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HomeMy WebLinkAboutpcminutes 11-23-10 KAUAI PLANNING COMMISSION REGULAR MEETING November 23, 2010 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, Caven Raco at 9:16 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 Ms. Camilla Matsumoto Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA Chair: Before I get an approval of the agenda are there any revisions? Ms. Morikami: Mr. Chair, for the approval of the agenda I would like to make some changes that we move F.3, which is the acceptance and finalization request regarding the shoreline setback activity determination to the front of the calendar so it would be before A.1. Also on item's B.1 and 2,1 move that we move it to item F.4. So it would be after the F.3. Chair: I guess that is a motion on the floor, if I could get a second. Mr. Nishida: Second. Chair: All those in favor say aye, motion carries. On motion made by Paula Morikami and seconded by James Nishida, to approve the agenda as amended, motion carried unanimously by voice vote. Chair: Meeting minutes of October 12, 2010, if there are no revisions I will entertain a motion. Ms. Morikami: Move to approve. Mr. Kimura: Second. Chair: All those in favor say aye. On motion made by Paula Morikami and seconded by Jan Kimura, to approve Planning Commission meeting minutes of October 12, 2010, motion carried unanimously by voice vote. For Acceptance and Finalization - Director's Report for Shoreline Setback Activity Determination. Shoreline Setback Commission Review SSCR-2011-3 for a shoreline determination Tax Map Key 2-8-020:003, Po`ipu, Kauai, for acceptance by the Planning Commission = The Makahuena at Po `ipu. Staff Planner Lisa Ellen Smith read Director's Report (on file). JAN 11 2011 Chair: Questions regarding the findings from the planner? Mr. Blake: Right now where does the waste water go and where is the new waste water intended to go? Staff: If you look on the application on the back page it shows the location of the wet well, the lift pumps, and the compressor room outside the 40 foot setback above the rocky headlands, approximately here. Mr. Blake: So you have injection wells here? Staff: The applicant does, I don't. Mr. Blake: And do you know whether there has been any indication of where the water comes up, if it comes up after it goes into the well? Staff. I was not provided any study for review on that. It is elevated at approximately 150 feet above... Chair: Any more questions? Mr. Blake: To the planner or to the... Chair: I will call the applicant up. If the Commission doesn't have any more questions does the applicant want to come up? Mr. Chris Jarret: For the record I am Chris Jarret with GMP International, we are the designers of the project. In answer to your question regarding the wet well, there is a new wet well in the parking lot adjacent to where the new treatment plant will be constructed. That is the current location of the wet well at this time for the existing treatment plant. Mr. Blake: So you are going to use the same wells? Mr. Jarret: Yes. Mr. Blake: And how deep are they? Mr. Jarret: One hundred and thirty feet. Mr. Blake: And that one hundred and thirty feet, how below the ocean surface? Mr. Jarret: I am not sure. This plan has been reviewed by the Department of Health so they did take a look at it and did approve the injection point. Mr. Blake: My only question, it is not a concern it doesn't rise to that level, was if the water goes down where does it come up or where does it go once it gets to the bottom of that 130 foot well. Does it go out to sea or does it go back into the aquifer? Mr. Jarret: I couldn't answer this question. We have some people in our office and I might be able to give them a call and get that answer for you. Mr. Costa: Commissioner Blake based on the exhibits and the topographic map shown it would be roughly 70 feet below sea level. Mr. Blake: Thank you. Chair: Any more questions for the applicant? Seeing none, thank you, is there anybody in the public that would like to testify on this agenda item? Seeing none I can entertain a motion to receive, motion to accept. Planning Commission Minutes November 23, 2010 2 Ms. Morikami: Mr. Chair on this item move to accept the shoreline determination as stated in the report by the Planning Director. Mr. Nishida: Second. Chair: All those in favor say aye, motion carries. On motion made by Paula Morikami and seconded by James Nishida, to accept the shoreline setback determination as stated in the Director's Report, motion carried unanimously by voice vote. GENERAL BUSINESS MATTERS Request from Association of Apartment Owners of the Makahuena at Po`ipn to amend Condition No. 5 of Project Development Use Permit P.D.U-15-79, Special Management Area Use Permit SMA(U)-79-6 and Class IV Zoning Permit Z-IV-79-21, Tax Map Key 2-8-020:003, Po`ipu, Kauai = Association ofApartment Owners of the Makaiuena at Po `ipu. Staff Report pertaining to this matter. Staff Planner Lisa Ellen Smith read staff report (on file). Chair: Commissioners, any question for the planner? Ms. Morikami: Mr. Chair, I have a question for the planner, when do they anticipate the regional connection becoming available? Staff. I don't have that information, another planner did do the K61oa Waste Water Treatment Facility but I don't know that it is planned. It is not permitted as of now. Ms. Morikami: (Inaudible). Staff: Only to Koloa connection currently. Chair: Anymore questions? If not, is the applicant here? Mr. Jarret: Chris Jarret, GMP International representing the Makahuena AOAO. Mr. Nishida: You guys selected the (inaudible) batch reactor facility for this, so what does that mean, how does it work? Well first of all the Department of Health approved this application? Mr. Jarret: Yes they did. Mr. Nishida: So just some information how does that work. Mr. Jarret: I am the construction manager or project manager. I didn't bring my mechanical engineer who designed the project who could answer that question. Mr. Kimura: What type of reconditioned water is going to come out of this facility treatment plant, you have R-1, R-2. Staff: Quality of your water. Mr. Jarret: I don't have that information. Chair: Commissioners, this is just a general business matter. We can make a motion to receive and maybe the next meeting... Mr. Jarret: I can provide the answers for you. Planning Commission Minutes November 23, 2010 3 Chair: At the next meeting if you can have your engineers come, so with that Commissioners if we could just get a motion to receive and defer. Ms. Morikami: Move that we defer item A.1 on the agenda. Ms. Matsumoto: Second. Chair: All those in favor say aye, motion carries. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to defer action, motion carried unanimously by voice vote. Mr. Kimura: Do we have a date on that deferral? Mr. Costa: We have noted what information you have requested so we wouldn't bring it back until we get that information. Chair: Did we have public testimony on this last agenda item? Seeing none, did you have discussion? Ms. Morikami: Commissioner Blake also had a question so I think it would be a good time when we get back that his question also be addressed. Chair: Yes. Are you the applicant? Unidentified S ep aken (Inaudible). Chair: Did you want to say something? Ms. Rebecca Kine: My name is Rebecca King and I am the treasurer of the Board of Directors for Makahuena AOAO. The Board of the Directors of the Association of the Apartment Owners of the Makahuena Condominium Resort in Po`ipu wishes to emphasize the importance of the replacement of their 31 year old waste water treatment plant with a new underground plant as proposed in the application and Environmental Assessment. The existing treatment plant has reached its anticipated service life and plant failure and shutdowns are an ever increasing possibility. The existing waste water treatment plant is located adjacent to the shoreline setback. The new plant will be located further inland and higher in elevation than the previous existing plant. The proposed project will also be constructed within the existing footprint of an abandoned irrigation tank under the parking lot near the Makahuena side of the property, excuse me, the mauka side of the property. Relocating the Waste Water Treatment tank further inland from the shoreline (inaudible) provides increased serviceability in the case of a strong hurricane or tsunami. Beneficial impacts to the water quality and public safety resulting from improving the waste water treatment outweigh the short term minimal adverse impacts associated with construction. If the existing plant fails we would be faced with a continuous 24 hour a day pumping and hauling of raw sewage or shutting down the complex to acupancy until it could be temporarily repaired or replaced. The pumping or hauling to disposal facilities of raw sewage would be very expensive for the owners and also very unpleasant for the occupants. Closing down the complex would displace the 21 fulltime and 8 part time residents of 29 apartments and prevent the use of renting the other 49 individually owned apartments and also the AOAO manager's residence. Many of the residents are retirees and this is their only home. A shut down of the Makahuena would be devastating as these residents would be homeless while still faced with paying the fixed costs of ownership. For part time residents and owners who depend on the rental income to pay for the cost of the maintenance and ownership, shut down could be economically devastating resulting in more foreclosures and reduced property values. A shut down would also result in the loss of County excise and transient accommodation taxes, 13.41% from the 57 individually owned apartments Planning Commission Minutes November 23, 2010 4 currently available for short term rental amounting to an estimated 19,100 dollars per month. A prolonged shut down would likely also result in the furlough of several association and rental agency maintenance and housekeeping employees. We respectfully request that the application be approved so that the necessary building permits can be issued without delay. We are already in a situation where we are very concerned that we are going to lose our waste water treatment plant and that is why we started this process and obviously as we all know it takes a long time to go through all the processes to get the permits. But we are very anxious that if we don't get those permits we may have a shut down. Chair: If you want to provide us a copy of that letter. Ms. King: Absolutely, thank you. Chair: Before I move to the next agenda item Commissioners, since we already took a motion on the last agenda item I think staff wants to present our Director with a presentation. Planning Department staff presented Planning Director Ian Costa with Leis. UNFINISHED BUSINESS 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-lines facilities, on lands located approx..25 miles east of the Kipp Road and Aakukui Road intersection, Kauai, further identified as Tax Map Key 3-3-001:001, 002, and 3-1-002:001, and affecting an area of approx. 5 acres= Ouy tters Kauai, Ltd [Director's Report received 9/28/10, hearing closed 10/26/101. Supplemental Director's Report pertaining to this matter. Testimony (Received 11/1/10 from Cheryl Obatake. Staff Planner Kaaina Hull read supplemental staff report (on file). Chair: Commissioners, any questions for the planner? Mr. Nishida: Regarding the Fire Department, the concern about the zip-lines and the helicopters, you confirmed with the Fire Department that it was okay? Staff: Yes, I spoke with the Fire Department and they stated that concerning zip-lines for fire hazards and/or specifically for helicopter operations they did not have any concerns with this particular proposal. Mr. Nishida: I had a question regarding the Special Permit, a little better explanation why we cannot impose tying this in with the applicant and not to the land. Staff: I think as previously discussed the County Attorney and other applications, when reviewing a proposal you are looking at what is proposed, proposed use on a specific area of land, the compatibility of that use with the land it's self and the surrounding properties regardless of who that applicant is. So long as the applicant meets the standards and regulations established under Hawaii Revised Statutes as well as the Kauai County Code and other federal statutes as well as conditions that are imposed by the Commission. As long as that applicant meets those conditions then said proposal, if it is approved, is in compliance and therefore... it is irrespective of the applicant. Mr. Nishida: These permits are discretionary permits and in the case of the Special Permit, the one on agricultural land, well I don't know the exact tern, you have it in the report but it is not an allowable use. So what they are asking for is a Special Permit to allow this use so why can't we apply this just for that, just for the Special Permit? Planning Commission Minutes November 23, 2010 5 Staff: The Special Permit, concerning not an allowable use it is not outright allowed or permissible as established under Hawaii Revises Statutes, section 205, but the same section also allows for those proposals outside of the list of allowable uses to be permitted either by the Planning Commission or State Land Board depending on the size of the property. Section 205 outlines 5 criteria that if it meets the 5 criteria then it can be permissible and it is within your discretion to approve or deny that if it meets the criteria such as it does not displace Ag. and what not as outlined in the Director's report. Mr. Nishida: Do you have something to add? Mr. Jung: No, I think the planner did a good recitation of the law. Mr. Nishida: So even if it is voluntary you are recommending that we do not put that in? Mr. June: Non-transferability as the planner indicated, you guys control the use of the land and not the person who operates that use for that activity and the reason I think the courts have held non-transferability provisions or conditions invalid is they want the focus to be on the land and not the person. So if someone who may have an interest or friends with certain people they might have more of a chance of getting it versus someone else who maybe alleging discrimination or something and may have less of a chance of getting it. So they want to keep the focus on the land and not who the applicant is. Mr. Blake: I am not referring to the applicant, generally, at what point does the applicant's believability and credibility come into play? Mr. June: I think that is up to the Commission to decide as this body is a quasi judicial body so you have to weight those... Mr. Blake: So if we as a Commission agree that the applicant is incredible or non- credible we can just deny it. Mr. June: Well you have to have a rational basis for your denial. Mr. Blake: He is not credible. How much more rational do you have to get? Mr. June: And that is going to. Mr. Blake: He or she is not credible. That is important, can you trust them or can't you trust them. Should you trust them or should you not trust them. Mr. June: (Inaudible) conditions of a permit and as you all know a permit runs with the land unless you put a time constraint on the permit. So if you want to make a permit self executing on a certain date you can do that, that is within your power but imposing non- transferability based on the issue of credibility of an applicant, I think that is treading in some dangerous waters. But if you test the credibility of an applicant and don't find what they are representing to you as credible then you could argue that is a rational basis for denial but it has to be concerning the use of land and not necessarily the applicant. And the reason for conditions is to impose on the applicant an assurance that they are going to maintain the use of the land as they represented. Mr. Blake: And that can be done with the requirement of status reports? Mr. June: Yes. And that is not uncommon with this department where they require status updates 2 or 3 years out. Mr. Nishida: Did you just say that we can put an end date to the permit? Mr. Jung: Yes. That is a common imposed condition where you can but you have to balance that with imposing, if you want to impose structural requirements. If you do an end date then it has to be worth it to the applicant to do the activity, put the improvements in, so if the Planning Commission Minutes November 23, 2010 6 permit last only a year then it may not be economically viable to just make the permit last for 1 year. So those are the sort of things you guys have to balance out when you make a decision to do a time constraint. Mr. Blake: So the continuing affect of the permit can be conditioned upon the acceptance by the department and the Commission of a status report in 2 years. Mr. Jung: That is at your pleasure. If you want to require a status update to see if they are a), incompliance with the permits, with the conditions of the permits or b), to look at how the use is affecting the land potentially then you can impose that requirement. Mr. Blake: And if I understand Mr. Hull previously recreational use on agriculturally zoned land was outright permitted but now that this has become commercial or excuse me, with the proliferation of these commercial recreational uses on agricultural lands the department's policy is now to require permits. Staff: To a certain extent the triggering mechanism for this specific application was that originally the department had interpreted it as recreational activity and as such it was outright permitted. However in reviewing it and specifically given the facilities had been constructed the department took a much more restrictive standpoint and classified it as a commercial operation and as such required higher level permits, i.e. the Use Permit and the Special Permit. Mr. Blake: So the fact that zip-line towers are being constructed is what triggered the permitting review? Staff: Among the other activities as well, yes, in conjunction with the other activities. Mr. Blake: I guess if you are going to construct zip-line towers then everything is going to examined, kayaking, hiking, hay rides, and so forth. Staff: Correct. Mr. Blake: But if nothing was constructed and you would be using the existing river, the existing dock, the existing trails, and the existing private road then there would be no requirement for a permit? Staff: No there would, it was ultimately this application that motivated the department to reexamine its policies and its interpretation of outdoor recreation. And so since this application we have established a policy of in the event that there are say just hiking where there is a collection of fees to use a certain area we will interpret this as commercial activity and we will require the necessary permits. Mr. Blake: So any commercial use triggers a permit. Staff: The Agricultural District does require a Use Permit, correct. Mr. Texeira: Kaaina, tell me about the stream in terms of ownership, use, who controls the use of that stream? Staff: It is under the jurisdiction of the Department of Land and Natural Resources. Mr. Texeira: Going back to the project it's self I think they had 3 areas of development that will cross the stream, right? Staff: Correct, you are talking about specifically the zip-lines. Mr. Texeira: The zip-lines will be crossing the stream. I kind of have a problem with that. You said DLNR controls the stream, right? Staff: The stream waters themselves. Planning Commission Minutes November 23, 20I0 7 Mr. Texeira: The stream waters and the activities within that stream, right? Staff: Correct. Mr. Texeira: And DLNR made no comment about the zip-line activity proposed over the stream? Staff: No they didn't specifically, that we have received, that was one of the comments that are pending and as of now it has been about 3 months since we submitted to them. Given the time lapse we consider that no comment. Mr. Texeira: Thank you. Chair: Any more questions? If not does the applicant's representative want to come up? Mr. Shawn Combs: Good morning Mr. Chairman, members of the Commission, Shawn Combs with (inaudible) Strategies. Mr. Rick Haviland: Rick Haviland with Outfitters Kauai. Aloha Chairperson Raco and Commissioners. Chair: Is there anything that you want to add to the application or the discussion that the Commission has been having? Mr. Haviland: Yes please. I have little statement that I would like to read, it is brief. Thanks for giving us your time on this busy agenda, we are very appreciative. We are asking you to approve this application today because it is a good application and a good use of otherwise unusable lands that is complimentary to the existing agricultural use. I would like to read a short bit from a letter that was provided by the landowner and is in the record as part of this application. "The Outfitters Kauai activities occur primarily in sloping and wooded areas that are not otherwise useful to us. We find their operations to be compatible with our primary agricultural operations. The income to us that is derived from these activities is useful in maintaining agricultural infrastructure such as road, fencing and irrigation systems. They are good stewards of our lands." I hope that statement means as much to you as it does to me. We are very proud to be able to help keep these beautiful lands in Ag. We have talked about how much our jobs and a good future for our company means to us at Outfitters. These times are not easy but we have been able to keep quite a few people and families going. I hope that we have had a positive and beneficial effect on the island's economy. Thank you for your consideration. I would like to ask humbly that you please follow the recommendations of your Planning Department as outlined in the staff report and approve this application. We have been here for 3 meetings now and Commissioners you have done a good job of taking the time to learn about this application. We have had a long and thorough discussion. I apologize if I couldn't answer all your questions Hartwell. We have tried hard to address all the reasonable concerns and provide all the requested information. We respectfully ask that at this time you follow the Planning Department recommendation and approve, thank you. Chair: Any questions for the applicant? Mr. Texeira: Your current operation, would you not consider it very successful at this point? Mr. Haviland: I am pleased. I think we have done well. We are really appreciative of the opportunities that we have been given and we have tried really hard to be good neighbors and to fit in well and I think we have done that. Mr. Texeira: So you have a successful operation currently and you are seeking to expand your operation for what purpose? Planning Commission Minutes November 23, 2010 8 Mr. Haviland: We want to continue to do well for our company, for our employees, for our suppliers and the island businesses that we work with and in the future we know that our competitors are really good and there are going to be other companies that are going to be coming to you and we know this. And so we are trying to be provide good leadership in our industry. We are trying to do it right, to follow the correct procedures and be compliant and to allow for fixture growth and opportunities for our employees and our company and our landowners. Mr. Texeira: You want to improve your product, you want to improve the experience because of impending competition down the road, is that one of the factors that you are looking at? Mr. Haviland: It is one of the factors but not the only factor. In business if you just stay the same on and on and on you don't continue to hold your position you tend to lose. That is a reality of the life in business so those are some of the reasons. Mr. Blake: I have a comment. I appreciate the fact that there have been no complaints lodged against the company. I think that speaks well of the activity. I think it is also a positive thing that land that was probably utilized only for pasture can be enjoyed by the public and that because of the company's purpose there is somebody supervising the public so that we don't become our own worst enemy with litter and trash and trespassing and so forth. And of course they are minimum impact jobs in a place on our island where we value minimal impacts. Sol would like to compliment you on that. That being said I just had one other... and this is more part of the company plan but if...the zip-lines are all concentrated, right, in two areas as I recall. So if you had a medical emergency is there an area for a helicopter to land that you have set aside? Mr. Haviland: First of all thanks for your kind words. Coming from you that means a lot. I appreciate it. Medical emergencies, our zip-line areas are next to flat pasture areas so if would be possible for a helicopter to come in and land right there close to where we are. Mr. Blake: My other question is, have you seen the letter from Ms. Obatake? Mr. Haviland: Yes. Mr. Blake: Have you been presented with any specifics on her concerns? Mr. Haviland: I have read the letter, the most recent one, I received it yesterday. I have a copy of it here and I have looked at it and a lot of the values and the things that mean a lot to Cheryl mean a lot to us too. She mentions historic sites, grave sites, we have a lot of respect for those kinds of locations and we have had meetings with people and taken the time and trouble to learn about locations and important places so that we can stay away when necessary and hold places with the proper respect. And I think we have done a good job with that. I met with LaFrance, she showed me where her family graves sites are, she was a friend, became a friend. We are nowhere close to that location. I have talked with Nancy McMahan. I have talked with Cheryl. We have a lot of respect and we take a lot of care in fitting in, being good neighbors and showing respect for the area. Mr. Kimura: This is just a comment to Mr. Haviland. I just wanted to say thank you for being good stewards to the land in providing jobs for people in these hard economic times and trying to create more jobs for them. I just wanted to say thank you for being good stewards. Mr. Haviland: Thank you very much. I can assure you we will continue to do that. Chair: If no more questions then I will ask you to step back and then if I can take public testimony if anybody wants to speak on this agenda item. Ms. Cheryl Lovell-Obatake: For the record my name is Cheryl Lovell-Obatake. I don't know if I am going to have kind words but I would like to touch on my written testimony on the second bullet which is with SHPD. I had gone to a conference on Oahu and I have confirmed Planning Commission Minutes November 23, 2010 9 that State Historic Preservation Division, Kaua`i's records are being relocated. I am not surprised that they have not responded to the comments for this application. I think we are in a pickle, culturally, historically we are in a pickle. Findings of facts for the decisions and I have watched it and I have even contacted Nancy, I have even seen Nancy at a Burial Council meeting here on Kauai. She is not available, she has been out for 3 years and it is hard for me to accept that Mr. Haviland has spoken to her or to me. The Commission's decision should not reflect on economic decisions. Your decision should consider the impact of historical properties and it values that are historically significant. The State Department of Health should be testing the stream water. As I reviewed the continuous viewing of the application when it was last heard and being that the meeting was cancelled, one of your meetings, it went on and on and I have been watching it. Lepto Spirosis in my studies with the Nawiliwili Watershed, it is an after the fact, you may be feeling healthy at the time but later on you never can tell when you leave the island. In my opinion this is an after the fact permit. In my opinion this is an after the fact permit. In my opinion this is an after the fact permit. He has done it and he is coming in with a request for a permit. So that means everybody out there you can do what you like and then you come back in, then you come apply. This is setting precedence and I don't mean to yell at all of you but I am letting you know that is how I feel may happen in the future. People will do what they want to do and then come in later so this is a precedent. I have testified many times and I have watched many applications and I am not saying that I am perfect but this is what has happened for me, this is an after the fact permit. And people out there are going to come in here or after they do what they want to do and then come in here. It may not be kind words but I speak from my heart. I speak for the place that I practice fishing with my uncles and many Hawaiians along the banks and it is very disappointing and I thank you for your time. Chair: Any questions for Cheryl? Mr. Blake: You refer to caring capacity of the stream and the landings. Do you know if DLNR DOBOR is currently undertaking any caring capacity studies? Ms. Lovell-Obatake: No they are not. Mr. Blake: And do you know why they are not? Ms. Lovell-Obatake: Because they don't want to maybe, they don't feel like it. They don't have time, they don't have staff. The State is in a pickle when you have furloughs. I heard enough at the conference where you know (inaudible) is saying oh yes, we know about SHPD furloughs so now everybody is going to be coming for their permits because they can't get any comments from SHPD. The State is in a pickle. DOBOR is in a pickle. Who is under DLNR, DOBOR, and Bureau of Conveyances. I mean I can go on, you know who they are, what agencies. Hawaii is in a pickle. Mr. Blake: You know the County doesn't have any jurisdiction over (inaudible). Ms. Lovell-Obatake: I understand but I wanted to put it for the record incase (inaudible) Kingdom gets a huh. The Kingdom of Hawaii might get a huli. Mr. Blake: At the present time are you aware of any negative historical impacts on historical properties? Ms. Lovell-Obatake: It is a question that should be thoroughly answered by the advisory council on historic preservation section 106 because of the wildlife refuge there along the banks and because of historical values in the area. Mr. Blake: And are you aware of any specific or rumored rights for Kuleana lands that area being dishonored? Planning Commission Minutes November 23, 2010 10 Ms. Lovell-Obatake: I have worked on the Hale Manu family and this may be...you asked the right question because there are two owners that are involved, the Rice family and Grove Farm and Kuleana lands are all in between. And when I was helping Hale Manu with Hawaiian Legal Corporation there were some negative conversations because of them getting to their property, it is not a road it would have to pass by, those agreements with Native Hawaiian Legal Corporation is still in limbo. So I know you are going to have to make a decision where the Native Hawaiian Legal Corporation can answer to those questions and it is beyond me. And also you know the application saying the area is 5 acres out of 3992.3546 acre parcel, what are the meets and bounds? Is he leasing the land? When you lease land does the owner know if this is going to run with the land or run with him, the applicant? I am having a hard time comprehending that. Mr. Blake: Are you aware of any ongoing water quality studies for leptospirosis in the water? Ms. Lovell-Obatake: Water quality has been tested by Don Heacock. If you look at the website which Cocket, he is a school teacher, he did Anaina Kumuwai. You could probably ask Sheilah Miyake. There is documentation in that website of some water quality testing and it is not good. Even the site we site about poor water quality. Because we lack water for Hulaia because it is going down your end to Waita, that water was diverted to Waita, we have less water. So common sense is the water quality you don't have much stream flow, what is the water quality, pilau. I mean they have done their testing but have they confirmed it with the Department of Health? Chair: Anymore questions for Cheryl, thank you, anybody else in the public that would like to testify? Ms. Pualani Rogers: Ewaline Kako, Aloha Kakakiaka, Puanam Rogers is my name and I live in the Ahupua'a of Kealia, born and raised and still there with my family. I come to support Cheryl's testimony in full. I do believe that her concerns are only to preserve and protect that area which is also your job. So we are hereto assist you in making decisions when it comes of cultural and historical properties on any property or any lands here. I also want to reiterate what I said here before, all DLNR lands which are State lands are Hawaii National lands and belong to the Kanaka Maoli. Is that understood? Because it is true. The State is just a trustee of the lands, the lands belong to us. Because this business, commercial use is on Agricultural and Open districts I want to speak for Ag. lands and Open districts. There are too many of our Open districts that are being changed, zoning being changed. What is wrong with having as many Open Districts as we can on our island? That is part of the beauty and the attraction of this place. You don't need to put commercial uses into them. The same with the Ag. lands, there are mixed areas where there is Ag. and Open and (inaudible) when they go and do subdivisions in Ag. lands they also do development in our Open spaces. I am here to speak for Open spaces. Keep it Open, that means no development. I speak for Conservation lands as well, that means no development, conserve, protect. Land use, that is what you make decisions on here on Kauai. Think of those things. Protect our cultural sites, historical sites. Hulaia has very significant Mo`olelo, cultural Mo'olelo. Pete, Kupuna Pele has a story, Mo'olelo there and so does Kamapuaa. So do the many Kahuna that were practicing their Kahuna healing etc. and had to go and hide away in Hulaia. These were the kinds of Kahunas that could walk above ground, they could will somebody to death or they could will somebody to live. Think about what has happened here on this Aina way before we were here. Try to preserve those kinds of practices on our Aina, please, this Hawaii. We have to think Hawaiian, think Kanaka Maoli. I am not a Hawaiian. I am not a native Hawaiian. I am a Kanaka Maoli. That means human being, not artificial, not artificial like the State of Hawaii. Not artificial like annexation. Not artificial like seated lands, there is no such thing. Protect our Aina, which is your job, mahalo. Ms. Rhoda Libre: Aloha, my name is Rhoda Libre and I am from the West Side of Kauai, the Kona District. I am here to support tita Cheryl. I concur with all of her remarks. I wanted to ask, I understand he said he had no complaints on the activities there but I would like to find out if there were any other complaints about their vans going through. I understand that Planning Commission Minutes November 23, 2010 11 the ATVs have limited tours and I understand they have like 4, maximum 12. What is the capacity for their vans traveling and what is the complaints on that as well. I understand they did have some complaints on the vans. Chair: Before we answer that what else is on your testimony? Ms. Libre: Just to concur and I agree with Cheryl especially for no comments from DLNR and DOH. Staff: The issue of the vans did come previously in discussions, currently there is no limit on the capacity of the vans driving up there, if the Commission so feels then a condition can be imposed. Ms. Libre: What is your instrument of accountability towards the management of that area or is that inactive? Chair: The management of the area as far as the use? Ms. Libre: Of the activities in the area and the use, is there any accountable management there or is it inactive, is there a vehicle of policy? Is there the accountability that someone from the County or someone else will come and check that they are doing what they are doing? I would like to the instrument of the vehicle that takes care of those policies if there is any in existence. Mr. Jung: Are you talking about speeding on the roads? Because if it is on a County road than the Kauai Police Department would be the complainant who would be enforcing those. But if it is on a private road then our speeding laws aren't really applicable. Ms. Libre: But then at that point isn't the permit from the County to regulate those activities, is that correct? Mr. Jung: It is to regulate the land use activities but if they are speeding in a van that is going to fairly hard to regulate. Ms. Libre: So where is the policy to regulate the activities that that would be applicable to that? Chair: Applicable to the what, the driving? Ms. Libre: The accountability of what they are saying is credible. Staff: I think what the County Attorney is saying is pertaining to speeding there are no actual laws applying to private roads however if the Commission feels it is prudent it could, I don't see any objections, we could impose a condition that a certain mile per hour not be exceeded on the private roads. Ms. Libre: And also the vans that are going, I had to complicate this, I am just asking questions. Mr. Jung: You have to understand when we deal with land use type activities we have to have, if there are going to be connections to the activity it has to be related to the proposed activity. So if you want to limit the amount of vans you would look at making sure certain times of day is only available for use of the land but in terms of how many vans go up, we can't control their business per say. Ms. Libre: Like for example Hulaia River they have a cap and even with DOBAR they have a cap on the passengers on their boats and such so I was just wondering if this would be the same instance that would help regulate that area. Mr. Jung: For van use? Planning Commission Minutes November 23, 2010 12 Ms. Libre: Van and activities like tita Cheryl said about quality use in the area, the water quality and environmental. I was just wondering if there was an instrumental policy that can give accountability. Mr. Jung: Normally if there was a 343 document that would address all those issues but the State law doesn't require a trigger for this type of activity. You could seek the legislature to have them be more pervasive in what types of activities trigger a 343 document. Mr. Costa: Rhoda I want to thank you for your testimony and I am not sure how we got stuck on vans and speeding but I heard more than that and it is about, I believe you are speaking to the enforcement of conditions of approval of a permit. That is the responsibility of the Planning Department much like speeding and enforcement of that, there are only so many officers and typical of Kauai we rely on the public to help keep us informed if people aren't following the rules. Ms. Libre: So does that area have like all of the Kuleana owners and the landowners, do they have like a board or a committee to address any other public concerns as well? Mr. Costa: I don't know organizations are out there for that purpose but certainly this Commission and the Planning Department is that body with respect to permits issued. Ms. Libre: The only reason why is because I come from the Kona District and we see a pattern that is happening in the Kona District that is not only on the Ag. lands but going into our cultural gathering waters and in the rivers for which there are no permits for VDA or visitors destination activities. And it is a growing concern, thank you. Mr. Costa: Again no matter what department or what aspect of enforcement there aren't as many resources as we all would hope so again on Kauai administration of the law relies extremely on public input, reporting when people don't follow the law. Ms. Libre: That is why Kona District is making ready for that so, mahalo. Chair: Anybody else in the public like to testify on this agenda item? Seeing none I will bring the meeting back to order. Being that we have not received the SHPD comments we can first entertain a motion to receive the Director's Report. Ms. Morikami: Mr. Chair, move to receive the communication from the Planning Department and also the communication from Cheryl Obatake. Mr. Nishida: Second. Chair: All those in favor say aye, opposed, motion carries. Next would be the entertainment of action, if not we could, or pending the comments from SHPD... Mr. Costa: I believe that we are up against a timeline for taking action on this application unless the applicant chooses to waive or extend that the Commission should take action in whatever manner it sees fit. Mr. Nishida: I have a question regarding that. I think what Cheryl said was that SHPD is not responding because they don't have the time to collect the records or whatever. Do you expect a response back from them, you tried contacting them? Staff: We did try contacting them several times however no further input was given. Mr. Nishida: So they didn't say why they weren't? Staff: No. Planning Commission Minutes November 23, 2010 13 Mr. Costa: The department did meet with managerial staff of SHPD a few months ago, we were advised that since Nancy's absence there is no one working on Kauai. Mr. Nishida: So should we issue a permit and a problem occurs then the permit, we can recall the permit and take a look. What are the parameters regarding that? Mr. Jung: Just so you guys know how the law works with regards to the State Historic Preservation Review process, there is recent case law through the Hui Malama Wal-Mart case that requires the department to solicit comments from SHPD for review and comments of any proposed activities if there is going to be an effect on historic property aviation artifacts. So technically we are not required to submit for SHPD's review and comments on everything, it is just the practice of the Planning Department to require SHPD's comments on everything. In this particular case there is no real evidence where these particular poles or depth holes where the holes are going to go, that any historic properties are going to be affected. But just so you guys do know if there are historic properties found the law requires them to go to SHPD and let them know if there are any burial sites found while digging those post holes. And those are called inadvertent studies so there are backups to this particular problem where if there are not comments from SHPD because they didn't meet their deadline and if they are digging and they do find historical properties then they have to stop and they have to go to SHPD to the finding and let them know. Mr. Nishida: What is the definition of historic property? Mr. June: Historic property is anything over 50 years old. Mr. Nishida: So it is an actual artifact? Mr. Jung: Yes. Mr. Nishida: So it's not land. If it was a structure like a stone platform or something that clearly would be something affecting the historic property, right, and the land it's self is not considered as historic property. Mr. Jung: If we were to say the land was historic property then all of the land is 50 years old or more. Mr. Nishida: Well I think comments regarding the area because the area is historic legends regarding it (inaudible), Pele and all of that. So that is, by law, is that a historic property? Mr. Jung: From what I have seen in going through the historic review process of certain projects given that the department does refer everything up, all permits, up to SHPD and when they do find that there may historic properties affected then they go through this 6 step process to not only identify the historic property but do an evaluation of the significance of that historic property. And then if it is under criterion in E which is the most historic being of pre-contact Hawaiian then there are certain mitigation plans that need to be done and whatnot. But it is only if there is a historic property found to be affected. Mr. Nishida: And you are still talking about an artifact or a structure. Mr. Jung: Yes. Mr. Nishida: You are not talking about an area. Mr. Jung: Right. But I am not an archeologist so I couldn't comment. Mr. Nishida: So why we are on that, the limitation to the...you know the State law that requires the County to make rules regarding agro-tourism, it's not ecotourism but ago-tourism, but to me it is like tourism on agricultural properties. So should the County develop these rules as some point? How does that affect a permit that was issued? Planning Commission Minutes November 23, 2010 14 Mr. June: Well given we have no rules, we have no regulations in place other than what is already provided for in our Ag. Districts. Mr. Nishida: So should those rules be implemented? Mr. June: We can't retroactively apply those new rules because we don't know what those rules are right now but in the future if there are more applicants coming up this body does have the right now introduce legislation. So if you want to start introducing agro-tourism you certainly could do that. Mr. Nishida: Or could a condition be applied that this permit would be good until rules were established? Mr. June: I think it is vague at that point to say which rules would be established but if you want to put a time constraint on you certainly can. But to say when rules are going to be established I think that may be a little problematic because remember if there is ever a challenge to a permit and whether or not the conditions are followed it is going to be to that specific language of that permit, that condition. So you have to be real clear in what you want to say. Mr. Nishida: A question for the department, a time limit to these Use Permits, I don't recall doing that. Have we ever done that? Has the department ever done that? Mr. Costa: We routinely place time limits on permits but at least in my experience what is a problem is to say that given a certain time frame that a permit becomes null and void. I don't think you can do that, place a time frame by which they would have to come back and renew or address certain things but it doesn't automatically become null and void. Mr. Nishida: Yes, that would be different. You put time limits on construction, different kinds of time limits but a time limit where a permit where use is not allowed anymore, that is something... Mr. Costa: In my experience but we might get clarification from the County Att orney. You know, Commissioners, I did want to touch on...I think what I heard you say, I would not be able to say that a particular place if it didn't have any structures or physical artifacts could not be a historic place. I believe it could. Mr. Nishida: So would this one be? Would this be a historic property? Mr. Costa: Well number one I think it clearly is considered a historic place, culturally. As far as placing it on a historic register of some kind, that could also be done but I don't believe that is the case currently. Mr. Nishida: My thinking is that for this particular permit what had happened was they came in because they wanted to increase the number of zip-lines that occur. Previous to this because the commercial activity was somewhere else a Use Permit wasn't required. So because they are coming in for the zip-line and I want to thank you and the department for making that clarification because I think this really is a commercial use of the property. But you are using the specific thing because the structure was going to be erected and that was the Use Permit and Special Permit was required. So I think that was a good move by the department. Mr. Costa: I do want to clarify, not to be inconsistent with the planner's report but we haven't, I haven't made a conscious change in policy, it has always been my policy for any commercial use in Ag. or Open it requires a Use Permit and Special Permit in the State Land Use Ag. District. When we are informed by good citizens what permits are required before the activity is conducted. Mr. Nishida: But this wouldn't bean after the fact permit they just established the use of this zip-line area and whatnot. The previous permit allowed for this particular thing. Planning Commission Minutes November 23, 2010 15 Mr. Costa: It didn't allow for zip-lines, no. Mr. Nishida: Oh, okay. My thinking anyway is that part of the problem is that they are coming in and we are getting all these questions regarding the use of the property, not so much that the project is not good. So I am thinking about a way in which to give the...I don't think you are going to get anything from SHPD for a while so what I am thinking is there some way you can give them the permit and get some kind of review process other than a status report because I don't think... a status report is supposed to only address these things. A status report really does nothing unless they didn't do some condition. And the areas of concern are not regarding what is in the condition it is what we are not looking at. Mr. Costa: I believe we could require a status report and require certain, put requirements on that status report such as getting whether it is 6 months, 3 months, or one year, get concurrence or comments, have them provide concurrence from whatever agency you feel necessary. Mr. Nishida: Did you get that Kaaina? Staff: You are referring to a timeline requirement? Mr. Nishida: I think what he is saying is that the status report would include something from SHPD or I think Aquatic Resources. Staff: Currently there is no recommendation for a timeline requirement so we could impose... it is up to the Commission's discretion to impose such a condition in which could be injected a status report from either DOBOR and/or DLNR SHPD. Mr. Nishida: And then should a negative report come back from them then we could address it at that time. Mr. Costa: In other words you are putting the burden on the applicant to prove they are not negatively impacting something as opposed to us having to catch them. Mr. Nishida: That is what I think, if there is some way we can approve the application and still get confirmation later on regarding ...I don't know how the other Commissioners feel though. Chair: Well before we make amendments to the conditions the Commission as a whole needs to either entertain a motion for approval or denial and then from there.... Mr. Nishida: I would like to see something like that happen so what I am going to do is I am going to move to approve so that we can make amendments to the thing if that is what the Commission wants. So move to approve 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 recreational facilities including zip-line facilities on lands located approximately .25 miles east of Kipu Road and Aakukui Road intersection, Kauai, further identified as Tax Map Key 3-3-001:001 and 3-3-018:002, and 3-1-002:001, affecting an area of approximately 5 acres, Outfitters Kauai Ltd. Mr. Kimura: Second. Chair: Before I call for the vote we will go into discussion. Ms. Morikami: Mr. Chair, I would like to make an amendment to that motion and rather than authorizing 6 additional I think we need to look at, I think 12 seems excessive. So looking at the map here I would like to make a motion that we do not these 3 that are right across the stream northward. So these 3 would be not part of the 9 total so I would like to make that motion that we amend it from 12 to 9. Planning Commission Minutes November 23, 2010 16 Chair: There is a motion on the floor to approve and if we want to amend a condition or revise a condition we can definitely entertain a motion if the Commission as a whole decides to. I was going to call for a caption break is there any other amendments on the floor that the attorney and the planner can work out while we are in recess? Ms. Morikami: Mr. Chair, I also would like to offer another amendment that on the recommendations it specifically mentions issuance of building permits. Chair: Repeat that again? Ms. Morikami: On the recommendation, it is section No. 7, it describes the departments but I think we need to specially mention building permits from the Building Division. It is not specific enough, just so that we all know the zip-lines need building permits. Chair: Any more conditions that they can possibly work out? If not then let me take a 10 minute caption break. Commission recessed for caption break at 10:50 a.m. Meeting was called back to order at 11:03 a.m. Chair: So there is a motion for approval and I guess we are going to add or delete (inaudible) so do you want to start off with the first one concerning the condition the Commissioner proposed. Staff: The language would read... excuse me? Chair: What number is this? Staff: This would be a brand new condition, condition No. 10, and it would state "The applicant shall provide the Planning Commission with an annual status report concerning the tour operations. Said report shall include but not be limited to addressing any subsequent comments received from the Department of Land and Natural Resources, SHPD, and DOBOR. Chair: Would you read that again please? Staff "The applicant shall provide the Planning Commission with an annual status report concerning the tour operations. Said report shall include but not be limited to addressing any subsequent comments received from DLNR, SHPD and DOBOR. Mr. Nishida: So the type of report that we consider (inaudible) says this and this, or we are not doing this. Unidentified Speaker: We are not talking about new hearings, right? Staff: One is an annual status report. If you want to go...if it's going to go before the Planning Commission, technically indeed, it could open up review of the entire application. Chair: Commissioner, is that what you wanted? Mr. Nishida: If there is something wrong ...if everything was okay you can do them in the morning and you're going to receive the status report. If there were problems from SHPD or DOBOR then you might ...a negative report from DOBOR or SHPD...if might be a problem. Staff: Did you want the status report to focus only on SHPD or DOBOR? Mr. Nishida: No, just in general. Planning Commission Minutes November 23, 2010 17 Mr. Jung: If everything went smoothly you could say that it would just focus on SHPD or DOBOR but it would be up to the Commission at that time whether or not they wanted to re- review the entire application, as the entire application is on the docket. Unidentified Speaker: And any complaints by the community or the Kuleana people? Mr. Jung: Of course it would open it up to comments from the public, complaints from the department, but comments from the public to testify on the matter at hand. Mr. Nishida: So process wise, this requires a motion by me to approve that and a second? Chair: Well if the condition as read, you really want them clean, then we'll vote and if there's any discussions prior to that. Mr. Jung: This is a use permit, or a use permit is one of the permits. So any time someone determines, and this is...I have to choose my words carefully here. Mr. Blake: If the use provided by the permit is not compatible or is no longer compatible then the permit comes back for reevaluation? Mr. Jung: No, the compatibility is determined by this body. If there was a violation of say conditions of approval that had been imposed by the Planning Commission or say if there's a violation of specific County of Kauai Ordinance or statute, it could potentially come back to this body if it's not rectified. It would be at the discretion of this Commission whether or not that use is still compatible. Mr. Blake: So up to that time it doesn't come back to us then? Mr. Jung: Correct, unless of course an annual status report is required. Mr. Blake: Well the annual status report will be like the ones we have seen, like the ones we've seen recently where condition 1 requires that we do this, and we are doing this. The condition requires this and we are doing that. Is that the type of status report we are talking about? Mr. Jung: It would be that type of status report. But I just didn't want to give any total assurances that this would guarantee that the application will not get necessarily re-reviewed. If at that time the Commission feels there is something else it wants to look at in the application, or if another impact or concern is raised by the public, indeed the Commission has the ability to review that aspect. And should it find that that particular concern is an impact that serves to...that makes the proposal or project no longer compatible either with the land it's on or the properties, indeed it is the Commission's power to deny that application. Also, respective of any status report, if you... if the Commission gets any information that you feel so warrants you can issue a cause to amend, modify, or revoke, two proper procedures. That's inherent in the use parameters. It's not (inaudible), any applicant operating under any Use Permit of any kind. Mr. Costa: It's applicable to all Use Permits. Like it was pointed out you can pull the Use Permit back at any time for just cause as well as when it's before you for review, albeit just an annual status report it is essentially for your review. Chair: That will be condition 8 by the way. So if there's no more discussion I'll ask for a clean reading of the Commission's motion. Staff: "The applicant shall provide the Planning Commission with an annual status report ...excuse me. This should read as condition No. 10. "The applicant shall provide the Planning Commission with the annual status report concerning the two operations. Said report shall include but not be limited to addressing any subsequent comments received from the Department of Land and Natural Resources, State Historic Preservation Division, and/or Division of Boating and Ocean Recreation Small Boat Harbors." Planning Commission Minutes November 23, 2010 18 Mr. Nishida: Move to approve as read by the planner. Mr. Kimura: Second. Chair: Any discussion? Mr. Haviland: Thank you Chairperson, Commissioners. Can I ask a question? Chair: You can ask the question of me and I can address it. Mr. Haviland: As I understand it, what we are talking about is a staff report that would essentially put our permit up for complete review and possible revocation if there is a cause, is that correct? Mr. Jung: No. That would be one of your conditions that if someone made an allegation to the Planning Director you were in violation of one of the conditions then your permit would be up for review or what we call an Order to Show Cause. It's an OSC through our Chapter 12 process. What I think condition 10 impacts in sort of what is going to happen is you'd have to provide a status report, a yearly status report as to the operations based on the conditions of approval. And if the State Historic Preservation Division does any comments on our particular project then you'll have to address those conditions or address those comments and then reflect that within the status report. Mr. Haviland: Thank you. We are certainly agreeable to performing as required and submitting to review. It would be...but it would be a tough environment to work in of m employees and myself felt like we were looking over our shoulders every year, you know, wondering if we're going to still have a job. So is there a way that we can craft some review that is satisfactory to the Commission that is more reassuring to my employees and me? Maybe the report could be submitted to the Director for the Director's review? I would like everybody in my company to feel secure and safe in their work. And I certainly understand that we need to be compliant with conditions of the permit. We want to assure you that we'll do that. Chair: On that note, as a Commission, as we balance the comments between the community and yourselves and as Jan has stated to your, being good stewards, there has to be a balance and there's got to be borders. This is the part of our balance, that we keep you in check and we keep the community in check and its balances that we do. So in this kind of crafting of these kinds of conditions, that keeps you in check and keeps us in check. And I think it's a neutral ground that it's a good use on your business. And if you have a good stewardship in the future and perform, I don't think there's anything to be worried about if you have a job or not. If you are good stewards and you continue what you do, you will be fine. Mr. Haviland: Thank you. Chair: With that, Commissioners... Mr. Blake: Actually I have the same question he had but I do know the answer. Is there a way the department can just look at it? To receive and look at the annual status report? Mr. Costa: I just want to say that I, at least since the time that I've been here, I've made it a priority to, in most cases and not all cases, but to require or recommend that an annual status report be provided to the Commission as a means to put-to continue placing that responsibility on the applicant. This is not an unusual condition by any means. The options that the Commission may have as we discussed, the Commission has on any permit issues. But again it was a means to help put the burden on the applicant and not necessarily wait for the department to find something out. But through annual review, have the applicant report on his compliance with those conditions, and being consistent with his representations that allowed the Commission to approve that application. Chair: Commissioner, you're okay with the condition as read that the status report does return back to the full Commission? Planning Commission Minutes November 23, 2010 19 (Inaudible). Chair: Okay, with that, there is a second on the floor, any more discussion? All those in favor say aye, opposed, motion carries. On motion made by James Nishida and seconded by Jan Kimura, to add condition 10, motion carried unanimously by voice vote. Chair: Any more amendments? Staff. Concerning Commissioner Morikami's request for having a specific question addressing the building permit, the Building Department would recommend a new condition also be imposed and that would be condition No. 11. It would read "The applicant shall apply for and receive the necessary approvals from the Department of Public Works Building Division, including but not limited to approval of the necessary building permits." Chair: Any discussion? If it is clear and there's no discussion you can make a motion as read by the... Ms. Morikami: Mr. Chair, I move that we approve that condition as an additional condition. Ms. Matsumoto: Second. Chair: Before I call for the vote does the applicant want to comment? (Inaudible.) Chair: All those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Camilla Matsumoto, to add condition No. 11, motion carried unanimously by voice vote. Staff. Concerning questions, comments, request or recommendation that the three of the future suppliers actually be denied. The department would recommend that condition No. 1 as recommended be amended to read as follows. "The proposed structures and facilities shall be constructed as represented with the exception of 4 zip-lines, 7, 8, and 9, which are here by denied. Any changes to the approved structures and/or facilities shall be reviewed by the department to determine whether Planning Commission review and approval is required." Chair: Any discussion? Ms. Morikami: Yes, Mr. Chair they presently have 6 existing zip-lines, they are asking for 6 more. To lessen the impact I think ...I'm feeling that that would be the compromise and eliminating the 3 on the north here by the stream. In looking at the existing zip-line companies, there are four on the island, one company has 2 zip-lines, the second one has 7, and the third has 3. And this applicant is asking for 12 and I just feel that 9 will lessen the impact. If they want to... after meeting the conditions and then come back, a status report in a year and if the Commission at that time feels the additional 3 are justified that would be fine. But to double the amount at this time without any comments from SHPD, I just feel that it's necessary that we restrict it. That's my opinion. Chair: Can you put on the map which 7, 8, and 9 she is talking about, any more discussion among the Commissioners? Mr. Blake: The applicant came in and asked for 6, the Planning Department dealt with 6, and the public has been able to testify on 6 so I don't see where there is any demarcation line that arrives between 3 and 3. Planning Commission Minutes November 23, 2010 20 Ms. Morikami: The applicant is asking for 12 zip-lines total. He already has 6 existing and they are asking for 6 more. And the concern regarding the stream, that's why I felt that those 3 could be deleted and they would still have an additional 3, making it a total of 9. Mr. Blake: When I went over this, I could have missed it, but I didn't notice any impact, stated impact except for the fact that it would be there. Like I said, the department has evaluated the request for 6 more and I didn't notice any reservation or problem with the additional 6. Or, that 3 were really good and 3 were really not so good, an additional 3 were not so good so to me this evaluation process has already taken place, is taking place right now. But none of my questions about negative impacts except for the fact that they are there were addressed. And again, it's private property. The private landowners have approved, the overriding environmental considerations appear to have been met so what's the problem? I understand where you're coming from when you said first 6 and now its double. But it could have been one and one more would have been double too. Mr. Texeira: (Inaudible). Ms. Matsumoto: Specifically she is addressing those 3 that are crossing the stream, Hulaia Stream has important cultural and other significances and I would like to support what Paula has recommended. Mr. Nishida: I agree with Hartwell. I think the recreational use of agricultural land ...I think what Rick described, these recreational facilities outside of the public responsibility and maintenance, talking about, you know they take this on and the customers come in and they pay for it. And these recreational facilities are outside of government. And then there are a lot of opportunities, the beaches and public areas are precious to everyone, I think. And I really, I thought that was a good point that Rick brought up that these things was outside of the ...and giving someone an opportunity to do something different and providing jobs and all of that. The problem is of course the impact on these agricultural lands and I think in general because this is a particular individual application, I think we have to look at the whole thing in general and come up with some rules. But we are not there yet. I will vote to go with what the applicant is proposing. Chair: With that being said, I agree with Jimmy and Hartwell. Most of these zip-lines are crossing the river already. As far as the impact, I don't see any significant impact on the property. Mr. Haviland: Hulaia is crossing only one (inaudible). She is talking about the north Hulaia stream. Chair: Over here? Mr. Haviland: Yes, there's this one. Chair: Would you like to...one of you can come up. I'm not going to give you... Mr. Haviland: I would just like to correct a misimpression. Commissioner Morikami, I think the reference material you have on the zip-lines is outdated and I think the actual correct number of the other 3 companies is 12, 8, and 7. We presently have the least of any of the existing companies and we are trying to go through a current process to be equal to and competitive with, thank you. Chair: Thank you, with that, there is a motion on the floor; there is a second, any more discussion before I call for roll call? On motion made by James Nishida and seconded by Jan Kimura, to approve staff report as amended, motion carried by the following roll call vote: Ayes: Morikami, Matsumoto, Texeira, Raco -4 Noes: Blake, Nishida, Kimura -3 Planning Commission Minutes November 23, 2010 21 Absent: None -0 Not Voting: None -0 Memorandum (11/17/10) from Planning Director Ian K. Costa correcting the memorandum dated September 9, 2010 and agenda of September 28, 2010 to reflect the correct zoning amendment number of ZA-2011-11 for a bill to consider the addition of an additional section to Chapter 8, Article 24, relating to the imposition of civil fine authority for the County of Kauai Planning Department. Chair: This is just a motion to receive, if the Director would like to... Mr. Costa: Actually if we can get a motion to accept the recommendations and acknowledge the correction. Ms. Morikami: Mr. Chair, move that we accept the communication and the correction. Mr. Nishida: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by James Nishida, to accept the communication and recommended correction, motion carried unanimously by voice vote. SUBDIVISION Mr. Nishida: Subdivision Committee meeting, Tuesday November 23, 2010, present me, Camilla Matsumoto, and Jan Kimura. No general business, communications, or unfinished business. New business, tentative subdivision action for S-2011-10, Kukui`ula Development Company (Hawai`i), LLC, TMK 2-6-016:056 and 057, approved 3-0. Final subdivision action S-2006-43, Isabel M. Parraga, TMK 2-4-005:020, approved 3-0. Tentative subdivision extension request S-2005-26, Kapa`a 382, LLC/Kulana AOAO, TMK 4-3-003:005, approved 3 to 0. Motion to approve subdivision report. Ms. Matsumoto: Second. Chair: Any discussion? Ms. Morikami: Yes Mr. Chair, on item D. La I will abstain from voting because of a possible conflict of interest. Chair: All those in favor say aye, opposed, motion carries. On motion made by James Nishida and seconded by Paula Morikami, to approve Subdivision Committee Report, motion carried unanimously by voice vote. NEW PUBLIC HEARING Use Permit U-2011-6, Variance Permit V-2011-1 and Class IV Zoning Permit Z-IV- 2011-6 to permit the construction and operation of a telecommunication facility that includes a 165 ft. high stealth monopine (a monopole designed to look like a pine tree) and associated equipment at a site located on a cane haul road approx. 90 ft. north of the cane haul road's intersection with Kaumuali`i Highway intersection, said intersection is located approx. 1.7 miles west of the Kaumuali`i Highway and Kjii Road intersection, and approx..40 miles north of that area generally referred to as Halfway Bridge, further identified as Tax Map Key 3-4-001:003, and affecting a 600 sq. ft. portion of a 2,668.037 acre parcel = Verizon Wireless. Director's Report pertaining to this matter. Chair: Kaaina, on this matter for the Use Permit U-2011-6, Variance Permit V-2011-1, and Class IV Zoning Permit Z-IV-2011-6 has been postponed? Planning Commission Minutes November 23, 2010 22 Staff Planner Kaaina Hull: Yes, the applicant failed to meet the notification requirements established under section 8-19 of the Kauai County Code and as such the public hearing for that matter has been rescheduled for January 11, 2011. Chair: Since this is a public hearing is there anybody that would like to speak on this agenda item? Seeing none we could motion to receive the letter. Staff: I would just like to make a correction on the agenda it was listed as Verizon however it is Sprint. It is a type error that will be obviously corrected come the January l lth meeting. Chair: So motion to receive the letter for postponement. Ms. Matsumoto: So moved. Ms. Morikami: Second. Chair: All those in favor say aye, motion carried. On motion made by Camilla Matsumoto and seconded by Paula Morikami, to receive the letter into the record, motion carried unanimously by voice vote. Zoning Amendment ZA-2011-2 (Draft Bill No. 2380) to Sections 9-2.13 & 9-3.4 of the Subdivision Ordinance. Chapter of the Kauai Coun Code (1987), as amended relating to exemptions from infrastructure improvements involving the consolidation of lots and approval of preliminary subdivision may, respectively = Kauai County Council. Staff report pertaining to this matter. Staff Planner Dale Cua: Thank you Mr. Chair. Before I start I am going to pass out some public testimony that just received regarding this agenda matter. Chair: This is a lengthy testimony and being that we are receiving it on the floor do we want to take a recess to read it? Mr. Nishida: I would like to refer it to the next meeting. Chair: So Dale, we will take public testimony and being that we got this testimony, a long one, there will probably be a motion to defer or continue. Let me just ask in the audience, there is no sense reading it through, I don't want to... Staff. I know there is a Councilmember waiting, did you want him to make a presentation or if you just wanted to wait. Chair: He wants to make a presentation? Staff. I think so. If you want to take a minute recess I can check to see if he would like. Chair: With the time frame that we have maybe we can defer and we can ask him to defer his testimony. Mr. Costa: Is it a Councilmember that will still be the Councilmember if deferred? Staff: No. Chair: Then let's just defer. Is there anybody in the audience that would like to testify on this agenda item? Seeing none we can entertain a motion to receive the testimony. Planning Commission Minutes November 23, 2010 23 Ms. Morikami: Mr. Chair, move that we receive testimony from Avery Youn, Architect, and Tom Shigemoto with A&B, and to also receive the staff report. Mr. Nishida: Second. Chair: All those in favor say aye, motion carried. On motion made by Paula Morikami and seconded by James Nishida, to receive testimony and staff report, motion carried unanimously by voice vote. Ms. Morikami: Mr. Chair, move that we defer this matter. Mr. Nishida: Second. Chair: And keep the public hearing open. Mr. Costa: The motion should be to continue the public hearing to whatever meeting. We need to continue it to a specific date. Ms. Morikami: Mr. Chair, move that we continue this public hearing. Mr. Nishida: Second. Mr. Costa: To the December meeting? Mr. Nishida: Yes. Mr. Costa: So that would be December 14`n Chair: We don't have to put a date. You guys can worry about the date. Mr. Costa: On continuations of public hearing you do. Chair: So what is the date? Mr. Texeira: December 14tH Chair: December 14`n, all those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by James Nishida, to continue the public hearing to December 14, 2010, motion carried unanimously by voice vote. Use Permit U-2011-7 and Class IV Zoning Permit Z-IV-2011-7 to permit the construction of an addition to an existing single family residence in Open-Special Treatment District within Sea Cliff Plantation on Kakanaano Drive, located in Kl11auea, approx..25 miles from the intersection of Pali Moana, further identified as Tax May Key 5-2-004L092, and containing a total area of 5.287 acres = Mark Hurt. Director's Report pertaining to this matter. Hearing was continued to 12/14/10. NEW BUSINESS For Acceptance into record - Director's Report(s) for Proiect(s) Scheduled for Public Hearing on 12/14/10. (NONE) Commission recessed for lunch at 11:55 a.m. Meeting called back to order at 1:24 p.m. Planning Commission Minutes November 23, 2010 24 Letter (11/16/10) from Planning Director Ian K. Costa to Chairman Raco and Members of the Planning Commission offering his resimitition as Director of Planning for the Commission's acceptance. Mayor Bernard P. Carvalho: Aloha Commissions, thank you so much for the opportunity to speak in regards to communication from our Planning Director. And I would like to...Mr. Costa's letter of resignation is a discussion and I just want to say, first of all, taking off my Mayor's hat and talking as Bernard and knowing Ian from hanabata days growing up so I have know him for many, many years and Kapa`a High School. And Ian and I both know what it is to have family around you and grow and have opportunities and be able to do good things and the heart and soul is for Kauai no matter what, a lot of respect for Ian and the good things that he has done in his current position. So I would just like to thank Ian for all his work and great work that he has done for the Planning Department. But there are some good things ahead and he has done some great things in the department and developed some great relationships and some good, good, sound relationships with the business community. So there are a lot of good things. But I just wanted to make sure that you understand how Ian is a big part of our team. I would like to also say that Ian will continue to be part of our team. I did offer Ian a position in our cabinet which he has accepted and I am happy for that. We look forward to moving in a direction that I feel ...I can't make an announcement about that right now but I will, that I feel will help us as a team move forward. And I look forward to working closely with Ian of course and his knowledge and his background and all the relationships that goes with him but stays within the team so that is a good thing as we look forward to doing good things for the people of Kauai and Niihau. I pledge my support to work closely with the Planning Commission to assure that we work closely as we move forward and again I would like to really thank Ian for all his work. But know that he will remain part of our team and we are going to do some great things. My warmest aloha to you Ian and mahalo to the Commissioner's again and to all the staff who work in the Planning Department. I know they are going to miss Ian but he will be right across somewhere so the relationship which is so important in what makes us as decision makers do the things we do to get to the action of what we have to do is all about the relationships. So I really wanted to send my aloha out to Ian and all the work that he has done and to you the Commissioners who have really supported him throughout the time, aloha. Chair: Thank you Mayor, are there any comments from our Director that you want to make? Mr. Costa: Mahalo Mayor. Mainly I just want to thank the Commission for working with me and giving your support but more importantly and most importantly to the staff of the Planning Department, awesome department, very small but yet big shoulders. We carry much responsibility for one of the smallest departments. And I just ask that the team carry on many of the initiatives that we have well under way and mahalo. Chair: Any of the Commissioners want to comment? Mr. Blake: The K61oa Community Association sent a lay for Ian, it was presented by the Commission's secretary. I was going to do it but I think he would rather she kissed him but it was in appreciation for all of the help that he has given the K61oa Community Association and it is with our best wishes that he continue to be of service to the greater community and to the K61oa Community Association. We sincerely appreciate his time, his effort, and his attention. Chair: Anybody else? Mayor Carvalho: If I may, we also have a lei for Ian and I just wanted to offer that at this time. And in the meantime putting back my Mayor's hat because it is still off, now is where I need to make some tough decisions. As the Mayor I have to make some tough decisions and I just look forward to working closely with the Commission as we move forward and doing the Planning Commission Minutes November 23,2010 25 best we can for the Planning Department and the big challenges and initiatives we have to look forward to and working towards solutions, thank you. Chair: Anybody else want to say anything? Mr. Kimura: I just wanted to thank Ian for supporting me being new on this Commission. Whenever I needed anything, any questions answered whatsoever Ian was always there. He had an open door policy to me and any other Commissioner here. It is sad the situation we are in and the direction we have taken but I just want to say thank you very much Ian for being there for me and I appreciate everything that you have done for this island and myself, thank you. Ms. Matsumoto: When I think of Ian I think of Kauai and I want to thank you very much for all that you do. Especially I was really impressed with the work that you do up in Koke`e and also with Kawaikini School and the clearing of that land and smoothing out the dirt and putting up the tents and getting furniture and all of that for the children. I was very touched and impressed with that, thank you. Chair: Anybody else? With that, Ian, I want to also extend my gratitude for you as my Director, being Chair this year was a good experience. Knowing you not only at the Commission but with the extent that you go to, to know us, all of us personally, with all the functions that ...you always tried to have the Commission and staff as a big `Ohana and I think that is part of the Mayor's style too is that we all want to be a big `Ohana. I appreciate you extending again, getting to know me personally and to know my family and I appreciate all the work you did for the island of Kauai. So with that, are you good Mayor? Mayor Carvalho: Yes I am good. Chair: If there is anybody in the public that would like to speak on this agenda item? Ms Ain.: Ian I would just like to say thank you for the many years of service you have given us. I had the pleasure of teaching your two sons and you in turn taught my son and I am grateful for that. I know where your passion is having known you all these years and we are all about Kauai and so is our Mayor. And I just said to him this morning wherever you go, wherever you are needed or Imai is needed that is where you will go to serve the Mayor and what is best for Kauai so thank you Ian. I know that wherever you go you will do well, thank you Mr. Chair. Chair: Is there anybody else in the public, if not I will bring the meeting back to order on this agenda item, oh, Neil? Mr. Neil Clendenin: My name is Neil Clendenin and I also wanted to say thank you for the times you spent, the years you have spent with the County and really doing this job. I know your heart and your passion is in this and it has been really appreciated, the things you have done. So I wish you the best in the future and things will be really good for you here on Kauai I am sure. It sometimes doesn't look that way but I am sure it will be. Mr. Costa: Thank you Neil. Chair: Anybody else, if not then I will bring the meeting back to order, what would be the pleasure of the Commission or discussion? Ms. Morikami: Are you asking for a motion? Chair: A motion to receive. Ms. Morikami: Mr. Chair, first of all for the record let's receive the communication dated November 16, 2010 from the Office of the Mayor, so my first motion is move to receive this communication. Planning Commission Minutes November 23, 2010 26 Mr. Nishida: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by James Nishida, to receive communication dated 11/16/10 from the Office of the Mayor, motion carried unanimously by voice vote. Ms. Morikami: I am sorry, my motion should have been to receive the communication from the Planning Director, sorry, I will withdraw my motion. Chair: So let me withdraw and who seconded it? Mr. Nishida: Withdraw. Ms. Morikami: Mr. Chair, move that we receive for the record communication from Ian Costa, Planning Director, to the Planning Commission. Mr. Texeira: Second. Chair: All those in favor say aye, opposed, motion carried. On motion made by Paula Morikami and seconded by Herman Texeira, to receive communication from Ian Costa, Planning Director, motion carried unanimously by voice vote. Letter (11/17/10) from Mayor Bernard P. Carvalho, Jr. ex-officio Planning Commission member, to Chairman Raco and Members recommending that the Commission consider the appointment of Michael A. Dahilig as Director of Planning to serve in the interim Chair: Next item, B.2, letter from the Mayor, Bernard Carvalho, an ex-officio Planning Commission member, to Chairman Raco and members recommending that the Commission consider Michael A. Dahilig as Director of Planning to serve in the interim and with that, Mayor? Mayor Carvalho: Thank you again Commissioners. What I wanted to do was to read my communication, I think it lays out, as an ex-officio member of the Planning Commission my recommendation. Dear Chair Raco and Commission members, aloha. I have received a copy of a letter from Planning Director Ian Costa dated November 16, 2010, indicating that he will resign his position as of December 1, 2010. First I would like to express my gratitude for Ian's service to the Planning Department, Commission, and the community at large in his position as Director. I support the decision he has made and it is my hope that Ian will continue to serve the County in another capacity in the years to come. As the Mayor and being an ex-officio member of the Planning Commission I have a great interest in providing the necessary stability, leadership, and support for the department and Commission during this time of transition. I also feel that you, as members of the Planning Commission, need adequate time to participate in a process that will ultimately lead to a sound decision regarding the future leadership of the Planning Department. To that end I would like to recommend that the Commission consider appointing Deputy County Attorney Michael Dahilig to the Planning Director position as an interim measure. This will provide for the previously mentioned organizational stability and ample time for the Commission's activities regarding the selection of a Director on a long term basis. Michael has served the department and Commission well over the past two years as counsel assigned to planning matters and is well versed in the various issues and projects currently under Planning's purview. I have every confidence that his background in planning and land use issues will serve Planning Commission Minutes November 23,2010 27 the County well during this time of transition. That is my communication to you, the Planning Commission. Chair: Commissioners, any questions for the Mayor, seeing none let me take some public testimony, thank you Mayor. Is there anybody in the public that would like to testify on this agenda item? Mr. Glen Mikins: Thank you Commissioners, good afternoon. For the record my name is Glen Mikins. I have a short testimony I would like to read into the record and I would appreciate answers to a couple of my questions. According to the Garden Island, first page article on November 20`", Ian Costa is resigning as Planning Director as we all know and my friend I am sad to see him go and if so there are a couple of important questions. The article said quote, "The Mayor urged the Commissioners to name Michael Dahilig, Deputy County Attorney, assigned to the Planning Department and Planning Commission as interim Director until Commissioners name a permanent successor without any Mayoral directive. First, why should the Mayor be putting pressure on the Commissioners to appoint any person to the interim Director's job when our Charter specifically states under section 1404 that "The Director shall be appointed and may be removed by the Commission." I presume that this would mean Director or acting Director and this choice should be left entirely in the hands of the Commissioners. And too, since the Commission already has a Deputy Planning Director why would it be necessary to have the Mayor urging the Commission to appoint someone else other than the Deputy to that position? Even though the Mayor is an ex-officio Planning Commission member, he has his right to participate, he is making recommendations before the Commission has met and this seems inappropriate to me. After the Commission has met and if they need further guidance and wish the Mayor's thoughts then confer with him and not before. But since the paper gas already stated that his position was this... If it would have been today, the Mayor came up here and Bernard is my friend, if he came up here today and expressed his opinion what he wanted to do I think that is perfectly fine, this is the first meeting you have had about this. But for him to make this statement to the paper, I just question it. So I don't know if anybody wants to answer those two questions or not. Chair: Glen we will take your questions in and get back to you in writing or somehow. Mr. Mikins: Thank you very much. Chair: Is there anybody else in the public? Mr. Rob (Inaudible Aloha members, Rob (inaudible) for the record. As published in the agenda we have a letter received from the Mayor on 11/17 addressed to the committee and members of the committee naming himself as the Mayor and ex-officio office of this committee. My question is which hat was he wearing when he sent this motion here? If he was an ex-officio member of this office he has violated HRS 92.5, Soliciting or asking for votes for a member before a committee... before the meeting actually happens. Also if he was the Mayor, quite recently if everyone remembers there was an ethics case that was decided with the findings of fact in closure of law about an ethics case in the County of Kauai where an Ethics Commission member lobbied for votes for a Commission. There was an ethics complaint and the person was found guilty of lobbying for votes, violating Ethics Commissions ethics rule 20.OE, I believe it is, using his position to gather a position for someone else or himself or others. So I strongly ask this Commission to look into those, ask your lawyer what they are and see if there are any bounds about that, about what went on here and what the (inaudible) is. We have an official that lobbied for votes or asked for consideration before the meeting happened. It was publicized, well publicized in a lot of places and it is a clear violation of State Sunshine Law and Ethics Codes, thanks. Chair: Is there anybody else in the public? Planning Commission Minutes November 23, 2010 28 Ms. Janet Iili: My name is Janet Eli and I just heard about this meeting and I am very concerned. Not about the successor for Ian Costa because I don't know that much about this sort of thing but I just want to express my concern that if was found that Ian Costa has done anything unethical or illegal, I don't think that he should be hired for any County position. And to tell you the truth I don't think that he is very good with the general public. I can remember when a group of us were concerned about building the bike path on the Wailua Beach there where ancient Hawaiian burials exist... Chair: Excuse me madam, we are on item No. 1, B.2, which is the... Ms. Iili: Well I think I have expressed my concern that this man should not be hired by the County. Chair: Thank you. Mr. Ken Taylor: Good afternoon Chair and Commission, my name is Ken Taylor. I am somewhat disturbed about the way that this thing has come down at this point. In all due respect to the Mayor I can appreciate his desire to have continuity and good moving forward but you have a department that has a department head and you have a Deputy Planning Director. And if instead of resigning Ian was just sick and was out for 6 months or something it would be the Deputy Director who would be taking over for that interim period until you were able to make a decision with Ian coming back or not, we know Ian is not coming back because he has resigned. But it seems to me the ethical, moral compass is set that the logical step forward would be to put in place the Deputy Planning Director for the interim period. He has as much knowledge and experience of what is going on in the department as the attorney does. It just seems strange he also has more of a planning background than the attorney has. I don't know what went on in the mind of the Mayor when he made the decision he made, it is his decision and that it is it. But it seems to be that there should be...the real question, what is the ethical, moral compass point us in the direction in and how should we deal with this? We have a very capable Deputy Planning Director and you folks have to make a decision and it is very difficult and it is disturbing to me because the Mayor has made a recommendation, he appoints each one of you to your position and this is where again I have real trouble how you decide how you move forward with this because I see some real problems. I think that you should very strongly consider our current Deputy Planning Director for this position and if you do that it gives him a vote of confidence for the work he has been doing and will be doing in the future. If he so decides when you get ready to move forward with advertising the job, if he decides to apply for that permanent position that is fine. But for the interim there is absolutely no reason in my mind why he shouldn't be the one to consider to put in this position for the interim period, thank you. Chair: Is there anybody else in the public, seeing none I will bring the meeting back to order, what would be the pleasure of the Commission? Ms. Morikami: As far as motions are concerned what are the options? Mr. June: The options are given that the next agenda item would be to discuss and take possible action on the appointment of interim Planning Director you can either receive this communication or defer it, it is entirely up to you because it is not an action item it is just an item as a communication. Chair: What is on your mind? Ms. Morikami: First of all I was going to make a motion that we receive this communication as part of the agenda. Mr. Texeira: Second. Chair: Any discussion, if not all those in favor say aye, motion carries. Planning Commission Minutes November 23, 2010 29 On motion made by Paula Morikami and seconded by Herman Texeira, to receive communication date 11(17/10 from Bernard P. Carvalho, motion carried unanimously by voice vote. Ms. Morikami: Mr. Chair, on the letter dated November 17th from the Mayor I move that we go ahead and we appoint Michael Dahilig to the position of Planning Director in the interim period while we do the job search. Mr. Texeira: Second. Chair: Any discussion, seeing none all those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Herman Texeira, to accept Mayor's recommendation to appoint Michael Dahilig as Planning Director for interim period, motion carried unanimously by voice vote. ADJOURNMENT Commission adjourned the meeting at 1:52 p.m. Respectfully Submitted. 0ta"- 3' 9A? 00 Lam Agoot Commission Support Clerk Planning Commission Minutes November 23, 2010 30