Did you submit anything to DLNR and
are they anticipated to respond?
Staff: We did submit it to DLNR and the Fire Department and we asked that they
respond within one month of the comments being solicited which would have put it at the date of
September 23
Ms. Morikami: September 23`d was the 30 days for response?
Staff: We gave them 30 days for response and they did not submit anything back in that
time. If it is the Commission's pleasure we can contact those agencies.
Ms. Morikami: Is it possible since DLNR, the question of DLNR's comments are
important is it possible for us to communicate with them to see if they have a written response?
Mr. Costa: Kaaina, you can just make verbal or phone contact with DLNR and Fire and
see if somehow we missed their comments, if they would hurry and get those in.
Staff: Definitely.
Chair: So with that, Commissioners, since there are agency comments we are waiting for
we will just close the public hearing and move on.
NEW BUSINESS
For Acceptance into Record - Director's Report(s) for Proiect(s) Scheduled for
Public Hearing on 11/9/10. (NONE)
For Acceptance and Finalization - Director's Report for Shoreline Setback Activity
Determination. (NONE)
ADJOURNMENT
The Commission adjourned 2:56 p.m.
Planning Commission Minutes
October 26, 2010
30
Respectfully Submitted.
jap~~--
Lam Agoot
Commission Support Clerk
Planning Commission Minutes
October 26, 2010
31