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HomeMy WebLinkAboutpcmin05-25-10 KAUAI PLANNING COMMISSION REGULAR MEETING May 25, 2010 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, Caven Raco, at 9:20 a.m. at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room 2A-2B. The following Commissioners were present: Mr. Herman Texeira Ms. Paula Morikami Mr. Caven Raco Mr. Jan Kimura Mr. Hartwell Blake Mr. James Nishida Mr. Caven Raco Absent and excused: Ms. Camilla Matsumoto Discussion of the meeting, in effect, ensued: APROVAL OF THE AGENDA Chair: Can I get an approval of the agenda? Mr. Texeira: So moved. Mr. Nishida: Second. Chair: All those in favor say aye, motion carries. On motion made by Herman Texeira and seconded by James Nishida, to approve the agenda, motion carried unanimously by voice vote. Chair: Can I get a motion for the receipt of items into the record? Ms. Morikami: So moved. Mr. Kimura: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Jan Kimura, for receipt of items into the record, motion carried unanimously by voice vote. Chair: Meeting minutes for April 27th and executive session for April 27th, motion to receive if there are no comments. Ms. Morikami: Move to approve. Mr. Kimura: Second. Chair: All those if favor say aye. On motion made by Paula Morikami and seconded by Jan Kimura, to approve regular meeting minutes of April 27, 2010 and executive session minutes of April 27, 2010, motion carried unanimously by voice vote. JUL 2 7- 2010 GENERAL BUSINESS MATTERS There were no general business matters. COMMUNICATION Letter dated 5/19/10 from Planning Director Ian K. Costa to Caven Raco, Chair, Kauai Planning Commission, requesting that the Planning Commission initiate proceedings for the following amendment to Chapter 8 of the Kauai County Code. A bill to amend Chapter 8, Section 27 of the Kauai County Code 1987, as amended, relating to the Comprehensive Zoning Ordinance to amend the procedures for establishing shoreline setbacks to incorporate long term annual erosion rates as documented by the University of Hawai`i's Costal Geology Group for the Kauai Coastal Erosion Study and to establish procedures for the Planning Commission to determine whether activities proposed on properties abutting the shoreline are subject to a shoreline setback and activity determination. Deputy Director Imai Aiu: Good morning Chair and Commission, thank you. Basically today, as we do with most zoning ordinance, we are just asking the Commission to initiate the proceedings to hear and consider the bill and the amendment to the zoning code. Chair: Are there any questions? Mr. Texeira: I wanted to ask, I read this amendment to the County Code, I just wanted to know if there were some areas in here that you needed to discuss with us? Mr. Ain: At this time no. All we are asking is for the Commission to introduce the legislation as you and the Council are the only ones who can introduce legislation at any time. So we are asking the Commission to introduce this legislation and schedule it for public hearing and at public hearing on June 22nd, then we would issue the full report and discuss all the details then. Mr. Texeira: So we can make any amendments at that time. Mr. Ain: Yes. Mr. Costa: I just want to say this is a culmination of our three and a half plus years project to map all the sandy coastlines on Kauai and determine an erosion rate and then incorporate those erosion into the actual setback ordinance. Mr. Texeira: So this should help then, this is a good thing in the planning process. Mr. Costa: Yes. It is a setback based on science. Mr. Texeira: So at what point should we ask questions about this, at the next public hearing? Mr. Ain: Yes, at the June 22nd public hearing. Chair: Are there any more questions, if not I will ask the public if there is anybody who wants to testify on this agenda item. Ms. Caren Diamond: Aloha, Caren Diamond. As your planner said this is a culmination of a lot of work. Basically the County decided to do science based, erosion based setbacks removing the arbitrariness of your setbacks. And Dr. Fletcher did the science and mapped out the entire island. Up until now the County has been operating where the setback regulations, the landowners themselves had to go ahead and get that survey and had to do the mapping and the shoreline rate change and figure out that erosion rate themselves. And so this is a really good thing in that it removes the burden from the private individuals and places it with the County Planning Commission Minutes May 25, 2010 2 where it belongs to do the erosion studies. With that said I am a little concerned about some of the other changes that have been proposed in here and so I would like to go over them with you and then maybe as you are forming your questions later you can think about some of these. So if you have before you what they have submitted and the changes they have submitted the first change is to... Chair: Caren, all we are trying to do today is just to receive the application and just to set the public hearing. I think it would be better if we do this at the public hearing if you don't mind. Ms. Diamond: Okay, I will wait, thank. Chair: Is there anybody else that would like to speak on this agenda item, seeing none... Ms. Morikami: Mr. Chair, move to approve the department's request to initiate the proceedings to amend Chapter 8, section 27 of the Kauai County Code 1987. Chair: And schedule the public hearing for June 22na Mr. Kimura: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Jan Kimura, to approve department's request to initiate the proceedings to amend Chapter 8, section 27 of the Kauai County Code, motion carried unanimously by voice vote. SUBDIVISION Mr. Nishida: Members present me and Jan. We had only one item for tentative subdivision action, S-2010-11, Kauai Lagoons LLC/MORI Golf Kauai, LLC, County of Kauai which is a 19 lot subdivision, TMK: 3-5-001:027, 110, 165, 166, 169, 171, 172, 174-176, and 424, Lihu`e, Kauai, passed. Motion to approve the subdivision report. Mr. Kimura: Second. Chair: All those in favor say aye... Mr. Texeira: Could I ask a question? Chair: Sure. Mr. Texeira: I should have been at the meeting to do that but I just wanted to ask about the modification, they requested a change in the original application, right? Mr. Nishida: Yes, they wanted to remove the curbs and gutters and sidewalks requirement for roadways that are within the resort or commercial zoned land. And then what they want to do is they want a more rural ambiance to the subdivisions in that particular area and previously the Planning Commission had approved for two other subdivision lots this similar kind of removal of those requirements. So what they are going to have is a County standard roadway with grass wails along both sides of the roadway. Mr. Texeira: So those other subdivisions, the curbs and gutters and sidewalks was eliminated? Mr. Nishida: Yes. Mr. Texeira: So this is kind of following what was done before. Planning Commission Minutes May 25, 2010 3 Mr. Nishida: These lots are roughly around a half acre in size, they are going to be sold as single family residential units although I think the density is greater than that. Mr. Texeira: Thank you. Chair: I thought the curbs and gutters were taken out from the get go? Mr. Nishida: I am not sure, I think what it is, is they are making modifications to the original master plan so each subdivision that comes in they have, well Ian probably knows. Chair: On the Subdivision Committee this morning I guess the first item on the agenda was Kauai Lagoons/MORI Golf and the condition was to amend or amend the permit to... Mr. Nishida: To remove the curbs, gutters and sidewalks. And then what Dale said was the previous two subdivision applications in that area, the Commission removed those requirements. Chair: So that is where probably... Mr. Nishida: It was a separate subdivision application. Chair: That is what Herman, you and I, were thinking of (inaudible). Mr. Kimura: But they won't have approval until they figure out Hartwell's concerns on the drainage system. Mr. Costa: Which will come through the approval of the grading plans. Mr. Nishida: I asked Dale and in a normal subdivision you wouldn't even see that drainage thing but because this is part of a master plan that is why they had the drainage included in the subdivision report. So what Dale was saying is that usually at tentative they have to go into the County and get the drainage stuff settled. Mr. Costa: After tentative they prepare and submit construction plans to the Department of Public Works and through the grading permit that is when those requirements are resolved. Chair: So with that discussion, there is a motion on the floor, if there are no more discussions I will call for the vote, all those in favor say aye, opposed, motion carries. On motion made by James Nishida and seconded by Jan Kimura, to approve subdivision committee report, motion carried unanimously by voice vote. UNFNISHED BUSINESS Letter (3/11/10) from Beryl Blaich, Coordinator, Malama Maha`ulepu, requesting the Kauai Planning Commission review the conditional permits for the New Maha`ulepu Quarry relating to U-92-36, SP-92-6, Z-IV-92-38, original applicant Grove Farm Company, transferred to current permit holder Jas. W. Glover, Ltd. (Deferred 4/13/10.1 Deputy County Attorney Michael Dahilig: Mr. Chair, pursuant to Chapter 92 of the Hawai `i Revised Statutes I would like to request that the Planning Commission enter into an executive session to consult with its attorney pertaining to item D.1 and the applicability of the Rules of Practice and Procedures of the Planning Commission as it pertains to this agenda item. Ms. Morikami: So moved. Mr. Nishida: Second. Chair: Any discussion, all those in favor say aye, opposed, motion carries. Planning Commission Minutes May 25, 2010 4 On motion made by Paula Morikami and seconded by James Nishida, to enter into an executive session, motion carried unanimously by voice vote. Commission entered into executive session at 9:38 a.m. Meeting was called back to order at 10:17 a.m. Chair: Being that we already heard from the planner I will open up for public testimony. Is there anybody that wants to speak on this agenda item? Ms. Kashiwaeda: Suzanne Kashiwaeda and I am the President for Malama Maha`ulepu. By profession I am a social worker and I have lived in Kalaheo for 40 plus years. On behalf of Malama I am one of three speakers and we would like to address the topic before us. Chair: As you are speaking for Malama will you be the only speaker or all three? Ms. Kashiwaeda: There are three of us. Chair: Is there any way you could condense your testimony? Ms. Kashiwaeda: We are taking different aspects of it so for instance I will be addressing some of the questions that came up at the last meeting and then the other speakers have specific points that they would like. Chair: We do have a 3 minute time so you can do your presentation. Ms. Kashiwaeda: I believe that packets of our statements as well as supporting documents have been given to you. Chair: Yes, that is what we have here. Ms. Kashiwaeda: This is in regards to one of the conditions of the Special Permit and this is what we are asking the Planning Commission to consider revising for that new MahaulepOu quarry. We would like that permit to be amended so that there is better monitoring of the activities and also to expedite long delayed quarry reclamation and Heiau restoration. We also wanted to reiterate our request for a site visit for both the old and the new quarries by the Planning Commission, the LUC, other agencies, particularly the Department of Health as well as the public. At the April 13th meeting the Commissioners had expressed an interest in undertaking these visits and currently both these places are restricted from public entry. The maps that are going up we feel are inadequate in order to understand the whole size and scope of the practices as well as to ascertain the location and the condition of the natural resources and cultural sites of the old quarry. Since the reclamation master plans were done in 1995 for both the quarries and haven't been seen since, reviewing those plans of the quarry sites would be critical. Also at the April 13th meeting the Planning Commission had requested that all pertinent agencies provide updates and information regarding the project and we would like to thank you for that, especially Commissioner Kimura for his statement that the public access be allowed as good stewards to help clean up the old quarry as well as take care of the Heiau. Some of the questions that were raised at the last meeting was the location of the quarries related to each other and relative to the ocean so the first map in your packet is that satellite image, it has the two quarries. That map tells you where Waita is as well as Kionaloa Bay and where the quarries are. I think it is important to note that the boundary of the old quarry which is in red is less than a quarter mile from the ocean. The new quarry is bounded in yellow and that is along that Pu`u Keke coastal ridge. And then the second map is just a closer aerial and the third map is the USGS map and that also shows the two quarries and those little triangles are State historic sites. Another question that was asked was whether the old quarry had permits and the old quarry was grandfathered in and didn't need permits. The question of who has authority for this permit was also raised for the staff planner and Glover's attorney. We spoke with Scott Planning Commission Minutes May 25, 2010 5 Derekson who is the Land Use Commission staff planner and while the Commission does make a recommendation to the Land Use Commission the County Planning Commission rules first. And if the Planning Commission denies the application it dies and if the County recommends approval of the permit it goes to the State Land Use Commission with the Planning Commission's conditions that the LUC can either accept or deny. Mr. Derekson also observed that as primary keeper of the public health, safety and welfare that there is further review or action on this permit and that starts with you, the Planning Commission. Condition 5 of the permit requires that there be an annual report and further stipulates that the Planning Commission reserves the right to schedule such documents for a public hearing should problems be occurring. We have read the transcripts of both the Planning Commission and LUC hearings and understand that the conditions were crafted in response to applicant's statements that the old quarry would be soon exhausted and the economy of Kauai might suffer from the lack of replacement source. We have never, that licensing agreement has never been reviewed but it seems to contradict some of the stipulations that the permit be rendered to be null and void upon the sale or transfer of ownership interests in the subject property prior to completion of the project. And it would be useful for us to know the timeframe and the terms of that agreement. While we are not happy about past compliance with the permits we recognize that the decisions were made a long time ago. What we are asking is for clarification and additions to the permits and our goal is to assure that the best environmental practices for the new quarry are put into place and so see that there is the reclamation of the old quarry and restoration of the Heiau sites. To close, I would just like to point out the photos that we have in your packet. David Boynton took these photos of these giant bird prints that were discovered after a rock slide from that limestone cliff off of Po`ipu Bay golf course. And the only reason that we bring this up is because we can see that there is a wealth of geological and archeological treasures there and just the fact that the limestone was formed about 100,000 and 10,000 years ago and all of that is being sold for roughly 56 dollars a ton. And I just would like to close with that thought and then I would like to call the next speaker, Marge. Chair: Before we call the next speaker are there any questions for the testifier? Mr. Blake: When you look at that map No. 1, the old quarry you said is bounded by a red line? Ms. Kashiwaeda: Yes. Mr. Blake: And right where the laser is now, that yellow line right there is that..? Ms. Kashiwaeda: That is the new quarry. Mr. Blake: That is the picture that is in the packet? Ms. Kashiwaeda: Right. Mr. Blake: And what are those lines east of Waita? Ms. Kashiwaeda: Sorry, that is the new quarry. Mr. Blake: What about the other yellow? Mr. Costa: What other yellow? Mr. Blake: Right next to the red lines. Ms. Kashiwaeda: That is the coast. Mr. Costa: That is the sand. Planning Commission Minutes May 25, 2010 G Mr. Blake: Where is David Boynton's picture on this map? Chair: By the golf course? Ms. Kashiwaeda: Yes, by the tip of the golf course. Chair: Do you know what hole? Ms. Kashiwaeda: I don't even know the rules of golf. Mr. Blake: Can you point that out with your finger? Mr. Costa: You have to speak into the mic. Ms. Jerry Di Pietro: My name is Jeri Di Pietro for the record. When we had a big rain about 3 or 4 years ago a slide occurred there and just where the crack happened exposed those fossil prints that of course had been there for a very long time. So it is not too far from the cave, it is out along this headland where the fishermen go, it is right around in here. Mr. Kimura: What is this red thing here? Ms. Di Pietro: I am not sure. It is something that was just left behind. That piece of rock is actually lying in kind of a vertical position so maybe it is something that was trapped between the two layers. I am not sure. Just to add to that down in the cave... Chair: Are you going to be testifying? Ms. Di Pietro: No I am not. Chair: I just wanted to... Mr. B lake: I have one more map question. Where is the Heiau on this big map? It's right in the middle of the old quarry? Ms. Di Pietro: Right. Ms. Kashiwaeda: One of our speakers will be talking about the Heiau. Chair: Any more question, thanks Suzanne. Is there anybody else? Ms. Marge Freeman: Good morning Commissioners, I am Marge Freeman and I am a member of the Board of Malama Maha`ulepu and I am speaking on the environmental concerns we have about the new quarry. The new quarry is not what was permitted when the permit was granted in 1993. In the packet there are two 8 and a half by 17 site plans and the first was what was permitted including receiving the National Pollution Discharge Elimination System Permit. That permit was first obtained for the new quarry in 1995, was reapplied for and reissued several times, the latest was in February 2006, and it expired December 31, 2009. As of March the Department of Health has not issued a new permit. The second site plan was included in the March 10, 2010 Glover Company annual report to you and LUC; please compare the two site plans. What has been permitted included more infrastructure equipment and so on and a long and deep storm water drainage pond, a temporary storage area and settling ponds. The operator's new map depicts the same area with only a storm water detention berm and a ponding area. However Glover's annual report refers to this permit on page 3, No. 5, it doesn't that the permit expired. Glover's report states, page 5, condition 6, that storm water runoff in the area being quarried is contained in a detention basin however there is no detention basin on the map. What is the condition of the historic irrigation ditch within the new quarry site? Can any runoff from the mined area enter that or any ditch which ultimately drains into the Class A ocean Planning Commission Minutes May 25, 2010 7 waters at Maha`ulepu? Can any runoff or quarry debris enter any pond or wetlands in the valley? Does the new quarry depend on whatever storm water detention system there is in the old quarry? If so what will happen to runoff when the old quarry is closed in August 2011? Crushing and washing and storage of the new quarry material is taking place in the old quarry now. The new Maha`ulepu quarry used to have a non-covered source pollution permit from the Department of Health. This permit was consolidated into other permits in January of 04. That consolidated permit was for the halfway bridge and the Department of Health reports it expired 3/1/06 and it is quote, still being worked on, end quote. There are a lot of questions which could be explained with a site visit. We are asking the Planning Commission to clarify the status of the Department of Health permits, the runoff and dust control measures being practiced at the new quarry. We ask the reclamation plan of the old quarry which was created in 1995 be reviewed and updated, the schedule for the reclamation of the old quarry be set forth, the schedule for the incremental reclamation of the new quarry be established along with a schedule of public visits and an opportunity for public involvement. We ask that the new quarry will function entirely independently of the old quarry including crushing equipment, storage, drainage, and the stream system. Again our proposed language is in your packet. We ask that as promised a stipulation that the old Maha`ulepu quarry will cease operation and be closed no later than August 19, 2011. Please look at the photographs of the old quarry taken from nearby Pu`u Hill. There are so many questions left unanswered that it is important that a site visit. Maha`ulepu appreciates your attention and relies on you to make changes to these old, inadequate permits, thank you. Ms. Napua Romo: I appeared before you at the last meeting, my name is Napua Romo, Vice President of the Board of Malama Maha`ulepu. I am here to speak about the need to amend this permit to accomplish what was intended and promised in 1992 of the restoration of Waiopili Heiau. First of all Waiopili is more than one archeological site. In your packet we have included some of Francis Ching's 1974 archeological study of the coastal lands of Weliweli, Pa`a and Maha`ulepu. Page 6 shows a photograph of Waiopili as it was in 1994, Jeri, can you point us to where that is? We have a bigger board on it. Page 9 rates the importance of Waiopili Heiau as valuable and says that the original setting which surrounds the site is as important as the site it's self including a pond, a spring, and a limestone cliff abutting the south side of the pond. He recommended that the Heiau be stabilized and restored and all quarrying operations which have an adverse affect on the cliff, pond, and spring be stopped. By the way Ching also identifies the petro-glyph field at Keoneloa Beach as valuable. Those petro-glyphs have not been seen for more than a century however in 1982, and I have witnessed this, a large petro-glyph field was discovered at Maha`ulepu beach after a severe storm. To give you an idea of how the quarry area looked in the past map 4 in your packet combines information from two historical maps. The pond, spring, streams, and Kuleana throughout the valley but especially in this coastal area which was called the village of Maha`ulepu in the mid 19th century are clear. Maha`ulepu was rich in wai. Every resident who registered Kuleana including pan hale, loi, maula, even fish ponds and the sinkhole its self also registered a salt pan. On the map you see those salt pans located in what are still wetlands behind Kawailoa Bay. Your packet includes this 1824 drawing of Maha`ulepu coastal area which Missionary Hiram Bingham made when canoeing around Kauai and that is this one. Map 5 shows the area of the old quarry which is this one here with historic natural features and sites layered over from a 2009 satellite image. Where is the Heiau? Where are the pond and the spring? Mr. Pierie testifies that they have a vague of where the Heiau and there is no action close to it. How do you protect a site when you are not sure where it is located? Glover obtained the use of the old quarry in 1998 from Grove Farm Company. At that time the Heiau was said to be under the quarrying equipment. That equipment was moved at a certain point though we don't know when that occurred but for at least 5 years, 1995 to 1998, crushing may have been occurring on top of the Heiau. The 1992 letter in your packet from the administrator of the State Historic Preservation Division states concern for Waiopili and the understanding that the old quarry was to be abandoned shortly. Next in your packet is the response from the Grove Farm's Vice President at the time, he wrote "Please understand it is our intention to restore the Heiau before the old quarry site is put to some other use." While that Planning Commission Minutes May 25, 2010 8 statement does confirm a commitment to restoration it also leaves the timeframe for restoration in the air. Any non-agricultural use of this area would require zoning changes before a different use could occur, in other words it could be long years before restoration occurs. That would be a crime in light of the degradation that has occurred already. Your packet contains some images labeled map 6. The drawings are from the 1974 Ching archeological report. The photograph in the middle of the left shows the quarry from the cane haul road, Jeri is pointing it out, this one here, it shows the quarry from the cane haul road in 2006. Some participants in the Malama Maha`ulepu, a consultant and an archeologist trespassed; yes we did, into the old quarry area on a Sunday afternoon. We wanted to find Waiopili Heiau particularly because some people said it was entirely gone. It was our only visit. The photograph at the top of the page is what we think remains above the ground of Waiopili Heiau. It was all that we found. Since 1974 the Heiau has certainly not been protected or cared for. Such protection is long overdue. We are requesting that conditions be added to the permit to expedite restoration of this Heiau to its site prior to quarry operations before the State Historic Preservation Division recommended. We suggest that the following conditions be added to the new quarry permit, research and planning for restoration of Waiopili Heiau should commence in June, 2010, that is next month, with the responsible party developing a Heiau restoration plan. Development of the plan will be a facilitated community process with needed cultural experts and archeologist to be paid for by the landowner and with community representatives from the Koloa Community Association, Kane Olauma Heiau caretakers, Stella Burgess, Cultural Manager, Grand Hyatt Po`ipu, Malama Maha`ulepu, among others. Progress on that plan will be regularly shared with the public at quarterly Malama Maha`ulepu and Koloa Community Association meetings. These are all recommendations. The plan will be submitted to State Historic Preservation Division and the Office of Hawaiian Affairs, Kauai Historic Preservation Review Commission, the Planning Commission, and the LUC by June, 2011. The plan will include a component of appropriate public participation in and protocols for the restoration work. Heiau restoration can commence before the old quarry is closed which we think should be August 9, 2011, since the quarry operation is described as not close to the Heiau. Restoration work will commence one month after the plan is approved. Restoration work will be open to the public during daylight hours with site regulations and protocols posted. What should happen if Waiopili is damaged or dismantled beyond restoration? Nothing would really make amends however we suggest the following language; if the restoration research and work reveals that through intent, negligence, or neglect the Waiopili Heiau has been damaged beyond the condition described by Francis Ching in 1974 the Planning Commission, the State Land Use Commission, and the head of the State Historic Preservation Division in consultation with the County Attorney's office and the Office of Hawaiian Affairs will require substantial monetary penalties be levied against the responsible party or parties. Damages shall be no less than one million dollars. That money will be put in trust to support the Koloa area community entities and nonprofits to take care of the remaining cultural treasures of this area, thank you. And don't forget, you need a site plan to encompass all of this, any questions? Chair: Is there anybody else in the public that would like to testify on this agenda item? Ms. Stella Burgess: Aloha, I am Stella Burgess and I am not from the Grand Hyatt Kauai today. I am a Kama`aina of Koloa and the area of Koloa and I am here to speak as a lineal descendant of that area. I kind of watched all your faces when you had to look at the footprint from the bird so let's go back about a million years when this area was actually a forest and not a beach. And then about a million years ago a great earthquake happened and a large portion of the land mass slid off into the ocean. That is why when you look at Hau`upu you see that it is black rock because the land area was actually that high. So during this time period of forestation in the area there were flightless birds, crabs, there were ferns, there was everything here and it was quite abundant. After that time period and the Hawaiians arrive, I would say about 200 AD, they began doing what we would call the work that is necessary to survive. Waiopili does not mean the water of the pili grass. Waiopili means the water that abuts or abuts a mountainside or touches that mountain and that is what it means. Planning Commission Minutes May 25, 2010 9 There are three entities to this area which is the pond, the stream, and Waiopili which have all in a way been damaged. (Inaudible) which is the cave that is mentioned was a habitation site and 700 years ago a great tidal wave happened through this area and there is evidence there. The Smithsonian Institute comes regularly, many people work within in (inaudible) and they also come to (inaudible) which is the abutting outside of the Keoneloa Bay on that hillside. The area is very high is cultural esteem. Hawaiians grew taro, sugar cane, sweet potato, uala, and also bread fruit. There was water in the area and continues to have water in the area. If you drive to Kawailoa Bay and you look to the left hand side to the top of the ridge you will see that the grass is still green in this area and that is because water still seeps through the ground. This is a large area for food for the people of the South Shore. So why is it important? It is important to remember who we were and to actually have a site that we can go back to. This Heiau is actually the demarcation line between Pa`a and Maha`ulepu which are two Ahupua'a on the South Shore. Rock walls pohaku, when you build a Heiau you choose the rock or the pohaku that is significant to that Heiau so that when you look into the fact of a pohaku of a Heiau you know what it was built for. You don't have to guess, so just a little bit of sharing for a little bit of past history for you. Chair: Is there anybody else to speak on this agenda item? Walton or Glover is there anything you wanted to say? Seeing none, what would be the pleasure of the Commission? Mr. Nishida: Move to direct the Planning Department to initiate Chapter 12 proceedings for this item. Chair: Is there a second for discussion? Mr. Texeira: Second. Chair: Any discussion? Mr. Nishida: I think what we have been learning is that Use Permits are given at a particular time and once the Use Permit is given there are the conditions required for that Use Permit. Then in order to change or modify those there is a procedure within the rules and practices of the department that says how an application for the changes should happen. So I think the `Ghana needs to make sure that they understand what that application is and how that forum should take. But in the meantime I think I wanted to direct the department to, I felt that the issue its self is important enough to have the department take a look at it to make sure that the conditions that were given at the time that the permit was given are being followed. And that it relates to current conditions. Chair: So you are asking that the department gives us a report then and not initiate Chapter 12 for revocation. Mr. Nishida: Well I think the initiation of a Chapter 12 procedure, Ian, is this correct, that the initiation of a Chapter 12 procedure would have you guys look at what applies to the permit and what information and whether there is any merit to what is happening here. Or can we get a report saying to take a look at what is happening and should we initiate a Chapter 12 proceeding. Mr. Dahilig: Just to clarify, Commissioner, I heard you say two different things. One was either to initiate a Chapter 12 proceeding and I guess the Commission would initiate the petition for revocation or modification of the permit under section 1-12-2. Or, you would like further information from the Planning Department before a motion to have the Commission initiate a petition for revocation or modification is entertained by the Commission. I heard one or the other. The motion you stated said you wanted to initiate a Chapter 12 proceeding. Mr. Nishida: I thought that was the way that you wanted to handle... Planning commission Minutes May 25, 2010 10 Mr. Dahilig: You have an option, either the Commission as a body can move to have the petition filed or can defer the matter for further information whether to have a Chapter 12 petition filed or receive the matter for the record. Mr. Blake: So if I understand, under Chapter 12 anyone, any citizen or the department or the Commission can initiate a Chapter 12 proceeding which would be the vehicle that would be utilized to revoke, modify, or amend existing permits. Is that correct? Mr. Dahilig: Under section 1-12-2 of the Planning Commission's rules the Planning Department, Planning Commission, or any other person may file a petition for revocation of a permit with the Director. Mr. Blake: And if the Planning Department undertakes the petition interested parties will still be able to request that they appear as parties so that they may be heard with regard to this issue. Mr. Dahilig: The rules do set forth a procedure where investigations do occur and the matter is then referred back to the Planning Commission for the entertaining of whether an Order to Show Cause should be issued. Mr. Blake: And if a citizen initiates the Chapter 12 proceeding the department will still comment on the allegations contained in the citizen's petition, is that correct? Mr. Dahilig: All paths lead to the 60 day investigation by the Planning Director. W. Blake: So today we can accept, one of the things that is available to the Commission is to receive this testimony and it could end there. Mr. Dahilig: That is correct. W. Blake: Or we could receive the testimony, it would end there if nobody else wants to do anything about it, or we could receive the testimony and the persons who have submitted the testimony can initiate the Chapter 12 proceeding. Mr. Dahilig: As I mentioned from the rules any other person may file a petition for revocation of a permit with the Director. Mr. Nishida: Or we can initiate a Chapter 12 proceeding. I am not out of order by motioning... W. Dahilig: For the Commissioners information we have interpreted the motion for legal purposes that you are requesting that the Planning Commission file the petition with the Director. Chair: Where you clear on that? Is that what your motion was? Mr. Nishida: That is what the motion was and then when you asked whether ...now that I am thinking about it if we just ask them to give a report the n the next time this comes up we are going to decide whether to go to Chapter 12 or not. Chair: Well the motion on the floor right now is to initiate but you can withdraw your motion and then you could make another motion for a report. Mr. Nishida: But the question for the Chapter 12 would just come up again the next time the report came in and then what the department would come up with would be whether to do a Chapter 12 or not. Well not that but come up with the information, relative information to that. So in my mind and also at the same time the `Ghana could file a Chapter 12 and there would be a Chapter 12 no matter what if they file that. So I would say, I am requesting that the department do a Chapter 12, the motion stands as far as I am concerned. Planning Commission Minutes May 25, 2010 11 Chair: Is there any more discussion? Mr. Texeira: If the motion went through then the Planning Department, the Planning Director through his department would have 60 days to review the allegations? Mr. Dahilig: In this particular case what would happen is the Planning Director would have his department create a report based on the facts here and any other further investigations that he or she may, whoever the investigating planner is, as well as receiving information from the permit holder and any other permit agencies. They would create a report with 60 days upon which the Director would make a recommendation to the full body whether to have the Commission issue an Order to Show Cause or decline to issue an Order to Show Cause. Chair: Are you good Herman? Mr. Texeira: Yes. Chair: With that issue in regards to showing cause, would the applicant or landowner be able to provide their testimony or their information so that the information that we hear from the Director's repot to show cause that both parties are equal that they will be able to be transparent? Mr. Dahilig: That is the intent of having the 60 day as far as my reading of the Chapter 12 rules. That is the intent of having the 60 day period where the Planning Director would go and do a full investigation and not rely simply on just the testimony presented before the Commission based on the request but to actually go through a full vetting where all parties that have a relevant interest in the matter would be able to be heard and incorporate into the testimony before the Planning Director would make his decision in recommending that an OSC be issued or not be issued. Ms. Morikami: Has a Chapter 12 proceeding ever been initiated by the Planning Commission versus an applicant or versus someone from the public? Mr. Dahilig: My understanding is that the department, Commission, or other person has the right to file the petition but because this always goes to the Director, typically these types of petitions are filed directly with the Director rather than with the Commission its self. Because ultimately the Commission has to go back to the Director anyway to initiate a Chapter 12 proceeding. Chair: Did you have a historical precedent setting... is that really what your question is? Ms. Morikami: I am concerned because this is the first time that we are looking at a possible Chapter 12 and I thought normally it came from the public who had concerns. Mr. Costa: I can verify it but I know the department has initiated it before and I just offhand can't think of an example where the Commission has but I wouldn't be surprised if they have. Mr. Blake: So just for efficiency and economy of effort if the department initiated the petition the department which would be the initial reviewing body would file allegations and both the citizens who are requesting this modification and the holder of the petition would then comment on what the department has alleged. Or, if the citizens requesting modification file their petition and the applicant responds then the department is in the position of weighing the relative merits of both submissions and then issuing its report to us which would seem to me to be a more efficient way of handling the process. Mr. Dahilig: One thing I also want to note Commissioners is that not withstanding whatever the Commission chooses to do and this material is sent to the Director, the Director still has the discretion to bounce the application because it does not meet the requirements under section 1-12-3 which sets forth specific requirements including forms that need to be filed that Planning Commission Minutes May 25, 2010 12 will trigger the Chapter 12 process. So even though the Commission may enter the petition and direct it over to the Director's office, the Director still has the sole discretion to bounce the petition should it not meet the procedural requirements, I'm sorry the County's requirements, under section 1-12-3. Mr. Nishida: So my motion, if I direct the department to initiate the Chapter 12 does that bypass the application process? Mr. Dahilig: You could interpret it as a petition here and now. Whether that petition is complete, that is a question only the Director can answer and so the petition would essentially encompass the materials that were presented this morning. However I am not in a position to say whether or not the Director would deem that the materials presented this morning meet the requirements under the rules. Mr. Nishida: So regarding Hartwell's comment I am willing to withdraw my motion if what Hartwell said is true about it being a cleaner process, not only cleaner but fairer. Mr. Dahilig: That is ultimately a decision for the Commission to entertain. My advice stops at the plain reading of the statute which does say that you do have the authority to... Mr. Nishida: If the petitioner files the Chapter 12 is it a cleaner way to do this, more efficient? Mr. Costa: Well I think we still have to review it no matter what gets filed in relation to what the rules require. I don't think there is necessarily a cleaner way. That is dependent on who files. Mr. Blake: If Jimmy's motion is carried then you judge whether this qualifies as it stands as a petition, right? So this rises and falls on what is here right now. Mr. Costa: What we have to date. Mr. Blake: That is why I felt that maybe, I don't know if the Malama Maha`ulepu was ready to do that, say here it is, or if they were prepared to do that or if they would consider it serious enough to go back to Chapter 12 and make sure that this is what they want to do if in fact that is what they want to do. Mr. Nishida: In that case what was presented today is going to be deemed as the application for the Chapter 12 proceeding then I am willing to withdraw my motion because I don't think upon reading the Chapter 12 requirements I don't think this as presented from the `Ohana today meets the requirements or actually the form more than anything. So I withdraw my motion. Mr. Texeira: I withdraw my second. Mr. Costa: If I can get clarification from counsel given the information that is presented the department can take that information and use that to initiate a petition from the department. Mr. Dahilig: Again, a plain reading of the rules, it does vest the Planning Department to also initiate a petition for revocation or modification and again that petition initiated by the Planning Department does have to meet the rules as set forth, I mean the...it has to meet certain form. Mr. Nishida: Chair, I was wondering if we could talk to Walton. Chair: I will suspend the rules just on the behalf of hearing from Walton and I had a question for the representative of Maha`ulepu too. Planning Commission Minutes May 25, 2010 13 Mr. Walton Hone: Thank you Mr. Chairman and members of the Commission, for the record my name is Walton Hong representing the applicant James F. Glover. I have listened to the comments and I think the position stated by Commissioner Blake makes the most sense. What we have had is we have a permit with a number of conditions. We have heard allegations that these conditions have not been met. We have not had a chance to respond to them. We are in the process of preparing a report to give to the department which should enable the Director and the staff to carefully weigh whether there is any merit or lack of merit to the allegations. And I think from there it logically follows if the department and the Planning Director find that we have rebutted all of the allegations, that we have shown that there are no violations of the conditions, etc., then that should be the end of it. On the other hand if the department should find that while maybe we should go deeper into it and there are grounds for revocation or revision or whatever it is of the permit conditions, so be it. But I think to say right now let's initiate a Chapter 12 proceedings for revocation or modification of the permits I think is, I don't want to say premature, but perhaps inappropriate because we haven't had a chance to respond yet. We are trying to get all the information so we can submit the information to the County that shows here are the conditions and here is our response to these conditions. I think that is the most expeditious and fairest way to proceed. Mr. Costa: I guess the next question would be when can you do that? Mr. Hone: 30 days. I know we started on it but it is a mass of material that we have to get. It is not just a couple pieces of paper unfortunately. Mr. Nishida: Walton, my understanding, you know we have been facing several of these more official proceedings. My initial idea was that, my understanding when I first looked at this was that the Director would take a look and do exactly what you said. But upon review the Chapter 12 actually covers this. And then when we enter into this room we look at the issues based on what was presented to us and the Chapter 12 proceedings actually does that in a fair manner, I think. So regardless of what the Director says a Chapter 12 proceeding may follow regardless of what the Director reports. And then if we initiate the Chapter 12 proceeding then you will have a decision, final decision on the formal proceeding. Mr. Hone: It is our belief that we will be able to display satisfactorily to the department and the Director that we have met all the conditions of the permit and there is no basis for initiating a Chapter 12 proceeding. I think it is within the discretion of the Director whether or not he should initiate or should not initiate but to come straight forward and say Director, you initiate Chapter 12 proceedings, I think may not be the proper way to go following the comments of Commissioner Blake. Mr. Blake: One other thought that I had was the respondent, for purposes of identification right now, is in a better position to have all the documentation because it would be in their best interest to have documented proof of what supports their position. And so I think that would save time and effort and resources if rather than trying to figure out what happened, where it is, where it is on file and so forth. That being said I would move to receive the communication. Chair: Before we ask for a motion are there any more questions for Walton? Mr. Nishida: I have a question. Do you want a second on that for discussion? Chair: No, I don't want to entertain a motion at this time. Mr. Nishida: My understanding of what Hartwell said was that a cleaner way to do this would be us to, well not us to do but the next step would be the `Ohana to file a Chapter 12 motion. But what you are asking is that the department takes a look at this and then see if you can answer the concerns of the `Ghana prior to a Chapter 12 determination. Mr. Hone: What I am asking is that we be given an opportunity to submit if you want to call it a rebuttal or presentation showing how the conditions have been met based on what we Planning Commission Minutes May 25, 2010 14 submit and based on what has been submitted by the Malama Maha`ulepu. The Director can then determine is there or is there not any basis for initiating a Chapter 12 proceeding. Mr. Blake: But even if that happens, assuming for the sake of argument that that does happen that doesn't preclude Malama from filing one anyway. Mr. Dahilig: That's right. Mr. Hong: That is true, and let's say the Director determines that there is no basis for the allegations and Malama decides anyway we are going to file a petition then I think it is going to be up to the department, is there a basis. And if they already found there is no basis are they going to say we are going to hold a Chapter 12 proceeding even though there is no basis? It doesn't sound logical. Chair: Any more questions? Mr. Blake: Unless in response to what Mr. Hong just said Malama looks at it and decides to do some back filling and... Chair: That is what I was going to ask when Malama comes up. But for Walton, I think we are done. Mr. Hong: Thank you. Chair: So if someone from Malama can come up, Suzanne, or somebody? We can defer this matter for two weeks... Ms. Kashiwaeda: We don't want to defer it but this is a decision that the board has to make and we are just some of the representatives here, we are lay people, we are not lawyers or planners. And you know, Walton, we have been advisories in the... Chair: Suzanne, if you can just direct all questions to the Commission. Ms. Kashiwaeda: While we have been advisories in the past but what I want to say is in my old age I would really like to try to work things out and whether it is through the legal process, through this Chapter 12 or whatever. Our point is we want to save the important historic, cultural, sites in this area and if we can work together that is what we would like to do. I will leave it at that. I cannot answer your question about whether or not we will file for Chapter 12 proceedings to occur but if it is a recourse that we feel that we need to do then we will. But I can't answer it at this time. Chair: I appreciate your common sense approach and maybe saying Walton, can we work it out first. Chapter 12 is always the last resort and we as a Commission always love to entertain Chapter 12's if we can. But if you need Walton's address or phone number... Ms. Kashiwaeda: I appreciate the Commissioners for at least taking into serious consideration. We have spent a lot of time digging up this information which to me should have been the responsibility of the people that have been operating the quarry. Chair: And so does the Commission has the same sympathy to what has been going on, we want to do things right in the communities eyes and that is why we are trying to be proactive on what steps we take. Ms. Kashiwaeda: And we appreciate it. Chair: Are there any questions for...? Planning Commission Minutes May 25, 2010 IS Mr. Texeira: For Suzanne, if we are going down the path we just discussed do you plan to provide more information? Is the information you have sufficient or do you plan to provide more information? Ms. Kashiwaeda: Well it would be interesting to know what Glove would come up with. And the thing is we don't have access to the place except for some going and so called trespassing. We don't have access to that information. They hold the cards. So unless those cards are revealed we can't respond. So this is what we know and we have shared all that we know. Chair: So is there a motion on the floor? Mr. Blake: Move to receive this correspondence. Ms. Morikami: I second the motion. Chair: Is there any discussion before I call for the vote? Mr. Texeira: Yes. So what is the next step, receive for the record, what results from that? Mr. Dahilig: There is no next step. Pretty much what the next step would be would be in the hands of the Planning Department, an interested individual, Malama, or the actual permit holder. So essentially the chess board is re-set and somebody would have to make the first move. Chair: In that same case could the Commission put this back on the agenda and get a report or a status of where the community and the landlord sits if there is a status in a month or so or if a Chapter 12 has been applied for? Mr. Dahilig: I guess you could ask the Planning Director to provide that information formally to the Commissioners if there is any movement along those lines. Mr. Blake: Can I amend my motion? No, I will make a new motion after this. Well for purposes of discussion as a member of the Commission and based on what the permit holder has stated I would appreciate it if they would submit a report within 30 days. Mr. Nishida: What if we amend the motion to include a report in 30 days? Chair: That is what I was asking. W. Dahilig: I would say this gets a little tricky because there is nothing compulsory that I think the Commission can force the permit holder to do unless it is actually enumerated in the permit conditions. So what I would suggest is that either the Commission look to the Planning Director to try to provide some type of status but not direct that type of order to the actual permit holder because right now I would say you don't have the authority to have them comply with more conditions that are not attached to the Commission. Like for instance a status report. Mr. Kimura: Aren't we waiting on a report from them anyway? Mr. Costa: I don't think one has been, well they provided their annual status report so there is no other report that is mandated. I just wanted to say I take my responsibility very seriously especially as a Kanaka Mach and given the information we have to date and in any event I would provide a communication back to the Commission upon receipt whether or not we receive that in about a month to let you folks know whether the applicant has made any significant progress in providing information. And I just wanted to say that I will communicate back to the Commission whether or not the information provided by the applicant is satisfactory or not. Planning Commission Minutes May 25, 2010 16 Mr. Dahilig: Maybe the more appropriate suggestion would be to have the Planning Director provide timely updates as conditions change, not conditions, as things change like for instance if there is a filing of a Chapter 12 or if they are able to come together (inaudible) and come to an agreement on things that can be done, that kind of stuff. Provide an update as needed as the information comes in. Mr. Costa: I would also say depending on the information that is provided that would give us the other side of the story if you will but depending on how that information goes I would not hesitate to file a petition if so warranted. Mr. Kimura: Remember the last meeting we had with them and I asked them for some new aerials and some other information about the landowners and about permission and all and they said they would get back to us? Is that still on the table? Mr. Costa: As far as I am concerned, yes, and I am assuming that is part of what would be contained in the report. Chair: Commissioner does that address your concerns? Mr. Texeira: No it doesn't because we are just going to receive things for the record, we are going to get a report, but what opportunity do we have as the Commission to revisit this? What can we do beyond today? Mr. Costa: At the very least... Mr. Dahilig: Commissioner Texeira if you would like me to answer that question I would suggest that we go back into executive session to address those issues. Mr. Texeira: I don't think I want to do that. Mr. Costa: I was going to say at the very least I have committed to providing you a report in a month time frame. I guess beyond that that is your prerogative. Mr. Texeira: For example, for me I would like to do a site visit and I am just not satisfied personally with so far...there seems to be issues concerning this area and so... Mr. Costa: Regardless of what the landowner applicant... Chair: In my opinion we should probably take first things first in receiving the testimony for the record. As we heard from the Director he will give us a report. If he doesn't I think as Commissioners we still have the right to place an agenda item if that promise does not come through. As the Chair I think I would put that on if I don't hear from him. And we could still put it on the agenda to officially ask him what the status is so I think we still have the authority, some authority to bring the question back up. But I think first things first is to receive the report and if there is any reason that you need to go and visit the site, again, if you need Walton's number. I hope that addresses some of your concerns. So if there is no more discussion I will call for the vote, all those in favor for the motion on the floor to receive say aye, opposed, motion carries. On motion made by Hartwell Blake and seconded by Paula Morikami, to receive correspondence, motion carried unanimously by voice vote. Commission recessed at 11:33 a.m. Meeting was called back to order at 11:48 a.m. Zoning Amendment ZA-2010-7 = Kauai Kai Associates Request: Expansion of the existing Waipouli Visitor Destination Area boundaries to recognize the existing Kauai Kalam time share Planning Commission Minutes May 25, 2010 17 development. Location: Waipouli, Kauai. South of and abutting the Wana Road and Kuhi`o Highway intersection. Land Area: Approx. 1.719 acres. Tax Map Key 4-3-9:41 & 501 (Hearing closed 4/13/10.1 Staff Report pertaining to this matter. Ms. Leanora Kaiaokamalie: Thank you Mr. Chair and Commissioners. Mr. Chair, since the staff report has been presented and submitted into the record may I proceed to the conclusion and recommendation at this time? Chair: Any questions from the Commission, please. Staff Planner Leanora Kaiaokamalie read staff's conclusions and recommendation (on file). Chair: Commissioners are there any questions for the planner? Ms. Morikami: I have a question. At the last meeting I don't think the applicant was stating what their intent was. I think at that time at the last meeting they weren't really sure if they were going to continue timesharing or if they were going to rent it out as units of it was going to be owner occupied. So I am just wondering if you have heard any update on what the plans were. Ms. Kaiaokamalie: Nothing was told to me. I am not aware of any future plans the developer might have in regard to this property. Ms. Morikami: If it was sold as individual units without timeshare would that still be acceptable in the visitor destination area? Ms. Kaiaokamalie: At this time I have not heard that they are posing any new construction renovations of any type. I am not certain what would be changed if they sold the units. I think that would be a question for either Director or the attorney whether or not if the timeshare units were sold if that would have any... if we would be able to impose any other stipulations on this permit application. Ms. Morikami: At the last meeting I think they testified they weren't really sure what their plans were once this expired in December 2011 and based on this report it sounds like they are going to continue timesharing. If that does not occur and they sold the units individually to individual owners or they rented out those units without using timeshare that would still be acceptable in the VDA? Mr. Dahilig: I guess the purpose of the VDA and what I am relying on is some of the stipulations that are accompanying the recent Charter Amendment that was passed by the voters in 2008 as well as the TVR law, it is a culmination of these different statutes relating to the Visitor Destination Area those types of uses that you are going through would be the type that would only be permitted in the VDA. And again it is to avoid situations where you have TVRs that lets say they have a party or a shivery going on and they want to make sure that those noise activities aren't outside of the VDA and those types of things. So I would say in your particular instance those types of activities are considered part of the VDA. Ms. Morikami: That was my understanding. I just wanted to verify that, thank you. Mr. Costa: I guess if you have questions beyond that in terms of what their intentions are you could ask the applicant as well. Planning commission Minutes May 25, 2010 18 Ms. Morikami: I asked that at the last meeting and they weren't really sure so I just wanted to make sure that it would fall in line with the VDA. Mr. Costa: But designation of, if it did get approved by both this body as well as the Council would afford the owners the rights that area allowed in the VDA. Ms. Morikami: Thank you. Chair: For the Commission's sake can you let us know? I mean I know where it's at but some of the Commissioners, just a brief... Ms. Kaiaokamalie: Do you want me to come up and point? Chair: Yes. Ms. Kaiaokamalie: The first map shows the extent of the VDA for the Wailua/Waipouli area starting at Coco Palms up to this area here I am pointing to is Wailua Beach Resort, right next door is the Kauai Kalam I and H the subject properties we are talking about. On the other side of that is Kapa`a Shore which is also included in the current VDA. Mr. Texeira: So what is in between? Ms. Kaiaokamalie: There is some R-20 here and this is the site of the `Ohana Shore at one point. It is vacant. Mr. Costa: I believe that is a residence. Ms. Kaiaokamalie: These are residences here in this area. They are zoned R-20 and Open. Mr. Costa: I believe that is a vacant parcel that used to contain a residence. Mr. Texeira: Dr. Fuji's property? Mr. Costa: Dr. Fuji's property is actually on the road, it is not on the shoreline. Ms. Kaiaokamalie: So this is another map showing zoning and here you can see that the R-20's here are the residences and this is the site of the previous `Ohana Shore, Kapa`a Shore is here. Mr. Nishida: Question for Lea, the Kapa`a Shore is an isolated VDA? Ms. Kaiaokamalie: They applied that I believe in 1992 and were granted. Mr. Texeira: It is almost like (inaudible). I mean Kapa`a Shore when they first got their approval they were like isolated? Ms. Kaiaokamalie: They got their permit in 1992. Now whether or not Kauai Kailam was... they were a party to that one during that time it was only for that subject property. Pono Kai is also in the VDA but it is further up the road. Ms. Morikami: Is this consistent with the General Plan? Ms. Kaiaokamalie: Yes the General Plan is urban centered for this entire area. Chair: Any more questions, if not is there anybody in the public that would like to testify on this agenda item? Planning Commission Minutes May 25, 2010 19 Mr. Walton Hone: Thank you Mr. Chairman and members of the Commission, for the record my name is Walton Hong representing the applicant Kauai Kai Associates. Let me begin by saying in answer to Commissioner Morikami's question what are we going to do, we really do not know. The only thing we are asking is that because the units were constructed for use as transient types of uses that whatever future uses we may have whether it is a continuation of a timeshare, short term rentals or long tern rentals we would necessarily have to comply with whatever the applicable rules are. That is all we can say. Chair: Any more questions for the applicant, thanks Walton. Anybody else, seeing none what would be the pleasure of the Commission? Have we received all...? Ms. Kaiaokamalie: Yes. Mr. Texeira: I have a question in regards to the larger picture. Are there any plans to expand the VDA other than what is shown over here in this area, Waipouli, Kapa`a? Mr. Costa: We don't at this time or a least in our administering the East Kauai Development Plan update I don't believe we are proposing any expansion. And honestly I believe the current Charter amendment would prohibit it. Ms. Kaiaokamalie: May I add that in this instance because this program was up and running since prior to the zoning ordinance and because it is not changing its use or proposing any development then it would basically be able to continue the current use should anything happen to the existing units. Mr. Kimura: They are all houses from Kapa`a Shores on, right? Mr. Costa: Kapa`a Shores on until Pono Kai. Chair: What would the pleasure of the Commission be then? Ms. Morikami: Mr. Chair, move to approve the recommendation of the Planning Department pursuant to the applicant's request. Mr. Kimura: Second. Chair: Is there any discussion before I call for the vote, all those in favor say aye, no, motion carries. On motion made by Paula Morikami and seconded by Jan Kimura, to approve staff recommendation, motion carried unanimously by voice vote. NEW PUBLIC BEARING Variance Permit V-2010-4 and Class IV Zoning Permit Z-IV-2010-16 to construct and operate an 85 ft. wind turbine at a farm in Kapa`a located on Kaapuni Road, approx. 75 miles from the Kaapuni Road, Olohena Road, and Kaehulua Road intersection; further identified as Tax May Key 4-6-011:024, and affecting a portion of 5 acres = Honua Home Aina Oruanics, LLC. [Director's Report received 5111110.1 Agency Comments pertaining to this matter. Staff Planner Kaaina Hull read Director's report (on file). Chair: Any questions for the planner before I call the applicant up? Mr. Nishida: Kaaina, the reason this didn't have a permit is what? Planning Commission Minutes May 25, 2010 20 Staff: The applicant opted to erect it without ascertaining the appropriate permits at the time. He was informed I believe on a drive-by inspection that the necessary permits would need to be applied for at which time he came in and spoke with staff and which we informed him a Variance would be required in order to keep the height that he is at. Chair: Any more questions, if not is the applicant here? Is there anything that you want to add? Mr. Pete Subkowski: No Mr. Chair. I just wanted to thank the Commission for hearing my case and any considerations you might provide for me. I also want to take the opportunity to... Chair: Can you state your name for the record? Mr. Subkowski: Peter Subkowski, the applicant, owner and farmer. I also would like to express my gratitude to the Planning Director Mr. Costa and Mr. Kaaina Hull as well as Mr. Patrick Henriques who has been helping me with the permitting process. And I am here to answer any questions that the Commission would deem important. Chair: Are there any questions from the Commission? Mr. Blake: You raise taro? Mr. Subkowski: We raise taro, we have fish, vegetables, herbs, awa, papaya, longun, lychee and some other jack fruit, mango, tangerine, (inaudible), limes. We sell at the, we used to sell at the local farmers market and now we have people come over and order from us and pick up for resale. Mr. Blake: Just because I am nosey how much fish do you raise? Mr. Subkowski: Well each tank has a capacity of 350 adults so on a good 90 days we can...350 times 2, 700 fish. Mr. Blake: And you market that on Kauai? Mr. Subkowski: Yes we do. Mr. Blake: And that is golden tilapia? Mr. Subkowski: Golden tilapia, we received our (inaudible) from the correctional facility when they were able to have that project going at that time. Chair: Any more tilapia questions? Mr. Kimura: According to this you have no problems with any of your neighbors with the...? Mr. Subkowski: That is correct Mr. Kimura. Chair: For the record I think Kaaina, there was a notice circulated prior to this meeting. Staff: Correct, the abutting property owners were notified prior to this meeting as well as a publication in the Garden Island newspaper. Chair: There was sufficient public notice. Mr. Kimura: According to his report the applicant sent in none of his neighbors had any complaints in their support of the windmill. Planning Commission Minutes May 25, 2010 21 Mr. Texeira: How much of the present windmill, the energy that it generates, what percentage of your total generation does the windmill generate for your use? Mr. Subkowski: Mr. Texeira, contingent upon how windy it is on average it can cover 10 percent to 15 percent of our energy needs. On an exceptionally windy month it can accommodate as much as 45 percent. Mr. Costa: And you do use it to run of your irrigation pumps? Mr. Subkowski: Yes our aeration pumps for the fish tanks, circulation tanks for the tilapia. Mr. Costa: Good job, it is nice to see legitimate farming. Mr. Subkowski: Thanks, we are trying. Mr. Texeira: Do you plan to have any changes to the... how long have you had, you have had it only a few years, right? Mr. Subkowski: Actually it has been up almost 4 years now, 3 years and maybe 8 months. Mr. Texeira: The technology has improved quite a bit so you could have a lot more efficiency and probably more energy generated by a newer, more efficient windmill, is that correct? Mr. Subkowski: That is correct sir. They call it the heavy metal kind of design and it is really built well and so hopefully it will be in operation for the next 20 years and then we will apply for the proper permitting to upgrade it and have your consideration then. But for now it seems to be holding up with annual maintenance. Chair: I will open the public hearing, is there anybody that wanted to testify on this agenda item? Seeing none I will direct the planner to read the recommendations. Staff Kaama Hull read department recommendation (on file). Mr. Texeira: I have a couple questions. So the current windmill is above what, 20 feet above the normal approved height? Staff: Actually 35 feet. Mr. Texeira: Above the normal, right? Staff: The Agricultural District has a 50 foot height limit for agricultural structures. Mr. Texeira: Just a sidebar, in the future, I would think the future windmills might now be as high to be efficient so the applicant, let's say within 5 years instead of looking at a 20 year lifespan that you mentioned what happens within 5 years if you can get a windmill that is maybe 50 feet that conforms to the County... Staff: As we pointed out in the Director's report, actually in this situation, the reason is so high isn't necessarily because of the technology that was at hand 4 years ago but more specifically because of the tree cover on properties directly adjacent to his which are 60 to 70 feet in height. And in order for the turbine to access and even as was testified in previous hearings for wind turbines and specifically the wind ordinance, still today technology needs to have a clear, clean, steady efficient wind above a structural level in order for that turbine to be powered. Chair: Any more questions? Herman? Planning Commission Minutes May 25, 2010 22 Mr. Texeira: So who owns the trees that are preventing you from reducing the height of your windmill? Do your neighbors own those trees? Mr. Subkowski: Both myself and or neighbors. Mr. Texeira: So in your case you could reduce the height of your trees if you wanted to at some point then to lower... Mr. Subkowski: I guess we could do that. Mr. Texeira: Just a thought. These are fruit bearing trees? Mr. Subkowski: Fruit bearing trees, they would be severely pruned. W. Nishida: Kaaina, does the Variance apply should the generator be replaced, would they be required to come back and do another permit? Staff: Under condition No. 2, "If there are any changes to the turbine structures it shall be subject to review by the Planning Department. The Director reserves the right to forward alternation request to the Planning Commission should there be any potential design or visual impacts that could not be mitigated." In this case similar like with utility poles as well as other turbines we have reviewed and the Commission has taken action on if he is going to come back with a design that is essentially exactly the same and more specifically it doesn't exceed the existing height or the height that he is allowed for. In those situations we would probably look at that as a nonintrusive change and hence he could probably process it in house. However if he is making say larger blades or more particularly going higher than the 85 or whatever is allowed, indeed that would constitute a proposal that would need the review of the Planning Commission. Mr. Nishida: And any requirement for building permit, I was just thinking in general, is there a requirement for building permit for these structures? Staff: There is and he is coming in for a zoning permit approval first and if he is granted a zoning permit approval then indeed he will be applying for a building permit as well for which the department also has to sign off on. W. Nishida: And that is where the wind loads and all of that is covered? Staff: The structural engineering would be covered by Public Works. Mr. Nishida: Thank you. Ms. Morikami: I have a couple of questions. The first one is condition No. 3, let's say he discontinues farming and has no use for the wind turbine, can the department require him to remove it? It is not really clear on No. 3 if he is not using it anymore can it be taken down as a requirement. Staff: I think this condition specifically states if it is not being used that it shall be removed. The trick is in enforcing that. I mean ultimately it is a condition and if he is not using it he would be in violation of the permits and in order to bring his property into conformance he would have to remove the structure. Ms. Morikami: Within what time period, one or more years, so if he is not using it after one year can it be removed? Can we add that condition? Mr. Costa: Currently it does require that it be removed but what I hear is you want a time specific ...did you have a recommendation? Ms. Morikami: Within one year. Planning Commission Minutes May 25, 2010 23 Staff: I think because specially the condition states "Should the use of the wind turbine be discontinued for a period of one or more years the applicant and the respective landowner shall inform the Planning Department and remove the wind turbine." So I guess what is in somewhat of a conflict is the "or more years". We could delete that to say "Should the wind turbine be discontinued for a period of no more than one year." Mr. Costa: Or for a period of one year. If it is abandoned or if the use because that coincides with the legally nonconforming or grandfathering so might as well be consistent with that, if the operation ceases for more than a year, a year or more or a year. Staff: "Should the use of the wind turbine be discontinued for a period of one year the applicant and the respective landowner shall inform the Planning Department and remove the wind turbine and any associated equipment." We can have that amended as such. Ms. Morikami: The other concern I had was addressing the birds, the Shearwaters and I am wondering which condition addresses that on these recommendations. Staff: The potential violation of the Endangered Act has always been on the horizon at the debates of these topics particularly with the wind ordinance. There is a certain lack of clarity as to whether or not (inaudible) permit needs to be required prior to constructing a structure however what is clear and has come out of previous proceedings is that it is not the County's jurisdiction. It is really with the Federal agencies, particularly the U.S. Fish and Wildlife and the State Department of Land and Natural Resources who have specific regulations concerning endangered species and the affects that structures have on them. So it is kind of in a sense like the Department of Health has standards if there is a shivery occurring on the property exceeding the decibel level the Department of Health is going to go over there and enforce those standards. If the provisions of the Endangered Species Act are violated then it would be the U.S. Fish and Wildlife who will be enforcing those provisions. Ms. Morikami: I guess my question is should there be a condition that addresses what you just said? Staff: We can include that as somewhat of putting the applicant on notice that there are other Federal and State and County... Ms. Morikami: That are not in the County jurisdiction but it might be State or Federal. Staff: Yes, if you give me a couple minutes I can work on something. The County Attorney can I think... Chair: Paula, are you done? Ms. Morikami: Yes, thank you. Mr. Blake: So if the farming operations ceased that doesn't prevent the landowner from asking that the use continue for purposes of just powering his own house does it and thereby reducing global warming, etc. Mr. Costa: The applicant is always at liberty to amend his permit. Mr. Blake: So it's not absolutely prohibited windmills that aren't for farming. Mr. Costa: The CZO does not list windmills as a permitted use in any district currently and historically we have treated it as a private utility which does require a Use Permit in the Residential/Ag. and Open Districts. Mr. Dahilig: I guess what I would say is the type of permit that is before the Commission today is a Variance Permit so evidence of agricultural use I do not think is compulsory in terms Planning Commission Minutes May 25, 2010 24 of granting this type of permit. You are looking at something that there is a special circumstance that requires a Variance Permit and so I would ultimately say that it is not outside the bounds of the Commission to make the existence of the windmill contingent upon actual farming activity but I would caution the Commission in terms of making that a contingency because there is a lot of questions concerning what exactly a farming activity is. And specifically whether 3 pineapple plants in the front yard and they sell them at the farmers market, whether that is considered a farm. Obviously I think the common sense wisdom of the Commission seems to be that this gentleman here is engaged in true farming but to make a condition contingent upon farming activities I think would pose problems in the future. Staff: I have a possible condition of approval concerning the endangered species if you want me to read that now or after. Chair: After. Mr. Blake: With regard to adding that condition I mean that is the law already. He is charged with knowledge of the law. It is not in our jurisdiction so why would we want to put it in our permit? Mr. Nishida: You are talking about the Shearwaters? Mr. Blake: Yes, or any other birds. Mr. Dahilig: I would say Commissioner that even though that could be interpreted as the case I think what the planner is suggesting is that because some State agencies particularly those that involved in the protection of species do have different opinions as to the County's responsibility with respect to protection of birds or snails or happy face spiders. I would say just as an added layer of protection that the notice is affirmatively given in the permit in order to subvert any type of challenge from these agencies that believe that possibly the County could be culpable for issuing a permit like this. So it is our opinion yes, that it should not be our responsibility to enforce these State or Federal laws as it pertains to endangered species but some regulators have a different opinion. So what I would suggest just to safeguard the County... Ms. Morikami: Mr. Chair, the reason why I thought it should be added is I kind of listened to the County Council discussion on windmills and it is just to make it more clear that we have responsibilities and so does the State and Federal government. Chair: Okay, any more questions, if not what would be the pleasure of the Commission? Well, motion to close the public hearing. Mr. Blake: So moved. Mr. Texeira: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by Hartwell Blake and seconded by Herman Texeira, to close the public hearing, motion carried unanimously by voice vote. Chair: So what would the pleasure of the Commission be then? We have received all the agency comments, Kaaina? Staff: We have. Mr. Nishida: What about the Shearwater addition? Staff: I have a proposed condition. Chair: Make a motion for either approve or deny. Planning Commission Minutes May 25, 2010 25 Ms. Morikami: Mr. Chair, move to approve this Variance Permit V-2010-4, Class IV Zoning Permit Z-IV-2010-16. Staff: If I might just interject. Even if the Shearwater issue is held at bay there was the concern about condition No. 3. Mr. Kimura: Second. Chair: Is there any discussion or amendments to the conditions? Ms. Morikami: Mr. Chair I would like to have a couple of amendments to this motion. The first one is on item 3, delete the work "or more years" and I would like the planner to word the Shearwater concern regarding the Federal government and State. Staff: The brand new condition would be condition No. 8 and it would read "The applicant is advised that he is responsible for complying any additional Federal or State governmental agency permits or approvals including but not limited to approval pertinent to the protection of Newell Shearwaters or other sea birds. It shall be the applicant's responsibility to resolve those conditions with the respective agencies. Any violations of these governmental requirements may be grounds for revocation." Ms. Morikami: Can you repeat that please? Staff: "The applicant is advised that he is responsible for complying with any additional Federal or State governmental agency permits or approvals including but not limited to approvals pertinent to the protection of Newell Shearwaters or other sea birds. It shall be the applicant's responsibility to resolve those conditions with the respective agencies. Any violations of these governmental requirements may be grounds for revocation." Mr. Dahilig: Mr. Chair, I believe that the language as proposed by the planner is okay. Chair: Any more conditions or revisions to the conditions? So the motion is to approve as amended, any more discussion, all those in favor say aye, opposed, motion carries. On motion made by Paula Morikami and seconded by Jan Kimura, to approve staff recommendation as amended, motion carried unanimously by voice vote. Use Permit U-2010-15, Class IV Zoning Permit Z-IV-2010-17 and Special Permit SP- 2010-4 to permit the construction and operation of a wastewater reclamation facility and associated wastewater collection system in Moa, located at the former K61oa Mill site on Maha`ulgpu Road, 40rox..65 miles east of the Maha`ulepu Road and Ala Kinoiki Road intersection further identified as Tax Map Keys 2-9-002:001 and 2-9-001:001, affecting an area approx. 2.7 acres; and to permit the construction and operation of a wastewater pump station in K61oa located on Weliweli Road, approx. 100 ft. east of the Weliweli Road and Waikomo Road intersection, further identified as Tax Map Key 2-8-011:001, and affecting an area of approx. 640 sq. ft. = HOH Utilities, LLC. (Director's Report received 5/11/10.1 Supplemental Report pertaining to this matter. Letter (5/12/10) from Lei Saito, Manager, Old K61oa Town, in support of application. Letter (5111/10) from Rod Sueoka Store, in support of application. Letter (5/17/10) from Louie Abrams, President, K61oa Community Association, in favor of this application. Hearing was closed. NEW BUSINESS Planning commission Minutes May 25, 2010 26 For Acceptance into Record - Director's Report for Proiect Scheduled for Public Hearing for 618/10 Public Hearing. Use Permit U-2010-16 and Class IV Zoning Permit Z-IV-2010-18 to permit a barn in the Open (O)/Special Treatment-Resource (ST-R) District within Sea Cliff Plantation on Makanaano Drive, approx..25 miles from the intersection of Pali Moana, in Kilauea, further identified as Tax May Key 5-2-004:090, and containing total parcel area of 5.385 acres = Mark Hurt. Director's Report pertaining to this matter. On motion made by Herman Texeira and seconded by Paula Morikami, to receive Director's Report, motion carried unanimously by voice vote. For Acceptance and Finalization - Director's Report for Shoreline Activity Determination. SSCR-2010-8 for a shoreline activity determination, K61oa, Kauai, Tax Map Key 2-6- 011:014, for acceptance by the Commission = Kukui `ula Development Co. (Hawaii) LLC. Director's Report pertaining to this matter. Staff Planner Lisa Ellen Smith read Director's Report (on file). Chair: Has the Commission read the report and have any questions? Mr. Costa: I just wanted to say that this parcel along with the two adjacent parcels are connected to a condition for the Kukui `ula Development Company approval and is to be dedicated to the County for expansion of Kukui`ula Bay Park. So as part of the County's discretion we are asking them to remove existing structures to allow it to be used as an open park. Chair: Okay, are there any questions for the Planner? Seeing none is there anybody in the public that would like to testify on this agenda item? Seeing none... Staff: Would you like me to read the conclusion? Chair: Sure. Staff Planner read conclusion and department recommendation (on file). Chair: Any more questions for the recommendation, if not I would entertain a motion to accept the finalization of the Director's report for a shoreline activity determination. Ms. Morikami: Mr. Chair, I will be abstaining from voting on this item, F.3, as I had a recent business relationship with Kukui`ula Village which I believe may impose a potential conflict of interest. Mr. Nishida: Move to approve shoreline certification report. Mr. Texeira: Second. Chair: All those in favor say aye, opposed, motion carries. On motion made by James Nishida and seconded by Herman Texeira, to approve shoreline certification determination, motion carried unanimously by voice vote. Memorandum (5/19/10) from Deputy Planning Director Imaikalani Ain to Caven Raco, Chair Kauai Planning Commission, recommending the Commission consent to the issuance on Non-Conforming Use Certificates, TVNC-1039, Tax May Key 1-3-003:020, Paul M. Pantleo Planning Commission Minutes May 25, 2010 27 and TV-2455-NCU, Tax May Key 5-8-010:014, Sandalwood Trust, pertaining to Transient Vacation Rentals. Staff Reports pertaining to the recommendation to consent to issuance of Non- Conforming Use Certificates for Transient Vacation Rentals. Deputy Director Imai Ain read request into the record (on file). Chair: What would be the pleasure of the Commission, do I need him to read both the applications or were you guys able to review the applications? Okay then I will ask for public testimony. Is there anybody in the public that would like to testify on this agenda item? Ms. Caren Diamond: Good afternoon Commissioners, Caren Diamond. I will be testifying on the Hd'ena one. Chair: And not the Alapai Road, the one on the West Side. Ms. Diamond: Not the one on the West Side. I actually was really surprised to see this one on your agenda and the reason being that since 1999 our community has documented where vacation rentals are in our neighborhood. And numerous times we have mapped the vacation rentals, we have collected the ads for the vacation rentals. In the last 10 years this one has never been advertised on the web with the exception in 2006 and what happened after that is Lucy Kawaihalau, when we said something to her she represented to us that that was kind of a joke to show his friends at home. But actually the applicant had moved here, his children were enrolled in Hanalei School, he had pets and dogs and became a neighbor. And so it is possible in the last year it was a vacation rental but if that occurred then it occurred after it had been denied. And there also had been at least a year or 2 years and again I don't think it was ever vacation rental but at least in the last couple years the owner/applicant had lived there. My question to you, this morning you talked about legal non-conforming uses ending after a year and this is one that Lucy had pegged up there as attrition that we are having wealthy landowners come move to our neighborhood and the vacation rentals are all disappearing because of that. And so now here this is. And it says in the conclusion and recommendation, "Based on the applicant's prior use as a vacation rental", and I am wondering what prior use and what you are using and what Planning is using to document this prior us. And I know the current ordinance has that you had to have operated a vacation rental at least 30 days out of the year. I am wondering did you get receipts for 30 days out of the year that were done in the time period or what are you using to establish this non-conforming use. And again Hd'ena is ecologically sensitive. We are overrun with vacation rentals, Wainiha, Hd'ena, I urge you to look at the Special Management Area. This is one part of your due diligence. These are accumulated impacts that the neighborhood really can't bear, thank you. Chair: Are there any questions for Caren? Mr. Nishida: Imai, how did you verify that the vacation rental as in use? Mr. Ain: The standards, the bare minimum standards are GE and TAT licenses filed for the previous year before an application. Mr. Nishida: GE and TAT licenses. Mr. Ain: Yes, tax licenses. Mr. Nishida: So they submitted GE taxes and TAT filings for the years? Mr. Ain: They submitted their licenses, yes, that they had valid licenses. Mr. Nishida: Not tax records? Planning Commission Minutes May 25, 2010 28 Mr. Ain: In this case, the standards enumerated in the ordinance are basically you shall have a GE and TAT license and shall take into consideration records of the following which is receipts for stays, payment of taxes. In this case I don't know particularly what they submitted that was the verification but I know those bare minimums have to be met. Mr. Costa: Typically that would include evidence of bookings. Mr. Ain: Evidence of bookings receipts of the stays. Chair: The department is not, even though you show records it is not you guys expertise to look at the taxes, right, that is just verification. Mr. Costa: Well as far as the taxes they just need to show that they have a GE and TAT license but it is more the records of bookings, reservations, and collections I believe that is required (inaudible). Chair: Any more questions for the planner? Is there anybody else that wants to speak on this agenda item, seeing none what would be the pleasure of the Commission? Mr. Nishida: Move to approve item F.4, Memorandum (5/19/10) from Deputy Planning Director Imaikalani Ain to Caven Raco, Chair, Kauai Planning Commission, recommending the Commission consent to the issuance of Non-Conforming Use Certificates TVNC-1039, Tax Map Key 1-3-003:020, Paul M. Pantleo and TV-2455-NCU, Tax Map Key 5-8-010:014, Sandalwood Trust, pertaining to transient vacation rentals. Chair: Is there a second for discussion? Ms. Morikami: Second. Chair: Any discussion? Mr. Texeira: Yes, why can't we treat this separately? Why does it have to be together? Chair: The motion was to treat it together but we could ask the motion maker if he wanted to separate them. Mr. Costa: Actually I would recommend that the motion be made in such a way that it reflects separate actions but you can take it up on the one motion. But the record should reflect separate actions. Mr. Nishida: So moved. Mr. Dahilig: If a Commissioner doesn't agree with the whole motion they can always raise an objection pertaining to one of the items that is on for approval so they can vote aye on one and then say I object to this for record purposes. Or, you could bifurcate the motion. Chair: Commissioner Texeira, do you want to break up the motion? Mr. Texeira: I would prefer to break up the motion. Chair: Is that something you could entertain, withdraw your motion and then maybe do one at a time. Ms. Morikami: I will withdraw my second. Chair: So if there is a motion for TVNC-1039 for Paul Pantleo. Mr. Nishida: So moved. Planning Commission Minutes May 25, 2010 29 Ms. Morikami: Second. Chair: Discussion, all those in favor say aye, opposed, motion carries. On motion made by James Nishida and seconded by Paula Morikami, to consent to issuance of TVNC-1039, motion carried unanimously by voice vote. Chair: The second motion for approval for TV-2455-NCU, TMK 5-8-010:014 for Sandalwood Trust. Mr. Nishida: So moved. Ms. Morikami: Second. Chair: Is there any discussion? Mr. Texeira: In this particular case the applicant applied for a NCU. As you said the basis was the TAT license, etc. but yet it was mentioned by someone that lives in the area that it wasn't used as such based on your visual observation, right? So how much weight does that carry in this decision? Mr. Costa: Well I guess you can use that testimony in your voting. Mr. Aiu: Mr. Texeira if you would like the owner's representative is here too if you would like to ask a question. Mr. Blake: While the owner's representative is coming up, you say you based it on GET license? Mr. Aiu: They have to provide proof of GE and TAT license. Mr. Costa: Standards are in the ordinance. Mr. Ain: The standards are in the ordinance and you have to have a GE and TAT license, that is not a subjective criteria. That is basically evidence of use beforehand. What the Director is supposed to take into consideration are receipts of prior stays, deposits taken, guest logs, so on and so forth. Mr. Texeira: You don't have anything like that, no guest logs? Mr. Ain: That was not provided to you today. That is not to say they don't exist. Mr. Texeira: So they do exist? Mr. Aiu: So they do exist. Mr. Dahilig: And part of the reason why some of that information is not provided is because some of it may need to be redacted because there is personal information, account information, especially TAT and GET licenses. We don't want those publically put forward without any kind of redacting going on so that is probably were not included in this situation. Mr. Texeira: Is there a minimum time limit? Mr. Aiu: To approve or to take action? Mr. Texeira: When they receive their TAT license and the other things how much time... Mr. Ain: The ordinance says they have to have their TAT license enough time to pay one cycle of taxes. Planning Commission Minutes May 25, 2010 30 Mr. Texeira: So that is a 6 month period then. Mr. Ain: Actually you can pay monthly I believe. Chair: You can pay monthly and just have one guest ADJOURNMENT The Commission adjourned the meeting at 2:38 p.m. Respectfully Submitted. U'lA~ W Lam Agoot Commission Support Cl Planning Commission Minutes May 25, 2010 31