2021 September 14 PC Agenda Packet1 KAUA‘I PLANNING COMMISSION SUBDIVISION COMMITTEE MEETING November 10, 2020 The regular meeting of the Planning Commission Subdivision Committee of the County of Kaua‘i was called to order at 8:31 a.m., Microsoft Teleconference. The following Commissioners were present: Mr. Roy Ho Ms. Donna Apisa Mr. Francis DeGracia Absent and Excused: The following staff members were present: Planning Department Director Kaaina Hull – Planning Deputy Director Jodi Higuchi Sayegusa, Dale Cua, and Planning Commission Secretary Leslie Takasaki; Office of the County Attorney –County Attorney Matthew Bracken; Office of Boards and Commissions – Commission Support Clerk Arleen Kuwamura. Discussion of the meeting, in effect, ensued: CALL TO ORDER Subdivision Committee Chair Ho: Called the meeting to order at 8:31 a.m. ROLL CALL Chair Ho: Good morning, all, this is Subdivision. Mr. Hull will you lead us with the roll, please. Planning Director Kaaina Hull: Roll call. Commissioner DeGracia. Mr. DeGracia: Here. Mr. Hull: Commissioner Apisa. Ms. Apisa: Aye. Mr. Hull: Chair Ho. Chair Ho: Here. Mr. Hull: You have a quorum, Mr. Chair. Three Present. 2 APPROVAL OF AGENDA Mr. Hull: The next up is approval of the Agenda. The Planning Department does not have any recommended amendments. Ms. Apisa: I move we approve the agenda as submitted. Mr. DeGracia: Second. Chair Ho: The motion before us is the approval of the Agenda. All in favor? Aye (Unanimous voice vote) Motion carries. Motion carries 3:0. MINUTES of the meeting(s) of the Subdivision Committee Mr. Hull: Next, there are no Minutes. RECEIPT OF ITEMS FOR THE RECORD (None) Mr. Hull: There is no Receipt of Items for the Record. HEARINGS AND PUBLIC COMMENT Mr. Hull: Next, we have a Hearings and Public Comment. The Planning Commission accepts testimony for any Agenda Item here in; we have received no written testimony for this Agenda. Is there anybody who called in that would like to speak on any of the Agenda Items within the Subdivision Committee Agenda at this time? If so, please speak now. Seeing none. GENERAL BUSINESS MATTERS UNFINISHED BUSINESS (For Action) Mr. Hull: We will move on to Unfinished Business, there is no Unfinished Business. NEW BUSINESS (For Action) Final Subdivision Map Approval. Subdivision Application No. S-2020-11 Stephen L. Palama, Proposed 14-lot Subdivision TMKs: (4) 2-3-020: 001 Kalaheo, Kauai Mr. Hull: We will move on to New Business. I.1, Tentative Subdivision Map Approval for Subdivision Application No. S-2020-11 Stephen L. Palama, Proposed 14-lot Subdivision TMKs: (4) 2-3-020: 001 Kalaheo, Kauai. Dale is our planner Dale; I will turn it over to you. 3 Staff Planner Dale Cua: Good morning Chair Ho, and members of the Subdivision Committee. For this Application as previously mentioned, it involves a 4-lot Subdivision. Mr. Cua read the Subdivision Report for the record (on file with the Planning Department). Mr. Cua: The Department have received final approval from these reviewing agencies and as a result, the Department is recommending Final Subdivision Approval of this Application. Chair Ho: Is there anyone with us representing Steven Palama, today? Any comments from the Commissioners? Mr. DeGracia: No questions or comments. Chair Ho: Are there any comments from the Commissioners? Ms. Apisa: No questions. Chair Ho: Dale, you know there is a Condition No. 1.f, and it had to do with dedication of a road widening on both sides of this property, Waha Road and Papalina Road? He is quite aware of that Condition is he? I hope. Mr. Cua: Yes, I actually have the dedication deed in hand. Chair Ho: Good, good. Mr. Clyde Kodani: Hi. Chair Ho: Okay. Clyde, are you representing Steven Palama? Mr. Kodani: Yes. I am sorry. I am having technical difficulties. I can see you guys on screen, but I think you guys can’t see me, I’m on audio right now, but go ahead I can hear you. Hello? Chair Ho: Hello. Hi Clyde. The question, but Dale answered, but is your client aware that there is a road widening reserved for both Papalina Road and Waha Road? Mr. Kodani: Yes. The original Conditions stated road widening reserves for yes, Papalina and for Waha. However, because we are dedicating that lot 130-g-2 to County, Public Works has decided to waive the road widening on Waha Road and only incorporate the road widening reserve for Papalina Road. Chair Ho: So the reserve is only on one property now. Mr. Kodani: The reserve is only on Papalina road because we are dedicating a portion of Mr. Palama’s lot on Waha Road, they removed that requirement. We have a letter dated from Public Works to us February 07, 2020. I think that is the one. Oh, wait…yes, yes, yes. The 4 dedicated…let us put it this way Chair Ho. We acknowledged the right of way; I mean the future road widening reserve on Papalina and I understand the road widening reserve on Waha Road has been removed via Public Works. Chair Ho: What does that mean Dale, what Clyde just mentioned? Mr. Cua: Essentially, that Public Works has felt that there is no need to at this time dedicate land along Papalina, so in lieu they are going to set aside a road widening reserve. Which is fine. Chair Ho: Okay. Ms. Apisa: Is it Papalina or Waha Road? I think you are talking about Waha Road. Mr. Cua: Well Waha, that portion on Waha Road is slated to be dedicated and then the reserve will be along Papalina. Ms. Apisa: Gotcha, thank you. Chair Ho: Okay. (Inaudible) is there any other questions, Commissioners? If not, I would entertain a motion, please. Ms. Apisa: I move that we approve subdivision application number S-2020-1 as recommended by the Planning Department. Chair Ho: The motion before us— Mr. DeGracia: Seconded. Chair Ho: I am sorry. The motion on the floor before us Final Map Approval, Application number S-2020-1 Stephen L. Palama. All in favor please signify by saying, aye. All in favor? Aye (Unanimous voice vote) Thank you. Motion approved. Motion carries 3:0. Subdivision Application No. S-2020-5 Ralph Gordon Oswald, Proposed 2-lot Subdivision TMK: (4) 4-6-014: 023 Kapaa, Kauai Mr. Hull: Next on the Agenda New Business I.b, Subdivision Application No. S-2020-5 Ralph Gordon Oswald, Proposed 2-lot Subdivision TMK: (4) 4-6-014: 023 Kapaa, Kauai and I will turn it over to Dale again, for the Subdivision Report. Staff Planner Dale Cua: Thank you. Well what you have before you is an application that involves a 2-lot subdivision. The primary intent of this application is to cut out a small portion of the lot. Mr. Cua read the Subdivision Report for the record (on file with the Planning Department). 5 Mr. Cua: The final subdivision map has been routed to the various agencies for their review and comment. The Department has received all of the agency approval letters and as a result, the Department is recommending Final Subdivision Map Approval of this application. Chair Ho: Is there someone representing Mr. Oswald here on the phone? Mr. Alden Kajioka: This is Alden Kajioka from ControlPoint Surveying Inc. Chair Ho: Good morning, Mr. Kajioka. Mr. Kajioka: Good morning. Chair Ho: Without reading too much in this, this portion is to subdivide that small sliver that has been deeded to the State or County for the road widening of the improvement of the highway. Mr. Kajioka: Yes, this is tied to the Kapaa Stream Bridge improvements and roundabout. I believe if you have any questions on the design Aaron Swafford is on the line also. Mr. Aaron Swafford: Hello, Commissioners, this is Aaron Swafford, I am with Jacobs Surveying and we are working for FHWA on the project in combination with HDOT. Chair Ho: I have a question Dale. Dale, when Mr. Oswald subdivided and take that little sliver out, and subdivided his property is the consequence I think that the Ordinance would say that he could only do it once per subdivision? Mr. Cua: Well, he would be exempted from the standpoint that the primary intent of the subdivision is for government purposes. This property is not in the State Agriculture Land Use District, it is actually in the Urban. So there isn’t a onetime subdivision limitation. Chair Ho: There is no one-time subdivision? Mr. Cua: No. Chair Ho: Thank you. Ms. Apisa: Yes, it seems like a very good thing to do I mean the County is benefitting. Mr. Cua: Yeah. Chair Ho: Yes. I live right there so I will be visiting it quite frequently. Ms. Apisa: No, you had good questions, Roy. Mr. DeGracia: No questions. Chair Ho: Okay. So no questions. So before is the Final Subdivision Map Approval, motion please. If there is no further questions Commissioners, I need a motion, please. 6 Mr. DeGracia: I move to approve Subdivision application S-2020-5 with the planner’s recommendations. Ms. Apisa: Second. Chair Ho: Motion before us is the Approval Application of S-2020-5. Ralph Gordon Oswald. All in favor please signify by saying, aye. All in favor? Aye (Unanimous voice vote) Final Map Approval granted. Motion approved. Motion carries 3:0. Subdivision Application No. S-2020-8 Garden Isle OZ LLC, Proposed 2-lot Subdivision TMK: (4) 2-6-016:056 Kukui’ula, Kauai Mr. Hull: Moving on to I, New Business subsection c, Subdivision Application No. S-2020-8 Garden Isle OZ LLC, Proposed 2-lot Subdivision TMK: (4) 2-6-016:056 located in Kukui’ula, Kauai. I will turn this over to Dale. I will turn it over to Dale for the Report on this. Mr. Cua: (Inaudible) Final Application it’s a 2-lot subdivision for an existing lot in the Kukui’ula Master Plan Community. Mr. Cua read the Subdivision Report for the record (on file with the Planning Department). Mr. Cua: The Final Subdivision Map was routed to the various reviewing agencies for their review and comments. The Department has received all of the necessary approvals from these agencies; as a result, we are recommending Final Subdivision Approval of this application. Chair Ho: Commissioners are there any questions for Dale. Is there anyone here from Garden Isle OZ LLC? Ms. Maren Arismendez-Herrerra: Hi. Good morning, everyone. This is Maren Arismendez- Herrerra from Esaki’s surveying here on behalf of the owners. The owner has complied with all the Conditions and would request your final approval. Thank you. Chair Ho: Is there any questions for the applicant, Commissioners? Ms. Apisa: Well, usually we get a little history on the purpose of the subdivision. Ms. Arismendez-Herrerra: So, originally when it was for Kukui’ula’s original subdivision it was 2-lots, which a previous owner had consolidated. Current owner has bought it and would like to revert it back to 2-lots. Ms. Apisa: Thank you. Ms. Arismendez-Herrerra: You are welcome. 7 Ms. Apisa: No further questions. Chair Ho: Dale, each (inaudible) carried and R-4 designation will it carry the same for each lot after the subdivision. Mr. Cua: I am sorry. Can you repeat yourself again? Chair Ho: Before, the subdivision carried and R-4 designation will each lot carry the same designation after the subdivision. Mr. Cua: Yes, the zoning does not change. Ms. Apisa: I move to approve subdivision application S-2020-8, Garden Isle OZ LLC. Mr. DeGracia: Second. Chair Ho: Thank you. If there is no other questions, I need a motion, please/ Chair Ho: Motion before us, Approval application number S-2020-5, Garden Isle OZ LLC. All in favor please signify by saying, aye. All in favor? Aye (Unanimous voice vote) Final Map Approval granted. Motion approved. Motion carries 3:0. Ms. Arismendez-Herrerra: Thank you, Commissioners. ADJOURNMENT Mr. Hull: With that Chair, we no further Agenda Items, so if there are no further questions the meeting can be adjourned. Chair Ho: Motion to adjourn, please. Mr. DeGracia: Move like to adjourn. Ms. Apisa: Second. Chair Ho: Motion before us is to adjourn. All in favor please signify by saying aye. (Unanimous voice vote) Motion carries 3:0. We are adjourned. Thank you. Subdivision Committee Chair Ho adjourned the meeting at 8:47 a.m. 8 Respectfully submitted by: ______________________________ Arleen Kuwamura Commission Support Clerk ( ) Approved as circulated (add date of meeting approval). ( ) Approved as amended. See minutes of ___________ meeting 1 KAUA‘I PLANNING COMMISSION SUBDIVISION COMMITTEE MEETING December 08, 2020 The regular meeting of the Planning Commission Subdivision Committee of the County of Kaua‘i was called to order at 8:31 a.m., Microsoft Teleconference. Microsoft Teams Audio: +1 469-848-0234, Conference ID: 244 004 20# The following Commissioners were present: Mr. Roy Ho Ms. Donna Apisa Mr. Francis DeGracia Absent and Excused: The following staff members were present: Planning Department Director Kaaina Hull – Planning Deputy Director Jodi Higuchi Sayegusa, Dale Cua, and Planning Commission Secretary Leslie Takasaki; Office of the County Attorney –Deputy County Attorney Teresa Tumbaga; Office of Boards and Commissions – Commission Support Clerk Arleen Kuwamura. Discussion of the meeting, in effect, ensued: CALL TO ORDER Subdivision Committee Chair Ho: Called the meeting to order at 8:31 a.m. ROLL CALL Chair Ho: Good morning, everyone, welcome to Subdivision. This call will start with our roll, please. Mr. Hull. Planning Director Kaaina Hull: Roll call. Commissioner Apisa. Ms. Apisa: Here Mr. Hull: Commissioner DeGracia. Mr. DeGracia: Here Mr. Hull: Chair Ho. Chair Ho: Here. Mr. Hull: You have a quorum, Mr. Chair. Three Present. 2 APPROVAL OF AGENDA Mr. Hull: The next up is approval of the Agenda. The Planning Department does not have any recommended amendments. Ms. Apisa: If we are ready for a motion, I move we approve the agenda as presented. Mr. DeGracia: Second. Chair Ho: The motion before us today is the approval of today’s Agenda. All in favor? Aye (Unanimous voice vote) Motion carries. Motion carries 3:0. MINUTES of the meeting(s) of the Subdivision Committee Mr. Hull: Next up is Agenda Item minutes. RECEIPT OF ITEMS FOR THE RECORD (None) Mr. Hull: There is no Receipt of Items for the Record. HEARINGS AND PUBLIC COMMENT Mr. Hull: Okay. Next, we have a Hearings and Public Comment; we did not receive any additional written testimony for the subdivision committee. I am seeing that virtually almost all of the attendees on this meeting are applicants or representative’s applicants. I have two phone numbers. I will call out those phone numbers to see if you - you are an interested party in testifying. Phone number 652-7891, would you like to testify on any agenda item at this time? Woman: No. Thank you. Mr. Hull: Thank you. Phone number 320-7304, would you like to testify on any of the subdivision committee agenda items at this time? Hearing none, I will just make a - a quick check - is there anybody on the call right now who would like to testify on any of the subdivision committee agenda items at this time? Seeing none - or hearing none moving on to Unfinished Business. GENERAL BUSINESS MATTERS UNFINISHED BUSINESS (For Action) Mr. Hull: We will move on to on new- there is no Unfinished Business. 3 NEW BUSINESS (For Action) Tentative Subdivision Map Approval. Subdivision Application No. S-2020-1 Kukuiula Development CO, Proposed 40-lot Subdivision TMK: (4) 2-6-015: 001 Kukuiula, Kauai Mr. Hull: Moving onto New Business. New Business - Item 1: Tentative - tentative Subdivision Map approval subdivision application number S-2021 1. The applicant is Kukui’ula Development Company. It is a proposed 40-lot subdivision, KMK 2-6-015001, located in Kukui’ula, Kauai, and I will turn it over to Dale. Staff Planner Dale Cua: Okay. Good morning, Chair and Members of the Subdivision Committee. What you have before you is a subdivision application S-2021-1. The proposal involves a subdivision of 40 lots. Mr. Cua read the Subdivision Report for the record (on file with the Planning Department). Mr. Cua: Basically, to make a long story short what they are proposing to do is construct the roadway that would be very similar to all the developments within the Master Plan Community. The Department has evaluated their request, as well as the Department Public Works, and we really do not have any objections to their requests. We are - as part of our recommendation for this subdivision application - we are accommodating the applicant’s request and approving their modification of requirements, and the requirements of the subdivision is contained in the subdivision report. The proposal has been routed to the various reviewing agencies for their review and comment, and their requirements have been incorporated into the subdivision report. As a result, we are recommending a Tentative Subdivision Approval of this application. Chair Ho: Very well. Commissioners, any questions for the planner. Ms. Apisa: No, no questions. Chair Ho: Is there, is Lindsay Crawford here with us? Mr. Dave Hutchinson: This is Dave Hutchinson calling in. Lindsay had a doctor’s appointment this morning, but I can answer any questions that there - there happens to be of any of the Commissioners. Chair Ho: Okay. Commissioners, any questions for Lindsay. Ms. Apisa: No questions for me. Chair Ho: Well, I have one. It is either for Lindsay or for Dale. You may have provided us with a - with a - with your briefing - it says Lot 36 and 37 are unique lots, but I cannot find 36 and 37 4 on your plot map. Do you know where that might be? Mr. Cua: Lots 36 and 37 are they are those lots that kind of wraps around the development. So, if you are looking at the subdivision map and if you orient it in a way, where Ala Kukui’ula is at the bottom of the development - or to the south. 35 and 36 are those remnant parcels. So, if you look at the second cul-de-sac up there’s a lot that wraps around, as well as there’s another lot that wraps around the first cul-de-sac at the bottom. Those are your two - what I call unique lots. Mr. DeGracia: Is there any purpose for those unique lots? Mr. Cua: No. It - this proposal is very similar to others that we proposed in the past, and essentially, there - they would be designed to take drainage runoff from these from the residential lots. Chair Ho: Commissioners, you know - I wish you read you something that Dale prepared that is that is this that regards sidewalks and roadway lots. It says Roadway lots within this planned community are private and maintained by the developer. In the event that roadways are dedicated to the County, then the roadways should be retrofitted to comply with the present roadway standards. Now, if the Department of Public Works deemed that sidewalks are necessary, does that mean we can enforce this? That they would enforce it. Mr. Cua: If they were to dedicate these roadways to the county at some point in time - if they choose to – then we would require that these roadways be brought up to standard. Chair Ho: Okay. Just speaking points now. If they do not bring it to County standards or dedicate it to the County, that would eliminate from things like postal service, trash service? Am I correct? Or maintenance from the County or the roadways? Mr. Cua: I am sure - I am not sure what their agreement is with the developer and the type of services. Ms. Apisa: Roy? Chair Ho: Yeah? Go ahead. Ms. Apisa: I would add that - in Princeville, for example, the roads are - are still privately owned by the association just because the County does not want to take them over and have more to maintain. Princeville Community Association maintains the roads, but there is an agreement with the County where they, residents do have trash pickup, and the police come in and can ticket and things like that. They - they are still privately owned and maintained. Mr. Cua: Does that include postal service, Donna? Ms. Apisa: Yes. It includes the post they do get mail delivery. I - I do not know that is standard, but I just - I do know that is an example in Princeville. 5 Chair Ho: Good. Thank you. Now, is this, just for clarification - and I just wanted to put it out there in this meeting. Commissioners, is there anything else you wish to add or ask? I believe I will entertain a motion, then. Ms. Apisa: I move that we approve Subdivision Application S-2021-2, Tower - oh. Wait. I am sorry. I am on the wrong one. Subdivision Application S-2021-1, Kukui’ula Development Company proposed 40-lot subdivision. Mr. DeGracia: Second. Chair Ho: Motion before us is for Tentative Map Approval for Kukui’ula Development Company application number S-2021-1. All in favor? Aye (Unanimous voice vote) Motion approved. Motion carries 3:0. Subdivision Application No. S-2021-2 Kauai Tower Lagoons, LLC, Proposed 2-lot Consolidation TMK: (4) 3-5-006: 218, 219 Lihue, Kauai Mr. Hull: Moving on to the next agenda item – 1.b, subdivision application number S2021-2, Tower Kauai Lagoons, LLC proposed two-lot consolidation TMK3-5-006218 and 219, located in Lihue, Kauai. I will turn it over to Dale for the report. Staff Planner Dale Cua: Yeah, thank you. Well, Chair, before you a subdivision application that proposes a consolidation of two-lots into a single lot. This is in the Kauai Lagoons Development Area. Mr. Cua read the Subdivision Report for the record (on file with the Planning Department). Mr. Cua: The proposal has been routed to various reviewing agencies for their review and comment, and their requirements have been incorporated into the subdivision report. As a result, we are recommending a tentative approval of this application. Chair Ho: Are there any questions for the planner, Commissioners? Is there someone from Tower Kauai Lagoons, please? Mr. Gary Siracusa: Good morning. Excuse me. Good morning, Chair Ho. This is Gary Siracusa, the Director of construction, at Hokuala Resorts for Timbers Kauai. Chair Ho: Does anybody have any questions for the developer here? Mr. Apisa: Well, maybe - I would like to hear just a few comments from the developer on what is proposed or the background. Mr. Siracusa: Sure, Commissioner Apisa. As, Dale mentioned, it is consolidating two small RR- 20 parcels that are immediately adjacent to the Timbers Resorts B building, which is the 6 four-story building, and we are bordered on the north by the lagoon. We improved roads, curb, gutter, sidewalk, pavement built to community standards, but they are private roads on the, uh, east and south. And then, the border on the, uh, west we be the Timbers Resort four-story B - as in boy - building. The reason that we would like to - or we have applied to consolidate these is that, the two smaller parcels each under three acres - the larger of the two is about 2.8 acres are more efficient as one. Then what we are looking at, rather than what the previous resort owner had planned, was two four-story buildings taking advantage of the density. We are looking at one four-story building in our plan with a considerably less density than what would be allowed by the RR-20. In terms of our plan, it creates more open area and more green space around the building rather than a couple of smaller buildings. So, the intent there, again, is to be able to consolidate for the one building that we intend to develop, rather than build across up lot lines that, uh, (inaudible) parcel line that at simply falls in the middle of what we’re proposing. Ms. Apisa: Thank you. Chair Ho: Would these be what type of units would this be? Condominium units? Apartment units? Mr. Siracusa: They would be whole-owned condominium units. Full ownership. Nothing nothing of a fractional nature. Chair Ho: Thank you. Commissioners, if no further questions, I will entertain a motion, please. Mr. DeGracia: Yes. I would like to move to approve Subdivision permit number S-2021-2, Towers Kauai Lagoons, LLC. Ms. Apisa: Second. Chair Ho: Motion before us is for Tentative Map Approval Towers Kauai Lagoons permit S- 2021-2. All in favor? Aye (Unanimous voice vote) Motion approved. Motion carries 3:0. Final Subdivision Map Approval. Subdivision Application No. S-2019-16 Robert S./Kerrilyn R.V Barros, TMK: (4) 2-5-008:05 Lawai, Kauai Mr. Hull: Item 2, Final Subdivision Map Approval. Subdivision application number S-2019-16, TMKs: (4)-2-5-008: 005, located in Lawai, Kauai and back to Dale for the report Staff Planner Dale Cua: Thank you. What you have before you is a Final Subdivision Map Approval of subdivision application S-2019-16. The proposal involves a two-lot subdivision for property in Lawai. Mr. Cua read the Subdivision Report for the record (on file with the Planning Department). 7 Mr. Cua: We have received all of the approval letters from these agencies. The applicant has met all of the requirements of the Subdivision. As a result, we are recommending Final Subdivision Map Approval of this application. Chair Ho: Commissioners, do you have any questions for the planner? If not, would there be anybody representing Robert and Kerrilyn Barros wishing to comment? Ms. Maren Arismendez-Herrerra: Good morning, Commissioners. This is Maren Arismendez- Herrerra from Esaki Surveying here on behalf of the owners. They have complied with all the Conditions. Earlier this - this year, they had requested an extension to finish all of the requirements. The pending one with DOH, which since then, they have cleared with DOH - the Conditions. So, they would respectfully request your approval for their subdivision. It is located on Koloa Road. I do not know - it is one-lot, which are being splitting into two. It is straightforward. Chair Ho: There is also five-foot reserve, uh, along Koloa Road? Ms. Arismendez-Herrerra: Yeah. Chair Ho: The applicant... Ms. Arismendez-Herrerra: The applicants agreed. That is shown on the map, and it’s, uh, going to be in the descriptions of the lots. Chair Ho: Okay. Any questions, Commissioners? Hearing none, I would entertain a motion, please. Ms. Apisa: I move that we approve final subdivision application number S2019-16 for Robert and Kerrilyn Barros. Mr. DeGracia: Second. Chair Ho: Motion before us - Final Subdivision Map Approval, Robert and Kerrilyn Barros, application number S-2019-16. All in favor? Aye (Unanimous voice vote) Motion approved. Motion carries 3:0. Ms. Arismendez-Herrerra: Thank you. Subdivision Application No. S-2020-10 Keopele V. & Ashley H. McBride/Paul E. Pacuilla Trust/Den & Narcisa U. Conception TMKs: (4) 5-2-006:012,014; 5-2- 009:049, Kilauea, Kauai Mr. Hull: Next we have, Subdivision Application number S-2020-10, TMK5-2-006:011, 012, and 014, also 5-2-009:049, located in Kilauea, Kauai. I will turn it back to Dale for the report. 8 Staff Planner Dale Cua: Okay. Thank you. In this subdivision application, the proposal involves consolidation of three existing residential lots and a portion of a formal ditch right-of-way, and the subdivision into three lots. Mr. Cua read the Subdivision Report for the record (on file with the Planning Department). Mr. Cua: We have received all of the approval letters. Um, the applicant has met all of the requirements of the subdivision. We are recommending final subdivision map approval of this application. Chair Ho: Commissioners, are there any questions for the planner? Is there someone representing the Keopele? Ms. Maren Arismendez-Herrerra: Yes. Good morning, Commissioners. Maren Arismendez- Herrerra from Esaki Surveying here on behalf of the owners. What the planner stated is three- lots fronting Aalona Street behind Kilauea School. The purpose of the subdivision is to extend the boundary up to the old ditch right-of-way to just - the - it is going to be split into those three- lots. No further boundary adjustments and the owners have complied with all the Conditions in the considered approval letter. Chair Ho: Are there any questions, Commissioners? If they are none, I will entertain a motion for approval. Ms. Apisa: I - I... Mr. DeGracia: I move to... Ms. Apisa: ...oh. Go ahead. Please, go ahead. Mr. DeGracia: ...I move to approve, I’d like to move to approve - Final Approval of application number S-2020-10. Ms. Apisa: Second. Chair Ho: Final Map Subdivision Approval motion for Keopele V. & Ashley H. McBride/Paul E. Pacuilla Trust/ Den & Narcisa U. Conception. All in favor? Aye (Unanimous voice vote) Motion approved. Motion carries 3:0. Ms. Arismendez-Herrerra: Thank you. ADJOURNMENT Mr. Hull: Mr. Chair, we have no further agenda items. Before adjournment, I can say you folks will be seeing a lot of Dale today; he is pinch hitting for the entire Regulatory Division. But on a - on a positive note, I can also announce that we have hired a subdivision planner. He will be 9 starting next week. At the next agenda meeting, next year you folks will have an assigned planner from our regulatory team. Chair Ho: A name? You have a name. Mr. Hull: It is a familiar name to some of you, I think. He has one of our former subdivision planners. It is Kenny Estes. He has decided to come back home to the Planning Department. We have welcome him so Kenny has a long history with our subdivision program earlier. And so, he’s coming back. Chair Ho: Good deal. Welcome back. I need a motion to adjourn, if that is it. Mr. DeGracia: I move to adjourn. Ms. Apisa: Second. Chair Ho: Motion before us is to Adjourn. All in favor? Aye. (Unanimous voice vote) Motion carries 3:0. We are adjourned. Thank you. Mr. Hull: Thank you, Mr. Chair. Thank you, all. See you in a full Planning Commission Meeting. Subdivision Committee Chair Ho: adjourned the meeting at 8:55 a.m. Respectfully submitted by: ______________________________ Arleen Kuwamura Commission Support Clerk ( ) Approved as circulated (add date of meeting approval). ( ) Approved as amended. See minutes of ___________ meeting. COUNTYOFKAUA'I PLANNING DEPARTMENT TO:Subdivision Committee,Planning Commission SUBJECT:Extension Request PURPOSE: ^ File Final Subdivision Maps Complete Subdivision Improvements Other: Subdivision Application No.Applicant(s) S-99-49 Association ofApartment Owners ofK-ulana Location:Kapa'a Tax Map Key:|(4)4-3-0011:001 Extension Request No.(1 si nnd etc.)Tentative Approval Granted On:Previous Ext.Expired On: N/A N/A N/A Subdivision Bonded:No Deadline to Complete Improvements:September 13,2021 APPLICANT'S REASONS:Additional time is being requested to complete the necessary infrastructure improvements relating to the subdivision.The Applicant is currently working to complete these improvements and require additional time to finish the work. PLANNING DEPARTMENT EVALUATION &RECOMMENDATION EVALUATION:Please refer to next page... RECOMMENDATION:Please refer to next page., k AUQ 1 9 202J Date ['/]Approved and Recommended to PIanning Commission [JDenied Comments: lirebtor ^u^ V:\1999 Master Fites\Regulator)-\Subdmsions\S-9949 Kuiani Subdmsion\E!rtension Report -09.14.2021 KE S-99-19 Kulina Subdiv-ision Improvemenls.docx T.l^.l. SEP 1 4 2021 Yes ^ COUNTY OF KAUA'I PLANNING DEPARTMENT Extension requests are primarily processed for the purpose ofcontinuing a tentative approval for a subdivision application.An extension approval alloivs an applicant additional time to comply with the requirements in order to obtain final subdivision approval. [n determining whether additional time should be granted,an evaluation is made ofthe project's progress as well as compliance with the requirements oftentative approval.The evaluation is primarily based on determining whether the applicant is progressively working towards obtaining final subdivision approval with the various reviewing agencies.The tentative approval conditions are then re-evaluated to determine whether the conditions/requirements are adequate to address the impacts ofthe proposed development in consideration ofthe time that has lapsed. Pending evaluation ofan extension request,one ofthe following can occur: 1.The extension is approved without changes to the tentative approval requirements; 2.The extension is approved with modified time frames but no modifications or additions to the tentative approval requirements; 3.The extension is approved with modifications and/or additions to the requirements; and 4.The extension is denied. BACKGROUND: Kulana Subdivision (Subdivision Application No.S-99-49)was granted Final Approval by the County ofKauai Planning Commission on August 24,2004.The development involves a 23-lot agricultural subdivision located along Olohena Road and Hauiki Road,approximately 1.2 miles mauka ofKuhio Highway in Kapa'a.The total area involved is approximately 332.456 acres within the County Agriculture (Ag)District and Open (0)District,and within the State Land Use Agricultural District.The surrounding parcels are a mixture ofCounty Agriculture District and Open District and are also within the State Land Use Agricultural District. In considering the extension request,it should be noted that the Kulana Subdivision infrastructure improvements are being accomplished in conjunction with two other related subdivisions identified as follows: S-99-49;Extension Request to Complete Improvements Kfilana Subdivision 09.142021 -2- 1.Subdivision Application No.S-2002-25 (Hauiki Road Subdivision) As part ofthe improvements related to Kulana Subdivision,the Owners and Association have agreed to realign a portion ofHauiki Road by constructing a roadway in Roadway Lots 22 and 22-A,at their sole cost and expense and to dedicate the roadway lots to the County at no cost to the County.The right-of-way for the re-aligned portion ofHauiki Road consists ot'Roadway Lot 22,Roadway Lot 22-A,a portion ofState Ditch 8,and a portion of Remnant Parcel 5 and Remnant Parcel 6.The primary purpose ofthe Hauiki Road Subdivision is to re-align Hauiki Road to provide:an improved road alignment for public use;and a safer access into the Kulana Subdivision.The Hauiki Road Subdivision was granted an extension by the County ofKaua'i Planning Commission on July 13,2021 granting an extension to file final subdivision maps until July 13,2022. 2.Subdivision Application No.S-2018-12 (Kulana Water Tank Subdivision) The Kulana Water Tank Subdivision is locatedjust mauka ofthe Kulana Subdivision that is adjacent to the southem side ofHauiki Road.The 250,000 gallon water tank was approved by the County ofKaua'i Plarming Commission on March 11,2003 through Class [V Zoning Permit Z-IV-2003-14 and Use Permit U-2003-15 and was developed to primarily serve the Kulana Subdivision.The proposal involves a two (2)lot subdivision and as represented by the Applicant,Lot 8-A (the water tank lot)will be dedicated to the County ofKaua'i.The subject subdivision was granted Tentative Approval on May 22,2018 and was granted its third extension request by the County ofKaua'i Planning Commission on May 11,2021 granting an extension to file final subdivision maps until May 22,2022. The Applicant has been working with the Planning Department to comply with the conditions of Tentative Approval with both subdivisions as it relates to the subdivision improvements associated with Kiilana Subdivision. FINDING^S A.Restated Subdivision Agreement (Please see I.Recitals ofthe Kulana Subdivision Restated Subdivision Agreement for more infonnation on the sequence ofevents that led to the Restated Subdivision Agreement.) The Kulana Subdivision Restated Subdivision Agreement was executed on November 26, 2018 between the County ofKaua'i and the Association ofApartment Owners ofKulana. The purpose ofthe Agreement is to evidence and implement the agreement between the Subdivider and the County regarding the Kulana Subdivision and the completion ofthe remaining unfinished Subdivision Improvements;and to resolve matters relating to the Hauiki Road Subdivision. Paragraph 11 ofthe Collateral Agreement specifies that the subdivision improvements shall be completed within five (5)years ofthe final approvalofthe settlement ofthe Litigation by the Fifth Circuit Court,which was approved by the Court on September 14,2016.As a S-99-49;Rxtension Request to Complete Improvemcnts Kulana Siibdivision 09 142021 -3- result,the Subdivider has until September 13,2021 to complete the subdivision improvements. B.Agreement 7.ofthe Restated Subdivision Agreement states: "Upon application by the Subdivider,the Plcmning Cummission inay grunt such extensions of time for performance affecting Phase I and/or Phase II as may be reasonable timier the circiimstances,provided ihat no extensions oftime shall be granted unless the Subdivider first does the following: a.The Siibclivider shall give all owners ofthe Kulana Lots within the affected Phase (the "Phase Owners ")written notice,by certified mail or hancl delivery,ofthe Subdivicler 's intent to request an extension oftime,and conlaining the dale,time and location ofthe meeling at which the Planning Commission wil!consider the reqiiest and the reasonfor the request. h.The notice shall be delivered to such Phase Chvners at least/ifteen (15)days prior lo the meeting. c.Prior to the or at the time ofthe meeting,the Subdivicler shallfile an affidavit with the Planning Commission as to the mailing or delivery ofsuch notice and a lisl of Phase Owners to whom such notices were sent.In the event extension of performance time is granted by the Planning Commission,the Sltbdivider shall inform the Phase Chvners ofsuch extension und shall hold the County,its officers, agent and employees,free and harmlessfrom any loss or liabilily resultingfrom siich extension oftime." PROGRESS OF SUBDIVISION IMPROVEMENTS: Most ofthe infrastructure improvements for the development are physically completed and it is a matter ofobtaining the necessary paperwork,agency inspections and approvals.Also,there has been some delay with material availability,construction work and project inspections due to the COVID-19pandemic. As represented by the Applicant,all onsite waterlines,offsite waterlines and a 250,000 gallon water tank are completed,disinfected,and operationally connected to the County ofKauai Department of Water,water system.Final inspections,record drawings and conveyance documents have been completed and executed for approximately 50%ofthe new improvements. The Kulana AOAO is currently working with the Department of Water to complete final inspections,punch-list corrections and to execute conveyance documents for the remaining portions ofthe water system. S-99-49,Lxtension Request to Cumplete Improvementii KuIanaSubdivisiun 09.14.2021 -4- Additionally,all onsite street improvements are completed and ready tor tinal inspection.Final inspections,as-built surveys,record drawings,final geotechnical reports,road dedication and associated documents are being completed for submittal to the Department ofPublic Works (DPW).At the present time Esaki Land Surveying is on-site performing final as-built surveys and verifying property markers.Once field surveys are completed,as-built grades and alignments will be incorporated into the record drawings and submitted to DPW with a request for final inspection.Upon completion ofDPW's final inspections,the Kulana AOAO will address any punch-list corrections noted by DPW. PRELIMINARY EVALUATION Based on the foregoing circumstances,the Applicant's reasons arejustifiable and no problems are foreseen in granting the extension request.The Departments ofPublic Works and Water have no objections to the request. Additionally,the Applicant should demonstrate further progress with the subdivision within one (1)year from the approval ofthis extension request.As such,the Applicant shall be made aware that in further considering extension requests involving the proposed development,the Applicant shall continue to submit to the Planning Department an updated status report on the subdivision with a detailed time chronology on the progress of improvements.The status report shall be submitted to the Planning Department no later than sixty (60)days prior to the expiration date in order to allow sufficient time to evaluate whether progress has been made. RECOMMENDATION: It is recommended that an extension until SEPTEMBER 13,2022 be granted to complete subdivision improvements for the development.However,the Applicant is made aware that an updated status report on the subdivision with a detailed time chronology on the progress ofthe tentative approval requirements shall be submitted to the Planning Department for review for further extensions requests.The status report shall be submitted to the Planning Department no later than sixty (60)days prior to the expiration date. S-99-49;Extensiun Ri;qui;st to Complete [mprovements ECulana Subdivision 09 14.2021 -5- EXHIBIT LIST S-99-49;Extension Re^iiest to Complete [mprovuments Kulana Subdivision 09 14 2021 -6- EXHIBIT 1TEM A Extension Request Letter from the Applicant dated August 13,2021. B Subdivision No.S-99-49 Kulana Subdivision Recertified Final Subdivision Map c Subdivision No.S-2002-25 Hauiki Road Subdivision Tentative Subdivision Map D Subdivision No.S-2018-12 Kulana Water Tank Subdivision Tentative Subdivision Map E Location Map and Tax Map showing Kulana Subdivision F Kulana Subdivision Restated Subdivision Agreement G Settlement Term Sheet H Collateral Agreement EXHIBIT "A 55 Mr't !VlACKlNN:ON Ll p 21 AU6 13 P3:Gc August13,2021 RECi-.,^'^ Francis DeGracia Subdivision Committee Chairman 4444 Rice Street,Suite A473 Lihue,Hawaii 96766 Attn:Kenneth Estes via e-mail:kestes@kauai.ciov Re:Kulana Subdivision Dear Chair DeGracia: This firm represents the Kulana Association of Apartment Owners (Kulana AOAO),the subdivider.Pursuant to the Restated Subdivision Agreement dated November 26,2018 ("Restated Agreement"),the subdivision improvements are to be completed by September 13,2021.We are about 98%complete with all requirements and are writing for an extension to be granted for a period of one year.Here is an update: Cyrrent Proiect Status: The construction ofstreet and water improvements throughout all phases ofthe project is complete. All onsite waterlines,offsite waterlines and a 250,000 gallon water tank are completed,disinfected,operationally connected to the County of Kauai's Department of Water (DOW)system.Final inspections,record drawings and conveyance documents have been completed and executed for approximately 50%of the new improvements.The Kulana AOAO is currently working with DOW to complete final inspections,punchlist corrections and to execute conveyance documents for the remaining portions ofthe system. All onsite street improvements are completed and ready for final inspection.Final Inspections,as-built surveys,record drawings,final geotechnical reports,road dedication and associated documents are currently being completed for submittal to DPW.At the present time Esaki Land Survey is on-site performing final as-built surveys and verifying property corner markers.Once field surveys are completed,as-built grades and alignments will be incorporated into the record drawings and submitted to DPWwith a request for final inspection.Upon completion ofDPW'sfinal inspections, the Kulana AOAO will mobilize to address any punchlist corrections noted by DPW. Francis DeGracia,Chairman August13,2021 Page2 Collateral Agreement: As a result ofthe original developer's (K382's)failure to complete the subdivision improvements the County of Kaua'i (County)and the Kulana Association ofApartment Owners (Kulana AOAO)entered into a a Collateral Agreement,which was subsequently ratified by the 5th Circuit Court on September 14,2016.The Collateral Agreement stipulated a five (5)year completion time frame,generating a required completion date ofSeptember13,2021. Design /Plan Recertification Phase: The Kulana AOAO and its engineer Bow Engineering &Development,Inc.(Bow) initiated formal activities to resubmit and secure the County's recertification ofthe project's improvement plan sets immediately after the 5th Circuit Courts ratification of the Collateral Agreement.A tabular summary of the plan set approvals and as-built status is furnished below: Plan Set Initial Submittal Approval Date As-built Date Hauiki Road Improvements 4/7/17 9/1/17 (DOW)/10/10/18 |6/10/21 (DPW)[(DOW) Ka'apuni Road Improvements 5/22/17 2/5/18 (DPW) Kulana Place Improvements [4/7/17 Phase 1,Onsite Water SystemT2/15/T7 10/30/17 (DPW) 2/22/18 (DOW)9/10/20 (DOW) i Phase 1,Offsite Water &0.25 1 MG Water Tank 2/15/17 3/18/18 (DOW)6/10/21 (DOW) Phase 1,Onsite Roadways 4/7/17 10/30/17 (DPW) Phase 2,Roadways &Onsite Water System 2/15/17 7/11/19 (DOW)/8/21/19 (DPW) Olohena Road Driveways 12/12/16 110/30/17 (DPW) Subdivision Map,Modified i 1/8/19 (Planning) Subdivision Agreement, Restated 11/26/18 (Planning) Construction Phase: Concurrent with the approval and recertification ofthe project's improvement plans,the Kulana AOAO developed construction bid documents and solicited bids for all subdivision improvements,which were not completed by the project's original developer Kapa'a 382,LLC.(K382).Upon receipt of bids the Kulana AOAO entered into four (4) construction contracts with Earthworks Pacific Incorporated. Francis DeGracia, August13,2021 Page 3 Chairman Date Executed 4/23/18 Contract 'Contract |Amount!Ka'apuni StreetWater Improvements i $217,996 ;Percent j Complete 95% All construction is substantially complete subject only to final punchlist inspections and as-builts.Construction invoices are paid current to 95%comptete with the Kulana AOAO holding 5%of the contract value in escrow for retention. COVID Delavs: The State of Hawaii suspended all construction work in March 27,2020 in response to the COVID-19 pandemic.At the time ofthe suspension street improvement work within the Phase 1 area was approximately 90%complete.Waterline testing, disinfection and connection was approximately 50%completed.And,mass grading activities within the Phase 2 areas were substantially in progress. Work suspensions were lifted on May 4th,2020.However,the projects continue to experience impacts associated with inter-island travel restrictions,material availability and wet summer weather (Hurricane Douglas)for the remainder of 2020.Inter-island travel restrictions from and to the island of Maui resulted in significant impacts to water line disinfection and connection activities.Chlorinating personnel located on Maui were required to quarantine for a period of2-weeks after returning from outer islands.This effectively made them unavailable to support work on the island of Kauai. Proiect Financin.q: The project is 100%owner financed with cash deposits bythe members ofthe Kulana AOAO into a development escrow account held by Title Guaranty (escrow account).There are no external bank financed loans or project liens.The escrow account current holds cash funds as required to secure final completion of the project. 6/26/18 Phase 1,On-site &Offsite Water Improvements$993,712 95% 'awh i 8/2/18 Phase 1,Street &Dry Utility Improvements $1,120,930 19/5/19 Phase 2,Street,Water &Dry Utility Improvements$6,884,313 95% 1 Total $9,176,955 | Francis DeGracia,Chairman August13,2021 Page 4 In conclusion,you can see that so much has been done and this subdivision is almost at the finish point;and completion is anticipated within the next 12 months.We are hoping all agency reviews can accommodate this timeframe and no unforeseen punchlist work is identified during the course of our final inspections,and Covid-19 delays are not too impactful.Therefore,we are requesting a one year extension. Thank you for your attention to this request. Sincerely Yours, ^^l^.u^^^ LAUREL LOO EXHIBIT "B ;? ^'"s^ s ^i--l^K^i'^':!5: §lfJS§ss^T§S"'^E^ ^l3^zmiS^S 'i^'- 8i|iafW2^Si;ii* ltisls=°";^B|^^^a^8i::::'sSSi "'i^^-j.i^^70 ^^3'<-S 2^" )iS^C?^^2sg ;" s'sii3?3li;s; !l^^^ji'^''WDS^S' w-9:Vl.^.^ ->^.M^^^ ^'N^S '•J-^•^},^'h ^;".'^N^-'.'..si:.'>'.i.- i.t %^•a^,'^ ll';i ^r ' -<-°*:..s'A lra^'iSV^-^•y^W/fcE;.i ;,,'"•..;"•-^••sa s/ss'"'^'"-^•"'s- fW-S/;:iii'SiPSFW.i'::U:'H\,:y t ;:i ;;;|i :i|i5Ll^J |jS.j|t ;1 ijpi i^'O ' U:i^il^i>J''3^=il^-^'•^Kfi! 91j ^li sj ^;|JJ '^'•"''^vt IHiiHH1BsjjiijjlaUS°y ;--/•'"i^;a;ri(:/ •»l-^A;. S ".^S^y Kl fc '^'1%'1 4^.;-"-y % 'fe .^•i:vfl'fK'i^'-'-T'V•?-!Ji^-" ^.-,^7s^lg?-.3^;^?£'?^si^l? J^K"^BS3|^ll SK3aESE»SIRi? iEsoKESSS't:S.£p«Ss"3tg>t§ ^^^•Sc^^ii"''^ If^^s^s^1 Ef'5L"mert&cii.-signLStfid E)H-1 i.j DR-5,i-it;lus;ve,;:("^-i [JfGiiKl.-ie pLirpCiS^s i"favnr i.rf A'.^i-'i-inl :3p of Apurtmc.'n;i'JA"'c;rs L;'K:J|(;''|;.; s..onaarTiiniLtni !AUAUK'.:; U •o,Ticiu^irf.ore '••;r -•.j'lur" Rood Widening Grading pL-rpDsea in favor ol'Ihe CcJnty o(Kau^i. \l'.'.";fr,.iui-!:'A,;:'(.,.'.:1 ;;'.f.Al.;•.'.,^'l-.l'.Al.l-4t.thouan Ai.'-^a r-'iide'itridri ".n'~vepir.;iLT'".';r"3s iT'iO i.ililily pjrpuKii^i'l lavor of Apcrtn^;iil :?,w:'i,''';::1 i-.ili:n;i ;':.,n.-ion'iinijK'.iAUAOi<Ci iir:d .-•t-ii'rs IIB Af:f;'>R'1 i-'r-'ii[':ir,'r'liifl-..;•-"!'.;;i^.'i.;i"i.;";;!F'" Eosementa cesigiisted F •'lu P-6,inclusivo,are (•">''Irrigutiu'i OitCh System pu'pases ;n fcvor OT Asyociation of Aportment Owners of K'jlor'O ^ondoiTiiriium (AOACKC). EoaswW.y desi(!rsGted E-5-A,r-7-A,E-7--B,E..3...'\.E--9--E. L-'J -C,:::-9-[''ore ror Ouei'hsad Electrsca''ronsn.i-a'iii'in purp;.K&s i"f3vur of Citizer'ia UUIitieS Company jr'a csri;portion;:, nf ^rcr'.t o'ruSt;rnent by The Li^lue Piantaiii'ir Co'ripo-'r/,;;rni!i-'c! ly <J:t;zcns ui.ili'ies Uurnpeny,L'cic.No.li0 •••iL-'lti^;.)!'R;.->['3ca ^itl'i ll'ie stalt;of i-iawai]oLiiri'jij uf f;y"vt;yjr;t;'js L'II 0.?oL't"'^st, lyytt. Easernent rie-iignateG W-1 is for Water l.iny purfjti^ei; iri fo'<or &(Ccijrily uf Kouoi •DejjLifimeFit ot Wc'cr. .ifii^lidls;;.•-'••;.'...• A£3;-ci^;;^,-.-_•;\['..;''l.r""fll ..^•1-1 KDLANA EUB01VISON (AUeNDEC) J&5UBDIV1SION Of SA10 OON^OUDAnWJ tNTO LOTS 1 TO ;;,IMCLl ,U$)kt,iNCLuyw.oe-i LOT 5UMMARIES !rju^^'-' LOTS •-23 "w Si^Si'-<LAy •i\C..1 OPLN A?FA :^f.i\i/ONr ARrA|70'lit:APFA! .!..„.-..'"'"; i.A-jt.MLN'f';AFF^(.';ING LUT -'l ...'•••••::: n.nC^^C-'E;^;11.J&J ACP^S ;.•i^.-i^'/AChi;^1j^.36y ACFfEISJfl^j.a;^ACPti.-i ^1;0-BC.F'h':;'TOTAL',[}0 MOT ADCr UP ULjE:1'U KLJ^MDIti'^ EXHIBIT "C ?? LEGEND BUILDING SETBACK ANO DRAINAGEWAr UNE DITCH EASEMENT CENTERUNE Crunt S S f S t o K u.f v.t P ..^paldl NOTFS: 1.BUILOING SETBACK AND DRAINAGEWAY UNE BASCD ON ORAINAGEWAY S7UDY PREPARED BY FREO A.RETE3,C.E.UCENSE )C8532-C,DATED NOVEMSER 14.2000. (REVI^II LOCA710NS:MAY 26,2003) 2.WATER SERVICE FOR THESE NEW.Y CREATED LOT3 24 ANO 25 MUST BE PROVtDED TOROUGH THE PROP06ED WATER SYSTEM FOR KULANA SUBDMSION S-98-49. v>''" PRE-FINAL S-2002-25 CONSOUDA710N OF REMNANT PARCELS 5 AND 6,AND PORTON OF STATE DITCH 8 8QNG PORTIONS OF GRANT 5266 TO RURJS P.SPALDINGANDR.P.7573,LC.AW.8559-B.APANA 42 TO WILUAM C.LUNAULOANDRESUBDIVISIONOFSAIDCONSOLIDATION INTO LOT 22-A.LOT 24,AND LOT 25 ANO DESJGNATION OF EASEMENTS D-57.D-58 SD-1 KAPA'A &WAIPOUU,KAWAtHAU.KAUA'I.HAWAI'I Tnx Map Key (4)4-3-03;27 Owner:Mancock &Co.ini;.PSP &Trust.Cy Mlinshlro.June &Kris Von Dahm Dota:June 25,2021 Uflh^n -tdfd lin^nft — EXHIBIT "D 99 ifHfl E S T E AJ1S ST n ^j^f^- •308-33' 28.22 R=20.00 <w'f<,s) 13 ft.road sgtback llne-28.2fi-_..]isu»d_a-,s^.lJ_ ^l-a-J "Itluc r"'CB__,^ch pi.dR=2o.oo ^s^sy- LOT 8-A 0.586 Acre 'v.-'. ^'^ 4-4-0.3:13 '-KI viaNirr MAP Not to Scale 264-30'^117.81 Eaaement W~1 267-24-—97.99 LOT 8-B 0.494 Acre 230.95 Lot 9 T.M.K:(4)4-4-03-90 Lot 7 T.M.K;(4)4-4-03: TtilS WORK WAS PREPARED BY UE OR UNDER MV SLIPERVISIONGRAPHICSCA (IN FEET ) 1 inch =40 ft Sfgnolure ESAKI SURVEYING &MAPPING,INC. EXPIRES:APRIL 30,2018 PR£LIMINAR1.KDLANA WATK TANK SUBDIVISION SUBDIVISION OF LOT 8 INTO LOTS 8-A AND 8-B Belng portlon Grant 7286 to J.B.Sauza ielng olso portlon of R.P.7373, CC.Aw;8559-8,Ap.42 to WIItam C.Lundllo WAIPOUU,KAWAIHAU.KAUAI.HAWAtt Tax Map Kay (+)4-4-003:088 Ownen Aaaoc1<rtlon of Apartmmt Ownera of Kulona Condomlnlum Datc;Fabruory 26,201B Job Number: Drawing File: 17-21 MA 17-21 subd.dwg ESAKI SURVEYING k MAPPING,1NC. Civil Englneers —Lond Surfoyors ~Plonners 1610 Haleukana Street Llhue,Hciwcll 96766 EXHIBIT "E ?9 ?ii!S8B?*!-'".•'"•••'•"•"'•*^'A*:*'^;,.:ff t^'t"^li.^ ^w^ HAud|.l ^~A'"^^ HAUIKIROSD SUBDIVlSlt KVLANA SUBDIVISION S-2D18-12 KVLANA WATERTANK SUBDiriSION Kapaa Middla School LOCATIONMAP KEGARDING KULANASyBDIKISIQN WI>T£.Ou.ni.t—ui*—m.1 bt^Miuw mll irniiuna ^B^dClfcfl IN<tD»UUU*hf Ulit •BtiahUflOtKftudtuiitu1»Ito OtMnnnlolWir,Cnuo d kiulL?tt r •—*!••<"''"•n* w —fMniiri.MTih,lhl«ftu*<rfWN«,W*f d KUA IIH NWf ' liif'ttr'nJ'lllitwritiiit Itf itffdil inurt POIfriW W StWTH O.OHEHA -KAPA&,KAWMHAU,KAWU KOLAMA SilBDtWSIW FOIt PROPERTT ASSESSUENT PURPOSES -SUBJECT TO CHAN6E nFUWn tffnuu'"!i""S""l["KM'•s."a~ "liMt Uf cwwrf.S.KWL I0 1 !£CffOr-T-_PLjI 3 I 11 SCAIE:)IN =1 i".•3SQ ( PRINTFB- EXHIBIT 'T 59 RESTATED SIIBDIVISION AGREEMENT (Kulana Subdivision) THIS RESTATED SUBDIVISION AGREEMEN-I'(Kulaiia Subdivision) (this "Agreement")is made this 26th day of November_,2018 ,by and betweea the COUNTY OF KAUAI,a political subdiv-ision of the State of Havvaii,hereinafter called the "County",and the ASSOCJATION OF APARTMENT OWNERS OF KUI.ANA,aii unuicorporated association formed pursuant to the provisions of Hawaii Rcviscd Statutes ("IGtS")Chapter 514A,whose mailing address is 2970 Haleko Road,Suite 103,Lihue, Kauai,Hawaii 96766,hereinafter called the "Subdivider". [.RECITALS A.On or about June 9,1999,Kapaa 382,LLC,a Hawaii limited liabUity company,which was administratively terminated as ofDecember 1,2009 ("Kapaa 3S2")applied to the Planning Commission of the County of Kauai (the "Ptanning Commissioii")for the subdivision of that certaui real property located in Kapaa and Waipouli,Kauai,Hawaii, identified at the time by Kauai Tax Map Key No.(4)4-3-003:005 (portion)(the "Subject Property")into Lots 1 to 23,mclusive (the "Kulana Lots"),as more fully shown and described in Planning Commission Subdivision Application No.S-99-49 (the "Kulana Subdivision"). B.[n accordance with Section 9-3.6(b)ofthe Subdivision Ordinance ofthe Countyof Kaiiai,as codified in Title [V,Chapter 9 of the Kauai County Code,1987 (Subdivisicin Onlmance"),the County and Kapaa 382 entered into that certain Subdivision Agreement dated July 23,2004 (the "Original Subdivision Agreement"),pursuant to which Kapaa 382 guaranteed the lien free complction of construction of improvements (W:;COCS/28S.I.I/IAV015667(].DOCX) required by the County for the Kulana Subdivisioii (Ihe "Subdivisiuii Improvements")based on the conslruction plan for the Kulana Subdivision approved by the County. C.Final subdivision approval for the Kulaiia Subdivision was graiited by the PIaiuimg Commission on August 24,2004 ("Final Subttivision Approval")bascd on Kapaa 382's compliance with ttie applicable provisions of the Subdivision Ordinance,mcluding: the execution of the Original Subdivisioii Agreement;and thc posting of a Surety Bond (Bond No.104351055)executed and delivered by Kapaa 382,as principal,and Travelers Casualty and Surety Company of America ("Travelers"),as surety,iiaming tlie County as obligee (the "Siibdivision Bonif'). D.Thereafter,pursuant to the provisions of HRS Chapter 5 14A,Kapaa 382, as the Developer,submitted the Subject Property to a condominium property regime known as "Kulana"(Ae "Kulana Condommium")in accordance with that certain Declaration of Coadominiuni Property Regime of Kulana,dated November 24,2004,recorded in the Bureau of Conveyances ofthe State ofHawaii as Document No.2004-252101,as subsequently amended and restated.Subdivider is the association ot apartment owners of the Kulana Condominium project. E.On or about January 23,2002,Kapaa 382 applied to the Planning Commission for the consolidation and resiibdivision ofthat certain real propcrty in.Kapaa and Waipouli,Kauai,Hawaii,identified by Kauai Tax Map Key No.(4)4-3-003:005 (por.) (the "Hauihi Road Property")into Lots 22A,24 and 25 (fhe "llaiiiki Road Lots"),as more fally shown and desciibed in Planning Conunission Subdivision Applicatioa No.S-2002-25 (the "Hauihi Koad Subdivision"). (W:<DOCS/;854.1/I/WOI56670.DOCX }-2- F.At its meeting held on April 9,2002,the PIanning Conunission granted TenLative Approval to tlie Hauiki Road Subdivision ("Hauiki Tentative Approval"). G.The primary purpose of tlie Hauiki Road Subdivision was to re-align Hauiki Road (a County road)to provide:ati improved road aligmTient for public use;aiid a safer access into tbe Kulana Subdivision. H.By letter dated April 30,2008 ("Hauiki Roail Revocatioii Letler"), lan K.Costa,PIanning Director of the County of Kauai,informed Kapaa 382 that the Hauiki Road Subdivision had been declared null and void effective April 28,2008 in accordance with Section 9-3.8(c)(l)ofthe Subdivision Ordinance because ofthe Subdivider's failiire to file a final map within one year ofthe date ofTentative Approval. I.Kapaa 382 breached its obligation under the Subdivision Agreement and its duty as Developer to the purchasers of units in the Kulana Condominium ("Kidana Units") by failing to complete construction of the Subdivision Improvements for the Kulana Subdivision and other infrastructure for the ICulana Condominium.As a result of such breach and in order to facilitate the completion of the Subdivisioii Iniprovements,and with the County's conseat,the Subdivider becanie a joinl subclivision applicant witli Kapaa 382 for all purposes relating to completion ofthe Subdivision Improvements. J.Due to Kapaa 382 s failure to cumplele the Subdivision Improvements,the Subdivider sued the County aiid Travelers under the Subdivision Bond m a lavvsuit entitled Association of Apartment Omiers of Kulana v.Travelers Casualtv aiid Suretv CompanY_of America.et.al.,Civil No.12-1-0027 RGBV,Fifth Circuit Court,State of Hawaii (thc "Litigation").The parties to the I.itigation have since settled all matters arising out ot'the Litigation.As part of the settlemcnt of the I.itigation:(a)the Subdivider,thc County and |W:/DOCS,'285+4/I/W0156670.1XX:X )-3- Travelers have entered into that ccrtain Settlement I'erm Sheet datcd August 14 and 19,201 5,a copy of which is attached hereto as Exhibit "A"(the "Term Slieef');(b)Travelers EUld the Coiuity have entered into that certain Subdivisioii Bond Relcasc Agreemcnt datecl Aiigust 14, 2015,a copy ofwhich is attached hereto as Exlubit "B";and (c)the County and the Subdividcr have executed that certain Collateral Agreement supplementing the Settlemeat Tenn Sheet which sets forlh certain speciaj settlement terms concemiiig the Kulaua Subdivision,a copy of which is attached hereto as Exbibit "C"(the "Collateral Agreement"). K.At this point,the Subdivider has obtained final approval for the Kulana Subdivision,but is not in compliance with the Original Subdivisioii Agreement becausethere is no longer a Subdivision Bond in place to cover the costs of the Subdivision Improvements. L.This Agreement is being entered iuto:pursuant to tlie temis of tbe Term Sheet aild the Collateral Agrecmeat (jointly the "Settlement Documents")to evidence and implement the agreement betw'ecn the Subdivider and the County regarding the Kulana Subdivision and the completion ot the remaining unfinished Subdivision Improvemcnts; aiid to resolve matters relating to the Hauiki Road Subdivision, M.Witli the County's consent and m accordance with the Settlement Documents,the Subdivider lias submitted a proposed modification to the Final Subdivisioa Map t'or the Kulana Subdivision,a copy of vvhich is attached hereto as Exhibit "D"(the "Modified Map"),reflecting that the Kulana Subdivision ivill be developed and the Subdivision Improvements will be uompleted in two (2)phases ideiitified as Phase l and Phase II.The Kulana Lots and Units included in each phase are showii on the Modified Map and are listed ia the Phase I/Phase II [ndex,a copy ot'which is attached hereto as Exhibit "E". (W:/DOCS/285'M/I/W015M70.DOCX)-4- N.Paragraph 11 ot'the Collateral Agreement specified that the Subdivision Improvements shall be cnmpleted within five (5)years ofthe final approval ofthe settlemeiit of the Litigation by the Fifth Circuit Court,which was approved by the Court on Septcinber 14, 2016.As a result,the Subdividcr has uiitil September 13,2021 (the "Completion Datc")to complete the Subdivision Improvements. O.The Subdivider agrees to complete the Subdivision Improvemeiits for both Phase I (the "Phase I Improvemenls")and Phase II (the "Phase II Improvements")by the Completion Date. P.The Subdivider has entered into the following three (3)construction contracts ("Construction Contracts")witli Earthworks Pacific,liic.("Contractor")for the construction ofthe Phase I Improvements:Phase I Street &Dry Utility Improvements Contcact Agreement (July 6,20 IS);Phase [Onsite &Offsite Water Improvemeuts (June 27,2018);and Ka'apuru Road Offsite Water Improvements Contract Agreement (April 23,2018).The Subdivider has provided copies of the Construction Contracts to the Planning Department.The Subdivider will providc thc Planning Department with similar Construction Contracts for the Phase II Improvements, Q.The County agrees that as long as tlie Subdividcr meets the schedules and requirements of this Agreemeut it will not institute proceedings to revoke the Final Subdivision Approval for the Kulana Subdivision pursuaiit to Chapter 12 of tlie Rules Ot'Practice And Procedures Of'l'he Planaing Conimission ("Planning Comniission Rules"). R.'l'he Couiity fiirther agrees to withdraw the Hauiki Road Revocation Letter and to allow the Subtlivider to complete tbe Hauiki Road Subdivision consisteiit with the FIauilu Tentative Approval,provided that a Fiiial Map t'or the Hauiki Road Subdivision is filed {W:,'DOCS/285-14/lWOt56670.L)OC;X)-5- within one (1)year of the date of this Agreemcnt;or such jater date as may be approvcd by the Plamiing Coiiunissioa. S.The Subdivider aiid the County dcsire to anicnd and rcplace in it.s entircty the Original Subdivision Agreement with this Agreement in order to incorporate thc tcnns ot'the Settlement Docmnents and the agreements coatained hereia. II.AGREEMENT NOW,THEREFORE,iii consideration of the matters set forth in the Recitals and the mutual promises and covenants contained herein and in the Settlement Docunients,the County and the Subdivider agree as follows: 1.The County aad the Subdivider hereby ratify and reaftirm the tenus of the Settlement Documents and acknowledge and agree that such instruments remain in full force and effect. 2.The County hereby waives and forgives all prior defaults and failmes of performance by Kapaa 382 as the prior subdivision applicant and "subdivider"under the Original Subdivision Agreement and with regard to the Hauild Road Subdivision. 3.The parties agree that the Subdivision Improvements for the Kulana Subdivision shall be completed in accordance with the following provisions: a.The Subdivider shall provide the PIamzing Department with the Constmction Contracts for the Phase I Iinprovemeiits as provided herein,and will complete the Phase I Improvements by the Completion Date. b.The Subdivider shall providc the Plajmiiig Department with tlie Constniction Contracts for the Phase II Improvements as provided hereiii,and will complete the Phase II Improvcments by the Completion Date. {W:/DOCS.'2854-l/I;W0156(i70DOCX )-6- 4.The County and ihe Subdivider ackjiowledge aiid agree that ihe Subdivider has assumed responsibility for compleling llie Phase I tmpruveinents and the Phasc II Improvements,and will be responsible for performaiice ofthe terms ofthis Agreement. 5.The County agrees to approve the Modified Map submitted by or on behalt ot'the Subdivider,subject to siich conditions of approval as maybe imposed by the Planning Coimnission. 6.The Subdivider agrees to pay all fees associated with approval of the Modified Map and to complete all Phase I Iniprovements and Phase II Improvements to tlie satisfaction of the County in accordance with:any and all outstanding conditioiis of approval for the Modified Map imposed by the PIanning Commission;the specifications associated with the Modified Map;the construction plans for the Phase 1 Iinprovements and the Phase II Improvements;and the applicable provisions ofthe Subdivision Ordinance. 7.Upon application by the Subdivider,the Planning Cuiimiission may grant such extensions of time for performance affecting Phase I and/or Phase II as may be reasonable under the circumstaiices,provided that no extension of tiine shall be granted unless the Subdivider first does the following: a.The Subdivider shall give all owners ofthe Kulana I.ots within the affected Phase (the "Phase Owiiers")wcittcn notice,by certified mail or hand delivery,of thc Subdivider's intent to request an extension oftinic,and containing thc date,time and locatioii of the meeting at which the Plannmg Commission will consider the request and the reason for the request. b.The notice shall be delivered to such Phase OwTiers at least lifieen (15)days prior to tlie meeting. (W:/DOCS/285.1.(/1/U'OIS«670.DOCX ;-7- c.Prior to the or at thc timc ot'thc meeling,the Subdividcr shall file an affidavit with the Plaiuimg Cormnission as to the mailing or delivery ofsuch notice aiid a list ofPhase Owiiers to vvhom siich noticcs were sent.In tlie cveut exteiision ofperformance tiine is granted by the Plamiing Comniission,the Subdivider shall infomi the Phase Oviners of such extension aiid sliall hold the County,its officers,agent and employees,free and hannless froin any loss or liability resulting fruiii such extensioa of time. 8.In accordaiice with the Settlement Docuiients,the Facilities Resen'e Charge payable to the Department of Water iii connecliou witli the Kulana Subdivision shall be paid exclusively from the County Escrow Account.Any exuess seltlement funds remainmg after payment in full ofthe Facilities Reserve Charge shall be used by the Subdivider for payment of other expenses relating to the Phase I [mprovements and/or the Phase 11 Improvements. 9.In the event the Subdivider fails to pay all fees associated with the approval of the Modified Map or with thc Phasc I Improvements or the Phase II Improvements on or before the date specified,or in the event the Subdividcr fails to complete the Phase l Improvements or the Phase II Improvements as shoivn on th.e Modiiied Map and County approved constmction plans on or before the Completion Date,as the same may be extended in accordance with the terms hereot',the County may do any and/or all ofthe following: a.The County may file a petition pursu;uit to Planning Conmiission Rules Chapter 12 to revoke the Final Subdivision Approval ("Revocation Petition"),provided that the Revocation Petition shall only apply to the Kulaiia Lots for which Ihe Subdivisioii Improvements required by the Subdivision Ordinance and this Agreement have not been completed by the Completion Date. JW-/DOCS/2S544/IAVB156670.DOCX) b.The County may takc siich other actioii as inay be reasonable under the circumstances. 10.After certification of completion of the Phases I Iniprovemcnts and/or the Phase II Iniprovements,the Subdivider shall notify the County in wiituig vvhether the Subdivider intends to coiivey some or all of the Phase 1 Iniprovements and/or the Phase [I [mprovements to the County or the State,or whether such improvements will remain under private ownership by the Subdivider.Ifsome or all ofthe Phase I Improvements aiid/or the Phase II Improvements are dedicated to the County or the State,the Subdivider shall t'ollow tlie dedicatioii requiremeats contained in the Subdivision Ordinance.In the eveat Ihe Subdivider does not convey aiiy ofthe Phase I Improvements and/or the Phase H Improvements,then all easements,the bill of sale as to water facilities,and other appropriate documents or construction changes requested by the County and the Departmeat of Water shall be promptly submitted to the County through its Plaiuiing Departnient. 11.Upon certificatioii by the County of the completion of the Phase I Improvements aiid the Phase II Improvements and the payment of all fces pursuant to tlie tcrms and requirements ot'the Subdivisioii Ordinance and this Agreement,the County shall instruct escrow to release any remaining tunds in the County Escrow Account to the Subdivider. 12.In the event of ariy clainied breach of this Agreement by the Siibdivider or the Coimty,or any disagreemeiit regardmg the terms or enforeement of this Agreement,the parties shall submit such claims and/or disagreement to retired Judge Gail Nakatani for rcsolution in accordance with tenns ofthe Settlement Documenls.Ifretired Judge Gail Nakatani declines to dccide the matter then the parties shall choose a single arbitratur tu decide the maller, in accordance with the standard arbitration rules ofDispute Prevention and Resolution,Inc. (W/T)OC'S/28544/1/W0156670.DOCX)-9- 13.This Agreement is intendcd to,and does hereby supersede in its ciitirety, the Original Subdivisioil Agreement and tlie Hauiki Road Revocation Letter. 14.This Agrecmeiit is not iiitended to supersede the tequirements of the Subdivision Ordmmice,or any portion of the Rules and Regulations of the Board of Water Supply,but is intended to be supplementary thereto.The Subdivider shall coaform to all ofthe requirements of the Subdivision Ordinance,aad all applicable provisions of the Rules anil Regulations of the Board of Water Supply wliich are pertinent:to the Modified Map;to Phase I md Phase II ofthe Kulana Subdivision;and to the Hauiki Road Subdivision. 15.This Agrcement shall bind the County,its officers,agents,employees and successors and assigns,and the Subdivider,on behalf of all of the unit owners of the Kulana condoiiunium,and the Subdivider's successors and assigns;provided,however,that nothing herein shall bind the Department of Water,County of Kauai,or the Board of Water Supply,County ofKauai. 16.This Agreement may be executed in any number of copies,and by the parties hereto on Ihe same or separate counterparts,each ot'which shall be deemed to be an original instrument but all ofwh-ich together shall constitute one and the saaie agreement. (SIGNATURES COblTIHUED ON f^EXT PAGE) (W:/DOCS085.U/]AV0156670DOCX}-10- IN WITNESS WHEREOF,the parties hereto have executed this Restated Subdivisiou Agreement (Kulana Subdivision)as ofthe date first above written. SUBDIVIDER: ASSOCIATION OF APARTMENT OWNERS OF KULANA,an unincorporated Hawaii condominium association ofowners APPROVED: Director ofPlamung,County ofKauai APPROVED AS TO FORM AND LEGALITY: County Attomey,County ofKauai By.l-rCtA/|?(,-^v(J| BRAD W.ROCKWELL Its President (W:/DOCS/28544/1/W0156670.DOCX)-11- IN Wri'NESS WHEREOK,the parlies hereto have exccuted this Restated Subdivision Agreemcnt (Kulana Subdivision)as ot'the date first above written. SUBDIVTDER: ASSOCIATION OF APARTMENT OWT^ERS OF K.ULANA,an umncorporated Hawaii condominium association of owiiers BRAD W.ROCKWELL Its President APPROVED: Dis^orof Planning,Couiity ofKauai APPROVED AS TO FORM AND LEGALITY: /-L^-f^-'t···^^0>(>"t-7 County Attomey,Coiuity ofKauai {W:/DOC.S/28544/IAV0156670.DOCX}-11- EXHIBIT "G f> sErrrLEMEWT TERM SHEET 1.DEFINITIONS "AOAO"means AOAO ofKulana,its Board ofDirectors,and all persons and entities on whose behalf the AOAO of Kulana may act pursuant to Haw.Rev. Stat.Chapter g514B-104. "Travelers ineans Travelers Casualty &Surety Conapany ofAinerica. Coujity means the County ofKauai. "Parties"ineans AOAO,Travelers,and Coiuity,collectively. •AppesJs"mean CAAP-14-421,CAAP-14-437,and CAAP—14-507. "Circuit Courf or "Court"means the Circuit Court of fhe Fifth Circuit. "Tbe Appeajs shall continue"means an ending of the Remand Period and a return to tlie jurisdiction of the ICA for adjudication of the Appeals. "Not granted"shall mean either not granted by the Court or not agreed to as betwcea thc Partics. "SctUement Amount"shaU mean USD $500,000.00. Other defined terms or terms having initial capitalization have the meanings ascribed to them. 2.SETTLEMENT TERMS Travelers sball pay the County the Settlement Amount within fhirty calendar days of (1)entry by Che Couxt of the Class Judgnaent (see Step 7, below)or (2)upon a waiver byTravelers [see Notc 1,below). The AOAO,County,and Travelers shall fully release eacb other froEn any aiid aU clajms,demands,and causes of action in connection with (1)the Surety Bond (bond no.104351055),and (2)any and all other for events,transactions, or occurrences predating the enbry date of the CIass Judgmcnt (see Step 7, below),and/or (3j any and aU other events,transactions,or occun-ences predatiiig the date of a waiver by Travelers [see Note 1,below), Step 1:The Parties shall fi.ie ajoint m.0tion with,the Intermediate Court of AppeaJs ("ICA")seeking temporaiy rcmand of the Appeals to the Circuit Court ("Rcmajid Motioa").The Remand Motioii shall seck a temporary remand of tfac Appeals to fhe Cu-cilit Court for a period of 180 days ("Remand Period"). The Remaiid Period may be extended any number of times,for any nuraber of days,upon written approval of all ofTraveIers,AOAO,County,and ICA- Ifthe Remand Motion is granted,fhe Parties shall proceed to Steps la, Ib,and 2.If the Remand Motion is not granted,the Appeals sbaU continuc. Step la:Travelers and County shaU enter into a collateral agreement in £he form of Exhibit A-'Exhibit A sbaU be destroyed and shall not be enforceable if Travelers fails to pay the Setfleinent Amount to £he County. Step Ib:County and AOAO shall enter into a collatera]agreement as described in Exhibit B-2 Step 2:The Parties shall file ajoint inotion with the Circuit Court seekuig to amend the Complaint in fhe forra ofExhibit C ("Motion to Ainend*).3 Ifthe Motion to Amend is granted,the Amended Complaint (in the form of Exhibit C)shaU be filed aiid the Parfcies shaU proceed to Step 3.If the Motion to Amend is not granted,the Appeals shaJl continue. Step 3;The Parties shall file ajoint motion for class certification of a plaintiff class of cun-ent a-nd fonner owners of interests in the Kulana subdivision and appraval of class settleincnt ("Class Certification and Approval Mot.ion")- Iffhe CIass CerfcificatiQn and Approval Motlon.is granted,the Parties shall proceed to Step 4.If the Class Certification and Approval Motion is not granted,the Ainended Complaint shall be withdrawn,the putative class dxssolved,and the Appeals shaU continue. Step 4;Noticcs regarding the class scttlement and sctting deadlines for opt-outs and objcctions (''Notices")shall be mailed and/or otherwise transmitted to the class as directed by fhe Court.The Parties shall thereafter procecd to Step 6. Exhibit A shall be the Subdivisioa Bond Release Agreemcnt between County and Travelers. Exhibit B shaJl be the separate Agreement behveen AOAO ar.d County. 'Exhibit C shall be thc draft Amended Complaint,not tlic substantive Motion fco Amend. The Notices shall contain a deadline for opting-out of the class setflemcnt or objecting to thc class settlement ("Class Deadlinc"). Step 5:Travclcrs shall rcview the number of and identity ofpersons and entities opting-out.Travelers shall then,in an cxercise of its sole and unreviewable discretion,determine if Travelers wishes to proceed with the class scttlemcnt.Travelers shall notify the other Parties and thc Court of its dedsion within twenty calendaj-days ofthe Class Deadline. If Travelers wishes to proceed with the class settlement,the Parties shall proceed to Step 6.IfTravelers does not wish to proceed after reviewing the opt- outs,th-e Amended Complaint shall be withdrawn,the puta-dve class dissolved, and the Appeats shall continue- Step 6;Thc Parties shall file ajoint m.oti.on for final approval ofthe class settiement ("Final Approval Motion").As part of the Final Approval Motlon process,the Parties shalljointlywork ta overconie all objections (ifany) to the class setfleinent. If all objections are overcome,and the Court enters a final approvaJ of fhe class settlement,the Parties shall proceed to Step 7.Ifall objections are not overcome,the Amended Complaiat shaU be withdrawn,the putative class dissolved,andAppeaIs shall continue. Step_2l by the Court. The Parties shall jointly submit a Class Judgment for entry Ths attached flowchart is a graphic representation of the above-described steps and is rcsade part of this Settlement Tcrm Sheet.Where the attached Qowchart cannot be hannonized with the Settlement Term Sheet,fhis Settlemenfc Terni Slieet shall control. Npte _lj If at any time the Parti.es cannofc agree on a joint filing (and Travelers does not waive the requirement of any such joint filing pursuant to the next full sentence),the Amended Complaint (if at that point already filed) sha.il be witlidrawn,the putative class dissolved,and the Appeals shall continue.Notwithstanding the iinmediately preceding sentcnce,in an exercise of its sole and unrcviewable discretion/Travelers may waive the requirement for fhe granting of ajiy motion,or the filing or execution of any documeht,in which event Travelers shall pay thc County the Settlement Amount within thirfcy calendar days ofsuch exercise ofdiscretibn and the releases provided for in this term-sheet shall fh.ereupon iinmediately'become binding on all the Parties. Note_2:The primary drafting tasks and related drafting expense for various items (and related orders]are assigned as follows: AOAO=Remand Motion,Amended Complaint,Motion to Amcnd,Notices. Trave]ers=Exhibit A,Class Certilication and Approval Motion,Class Settlement Moliun,Fiaa}Approval Motion,Class Judginent. County"Exhibit B. The AOAO shall also be responsible for the expense of inailing/ctherwise distributing the Notices. Note 3:The settleinent class shall be represented by independent counsej retained at the expense of th.e settlement class and/or the AOAO (or as otherwise ordered or approved by the Coru-t}. DATED:AU13^+I1 2015 So Agreed: AOAO Kulana By:Andrew V.Beaman Its:Counsel Travelers Casualty&Surety Coinpany ofAm.erica By:Margery S.Bronster Its:Counsel County of Kauai By:Matthew M.Bracken Its;Deputy Co-unty Artorney in.this teira sheet shaJJ.thereupon uimiediately becoine bmding on aU the Parties. Note 2:The priEnary draftiiig tasks and related drafting expensc for various items [and related orders]are assigued as fojllows: AOAO=:Remand Motioji,Aniended CoEaplaint,Motion to Amend,Notices. Travelers=!Exhibit A,Class Cerfciflca.tion axid Approval Motion,Class Settlement Motion,Fi.nsd Approval .Motion,Class Judgment County-Exhibit B. Tb-e AOAO shall also be reyponsible for the expense ofmailing/otherwise distributing the Notices. Note_3;The settlem.ent class shall be represented by izidependent counsel retained at the expense ofthe settleEaent class and/or the AOAO (or as otherwise ordered or approved.by the Court). DATED:^2015 So A^reed: AOAO Kulaua By:Andre'w V.Beaxaan Its:Counsel Travelers Casualiy &Surety Company ofAjnerica.~~m. ^^ By:TiIa-gej$>S.Bronster Its:Counsel County of Kauai By:MatthewM.Bracken Its:Deputy Corporation Counsel iji tliis terin sheet shall tbereupon imraediately become binding oa all the Parties. Npte 2^The prunary draiting tasks and related drafting expense for various items (and related orders)are assigned as follows: AOAO=Reinand Motion,Amendcd Coinplaint,Motion to Ainend,Notices. Travelcrs=-Exhibit A,CIass Certificatlon and Approval Motion,Class SetUement Motion,Pinal Approval Motion,Class Judgment. County=Exhibit B. The AOAO sha-11 also be responsible for the expense of niaitixig/othenvise dista-ibuting the Notices. Note 3^The settleraent class shall be represented by in.dependent coun-se],retained at the expense of the settlement class and/or the AOAO (or as otherwise ordered or approved by the Court). DATED:A^-st-'Y .2015 So AgTeed: AOAO KliJana By:Andrew V.Beaman Its:Counsel Travelers Casualty &Surety Company of America By:Margcry S-Bronstcr Its;CoLinsel County of Kauai By:Matfhew M.Bracken Its:Deputy County Attomey EXHIBIT "H ;; COLLATERAL AGREEMENT Exhibit B -Special Settlement Terms Sheet:AOAO and County ofKauai This Collateral Agreement supplements the Settlement Tenn Sheet by and bctween fhe AOAO,Travelers,and the County and is hereby attached to the Settlement Temis Sheet as Exhibit B,as follows: 1.TheAOAO has submitted aproposed modlfication to theFinal Subdivision Map pursuanttotheprovisions ofthe Chapter 9oftheKaua*i County Code 1987,asamended (Subdivision Ordinance")and Chapter 12 ofthe Rules ofPracfice and Procedure ofthe PlanningCommission ("RJPPPC"),which is attached hereto asExhibit"!." 2.The PIanningDirectorherebyaccepts.pursuant to Article 3 ofthe Subdivision Ordinance,theModification ofthe-Fina!Subdivision Map mthe attached Exhibit "I"to fhis Collateral Agreement. 3.ThePIanning Directorand the PIanning Commission shall'tiinelyand in good faith process tlie Commission^s approval ofthe proposed Modified Final Subdivision Map attached hereto as Exhibit "1"pursuant to the provisions oftjie Subtiivision Ordinance. 4.The deveJopments standards as provided in Chapter 8 ofthe Kauali County Code 1987, as amended ("CZO")relative fo the Agricuiture and Open Districts shall be appjied to the proposed Modified Subdivision Final Map. 5.The AOAO is bound by the requirements set forth in HRS Chapter 205 relative to the subject property's location within the State Land Use Agricultural District classificatjon. 6.The PIanning Director shall route the proposed Modified Final Subdlvision Map as provided in Section 9-3.5(b)ofthe Subdivision Ordinance,forreviewandcoroment The AOAO further acknowledges and accepfs that County and/or State agencies n-iay impose various conditions upon the devefopment ofthe subject property;provided,however,that theAOAO reserves the right to object and chalienge such conditions in its sole discretion. 7.Upon submittal oftheproposed Modified Final Subdivision Map,the processing ofthe proposed Modified Fina]Subdivision Map shall be subject to standard conditions imposed on al]othersubdivisions as provided in the Subdivision Ordjnance. 8.Effective upon finai approvai ofthis settlement by the Fifth Circuit Court in accordance with the separate settlement term sheet executed by Travelers,AOAO shat!re]ease any and a]]c]aims,demands,and causes ofaction in connection with (1)the Surety Bond (bond no.10435]055),and (2)any and all other for events,transactions,or occurrences predating the eptry date ofthe Class Judgment,and/or (3)any and al)other events, transactions;or occurrences predating tlie date ofa waiver by Travelers cstablished in the EXHIBIT "C" separate settlement term sheet.However,The AOAO may raise any and all legal defenses,other than issues relative lo a claim on the Suhdivision Bond,against the County based on conditions imposed by the Planning Commission which are required by commentlng agencies fDllowing the decision ofthe PIaiining Commission on the proposed Modtfied Pinal Subdivision Map. 9.The AOAO shali submit a new Subclivision Agreement,consistent with the terms ofthis fenm shec;t and th&originaf Subdivision Agreement,with revisions as approved by the Planning Director and PIanning Commission.Jn that agreement,the County shall waive and forgive al!prior defau]ts and faiJures ofperfbrmance by Kapaa 382,LLC as developer ofthe Kulana project,and the AOAO shal)assume responsibUity of p&rfbrming under the terms ofthe new Subdivision Agreement.The County agrees to accept al[improvements previously and satisfacforily constructed by Kapaa 382,LLC in accordance with plans previously approved by the County,provided the improvemenls completed are in compliance with the previousfy approved construction plans.In the eventofanydisagreementbetween theAOAO and the PIannfngDirectorand/orthe PIanning Commission conceming any terms or conditions ofsuch agreement,the parties shal]submit such disagreement to retlred Judge Gail Nakatani for resolution.Ifretired Judge Gail Nakatani declines to decide the matter then tlie parties shall choose a singje arbitrator to decidc the matter,in accordance with the standard arbitration rules of Dispute Prevention and Resolufion^Inc. 10.The Subdivision Agreement wil]allow for improvements to be completed and accepted in phases based on independenr construction plans for each phase.As improvements are completed tn each Independent phase and each phase^s corresponding construction plan, building permits wiJl be allowed £o be issued to the AOAO and/or ils Jnembers,&s long as tf^e AOAO executes a Waiver,Rejease,ajid Indemnity Agreement with the County.In the event ofajiy disagreement between the AOAO and the Planning Director and/oi-the Planning Commission conceming any terms or conditions ofsuch agreement,the parties shall submitsuch disagreement to retired Judge Gaif Nakatani for resofution.Ifretired Judge Gail Nakatani declines to decfde the matter then the parties shail choose a single arbitraforto decide the matter,in accordance with the standard arbitration rules of Dispute Prevention and Resolution,Jnc. 11.The PIanning Director shali rccoramend to the Planning Commission thatthe Subdivision Agreement allow forthe AOAO to compJete the necessary improvements in all pjiases within five(5)}/ears from the date offinal approva]ofthc setitement bythe Fifth Circuit Court.The AOAO shal]have the right to rescind this agreement ifthe Pianning Commission faiJs totimejy accept Ehat recDinmendation.This rightto rescind shall not affectthe settiement agreement behveen Travelers and any other party,provided final judgment has been entered and the settjement:amount has been paid to the County. ]2.Jjnprovements shatl be guaranteed as provided in Kauai County Code Seclion 9-3.6(a)(2) based on each phase and as represented in each set ofconstruction plaris. 13.The AOAO shall open an escrow account in the amount of $500,000 and the County sliall fiind the escrow account with flie settlement fands distributed by Travelers. 14.Tlie AOAO shall resolve necessary water-related infrastrucfure wit-h the County Department ofWater. 15.The temis ofthe escrow accoiint shajl be agreed fo by both the AOAO and the County, witli the specific temi that tlie settlement fiu-tds shall be used to pay for the facilities reseiYe charges as required by the Department ofV/ater.Ifthere is anyremainder of settlement funds afterpaymentoftliefacilitles reserve charges,anyremainderoftlie settlemenf:funds are to be used exclusively for iraprovements identified ia the consh-uction plans.In tlie eveiit ofany disagreemenf between.the AOAO and the Couuty coucerning any terms or conditions ofsuch agreement,flic parties shall submit such disagreement to retired Judge Gail Nakatani for resolution.Ifretired Judge Gai]Nakatani declines to decide the mafter then tlie parties shall choose a single arbitrator to decide Uw matter,in accordance with the standard arbitration rules ofDispute Prevention and Resolution,Inc. 16.Tlie County agrees to work with the AOAO to re-evaluate roadway access to lots off OIohena Road,provided tiiat Uie County agrees,in principle,to allow two (2)driveways for access to units along Olohena Road.Tlie location ofsuch driveways shai]be subject fo approval ofthe County Engineer,in his sole discretion,upon submittal ofa final design in accordance with the County's engineering and traffic safetystandards. 17.The AOAO shall pay its real property taxes currently in default under the payment plan agreed tobythe County's Finance Director by letteragi'eementdated June30,2015 attached herefo as Exliibit "2". B7T3ERNARD P.CARVATHO,JR. Its:MAYOR,C(?UNT^'OF KAUAI -^ ^y'MICHAELA.DAHILIG^ Its:PLANNING ^^^.^/ v ^l-^L By K£N SHIMONISHI Its'FINANCE DLRECTOR ASSOCIATION OF APARTMENT OWNERS OF KULANA By Its: APPROVED AS TO FORM: /LC^( <5"-MAUNA KEA TBASK Attoraeys for the COUNTY OF KAUAI ANDREW V.BEAMAN Attomey for ASSOCIATION OF APARTMENT OWNERS OF KULANA APPROVED AS TO FOiRM; MAUNA KEA TRASK Attomeys for the CQUNTY OF KAUAI IM. p' ASSOCIATION OF APARTMENT OWNERS OF KULANA By Brad W.Rockwell Its:President ANDREW V-BEAMAN Attoroey for ASSOCIATION OF APARTMENT OWNERS OF KULANA APPROVED AS TO FORM: IAJ ASSOCIAT10N OF APARTMENT OWNERS OF KULANA By _Brad W.Rockwell Jts:Presidenf MAUNA KEA TRASK Attomeys for the COUNTY OF KAUAI ANDREW V.BEAMAN Attomey for ASSOCIATION OF APARTMENT OWNERS OF KULANA ^Z'S'SS-'SSSS'i'SSSS ''s»as'(?E:<3iu>^!*S35ii''!fRa l\','',^®^-S .. f(»VT>?J^9^•' yyrf;'^;'t-*.3'::-e3f^:r'9 ,g3®£3;®j§y^»':~*.4.-^-iT-'"'*^-t -*.XvS^~'. •^^'SSM.^ :.' Bernard P.Carvalho;Jr. Mayac Nadme K.Nakamura Managing Dircctor IVIauna Kea Trask County Attomc^' Stephen F-Hall First Dqiuty OFFICE OFTHE COUNTY ATTORNEY Caunty DfKaua'i,State ofHawai'j 4444 RiceSfreer.SuitE 220,LThu'e,Ka\vai'i 96766-1300 TEL(808)241-4930 FAX (808)241-6319 Juae 30,2015 AOAO ofKulana Condominium c/o RE3 LLC 2970 HaIekoRd.Ste.103 Lihu'c,IIawai'i 96766 Re:Associatioji ofApartment Owners ofKulana.Condommiura Payment Plan. TheDepaTtmentofFmajiceoft'he County ofKaua'i has agreedto enterinto apaymeatplajiwith the Association ofApartment Owneis ofK,uIajia Condomiriium ("AOAO ofKulm-ta")fo resolve delinquent real property taxes. The tenns ofthepaymentplan are as follows: a)Tenpayments ofS39,S27.56 dueonMay20 andNQvember20 ofeac'n ys'ar sfarting on Novcmber20,2015; b)Payment musf be received on tlie date it is due; c)There is no penalty for eady paymeat,however,all paynients miist be made in separate$39,827.56 payments to ensure proper processmg; d)Payuient plan paynneats uiiist be raade in addition to cuiTent aisd fu.ture real property tax assessment payments;aiid e)Penalty and interest for any late payment sball -be assessed according to Kaua'i County CodeScction5A-3.3. This paymentplanisvoid iftheAOAO ofKulana fails to make anypayment onthe specified due date or fails to comply with aiiy Lerm ofthe payment ptan.CoUections will then be initiated pursuant to Kaiia'i County Code Section 5A-5.2. A further explanation ofthepayment schedule and paynient due dates is attached to this letter as Exhibit A. Sincerely; yft-^^!- KEN 5H1MONISHI Director ofFinance An Equal Opportunity Empfoyer EXHIBIT2 CHUN KERK LLP n UmilKl Unliilily Uiv P.irlncrship Jennifer Winii,Esq. Office oflhe County Attomey May 29,20]5 Paae 3; The foregoing offer is made without prejudice to tlie AOAO's claims against tlie County in the Lawsuit.We ask that the County accept fhs forcgoing offer in writin.g no later than. June 30,2015.This lelteris an offerto compromise a disputed claim and shail be governed by Rule 408.Hawaii Rules oFEvidence. Tliank you.foryour consideration oflhis proposal. Very truly yours, CHUN KERR LLP a.Limited Liability Law Partnership /^. AGREED and ACCEPTED: COUNTY OF KAUA] ^^-l -^t_. IU- Andrew V.Beaman Jts;DirectorofFmance AVB:cme Giiclosures 153S30.12 cc (vv/encs.):Wayne S.Richardson (via e-mail) PtlOPERTT TAX SUMMARY <;UpftfeT.O<VF;EP.FOfeMEB OWf)W FEK^ 70 mi tiExytnocp fai offl3/M/IGl51 COVEREO FSOFERTIES 4301.1D010001.II 13011D0100D9 l' ^OllDOlDQl^2! ^'aiiDoiMii s 43011001D03S 71 430110010037 B; ^3oii.DoiDoiio ai ODiicaiDwi 130110010013 113011001DOSG 1i0110010QG6 d30)10010074 i30lioaiDO;s q3011D01DOS4 -0011 [1010087 B6 iie 11E 13 £ ]SC I6C 17C isc 15 ACAO Of WUWt^CDNOOM1NIUM XAPAA3B2.U£ AOAO Of KULANACONOOMINIUM IWfAASK;.U.C AOAO OF IrtJtAf^COHOOMJNIUM KAFAA 3B2.LLC AOAOOFliyiANACONDOMINIUM KAPAA3B2,U.C ADAD OF KULANA roflDOWINIUM KAFAA 3E2.LJ.C AOAOOFKULAWAmalDOMiNIUM KAFAA3B2,U-C AOAO OF KUtANA CDNOOMIN1UM KAFAA3R,U.C AOAO OF );t-'tAMA CDWODMIN1UM KAPAA3S2.UC AOAOaFKULAtil^CaNDDfillNIUM KAPAA3flZ.Ll.C AOAOOfltLltANACaNOOMWIUM IIAFAA 3fl2.LLC AOAOOF KtilA^A COHtlOMlNIUM KAPAA 3S1.LLC AOAO Of KUIANA CONDDM1NIUM ICAPAA iBI.ItC AOAO Qf KUI^NA COMDOMIN1UM lyiFAA 381,U-t: AawofKUtANACDHDDMINIUM KAPAA3E3.11C ADAO OF KUIANA CONDDMINCJM KAPAA 392.LLC SUBTCTAL PEOUCEPENAL71££.(HTEItEST&GfTHE(tBlfitKi REV1SEO TOTAL 1G.66B.71 iD.oBo-eo U.SSO^O 20,767^6 20.323,1 ? 16,1S3-SQ u.626.71 17.432.49 1S,012.71 20^00.66 21^03.£3 23.71Bi.SO I3.DBI.Z3 20yA3S 21,830^5 IB3.6BS-13 230.6S3.la 1,66 e.SD i,ona.io LSS9.00 2.076.72 ^oas-i ].,E16.4! 1,462.68 l.'"13.i6 1,602 !< tosa.os 7,120 el 2,371.'?* 2.303.11 2.nS7.<t t.183.1M la.OBg.os K,ni<<SE 14.0M.55 U,63 S,12 6,63 B.B3 11.0SL23 13.E54.31 ]1,423.S6 11.4E3.St 10.377.u 12.3EB.O; U.7B7 .<Z ].<.s<s^o is.ue.ie IS,U7^7 LE3T7.IO U^SB-M U.-»En.lE ]S?3S3.01 9a.773.Sl M.T?g-si 636^3 Si633 62633 ES633 E3E-33 G3E.33 G3S33 63 Gj 3 £3633 636Jt 636,31 636.31 63633 63E30 £36.20 3^44-ai 1.77Z41 ^.773.111 AMQimiE OVER 60 WOKTHS W/13 EaUAl SEMI.ANNUAI.PAYMEOT? 2(n5-LCYai(IROP£fnYT*XEStESTIMAT£) TOTALOUEON6/ZO/1S 30.798.06 1B3S3AG ;8.a«6.76 37.134-62 a j.<22-aa 33,885.21 Z7.101.ES 3i.IBO.IO 33,?4S.7a 37,73 Z.SS 33.1B6.sa <3,S51.3I ^Z.<02.74 37.B66.lS 40.139.15 SL5.BBI-D4! 338.Z75-S9 i3,a27^£i la.iBS.ai { 50^93-4J1 -I TOTAl DEMMIQEP j jMrica/jc/zoisr iCURREMTcwlttESl:C)nt.1ER-OW,\'£f< I lilOBi-COVEREa fHDfERTIES 4 3011CO 10007 00110010035 •)3011[101[>M7 OC11D0300SS ^3C1IOOJ{B76 ociiooitusi 43S1100100E9 4iCll001010S s 10A U.D 1SO 16E 1BE 27A AflAO OF KULAWA COMDOM1NIUM SFVAK AOAD DF KULANA CONDOWINlUM HAHCOCK AOAO DF ItUtAHA CONOOWIMUM BftAY AOAO OF KUtAF.lA CONOOMINIUM KAFAA 3M.U-C AOAOOFKULAfJ^COMOaMlNtUM hAKCOCK AGAOOF KUtAN-S.CONOOMiNlUM AriL'NA ADAaOfKULANA.COMOOMtNIUM TiXIEilA ADAO OF JEULANA COMOOMINIUM HANCOCIC 13.06;.43 2^8334 ftpprat-Total.ten ZC14 Apprai Toral.Jan 2014 Apprni!.TotB>.Jan30M AppiDi.Totat.Jan ;3M Appisi.TotaT.Jan 3014 1.U6.76 6.10 5 J6 isflja tis-aa Apprax.Tetal,l3n 1C14 l.aea.iB; 1,7*0.17 1,513^0 3 O^U.27 1^)3.18 iO^'ES.47 3,6S7.ai i0.5El.lS ?0.i33.?7 1  KAUA‘I PLANNING COMMISSION REGULAR MEETING November 10, 2020 The regular meeting of the Planning Commission of the County of Kaua‘i was called to order by Chair Glenda Nogami Streufert at 9:15 a.m., - Microsoft Teams Audio +1 469-848-0234, Conference ID: 344 862 418# The following Commissioners were present: Ms. Glenda Nogami Streufert Ms. Donna Apisa Mr. Melvin Chiba Ms. Helen Cox Mr. Francis DeGracia Mr. Roy Ho Ms. Lori Otsuka The following staff members were present: Planning Department – Director Kaaina Hull, Deputy Director Jodi Higuchi Sayegusa, Myles Hironaka, Dale Cua, Romeo Idica, Mike Laureta, and Planning Commission Secretary Leslie Takasaki; Office of the County Attorney – County Attorney Matthew Bracken; Office of Boards and Commissions – Administrator Ellen Ching, Support Clerk Arleen Kuwamura Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Nogami Streufert: Called the meeting to order at 9:15 a.m. ROLL CALL Chair Nogami Streufert: Okay. The meeting is called to order. May I have a roll call, please? Planning Director Mr. Kaaina Hull: Good morning, Commissioners. Roll call, Madame Chair. Commissioner Apisa. Ms. Apisa: Here. Mr. Hull: Commissioner Chiba. Mr. Chiba: Here. Mr. Hull: Commissioner Cox 2 Ms. Cox: Here. Mr. Hull: Commissioner DeGracia. Mr. DeGracia: Here. Mr. Hull: Commissioner Ho. Mr. Ho: Here. Mr. Hull: Commissioner Otsuka. Ms. Otsuka: Here. Mr. Hull: Chair Streufert. Chair Streufert? Chair Nogami Streufert: Here. Mr. Hull: You have a quorum, Madame Chair. Seven present. APPROVAL OF AGENDA Mr. Hull: Next, Madam Chair would be approval of the Agenda. I think as the Commissioner can see, this is one of the largest tele-video meetings we have held as far as participation. Being that sometimes large participation of a particular item can create a lot of feedback throughout the Agenda, the Department will be requesting - is requesting that the New Agency Hearing for Robert D. Ferris Trust that’s Agency Item 1 - I’m sorry. 2.b, be moved to the top of the Agenda. Chair Nogami Streufert: Do I have any objection to that from the - if not, could I then (inaudible) in the Agenda? Ms. Apisa: I move to approve the Agenda as amended. Ms. Otsuka: I would like to make a motion to approve the agenda as it stands. Mr. DeGracia: Seconded. Chair Nogami Streufert: It has been moved and seconded to approve the agenda as amended by the Planning Department. Any discussion? All those in favor? Aye. (Unanimous voice vote). All those opposed? Agenda is approved. Motion carried. 7:0. MINUTES of the meeting(s) of the Planning Commission Mr. Hull: Moving on before I continue for those that all have called in, we really appreciate your participation, as well as your patience in navigating Commission Meetings and Public Hearings via tele-video system. I am going to ask that - ask if all of you that have called as, well as those 3 videoconference for Applicant, please mute your microphones, please. We are getting a lot of feedback and this is going to disrupt the process of the meeting. Okay. So moving on there are no Minutes to review. RECEIPT OF ITEMS FOR THE RECORD (None) Mr. Hull: Next on the Agenda, there are no Receipt of Items for the record. HEARINGS AND PUBLIC COMMENT Mr. Hull: Right now is the point for Hearings and Public Comments. The Planning Commission accepts written testimony for any Agenda item here and written testimony includes the name and as provided 24 hours in advance to be posted. We have a number of written testimonies that have been attached to this specific Agenda item. Now this is the point in the Agenda for members of the public that have called in, if you would like to testify on any Agenda item. Now I know that a lot of people who have called in are specifically calling in to testify on the Robert D. Ferris Trust Application. That Agency hearing is following directly this public testimony section and you will be allowed to testify at that time if you would like. So does anybody that would like to testify in any Agenda item at this time - I am sorry. And one of point of clarification. The Chair is allowing testimony for each specific Agenda item. So if you intend to testify, say on the Koloa Landing application or testify on the Oma’o Ranch lands, the Chair will be affording time to testify specifically on those Agenda Items. However, if you would like to testify now before your Agenda item comes up; this is the time to testify. But again, the Ferris Application is coming up directly next on the Agenda item. So is there anybody who has called in that would like to testify on any Agenda item prior to that Agenda item being heard at this point in time? Please speak. Mr. Brad Rockwell: Commissioner, this is Brad Rockwell. Chair Nogami Streufert: Go ahead, please. Mr. Hull: Brad, is— Mr. Rockwell: Hi. I just would like to be added for, ah, just a brief testimony for Koala Landing. Mr. Hull: Go ahead, Brad. You have three minutes. Start. Mr. Rockwell: Okay. It’s not so much testimony, just you know, in light of the fact that this is a telephone meeting as opposed to an in-person. I - um, I did receive a letter as a resident in the area and I am wondering where I can go to find, um, you know, where this proposed building is going to be located. Is - is there any information available online where I can maybe get some additional information about this proposed building? Mr. Hull: Brad, let me interject real quickly here. This point in the Commission is not for the members of the public to ask questions of the Commissioners or the Applicants. You can shoot 4 the Department an email and we can follow up with you for that request. But I apologize. This is not a time to question the Commission or the Department. Mr. Rockwell: Very good. Uh, I totally understand that and, uh, I will follow up. Thank you. Mr. Hull: Thanks. Is there any other member of the public that would like to provide testimony on any Agenda item at this time? Ms. Ellen Ching: Ka’aina. Ka’aina, this is Ellen Ching, Boards and Commission Administrator. Mr. Hull: Thanks, Ellen. Ms. Ching: We did get a request for a sign-language interpretation. We do not know what the individual - what the item the individual wanted to testify n. We did contact them. We were not able to make contact as of this morning and connect them with sign-language interpretation. So just, I wanted to notify of that. We are continuing to try to reach out to the individual. Mr. John Friedman: Madam Chair? Madam Chair, this is - this is John Friedman speaking. At this point, I just want to clarify - the sign language is for (inaudible)— Chair Nogami Streufert: Again, I cannot really hear you. You will have to… Okay. Then— Mr. Friedman: Can you hear me now? Chair Nogami Streufert: I yes, but— Mr. Friedman: Can you hear me now? Yes. I just wanted to - to clarify. The sign-language interpretation, I believe, was for - is from staff, I believe is what they are referring to is, for is for Kristin Zimmerman. She lives on and (inaudible). I just wanted to make sure that that was clear and that she would like to testify on the Robert D. Ferris Trust Application. And so, um, I hope that clarifies that situation. Chair Nogami Streufert: Okay. Mr. Hull: Thank you, John. Chair Nogami Streufert: Thank you. Mr. Friedman: You are welcome. Mr. Hull: Returning back to the public testimony, absent testifying on the specific Agenda items, is there anybody that has called in as a member of the public that would like to provide testimony at this time on any Agenda Item. Mr. Alan Gevins: Yes. 5 Mr. Hull: Okay, sir. Go ahead and speak to which - which is - state your name for the record and speak to which Agenda item you would like to testify for. Mr. Gevins: This is Alan Gevins. I would like to testify on the Ferris Application. Mr. Hull: Oh. Okay, Mr. Gevins, you can speak now. You have three minutes. Mr. Gevins: I am a neuroscientist and I specialize in neurological circuit of attention and memory in our brain. The TVR is at the long driveway that goes along the side of our property. We have owned this property since 2000, and we only moved here from the Wailua Homesteads in late May to get relief from the COVID confinement to our small Wailua yard and so many mosquitos. The other TCPR owners told me that they have endured bad experiences continuously from this TVR operation since it began 17 years ago. Hearing that, I reached out to Hilary Ferris, hoping to mediate some peace and some harmony by inquiring what she was planning to do solve these problems when she restarted after COVID. She did not discuss her plans. She said that over the years there only have been a few complaints from the neighbors for minor issues. Forty-three (43) Kapuna Road residents have signed a Petition against the TVR and fifteen (15) residents have written letters opposing it. This is more than two-thirds of the houses on the mauka side of Kapuna Road, including all but one of the houses in the immediate vicinity of the TVR, and the owners of that last house are off- island. I hope you have seen the Google Map that shows the families opposing the TVR. That Google Map says it all. Now you may hear testimony today from people supporting the TVR, but no one that any of us know who actually live on Kapuna Road supports this TVR other than the Applicant, and she does not live here. Isn’t that one of the conditions for granting a license that the TVR operation will not adversely affect neighbors? I commend Hilary for her community service, but this is not about whether the Applicant is a good person. The issue here is one of proper land use since the Permit goes with the land and not with the person. The issue is whether high turnover mini-hotels may operate in this rural neighborhood. It would be the only one on either side of Kapuna Road since vacation rentals are not allowed by the Waipake Subdivision. These documents were approved by both the State and by the County. After trying to stop this TVR for so many years, the Planning Department is giving up now because it thinks it missed a deadline and has been threatened aggressively by the Applicant’s attorney. But it may be that it is actually the Applicant who missed the deadline years ago when she inherited the property and did not properly notify the Planning Department about a change of ownership, as is required. Well I can understand that giving up is the easiest way out. Is it ethically and legally correct? Like so many other things in life, unfortunately this really appears to be all about money, both on the Applicant’s side and on the County’s side. But there are times when it is necessary, pono, for a local government to take a stand on principle, even if that’s not easy. Now I appreciate the difficult position that you are all in as independent, voluntary Commissioners, and my heart-filled mahalos reach out to you for your service. That is it. Chair Nogami Streufert: Thank you. Mr. Gevins: Thank you. 6 Chair Nogami Streufert: Is there anyone else out there who would like to speak? Mr. Terry McKee: Yes— Mr. Hull: Anyone else? Mr. McKee: Terry McKee. Chair Nogami Streufert: Yeah. Mr. Hull: Just hold on. Just to be clear, guys, the Agency hearing for Ferris is directly preceding this Agenda item for overall public testimony. So we’re really trying to make the offer to those that have a subsequent Agenda item if they would like to testify and not wait through the Ferris proceedings. But if you intend to testify for the Ferris proceedings, just to be clear, it is directly preceding this Agenda item. So is there anyone who would like to, again, testify on any other— Ms. Lita Sam-Vargas: Yes. Chair Nogami Streufert: All right. Would you state name, please, and uh— Ms. Sam-Vargas: All right. My name is Lita Sam-Vargas Chair Nogami Streufert: All right. Lisa, go - please go ahead. Ms. Sam-Vargas: My name is Lita Am-Vargas and I live at 4660 Kapuna Road with my husband, Alan. As a retired management consultant and business executive, I have had to make many difficult decisions. I do not envy your task. I will be addressing two points. First, the Chandler-Ferris Trust. The new Applicant is not the original Applicant, which is the Ferris Trust. They are two different legal entities with different assets and different beneficiary. Proper notification by the new Applicant of the change in ownership in 2013 was not reported until recently. There may be no basis for grandfathering in the original Application from 2011. Second, there are a number of irregularities with the processing of the Application and the (inaudible) of the Application, showing a strong bias by the Planning Department in favor of the new Applicant, perhaps because the County thinks they missed deadlines responding to the Application. However, it is the new Applicant who missed the deadline to claim the right to the grandfathering provision of the original Applicant. As to the first point, in the Planning Department’s Staff Report, the names of the two trusts are used as if they are the same entity or that one became the other. This is not legally so. The only thing that is continuous here is that the TVR never reported - never stopped operating. The critical point is that the original Application was filed by Robert Ferris, Trustee of the Ferris Trust, using supporting documentation for his business called Retreat at Hale Luana and Plantation. No one is disputing that Hilary Ferris, trustee of the Chandler-Ferris Trust, the current Applicant, helped operate the TVR way back then and its operating now. Nor is there a question of when the property was legally transferred to trust she was entitled to the 7 grandfathering provision. The point is that when - that when the Ferris Trust became new owner and operated a new business called the Kaua’i Retreat Center, they should have notified the County in order to claim the right to the grandfather provision of the new Application. Chair Nogami Streufert: Thank you. Ms. Sam-Vargas: I am - I am not quite done. Chair Nogami Streufert: Sorry. Ms. Sam-Vargas: I - okay. I actually have been focusing on this for a long time and I am actually reading my wrong testimony. But I will submit it for the record. But essentially what I want to say is that there is no basis for grandfathering in the Application because this is essentially a new Application, and she may have not, uh, reported the change on a timely manner when it happened back in 2013. Thank you. Chair Nogami Streufert: Thank you. Is there anyone else? Knowing that the Ferris case is going to be right after this is there anyone else who would like to speak. Mr. Hull: Is there any - again, I will - one call, uh, last call. Is there anybody who would like to testify now on future Agenda items because you do not have time to stay and wait for those Agenda items? If so, please speak, and state your name. Mr. Mark Oyama: Yes, I would like to testify. Mr. Hull: Go ahead, sir. Mr. Oyama: Okay. My name is Mark Oyama. I am testifying, um, for the, uh, um, Special Use Permit, um, for Omao’o Ranch, Building Permit Z-1- IV-2021-5. So I wanted, um, by put into it - put in the testimony for this. So my name is Mark Oyama. I have sat on many agriculture boards and the budget committees on the Island of Kaua’i. I was wondering— Man: ...which we— Mr. Oyama: ...if it would be possible— Man: ...which we delivered... Mr. Oyama: ...to do farming - I’m sorry? Mr. Hull: Sorry, Mark. Mr. Oyama: Are you co— Mr. Hull: Hold on. Sorry. Ho - hold on, Mark. For everybody that has called in Man: Would you— 8 Mr. Hull: Again, we have the ability to mute every single person that has called in, but I do not want to do that. If you folks could mute your own phones that the testifier can be heard by the Planning Commission. So please mute your phones unless you are speaking. Sorry. If you want to start again, Mark. Mr. Oyama: Okay, I will do it again. Yeah. My name is Mark Oyama. Once again, I have been on, uh, many agriculture boards and on budget committees on the Island of Kaua’i. We all know it is indeed to possibility to farm is otherwise not an easy task to do on Kaua’i. By allowing only agriculture tourism, and (inaudible) site as well as (inaudible) is to allow a farm to be successful throughout this— Man: He should— Mr. Oyama: (Inaudible)— Man: And— Mr. Hull: Sorry. Sorry. Mr. Oyama: ...and— Mr. Hull: I am sorry, Mark. Wait— Man: ...can - the Commissioners— Mr. Hull: Mark. Wait for, Mark. Mr. Oyama: Yeah. Mr. Hull: Sorry, Mark. I would not - so to all those who have called in, I will be muting all of your phones. In order, for you are to speak when you choose to speak for those on phone calls have to push star 6. So because this is not working out, it - there’s some that just can’t follow the rules, we’re going to mute all of the phones. In order to unmute yourself, to speak when you are called upon, you need to press star 6 for those that have called in. So, Mark, you’re going to be muted with this whole group. Just push star 6 and start your testimony, Mark. Sorry about that. Mr. Oyama: Okay. Okay. Thanks. Man: And not there. Mr. Oyama: Okay. Can you hear me now? Chair Nogami Streufert: Yes. Mr. Hull: Yes, Mark. Thanks. 9 Mr. Oyama: Okay. I will start again. It is a good thing I wrote it down. I can use it. So once again, my name is Mark Oyama. And I’ve sat on many agriculture boards and advisory committees for the Island of Kaua’i. We all know that to be profitable through farming is not an easy task. You know, have - through - throughout the boards and, um, committees I’ve been on, we’ve been trying to find different ways to - to grow agriculture in Kaua’i and to make - and to make agriculture more profitable on the Island, uh, by allowing agri-tourism and being allowed to sell products on-site, as well as hosting a free event, this would allow a farm to be successful. Throughout the State you see examples of - of such farms, such as Kauai’i Coffee, Kualoa Ranch, Koloa Ranch, Lydgate Chocolate Farms, and Kunana Dairy, uh, especially now with the econom- economic disaster from the Pandemic, you know, we have to look into ways to help our economy recover and to be resilient for the future by - you need to support and help strategize our agricultural community on Kaua’i. Um, you know, we are too focused on tourism right now. We need to find ways to, um, balance out our - our economy on Kaua’i. Um, being in the food and catering and event business, the south side of Kaua’i has been very limited with locations for events. This is especially true with affordable locations where locals and community organizations can utilize. So by allowing events to be held at this location, this should fill a void for the community of Kaua’i. The Kaneshiro family has always been supportive in the community and has helped many local organizations and new clubs on the Island. Uh, for example, such as Kaua’i Livestock Club, Kaua’i All Girls Rodeo Association, et cetera. I truly feel that we need to support and Permit for events so we can help our Island agriculture grow even further and bring recognition and accolades for the Island of Kaua’i. And that’s all that I have for today. Thank you. Chair Nogami Streufert: Thank you. Mr. Hull: Thank you, Mark. Is there anybody else that has called in, and again, if you would like to speak you have to push star 6 on your phone. Is there anybody else who would like to speak on any Agenda item, also with the note that the Ferris is coming up directly next? New Agency Hearing Special Permit SP-2011-35 to permit use of an existing single-family residence for Transient Vacation Rental (TVR) purpose, as permitted by County of Kauai Ordinance No. 904, within the Waipake Subdivision, Waipake, Kauai, approx. 1,600 ft. west of the Kapuna Road/Kuhio Highway intersection, further identified as 4670 Kapuna Road Tax Map Key: (4) 5-1-006:002 (Unit 4 comprised of 2.503 acres), with an overall parcel size of 10.008 acres = Robert D. Ferris Trust). Mr. Hull: Hearing none, Madam Chair. I recommend we move on to the Amended Agenda, which is Agenda F.2.b, Special Permit SP-2011-35, to permit use of an existing single-family residence for Transient Vacation Rental purposes, as permitted by County of Kaua’i Ordinance Number 904 within the Waipake Subdivision, Waipake, Kaua’i, approximately 1,600 feet west 10 of the Kapuna Road-Kuhio Highway Intersection, further identified as 4670 Kapuna Road, Tax Map Key: 5-1-006:002 Unit 4, comprised of 2.503 acres, with an overall parcel size of 10.008 acres. Robert D. Ferris Trust is the Applicant. We have, of course, a received a number...we, of course, have received a number of testimony. Received through addendums to the Agenda item. This is the Agency Hearing. So, recognizing that the vast majority of call-ins have called in either to speak or to testify or just to watch the proceedings. I will be calling each phone number that has been listed. If you intend to speak on the Ferris item in this Agency hearing, please identify yourself when I call the phone number, and you have three minutes of testimony. So starting at the top of the call-in list, Area Code 808- 338-9962, would you like to testify on the Ferris Agenda item? Chair Nogami Streufert: And the Code again was star— Mr. Hull: Okay. Moving on, Area Code 415-381-1921, would you like to testify on the Ferris Agenda item? And you have to push star 6 to unmute if you’d like to speak. Chair Nogami Streufert: Okay. Mr. Hull: And the next one, 808-651-1276, would you like to testify on the Ferris Agenda item? And you have to push star 6 to unmute your phone. Mr. Hull: Sorry. 651-1276, would you like to testify. Oh. Mr. Friedman: I am sorry. Can you hear me? This is John Friedman, 808-651-1276. Can you hear me? Mr. Hull: Yeah. Mr. Friedman: Okay. Thank you very much. Uh, good morning Madam Chair, Honorable Members of the Planning Commission, and representatives of the Planning Department. My name is John Friedman. I have resided next to the subject property for the last 14 years. I submitted a seven-page letter of opposition, along with supporting photographs that I stand by. And I ask that you kindly read it in its entirety. Contrary to recent stories in the media, we are not here today because as neighbors we tied this Application up in litigation. It is simply a fabrication of the Applicant unwittingly repeated. Truth be told, the subject Application was originally rejected based on their inability to get approval of three units within the CPR. After a long and contentious battle with the Intermediate Court of Appeals, it was remanded back to the - to Circuit Court with instructions for the Planning Department to process their Application. There is absolutely no requirement that you must approve this Application. TVR use simply was never and never will be a lawful conforming use, given the breadth of the land use restrictions contained within the Applicant’s deed, state land use designations, subdivision approvals, CPR documents, and county zoning. The fact that Applicant paid GET and transient accommodation taxes are not evidence that the Applicant has abided by any other government-placed restriction on their property and its use. For 18 years, they have operated this 11 Transient Vacation Rental without authorization and in violation of their deed restrict. Any statement is (inaudible) there was no business or an owner could not operate a TVR in this area is simply false. Every owner - owner - every other owner on the mauka side of Kapuna Road understood and respected these restrictions. The Applicant has not met their burden of showing lawful non-conformity. The Applicant was issued at least two cease and desist letters. They ignored both and continued to operate. Non- permitted improvements alone should stop this NCUC from moving forward. A structure was built on the property just weeks ago without any required Permits. Section 817.11, states, “Violations and conditions of approval or providing false and misleading information on the Application or any information relating thereto at any time during the Application process shall be grounds for revocation or case and desist orders.” Considerable misinformation was provided by the Applicants within their Application, sworn Affidavit, and supporting documents. Even if they had made disclosure, they would not have been able to correct those issues directly re- associated to their deed restrictions. The sheer numbers of our community supporting their opposition and complaints must be noted. The Applicant refuses to have open two-way communication about any issues that arise concerns her guests. Instead, stink-eye, harassing emails, initiating rumors, and slow drive-byes are her attempts at intimidation. There is, of course, the question of whether this new entity created in 2013 has started to make this Application. We do not believe so. Lita Sam-Vargas’s testimony to that point aligns with us. Chapter 9, Article 5, Section 9-5.2 is clear that any Permit or License issued that is in conflict with the subdivision Ordinance shall be void. It’s to back this bus up, do not allow the Applicant to bulldoze over law and common sense with the threats of litica- with their threats of litigation. The public test in Kauai’s use land use policies relies on your prompt denial. We simply want to redeem the quiet enjoyment of our property that we have been denied by the Applicant. We implore you to deny this Application without prejudice. It is the only solution that is both fair and just. I do appreciate your time. Thank you so very much for your service to your community. Chair Nogami Streufert: Thank you. Mr. Hull: One second, Madam Chair. Mr. Friedman: Thank you. Mr. Hull: Okay. Moving on to the number. 808-855-8830, would you like to testify? If so, you have to push star 6. Mr. Richard Parmentier: I would like to testify. Mr. Hull: Oh. Okay. Please speak, sir. Mr. Parmentier: I— Mr. Hull: You have three minutes. 12 Chair Nogami Streufert: Your name, please? Mr. Richard Parmentier: Can you hear me now? Mr. Hull: Yeah. Please identify yourself and, uh, three minutes to testify, please. Mr. Parmentier: Thank you. Good morning. I am Richard Parmentier. I am retired from Lockheed Martin’s and Systems Division, where I worked the final ten years of my career as, uh, Senior Manager of Ethics and Business Conduct. As a homeowner on Kapuna Road, I appreciate this opportunity to address the Planning Commission. Being able to spend my retirement in Kaui’i with so many great neighbors has been like living a dream for me. What a wakeup call to learn there was a TVR across as - the headlights flooding my bedroom were not wakeup call enough. I do not recall any exemptions to the TVR being in my home sales contract or CPR Rules. What happened to support for Visitor Designation Areas? How many of my neighbors would have settled if their sales contract disclosed there in 2020 the community would permit this exemption to its ban on TVRs? For all the reasons Kaua’I has Visitor Designation Areas, approving an exemption to TVR in Waipake is simply wrong, especially during a Pandemic and with an abundance of existing alternative lodging available. I implore - I implore the members of the Planning Commission to do what is right and stick to the plan to limit TVRs to Visitor Desi- Destination areas. Mahalo for your consideration. Mr. Hull: Thank you for your testimony. Chair Nogami Streufert: Thank you. Mr. Hull: All right. Area code 808-822-2170, would you like to testify on this Agenda item? If so, press star 6, please. Mr. Frank Ursomarso: Yes. This is Frank Ursomarso. Uh, we, my wife and I, have owned the property at 4640 Kapuna Road for eight years. I am, uh, formerly Director of Communications in the White House and actually, uh, we lived in Wilmington part-time and our friend, Joe Biden, was just elected President. I would like each member of the Commission to visualize your own home in your mind and next to your own home; I would like you to visualize a six-room hotel right next to you. You are home asleep. You are in bed. Its 11 o’clock at night, and two cars pull up to your house looking for the hotel, bang on your door, and you have to come down in your pajamas and tell them that you are not the hotel that it is next door. You - an hour later, you hear more noise because the people in the house have decided to jump in the pool and swim. So now, you are up again. They turn on the floodlights for the pool. You are not in a residential area. You are in a commercial hotel zone. It is a residential community. It is a farming community. We have young children there. We walk on the street and we enjoy each other’s company. You should not be allowing a hotel, a six-room hotel, to be beside your house or our house. You’ve got to find a way to do it, whether it’s common sense way, whether it’s common law way, or whether it’s a legal way, or whether it’s just aloha way. You got to stop this 13 thing and discharge your responsibilities to do so. Thank you, Chairman and Members of the Commission. Mr. Hull: Thank you for your testimony. And Area Code 808-651-6995, would you like to testify? Seeing none or hearing none, Area Code 408-997-2370, would you like to testify? If so, please press star 6. Hearing none, Area Code 808-855-5614, would you like to testify? If so, please press star 6. Hearing none, Area Code 808-378-8939, would you like to testify, again, on this Ferris Application? If so please press, If so, please press star 6. Again, it’s 378-8939. Would you like to testify? Mr. David Carmichael: This is David. This is David Carmichael, 378-8939. Mr. Hull: If you would like to testify, sir, go ahead. Mr. Carmichael: Hi. Uh, my name is David Carmichael. My wife and I live at (inaudible) 310 Kapuna Road one CPR away from the property. I was a police officer for 25 years, beginning my career at Honolulu and recently retired as Chief of Police for a police department in the San Francisco Bay area. My wife and I moved back to Kaua’i to be closer to family. Obviously, you are going to hear from other Kapuna Road residents who have experienced negative issues with the property over the years. We have occasionally been impacted by groups of tourists parking rental cars in our long driveway, walking up to our house, asking for directions to the vacation rental. Now I am not going to take any more of your time all the - the negative impact because I feel others have already discussed that and will continue. Simply, I would like to make one point. In my career as chief of police I learned quickly that Special Permits and consideration really only work out well when the applying party has demonstrated a commitment to rules and neighbors. When this is not the case, the approval nearly always turns into a disaster and it is even harder to reel in. For example, I saw many times where bar owners who had already demonstrated an inability to comply with the existing rules and regulations sought modification to increase seat capacity or live entertainment. Owners and their attorneys would write letters, stand and argue they were - were entitled to the special treatment. They would bring friends and character witnesses, usually none of which owned adjacent property, to speak on their behalf, and virtually every time that such a business was granted their wishes, they would quickly push the envelope again and the problem would continue. On the contrary, when upstanding business who had a proven track record of compliance with the rules, brought the respect and support from neighboring business, and had shown a long-term commitment to - that was deserving of the special consideration, it almost worked out as a win- win every time. In other words, when rule breakers are rewarded, it gets worse, and when rule followers are rewarded, it always works out. The best predictor of future behavior is past behavior. Please ask yourself which category this Application falls under, the first scenario where the Applicant has little or no support from neighbors and a history of ignoring rules or the second scenario where they have broad support and a proven track record? My advice is simple. I would always listen to that track record and use that, coupled with the level of support from neighbors as the deciding factor. There is no legal requirement to approve 14 this Application. There is virtually no support from neighbors; on the contrary, there is overwhelming support against the Application. And it - the operator has proven over the years that they would flaunt cease and desist orders and their CPR document. I think that that alone makes it a very straightforward denial as the only likely scenario that would work out for everybody. Thank you. Chair Nogami Streufert: Thank you. Mr. Hull: Area Code 808-632-2276, would you like to testify? I am sorry. I - let me repeat that. Area Code 808-632-2267, would you like to testify? Hearing none, Area Code 626-676-5328, would you like to testify? If so, please push star 6 on your phone. Moving on, Area Code 808- 651-1276, would you like to testify on this Ferris Application. If so, please push star 6 on your phone. Ms. Zimmerman: If I— Mr. Hull: Hearing none - oh. Go ahead, ma’am. Ms. Zimmerman: Hi. Can you hear me? Mr. Hull: Yes. Ms. Zimmerman: Thank you, Planning Commission for hearing our testimony today. Um, I really appreciate you listening to us. Um, we have been going through this for about 18 years. I understand that— Mr. Hull: Sorry. Ms. Zimmerman: ...how the— Mr. Hull: But if I could interject— Ms. Zimmerman: ...Applicant— Mr. Hull: Ma’am. Ms. Zimmerman: ...which would not— Chair Nogami Streufert: Would you— Mr. Hull: Ma’am. Ms. Zimmerman: Pardon? Chair Nogami Streufert: Excuse me. Could - name, please? Please state your name. 15 Ms. Zimmerman: Oh. I apologize. I apologize. My name is Kristin Zimmerman. I am in the same CPR as the Ferris property. I live right next door to the six-bedroom hotel. Thank you for listening to my testimony. I have been dealing with this for 18 years. I have been threatened with lawsuits if the County is holding up their right to deny their permit. We have been dealing with the...Pardon. Sorry. I keep hearing things. Um, this— Chair Nogami Streufert: They are— Ms. Zimmerman: ...should— Chair Nogami Streufert: ...breaking— Ms. Zimmerman: Where we are at right now. The subdivision documents do not allow the use of this Permit. The CPR documents do not allow the use of this Permit. The Farm-Dwelling Agreement does not allow the use of this permit. The Applicant’s father went to the County and asked a Special Permit to build a hotel. He was told that there were no Special Permits to build a hotel. I believe that is true. However, he made a decision to build something illegally, knowing fully well he was not allowed to do that. He was currently using his house as a three-bedroom bed and breakfast at the time, so he was already into his illegal business, realizing how much money he could make. The County tried to uphold this and had three hearings and three court cases and they were all - said that they did not have to do it. Her high-paid Honolulu attorney is the only reason that we are here today. If the County had a high-paid Honolulu attorney, we would not be here because they would have won again. She is not the Applicant. She is not the one who is asking for this. It was her father, who is no longer alive, and unfortunately, buried on the property without, I believe, a permit. Everything these people do is beyond not enforcing the rule. Since my mother was not allowed to answer when she heard her phone number, I am going to hand my phone to her and she is going to give her testimony. Her name is Lenda Helsa. Ms. Lenda Helsa: Hello? Can you hear me? Can you hear me? Chair Nogami Streufert: Good morning. Ms. Helsa: They cannot hear me. Mr. Hull: Please state your name and testimony, ma’am. Ms. Helsa: Yeah, my is - my name is Lenda Helsa, and I have been living on Kaua’i for the last 36 years. I lived in Kalihiwai, Hawaii, where my husband and I built on - near Annini side where the locals respected us because we built it ourselves, and they were the ones who warned against crossing the Chandlers. That makes me extremely hesitant to testify against them. But I have been a little annoyed talking with my daughter - can you hear me? Chair Nogami Streufert: Yes. Mr. Hull: Yes, ma’am. Please continue. 16 Ms. Helsa: All right. Okay. Good. I have been my living with my daughter as a widow right next door to the house; this party house is not following the rules, even though we did when we built our house. t has never been occupied by the owner. The website that they use to get groups from the mainland encourages large groups and has been shown fully booked for months and for years. They have had big groups like weddings, artists groups from here on the Island, religious groups. These groups sometimes park on our easement because it is difficult to get down and up to their property, and yet we would be responsible for accidents on that easement, though we never use it. I do have a fear of testifying for reprisals like where - robberies, fires, lawsuits, which we have already been written - uh, threatened with, written. Therefore, we have been reverting to our locking our gate and putting a no-trespassing signs to keep those people who keep coming to our door. I do love Kaua’i. I - I have a support for our community. At the Lighthouse - I have volunteered for the Lighthouse. I have been president of Friends of the Library, president of the North Star Business and Professional Woman, president of the AAUW. But my greatest pride is as a teacher with working as a regional director for the Science Olympia. I know that your love for Kaua’i as a member of this Commission is why you are here today. Please do not let our agricultural property be - being taken over by party houses for visitors that might bring COVID 19 to our neighborhood. Thank you. Chair Nogami Streufert: Thank you. Mr. Hull: Thank. The next, Area Code 408... Mr. Friedman: John Friedman and Kristin Zimmerman. Man: Is that so? Mr. Hull: Sorry. Area Code 408-499-6978, would you testify in this Agenda item? If so, please press star 6 on your phone. Hearing none, Area Code 808-639-8511, would you like to testify? Man: So this is now - I want to object to…Put a platform to doin’... Mr. Hull: Next is Area Code 808-639-0207, would you like to testify on this Agenda Item? If so, please push star 9 on your phone. Again, 808-639-0207, would you like to testify on this Agenda item? Hearing one, Area Code 760-642-8547, would you like to testify on this Agenda item? If so, please push star 6 on your phone. Moving on, Area Code 808-651-2217, would you like to testify on this Agenda item. If so, please press star 6. Hearing none, Area Code 808-651- 1332, would you like to testify on this Ferris Application Agenda item? If so, please push star 6 on your phone. Woman: Thank you. Not now. Mr. Hull: Thank you. Area Code 781-354-7962, would you like to testify in this Agenda item? If so, please push star 6. Area Code 808-828-0591, would you like to testify in this Agenda item? If so, please push star 6 and state your name. Mr. McKee: Can you hear me now? 17 Mr. Hull: Yes. Mr. Terry McKee: Okay. My name is Terry McKee. I live at 4576 Kapuna Road, a full-time resident for the last 15 years. I am a retired State Farm Insurance agent and a retired realtor on Kaua’i. I would like to thank the members of the Planning Commission for allowing to testify in this matter today. I am totally against having a Transient Vacation Rental, especially one with 15 or more beds and the owner does not live there on our street. The reasons why: Excessive speed. We have many residents who walk the street with their children, grandchildren, and dogs. Numerous times, we have encountered visitors speeding up and down the street. One specific incident, myself, my wife, our two dogs were talking with our neighbors and their two grandchildren were riding their scooters in the middle of the street, when three seven-passenger visitor vans came speeding up the street. We flagged them down and please advised them to slow down. The visitors told the owner of the Transient Vacation Rental, and she threatened to sue us. I think the reason for speed I think that the reason for speed of most of our visitors come from the West Coast. And they’re not used to having sidewalks. So they’re not concerned about speeding. But here we have no sidewalks. The second reason, so we have an owner who has an operated an illegal vacation rental outside of the VDA for years. Now they want to become legal. But for others who have obeyed the law and do not have the TVR they a re banned from having one. It does not seem fair to reward someone who skirts the law and punishes people who obey the law. Please do not allow this transient vacation rail to continue. And thank you again for allowing me to testify. Mahalo. Chair Nogami Streufert: Thank you. Mr. Hull: Moving on. Area code 808-320-7089, would you like to testify this agenda item? If so, please proceed? And area code 808-320-7089, if you’d like to testify, please push down 6, and state your name. Moving on - area code 415-381-1921, if you’d like to testify, please push star 6 and state your name. Hearing none, area code 650-759-7949, if you would like to testify on this item, please push star 6 and state your name. Hearing none, area code 651-455-1677, if you would like to testify, please push star 6 and state your name. Hearing none, area code 808- 651-6793, if you would like to testify, please push star 6 and state your name. Hearing none, area code 808-631-3731, if you would like to testify, please push star 6 and state your name. Okay. Go...Okay. Again, I will call, uh, number 808-631-3731, if you would like to testify, please press star 6 and state your name. Hearing none, area code 808-652-7891, if you would like to testify, please press star 6 and state your name. Hearing none, area code 808— Dr. Shabert: (Inaudible)... Mr. Hull: 651 - oh. Sorry. Go ahead, ma’am. Dr. Shabert: Can you hear me? I am sorry. I had muted— Mr. Hull: Yes. We can. Dr. Shabert: ...myself. Then, you muted me as well. 18 Mr. Hull: Oh. Okay. Dr. Shabert: Um— Mr. Hull: I thought it was the equipment. Dr. Shabert: ...I was - I was double muted. Chair Nogami Streufert: Please state your name and you may start. Dr. Shabert: Okay. Thank you so much. My name is Dr. Judy Shabert. I thank the Planning Commission for allowing me to testify, even though double muted. I lived Kapuna Road, and I am strongly opposed to having a TVR permit issued for the property at 4670 Kapuna Road, which is in our agricultural subdivision. I am a physician, trained in obstetrics and gynecology, and I have a degree in public health. This additional education allows me to observe health not only from a perspective from an individual patient but also how disease can affect a community. As all of you are well aware, we are in the middle of a worldwide COVID-19 virus pandemic where 10 million Americans have been infected, and nearly 240,000 Americans have died. It is only to the efforts of Mayor Kawakami and his healthcare team that we have been able to keep our infection rates low. However, with the opening of Hawaii to trans-Pacific visitors, Hawaii’s infection rate has increased, and the mayor has indicated that this number will continue to rise. Our current cases show that detection by pre-travel testing is imperfect at best, and estimates suggest that the pandemic will last for at least another one to one and a half years - well into 2022. Thus, all our current thinking and planning should focus on the long-term mitigation and control of this viral infection in our community. The floorplan at 4670 Kapuna Road shows that there are five or six bedrooms - three of which have doors that open to a common hallway. If all doors opened at the same time, there would be a cluster of people within one to two feet of each other. There is only one small kitchen facility. Multiple reservations can result in up to five or six different groups of individuals can comprising up to 15 people simultaneously renting in this one space. Imagine a house with these individuals from the U.S. or a number of foreign countries and all visitors share a tight space in a single kitchen. From a public health perspective, with our present case numbers increasing both in the United States and on Kauai, approval of such a situation creates a disaster waiting to happen. With the multiple visitors constantly moving in and out of the facility, how can this boarding house-like building be absolute - adequately cleaned? How can CDC and Kauai guidelines be regulated and enforced? What will be the (inaudible) and owner’s response if cases in the facility are discovered and a hot spot emerges? How will the county provide protection and support to the law-abiding individuals who already live in this agricultural community? On February 14, 2019, our mayor said, and I quote, When illegal TVR operators blatantly break the law, they disrespect our community, our people, and our island. The time is now for our community to take back their neighborhood. Thank you for your (inaudible). We hope that the Planning Commission 19 agrees with our mayor and our agricultural neighborhood and rejects this TBR proposal. Thank you all for the work you do and for your attention to my testimony. Judy Shabert. Chair Nogami Streufert: Thank you. Mr. Hull: Next, area code 808-651-4952, would you like to testify. If so, please push star 6 and state your name. Okay. Hearing none, area code 808-639-6248, if you would like to testify, please push star 6 and/or unmute your phone and state your name. Woman: No, thank you. Mr. Hull: Thank you. Area code 808-346-4278, if you’d like to testify, please push star 6 and/or unmute your phone and state your name. Hearing none, area code 808-855-8830, if you would like to testify, please push star 6 and/or unmute your phone and state your name. Hearing none, area code area code 80...sorry. Area code 808-625-9385, if you’d like to testify, please state your name - or please press star 6, unmute, and state your name. Hearing none, area code 808-449- 6427, if you would like to testify, please push star 6 and/or unmute your phone and state your name. Hearing none, um, recognizing that, uh, additional callers have called in prior to this list being generated...okay. Again, I have gone through the entire list, um, as said, but additional callers may have called in or some may have had technical difficulties. Is there anybody that has called in at this point that has not yet spoken for the (unintelligible) Application that would like to testify? If so, please push star 6, unmute your phone, and state your name. Ms. Zeigler: Hi. Good morning, Chairperson and members of the Planning Commission. My name’s Joanna Zeigler and I represent the Chandler-Ferris Trust. I do not know if this is a good time to speak. Mr. Hull: Miss Zeigler. This is the agency hearing in which - in which public testimony is received. We will - directly proceeding this, we will go into the actual staff report by the planner, as well as responses and our presentations on behalf of the applicant, yourself. So, this is - right on - just the agency hearing for public testimony. Ms. Zeigler: Okay. Perfect. Thank you. Mr. Hull: Thank you, Miss Zeigler. And so, again, for members of the public that have called in that have not yet spoken on the (inaudible) application, but would like to speak if any of you still have not spoken and would like to speak, please unmute your phones and state your name so we can take your testimony. I will hold for – for— Ms. Sam-Vargas: May I speak— Mr. Hull: Please, ma’am, if you would state your name. Ms. Sam-Vargas: Yes. My name is Lisa Sam-Vargas and I previously spoke, but I would like to have a little - another opportunity to speak because I have a hearing impairment and there was a lot of feedback. It confused me and I read my, um, a previous, uh, testimony that I had written, and I would like to have an opportunity to read, um, my testimony now, if I am allowed. 20 Mr. Hull: Madame Chair, I’ll - I’ll defer to your— Chair Nogami Streufert: Since this is so difficult - this has been a difficult, uh, proceeding with the technology, I am going to let that go. Please, go ahead. Ms. Sam-Vargas: Okay. Thank you. My name is Lita Sam-Vargas and I live at 4460 Kapuna Road with my husband - with my husband, Alan. As a retired management consultant and business executive, I have had to make many difficult decisions and do not envy your job. I will be addressing two points. First, the Chandler-Ferris Trust - the new applicant - is not the original applicant, which is the Ferris Trust. They are two different legal entities with different assets and different (inaudible). Property - proper notification by the new applicant of a change of ownership in 2013 was not reported until recently. Therefore, there may not basis for grandfathering in the original application from 2011. Second, there are a number of irregularities with the processing of evaluation of the application, showing a strong bias by your Planning Department in favor of the new applicant. Perhaps because the county faced a missed that deadline responding to the application. However, the new applicant missed the deadline to claim the rights to the grandfather provision from the original application. As to the first point, in the Planning Department’s staff report, the names of the two trusts are used as if they are the same entity, or that one became the other. This is not legally so. The only thing that is continuous here is that the TVR never stopped operating. This critical point is that the original application was filed by Robert Ferris, trustee of the Ferris Trust, using supporting documentation for his business called Retreat at Hale Luana & Plantation. No one is disputing that Hilary Ferris trustee of the Chandler-Ferris Trust, the current applicant helps operate the TVR way back then and is operating it now. Nor is there a question that when the property was legally transferred to the trust, she was entitled to the grandfathering provision. The point is that when the Chandler-Ferris Trust became the new owner in 2013 and operated a new business called Kauai Retreat Center; they hould have notified the county in order to claim the rights to the grandfather provision and to file a new application and affidavit as is required of all new property owners in ag land with special permits. She did not. She just continued to operate. It appears that the legal change of ownership documents may have finally been delivered to the Planning Department as recently as June of last year. By not reporting the change of ownership in a timely manner and filing a new application, the new applicant the Chandler-Ferris Trust may have forfeited the right to the grandfathering provision. Regarding second point - in the interest of time, I can only mention three examples of Planning Department’s strongly favoring the new applicant. The Planning Department did not require the Chandler-Ferris Trust to submit a new application and affidavit as is required of a new owner. Instead, it updated the 2011 application selectively. Second, staff report issued by the Planning Department retroactively changed the department’s position of 2011, but the original application by the Ferris Trust was incomplete, and therefore, did not merit a provisional certificate to operate a TVR. Lastly, the Planning Department staff work - performed work that the applicant was required to perform themselves, such as notifying surrounding parts of the (inaudible) and 21 filing the required associative affidavits. The points I have made are fundamental and should be considered when making your decision. Thank you for your time and the opportunity to speak. Chair Nogami Streufert: Thank you. Mr. Hull: Again, for anybody that has not testified that would like to testify on the, um, Ferris application, please speak now. If I…sorry again. I thought we had some feedback. I appreciate everybody’s patience. Again, is there anybody that would like to testify on the Ferris application that has not spoken yet? If so, please push star 6 and unmute your phone and state your name. Hearing none, Madame Chair, the Department would recommend closing the closing the Agency Hearing. The Department would recommended the Agency Hearing Closed. Chair Nogami Streufert: Do I have a motion to close the hearing? Mr. Ho: I move to close the agency hearing. Mr. DeGracia: Second. Chair Nogami Streufert: Is there a second? It has been moved and seconded to (inaudible) is there any discussion? Recording: Helen Cox is now joining. Chair Nogami Streufert: We have a motion to close the agency hearing - the Ferris case. Is there any discussion? If not, we have a roll call. Mr. Hull: Roll call Madame Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Ms. DeGracia: Aye. Mr. Hull: Commissioner Ho? 22 Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion Passes 7:0. Madame Chair. Chair Nogami Streufert: It has it been passed. Agency hearing is closed. Special Permit SP-2011-35 to permit use of an existing single-family residence for Transient Vacation Rental (TVR) purpose, as permitted by County of Kauai Ordinance No. 904, within the Waipake Subdivision, Waipake, Kauai, approx. 1,600 ft. west of the Kapuna Road/Kuhio Highway intersection, further identified as 4670 Kapuna Road Tax Map Key: (4) 5-1-006:002 (Unit 4 comprised of 2.503 acres), with an overall parcel size of 10.008 acres = Robert D. Ferris Trust). Mr. Hull: Moving on to the same agenda item for the review by the Commission, Special Permit SP-2011-35, the permit to use an existing single-family residence for Transient Vacation rental purpose as permitted by county of Kauai Ordinance number 904 Waipake Subdivision, Waipake Kauai approx. 1,600 west of the Kapuna Road/Kuhio Highway intersection, further identified as 4670 Kapuna Road, tax property 5-1-006:002, , unit four comprised of 2.503 acres with an over parcel size of 10.00 acres documented as Robert D. Ferris Trust, and I’ll turn it over to Mike Laureta, who has the Director’s Report pertaining to this matter. Mr. Ho: One moment, please. Madame Chair - Madame Chair - Madame Chair? Chair Nogami Streufert: Yes. Mr. Ho: I move - I wish to make a motion. I move that the Commission enter to the Executive Session, please. Chair Nogami Streufert: Is there a second? Ms. Apisa: I will second it to have discussion, but it seems that would be more after we’d get the Director’s Report, but that’s in the form of a question. Chair Nogami Streufert: Mr. Ho, would you prefer it now? Or after the Director’s Report? Mr. Ho: I prefer it now. 23 Chair Nogami Streufert: Okay. All right. So, it’s been moved and seconded that we ha- that we go into exec- excuse me - executive session now. Is there discussion? If not, let us, by a voice vote, all those in favor of going into Executive Session, now? Say aye. (Unanimous voice vote). Mr. Ho: Uh— Woman: Aye. Group: Aye. Chair Nogami Streufert: Okay. It has passed 7:0 that we will go into session and it will be, uh, it will be conducted with a 15-minute break, also. So, let us assume that we will get back into session at 11 o’clock. Ms. Apisa: So, I have a question. We do not log out of this. Or how do we - uh, cause we have a separate link to go into to executive session. Mr. Hull: Yeah. So, for both the Commissioners, as well as the members of the public that had called in and would like to watch the proceedings go down, as well as or - yeah. For all those that have called in, as well as the Commissioners themselves, the Commission is going into executive session to consult with their legal counsel. Commissioners, you will be logging - logging off this platform and logging onto a separate executive session call that has been set-up by your attorney. For those members of the public, as well as those applicants for other agenda items, if you would like to stay on, do not hang up your phones. You can stay on right now, or you can return at around 11 o’clock when the Chair is saying she anticipates coming out of executive session. Again, for the Commissioners - you need to log off this platform and log on to the separate executive session line set up. The Commission moved into Executive Session at 10:40 a.m. The Commission returned to Open Session at 11:28 a.m. Chair Nogami Streufert: Call the meeting back to order after Executive Session. Mr. Hull: Not all are for - many of them are actually, I guess most are here for the - the Ferris case, but there are also other applicants on the other agenda items as well. Chair Nogami Streufert: Okay. Okay. Well, the sun came out. Will you let me know kind of when we can start? Mr. Hull: We have all Commissioners present. At least, logged on, Madame Chair. Do you want do a roll call before we start? Chair Nogami Streufert: Yes, please. Calling the regular session of the Planning Commission to order. We will have a roll call, please. 24 Mr. Hull: Commissioner Apisa? Commissioner Apisa? Ms. Apisa: Here. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Cox: Here. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Ho? Mr. Ho: Here. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Here. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Here. 7 present. Mr. Hull: Madame Chair, I’d just like to bring to your attention at your discretion, though, of course, during the break, at least one member of the public reached out to say that she was unable to testify because she unable to get her phone unmuted in time. I believe during the break she was able to figure out her technical difficulties. And so, a request has been made that those members of the public that were experiencing technical difficulties - if they could provide testimony at some point during this agenda item - I just wanted to bring that to your attention - if you wanted to let them go now or say that time has been closed - it’s at your discretion. Chair Nogami Streufert: Because it is such a contentious issue, I would prefer to hear everyone’s. So, let us give every chance to air their concerns, please. Mr. Hull: Okay. For those that did not - or had issues unmuting their phones or were able to figure that out during the break now the Chair is allowing you testify. So, we’ll open it back up. If you have not spoken on the Ferris application as a member of the public, but would like to speak, please unmute your phone, state your name, and please testify. Chair Nogami Streufert: (Inaudible) have no already testified. 25 Mr. Hull: Yeah. Correct. It is for those who have not testified. So, again, for those that have not testified, but would like to speak, please unmute your phone, state your name, and provide your testimony, please. Ms. Loo: Good morning. Can you hear me? Mr. Thomas: My name is, uh, Bart Thomas. I am the junior vice commander for the (inaudible) center. I am also on the board for Salvation Army. I am to speak on behalf of what the Kauai Landing property has done for us. Mr. Hull: Oh, no. Sorry. Sorry. Sorry, Mr. Thomas. We are on the Ferris case right now. The - the testimony right now is for the Ferris application. Mr. Thomas: I am sorry, brother. I am looking at my (inaudible) numbers, so I have no clue where you stand. Sorry about that. Mr. Hull: Yeah. No problem. So, again, Kauai Landing is - is coming up next on the agenda. But for those that’d like to - for members of the public, again, that would like to testify for the Ferris application that have not yet been able to speak, please unmute your phone and state your name and provide testimony at this time. Ms. Loo: Good morning. Can— Chair Nogami Streufert: Hello. Ms. Loo: Good morning. Good morning. Chair Nogami Streufert: Okay. State your name, please. Ms. Loo: Oh. Okay. This is Laurel Loo. I would like to provide a short statement. I am an attorney representing the first two speakers that you heard this morning on the Ferris Trust, and I wanted to; uh, just clarify our position. The court has remanded the case back to the Planning Commission to process the permit. And my view is in processing the permit, the Planning Commission now has to consider three things. Whether this is a reasonable use, whether this promotes the objective of agricultural lands, and whether this is in keeping with Hawaii statutes 205, which requires that a single-family dwelling be located in a farm where there is agricultural activity which provides income to the family occupying the dwelling. We do not believe it meets any of these three prongs. You know, you folks have a tough call to make, and I, myself, as an attorney have represented other applicants in front of the Planning Commission who have pursued a special permit to operate a vacation rental on Ag land. And in each case, we made the effort to reach out to all of our neighbors, whether they were unit mates, or just geographical neighbors, to make sure that there were no concerns, and if there were concerns, to address those prior to a hearing, and we would just have liked to be able to have had that conversation with the applicant. So, thank you for the opportunity on behalf of my clients to be able to submit testimony information. Thank you. 26 Chair Nogami Streufert: Thank you. Mr. Hull: Thank you, Ms. Loo. Again, for any other members of the public that have no testified on the Ferris application, and would like to provide testimony the Chair is allowing that testimony now. So, please unmute your phone and state your name. Hearing none, Madame Chair, I think you folks may proceed now with your deliberations. Oh. Excuse me. There is deliberations to go into, but Mr. Laureta, our staff planner assigned to this project is ready to give his report if you folks want to receive it now. Sorry, Madame Chair. I believe you are muted. Chair Nogami Streufert: (inaudible) muted. Yes. We are ready to hear Mr. Laureta read the, uh, the report. Staff Planner Mike Laureta: Okay. Good afternoon, Commissioners. Mike Laureta. I will present this, uh, as briefly as I can. I know you want to get to the questions, but this is a special permit - SP1135 - that was originally submitted in 2011 for processing. Um, the applicant name at that time was Robert D. Ferris Trust, now known as the Chandler-Ferris Trust. Um, the reason for the request - special permit required pursuant Chapter 205 of HRF and Chapter 13 of the Rules and Practice and Procedures of the Planning Commission, and this special permit is for a six-bedroom, 4.5 bath farm dwelling, single-family, transient vacation rental located on planned designated state valued as Ag. Um, this was a completed application August 16, 2011. Um, this special permit’s action is applicable within 60 days after the close of the public hearing, but within a longer period if may be agreed by the applicant to the extent permitted by law, and the additional public hearing dates are reflected. Notification requirements have been completed. 100 percent of the neighbors within 300 feet have been notified. Properties located (unintelligible) highway, Kapuna Road intersection. (Inaudible) Key 516, parcel 2, unit 4, property 5, 2.5 acres, compliance to ordinance 904. All these documents and all this information was submitted, uh, as necessary. GE tax, transient accommodation tax payments, federal and state employee income tax returns, reservations lists, and receipts showing payments. The property is less than five acres in size for Ag dedication, but it had Ag dedication at the time. Ordinance standards one and two are applicable. Ag activity on the property does exist. Property has been inspected three times - 2011, 2016, and 2017. The last two were based on complaints received from a neighbor. All types reflected in ratings. Agency comments are attached. Mr. Laureta read the Summary, Project Data, Project Description and Use, Additional Findings, Preliminary Evaluation, and Preliminary Conclusion sections of the Director’s Report for the record (on file with the Planning Department). Mr. Laureta: So, we considered the analysis had special permit considerations, general plan consideration, ordinance 904, and the number of TVRs in a geographical region and then, we had the preliminary valuation. Conclusion and preliminary recommendation - um, that is as fast as I could do it. I can take any of your questions. Chair Nogami Streufert: Are there any questions for what the - would the Commission like to have all these read? Or would you like to just ask questions of Mr. Laureta? 27 Ms. Cox: At some point, I would like to recommend all the recommendations read. Chair Nogami Streufert: Mr. Laureta, where - now, that the recommendations - yet, where are the preliminary evaluation - discussion and preliminary evaluation? Ms. Cox: Okay. Chair Nogami Streufert: Before we go to the recommended action, though, I would like to have your - the Conclusions read. Mr. Hull: No questions? Chair Nogami Streufert: We are not (inaudible) if, uh, would you rather have the conclusions first? Or we can talk about the, uh, discuss the, uh, evaluation. Are there any questions for Mr. Laureta for - about the evaluation? For the Findings or the Evaluation? Ms. Apisa: It just seems that there is a short Conclusion preceding the Recommended Actions. So, I would like to see us follow the order, unless there’s an objection. Chair Nogami Streufert: I am sorry. Reading the entire thing from the discussion to the Evaluation? And then, to the Conclusion? Is that what you are asking for? Ms. Apisa: No. I am just saying to take the Conclusion prior to the Recommended Action. Chair Nogami Streufert: Correct. We will do that. But right now, I’m asking were there any questions of Mr. Laureta about the preliminary evaluation or about the discussion? Ms. Apisa: No question from me. Chair Nogami Streufert: Mr. Laureta could you, since this is about the special permit, on the preliminary evaluation, talk a little bit about that special permit how that standard requirements (inaudible)? Mr. Laureta: Okay. So, I’ll take you from the bottom of page six. Chair Nogami Streufert: Correct. Mr. Laureta: Okay. Pursuant to HRS 205.6, the County Planning Commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the State Land Use District is classified. Special permits for land areas exceeding 15 acres in size are subject to approval by the Land Use Commission. The applicant is requesting a State Land Use Commission Special Permit to operate a TVR on the subject property as a permitted unusual and reasonable use with a - within the state agricultural land used district. Standards for considering a Land Use Commission Special Permit are found under Title XV Department of Business Economic Development and Tourism, Subtitle 3, State Land Use Commission, Chapter 15, Land Use Commission Rules, Subchapter 12, Special Permits, Sub- Subsection 15, 15-9-5 of 28 the Hawaii Administrative Rules, and Section 13-6 of the Rules of Practice and Procedures of the County of Kauai Planning Commission. The proposed request could be considered to be an unusual and reasonable use based on the following - one, the use shall not be contrary to the objective sought to be accomplished by chapter 205, 205a HRS and the Rules of the Land Use Commission. The analysis - the proposed action can comport with the state land use laws objectives and policies for agricultural regions since this property is being utilized for agricultural purposes, despite it being for home consumption and guest enjoyment purposes. The many different types of fruit and flower trees on the property are maintained by the applicant for personal use and for enjoyment by the guests. The project site is largely buffered by considerable distances between neighboring residence and by its rural agricultural setting. The proposed action will not result in a significant increase in visitors to the area, will not induce population growth, and will not significantly change the character of the property. Therefore, the proposed action will not result in a significant change to the rural agricultural character of the area, nor impact the area’s limited public infrastructure and services. The desired - two - the desired use would not adversely affect surrounding property. The property is serviced by an unimproved driveway off of Kapuna Road. The property can accommodate vehicular parking on site without impacting the Kapuna Road right of way or surrounding properties, and can be accessed by emergency vehicles, provided the access way is maintained as recommended by the Fire Department. Staff does not anticipate any impacts to the surrounding or abutting agricultural districted lands or residential improvements on said lands providing the recommendations contained in this report are implemented and proper management of the property is provided. Three, the use would not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, and school improvements, and police and fire protection. The TVR use of existing farm dwelling unit in this location would not have a noticeable impact on local roads and streets, sewers, water, drainage, school improvements, and police and fire protection or other public and private infrastructure systems and services. Four, unusual conditions, trends, and needs have arisen since district boundaries and rules were established. Kauai’s economy has dramatically evolved since the establishment of the State Land Use Law in 1961. Tourism is now the largest economic driver in the county. While the tourism industry itself has evolved from centralized and localized by large resorts and hotels that operate along the coastal areas of the island, the time-share industry, and now the transient vacation rental industry has been part of a growing demand for more rustic and private accommodations on the island. This location is a prime rustic location that the movie industry has taken advantage of. Further, the county of Kauai general plan also entertains the possibility of alternative visitor accommodation structures and operations in residential, agriculture, open, and resorts only districts. However, subsection 4.2.6.2, County Policy and Zoning Regulations states the following - specific development standards should be developed for multi-unit B&Bs and single- family vacation rentals addressing at least the following factors - buffering of adjacent properties in order to prevent noise impacts and visual impacts, related factors are the size of the property and the location of the visitor units relative to adjacent properties, access to adequate public 29 roads, parking for employees and patrons, adequate waste water treatment and disposal, the total number of vacation rentals in the area, and the cumulative impacts on the neighborhood. Five - the land upon which the proposed use is sought is unsuited for the uses permitted within the district. The subject property is being used for agricultural purposes, although such cannot be considered intensive Ag due to its limited size - under 5. - 5 acres. Further, other physical - physical constraints, such as poor soil inhibits intensive agriculture. The subject property is being used for agricultural purposes. Chapter 15, Land Use Commission Rules, Subchapter 12, Special Use Permits allows for certain unusual and reasonable uses provided that these uses are consistent with the state’s land use laws objectives and policies. The proposed use of an existing single-family residence/farm dwelling will not produce significant impacts to adjacent agriculturally zoned properties and will benefit the island by offering alternative eco-tourism accommodations in Anini available to both visitors and Kauai residents - Anini/Kilauea. The Planning Commission may impose such protective conditions as it views necessary to the - in the issuance of this special permit. The Planning Commission may establish - among other Conditions - a reasonable time limit suited to establishing a particular use, and if appropriate, a time limit for the duration of a particular use, which shall be condition of this special permit. Such conditions on the existing TVR could ensure that the owners of these entitlements and their neighbors would know what to expect from each other. Failure to abide by the Conditions of approval could mean possible forfeiture of the use should complaint to the Department remain unresolved. Would you like me to go into the conclusion? Ms. Otsuka: Glenda, you need to unmute. Mr. Laureta: Chair, you are muted. Chair Nogami Streufert: Are we ready to continue with the Conclusions? Do we have the, the applicant there? Or would - is the applicant available? Would - is this a proper time for the applicant to respond? Mr. Hull: Yeah, Madame Chair. The applicant’s representative, Ms. Zeigler is - is available, I believe. Chair Nogami Streufert: Would this be an appropriate time to have her respond to this? Or to - to make a statement? Mr. Hull: It would. Chair Nogami Streufert: All right. Ms. Zeigler: Okay. Good morning. I am Joanna Zeigler, and I represent the Chandler-Ferris Trust. Thank you for the opportunity to speak at this time. We sent a letter to the Planning Department and Planning Commission dated October 23, 2020, which set forth the trust position with regard to the special permit. And I’ll just highlight a few important aspects of that letter for the Planning Commission. Just based on what we heard earlier this morning and to clarify the 30 history and procedural posture of this application - um, to begin with, uh, Hillary Ferris is the trustee of the Chandler-Ferris Trust, and her family her and her family are local residents to Kauai and have been operating the TVR prior to the change of the ordinance in 2008, which is undisputed, and the applicant, um, or the application was submitted in 2010, um, was at that time denied. However, it went through the appeals process and in 2016, the ICA entered, um, its opinion, which came to two important conclusions. The first was that the application was complete which I believe Mr. Laureta also just stated. Then, secondly, and more importantly, that it was improperly denied. So, at that point, the ICA or the Intermediate Court of Appeals remanded it back to the Planning Commissions. Subsequent to that 2016 decision, there was discussion between ourselves and the County Attorney, and we attached some exhibits to our letter in which the County Attorney then stated in 2016 that it would…the Planning Department would accept the application and that it would need to be processed pursuant to the non-conforming use certificate ordinance and the special permit statute and rules. However, no action was taken since 2016. I just would like to highlight that the applicant did not initiate the Planning Commission action today and has not in any way updated or submitted any additional information to the Planning Commission because that application was deemed complete in 20- by the ICA in 2016. Um, and so, the - the position of the trust is that, um, although other opinions have been expressed, there is actually a legal, requirement to approve the special permit at this point, and that’s just simply pursuant to state statute and the Planning Commission Rules. Um, state statute provides that applications must be processed within a maximum period of time, which is set forth in the agency rules. Um, otherwise, it shall be deemed approved, and the Planning Commission rules Chapter 13 provide for those maximum time periods. The first, 1-13-5 provides that a public hearing will be heard within 60 days of acceptance. Then, 1-13-7 and 1-13-8 provide that the Planning Commission must act within 210 days, and neither of those deadlines have occurred. Um, and so, the - the application must be deemed automatically approved at this point. Um, and I believe Mr. Laureta’s going to move into the - the, um, Conditions for approval, which the applicants or the trust understands that there are standard conditions that go along with this, um, special permit. But at this point, the, um, under the statute and rules, the automatic approval is required at this point. And I think that’s all I have, unless there’s other questions. Ms. Apisa: I have a question. I believe you were present at the, um, meeting and listened to the testimony and there is a lot of concern from neighbors as far as noise and disturbances. Um, I mean, I guess some response from the applicant as far as addressing those concerns to maybe be a better neighbor. Ms. Zeigler: Yeah. I think there is a couple aspects to that. The first is that because of this automatic approval that has - that would eliminate discretion to consider those types of input from the community at this point. There was a complete application that just was not acted upon for four years. And so, at this point the applicant would prefer not to waive, um, the arguments that the automatic approval is in play. But I will just note that there were other testimony 31 submitted. I believe we received, uh - uh - uh, several letters that were submitted, I guess, maybe not, um, oral testimony today, but that contradict the oral testimony that was given. Ms. Apisa: Another question, are you - or who is the on-island appointed agent for the applicant? Or just on a regular rental basis? Ms. Zeigler: The applicant is on-island, and she does visit the property on a almost daily basis. Because of the (inaudible) and because of the TVR use as well. Ms. Apisa: Well, okay. Thank you. I was not aware the applicant is on island. Thank you. Ms. Zeigler: Yes. Yes. It has a - it is a local family. Yeah. Chair Nogami Streufert: So, if the neighbors had any problems, they would go directly to that - to the applicant. Is that correct? Ms. Zeigler: Yes. Chair Nogami Streufert: There is one concern that some of the neighbors have that the units - the rooms were being rented out separately as - and not as a - as a total unit. Is that more like a boarding house, as opposed to a TVR? Do you know? That came up several times in the discussion. Ms. Zeigler: Yes. And I guess I will - I will defer to that, um, automatic approval argument as well, um, and I don’t have specific information to address those concerns right now. Um, however, even if a special permit is automatically approved today because of those deadlines, there is still a review process that happens with each of these permits. You know, that would not be prevented to occur in the future. Ms. Apisa: But you are aware or the applicant is aware of the, um, recommended, um, approvals which Conditions - which we will get into but the applicant is, um, right now there are 23, may change. But, the applicant is aware of and accepts those Conditions? Ms. Zeigler: Yes. The applicant accepts the standard conditions that are included in the staff report. Um, there were two conditions - 20- 22 and 23 - which seemed problematic and - and are site specific. So, in other words, the standard conditions are - are certainly accepted, as part of the special permit process. I do not know if we talk about specific conditions at this point, but I will say 22 and 23 were site specific, so there was, there would be some comments on those. Chair Nogami Streufert: We will get into that in just a minute after, Mr. Laureta reads all of the, um, the conditions - as we get into it. Are there any questions for the applicant or for Mr. Laureta? Mr. Laureta: You want me to read the Conclusion. Chair Nogami Streufert: Yes. Let us read the Conclusion. 32 Mr. Laureta: Okay. Let us see. I will do this. What you see noted in the right-hand column as standard or applicant specific are the Conditions of approval that were imposed on approximately (inaudible). Ms. Zimmerman: May I please ask a question? May I please ask a question? I am sorry. Could I please ask a question? Chair Nogami Streufert: I am sorry. Who is this, please? Ms. Zimmerman: This is Kristin Zimmerman, and the application is not complete. Chair Nogami Streufert: Yeah. We are not at that place in the— Ms. Zimmerman: I have a right to close-captions. The caption is stopped and I am deaf. I need to have closed caption, please. I am an owner within the CPR. Mr. John Friedman: And I am legally deaf. Mr. Hull: Okay. Hold on one second. Ellen, is the close captioning system not available at this time? Mr. Friedman: (Inaudible) legally deaf. I - I sent - I sent - hold on. She - she cannot hear - she cannot - (inaudible) hold on. She - she cannot hear you, uh, ma’am. What - that - she - she cannot - she cannot hear you. I am going to ask that the hearing be discontinued until such time as she can have access to it as (inaudible). Mr. Hull: Hold on. Hold on. Ms. Zimmerman: Yeah. I am just reading - it says, Captioner must proceed to the next scheduled event. Under federal law, I am legally deaf. You have to allow me to hear the hearing. So, I’m going to ask if you can discontinue this session and reconfirm at a different time, please - or such time as the captioner can continue. Mr. Hull: Madame Chair, what - we (inaudible). Ms. Zimmerman: I do not know if you heard me. Mr. Hull: Yeah. Madame Chair, if we could take a 10-minute recess to see if we can resolve (inaudible). Chair Nogami Streufert: (inaudible). Mr. Hull: Hold on one second. Okay. Go ahead. Ms. Zimmerman: I do not know what is going on. 33 Chair Nogami Streufert: Okay. If your partner is there - we could - we are trying to resolve this issue. If you will just hold on a minute. Mr. Friedman: They are - they are going to try to resolve the issue. Just hold on. Ms. Ellen Ching: Madame Chair, this is Ellen Ching with the Commission Administrator. Um, if you will call a recess, we will try to get this resolved immediately. Chair Nogami Streufert: How much - how much of a recess would you like to have? Ms. Ching: Um, give me about 10 minutes. Chair Nogami Streufert: Okay. Let’s, uh— Ms. Zimmerman: Okay. I think my other half just said you are going to resolve it. So, I’m going to mute you. Chair Nogami Streufert: Okay. We are going to - we will take a 10-minute - oh. Let us - uh, well, 15 - we will take a break until 12:15 and we will resume. Will that give you enough time, Ellen? Ms. Ching: I have to contact the Relay Hawaii and see what the issue is and - and get back. Chair Nogami Streufert: All right. Let us take a 10-minute break. The Commission recessed this portion of the meeting at 12:04 p.m. The Commission reconvened this portion of the meeting at 12:17 p.m. Chair Nogami Streufert: Call the meeting back to order. Mr. Hull: Commissioner Apisa? Ms. Apisa: Here. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Cox: Here. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. 34 Mr. Hull: Commissioner Ho? Mr. Ho: Here. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Here. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Seven Present. Would you bring us up to date on where we are? (Inaudible), please. Mr. Hull: Yes. Well to the members of the public that requested the captioning, we apologize that the captioner essentially broke off. We were able to secure a captioner starting at 1 o’clock. So, it’s the Department’s recommendation to the Chair and the Commission to take its lunch break right now. Then, once we reconvene at 1:00 or thereafter, the caption - the captioning system will be back in place. Chair Nogami Streufert: Do I have a motion from the Commission to take a lunch break? Is that something that we would like to do? And have a captioner join us this afternoon and - I think the anticipation is that we will have someone by about 1 o’clock. So, if we just say 1:15? That will give us an hour’s lunchtime. Ms. Cox: I move that we break until 1:15 pm. Chair Nogami Streufert: Second? Ms. Otsuka: I second. Chair Nogami Streufert: Seconded. An all those in favor? Aye. (Unanimous voice vote). Group: Aye. Chair Nogami Streufert: Motioned Carried 7:0. Now - then, when we will reconvene at 1:15. The Commission recessed this portion of the meeting for lunch at 12:18 p.m. The Commission reconvened this portion of the meeting at 1:15 p.m. Chair Nogami Streufert: Call the meeting back to order after the recess. Okay. Could we have a roll call, please? Mr. Hull: Yes, ma’am. Roll call. Commissioner Apisa? 35 Ms. Apisa: Here. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Cox: Here. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Ho? Mr. Ho: Here. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Here. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Here. Mr. Hull: We have a quorum seven present, Madame Chair, and we have gotten a captioner, uh, back in place. We apologize to the members of the public that needed those services but we do have one back in place. So, I think we can convene the meeting where we left off. Chair Nogami Streufert: Okay. And I think we’re at the Conclusion. Mr. Laureta: Conclusion? Chair Nogami Streufert: Yes, please. Mr. Laureta: Okay. For the Conclusion, on the right-hand column, you will see the Conditions recommended with the notation that was standard. These are Conditions— Chair Nogami Streufert: Oh. Sorry. Did you have Conclusion to the evaluation? Mr. Laureta: Oh. Conclusion? Okay. Based on foregoing findings and evaluation, this concluded that the transient— Chair Nogami Streufert: After that, we are going to have Mr. Bracken to talk about where we are - where we are standing right now. Then, we will get to the Conditions. 36 Mr. Laureta: Okay. Based on the foregoing findings and evaluation, it is concluded that the transient vacation rental use can comply with the requirements for the issuance of a special permit. Such an approval should be with the imposition of conditions of approval to address the use and mitigate potential and/or anticipated impacts in the neighborhood. This use needs to be strictly managed in order to prevent an animal house type impact of a neighborhood from occurring. It is finally concluded that even though the Department has strong reservations about TVR uses outside the visitor destination area, especially within the state land use district agricultural district, the law must be paramount. Our recommendations were contemplated under the confines of the law, including Federal Constitutional considerations concerning property rights and takings, the county’s ordinance number 904, the recommendation of the general plan, and Chapter 13 of the Planning Commission’s Rules of Practice. That concludes the recommendation. Chair Nogami Streufert: That concludes your Conclusion. Okay. Mr. Laureta: I will— Chair Nogami Streufert: I am sorry. Before we go further Mr. Bracken is the County Attorney, and he will provide some background on the where we are legally. County Attorney Matthew Bracken: Thank you, Chair. Due to the delay in process in special permit, it is automatically approved by operation of law, specifically (inaudible) by Statute Section, 91-13.5 requires the approval. However, the Planning Commission has the authority under the Planning Commission Rule 1-13.8 Section 2, and (inaudible) provides statute to apply (inaudible) 6 (c) - to establish protective restrictions or Conditions. Accordingly, this Commission may now discuss and adopt appropriate Conditions. Chair Nogami Streufert: Okay. Um, as - as we, uh— Mr. Friedman: I am sorry, can I interrupt momentarily? I am sorry. May I interrupt momentarily? Chair Nogami Streufert: Yeah. Your question, please? Mr. Friedman: Yeah. It - it is not really a question. It’s - we - we still do not have captions and although we are able to hear to hear and the captioner is there, um, but she - I am here, but I am still on hold. Has the event started? And I told her yes, but - but she’s not able to caption for - for Kristin. Mr. Hull: Okay. Hold on one second. Mr. Friedman: I’m not sure exactly what the holdup is, and - and - and I can bring - I can bring Kristin up to date on - on - on the - on the presiding of the right-hand column of the report from the direct - from Mike Laureta. Um, but this point forward, I am sure she would like to hear it, if 37 possible. It - it’s - to be able to understand - she will never be able to hear - but to able to understand it through captions, if possible. Mr. Hull: Yeah. Hold on one second. Ellen— Ms. Ching: I am trying to - Ellen Ching, Boards and Commission Administrator, at this point, I would - I would, I apologize to the Commission. I would recommend this item be deferred. Mr. Hull: Well, I mean, is she is the captioner gone? Because what the member of public is saying is that captioner is on hold. Did they just - did they just give a different number? Ms. Ching: We are not - when we set up the services, the captioner, and the company works directly with the client. So, we cannot ascertain whether the captioner is there or not. Mr. Hull: Um— Mr. Friedman: If you guys can hear me, what - what we’re getting on our end is an - an error message the captioner has not been admitted to the meeting. Chair Nogami Streufert: Oh. Does this mean that the captioner is there, and is just waiting to come in to the meeting? Mr. Friedman: Yeah. But the captioner is there. We can text back and forth with the captioner, but she’s unable to caption the - she’s un- she’s unable to caption the meeting because she has not been admitted to the meeting. Mr. Hull: Uh— Mr. Friedman: That is what we are getting on our end. Mr. Hull: Okay. Then, hold - hold on one second, then. Um, Madame Chair. I apologize. Will you mind asking - would - could we ask for a 10-minute recess to try and resolve this again? Chair Nogami Streufert: Let us - yes. We will be back in 10 minutes. The Commission recessed this portion of the meeting at 1:23 p.m. The Commission reconvened this portion of the meeting at 1:26 p.m. Chair Nogami Streufert: Call the meeting back to order after the recess. Mr. Hull: Sir, could you confirm that you guys have the captioning system? Mr. Friedman: Yes. We are now on 100 percent. Thank you very, very, very much. I am, I am confirming for both you and the captioner, who is asking the same question. Mr. Hull: Okay. Perfect. Thank you. 38 Woman: Thank you. Man: Thank you. Chair Nogami Streufert: All right. Kaaina, can you confirm that every - all of the Commissioners are back on, please? Mr. Hull: Okay. Chair Nogami Streufert: Well, we do not have to do a roll call- we just - if we know everybody’s on. Mr. Hull: All Commissioners are logged on. Yes, Madame Chair. Chair Nogami Streufert: Thank you. And if we just hit the Mr. Bracken, who’s the county attorney gave us - do we do that over? Or you okay with that? Hearing nothing, then we will continue with Mr. Laureta, would you lead the recommended action by the Commission? Mr. Laureta: Okay. I will re-explain the layout of the conditions of approval. On the right-hand side in the column it says, “Standard, Applicant specific for site specific.” This template, this Staff Report form, these Conditions of approval were used in approximately 67 other Special Permits approved by the Planning Commission for vacation rentals in the State Land Use Ag District. That is why it says “standard.” So everybody has these Conditions of approval. So I’ll read them one at a time. “Based on the foregoing evaluation and conclusion, it is recommended that Special Permit SP-2011-35 to Robert Ferris, Deceased, now known as Chandler-Ferris Trust be approved subject to the following Conditions: 1. This Permit is not evidence of compliance with any all pertinent zoning and use regulations of the County of Kaua’i. 2. This Permit does not bear upon any subsequent annual renewal of the Certificate or inspection of the property by the Planning Department and/or any other government agency as may be necessary. 3. The owner or lessee who has obtained a Nonconforming Use Certificate under this section shall apply with the Planning Department to renew the NCU Certificate annually no later than one month prior to the date of issuance of the NCU certificate. Application forms can be found on” the Department’s website. “4. Any subsequent use, development, repair, and/or improvement on the property requires Planning Department review and approval prior to such occurring. 5. This approval for use of the Transient Vacation Rental is being permitted at this time. Further, the Agency comments, concerns, or recommendations must be resolved and be complied with and/or addressed prior to any consideration for renewal of this Permit. 6. The property in operation is subject to the applicable per- provisions of subsection 8-17 of the Kaua’i County, in particular, those provisions adopted by Ordinances Number 864, 876, and 904. Section 8- 17.11(a) also states the following: ‘Violations of conditions of approval or providing false or misleading information on the Application or in any information related thereto at any time during the Application process shall be grounds for revocation or cease and desist orders.’ 7. The Applicant and successors and permitted assigns shall exercise reasonable due care as to third parties with respect to all areas affected by the subject Special Permit and shall procure at its own cost and expense and shall maintain during the entire period of this Special Permit a 39 policy or policies of comprehensive liability insurance in the minimum amount of 3 million dollars to cover against any and all claims or demands for property damage, personal, injury, and/or death arising out of this Permit, including, but not limited, to (1) Claims from and any accident in connection with the permitted use or occasioned by any act or nuisance made or suffered in connection with the permitted use in exercise by the Applicant of said rights and (2) All actions, suits, damages, and claims by whomsoever brought or made by the reason of the non-observance or non-performance of any the terms and conditions of this permit or as a result of a natural disaster. A copy of a policy shall be submitted to the Department within 90 calendar days from the date of granting of the Special Permit. Failure to renew the Certificate and to provide the County Planning Department with a new - Renewal Certificate shall result in the implementation of Condition Number 6 above. This Special Permit shall be renewed annually, commencing from the date of Planning Commission approval by the Planning Director or his designee. The Renewal Application shall be submitted to the Department no - no less than 30 days prior to the date of expiration. The Renewal Application shall discuss compliance with the conditions of approval, and any issues that may have arisen. If the renewal request is submitted late, then the use shall cease until the Planning Commission renders a decision on this matter. If a denial of the renewal request is to be recommended, such matter shall be brought to the Planning Commission. 9. If historical or cultural remains such as archeological artifacts, charcoal deposits, or human burials are found at any time during any subsurface on the property, the Applicant shall stop working the immediate area and shall contact the State Historic Preservation Division and the Planning Department to determine appropriate action. 10. To respect the neighboring residential properties and for safety of the visitors, all vehicular parking related to this use and property, including maintenance vehicles, shall be accommodated on the subject property at all times. On-street parking shall not be permitted at any time. Guests shall be informed that elevated noise activities or amplified music shall not be permitted after ten o’clock pm. An evacuation plan shall be developed and posted in conjunction with the below- referenced notices. These limitations shall be incorporated in the compulsory safe - “Safety For You and Your Neighbors” and “Welcome and Notice” posted within the dwelling and within any and all contracts and advertisements for use of the structure from the date of this approval. Copies of these documents shall be provided to the Department. 11. The Planning Commission reserves the right to revise, add, or delete conditions of approval in order to address or mitigate unforeseen impacts the project may create or to revoke the Permits through the proper procedures should adverse impacts occur that cannot be mitigated. The Applicants, successors, and assigns shall indemnify, defend, and hold the County of Kaua’i harmless from and against any loss, liability, claim, or demand for property damage, personal injury, or death arising out of any act or omission of the Applicant, its successors, assigns, officers, employees, contractors, and agents under this Permit or relating to or connected with the granting of this Permit. This indemnification agreement shall be submitted for approval by the Planning Department within 30 days from the date of approval of the Special Permit and shall be recorded at the Bureau of Conveyances or Land Court within 60 days of approval by the Department. A recording copy shall be provided to the Department. 13. The Applicant is on notice that this property sits within the State Agricultural District and adjacent parcels may engage in intensive farming and the subject parcel may experience noise, fugitive dust, and environmental impacts associated with good farming practices. The Applicant shall notify any TVR tenant of potential impacts associated with adjacent farming and to refrain 40 from calling or reporting such activity to governmental agencies. 14. As previously recommended by these agencies for TVR uses: The fire department: A multi-purpose ABC fire extinguisher be mounted near an exit and an emergency escape plan be mounted behind the main door with emergency phone numbers and information about natural disasters. Smoke alarms in accordance with the Building Code shall be installed. The driveway shall maintained to provide emergency vehicular access and if an entry gate is utilized access shall be provided for emergency services with Knox rapid-entry system. For the Water Department: Applicant is made aware that the water service will be limited to the existing water meter serving this parcel. Request for additional water meters or increase in water meter size will be dependent on the adequacy of the source, storage, and transmission facilities existing at that time. 15. These conditions of approval and Agency comments shall be recorded at the Bureau of Conveyances or Land Court within 60 days of approval by the Planning Commission. A recording copy shall be provided to the Department within 30 days of recordation. 16. Should any property interest in the subject property be transferred or sold, the Planning Commission shall be notified prior to the closing of the sale. 17. The Transient Vacation Nonconforming registration number, tax map key, and site address shall also be reflected on any internet advertising. A copy of all internet advertising reflecting this condition shall be submitted to the Planning Department within 30 days of approval of this Special Permit and for any subsequent annual renewal. 18. No other commercial use of the property shall be permitted unless approved by the Planning Commission, such as weddings and parties other than by registered guests, commercial retail or rental of items other than ag-related produce grown on the property, commercial filming, et cetera. 19. Applicant shall discuss and resolve applicable Agency comments with the appropriate government agency prior to the renewal of this Permit and provide documentation of such.” Excuse me. “20. No further enlargement, alterations, or expansion of the existing residence shall be permitted unless authorized by the Planning Commission or required by a government agency. 21. The Planning Commission delegates authority to the Planning Director to ensure non-encroachment of agricultural and improvements on abutting properties. 22. The TVR operation shall be made available for the Planning Department inspection upon 12-hours’ notice to the owner or authorized agent. The inspection shall be for the purpose of verifying, with all provisions of the CZO and conditions of approval to the Special Permit. 23. The a- maximum number of people on the property using the TVR structure during any rental time period shall not exceed 12 at any one time. The number of the vehicles on the property at any one time shall not exceed two vehicles.” This concludes Staff’s recommendation. Chair Nogami Streufert: Are there any questions from the Commissions to the Planning Department? Okay. If not, is the Applicant aware of all these conditions? Ms. Zeigler: Hi. Joanna Zeigler again, representing the Applicant. The Applicant is aware of the Conditions that are on this form and does agree to the standard Conditions imposed. Just had two comments with regard to Condition 22 and 23. Um, with regard to 22, the notice of 12 hours seems to be kind of a short amount of time, um, to give the Applicant enough time to notify guests if they are on the property and/or be available for a site inspection. So we’d just request that it would be changed to 72-hour notice. Then 23, given that the maximum number of guests is 12, the number of vehicles on the property, would request to be allowed four vehicles for the registered TVR guests. Um, right now it says shall not exceed two vehicles, um, but if - if the 41 Applicant and if you also arrive on the property, it would likely exceed. So if we could just, um, make it 12 - or excuse me. Not 12 vehicles. Four (4) vehicles for the registered guests. Mr. Laureta: Staff has no objections. Chair Nogami Streufert: Also for the 12 hours of notification and going - changing that to, I think, uh, you said 72 hours. Is that correct? Ms. Zeigler: That would be preferable, yes. Chair Nogami Streufert: Would 24 be efficient? Ms. Zeigler: I think 24, would be better than 12, yes. Just to give the - I mean, the idea would just be so that the Applicant would have time to, you know, be available and notify the guests and whatnot. So 24 would probably be doable. Seventy-two is - is preferable. Chair Nogami Streufert: Okay. Any questions? Ms. Otsuka: If the Applicant would like to change from two vehicles to four. Uh, if the four is agreed upon, will the four vehicles remain on the Applicant’s property? Ms. Zeigler: Uh, yes, the applicant, oh, sorry. Chair Nogami Streufert: The way that it states right now is that no- those on the property at any one time, shall not exceed— Ms. Otsuka: But the…Applicant does have - does have space on her property— Ms. Zeigler: Yes. It— Ms. Otsuka: For the four? Ms. Zeigler: There is plenty of - there is - there is a lot of space for parking, so four (4) vehicles for, the TVR guests would be certainly able to accommodate. Ms. Otsuka: Thank you. Chair Nogami Streufert: There was some concern by the neighbors about noise and there is a statement in here, as is standard with every other TVR, that says it shall not permit 10:00 pm. would that - and you have seen that? It is under Number 10 of the recommendation. Ms. Zeigler: Yeah. Chair Nogami Streufert: Okay. Helen, is there anything you would like to add to this? 42 Ms. Cox: I was going to say the same thing about the noise. As you know, we heard quite a lot of testimony about that and I guess I would just - I just hope the Applicant realizes that should these provisions not be adhered to, these recommendations, that may lead to a cease and desist order. Chair Nogami Streufert: And the owner is held responsible. Ms. Cox: Yes. Yeah. And may - maybe one of the clarifications is that although it says here that it must post the fact that these - the noise can’t happen after 10:00, in the - it actually is the owner’s responsibility to make sure that that actually happens, that noise does not - doesn’t happen after 10:00. It is not just posting. Ms. Zeigler: Yes, the owner is aware of the 10:00 pm noise cutoff. Chair Nogami Streufert: Does, does that need to be in the - uh, in the Condition, Mr. Laureta, or within that standard? Mr. Ho: It is. Mr. Laureta: Yeah, it is. That will be posted in - eh, could be posted in the “For Your Comfort and Safety” document. Also, it could be put in the internet advertising also. Um, you know, the more you put it more there, the more they have to realize you cannot get nuts out there. Chair Nogami Streufert: Uh, what— Ms. Apisa: What you mention, it’s in Condition No. 10. Chair Nogami Streufert: Right. Yes. And that the owner is also responsible for - is that part of that, uh, the safety? Mr. Laureta: Yes. It is the final paragraph in 10. Ms. Cox: So one of the things that is not handled in 10, I am wondering if, - what we should do about it. That is the, uh, we, the other thing we heard quite a lot of this morning was the traffic. Not the amount of traffic, but the speed of the traffic on the road. And I’m just wondering if there’s something that needs to be in the - in what’s posted and what’s told to the, um, visitors, uh, about this being a rural residential neighborhood and that there cannot be - uh, you know, they need to obey speed limit? Which I am assuming is very low there. Chair Nogami Streufert: Are you suggesting that as an additional Condition? Ms. Cox: I am suggesting that that maybe that needs to be added into Number 10. It’s a respect neighboring residential properties and for the safety of the visitors, that in addition to the parking and the noise and the evacuation plan, that there should also be something about, uh - I don’t know if I have the exact wording but “guests need to be aware this is a rural residential neighborhood and vehicle speed should not exceed - I don’t know what the speed is there but or 43 should watch out for pedestrians.” I do not - I mean, I do not have the exact wording that we should use. I am just concerned about the idea. Ms. Zeigler: I do not think the owner would have a problem in posting the speed limit and the, um - the “For Your Safety” - the - the “For Your Safety” post that has to be in the - in the house. I think the speed limit could certainly be added in there. Ms. Cox: Okay. Chair Nogami Streufert: Okay. Mr. Hull: If I could just maybe for clarification then, the Department would look at updating its respective sheet to read as a fourth sub point below, “An evacuation plan shall be developed and posted in conjunction with the below-referenced notices.” A new fourth subparagraph would be, “Guests shall be informed to adhere to traffic-speed standards for the surrounding area?” Chair Nogami Streufert: Correct. Ms. Cox: I might make it even stronger, Kaaina, and say, “The surrounding area, which is,” um, “rural residential area” or some - some - something so that they know, uh, the kind of place they are staying. Mr. Hull: Commissioner Cox, I had - I am going to read this back to you. Ms. Cox: Okay. Mr. Hull: The Department could recommend, “Guests shall be informed to adhere to traffic speeding - speed standards for the surrounding rural area.” I would be hesitant to classify this as a residential being that it is an Agricultural District. Ms. Cox: All right. Mr. Hull: I know residents are habituating and living there, but this technically is a residential - uh, technically a - an agriculture area. So we could - we would amend our new sub condition to read, “Guests shall be informed to adhere to traffic speed standards for the surrounding rural area.” Ms. Cox: Yeah, I am fine with that. You are right. Mr. Hull: Ms. Zeigler, do you have any objections to that amended Condition? Ms. Zeigler: No. Mr. Hull: Okay. Mr. Ho: Kaaina please. 44 Mr. Hull: Just speak. Mr. Ho: I believe - I believe the Commission wants the Applicant to know that violations or anything that or complaints can be filed…how would you get something like that, Kaaina? To keep on record when they renew the Permit with you so that you can, uh - you can…when they apply for the permit you can bring this to their attention. Can you— Mr. Hull: Well we do— Mr. Ho: Would the police give you a copy of the violation or, uh, neighbors’ complaints, matters, filed with you? Mr. Hull: If it was filed yeah. Yeah, Commissioner Ho, it would specifically be neighbor complaints submitted to the Planning Department would be kept in its file of record. And if there are specific complaints pertaining to conditions of approval that have been adopted, say, then we do initiate discussion, if not, and/or an investigation into the possible violation of those conditions. Chair Nogami Streufert: And that is just standard, right? Mr. Ho: Just off a— Mr. Hull: That standard for - for all conditions of approval, correct. Oh, I am sorry. The standard for all Planning Commission level permits that have specific conditions of approval if a complaint has been levied against the property owner, um, for violating those conditions. It is not specific to this particular TVR application. That is all-around how enforcement, uh, works with discretionary Permit. Mr. Laureta: Commissioners, can I add, also, that the Enforcement Section has already conducted two inspections of this property based on complaints and found them to be not actually correct. But in terms of enforcement, our considerations include the issuance of zoning complaints, notice - notice of violation or stiffer. But all the complaints that come to the Planning Department, we follow through on them. Chair Nogami Streufert: Okay. Ms. Cox: Because this seems to be a - a - an issue that is of - of great concern to the neighbors, I would just hope that the - those who are listening to the call realize that that is the appropriate step to take, is to make their concerns known to the - their complaints known to the Planning Department. Mr. Laureta: Yes. Now there is going to be Conditions of approval. Those are the performance standards. Chair Nogami Streufert: Okay. Any other suggestions to the Conditions of approval? 45 Mr. DeGracia: Madam Chair, there is one item I would like to address. It is, um - we have heard a lot about guests getting lost in the area and like I’ve heard, I wouldn’t want anybody showing up on my residence trying to figure out where their TVR is. I am wondering if there is anything we can include to address that and mitigate the effects of having lost, guests show up at surrounding neighbor’s property. Mr. Hull: Yeah, Commissioner DeGracia, that is a good point, and, Mike, please free to correct me if I am wrong. Now should this or dare I say should this Application be approved, an official TVNCU number would be given to this property, which is required to be posted at the property. Through that signage, the site can now at least should be least effectively identifiable from the roadway. Chair Nogami Streufert: Okay. Mr. Hull: Mike. Ms. Apisa: Kaaina, you might clarify that I believe the TVR sign must include the TVR number as well as the 24/7 after-hour emergency number that anybody could call. Mr. Laureta: That is correct. And that signage has to be visible from the roadway. So one of the methodologies that a lot the TVRs have is they take a picture of the sign. They either post it on their website or give it to their guests and say, “This is the sign you’re looking for. This the TVR number you are looking for. Do not stop at any houses that doesn’t have - have this sign.” Chair Nogami Streufert: Is this a shared driveway, Mike? Mr. Laureta: Uh, sort of. Chair Nogami Streufert: Is that where the problem is coming from? Mr. Laureta: They could actually post - and I have thought about it. They could actually post a TVR sign farther up on the - on the common road, but it depends on if they get approval from the neighbor if it’s on someone else’s property. Chair Nogami Streufert: Okay. Ms. Apisa: Another question, does it have its own house number or is parked A, B, C, D? If it had its own house number that, we could goo- that anybody could Google and it is easier than if it is a House Number A, B, C. That does get confusing. People do not put in the A, B, and C. I am just curious if anyone knows if it has its separate house number. Mr. Laureta: I think Joanna will discuss this with her client. Chair Nogami Streufert: How about rather than just say something about the clearer signage as to the appropriate or the correct location of the TVR, something that I— 46 Ms. Apisa: It is clearer. Chair Nogami Streufert: I think that would work for the guests as well as for the neighbors. Ms. Apisa: Clearer sign— Mr. Laureta: Yeah, up to the neighbors to work out with them. Ms. Apisa: Clearer signage as well as specific, uh, driving directions given to the guests in advance to arrival. Mr. Laureta: Yeah. Chair Nogami Streufert: All right. All right. Any other comments, additions that the Commissioners are thinking? Ms. Cox: Just a question since we are trying to address all the concerns that came up this morning. Do you think the noise; the ten o’clock noise situation will also take care of the lights because the lights were another issue? I do not know if there is a way to, you know, tell people they have to turn out their lights and they can arrive at any time, so I do not know if there is any way to do anything about it. But I just want to acknowledge that that was another concern we heard, both lights on the property, but also lights of cars arriving late at night. Ms. Otsuka: Sadly, I think that also included the late-night arrivals when certain vehicles, rental cars, they would lock the door and beeps of the - the cars, car alarms. So that can be disturbing, also, after 10:00 pm. Ms. Cox: I don’t know if we could require guests to arrive at certain times, but I - and I wonder if it couldn’t - if the information given to guests couldn’t say something about, “Please try to arrive prior to 10:00 pm since this a rural neighborhood” or something. I do not know. Ms. Otsuka: I am not sure— Ms. Cox: I mean sympathize— Ms. Otsuka: Some mainland flights arrive - some flights arrive late in the evening. Ms. Cox: Right. Chair Nogami Streufert: And with the co— Ms. Otsuka: And drive there. Chair Nogami Streufert: With the COVID- response of getting out of the airport in a timely manner may also pose an issue right now, at least, so that - I am not sure how you would enforce that if and who to fault. 47 Ms. Cox: Yeah, I do not think we can enforce it. I was just - I guess I am - I would like to believe that people try to be nice to each other. And so just putting it in the - in the notice just to remind people that if possible try to arrive before 10:00. It might not make any…I would like to believe that it would. Ms. Apisa: That really depends on flight arrival times. Mr. Hull: Yeah, if I could just interject. So I think, you know, Mike has presented the Commission with simply the standards conditions of approval. I think this is a very, you know, unfortunate situation in that, as Mr. Bracken explained, there are certain timely requirements permitting-wise where it’s - it’s pretty much an automatic approval. I think this discussion that’s being had about overall impacts, you know, should the Commission act in their - somewhat of the insight of the County Attorney’s Office and the Permit is issued, there still - it is still a Special Permit. And so the Special Permit, there are still criteria expressly for the Special Permit under Kauai, Hawaii Statutes and as well as the Rules and Regulations that require compatibility and not adverse being proffered. So should the Permit be issued, it still is now and more particularly argued incumbent upon the property owner and Applicant to ensure that - that no further - no adverse impacts or further adverse impacts are happening to neighboring properties cause then it is cause for the Planning Commission to bring it back for an order to show cause. Then, in fact, the requirements of a Special Permit, even though this Permit has been granted under automatic approval and waiver of timelines that the requirements of compatibility are still in place. So it is, of course, still incumbent upon that - the property owner to now ensure that adverse impacts are not happening to the surrounding - to the surrounding, environment or properties. Ms. Cox: Thank you, Kaaina. Chair Nogami Streufert: No, that helps. Ms. Cox: Yeah. Chair Nogami Streufert: All right. Okay. If there are no other Conditions that are - that the Commissioners are suggesting, do we have a motion either to accept or to deny this with the Conditions? Ms. Apisa: I will move to approve wait I just - I - I just lost it. It is not here so I can reference it. Chair Nogami Streufert: Special Permit SP-2— Ms. Apisa: SP-2011-35, Robert D. Ferris Trust, with special conditions as noted. Chair Nogami Streufert: Is there a second? Mr. DeGracia: Second. 48 Chair Nogami Streufert: It’s been moved and seconded that we accept or we approve Special Permit SP-2011-35, the Robert D. Ferris Trust, for this TVR with the Conditions outlined previously, the 23 Conditions outlined previously. Any questions? Mr. Chiba: Just for clarification, please. So 22 and 23, that is the 24-hours? Mr. Laureta: Yeah, and— Mr. Chiba: And for the— Chair Nogami Streufert: Okay, great, Mr. Laureta, could you read the 22 and 23 as it stands now with the (inaudible) for the amendment put in there? Mr. Laureta: Okay. “22. The TVR operation shall be made available for the Planning Department inspection upon 24-hour notice to the owner or authorized agent. The inspection shall be for the purpose of verifying with all provisions of the CZO and conditions of approval of this Special Permit. 23. The maximum number of people on the property using the TVR structure during any rental time period shall not exceed twelve (12) at any one time. The number of vehicles on the property at any one time shall not exceed four (4) vehicles.” Ms. Cox: We also made changes to Number 10. Chair Nogami Streufert: We added one special. Ms. Cox: Yeah. Chair Nogami Streufert: About the speed limit. Ms. Cox: Yep. Ms. Zeigler: If I may just add, sorry. One more thing to Number 23, if it’s - “The number of vehicles on the property at any time shall not exceed four (4) vehicles for TVR guests.” For TVR, it says “guests”. Chair Nogami Streufert: Does the Planning Department have any problems with that? Mr. Laureta: None. Because, yeah, I realized that when I was reading it, that the maintenance personnel, if they showed up to either work in the forest or do property work four-plus is - you are going to exceed with the maintenance people already. So four for the TVR guests is not objectionable. Chair Nogami Streufert: Okay. And then 10 now, sub requirement, about speed? Mr. Laureta: Okay. Mr. Hull: Some - for, Madam Chair, would read, “Guest shall (inaudible).” All right. 49 Man: Okay. Who’s doin’ that? Woman: Is that Cox? Mr. Hull: Yeah. I am going to mute everybody. All right. Thank you. So Sections - Condition 10, sub- subsection 4 would read, “Guests shall be informed to adhere to traffic speed standards for the surrounding rural area.” Chair Nogami Streufert: Those are the 23 conditions as amended. Any other clarification before we continue on for the discussion of the vote? We have a motion on the floor to accept the - the - the Special Permit or to approve the Special Permit 2011-35 with the conditions. Let’s have a rollcall vote on this then. Mr. Hull: Roll call. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Mine is a silent vote. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: The motion passes, 6: 1 silent, Madam Chair. Madam Chair, did you want to take a recess at this point or would you continue with the Agenda? 50 Chair Nogami Streufert: If the Commissioner members feel. I’m ready to continue ‘cause we - this - this again, it’s like - it’s like the - if there’s a - if there’s a Commission member who would like to take a break, we can do that. Ms. Otsuka I’m ready to continue. Ms. Cox: Me, too. Chair Nogami Streufert: All right. Then let’s continue on. Continued Agency Hearing Special Management Area Use Permit SMA (U)-2021-1, Class IV Zoning Permit Z-IV- 2021-3, and Use Permit U-2021-2 to allow operation of a retail facility, conduct agriculture tours & host community events, and associated site improvements that include an unimproved parking parking area on parcels situated on the mauka side of Kuhio Highway in Hanalei Town, approx. 900 ft. east of the Kuhio Highway/Aku Road intersection, further identified as 5-5067 Kuhio Highway, Tax Map Keys: (4) 5-5-009:013 & 5-4-003:001 (Por.), and affecting a total area of 13.54 acres = Laird Superfood, Inc. [ Director’s Report received by Commission Clerk 9/22/20, hearing continued 10/13/20, Third Addition to Agenda received 10/13/20.] Mr. Hull: Okay. We’re back to the top of the Agenda, Continued Agency Hearing, Special Management Area Use Permit SMA(U)-2021-1, Class IV Zoning Permit ZIV-2021-3 and Use Permit U-2021-2, to allow operation of a retail facility, conduct agriculture tours and host community events and associated site improvements to include an unimproved parking Area on parcel situated on the mauka side of Kuhio Highway in Hanalei Town Approximately 900 feet of the Kuhio Highway-Aku Road intersection further identified as 5-5067 Kuhio Highway. The Tax Map Key is 5-5-009:013 and 5-4-003:001, a portion of property affecting a total area of 13.54 acres. Laird Superfood, Incorporated. This is technically the Agency portion of this Agenda item. So we have received a withdrawal letter, but if there is anybody that called in that would like to testify on this Agency hearing for Laird Superfoods, please, um, uh, now and state your name for the record. Chair Nogami Streufert: Kaaina, are - are they all muted and do they have to do the star 6? Mr. Hull: I apologize. Yeah. So for those of you have called in - anybody that may - has called in to speak on the Laird Superfoods, um, and would like to testify in this Agency hearing, please unmute your phone star 6 would be the code and speak and state your name. Hearing none, again, we have received a withdrawal letter for this Petition. So the Department would simultaneously recommend closing the Agency hearing and receiving the letter of withdrawal for the record. The Department would recommend closing the agency hearing. 51 Chair Nogami Streufert: I will entertain a motion to close the Agency hearing and to accept or to receive the withdrawal letter. Mr. DeGracia: I move to close the hearing, the, the letter into record. Ms. Cox: I second. Chair Nogami Streufert: It has been moved - it’s been moved and seconded to close the Agency hearing and to (inaudible) letter of with- any discussion? All right. All those in favor - do this is as a voice - a voice, uh - a voice vote. All those in favor say, aye. (Unanimous voice vote). All those opposed? The motion carried 7:0. It’s been received. New Agency Hearing Amendment to Management Area Use Permit SMA (U)-2004-6, Project Development Use Permit PDU-2004-30, and Class IV Zoning Permit Z-IV-2004-35, to allow an increase in the total number of units from 323 t 426 on a parcel situated on the makai side of Po’ipu Road, further identified as the Koloa Resort, 2641 Po’ipu Road, Tax Map Keys: (4) 2-8- 015:025-037, 045-074 & 081, and containing a total area of 22.2 acres = Po’ipu Beach Villas, LLC [Director’s Report received by Commission Clerk 10/27/20.] Mr. Hull: Moving on to - back to the New Agency Hearing, Amendment to Special Management Area Use Permit SMA(U)-2004=6, Project Development Use Permit PDU-2004-30 and Class IV Zoning Permit Z-IV-2004-35, to allow an increase in the total number of units from 323 to 426 on a parcel situation on the makai side of Po’ipū Road, further identified as the Kōloa Landing Resort, 2641 Po-’ipū Road, Tax Map Keys 2-8-015:025 through :037 and :045 through :081, and containing a total area of 22.2 acres. Po’ipū Beach Villas is the Applicant. This is the Agency hearing portion of the Agenda. Is there anybody on here that would like to testify on this Agency hearing? If so, please unmute your phone by pushing star 6 and speak and state your name, please, at this time. Ms. Apisa: First, this is Donna Apisa. I would like to, uh, make the disclosure that, um, my corporation, Ocean Front Sotheby Internationally Realty is the, um, listing brokerage over there. We have been since preconstruction. We do not do any marketing, um, so our involvement, uh, on sales is occasional and not substantial. I just want to make that disclosure. Mr. Hull: Okay. Thank you, Commissioner Apisa. Chair Nogami Streufert: Are you recusing yourself? Or are you or just stating— Ms. Apisa: No, I was making a disclosure. Chair Nogami Streufert: Okay. Ms. Apisa: I have consulted with legal and the required - you know, the question is, um - is occasional and not substantial, and I answered yes to both of those. 52 Chair Nogami Streufert: Got it. Mr. Hull: Okay. Hold on. Well - so a- again, if anybody has called in at this point - if anybody has called in as a member of the public and would like to testify in the Kōloa Landing Agency hearing, please unmute your phone and state your... Ms. Jeri Di Pietro: Hello. Uh, this is Jeri - I am sorry. Go ahead, sir. You first. Mr. Blake: Ted Blake from Kaua’i. I would like to add some testimony. Chair Nogami Streufert: Yes, please. State your name and then you may speak, please. Mr. Ted Blake: My name is Ted Blake. I am concerned about a couple things. I had visited the site with Al Hammitt, just before the Pandemic. And what had concerned me was the burial site that they had wasn’t been cared for. And I understand since - I haven’t been down there since the Pandemic, but I understand since they have been cared. They had some put some care into that, but I haven’t checked lately. The second thing I’m worried about is they already five injection route and are they putting in a sixth to handle the extra bathrooms you have, uh, 140 units now that wo- one-bedrooms have two bathrooms, two-bedrooms have three bathrooms. The - the three-bedrooms have four bathrooms, and that is a lot of effluent comin’ out. And - yeah, there’s more I can’t remember. That is the two concerns I have. Chair Nogami Streufert: Okay. Thank you. Mr. Hull: Thank you, Mr. Blake. If there is anybody else. I - know, Ms. DiPietro, you are attempting to speak. Would you like to speak and provide your testimony at this time? Ms. Di Pietro: Yes, Director Hull, I would. Uh, thank you, Madam Chair and Planning Commissioner and Planning Director Hull. I am Jeri Di Pietro, the president of the Kōloa Community Association. After review of the Kōloa Landing project Application with the Community, um, Association Board, we are opposed to any increase of units from the approved 323 units to 426 units. Our South Shore community believes it is important to retain the experience of a world-class destination and preserve the experience of South Kaua’i for everyone enjoying it. There are too many approved and existing developments already for our area. Constantly pushing for higher numbers each year is not the model for us. Our community has concerns over wastewater treatment, given our experience under high occupancy. More units have already been approved at other sites, which will connect to the HOH area private, uh, sewage treatment system plant, and that growth should be limited. Those of us that reside in private residences and multifamily properties are on cesspools, septic systems, or antiquated private systems. The community feels this must be addressed with a municipal waste system. The effluent from so many systems, commercial and residential, eventually makes its way into our oceans waters of Po-ipū. We are also very concerned about existing and additional injection wells. Our South Shore beaches are overtasked with typical number of visitors, without factoring in future growth. There is very little parking and no shuttle service. What will we do with even more guests? 53 During these last months of no visitors to our area, we see healthier water from less sun screening to less sewage. Our local coastal areas are repairing themselves rapidly. We also see better air quality, peaceful environment, and more abundant wildlife, including rare and endangered species, all reasons to preserve the South Shore area for generations to come. Our community asked questions regarding the Kōloa Landing project. They are - is the project wastewater, is it being sent to the HOA sewage treatment across Po-ipū Road? Are injection wells used now or planned for water disposal? Is there a provision for workfo- workforce housing requirements? Has the County received the development fee per unit built that is sufficient to meet our needs for infrastructure maintenance? And are there any lockouts allowed on the property’s unit? KCA has requested a copy of the original conditions for approval from the Planning Department, which likely addresses some of these queries. We would like to thank you for the time to listen to Kōloa community members’ concerns and take them to heart. Most sincerely, the Kōloa Community Association. Thank you very much. Chair Nogami Streufert: Thank you. Mr. Hull: Is there anyone else who has called in as a member of the public that would like to speak on the Kōloa Landing Application? If so, please unmute your phone by pressing star 6 and state your name. I just want to restate again just ‘cause I know we ran into some technical issues earlier. Again, if anybody would like to testify on the Kōloa a- Landing Application in this Agency hearing, please unmute your phone by pressing star 6, as well as unmuting your cellphone if you’re on a cellphone and state your name, please? Ms. Donna Awanji: Hi. This is Donna Awanji. Mr. Hull: Go ahead, Ms. Awanji. Ms. Awanji: Um, I’m on the board at Po’ipu Kapili, which is right, um, uh - it’s a- adjoining property, um, with Kōloa Landing and where they are planning on being built - building the new building. And I would like to echo the Kōloa Landing Community Association. We are very concerned with the drainage because it would come directly onto our property if it’s not properly disposed of. And obviously we are concerned about the extra traffic and other, um, problems that it will create in the community. Thank you. Chair Nogami Streufert: Thank you for your testimony. Mr. Hull: Again, is there anyone else who has called in that would like to testify in the Kōloa Landing Application, uh, please unmute your cellphone, as well as pressing star 6 and state your name, please. I will make a last call. If anybody who has called in who would like to testify in the Kōloa Landing Application, please unmute your phone and press star 6 and state your name, please. 54 Ms. Kathleen Ford: Hello? Yes. My name is Kathleen Ford and I an owner of a unit at Po’ipo Kapili. Also, uh, directly abutting the, uh, Kōloa Landing project. And, um, I have also concerns about the, uh - the drainage and the runoff with - uh, you have us all a permeable surface over there where it’s just going into the ground and the coverage of pre-existing buildings, such large buildings will, um, make it an impermeable. And I would like to echo the other concerns about, uh, drainage. I also would like to make sure that, uh, the noise and is - is abated during - as best as it can be done during this construction. And I would like to add the Applicant, if there are any plans to do blasting as there were in - during the construction of the earlier - earlier buildings. Um, thank you very much. And I also - wait. I also would like to make sure that the Association at Po’ipo Kapili is notified of any, uh, future hearings and - uh, and - and meetings. Thank you very much. Chair Nogami Streufert: Thank you. Mr. Hull: Again, if anyone would like to testify on the Kōloa Landing Application, um, please unmute your phone, press star 6 and state your name, please. The - uh, the last call here again. If anybody would like to testify in the Agency hearing for Kōloa landing, please unmute your cellphone or landline, press star 6, and state your name, please. Okay. Hearing one, uh, Madam Chair, the Department would recommend closing the Agency hearing. The Department would recommend closing the agency hearing. Chair Nogami Streufert: Could we have a motion to close Agency hearing? Ms. Cox: I move we close the Agency hearing for the Kōloa Landing project. Mr. Ho: Second it. Chair Nogami Streufert: It’s been moved and seconded to close the Agency hearing on the Po’ipū Beach Villas project. The, uh, the (inaudible). If not, let’s do a voice vote on this. All in favor of closing the Agency hearing, “aye”. (Unanimous voice vote). All those opposed? Motion passed. Motion carried 7:0. Chair Streufert announced that the Agency Hearing in closed. Mr. Hull: Okay. Moving into the actual review and discussion. Again, this Amendment to Special Management Area Permit SMA(U)-2004-6, PDU-2004-30, and Class IV Zoning Permit Z-IV-2004-35, to allow an increase in the total number of units from - from 323 to 426 on a parcel situation on the mukai side of Po’ipū Road, further identified as the Kōloa Landing Resort, 2641 Po’ipū Road, uh, Tax Map Keys 2-8-015:025 through :037, :045 through :074 and :081. Uh, the Applicant is again Po’ipū Beach Villas. Dale is our Staff Planner on this, so I’ll turn it over to him for the s- for the Director’s Report. Staff Planner Dale Cua: Good afternoon, Madam Chair and Members of the Planning Commission. My apologies. I am getting my report ready. Okay. At this time, I will go ahead and briefly summarize the Commission’s action and the project itself. So it’s a consideration of 55 the Applicant’s proposal involving an Amendment to SMA Use Permit, Project Development Use Permit, and IV Zoning Permit to allow an increase in the total of units from 323 to 426. Mr. Cua read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Dale Cua: Good that concludes the Department’s Directors Report for findings. Maybe just for your reference in Exhibit A, it contains the 2004 Planning Commission approval letter. I have also attached, Agency requirements, and in the most recent submittals to you it - uh, there are testimony received from the general public concerning the development. Chair Nogami Streufert: Okay. Questions for the Planner? Ms. Cox: Yeah, I have a question. So the original— Chair Nogami Streufert: Okay. Ms. Cox: The original Permit was for 326 units or 323. Mr. Cua: Correct. Ms. Cox: But 306 have already been built. So right now they could build three more buildings, but if we didn’t - don’t approve this the original Permit called for more buildings, so they could build more buildings, but they can’t have any more units, right, than 17 more? Okay. Mr. Cua: Correct. Ms. Cox: Thank you. I just wanted to make sure I was understanding that. Mr. Cua: Okay. Chair Nogami Streufert: When you are - under the request, the reduction in the total number of bedrooms you are increasing the number of units from 323 to 426, but decreasing the number of bedrooms from 765 to 612. Is that because the studios are not considered to have bedrooms? Mr. Cua: It’s actually the Applicant’s preference but, you know, many of these units were intended to have, um, kitchen. So whether they have kitchens or not, you know, it would be the Applicant’s preference. Cause the underlying zoning is, um, actually residential. Chair Nogami Streufert: Right. No, but this is about bedrooms. Mr. Cua: Right. Chair Nogami Streufert: Cause you said that the - going down in term - from 765 will be now down to 612, but you’re having— 56 Mr. Cua: Right. Chair Nogami Streufert: ...more - that does not quite make any sense to me unless it’s - unless it’s the studios, uh, are not considered to be bedrooms, and that would be a hundred and - that would account for 112 of this discrepancy here. Is that how that was - part of that was figured out? Mr. Cua: That - that is how it was calculated, yes. Chair Nogami Streufert: Okay. Though but technically in terms of the total number of people there, we are still looking at the same - eh, the number of people you would have for 765 bedrooms, essentially. Mr. Cua: Yeah. Ms. Cox: Okay. Chair Nogami Streufert: There also something about the number of parking spaces? And going back to the proposal for that Kōloa Landing project description that was submitted, I presume by the developer on March 5, 2020, and in there it states that there’s a total of 508 parking stalls were required to accommodate Phases 1 and 3 and the additional stalls needed would be 202, which there would be 700 parking stalls. These are their numbers, not ours. First of all, are there 508 parking stalls already there and is there space for 710 parking stalls? Mr. Cua: Not as of that— Mr. Hull: Just the - sorry. Go ahead, Dale. Mr. Cua: Oh, no. No. I was going to say I have not verified the actual number that is there, but in my description of the project, understand that as part of the original approval it was approved with two parking structures in mind. Whether they can physically fit the - that 700 parking stalls I guess maybe that’s for the Applicant to answer, but, um, you know, if doesn’t fit from two- dimensional standpoint, they can go for - go with a parking structure. Chair Nogami Streufert: Yeah, but then the - it - apparently there was a total of 508 parking stalls with - that were required to accommodate Phases 1 to 3 and we’ve— Mr. Cua: Yes. Chair Nogami Streufert: ...already completed Phases 1 to 3. So are there 508 parking stalls is the question right now. And if we don’t know, we can always ask the Applicant— Mr. Cua: Yes. Chair Nogami Streufert: ...but I’m just wondering if we are. There were several people who are - who were interested in the wastewater and where there was - and what - into the injection wells 57 or whether it was going to the HOH Utilities. Uh, do - is there anything that would indicate which way that would go on this? Mr. Cua: It is not clear. I am presuming that, uh, the facility is connected to the wastewater plant that is situated across the street. Chair Nogami Streufert: Okay. So that would be another question for the Applicant. Mr. Cua: Yes. Chair Nogami Streufert: And is there a workforce-housing requirement on this? Mr. Cua: This project actually, um, preceded the Ordinance however for these additional units with these additional units; the project would be subject to the housing requirements that is in place today. Mr. Hull: Yes. Chair Nogami Streufert: And— Mr. Hull: I have talked, preliminarily with the Housing Agency. So the Housing Agency will make that assessment as to whether or not - well Dale is absolutely correct, that the original project predated the Housing Ordinances requirements. They ended up - these are additional proposed units. The Housing Agency itself in consultation with the County Attorney’s Office is going to make the determination as to whether or not that Housing Ordinance is applicable. And that will be done should this proposal be approved by the Planning Commission. Just as a reminder again, the Planning Commission reviewed happens at the forefront and then during Building Permit review, the specifics requirements, say if Department of Health or Sanitation, Department of Public Works for Drainage, Public Works has made the - the statement that all drainage shall be retained on-site are all managed through the Building Permit process. You folks are completely within the purview to wanting the Applicant to be able to answer that question during a clarification in your review. But I just want to state that those are things that - that are often addressed, um, after zoning review. Chair Nogami Streufert: Okay. Are there any questions from the other questions for the Planner? If not, if the Applicant is available? Do we have the Applicant? Ms.Avery Youn: Yes, can you hear me? Chair Nogami Streufert: Good morning. State your name. Ms. Youn: Uh, my name is Avery Youn and I am the authorized agent for Kōloa, Landing, formerly known as Po’ipū Villas. Chair Nogami Streufert: And we have (inaudible). All right. You - would you like to - would you like to (inaudible) project. I am having a lot of feedback. 58 Ms. Youn: Yes. I am having difficulty hearing you, also. Chair Nogami Streufert: I will try it again. Would you like to have, present the project? Ms. Youn: Yes. First of all, can you - can you hear me clearly? Chair Nogami Streufert: Yes, I can. Ms. Youn: Okay. My n ame is Avery Youn, and I have been the authorized agent for this project since, uh, 2004. And, uh, I’d like to first reiterate this is an amendment to existing SMA Project Development and Class IV Unit Permit that was approved back then. Initially it was planned for four phrases, of which three, you know, are already constructed. Um, it’s important to remember that, um, it’s zoned R-20 and we’re allowed, based on 24.6 acres of land, we’re allowed 492 units. Uh, Kōloa Landing is requesting a total density of, uh, 426 units, which is 66 units less than what is allowable. And as Dale mentioned, it was approved for 323 units, with a total 765 bedrooms, uh, with 306 units already being built. Uh, this final phase, which will include another 120 units, will be built on the remaining approximately 4 acres, and three, most likely, four-story buildings along with the new spa and fitness building. Now initially the project was approved with 16 one-bedroom units, 173 two-bedrooms, and three-bedrooms there were 124 and there were 4 four-bedroom units. Um, but after 2008 when the market tumbled, the visitor market also changed, so there was a less demand for three- and four-bedroom units and more studios and one-bedroom units and this - uh, were desired by the resort ma- industry and a smaller number of two- and three-bedroom units were proposed. So in Phase 3 this, uh, unit mix was changed whereby studios and one-bedroom tre- increased over the number of two- and three - three- bedroom units. So totally the amendment should be - be allowed the 426 units. There will be 184 studios, 104 one-bedrooms, 76 two-bedrooms, and, uh, 44 three-bedroom units, which is less than once - what was originally projected, and that’s why we have a lesser bedroom count. But the point you brought about, uh, studios being bedrooms, uh, that’s a pretty good point. I think you might be right. So some of these figures that I’ll throw out is just for comparison purposes. First there is a deduction in the total number of buildings. We had 19 originally approved, but only 12 was constructed. And what the benefit of this was it created more open space and, uh, more distance between buildings and, uh, ended up with less building mass with seven few buildings than the original plan contained. Uh, three more would make it four less buildings should the total project be built up. It should be noted— Chair Nogami Streufert: Excuse, excuse me. Ms. Youn: ...total, yes? Chair Nogami Streufert: Could I ask, I see you’ve got your - you’ve got Phase (inaudible) as opposed 12? Ms. Youn: I cannot hear you. Um, can you repeat that question? 59 Chair Nogami Streufert: For Phases 1 to (inaudible), I have that you have (inaudible) built. That— Ms. Youn: For Phases 1 through 3 we have one, two, three, four - eight buildings. Uh, Building 1 is considered two buildings. So then one, two, three, four, five, six. I am sorry. There is ten buildings in Phase 1 to 3. Hello? Chair Nogami Streufert: All right. I will go with... Ms. Youn: Building 1, it has two sections, so it technically is connected, so it actually is nine buildings in Phases 1 through 3. So with the proposed 120 unit in addition, it’s three additional buildings, so there will be a total of 12 should the project be built up. Okay. I’d also like to mention that there’s a reduction in the total number of square footage, you know, from 471,400 to three hun- approximately 350,000, which is 123,800-square feet less. You know, just for comparison purposes, the average three-bedroom house on this island is approximately 1500- square feet, so that’s make the, uh, equivalent to approximately 80, 82 single-family residences. So say it so that you can compare the space difference from what was originally approved to what is being proposed for the - overall for 126 units. So there - the total living area is less than the originally approved 320 units by at least 122,000-square feet. Also there is the reduction in the total number of bedrooms. You know, originally it was 765. Now it’s 612. Uh, if we do a comparison again, uh, the average - the average three-bedroom home, this will be equivalent to about 50 to 51 homes reduction in terms of number of bedrooms. But you brought up a good point about, uh, studios being bedrooms. If that’s the case, then the, uh, bedroom count would definitely increase. Although this increase in density - the request is for an increase in density, however, the project results in an overall reduction in terms of occupant density. I’d like to address some of the Kōloa Neighborhood Association Comments. First of all, wastewater. How, HOH, uh, wa- now thi- this project will be connected to the HOH wastewater plant, but you should know that during the initial development of the property, the Kōloa Landing formerly - Kōloa Landing today, which was - was formerly known as Po’ipū Beach Villas was assessed a fee to accommodate the 323-unit project with the 765 bedrooms. With the change in the unit mix and the reduction in bedrooms, the initial compensated provided for the onset of the project already accommodates, uh, the projected increase in wastewater generation for this phase, and I believe we do have a letter on file from HOH stating that they can accept the effluent generated from this increase. Uh, the second point was injection wells. Injection the site are for storm drainage purposes only, not sewage. The sewage all will go to the HOH facility and all stormwater runoff was designed to be contained within these wells on-site. Should any of these, uh, runoff issues occur to Paipo Kapili as was, uh, heard in a previous testimony, I believe, uh, from an engineering standing that you accommodate any addition runoff from addi- from the expansion to on-site injection wells, just like how it is in the existing, uh, design for wastewater. Not wastewater. For stormwater runoff today. The fourth addition was a development for inta- infrastructure improvements. But again, ah, I - I need that state that initially when Phases 1 and - Phase 1 actually was built, many of the infrastructure improvements had to be burdened the developer. The road improvements were made to Po’ipū Road, Po-ipū Kapili. Uh, there was storage lanes, holdings lanes, left, uh, acceleration and deacceleration lanes both, uh, to access to the site to Pi’ipū Beach, uh, Estates and also Kapili Road. There was also a sewer line extension that were required of them or which they put in. They also had to upgrade the pump station 60 which was down by the Sheraton. Uh, that would - that would be the sewage pump station. And they also do a water line extensions for m- for the Department of Water. Also if you look at the Staff Report, which we had a chance to review earlier, there’s a Condition Number 17 on there, which was put in specifically for an improvement district that was supposed to be for maintenance of, um, traffic improvements in Kōloa-Pi’ipū, Kaua’i, area. If you read - look at, uh, Condition Number 17, I’ll read it. As represented by the Applicant - as represented, the Applicant shall set up a trust account into which $250 shall be deposited upon the initial sale, rental, or occupancy of each unit and shall work with the County Council to create a mechanism to accept the find to be applied to traffic improvements for the intersection with the Kōloa Po’ipū area only.” Again this was initially - a check was initially sent to the County. However, the trust account was never set up, so this fee is still in - in limbo, but I’m sure the Applicant is willing to take care of this fee as required by Condition Number 17. And their fifth concern was dealing with lockouts and the way these, uh, are designed. There are no lockouts, no - nor - it’s not designed for that. There is no second entry or separate entries to, uh, bedrooms, et cetera. Um, in our Application, though, in the package you should have had two letters, one from the Public Works Department on the traffic review. Uh, we did a traffic in - back - analysis during the first couple of phases of this development. And again, from the Public Works Department we were informed that the improvements made to the intersections and the entry into the project already accommodated the - any kind of increase that would have come up with this 120-unit increase. Um, second, there was a letter in your packet from the Department of Water. It was a review of our water-demand requirements, and again the infrastructure that was provided by the Applicant during Phase 1 also covers the water needs for this expansion. I was - I read the comments from the Kōloa Neighborhood Association and I - I share some of their same feelings, you know, that - that they expressed. Uh, in this last few months we did enjoy a slowdown in tourism. There was a lot less traffic, less crowded beaches, no lines at restaurants, and it’s understandable that some residents may oppose this project, especially if it’s proposing an increase in the number of visitor units. But, you know, from past experience, uh, this is just the initial phase. As you know, we started this in 2004 and it was, uh, really 2007 and - or 2008 before the units actually got constructed and ready for occupancy. So if we are here at this phase and it - some people think that there is need for additional, um, tourist facility or visitor units, just be mindful of that this will not occur maybe at least three to four years from now, and who knows, by then there may be more of a demand. But I’d also like to add that there’s, um, multi-family, R-20, or resort - resort zoning on this island has been frozen for at least 30 years. I don’t know of any new expansion or increase in such zoned lands, and because our econo- econo- economy needs to recover, uh, we need to utilize existing zoned lands to allow the Applicant to build up what they’re entitled to, especially if the infrastructure improvements were already provided for in the first phase to accommodate the 323 units, and according to our research, uh, infrastructure that was initially put in can also accommodate the additional 120 units proposed. On - on the other hand, um, there’s some Pandemic issues I’d like to bring up that’s - should be, uh, attributed to Kōloa Landing. They kept 35 percent of its workers employed, even though they had to shut down for a few months. Upon opening, they offered greatly-reduced rates to local residents for stay- staycations s or just so that they could get a chance to get out of being locked up for a while and, uh, enjoy the island while the tourists are not here. They also offered reduced rates to front-line and essential workers and emergency hires, and they now have 60% of their workforce back employed. Also Kōloa Landing a- and has been considered one of the best resorts in the state of Hawaii and definitely on this island of Kaua’i. I believe it was also voted the best resort in the 61 state and Top 10 pools in the United States. Uh, this project sh- actually should be commended and in trying to keep its workers employed and provided respite for Kaua’i residents and essential workers at reduced rates prior to the return of visitors, and even though they had to offer it at a loss of approximately 50% of its revenue until today. In conclusion I - we agree with the Staff Report and we will work with the County Housing Agency on the workforce issue. I was able to get of the comments from the Housing Agency, and it states, uh, “That the project is applicable - the Applicant shall resolve the workforce housing assessment and shall execute a workforce - workforce housing agreement with the Kaua’i County Housing Agency as to the method of meeting the workforce housing requirement pursuant to Chapter 7(A) of the County Code and that the county of co- the County Housing Agency reserves the right to change a determination of the petition or application changes from the above or if the project incorporates or becomes part of a larger residential or resort project, such as provisions of Kaua’i County Code Section 7(A) become applicable.” So the housing issue that was brought up earlier will definitely be addressed. Uh, Mr. Todd Hadley is also - should be on this, um, presentation with me. He can also answer questions that you have relative to drainage or related to blasting and whatever other questions you may have. That concludes my testimony. Are there any questions? Chair Nogami Streufert: Could you address the parking situation? Ms. Youn: Yes (inaudible). Mr. Hull: Avery, I think you are muted, sir. Ms. Youn: Yeah. Yes, I believe there is adequate parking on the site now that was developed in the first few phases, but I’d like Mr. Hadley to address that question since he’s on - since he’s the project manager and he’s much more familiar with the details on the parking than I am. Chair Nogami Streufert: All right. Todd? Ms. Youn: But there is - we have no issues with the parking requirement that the Department wants to put on us. We will provide however - however many parking stalls is required, and there will be room for overflow parking. That was an issue that was put on the original Application’s approval, that we provide overflow grassed areas for parking should more parking be needed for special events. The same thing can happen in, uh, Phase 4 in development. There is adequate to accommodate the parking requirements. Chair Nogami Streufert: Mr. Hadley, I think you are— Mr. Todd Hadley: Okay. Todd Hadley. I am the president of Kōloa Landing. And let me clarify a few points from, uh - that - that came up, a few questions. Uh, specific to parking, right now we have built out 530 parking stalls. To meet the requirements, we need to build a hu- another 180 parking stalls, which - which we intend to do. We actually with - with this phase will end up with 710 parking stalls, so we have met - we can meet the requirement there within the open space. There was a question about the studio, whether those were counted as bedrooms, and I would like to confirm that those were counted as bedrooms. In the matrix those - those are part of the bedroom count, so it is a - a net reduction in number of bedrooms. There was a question 62 about blasting. So when we did the initial grading for the site back in 2007-2008 we did, um - we did all the infrastructure for the project, which included all the blasting, all the, uh, utility lines, uh, other than specific building laterals. So, um, there are 41 dry wells, uh, on the project, and that includes Phase 4. All of the drainage and different, um, infrastructure has already been constructed there, so we do not anticipate having to do any additional blasting for the Phase 4 improvements. All of the storm water flows are self-contained. We have heard the concern for Po’ipū Kapili and I’ve talked specifically in the past with their resident manager about that. We - we feel there are no issues given the way - given the engineering that has been done. Um, and the other questions with regards to our connection to HOH, that connection has been in place for some time. Our, uh, total flows, we had - actually anticipate based on the original will be, uh, slightly less than what was anticipated. Uh, so they are more than capable of handling that and anticipate doing so. Um, I think that addresses the notes and questions that, uh - that I had. Of course, on the - on that housing side, um, as Avery stated, we agree with the Staff Report. We would look forward to working with the Housing Agency. We - we are trying to finish this project. This is an amendment to an existing, uh, SMA and we anticipate finishing this and we will - uh, we will abide by whatever is determined we need to do there. Is there any other additional questions that I can answer on behalf of our company? Ms. Cox: Yes, I have a question. I am wondering about where the nearest bus stop is or if you’re go- planning to have any kind of shuttle available because that’s a lot of people, and not only the people who are the guests, but also the workers that will be working in the additional, uh - I mean, it will be a large development when it’s done. So what about the bus transportation or other multi-mobile transportation opportunities? Mr. Hadley: Yeah, that is a great question. It has, um - as stated before, eh, in the initial phase we had to do road widening and road improvements, both Po’ipū and Kapili Roads. I would leave that question to the County to determine where the bus stops are. I believe there is one, it looks, right across from us in the adjacent to Kōloa Po’ipū, um - Po’ipū Beach Estates neighborhood. That would be directly across the street. Ms. Cox: Thank you. Mr. Hull: Commissioner Cox, I can say that this specific Application was referred to our Department of Transportation, which is essentially our bus agency. And they had no comment on any particular requirements that they might impose. If you would like further follow-up with the Agency concerning your inquiry, we can do if you feel fit to. Ms. Cox: Yeah, actually I would, uh, only because I’m thinking that as we move forward, we’re trying very hard to not increase. I mean, when I had 700-and-something parking spaces, that is a lot of traffic on the road, uh, and I know we are trying not only for that, but also for the climate crisis, to reduce, uh, personal auto traffic. And so yeah, I would love to know what the - and what the current situation is and what plans there is. Thank you. Chair Nogami Streufert: I am muting myself because I think we are having some feedback glicks all over the place, so I may be a little slower in getting back to this. Are there any other questions from the Commissioners to the Applicant? The - the diagrams that we have herewhich 63 ones are accurate transcripts? I have Exhibit (inaudible). I have got another one that - 14 buildings. I am not sure with all the parking that— Ms. Apisa: This is Donna. I think this is accurate. The parking is put to handle special events. I know they have special events there, and that requires additional parking. Is that correct? Mr. Hull: If I could inject one quick one before Todd answers or Avery. I believe, Avery, the feedback is coming from your line. I think what the problem may be, Avery, is that you are perhaps listening in on the computer, as well as a phone. One of those I think you have to mute if you have two systems. But Avery, that’s why I muted because the feedback seems to be coming from you. But I don’t know if Todd can answer that question. Mr. Hadley: Yeah, I would be happy to answer that question. So in terms of - let me answer the question about the plans, first of all. The plans in the packet, you have an original plan that shows what was originally approved with the 19 buildings. It’s labeled “Original Plan”. The next one it shows what’s current built and then the third one gives - gives the exhibit for what it’s proposed to be built. So if wha- it’s what was originally planned with the original 19, which was then amended to what is currently built, and then the final one is what’s being proposed. Um, in terms of the - the parking question, um, like I mentioned, we have - we have currently 530 stalls built now. We will build up to 710. And that leaves us plenty to meet the - the Code minimums plus additional for the, uh, event parking that Ms. Apisa mentioned. Chair Nogami Streufert: Are there any other questions? If not, are we ready to hear the rest of the Director’s Report? Is Dale there? Could we get the rest of the - rest of the Director’s Report, please? Mr. Cua: Sure, Madam Chair. Avoiding the, um, evaluation. I am just going to move on to the recommendation, if you are okay with that. Chair Nogami Streufert: Just one more question that Ted brought. Where are you? How is being (inaudible) Mr. Blake came up, with, uh - had said that the burial sites were not well taken of, but they were just taken of recently? How are you anticipating taking care of that in the future, a sustainable plan? Mr. Cua: Yes, that is a question for the Applicant. Chair Nogami Streufert: Yeah, right. Fine, yeah. Yeah. Mr. Hadley: I can answer that question. Uh, during COVID, there was some (inaudible) and so they had to go back in (inaudible), remains in - cared for. There is a perimeter that was called out by, um, our Preservation Plan that’s - that’s maintained and that will not happen again. So all of the preservation sites that we maintain are done on a regular basis and Teddy - uh, Teddy must have come during a time when that was not maintained well during COVID. Chair Nogami Streufert: Okay. Dale, would you continue with the Director’s Report, please? 64 Mr. Cua: Sure. Madam Chair, did you want me to continue from the evaluation do I need to fast forward to the recommendation? Chair Nogami Streufert: For the recommendations, could you do - could you just do the changes that are being proposed? Mr. Cua: Sure. Absolutely. Okay. Moving on to the recommendation, “It is recommended that the Planning Commission approve the proposed development involving the addition of 300 - the addition of 103 units and the construction of a hospitality/fitness center. For clarification purposes, the conditions of Special Management Area Use Permit SMA(U)-2004-6, Project Development Use Permit PDU-2004-30, and Class IV Zoning Permit Z-IV-2004-34 are - 2004- 35 are being reiterated with the following amendments.” So I’m just gonna identify the, uh, amendments. Um, condition nu- there’s a new Condition Number 1. “The proposed improvements shall be constructed as represented in the Application. Any changes to such structures and/or facilities shall be reviewed by the Planning Department to determine whether Planning Commission review and approval is warranted.” The moving on to Condition Number 22, “The Application shall be advised that the Planning Director may increase parking requirements when particular uses or locations occur in areas where unusual traffic congestion or conditions exist or are projected. 23. The Applicant is reminded that during the construction of the project, and off - on-site parking area shall be designated for construction workers. Workers are discouraged from parking along Po’ipū Road and Ka- Kapili road right-of way.” Uh, Condition Number 24, “The development shall be evaluated pursuant to the applicability of Section 8-27 of the Kaua’i County Code relating to the Shoreline Ordinance. Off-shoreline setback determination may be necessary prior to Building Permit Application.” Condition Number 25, “Prior to Building Permit review and action, the Applicant shall meet any requirements established by the Housing Agency. Documentation shall be submitted to the Planning Department by the Applicant demonstrating compliance with the Housing Agency’s Rules and Requirements.” And that concludes the Departments recommendation for this project. Chair Nogami Streufert: Oh. Mr. Youn: Madam Chair may - can I make a comment? Chair Nogami Streufert: Please. Mr. Youn: Relative to the place for information from the County Transportation Division relative to bus stops, could we have a condition should Transportation Division require any improvements relative to the bus stop, that we resolved it with that Agency, that it can be added on? Rather than deferring to our next meeting. Chair Nogami Streufert: Planning Department, have, uh— Mr. Cua: Staff has no objection to this additional condition. Just for the record added a condition or the condition would be Condition Number 26. It would read, “The Applicant shall consult with the County Transportation Agency to determine whether a bus stop is necessary to accommodate the additional units for the project.” 65 Chair Nogami Streufert: Looking at all, Exhibit F, (inaudible) plan include all buildings that are proposed as all of the buildings that have already been completed and the parking areas? Mr. Cua: Yes, that is correct. Chair Nogami Streufert: If you were to do this and you where also then required to have work- workforce housing, where would you put that? Mr. Hadley: Well I think the first step and we have to have discussion with the Housing Agency to see what the requirement is. Then we have - we have, um - we would not have a land here to do it. We do have other parcels, so we, ah, do have other options, um, (inaudible). Mr. Hull: I will also, add, too, Madam Chair, that the requirement for housing should - should the Agency determine that it is applicable that can be on-site. It can also be done off-site. As well as then it can also be via in payment to the Housing Agency. Chair Nogami Streufert: Okay, because it - if that Exhibit F is the accurate one, then the total parking spaces on here is 154. It is not 710. Mr. Hadley: What you’re - what you’re seeing the 154 on the site plan is the additional parking that is specific to phase four (4) that was added. So you would add that to the existing parking and the calculations get you to approximate 700 stalls. Chair Nogami Streufert: Okay. So the additional stalls that are needed are to 204 as opposed to 154, according to your document on Page 5 and your diagram. And I’m addressing that because there is a concern about traffic and about parking in that area that could come from many residents of, uh, Po’ipū. Mr. Hadley: Yeah. I - we appreciate that. I - I think that we need to look at that closer. I know we have at least 530 stalls constructed right now, so we are talking about a - a difference of maybe— Chair Nogami Streufert: 180. Mr. Hadley: 20 stalls off - off of what’s shown here. And I think that was probably why the condition was put in the, uh, the recommendations for the - for the, um, Planning Department to work with us to make sure there’s adequate. Chair Nogami Streufert: Okay. Okay. We have a motion on the floor, I think, to accept this or do we? I am not sure how far along we are at this point. Do we have a motion on the floor? Dale or Kaaina? Mr. Hull: Oh, sorry. Apologies and no there is no motion on the floor at this time. Chair Nogami Streufert: All right. 66 Mr. Hull: Dale has just read his recommendation and then I believe it, was, um, if - if - we would welcome the County of Kaua’i Transportation Agency amendment as a friendly amendment and incorporate into our recommendation conditions of approval, but I don’t believe a motion is on the floor. Chair Nogami Streufert: Would you go through the - uh, what the options are at this point, Kaaina? Mr. Hull: The options are to take action today and the action could include approving, approving as recommended with the Conditions of Approval as represented by the Planning Department, approving with additional Conditions of Approval or modified Conditions of Approval, or deny the Application. Or, lastly, if no action is taken today, a deferral can happen should a Commissioner or Commissioners want additional time and additional information. Chair Nogami Streufert: Okay. Okay. So Commissioners we have before us to approve as is, to approve with current conditions, to approve with modifications, and then we can add or we can modify the conditions, to deny or – or (inaudible). Mr. Hull: Commission Apisa, I believe you are muted. Ms. Apsia: I said I was hoping somebody else would speak up, but to move this along, I would move that we approve with the conditions as has been modified here today. Mr. Hull: A second would need a further discussion. Otherwise it is a fail. Mr. Ho: I second that. Ms. Chiba: I second. Mr. Ho: Kaaina. Mr. Hull: Okay. Chair Nogami Streufert: It’s been moved and seconded with the modifications as stated. Any discussion? Okay. If not, do the - are we ready for a vote? Okay. We’ll let us do a rollcall vote on this. If not more discussion, then we will go to a vote. If there is more to be had, then let us have the discussion now. Then let us do a rollcall vote. Mr. Hull: Rollcall, Madam Chair. Motion to the floor as amended with modified Conditions of Approval. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. 67 Mr. Hull: Commissioner Cox? Ms. Cox: No. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Commissioner Streufert? Chair Nogami Streufert: No. Mr. Hull: Motion passes 5:2, Madam Chair. New Agency Hearing Class IV Zoning Permit Z-IV-2021-5, Use Permit U-2021-4, and Special Permit SP 2021- 1, to allow an operation that involves construction of a retail facility & utility building, conduct agriculture tours & host community events, and associated site improvements that include a graveled parking area on parcels situated on the mauka side of Koloa Road in Koloa, approx. 1,100 ft. east of the Koloa Road/Mana Hema Place intersection, further identified as Oma’o Ranch, Tax Map Key: (4) 2-7-003:005 (Por.) & 24, and affecting a total area approx. 4 acres of a larger parcel = Oma’o Ranch Lands, LLC. [Director’s Report received by Commission Clerk 10/27/20.] Mr. Hull: Madam Chair. Moving on to the next Agency item, sorry. New Agency Hearing for a Class IV Zoning Permit Z-14-2021-5, Use Permit 2021-4, and Special Permit SP-2021-1, to allow and operate that involves construction of a retail facility and utility building to conduct agriculture tours and host community events and associated site improvements that include a graveled parking area on parcels situated on the mauka side of Kōloa Road in Kōloa, approximately 1100 feet east of the Kōloa Road-Mānā Hema Place and - intersection, further identified as ‘Ōma’o Ranch, Tax Map Keys 2-7-003:004 and :024, and affecting a total area of approximately 4 acres of a larger parcel. The Applicant is ‘Ōma’o Ranch Lands LLC. This is the Agency hearing. So for those members of the public who have called in and would like to testify on the ‘Ōma’o Ranch Lands’ Application, please unmute your phone, press star 6 and state your name. 68 Ms. Leina’ala Jardin: Uh, this is Leina’ala Jardin. Mr. Hull: Hello, ma’am Ms. Jardin: Aloha. This is Leina’ala Jardin. Mr. Hull: Oh, good ahead, Kumu. Ms. Jardin: Aloha. Aloha, Commissioners. Mahalo for your time and outstanding service. I know this has been a long day for all of you. I know exactly how you feel so I’ll make this really quick. Um, I - as I am Kumu Hula Leina’ala Pavao Jardin. And I wish to share my full support for the ‘Ōma’o Ranch Land proposed project. I wish to speak up today because, as we all know, COVID has changed our lives, and it has kept families apart and kept visitors from experiencing our beautiful island. Soon, I’m being very optimistic here -- COVID will be etched in our history and it will be then that we will desperately need healing. And how do we heal? With projects like this. I call this development a humble, humble development that is our tied to our Aina and it promotes a better understanding and respect of our island and our lifestyle. For our Halau as a nonprofit, we look forward to sharing our culture at the ‘Ōma’o Ranch Pavilion. It is a like a backyard where we will be able to gather and celebrate life and celebrate Kaua’i with an entirely new appreciate. The Kanashiro Ohana has graciously our support our Halau and numerous organizations through the years, and I believe, sincerely believe, it is their intention that their property become a hub of learning and employing - and enjoyment for both Kamaina and Malahini. Mahalo nui again, for your time and I mahalo you all in advance for allowing this project to proceed, and it is your forward thinking and care for this island that it’s so very much appreciated. Mahalo nui. Chair Nogami Streufert: Thank you. Mr. Hull: Again, this is the Agency Hearing for the ‘Ōma’o Ranch Land Application. So any member of the public that has called in that would like to testify, please press - please unmute your phone and press star 6 and state your name. Ms. Jeri Di Pietro: Aloha. I’m Jeri Di Pietro, the President of Kōloa Community Association. Aloha again, Madam Chair, Planning Commissioner, and Planning Director Hull. Our board after, um, going through the documents early, we welcome the opportunity for a South Shore food hub, locally grown and value-added products. Um, the need for compatible activities in support of local agriculture is also very apparent. Um, as Kumu has stated, especially, in this Pandemic situation. Uh, we - we wish to grow towards more food security. We see this large endeavor by ‘Ōma’o Ranch Land as meeting growing need and a beginning to incorporate what has been learned through this time of the Pandemic. We are also aware that the Use Permit will run with the land and must meet guidelines in keeping with our community desire. I do want to voice our concerns about the large project that is on Kōloa Road as it is our throughfare to 69 Kaumualii and the west side. Our top concern is safety for ingress and egress between Kōloa Road, um, and to the project site. We raise this concern out of an abundance of caution and safety. We would like to see turn lanes and holding lanes both eastbound and westbound since the speed limit of 35 miles per hour, uh, is that area and drivers are not anticipating any stopped vehicles to turn. Um, I actually experienced this last week at the entrance to the, uh, hemp operation where there’s a slight turn in the road going in eastb- uh, yes, eastbound, and a truck was stopped to make a left-hand turn, and, um, it was unanticipated by myself without any, uh, place to pass on the right-hand side. So we, uh, with the work in progress we would very much, um, insist on seeing these turning and holding lines. In addition, the Kōloa Community Association also supports the concerns by residential landowners in the area which we may not be directly aware of yet impacts of this project. Our community will have concerns of them from traffic, noise, light pollution, erosion. But chief of the neighbors of those in the valley, resolution of these concerns may include these and other issues. Traffic control engineering, the limits of one per week for special and private events over a specified occupancy, hours of operation no later than 10:00 pm for lights out, and hours for amplified music be limited to 9:30 pm. We’d like to see limitation on the number of gasoline-powered UTV or other vehicles operating at the same time in order to control noise and pollution. We’re have some concern about erosion mitigation written procedures for UTV and other vehicular traffic on the unpaved cane type pathways to protect the stream below, and we’d like to see no operations on Sundays. Since our islands have been in shutdown for approximately six months, we recognize the peaceful, calm South Shore family the time and space that families have enjoyed. And we acknowledge as a world-class visitor destination Kōloa and Pa-piū will again have new visitors. This is a time to restack and design a new experience to meet all needs. We believe that by establishing Sunday as a no-commercial activity, a holiday, it will give our community a neighborhood - a day per week to enjoy. We hope to carry this idea forward to all projects such as ATV tours, helicopter and boat tours, and other tours and businesses as time goes on. A restorative day of rest from high- volume commercial use for our community, our land, and see. It’s so very, very important. Considering the impact, size, and uses of this project, uh, from ag, we request the public Agency— Mr. Hull: Four minutes now. Ms. Di Pietro: ...to remain - okay. Almost done. Um, we would press the public Agency hearing to remain open for other South Shore community concerns to be addressed. Since the beginning of the Pandemic and limits to gathering and the use of community neighborhood centers, communication has been a challenge, and we feel that additional notification from the Kōloa Community Association of the planned— Mr. Hull: Time is up. Mr. DiPetro: ...project should be circulated, uh, as a courtesy to our community. Thank you very much. Mahalo. 70 Mr. Hull: Okay. Thank you, Jeri. For those, know again we are still in the Agency hearing, so for those members of the public that have called in, um, and would like to testify on the ‘Ōma’o Ranch Land’s Application, please unmute your phone, press star 6, and state your name. Okay. I’ll make a last call. For those members of the public that have called in and would like to testify in the ‘Ōma’o Ranch Land’s Application, please unmute your phone, press star 6, and state your name. Okay. Recognizing that there is some technical issues, I’ll make one final last call. Any individuals that have called in to testify on the Agency hearing for ‘Ōma’o Ranch Lands, please unmute your phone, press star 6, and state your name. Ms. Bevin Evans: Hello? Mr. Hull: Hello, ma’am. Go ahead. Mr. Evans: Hello? Mr. Hull: Hello. If you’re calling to testify about ‘Ōma’o Ranch Lands, please state your— Ms. Evans: Yes. Mr. Hull: ...name? Ms. Evans: Yes. Thank you. I was having some technical difficulties. Uh, my name is Bevin Parker Evans. I’m here with my husband, Richard Evans, and we live in ‘Ōma’o in a property that’s adjacent to the development. And we only recently discovered that this, uh, development was happening, so we contacted the developer and went for a tour, and I’d like to echo with Kumu Jardin said, and also what Jeri Di Pietro said, that the property - um, the development is an amazing project in agriculture and I basically support, um, most ag tours and agricultural development and economic, um, diversity on the Island. I do not want to say at this time that there’s been several neighbors that have only recently also heard of this and, um, I think we need a little bit more time to put our testimony in. I have some concerns about the - the traffic on Kōloa Road, as Jeri mentioned, and I also have, um, a few concerns about some of the mission and - and where the project is going and - and what the limitations and expansions may be in the future. So I just would like to say today may I please submit my written testimony and can any decisions be deferred ‘til later? Chair Nogami Streufert: Thank you thank you for your input and we’ll obviously - obviously we hear everything that people are saying. Mr. Hull: Again, we’re on the Agency hearing for ‘Ōma’o Ranch and so if anybody - a member of the public has called to testify on ‘Ōma’o Ranch Lands, please do so by unmuting your phone, pressing star 6 and stating your name. Mr. Ted Blake: Hello. Can you hear me? Mr. Hull: Go ahead, sir. 71 Mr. Blake: This is Ted Blake. I just wanted to add some comments. The man that - the man that the Use permitted have been applied for has been a farm man for over a century. The Kanashiro family has been there for over a century. Everybody that has come in and - and now has complaints about it have bought farmland. And, yeah, the question on the lights, when I checked with Darryl, I said, “Do your lights run all night?” He said, “No, we turn them on at 12:00 and shut ‘em off 6:00” since they’re on meters. And, uh, I said, “What about your parking?” He said, “We have big improved parking. It’s going to be gravel that can handle 60 cars” cause they do have a - they do have a lab there and they’ll have - they’ll probably have - I don’t know if he put it in for it yet, but they’ll probably have a commercial store there for the product that they produce. And as far as the150 parking stalls, it’s going to be done in a pasture. More than likely - what I’ve seen when I’ve passed there, most of the cars are parked along Kōloa Road, which doesn’t affect anybody on the other side of the valley. And, uh, it’s a place you have, you can gather a large - more than - more than it - they’ll handle the twice amount that Kōloa - Kōloa Neighborhood Center can, but the only other community place that we have in Kōloa to do something unless you rent something from - from the hotels, rent a ballroom or try and get out early and get a - get enough space at the pavilion. But there’s also limitation on the count of tables on park that you - that may not go with the celebration you’re having. And the fact - the fact that I’ve seen - I’ve seenweddings, wedding parties. I’ve seen graduation parties. I’ve seen birthday parties. And I haven’t - I don’t - I’ve never been on the other side of the valley to hear noise, but, you know, I don’t think it’s too much of a problem for them to close off the noise by ten o’clock, which is what most people in neighborhoods consider the time - the time before they call the cops on you. But I think this is something that, you know, I - it goes with the agricultural, um - it goes with the agricultural zoning that they have right now. And I can’t see - you know, it’s the same thing that happened that happened Mahaulepu. The - it’s important ag land. It passed everything, but in the County they should do a - they should do a, they should go for an environmental statement, and it came back and of course the - the naysayers jumped on that and said, “This is what’s happening.” A lot of it was - was not - was not true. And I’ll stand up here to anybody in Kōloa that wants to have a debate with me on that. You know, they talk about the effluent going - coming from the pastures and getting down into the ocean, but they don’t what - how the current works. You know, the currents go down to Po’ipu. The currents go to Nawiliwil. And it’s the same thing like, you know, it - it’s coming off like the, um - I just - I support - I support - I support what Darryl’s all doing’ out there at ‘Ōma’o Ranch. Thank you. Mr. Hull: Thank you, Mr. Blake. Again, this is the Agency hearing section. So for those who would like to testify, please - I’m sorry. We are getting feedback of a dog barking, so if anybody is at a house that has a barking dog, please mute your phones. Okay. So, um, if - for those of you that have - members of the public that have called in that would like to testify on ‘Ōma’o Ranch Lands now is the time to do so. Please if you want to testify on ‘Ōma’o Ranch Lands, please unmute your phone, press star 6, and state your name. We will do a second call. For those who would like to testify on ‘Ōma’o Ranch Lands, please unmute your phone, press star 6, and state your name. Then okay. A final call for ‘Ōma’o Ranch Lands’ Applications, those members of the public that have called in to this meeting, if you would like to testify on ‘Ōma’o Ranch Lands, please unmute your phone, press star 6, and state your name. Hearing no further testimony, Madam Chair, the Department would recommend closing the Agency hearing. Chair Nogami Streufert: If there are any motion to close the hearing, Agency hearing? 72 Ms. Cox: Yes, I move we close the Agency hearing. Chair Nogami Streufert: Is there a second? Mr. Ho: Seconded. Chair Nogami Streufert: It’s been moved and seconded to close the agency hearing on ‘Ōma’o Ranch Lands LLC. Any discussion? If not, we are ready for the vote. All those in favor, aye. (Unanimous voice vote). Any opposed? (None) Motion carried 7:0. Agency Hearing is closed. Chair Streufert announced that the Agency Hearing in closed Mr. Hull: Moving into the same item, Class IV Zoning Permit Z-IV-2021-5, Use Permit 2021-4, and Special Permit SP-2021-1 to allow an operation that involves construction of a retail facility and utility building, conduct agriculture tours, and host community events, and associated site improvements - I’m going to mute. Um, associated site improvements that include a graveled parking area on parcels situated on the mauka side of Kōloa Road in Kōloa, further identified as ‘Ōma’o Ranch, Tax Map Keys 2-7-003:005 and :024, and affecting a total area of approximate 4 acres of a larger parcel. Again, the Applicant is ‘Ōma’o Ranch Lands, LLC. I will turn it over to Dale, who has the Director’s Report for this Agenda Item, as well. Staff Planner Dale Cua: Thank you. Um, good afternoon, Madam Chair and members of the Planning Commission. Again, I am going to summarize the Director’s Report. Mr. Cua read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Cua: The Agency comments are attached in Exhibit “A” of the Director’s Report. Subsequent to the Report, there has been several Supplemental Reports transmitted to you folks, including, um, Agency comments, as well as public testimony. So at this time, that concludes our Director’s Report. Chair Nogami Streufert: Are there any questions (inaudible)? In your Report, uh, you did not see anything about the tours or the hours of operation or the events. Does that need to be in the Report or do we go based upon the Application alone? Mr. Cua: What was represented in the Application, yes? Chair Nogami Streufert: The (inaudible) tours of no more than 20 people per seven days a week. Uh, the retail, they did not anticipate more than 100 people per day on Monday through Saturday, and they are open from 8:00 through 6:00. 8:00 to 6:00. I am sorry. Then the events would be less than or equal to 350 people, and that could be any time, uh, seven days a week from 12:00 to 10:30. That’s - that was in the computation. So if that’s— Mr. Cua: Correct. 73 Chair Nogami Streufert: ...in the y- does that mean that in the Application is as stated and there will be no change with that? Cause I think I heard— Mr. Cua: Right. Chair Nogami Streufert: ...comments of concerns about the hours and the days of operation. Okay. Mr. Hull: Madam Chair that - just to clarify Dale’s comments. Yes, the Department is recommending that, uh, approval with, um - as represented by the Application and to hold those representations as essentially the conditions of approval. The Department is definitely aware of the concerns, particularly as they pertain to, say, the events. Um, well I’ll say that the traffic improvements, we’re still awaiting Public Works, and that is done as part of the Public Works review of the Building Permit should the zoning approval happened, as I kind of stated in an earlier application, that they’ll make that assessment based off of what you folks approve, if you approve anything at all. And then for the events, the - the Department is aware of these concerns, um, and I again would state that, you know, in initial discussions with the Applicant, um, the ‘Ōma’o Ranch Lands’ area is a known events facility. It’s being used right now. It’s not being done commercially because Mr. Kaneshiro and his family are essentially allowing family, friends, and, quite honestly, the community that requested to freely use his site, which is an outright permitted use once there isn’t a commercial aspect to it. So, you know, in recognizing that the Applicant may want to go to a commercial aspect the Department did view that as, well then this is a way that it can be reeled into, the hours of operation, and what they’re proposing as 10:30 is significantly reduced from what, quite honestly, Mr. Kaneshiro has been freely letting the community do there out of the graces of his own good will. So the proposal that he’s restricting himself to now an hours of operation of 10:30 we see as a meaningful gesture of compromise to - to bring the hours of operation down with - with this commercial aspect added to it. Chair Nogami Streufert: Are there any questions for Planner? If not, is the Applicant available? Mr. Hull: Mike, you are on mute, Mike. Mr. Michael Belles: Can you hear me now? Mr. Hull: We can. Chair Nogami Streufert: Yes. Mr. Belles: Good afternoon. Chair Nogami Streufert: Yes. Mr. Belles: Madam Chair, Members of the Planning Commission. For the record, my name is Michael Belles, representing ‘Ōma’o Ranch Lands LLC. And, uh, with me today and you can see behind me and to my right, you have, uh, Daryl Kaneshiro, one of the Applicants and the 74 principles of the project. Sitting to his left is Lindsey Bosshard. She’s also one of the, uh, principles in the project. And sitting to her left is my partner, Max Graham, primarily responsible for the crafting of this Application. I would like to extend a great deal of gratitude to the Planning Department staff, the Planning Director, um, Mr. Kaaina Hull, as well as Staff Planner Dale Kua. We met together with them out at the property to discuss the project, you know, after the last couple of months. We have worked closely with the Department, and with their input and recommendations I believe we have been able to craft, uh, the best possible Application that reflects the, uh, desires of the Applicant, uh, to pose the least possible impacts on neighboring owners, uh, and people who live in the immediate area and clearly want to minimize the impacts wherever possible and yet provide for a viable operation of the land. I think it’s important to distinguish based some of the public testimony that’s been submitted what is pre-existing on the property. What we have pre-existing on the property and are not the subject of the Class IV Zoning Permit, the Use Permit, and the Special Use Permit which we’re seeking today, are the sheep, cattle, and horse grazing that occur on the property, the aquaponics projects that serves the lettuce farm, the hemp farm, both the growing of the hemp product, as well as the processing and production of hemp products, and finally, the solar farm. These are all sites and portions of the project that have been developed previously with the appropriate permits, none requiring action by the Planning Commission of the County of Kaua’i. And as was stated in the Application and mentioned, uh, by Mr. Kua, um, of the 104 acres represented in the entire campus, I’ll call it for lack of a better term, our project area, uh, only 4 acres are being set aside for the agricultural retail, for the educational special events, family, um, operations, as well as the parking. That is occurring on 4 acres. In addition, there are approximately 1.64 miles of existing farm roads throughout the property which we will be utilizing UTVs to conduct the various tours on the property. And the Chair is correct when she recited the times, uh, for operations of tours, um, the, uh, times that the agricultural retail building will be open and the times for operations within the, uh, dual-purpose vehicle storage, equipment storage, and special events, uh, pavilion that exists on the property. In listening to the comments by the Kōloa Community Association and others, we are sensitive to the issue of traffic and we commit to working closely with the Department of Public Works, uh, to come up with the appropriate, uh, storage lane or right-turn lane into the property, so as not to create, safety hazards or create traffic problems. In addition, for any special events, we will have security that will assist with traffic control to avoid any unfortunate accidents or problems with the traffic that would be generated. And it is stated in the Report and is mentioned by Mr. Kua, there are two parking sites located within the 4 acres. One is an improved parking area that will accommodate 60 cars and the other will be for 150, and those will be improved parcel that will be - it could be overflow for the larger events that would be occurring, uh, primarily at the special events, uh, pavilion and the storage of and vehicle storage/pavilion. It is clear now with that we’ve all experienced and will probably experience for some time, COVID. We do need to do what I heard when I first started with the County of Kaua’i when I graduated from law school in 1975, to have more diversification in our economy. Clearly after the closing of pineapple and sugarcane in the Count of Kaua’i, we were primarily left with Visitor Destination Areas and tourism. We also have Barking Sands in, in Kekaha, but beyond that there are no primarily employment opportunities on Kaua’i that are significant. This project currently employs approximately 20 full-time employees, and without being presumptuous, if the Commission approves what we are applying for today, it would basically be providing, uh, permanent employment for approximately another 20 employees, and that doesn’t really even include part-time caterers and people that would be participating in events that would 75 occur in the pavilion. Beyond that I really do not want to be redundant and harp on issues that have all been - already been properly raised by the Planning Department staff in their evaluation of our Application. And I would like to say that we are sensitive to the comments being made by all the public witnesses, those that provided unqualified support for the project and those who provided qualified support by the project. But we believe that in continuing to work with the County of Kaua’i we can respond to any impacts that may be created in a way that doesn’t have adverse impacts on our neighbors. And I think it’s also important to point out that, uh, early this morning, uh, I believe you all received copies of a Petition signed by approximately 125 residents immediately occupying lands around this project area that I’ll call our neighbors, or the hoalauna, and they totally support the project. Nothing can be done without creating some impacts. We believe that we have done our level best to mitigate wherever reasonable impacts to our neighbors and yet still allow for a viable and economically, uh, sustainable operation on the property, recognizing again and I’ll repeat it, that - really focusing on 4 acres of the 104 acre total parcel that’s currently being utilized by the Kaneshiro family for the various activities that have already been outline. Uh, and it pleases the Commission, I’d like to allow Mr. Kaneshiro to read a brief statement and then we’ll invite any questions the Commission may have of either myself or Mr. Kaneshiro. Chair Nogami Streufert: We would be pleased that. Mr. Belles: Okay. Thank you. I will turn this over to Mr. Kaneshiro. I believe you can see him over my right shoulder and hopefully, you can hear him. If not, we will make whatever adjustments are necessary. Thank you. Mr. Kaneshiro: Thank you, Mr. Belles. Thank you, Commissioners, Honorable Commissioners of the Kaua’i County Planning Commission. I know, you know, we are - many of you are in voting, you know, all the time and resources that you have to spend with your family by serving on a Commission as such and we appreciate it a lot. Briefly, what I am going to do is just give you a brief history of our ancestors for all in the room here today. My grandfather, Oishi Kaneshiro, left Okinawa at the age of 20 and arrived on Oahu in 1909, to work in the sugar fields. In 1915, he came to Kaua’i, relocated the Kōloa Planation and lived at placed called Banana Camp. After a number of years, the dollar-a-day salary was not enough to support his growing family and he decided to leave working for the sugar industry and start raising hogs on the land that was next to Kōloa Ball Park in 1920. Besides raising hogs, he also raised turkeys, chickens, gardens of vegetables and sweet potatoes. He built a slaughtering facility for cattle, hog, chicken, and turkey to provide meat for the planation workers and local markets. In 1946 my dad, Satoshi, also known as “Sugar”, and brother Seiso purchased land on O’mau, where was more room to farm. My dad went into poultry brother and his brother raised hogs. My my dad built a fresh egg processing facility, along with a slaughter and processing facility for chickens. Besides raising chickens, he and I also acres of gardens of vegetables during my high school Future Farmers of America program to harvest and deliver to the local markets, restaurants, and plantation workers along with his chicken orders. In 1953, another brother, Mamo opened a store in Kōloa called Kaneshiro Market to help and facilitate the sale of products common from the Kaneshiro farms. Before opening a market, he used to drive a food truck that used to peddle the fresh foods coming from the farm to neighboring communities. My dad’s poultry business closed in 1966, after my older brother was drafted into the Army and deployed to Vietnam. And when I 76 left the Island, my dad said, “You need to go to college. You need to do something.” I left the state for the first time in my life to attend college in California. There was no one else to help tend to the chickens and to help slaughter the chickens and process the eggs produced on the farm. In 1978, another brother, Mamo, took over the hog farm and hog-slaughtering facility until it finally closed in March 2020, after 100 years of operation, which started from my grandpa, Oishi, in 1920. In the early 1970s when I finally settled in Kaua’i, besides working with the hotels in the hotel industry, started up a building business and a boat business and other ranchers, like continue the family tradition ‘til today. Thank you. Mr. Belles: Again, thank you very much, Madam Chair and Members of the Commission. That concludes our presentation and we make ourselves to respond to any questions you may have. Chair Nogami Streufert: Ask just one. I have gone through the Kōloa area and I was positively impressed with it, so I will put that out before I go any further with it. If there is anyone else on the Commission who would like to ask any questions of the Applicant? Ms. Cox: I don’t have a question. I command the project. I think it’s great and I guess I just want to say a couple of things. One is that I know that the - the wording in the State talks about, uh, Hawaii products, but I just wanted to encourage you and I know you’re already thinking this, that Kaua’i products are going to be the premier products, even though you may also Hawaii project - products. And then the second thing I would say is that I would encourage you as much possible that the building is a green building because I honestly believe that you could make a huge difference for this Island, not just by this one operation, but by being an model for the Island. So thank you. Chair Nogami Streufert: Any other comments or questions of the Mr. Kaneshiro or of Mr. Belles? If not, uh, Ka’aina, would you tell us what our options are at this point? Mr. Hull: The Department has transmitted its recommendations, um, and it is to approve, um, with the respective conditions of approval. Um, so the options essentially are you can prove, approve - or sorry. You can approve without conditions of approval, you can approve as recommended by the Planning Department’s conditions of approval, you can approve with modified conditions of approval, you can deny, or you can defer if you need further information. Chair Nogami Streufert: So then, Mr. Kua, could we hear the preliminary conclusion and the recommendations? Mr. Cua: Sure, Madam Chair. Absolutely. “Conclusion: Based on the foregoing findings and evaluation, it is concluded that proper mitigative measures and compliance efforts to the proposed developed can be considered and it should not have significant adverse impacts to the environment or the surrounding neighbors. The proposal is generally in compliance of criteria outlined for the granting of a Special Permit, Use Permit, and Class IV Zoning Permit. In addition, the proposed development is consistent with the goal and - goals and polices outlined in the General Plan, as well as the development standards prescribed by the Comprehensive Ordinance. Applicant should institute ‘The Best Management Practices’ to ensure that the operation of this facility does not generate impacts that may affect the health, safety, and welfare 77 of those in the surrounding area of the proposal.” Uh, moving onto the recommendation. Based on the foregoing evaluation and conclusion, it is hereby recommended that the proposed development involving the construction of a retail building and equipment building/events pavilion, conduct commercialized agricultural tours, and host community-related events and associated site improvements through Special Permit SP-2021-1, Use Permit U-2021-4, and Class IV Zoning per- Permit Z-IV-2021-5 be approved with the following conditions.” Uh, Madam Chair, did you want me to read all 13 conditions or - or are you okay with the conditions that you see? Chair Nogami Streufert: We are fine with the conditions as stated, but are there any modifications or any additions or change that the Commissioners would like to add or delete? Are there any I am waiting just in case because of the, uh, in delays of giving off the mutes and everything? I am letting a little more time go by. Is there anything - anyone with any comments, any additions, and changes to it? Ms. Apisa: I want to say that the Kaneshiro family is doing an excellent job. Chair Nogami Streufert: All right. Ms. Cox: Actually one my comment and it’s not anything we need to add, but I think that this thing is going to be so popular that I’m very excited that it - the traffic study about what is going to be needed to - to enter in egress is being looked at because I actually think they’re going to be - this is going to be something that really works. Thank you. Ms. Apisa: Oh, actually Helen, that is a good point. I mean, I think they are going to be asking to increase the quantity of these - the size of these tours very soon. Maybe they want to amend that now. Chair Nogami Streufert: If there are no other, uh, questions, would you - the Chair would entertain a motion to either accept or to modify or to accept with, or to deny or to defer or defer? Ms. Cox: I move that we approve with the recommendations madeby the Planning Department for ‘Ōma’o Ranch Land project. Ms. Otsuka: Second. I second. Chair Nogami Streufert: It’s been moved and seconded to accept the Director’s Report on ‘Ōma’o Land Project with the recommendations as stated or the recommendations as stated. Any discussion? If not, are we ready for the vote? Could we have a rollcall vote, please? Mr. Hull: Rollcall, Madam Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? 78 Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Mr. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0, Madam Chair. Chair Nogami Streufert: Thank you. Congratulations. Mr. Hull: Moving on to and let me just check with you, Madam Chair. There are three more Agenda items. Did you continue or would you take a brief recess? Chair Nogami Streufert: How about we take a ten-minute recess and come right back. Mr. Hull: So returning at 4:20. Chair Nogami Streufert: At 4:20. We will get started promptly at 4:20 and hopefully we will get through the last three - uh, three topics. All right. Thank you. The Commission recessed this portion of the meeting at 4:09 p.m. The Commission reconvened this portion of the meeting at 4:20 p.m. Chair Nogami Streufert: Call the meeting back to order after the recess. Can you see all the—? Mr. Hull: Yes, we do have all members of the Commission log onto the platform. Chair Nogami Streufert: I had (inaudible) rollcall. All right. 79 GENERAL BUSINESS Amendment of Class IV Zoning Permit Z-IV-1981-7 and Use Permit U-1981-4 to allow for the construction of outdoor niches to an existing columbarium, further identified as the Waimea United Church of Christ, 9675 Tsuchiya Road, Tax Map Key: (4) 1-6-010:006, and containing an area of approximately 2.6 acres = Waimea United Church of Christ. Mr. Hull: Moving on to the next Agenda item, General Business I (1), Amendment to Class IV Zoning Permit Z-4-1981-7 and Use Permit U-1981-4, to allow for the construction of outdoor niches to an existing columbarium, further identified as the Waimea United Church of Christ, 9675 Tsuchiya Road, Tax Map Key 1-6-010:006 and containing a total area of approximately 2.6 acres. Waimea United Church of Christ is the Applicant. This is not an Agency hearing. It is an amendment. So I’ll turn this directly over to Marisa Valenciano, who is our Staff Planner for this. Staff Planner Marisa Valenciano: Good afternoon, Madam Chair and Members of the Commission. I am going to go ahead and summarize the highlights of my report. Ms. Valenciano read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Ms. Valenciano: So the Department’s full evaluation of the project is contained within the Report that is provided and I am just here to answer any questions that you folks may have. Thank you. Chair Nogami Streufert: Thank you. Are there any questions from the Commissioners to the, uh, Planner? Marisa, this is the 1980, conditions of approval were already for the additional niches to be developed? Is that correct? Ms. Valenciano: No. So 1980 the existing columbarium was created. They were indoor, um - they were indoor niches. But this one is different. This Application coming before you is for outdoor niches that are going to be outside. They will construct it outside of the exterior of the columbarium, if that makes sense. Chair Nogami Streufert: Okay. And they will be facing into the columbarium or out to? Ms. Valenciano: So I think the picture and the visual the Applicant provided is probably the easiest way to understand it. Uh, at least for me it was. But basically it’s - there’s a total of four walls. Two of the walls will be flush against the sidings of the ex- of the exterior com- the existing columbarium. And then there were two others that’s going to belocated, um, parallel about five feet a- five feet apart from the ones that are going to be on the side. So it’ll be two, two on both sides. Chair Nogami Streufert: Are there any other questions for the - from the Commissioners? I think this morning we also got an amendment or addendum that you sent in. 80 Ms.Valenciano: Correct. Chair Nogami Streufert: One that we have here, that is the Number 4? Is that correct? That’s... Ms.Valenciano: I believe the Supplemental Director’s - Supplemental Number 1 to the Director’s Report is just the KHPRC’s report and recommendation, the memo to Regulatory, um, that a lot of the - the report was already integrating into the Director’s Report, but we just wanted to formally submit the KHPRC comments because KHPRC is not meeting at this time. Chair Nogami Streufert: All right. Kaaina, would you explain what our options are for this. Mr. Hull: Yeah. A gain the options are to approve a- as proposed, approve it with conditions as recommended by the Department, approve with modified conditions, deny, or defer. Madam Chair, I’d ask that being that this isn’t an Agency hearing, no formal Agency hearing was had, but it may be prudent for us to - or for the Commission to avail for any comments that maybe there from those that have called in. Chair Nogami Streufert: Okay. Oh, again realizing there are still people who had called in or are still on this -- all right -- is there anyone in the audience who would be - who would like to say anything about this? It’s a star 6 to unmute. Mr. Hull: We will make one last call. For any of the members of the public that have called in... Pastor Olaf Hoeckmann: Pastor Olaf Hoeckmann. Mr. Hull: Oh, go ahead. Mr. Hoeckmann: Yeah. I just, I am representing the Applicants of the church. And I just wanted to thank you Director Valenciano for creating a very diligent report and also to thank the Commissioners, hopefully in advance and to ask if there is any need for clarifications or questions from you all? Chair Nogami Streufert: Are there any questions from the Commissioners to the Applicant? Man: No. Chair Nogami Streufert: I think we’re - we’re, thank - thank you for being there and, uh, willing to answer any questions that you have. Mr. Hoeckmann: Thank you. Chair Nogami Streufert: Could we have a motion? Mr. Hull: Let me just for clarity sake, Madam Chair, if I could make one last call for public testimony? Okay. So again, if there’s any members of the public that have called in that would like to testify on the Waimea United Church of Christ Application, please unmute your phone, 81 press star 6, and state your name. Hearing none, Madam Chair, you can proceed on with any further deliberations and/or a motion. Chair Nogami Streufert: Okay. If there are no questions, are there any - if, could I have a motion for the Waimea United Church of Christ columbarium? Mr. Ho: I move— Ms. Apisa: I— Mr. Ho: ...the Zoning Permit Z-1981-7 and Use Permit U-1981-4, Waimea United Church of Christ. Ms. Otsuka: I second. Chair Nogami Streufert: It’s been moved and seconded to accept the Director’s Report with the recommended, with the recommendations. Correct? Mr. Ho, is that you wanted to accept this with the recommendations that are in the Director’s Report? Mr. Ho: Yes. Chair Nogami Streufert: Okay. All right. Mr. Ho: Do you wish to re- do you want me to restate my motion? Chair Nogami Streufert: If you would, that would be great. Mr. Ho: Motion to approve with the recommendation from the Planner’s Report Zoning Permit Z-1981-7 and Use Permit U-1981-4, u- Waimea United Church of Christ. Ms. Otsuka: And I second. Chair Nogami Streufert: It’s been moved and seconded to accept the Director’s Report with the conditions of approval for the Class IV Zoning Permit ZI-1981-7 and Use Permit U-1981-4. Any discussion? Can we have a rollcall vote, please? Mr. Hull: Roll call vote, Madam Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. 82 Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0, Madam Chair. Request for extension of time for Class IV Zoning Permit Z-IV-2020-04 and Special Management Area Use Permit SM (U)-2020-2, Tax Map Key: (4) 4-3-007:028, = KHS. Mr. Hull: Madam Chair. On to the next Agenda item, I, General Business, I(2), Request for an extension of time for Class Permit ZIV-2020-4 and Special Management Area Use Permit SMA- 2020-2, Tax Map Key 4-007:028. The Applicant is KHS. And I’ll turn this over to Romio, who is our Staff Planner. Staff Planner Romio Idica: Aloha, Madam Chair and Commissioners. Consideration for Applicant’s request for time extension for Class IV Zoning Permit ZIV-2020-4 and SMA Use Permit SMA-2020-2. Applicant is KHS, LLC, Tom Schnell of PBR Hawaii as authorized agent. Mr. Idica read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Idica: So that concludes m brief report, Madam Chair. Myself or the Applicant is open for any questions that you folks may have. Chair Nogami Streufert: Are there— Mr. Ho: Romio. Chair Nogami Streufert: ..any questions for... Mr. Ho: Romio, please, is there any questions from SHPD on any of the removal of trees or anything that is being done there. 83 Mr. Idica: No, we have not approached SHPD, but we did approach our, uh, Arborist Advisory Committee, who has - who is part of the reviewing committee, the committee that is - that oversees this Ordinance. Mr. Ho: And one last question, Romio. What is the time extension that they want? Mr. Idica: They wanted to extend it to two years as originally stated within the original Permit, it was for one year from the date of approval of the Application. Mr. Ho: So what is it? 2023? Mr. Idica: That is correct. Mr. Ho: I think it is November 20, 2023? Chair Nogami Streufert: No, 2022. Mr. Idica: Oh, yes, 2022. My apologies. Mr. Ho: I am sorry. Yeah. November 20, 2022, is what they are asking for. Chair Nogami Streufert: Right. Mr. Idica: Yes, from the date of approval of this Application they want two years. Mr. Ho: Thank you. Chair Nogami Streufert: An interesting question, does the Coconut grove fall under historic? Mr. Idica: No, not - not to my knowledge. Not to my knowledge. But this particular Application did go through the SHPD process and the Applicant satisfied all the archeology requirements regarding SHPD’s request in the original Permit, as stated in the original Permit. Chair Nogami Streufert: Okay. Any other questions for the Planner? Kaaina, do we - should we ask whether there is anyone in the, the public who would like to say anything— Mr. Hull: Yeah. Chair Nogami Streufert: ...about— Mr. Hull: I do not know if first if the Applicant has any further the Applicant representatives is - if you have any questions for the Applicants themselves. Other than that, after that it would be appropriate to open it up if there is any public testimony. Chair Nogami Streufert: All right. Is the Applicant here? 84 Mr. Tom Schnell: Yes, Madam Chair and Planning Commission. This is Tom Schnell with PDR Hawaii. I am the representative for the Applicant, KHS. And also, two representatives from KS at - KHS are on the phone, as well as a representative from Hawaii United, who is the contractor providing the PV system. If I could clarify a couple of points. So the request is for an extension of Condition 8, which required Building Permits to be obtained within one year from approval of the SMA. So the SMA was approved on November 12, 2019. So we or - per the condition, the Building Permit should be obtained by November 12, 2020. That is why we are here before you today. We are asking for a one-year extension of that, so it’s - it’s two years from the date of the original approval, which was November 19, 2019. So we’re asking one - one more year from today, if that makes sense, or for November 12, 2020, for a total of two years. So that it would go until 2021. We would need to obtain Building Permits by 2021. Chair Nogami Streufert: Okay. Mr. Schnell: And then, regarding there was a question about SHPD approval. Um, there was an Archeological Inventory Survey done of the parking lot area and also other areas of the property and the Luau building area and there was nothing significant found during those, the parking lot and the Luau, um, facility area. But, um, the recommendation of the Archeological Inventory Survey and also from SHPD is that archeological monitoring be done during the time there’s any ground disturbance, so changing the location of the coconut trees or putting the - in the pillars for the, um, PV system or, um, putting the foundation in for the Luau facility. So, um, we’re in compliance with SHPD re- requirements and it will be monitored during any ground-disturbing activity. Chair Nogami Streufert: Are there any further questions? Mr. Schnell: If I could just elaborate a little bit? On the reason that we have not obtained a Building Permit, uh, for both of these facilities yet, actually - so Romio is correct. Um, for the Luau facility Building Permit, plans have been reviewed and they were finalized, I believe, in May 2020. Uh, but there is a - there is a Building Permit fee to be paid, uh, before the fla- the plans are finalized. Um, the owner, KHS, uh, opted not to commence construction the Luau facility this summer due to COVID and the down to - turn in tourism. There was no demand for a Luau facility. Um, so they - they elected to, um, delay the construction of the Luau facility. But they do plan to pay for the Building Permit in May of 2021, commence construction no later than September 2021, and they plan be finished with the Luau facility in December of 2021. That’s when the anticipated tourism may return back to normal levels and also hopefully that there’s, um, a - some remedy for the COVID situation and that, you know, people could gather at a Luau again and eat from a buffet and, you know, enjoy a Luau. Regarding the PV system, due to the complexity of the plans, there’s been a lot of back and forth with the Building Permit reviews, but the building - or the PV provider does anticipate Building Permit to be approved in 2021 with Construction to start late 2021 for Phase 1 and then there’s a Phase 2 that would be completed in 2022. So progress has been made and things have been on along. We just need a little bit more time. Chair Nogami Streufert: Is there anyone who is listening in on this who would like to speak? If not, Romio, if you could continue with your recommendations? 85 Mr. Idica: It is recommended that the Commission approve the extension of time to allow the completion of the PV solar canopies and the reconstruction of the Luau facility and that the Applicant be subjected to the applicable requirements. Furthermore, Condition Number 8 of Special Management Area Use Permit SMA(U)-2020-2 and Class IV Zoning Permit Z-IV-2020- 4, be amended to read as follows: “The Applicant shall obtain the necessary Building Permits and commence construction within two years from the date of approval of this Application, and complete construction within two years of the date of approval of the Building Permit.” That is my that concludes the recommendation, Madam Chair. Chair Nogami Streufert: All previous applicable conditions of approval still apply? Mr. Idica: That is correct. Chair Nogami Streufert: Could we have a motion if there are no other questions? Ms. Apisa: I move we approve the extension of time for Class IV Zoning Permit Z-IV-2004-4, Special Management Area Use Permit SMA(U)-2020-2, uh, TMK (4)4-3-007-028 for KHS, LLC. Ms. Cox: I second that motion. Chair Nogami Streufert: It’s been moved and seconded that we approve the extension of time for the KHS, LLC. Any discussion, any questions. Are we ready for the vote? Ro- uh, let us do it - let us just do a rollcall and be clean about the whole thing if... Mr. Hull: Rollcall on motion to approve. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? 86 Mr. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Okay. Motion passes 7:0. Congratulations. Mr. Schnell: Thank you very much. Continued Agency Hearing New Agency Hearing Continued Public Hearing All remaining public testimony pursuant to HRS 92 (Sunshine Law) CONSENT CALENDAR Status Reports Director’s Report for Project Scheduled for Agency Hearing COMMUNICATIONS (For Action) Mr. Hull: Moving right along, we have no Communications for Actions. COMMITTEE REPORTS Subdivision Mr. Hull: On to the last Agenda item. Subdivision Report. Subdivision Committee Chair Ho? Mr. Ho: As fast as I can. The final map approval for three Applicants. The first Applicant is Stephen Palama is granted. The second Applicant is -I am fully - oh, I am sorry. The second Applicant, Ralph Oswald, granted. And the last one, Garden Isle OZ LLC was granted. All final map approval. I recommend that the Commission accept my Report. Chair Nogami Streufert: There is a motion to that. Apisa: Second. Chair Nogami Streufert: All those in favor, all say aye. (Unanimous voice vote). Commissioners: Aye. Chair Nogami Streufert: All those opposed - all those opposed, nay. None. The motion passes 7:0. The Subdivision Report has been accepted. 87 UNFINISIHED BUSINESS ( For Action) Mr. Hull: Moving on, there is no Unfinished Business. NEW BUSINESS Mr. Hull: Now moving on there is no further New Business. For Action - See Agenda F for Project Descriptions ANNOUNCEMENTS Topics for Future Meetings The following regularly scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter on December 08, 2020. The Planning Commission anticipates meeting via teleconference but will announce its intended meeting method via agenda electronically posted at least six days prior to the meeting date. Mr. Hull: Lady Madam Chair, so all we have left is…and I just want to say thank you to all of you Commissioners for bearing with us and going through. This was a particularly long day. So, it’s one of the meetings that I just want to express the Department, uh, and the County’s deep deep thank you for your patience and fortitude and going through meetings like this. Mr. Ho: Kaaina? Mr. Hull: Yes, sir. Mr. Ho: I just would like to point out, might be a Mike Laureta’s Report on the Ferris, is - the way he’s - his format was presented, it was easy reading for me. I guess I have old eyes. It was - it was very good. Very good for me. And also hello to Marisa. Welcome back. Mr. Hull: And thank you, Commissioner Ho. For, we have set a - the action on the Agenda items, for topics for future meetings, the December Agenda, is full. There are several Special Management Area Applications. There is also a Council (inaudible) zoning amendment for the agriculture districts and there is also another vacation rental Application that has been referred, um, back from, um, a contested case hearing. Um, so we do anticipate that also being a lengthy meeting. But if there’s anything that Commissioners would like to have placed on the Agenda, you can contact myself or the Commission Chair and we can go over additional informative Agenda items if you would so like. Mr. Ho: Kaaina, before we leave and just for point of clarification, when CPR units come for approval there is a longer a two-thirds/three-quarter quota. It has to be 100% approval. Mr. Hull: Correct. Chair Nogami Streufert: Oh. 88 Mr. Ho: It has to be 100% of the CPR unit owners approved - approved whatever they want to. Mr. Hull: Either they have to have authoriza- and what Commissioner Ho is referring to is the recent adopt of a County Ordinance redefining the Applicant, and so either it has to have full authorization of the Applicant’s respective CPR - co-CPR owners or in many situations if the CPR documents provide power of attorney. Mr. Ho: Thank you, Kaaina. Mr. Hull: Thank you. Chair Nogami Streufert: Okay. Ms. Apsia: So, Kaaina, just confirming that there is no meeting on November 24, the next meeting is December 8 and plan on a long one? Mr. Hull: Correct, that was - the next meeting is December 8 and yes, Commission Apisa, I would say we anticipate it being equally as long as this one was today. Ms. Cox: Oh, got lucky. Another long meeting. Mr. Ho: Wow. Two in a row. Chair Nogami Streufert: We get to know each other much better, how is that? Mr. Apisa: Well we are just consolidating. Instead of twice a month, we just do once and twice as long. Chair Nogami Streufert: Yeah. It will be our holiday party. We will just together. Ms. Apisa: All righty. Ms. Cox: That was good company. ADJOURNMENT Chair Nogami Streufert: So could I have a motion to adjourn, please? Mr. Ho: Motion to adjourn. Ms. Cox: I second. Ms. Otsuka: I second. Chair Nogami Streufert: It’s been moved and seconded that we adjourn. All those in favor, say aye? (Unanimous voice vote). All those opposed? Nay? None. Motion Carried 7:0. All right meeting is adjourned. 89 Mr. Hull: Thank you, all. Chair Nogami Streufert adjourned the meeting at 4:49 p.m. Respectfully submitted by: _________________________ Arleen Kuwamura, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) ( ) Approved as amended. See minutes of __________ meeting. 1  KAUA‘I PLANNING COMMISSION REGULAR MEETING December 08, 2020 The regular meeting of the Planning Commission of the County of Kaua‘i was called to order by Chair Glenda Nogami Streufert at 9:08 a.m., - Microsoft Teams Audio +1 469-848-0234, Conference ID: 258 180 577# The following Commissioners were present: Ms. Glenda Nogami Streufert Ms. Donna Apisa Mr. Melvin Chiba Ms. Helen Cox Mr. Francis DeGracia Mr. Roy Ho Ms. Lori Otsuka The following staff members were present: Planning Department – Director Kaaina Hull, Deputy Director Jodi Higuchi Sayegusa, Myles Hironaka, Dale Cua, Romeo Idica, and Planning Commission Secretary Leslie Takasaki; Office of the County Attorney – Deputy County Attorney Teresa Tumbaga; Office of Boards and Commissions – Administrator Ellen Ching, Support Clerk Arleen Kuwamura Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Nogami Streufert: Called the meeting to order at 9:08 a.m. ROLL CALL Chair Nogami Streufert: Are we ready to start? Could we have the roll call? Planning Director Mr. Kaaina Hull: Roll call, Madame Chair. Commissioner Apisa? Ms. Apisa: Here. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Cox: Here. 2 Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Ho? Mr. Ho: Here. Mr. Hull: Commissioner Otsuka? Commissioner Otsuka? Sorry. You are muted. I think she is muted, but we will note that she is present at the meeting. Mr. Hull: Chair Streufert. Chair Nogami Streufert: Here. Mr. Hull: You have a quorum, Madame Chair. Seven present. APPROVAL OF AGENDA Mr. Hull: Next is will be the pool Agenda. The Department has no recommended changes for the Agenda. Chair Nogami Streufert: I need a motion to approve the agenda as presented. Mr DeGracia: I move to approve the Agenda as presented. Mr. Ho: Second. Chair Nogami Streufert: It's been moved and seconded approve the Agenda as presented. Any discussions? If not, we will do just a voice call on this. All in favor? Aye (Unanimous voice vote) All those who disapprove? Agenda stands. Motion carried. 7:0. Mr. Hull: Motion carries. MINUTES of the meeting(s) of the Planning Commission Mr. Hull: There are no minutes from the previous Commission. RECEIPT OF ITEMS FOR THE RECORD (None) Mr. Hull: Next on the Agenda, there are no Receipt of Items for the record. HEARINGS AND PUBLIC COMMENT Mr. Hull: Moving onto Hearings and Public Comment. At this time those that have called in here for the agenda, please mute your phones, unless you are in - or mute your tele video systems unless you are speaking. If you are unable to do that, when we have a lot of interference, we will 3 mute every single participant. So, just be aware - you may have been automatically muted. When you intend to speak, you need to unmute yourself at on the teams link, or the - on your phone itself. Going into the Public Hearing and Comments, I will be calling on all of the phone numbers that are listed as calling in. If you are an applicant, the public testimony is not your time to speak. If you are an applicant or a petitioner - I should say. At this time, we will be calling for anybody that wants to speak on any agenda item. So, I’ll call a few of the phone numbers. If you intend to speak, you do have three minutes. Area code 808-364-9916, would you like to testify on any agenda item? If so, please speak now. Woman: No. Mr. Hull: Okay. Thank you. Area code 949-270-3503, would you like to testify on any of the agenda items at this time? Hearing none. Area code 808-639-3093, would you like to testify on any agenda item at this time? Seeing none. Area code 808-652-7891, would you like to testify on any agenda item at this time? Woman 1: No. Thank you. Mr. Hull: Area code 808-634-0811, would you like to testify on any agenda item at this time? Woman 2: No. Mr. Hull: Thank you. Area code 949-887-3901, would you like to testify on any agenda item at this time? Man: No. Mr. Hull: Thank you. Area code 808-282-5710, would you like to testify on any agenda item at this time? Man 1: No. Thank you. Mr. Hull: Thank you. Area code 250-423-6741, would you like to testify on any agenda item at this time? Man 2: No. Mr. Hull: Area code 970-759-1199, would you like to testify on any agenda item at this time? Man 3: No. Thank you. Mr. Hull: Thank you. In case I have missed anyone that has called in, is there anyone that has called in that would like to testify as a member of the public on any agenda at this time. I will hold for five seconds. Hearing none, Madame Chair. 4 New Agency Hearing Amendment to Special Management Area Use Permit SMA(U)-88-1 and Class IV Zoning Permit Z-IV-8810 to allow construction involving two (2) additional resort units for the existing resort facility on a parcel situated on the makai side of Po’ipu Road, further identified as the Grand Hyatt Kaua’I Resort & Spa, 1571 Po’ipu Road, Tax Map Key: (4) 2-9-001:002, and containing a total area of 39.725 acres= Kawiloa Development, LLC. [Director’s Report received by Commission Clerk 11/24/20.] Mr. Hull: We can move on to the next agenda item, which is New Agency Hearing. We will be holding the agency hearing and the review and discussion with the applicant in tandem. First for Agency Hearing - amendment to special management (inaudible) permit - SMA, 88-1 and classified zoning permit, Z4, 88-10 to allow construction involving two additional resort units for the existing resort facility on a parcel situated on Makai side of Poipu Road. Further unidentified as the Grand Hyatt Kauai Resort and Spa. Address - 1571 Poipu Road and Tax Map Key: 2-9- 001:002 and containing a total area of 39.7725 acres. The applicant is Kawailoa Development, LLC. Is there any member of the public that has called in that would like to testify on this specific - specific agency hearing at this time? I will hold for five seconds. Hearing none, Madame Chair, I can say we did already receive one letter from Greg Peterson, in support of the petition. The Department would recommend closing the agency hearing. Chair Nogami Streufert: Do I have a motion to close the agency hearing, please. Mr. Ho: I move to close the agency hearing. Mr. DeGracia: Second. Chair Nogami Streufert: It has been moved and seconded to close the Agency Hearing. Is there any discussion? So, a voice will go on this one. All those in favor of closing the Agency Hearing on Kawailoa? (Unanimous voice vote) Any opposed? (None) Agency Hearing is closed. Motion carried 7:0. Chair Streufert announced that the Agency Hearing in closed Mr. Hull: Agency hearing is closed. We will move directly into the review so I will turn this over to Dale for the Director’s Report. Staff Planner Dale Cua: Good morning, Madame Chair and members of the Planning Commission. Chair Nogami Streufert: Good morning. Mr. Cua: Due to the agenda we have today, my presentation will be very brief to accommodate the time, and if at any time, you have any questions regarding any of the projects that I will be 5 presenting today. I can definitely elaborate for you. So, this first one is consideration of applicant proposal involving an amendment to estimate use permit in class 4 zoning permit to allow renovations to the existing facility that would add two additional hotel resort units. Mr. Cua read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Cua: Poipu Road is a county road with an 80 feet wide right-of-way. It is capable of accommodating two-way vehicular traffic. The existing land use permits affecting the project site identified in the report, and at this time, this concludes the Departments and Directors report for you. Chair Nogami Streufert: Are there any questions from the Commissioners to the Planner? Mr. Ho: Yes, Dale - is there - is there something else in the report about (inaudible) dedication of a park? Mr. Cua: That was one of their previous obligations in approving the resort facility. Since that time, the dedication been completed. Mr. Ho: Thank you. Chair Nogami Streufert: Any other questions if not, Dale, If not, can you tell us a little bit about the employee-parking situation there? Mr. Cua: The current employee parking area? Chair Nogami Streufert: Yes, please. Mr. Cua: Yeah. There is a dedicated area within the site. It is located in the northwestern corner of the property, directly abutting an access off Poipu Road. The employee parking area is - I do not know the exact number of parking stalls that is currently available in that specific location. Back in - let me see - back in around 2008, there was a proposal to provide a structure over the parking area, and the primary intent of the - of that parking structure - or that structure over the parking area was to accommodate solar panels. I think - I noted in the Directors Report back in 2007, in order to accommodate this construction for this parking structure over this area, a temporary parking area approved for a site offsite. Actually, off the street on the mauka side of Poipu Road, and immediately adjacent to the golf course. The area was roughly about - a little over an acre, and that parking area ceased when the construction work was completed. Mr. Ho: So, it is not— Mr. Hull: I can also add - sorry. 6 Ms. Streufert: Go ahead, Kaaina. Mr. Hull: I was just going to add also, Madame Chair, that - you know - there are - I think there’s some notes of having some parking issues for some or many of the hotel resorts in Poipu. I can say that this particular operation has been meeting with the Department over the past several months because they do have a petition to look at expanding their parking availability. And so, we’d intended and - and I think it’d be - you know - best if we could’ve gotten both applications together, but we’re still working with them on their parking operation proposal to get it up to par. And so, I do have a meeting with the Developer, actually, this Friday to further discuss consultation for that permit application, but he’s going to anticipate a - a parking probably in the next month or two. Chair Nogami Streufert: Okay. Any other questions from the Commissioners for the Planner? Woman 3: Yes. Hello? Chair Nogami Streufert: Yes? Who is this? Women 3: Yes. I just joined in. Chair Nogami Streufert: I am sorry. Mr. Hull: Oh. Sorry. Madame, can - did you intend to testify on the Kawailoa or Grand Hyatt application? Woman 3: I am sorry. Is this Opelo Street? Chair Nogami Streufert: Oh. Not yet. That will... Mr. Hull: That— Woman 3: Okay. I am going to be quiet, then. Thank you. Mr. Hull: Thank you. Chair Nogami Streufert: If there are no other questions from the Commissioners to the Planner is there someone representing Kawailoa available? Ms. Rebecca Candilisa: Yes. Hi. Good morning. Director Hull and Commissioners. My name is Rebecca Candilasa, Wilson Okamoto Corporation. I’m here today as an authorized agent presenting on behalf of the applicant, Kawailoa Development, who will join with me on the call along with the architect, WATG. On behalf of all of us, we thank you for hearing our request today. At this time, I will be sharing my screen for a short presentation. Since Dale went over a lot of the subject matter, I will somewhat just breeze through it and really, try to show you visually, where the improvements would be located. So, let me share my screen now. 7 Chair Nogami Streufert: Okay. Ms. Candilasa: Okay. Let me know if you can see. Mr. Cua: Yep. I can. Ms. Candilasa: Okay. Excellent. I am going to provide just general info - some background. Then, go into the project description, purpose and need, and potential impacts for the projects. So, as we know, the project’s located, uh, in the Poipu Resort area. The area designated as urban, within the County’s Resort District, and the General Plan designation for the property is resort. It is located at 1571 Poipu Road. As Dale mentioned, the resort received approval for SMA use permit, shoreline set back variance and class 4 zoning permit in 1987. It was then constructed a few years later in 1991, pursuant to those permits. Today, the resort consists of 605 hotel rooms, a spa, and other amenities, including lagoons, pools, ballrooms, restaurants and retail, among other things. The proposed project is to renovate a portion of the Poipu guestroom wing. It would add two new hotel guest rooms to an existing third floor terrace. If we refer to the photo that shown, this photo was taken at ground level, and you can see outlined in red the area where the rooms - the two rooms would be located. So, this is the outdoor terrace right here, um, and it would be the third floor. Then, this building height, and the one behind it, goes up to a fourth floor story. Um, because it is taken at ground level, it looks like it takes up everything, but, um, it has - it is only the - the third floor. So, the project site would consist of approximately 2,17 67 square feet within the existing footprint of the building, and it would increase the room count from 605 hotel rooms to 607 hotel rooms. The estimated cost of construction is approximately$1.5 million and anticipated to take approximately six to seven months to construct. On the next slide, you will see a site plan of where the project site is in relation to the rest of the resort. It is located in the existing Poipu guest room wing, which is on the west - western end of the resort. The project site is set back from the shoreline area and would not affect the existing pedestrian easement located along the shoreline, which is right here at the bottom. Zooming in, we see an aerial view of the project site and the location of the existing terrace. Again, it shows that the project would sit within the footprint of the existing structure. Also shown is the existing staircase and the corridor. It is an enclosed corridor. That would provide access to the two rooms. On the next slide, we show elevations and sections of the proposed project. Each room would offer ocean views and would be about 1,011 square feet in size. There would also be a lanai area of 145 square feet. Again, here in this photo, we see the existing staircase and the corridor that would provide access to the rooms. All exterior paint and finishes would be selected to match that of the surrounding buildings and would be in line with the character of the area. So, the purpose of this project is really to expand the range and the quality of the amenities at the hotel and doing so in a way that would minimize the impacts of development and the SMA, while also 8 preserving the coastline for the enjoyment of guests and the community at large. By implementing the projects, we would be able to create construction and construction support jobs in the short term and in the long-term, implementation of the project would allow Hyatt Kauai to remain competitive in hospitality and tourism industry. Potential impacts - temporary construction related impacts, such as (unintelligible) dust and noise would be mitigated through implementation of BMPs and adherence to state and county rules and regulations. We had discussed the parking issues. As mentioned, there is a separate action by the applicant that will accommodate overflow parking in compliance with the Conditions of earlier permits for the property, and to adjust community concerns related to parking. Therefore, no additional parking spaces are anticipated to be required for this particular project. Um, the project remains within the existing footprint of the existing developments, and within the overall massing of the building. Therefore, there would be no impacts on views, um, to or from the coast or from surrounding properties, and given the scale and the scope of the improvements, there’d be no significant short or long-term impacts anticipated as a result of the proposed projects. Again, we thank you for hearing our, um, request, and we open it up for any questions. Ms. Streufert: Are there any questions from the Commissioners to the representative from Kawailoa? There was one of the original Conditions - number 15, I think - was a management- training program that was to be presented to people. Was that - was that ever done? Was it ever completed? Ms. Candilasa: I also have on mute, a representative from Kawailoa and the architect. If it is okay, I would like to defer that question to the representative from Kawailoa. Is that - I believe Robert. Robert, are you on the call to answer that question? Sorry. I am not sure if he is on the call, but that is something I would have to check back with - if - if we could give you an answer after this or if it were pertinent to the decision at hand, then, we would love to get a response for you. Chair Nogami Streufert: Well no it is not pertinent to this particular one, but it was part of the original, Conditions. So, I was just wondering about what the status of that was. Ms. Candilasa: I would love to get a response and send it to you, uh, off the - offline. Ms. Streufert: That would be great. Thank you. Ms. Candilasa: Okay. Thanks. Ms. Streufert: If there are no other questions for - is - is there anyone from the public who would like to speak on this? Mr. Ho: Madame Chair? 9 Chair Nogami Streufert: Yes? Mr. Ho: Madame Chair, please, could Rebecca be made aware that there is an opening and closing date on construction for this? That you would decide within two years, and to have substantial progress made. Is that one of the Conditions that - condition 22 - that if - that if - if you are given approval today, that you have two years to commence your project. Ms. Candilasa: Okay, I am sorry. This is Condition 22, you said. Okay. Is that related to the 2020 project amendment Conditions? Or is that related to - I guess this question is for Dale or the Planning Department. Or is that related to the previous approval? Mr. Cua: Actually, this Condition is applicable to all SMA permit projects— Ms. Candilasa: Okay. Mr. Cua: Since - you know, it is an amendment to the project the Condition would be applicable. So, just to give you a heads up that— Ms. Candilasa: Okay. Mr. Cua: You know any new development would be subject to this particular requirement. Ms. Candilasa: Okay. Thank you. Thank you for making us aware of that requirement, and we will comply. Mr. Ho: Thank you. Ms. Cox: I do have a question. This is Helen, Chair. Now, I am wondering - so, how many people - now, I know these are two rooms, but how many - maximum number of people could actually occupy these rooms? I mean, could a whole family go in each of these rooms? Ms. Candilasa: I think, given the size its 1,000 square feet. That’s (inaudible)— Ms. Cox: Yeah. Ms. Candilasa: (Inaudible) of my parents’ townhouse. Ms. Cox: Right. That is what I was thinking. Ms. Candilasa: Right. Yeah. I think it is pretty significant. We have not nailed down the exact design details as to how - how many guest rooms - or rooms that would fit inside. I am not sure on the exact number of people that would fit in each room, but I would imagine that it would be a - a larger family or somebody who would paying extra money to stay in that room. It has, you know - given the size, I think it has - it is geared towards - you know higher paying - a higher price point, or for a larger family. 10 Ms. Cox: You know, Chair, I - this is a concern for me only because we have seen some, pushing, of this. I mean, I do not expect the Hyatt to do this, but I am wondering if we should - there shouldn’t be some sort of maximum number, just because down the line, if they haven’t designed yet, what if they design it so that you know, 30 people can be each room? Then, that’s very different than saying they’re two hotel rooms, and I suspect the Hyatt is not planning to do something like that, but I’m just wondering is good practice if we should actually be putting some sort of limit - or ask to know how many down the line or something because we have seen abuses in this area. Chair Nogami Streufert: Kaaina, is there or could you respond to this? Dale? Mr. Cua: Yeah. Occupancy (inaudible) are generally regulated by building code. So, you know, that would determine how a maximum occupancy in any particular environment, and oftentimes, many public rooms have information in terms of it being posted with regards to the maximum number of occupancy a particular room can hold. So it is something that— Ms. Cox: But this is a hotel room you know, it would not be posted - you know - maximum - we would not know the maximum occupancy. Mr. Cua: Right. Mr. Ho: (Inaudible). I would think that the Board of Health might weigh in on this, too - could limit the number of people that could be with the facilities available for sanitation and - you know - so forth. Mr. Hull: And I will just add too, that yeah both what Dale mentioned in as far as the building codes regulate maximum occupancy and if it is not - it cannot be because a room this size, it is not going to be over you know, 15 or 20 people. It is going to be limited, just by building code requirements. I do not know the specifics. Again, I will also say with general - generally, hotel operations will also limit the amount of people that can go into the room just by the reservation itself. As a parent of one, I have tried to - just tried to get my son not charged to go into a room, but they - they do assess those often. But if you would like - because I don’t know where the Kawailoa representative is - it’s unfortunate he’s not on this call – but Commissioner Cox, if you’d like to get specific information concerning that, then a deferral would be in order - or could be in order. Ms. Cox: Yes. That is a tough one for me, because I mean, as I say, I suspect its fine, but I feel like this is an oversight that we do not know. Chair Nogami Streufert: Maybe— Ms. Cox: I wish the Kawailoa person was on the line, so that we could get - because I hate to defer it - you know - if we don’t have to, but, um— 11 Ms. Candilasa: Would it— Ms. Cox: I do I wish we had some more information. Ms. Candilasa: Would it be possible to see if, maybe the architect might have more insight as, you know - designing hotels and on this project, as well? Steven, are you able to respond to that? Mr. Steven Ogden: Ah, yes. Hi. My name is Steven Ogden. I am with WTG, here in Honolulu, and we are the architects for Kawailoa Development that is looking to add the two suites here at the Grand Hyatt Kauai. These - we are designing for two suites, and they are one-bedroom suites. So, the intent is to not have a large occupants within these rooms, and (unintelligible) some of the suites that we’ve worked in the past, they’re - they’r e, um - for instance, like a one- bedroom suite would be for a couple or a family of four or three or four at the max. So, that’s the intent of these rooms and what the occupancy is, and we are pretty certain that the management and the operators will try and limit them - the occupancy within these two rooms. Chair Struefert: Were there any other questions? Thank you. There was no one Kaaina, there was no one from the public wanting to speak on this. Is that correct? Mr. Hull: No. The agency hearing was closed. Chair Nogami Streufert: Okay. Mr. Hull: And I will note that again, one letter in support that came in was accepted for the record. Chair Nogami Streufert: All right. Hearing no other questions, I will entertain a motion to accept or deny the application. Ms. Apisa: I make a motion to approve a special management area use permit SMAU 88-1 in Class IV, Zoning permit Z-IV- 88 10, to allow construction, involving two additional resort units for the existing resort facility. Mr. Ho: Second. Chair Nogami Streufert: It has been moved and seconded. Approved. Kawailoa Development, LLC, Special Management Area Use, SMAU 88-1, Class IV Zoning Permit Z-IV-88-10. All right. Is there any further discussion? Mr. Hull: Just for clarification, so to state, Madame Chair, for Commissioner Apisa, in that recommendation, was your intent to approve as recommended by the Department. Ms. Apisa: Yes. As recommended by the Department. Thank you for clarifying. Mr. Hull: Thank you. 12 Chair Nogami Streufert: If there is no other questions or no discussion, I think we are ready for a roll call vote, please. Mr. Hull: Roll call, Madame Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0. Madame Chair. Special Management Area Use Permit SMA (U)-2021-3 to allow construction of a multi- use path (bicycle & pedestrian) extending from Ahukini point to the existing path at the northern section of Lydgate park and associated improvements affecting several parcels along the makai side of Kuhio Highway for a distance of approx.. 607miles, further identified as Tax Map Keys: (4) 3-7-001:008, 159 ;( 4) 3-7-002:001, 002: (4) 3-7-003:001, 017; (4) 3-9-002:004,032; (4) 3-7-005:001-003,009, and affecting a portion of several parcels containing a total area of 1,572.883 acres = County of Kauai, Department of Public Works. Mr. Hull: Motion passes, Madame Chair. Next, we are moving on to (inaudible) hearing for special management area use - permit SMAU 2021-4, for oh. Excuse me. I skipped one. Special management area use permit, SMAU 2021-3, to allow construction of a multi-use path - bicycle and pedestrian, extended - extending from Ahukini Point to the existing path at the northern section of Lydgate Park and associated improvements affecting several parcels along the Makai side of Kuhio Highway for a distance of approximately 6.7 miles, further identified as tax map 13 keys 3-7-001:008, 159, 3-7-002:001, 002, 3-7-003,001, 017, and 3-9-002:004, 032, and 3-7- 005:001 – 003, 009, and affecting a portion of several parcels containing a total area of 1,572.883 acres. The applicant is the County of Kauai Department of Public Works. This is the Agency Hearing portion of the Agenda. So, is there any member of the public that has called in that would like to testify on this agenda item? I will hold for five seconds. Please speak now. Hearing none, Madame Chair, I will also note for the record that the Department has received and transmitted to the Commission, one letter from Tommy Noyes of Kauai Path dated 12-7-20 concerning this petition, as well as a letter from Pat Griffin also on the same date concerning this petition. Without hearing any further comment, the Department will recommend closing the agency hearing. Chair Nogami Streufert: Could we have a motion to close the agency hearing, please? Mr. DeGracia: I move to close the agency. Ms. Cox: Second. Chair Nogami Streufert: Moved and seconded. Close the Agency Hearing. All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carried 7:0. The Agency Hearing is closed. Chair Streufert announced Agency Hearing Closed Mr. Hull: Moving on to the actual review of this project, I will turn it over to Dale, again. He - Dale is pinch hitting for Romeo, so he has pretty much the entire show today. Dale, if you want to take over the reports (inaudible). Staff Planner Dale Cua: Okay. Thank you. What you have before you is Special Management Area Use Permit, SMAU 2021-3, the proposal involves the construction of a multi-use path that extends from Ahukini Point to the existing path at the northern section of Lydgate Park. The associated improvements with the project includes new comfort stations and improvements to parking areas, as well existing bridges along the way. Mr. Cua read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Cua: The details of the project is described in the report and is further illustrated in the applicant’s application. The details of the project is described in section three of the application. Let me see. Like many of the projects that I will be presenting - and in order to save time, I will be, doing brief presentations, but for this particular project, as well as others. There are various standards that apply to this project. They include the special management area objectives as well as the CZO development standards which are identified in the Director’s Report. It should be noted that the applicant has obtained a Finding of no significant impact that was signed and the 14 Final Environmental Assessment was included with this application. That pretty much concludes the Director’s Report at this time. Chair Nogami Streufert: All right. (Inaudible). I have one question. Once we - if we were to approve this, we have committed ourselves - or we have committed the County to have a path that goes very close to the airport. It will essentially go right next to the airport - or the airport runways. Has DOT been informed of this? Or has DOT been involved in the discussions for security reasons at this point? I realize that this does not - since this goes from Ahukini Point on, it really does not affect the airport right now. But once we start this at Ahukini Point, we are committed - I think - to having it go past very close to the airport. That seems to me to be a potential security issue that we might want to address before we get to this point. Mr. Cua: Yes. Mr. Hull: Yeah, Madame Chair, I think when - once you guys are done with discussions with Dale and the Department, when we move into the applicant’s presentation, that’d be - I think - Doug or Jared may have a response for you. Chair Nogami Streufert: Were there any other - are there any other questions for the planner? Or for the Planning Department from the Commissioners? If not, could we hear from the representative? Mr. Doug Haigh: Is it appropriate for me to respond at this time? Mr. Hull: Well, Doug, if you want to respond and/or if you folks had a presentation for the Commission. Mr. Haigh: Okay. We do have a presentation, but the particular question is more pertaining to the next phase of the project and our consultant has not been involved in that, but I have been involved in it. I could probably address it now, if you want. Chair Nogami Streufert: That would be fine with me. Mr. Haigh: Okay. Yes, the security of the airport and the runways, and the interaction between the path and airport is something that we have discussed in detail with the Airport Management, and it - it affects the next phase of the path going from Ahukini Landing to Kalapaki. It was during that phase, we had discussions. These discussions were actually quite a few years ago, but the path is intended, the main path to go Makai of the runways. And the agreement we have is that their gates on each end of the path where it is Makai - of the airport - so, if there is a security safety issue, the airport has full authority to close the path at that time - to restrict access to maintain that security. Those issues, it is a good question - those issues were of main concern and we have discussed them with the airport - HDOT. Chair Nogami Streufert: Great. Thank you for that (inaudible) because once we do that, we are 15 committed (inaudilbe) for the (inaudible). Is there any presentation that you would like to present at this point? Mr. Jared Chang: Good morning, Commissioners. My name is Jared Chang. I am with SSFM. We are the prime consultant on this project working with Doug. I am a planner. We did the EA and the Federal CatEx, also from Federal Highways Administration and we are doing the preliminary design, also. There is no presentation - so, no sharing screen, but we did have a couple of points we wanted to bring on for the Commission’s consideration. The easy ones first - there was a question about lighting. There is no lighting involved in this project, so that is not an issue. So, um, just wanted to clarify that. We recently completed our final topographic survey for the whole alignment, and there were some parts of the alignment that we couldn’t survey in the past because of access issues. So, can hall grass was too high. We could not get surveyors in there. We recently just completed that survey, and we will be taking that topographic survey to refine our alignment, and by refine, I just mean that - you know - there might some tweaks in two areas. One being Ahukini Landing where we come back down and connect to the parking lot, and the second being along Nukuli’i - you know - by the motocross track area. Just to make sure that we are in the right parcels as we traverse that area. So, very minor adjustment to the alignment, but, um, so, no real affects, otherwise - different from what is in the EA or the SMA. Uh, once we do refine that alignment, we will be sharing that with, um, Director Hull for his approval. Any changes - you know - we want - I should send to him. That is coming, um, probably later this month. Uh, and then, the last one is regarding preliminary recommendation number 7. This is the start of construction and completion of construction dates. We wanted to make a request for the Commission’s consideration to change those time frames. We would like to extend the start of construction from one year to within two years from approval, and completion of construction from two years to within four years of approval. The reason for this is because right now, we are still in a preliminary design and we have to secure construction funding for the project with Federal Highways Administration and complete the design. This is likely to occur within the next year or two - completing the design - design and getting the construction funds. Then, construction will follow that. The one year start and two- year finish time frame is likely not to be adequate for where this project stands today. Chair Nogami Streufert: Are there any questions for the representative? I am sorry. Your name is Jared. Is that correct? Mr. Chang: Jared Chang. Correct. Chair Nogami Streufert: Are there any questions for Jared or for Doug? Mr. Ho: Jared? 16 Yes. Ms. Cox: Yes. I have one question. It refers to not only this section of the proposed plan, but in general, I know that one of the concerns is the rising sea level. Does this specifically - I know that further down, there are some issues you have to address. Like in this area - this proposed park - I do have those issues. Or is it pretty much high enough and back enough that we’re okay? Mr. Chang: Doug, I can answer that one. Okay. So, we - this path in particular - this section of the path is pretty much mauka and we’ve - we go behind where the golf course - or along Kuhio Highway. When we get down to Hanamaulu, we are on the bluffs coming around the bay. So, we don’t really have any sea level rise issues. As part of our application for setback - shoreline setback assessment, we did overlay our path alignment with one - to certify shoreline and our version of the shoreline setback, we are out of it, and we did look at the Sea Level Rise Exposure Area Maps - the SLR -XA. So, we’re outside of the SLR-XA with the exception of a - a few places, I can explain where they are, too. Therefore, when you are coming from Ahukini Landing, and we approach Kuhio Highway, and we get to Hanamaulu Bridge, that is a low-lying area there that is essentially in the SLR-XA, but we are going to be- you know - that’s pretty mauka and we’re looking at, like, a boardwalk-type of solution through that area - not a concrete path. Then, the next one is by Nukoli’i. So, there’s a - there’s a - actually, it’s Kauai Beach Road, and Nukoli’i - there’s a channel there - a drainage channel, which technically ends up in a SLR-XA also. So, we have to cross that channel two times and we’ll be bridging over that. So, one of them - we are using an existing culvert - it is a historic culvert, and we have worked with FHPD to approve what sort of improvements we can do on there. For the most part, it is just getting a - a deck and some railings on top of it, and we are not touching the culvert other than that. So, those are the only places where we really touch a SLR-XA, but those two places are actually pretty mauka from the shoreline. Ms. Cox: Thank you. Mr. Ho: When it comes to - gotten say— Ms. Cox: I have to say— Mr. Ho: Yeah. Ms. Cox: It is exciting. Mr. Chang: Okay. Okay. Thanks. Mr. Hull: And I’ll just add to Commissioner’s, as Jared pointed out, this phrase SLR-XA, which you and I hear consistently over the course of the next several years and we incorporate what’s referred to as a Sea Level Rise Exposure Area Data into the review of coastal projects. 17 And with the sea level rise exposure, there’s three specific data points coastal erosion again, and that’s really with sea level rise projected at 3.2, feet within the century, where the - the new coastline will be. So, that’s one of the data points. The other data points are highway and annual highway runoff, as well as passive flooding, and the sections that Jared’s referring to that were in the SLR-XA aren’t necessarily in that - that coastal erosion where that coastline’s going to move, but we’ll experience either highway runoff or co- passive flooding. And so, in that approach - you know - when you see the maps with SLR-XA, a lot of people freak out and they’re like, Whoa. That is where all of the land is going to be, and it is like, No. No. That is where once a year, a predicted wave is to come up. So, the proposed path can accommodate that - that by being elevated, essentially. But, we’re real grateful that Doug and Jared’s folks really went through a thorough and exhaustive sea level rise exposure area to address climate change and sea level rise, and - and we’re confident path will be able to meet the mitigating necessities of the future. Mr. Chang: Thank you. Ms. Cox: Thank you. I have to say that I think it is great that there is going to be this addition to the ability for people to travel in a multi-modal way, and I know it’ll get a lot of use. Chair Nogami Streufert: Mr. Ho, did you have a question? Mr. Ho: Sure. Uh, Jared how is this being financed? Is it guaranteed? Can we start a project and finish it? Or do we have to do it in increments or sections? Mr. Haigh: This is Doug Haigh, Department of Public Works, and Building Division. I am probably the best one to answer that question. Funding is a challenge today and I know - actually, my request for extension of time was greater, but the Planning Director brought me back to your guys’ needs and reality. It’s a challenge. Right now, Federal Highway funds are the primary source of funds to build the path. We are fortunate right now - we have enough funds - construction funds - obligated to complete the path from Lydgate Park to Kealia - getting that last section. This will be the next phase. Right now, we have design - some design money committed to start that was programmed, but we do not have construction moneys programmed yet. It’s become more of a challenge for the path because it used to be the path was the only Federal Highway funded projects that County was going for, but now, the Engineering Division has gotten, a little more aggressive. And so, they’ve got a lot of projects. So, it’s - we have a certain pot that’s available each year from Federal Highway, and the administration’s going to have to make the decisions on where that money - you know - what we’re going to spend the money on. This project will qualify 100 percent Federal Highway fund, to proceed. We are dividing it - breaking it into at least two phases, and we would like to do the Ahukini Landing to Hanamaulu Beach Park as the first phase. It has, it is going to be so gorgeous. You will not believe how nice that is. I am excited, but it is also a challenge because we do have to do an elevated boardwalk to get over that area Jared was talking about. We are recreating a train trestle 18 that was there many years ago. There was a wooden train trestle before, and now, we will coming in with a more durable maintenance minimum maintenance material there, but it is going to be expensive. So, what I’m hoping is we’ll have a huge stimulus bill in the next six months, and there’ll be some money there, and we can go forward, but it’s going to be a challenge. I would not be surprised if we came back and asked for time extensions on this project but I will be pushing to try to get the construction funds as soon as we can. Mr. Ho: With that, Jared had asked for that time frame of two years to start and four to complete. So, that’s - that is here and there. It could change. Mr. Haigh: Yes. That is highly optimistic. Mr. Hull: Yeah, and to that, Commissioner, I did speak with Doug, yesterday about this. He’s been this issue and I’ll echo what’s Doug’s saying is that a two-year start and four-year completion is extremely optimistic. I would anticipate it taking longer. If the Department in hearing the proposal from Jared, would make a friendly amendment to our recommended Conditions on approval for our Condition No.7, to specifically say that the applicant shall obtain the necessary building permit and commence construction within two years from the date of approval of the SMA permit, and complete construction within four years from the date of approval. So, we will make that verbal amendment to our report but like Doug is saying, more than likely, they’ll have to come back to you folks for an extension. Chair Nogami Streufert: Okay. There were some concerns that were, raised about monk seals and where they might be nesting or resting. Are you - are you going to be working with DLNR or with the Mock Seal Project for stakes to put up safety areas for these monk seals should they be - should they rest on the beach or anywhere close to the - to the walkway? Mr. Chang: Yes. We did that through section 7, consultation with Fish and Wildlife Service plus the National Marines Fishery Service and we ended up with a (unintelligible) determination. Um, so, we - we did have more mitigations in the event that we were going to use lights- you know - to protect sea birds, and monk seals I don’t have it right in front of me, but whatever mitigations those agencies gave to us to consider, we did incorporate them and will be carrying them forward. So, I - you know - off the top of my head, I don’t remember if we had ones for monk seals, other than maybe if they were at the boiler plate sort of mitigations, but basically, we’re not touching any of the shoreline areas with - with sand and what not. Chair Nogami Streufert: Great. Thank you. But when you get to Nukuli’i, you might be hitting into some of the areas. I am not quite sure where these monk seals are supposed to be there, but the - this was a concern and I just wanted to bring it to your attention before we concluded. Mr. Haigh: Okay. Let me... I can comment further on that issue. We did have another consultant on board prior to SSFM. We have been working on this for over 10 years. And at the beginning, we were looking at alternate routes, and some of them went close to the beach by Nukuli’i, and 19 that’s where the main monk seal issue concerns were was raised, and what we did is redesigned the path and moved in more Mauka. So, we really are significantly away from a monk seal area, and with our final approval by Fish and Wildlife, National Marine folks they concur. Mr. Chang: I can tell you what the mitigations for monk seals were. So, we basically have to survey our construction areas for any monk seals to make sure none are present, and if any are present, then we have to cease construction until the monk seal leaves. Those are the mitigations. Chair Nogami Streufert: Okay. Any other questions for the representatives for the, uh... Mr. Ho: I have a question for Doug. This will, uh, this bike path - you are going to need service personnel when it has completed - County service personnel. You are going to need people to take care of it, clean it - the maintenance of it. Does, Federal Highways Act subsidize any of that? Mr. Haigh: No. Federal Highways does not pay for maintenance for any of the projects that they fund. That is a local responsibility. They do help us develop facilities and to design projects for minimum maintenance. As an example, at Lydgate Park, Federal Highway funds paid a maintenance building to assist - and that is kind of, like, the main maintenance building to assist managing the path also at Kealia Beach. Part of that comfort station is a maintenance storage room to help manage maintaining the path. Department of Parks and Recreation has been doing an excellent job on the maintenance, and of course, during construction and design, we do everything we can to minimize maintenance So, we’re spending, we’re using expensive materials sometimes spending more money up front to try to minimize costs in the future. Mr. Ho: Thank you. Chair Nogami Streufert: Are there any other questions? If not— Mr. Chiba: I do, Madame. I like the project. Everything is good, but my big concern is safety for the bike path along the highway - along the number 10 (inaudible). What kind of discussions have you guys had with regards to safety in that area? Because we have had accidents where cars have run off the road into the golf course area. Does anyone have any thought on that? Mr. Chang: They… we are going to be outside of the highway right-of-way. And so, there’s actually a little, kind of a vegetative buffer already from where we’re going to have the path and the highway. That is about it, though. We are not in- incorporating any improvement on the - the highway right-of-way for safety, but through that section along Wailua Golf Course, the path will have fences on - on actually both sides. So, that’s - you know - one safety measure. Yeah. Mr. Haigh: You know— Mr. Chang: You know, (inaudible) golf balls - yeah. Go ahead, Doug. Mr. Haigh: Yeah. I will add to that, as we get into final design Kauai District - Hawaii 20 Department of Transportation, Kauai District Office - we will be reviewing the plans. If there’s concern about safety from the road, we would probably add guard rails as part of the project, but we would be deferring to the Kauai District Office and Kauai District engineer to help guide us if such safety requirements are recommended. Mr. Chang: Thanks, Doug. Mr. Chiba: Thank you. Chair Nogami Streufert: Are there any other questions? If not, are we ready for a motion? Could we have a motion to either accept or reject this - the, uh, Directors re- recommendation? Ms. Apisa: I was making - I was making a motion, but I was on mute. Sorry about that. I move that we approve, um, Special Management Area Use Permit (U)-2021-3 as recommended by the Planning Department, including modification to Condition No., 7, with a two-year start date and a four-year completion for the construction of a multi-use path extending from Ahukini Point to the existing path at the northern section of Lydgate Park. Ms. Cox: I second that motion. Chair Nogami Streufert: It’s been moved and seconded that we accept the Directors report and recommendations as amended. Any discussion? If not, could we have roll call vote, please? Mr. Hull: Roll call, Madame Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Commissioner Cox? Ms. Otsuka: She texted saying that her internet went down. Chair Nogami Streufert: Oh. Ms. Otsuka: So, I am not sure if I am allowed to, but her text says, Internet went down. Will try to get back in or phone, but if vote comes up before, vote I would be in favor of the path. Mr. Hull: I do not think officially, we can count that, Commissioner, but I will continue through the roll call. So, Commissioner Cox is going to be noted as silent. Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? 21 Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 6 Aye.1 silent. Madame Chair. Moving on to agency hearing for— Chair Nogami Streufert: Point of record, if at some later point in time Dr. Cox were to submit her vote, would that - would that be possible? Mr. Hull: I will defer to the attorney on that. Teresa, are you monitoring? Deputy County Attorney Teresa Tumbaga: Hi. Sorry. This is Teresa Tumbaga. The question is if she were to come back on and want to vote. Was that the question? Chair Nogami Streufert: What - yes. Or to vote? She told us how she wants to vote, but obviously, it is not in person. In text - and she was voting in favor of it. Is there any way to, these are unchartered times for all of us. Ms. Tumbaga: Right. Chair Nogami Streufert: We are not quite sure how this works. Ms. Tumbaga: Regardless - you know a silent…let me double-check the rules. Can you give me a minute? Mr. Hull: Sure. I can, Okay. I can affirm that a silent vote is pursuant to our rules, does run with the majority. So, counting as a silent would I think, Teresa - be counted, technically, as in favor, but being that she’s absent from the meeting, I’m not sure. Ms. Tumbaga: Let me just take a quick look. Ms. Otsuka: The thing is with Helen, she is very passionate about this. So, I think she would.... (Inaudible) her (inaudible) on it (inaudible). Chair Nogami Streufert: With her (inaudible) - if she is very - yeah. Right. Very passionate about it. So, for the (inaudible)... Ms. Otsuka: (Inaudible) a second text saying, I was kicked back again. I vote in favor. Chair Nogami Streufert: Right. 22 Ms. Otsuka: So, two texts. She would appreciate her name on this. Ms. Tumbaga: Hi. This is Teresa again. According to the Commission’s rules, rule 1-2-14(b), it states that, unless a member is excused from voting, his silence shall be recorded as an affirmative vote. Chair Nogami Streufert: Okay. Ms. Tumbaga: Does that satisfy the Commissioner? Ms. Otsuka: Thank you. Chair Nogami Streufert: We were trying to see if she could have an affirmative vote affirmatively, as opposed to in silence, as she would put it. Let us put it on the record that although she has a silent vote, on text messages but because she was (inaudible) kicked out of internet - she does not have an internet connection - she did want to vote positively or favorably for this. I think she might have called in. We will wait for a few more sec or half a minute or so. And if that doesn’t work, then we’ll continue on with the agenda. We have a large agenda today. Ms. Tumbaga: Hi. This is Teresa again. Did the Commission want to take a short recess to work on reconnecting with Commissioner Cox? Chair Nogami Streufert: She was trying to call in, rather than going on the internet. She was going to call in her vote on the phone. Ms. Tumbaga: Oh. Okay. Chair Nogami Streufert: And (inaudible) we will continue on, but— Woman 4: (Inaudible) still on the call? What time is your doctor’s appointment? Chair Nogami Streufert: Someone else is on the, please, whoever it is on - you may want to mute your phone. Woman 4: Oh. Chair Nogami Streufert: Your call. At this point, since we have not heard from Helen, let us take a 10-minute, uh - 10-minute recess, and come back at 10:30 a.m. Can we do that? Mr. Hull: Yeah, Madame Chair. So, we’ll take a 10-minute break and returning at 10:30 a.m. Commissioners, do not leave the line. Sometimes it is harder - I think this is Commissioner Cox coming in right now. Chair Nogami Streufert: We will take a 10-minute break. Then, see whether she can get back in on the internet and this will be a good time for a break, anyway (inaudible). 23 Mr. Hull: Okay. All right. Ten-minute recess, returning at 10:30 a.m. The Commission recessed this portion of the meeting at 10:17 a.m. The Commission reconvened this portion of the meeting at 10:30 a.m. Chair Nogami Streufert: Call the meeting back to order after the recess. Mr. Hull: And so, Commissioner Cox is on the line. Would it be okay for you just to have a re- roll call or is there a procedural process to this? Ms. Tumbaga: I think since the - I mean Commission really quickly went to their voting and then completed the voting process you know, again, it is in the record of the Commission that she was only not present because of technical difficulties and the silent vote is a permanent vote according to the rules. If the Commission would like to redo the vote, they could do a motion to reconsider. Though typically that is for other reasons but if they would like to say, “We want to do this motion because one of our Commissioners was not present for the vote due to technological difficulties.” That is another option too. Chair Nogami Streufert: I think it would be good to - Helen are you going to be with us by phone. Ms. Cox: I am just going to - yeah. I am going to just stay on the phone for a while until I know my husband’s off that other meeting. Chair Nogami Streufert: (Inaudible). I would -I will entertain a motion to redo the vote so that every - while we have everyone here. Ms. Cox: I move we redo the vote. Mr. Hull: Sorry, sorry. Can I interject a little bit? If we’re going through the reconsideration process then a request for reconsideration can be made by a Commissioner that voted in the affirmative. Since all of you did, any Commissioner can make it. So the official motion will be to re- reconsider Special Management Area - SMA Use Permit 2021-3. Chair Nogami Streufert: Do I have a motion to reconsider? Ms. Cox: I move that we reconsider the vote for SMA 20- sorry. I lost the number. Whatever Kaaina said. Ms. Otsuka: 2021-3. Chair Nogami Streufert: Helen cannot— Ms. Cox: Yeah okay. Thank you. There it is. 2021-3. Chair Nogami Streufert: Okay. Helen cannot make that motion. She was not voting on this. 24 Ms. Cox: Oh. I thought I could because I was in the affirmative. Chair Nogami Streufert: Is that an affirmative vote or is that just by being silent? Ms. Cox: Oh sorry. I thought from what Kaaina said I was affirmative. Ms. Apisa: If you are affirmative, we do not need to revote. Mr. Hull: Correct. Ms. Cox: Yeah but I was silent which turned me into affirmative. Chair Nogami Streufert: Could we have someone else, (inaudible) to reconsider this? Ms. Otsuka: I make a motion to reconsider for holding Special Management Area Use from an SMA Use 2021-3 to allow construction of a multi-use path extending from Ahukini Point to the existing path at the northern section of Lydgate Park due to the fact that a Commissioner had technical difficulties and would appreciate a revote. Chair Nogami Streufert: Is there a second? Mr. Chiba: I second. Chair Nogami Streufert: It’s been moved and seconded that we do a revote. All those in favor say? Aye. All those opposed? (Unanimous voice vote). Okay. so Kaaina then let’s do a roll call vote please. Mr. Hull: Okay. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? 25 Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Okay. So the motion passes 7:0. That motion was just to reconsider. So now, a motion needs to be made— Chair Nogami Streufert: We did reconsider that. Mr. Hull: So formally you have only - the body has only approved reconsidering it. Now that you folks are reconsidering it, if there is any further discussion on the permit application then you would also need a motion to take action now on the permanent applications. Chair Nogami Streufert: Okay. Could I have a motion to accept the Special Management Area Permit SMA-21-3 as amended? Ms. Apisa: So moved. Chair Nogami Streufert: Is there a second? Ms. Cox: Second. Mr. Ho: Okay. I second. Chair Nogami Streufert: Okay. It’s been moved and seconded. Could we have a roll call vote please? Mr. Hull: Roll call. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? 26 Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0, Madam Chair. Chair Nogami Streufert: Great. Special Management Area Use Permit SMA (U)-2021-4 for construction of a 9,000 sq. ft. warehouse/repair facility and associated site improvements (parking & fencing) on a parcel located within the port Allen Industrial Subdivision, along the makai side of Aka Ula Street, approx. 650 ft. east of its intersection with Waialo Road, further identified as Tax Map Keys: (4) 2-1-003:016 (Por.) & 031, and containing a total area of 40,762 sq. ft. = Tink Tank, LLC. Mr. Hull: Moving on to next Agenda Item F.2.c Special Management Area Use Permit SMA (U)- 2021-4 for the construction of 9,000 sq. ft. warehouse repair facility and associated site improvements, parking and fencing on a parcel located within the Port Allen Industrial Subdivision from the excuse me - along the makai side Aka Ula Street, approximately 650 feet east of its’ intersection with Waialo Road, further identified as Tax map Keys: 2-1-003:016, and 031 and containing a total area of 40,762 sq. ft. The application is Tink Tank, LLC. This is the agency hearing portion of the agenda. Is there anyone that is involved in that would like to testify as a member of the public on this agency hearing for the Tink Tank application? I will hold for 5 seconds. Please speak if you do need to or if you would like to testify. Hearing none. Madam Chair the Department is not in receipt of any other additional testimony for this agency hearing. The Department will recommend closing the agency hearing. Chair Nogami Streufert: Is there a motion to close the agency hearing? Ms. Otsuka: I move that we close the agency hearing for Special Management Area Use Permit SMA (U)-2021-4 for the construction of a 9,000 square foot warehouse repair facility. Applicant Tink Tank LLC. Ms. Cox: Second. 27 Mr. Chiba: Second. Chair Nogami Streufert: It’s been moved and seconded. Are there any discussion on this? Let’s do a voice vote on this. All those in favor of closing the Agency hearing say? Aye. (Unanimous voice vote). All those who opposed? Nay. Motion passes 7:0. Chair Nogami Streufert announces Agency hearing is closed. Mr. Hull: Thank you Madam Chair. I will turn it over to Dale again, for the Director’s Report on this application. Dale, you might be muted. Staff Planner Dale Cua: Sorry about that. Thank you, Madam Chair and members of the Planning Commission. The project is situated in the Port Allen Industrial Subdivision. The project site is along the Makai side of Aka Ula Street in Port Allen and approximately 600 feet east of the intersection with Waiala Road. Surrounding area is within the general industrial zoning district. Mr. Cua read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Hull: Hold on a second Dale, hold on. Sorry, for the members of the public that have called in, please mute your phones. We are getting a considerable amount of feedback and it is easier if folks mute your phones. If not, we as the organizers will mute all phones and you’ll be responsible to unmute it on your end when you want to speak, so we’ll give you 5 seconds to please mute all your phones. Thank you. Go ahead Dale. Mr. Cua: Okay. Not a problem. So at the bottom of Page 8 of the Director’s Report, I’d like to make a correction. In the recommendation, the proposal would be a 9,000 square foot warehouse repair facility. Not what is noted there? Also, in the recommendation, the Department would like to introduce two new Conditions and if it’s appropriate at this time maybe I’ll read out these conditions. Condition Number 10 would read, “The applicant shall provide a minimum of 18 off-street parking stalls plus the number of disclosed company vehicles.” And there’s Condition Number 11 would be an environmental assessment fee pursuant to Section 11A-2.2G shall be due at the time of building permit application. And that concludes Department’s presentation of the Director’s Report. Chair Nogami Streufert: All right, (inaudible). If not, is there any one from the from Tink Tank available? Mr. Johnathan Chun: Good morning, Madam Chair. Jonathan Chun on behalf of the applicant Tink Tank. I hope I am off my mute. Mr. Hull: Yes. 28 Chair Nogami Streufert: Yep. Mr. Chun: Good. Chair Nogami Streufert: Look at me. Thank you. Mr. Chun: Anyway, uh, this is Jonathan Turner on behalf of the applicant Tink Tank, LLC. We have reviewed the preliminary report and the recommendation of the Department. We have no objections to that. We would agree to provide the 18 parking stalls. The property has more than enough space to do that. So we have instructed the architect to add in the additional parking spots somewhere on the property. Chair Nogami Streufert: And 11 also (inaudible)? Mr. Chun: Yeah. We originally provided for 13. The Department’s Report recommended 18. We will gladly do that. That is not an issue with us. That tend - there is more than enough room on the property to accommodate the additional stalls. Uh, in addition the - the (inaudible), designates two spots within the property for the company’s trailer and truck I believe. They already - they are designated within the - because everything is stored within the warehouse itself. Chair Nogami Streufert: Jonathan, I was asking about Condition Number 11 - a new Condition in Number 11, which is an EIS fee. Mr. Chun: Oh, yes. No objection to that. That is fine too. That is required by the ordinance so we totally understand that. Chair Nogami Streufert: Are there any questions from the Commissioners to Mr. Chun? If not, do we have a motion to accept or can we have a motion on this? Ms. Apisa: I move that we approve Special Management Area Permit SMAU 2021-4 as recommended by the planning department with a modification with the addition of Condition Number 10 and 11 for the construction of a 9,000 square foot warehouse repair facility and associated site improvements. Mr. Ho: Second. Chair Nogami Streufert: It’s been moved and seconded that the Director’s Report and approval of the 9,000 square foot warehouse and repair facility as amended. Is there any? If not, roll call vote on this. Mr. Hull: Roll call, Madam Chair. Commissioner Apisa? Ms. Apisa: Aye. 29 Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0. Madam Chair. Special Management Area Use Permit SMA (U)-2021-5, Class IV Permit Z-IV-2021-6, and Use Permit U-2021-5 for the construction of a farm dwelling unit and associated improvements within Lot 15 of the Seacliff Plantation Subdivision in Kilauea, involving a parcel situated at the terminus of Makana’ano Place, approx. 1,200 ft. east of its intersection with Pali Moana Place , further identified as Tax Map Keys: (4) 5-2-004:088 and containing a total area of 5.11 acres. = Ellen and Paul Baker. Mr. Hull: Motion passes Madam Chair. Moving to the next agenda item. Agency Hearing 2D Special - Special Management Area Use Permit SMA(U)-2021-5 Class IV Zoning Permit 2021-6 and Use Permit U-2021-5 for the construction of a farm dwelling unit and associated improvements within Lot 15 of the Seacliff Plantation Subdivision in Kilauea involving a parcel situated (inaudible) approximately 1200 ft. east of its’ intersection with Pali Moana Place further identified as Tax Map Key: Key5 -2-004:088 and containing a total area of 5.1 acres. The applicant is Ellen and Paul Barker. This is the Agency Hearing portion of the agenda. Has anybody called in as a member of the public that would like to testify for this agency hearing for these permits? Please speak now. I will hold for 5 seconds. Hearing none, Madam Chair, the Department is also noting that we have not received any public testimony for this agency hearing. The Department recommends closing the Agency Hearing. 30 Mr. Ho: Move to close agency hearing. Ms. Otsuka: I second. Mr. DeGracia: I second. Mr. Hull: Chair, I believe you are muted. Chair Nogami Streufert: It’s been moved and seconded that we close the Agency Hearing. Is there any discussion? If not, we voice vote on this. All those in favor I? Aye. All those who opposed? Nay. Motion carried. 7:0. Chair Nogami Streufert announces Agency hearing is closed. Mr. Hull: With the agency hearing close, I will turn it over to Dale for the Director’s Report concerning this agenda item. Staff Planner Dale Cua: Thank you. Project site is located within the Seacliff Plantation Subdivision in Kilauea. Physically the project site is 1 mile east of the Kilauea Lighthouse. It is situated on the Makai side of Makua Ana Place and approximately 500 feet of it’s’ intersection with Pali Moana Place. Mr. Cua read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Cua: The project again is subject to various policies, which include the SMA Development Standards, the North shore Planning Area and CZOD Development Standards. Specifics are contained in the Director’s Report and the applicant has addressed the Use Permit criteria in their application. At this time, this concludes the Director’s Report. Chair Nogami Streufert: All right. Are there any questions from the Commission from planner? Do we have any start and end dates for the construction of this? Mr. Cua: Let me see. Mr. Hull: (Inaudible) rules, Madam Chair. It just standard 1-year to start and 2 years to complete substantial construction. Chair Nogami Streufert: Okay. Is there any description for what a farm dwelling is? Mr. Hull: So pursuant to HRS205, a farm - on state land and agricultural lands, only farm dwellings are permissible. Not just straight outright single-family dwellings. But a farm dwelling is essentially a single-family dwelling that is associated with farm activity occurring on the property. Like I say it is required for all farm dwellings, that receive zoning approval that they also have to execute a farm dwelling agreement, which is a legally binding document saying that 31 the single-family dwelling will be used in association with farming activity. The flip side of that issue though is that there is no hard and fast thoroughfare. There is a criteria with farming with exception of growing certain plants. So, there’s no set criteria that applicants are held to in most of these farm dwelling agreements. Chair Nogami Streufert: Condition 9 has changed from earlier things that we have had for building. Mr. Hull: And this is the Condition concerning, being able to meet local construction and union employment? Chair Nogami Streufert: Correct. Mr. Hull: So Dale I think what the Chair is trying to bring out is that there’s been a new line added from the template standard, um, construction condition that states, “It is recognized that the applicant may have to employ non-Kauai residents for particular skilled jobs where no qualified Kauai residents possess such skills.” Mr. Cua: Okay. Mr. Hull: So is - was there I guess, you know, as the Director, you know, do you know why that adjustment was made? Because I was not aware. Mr. Cua: No. I am not aware myself. I can research similar projects just to make sure that the language would be consistent with what have been proved recently by the commission. Chair Nogami Streufert: Okay. If there are no other questions for the planning department, do we have a representative? Is there anyone for this application? Mr. Hull: Is there - is there an applicant on the line to discuss this project? I believe Paul and Ellen Baker or have you folks called in? Mr. Paul Barker: Yeah. We are online. Sorry about that. Ms. Ellen Barker: Can you hear us? Sound check. Mr. Hull: Yep. Mr. Cua: Yeah. Mr. Hull: We can hear you loud and clear. Chair Nogami Streufert: Would you like to present anything about your proposal? Mr. Paul Barker: Nothing other than this is a plan to be our permanent home here in Kauai so we are excited to get started and we hope to be an asset to the community. 32 Chair Nogami Streufert: Do the commissioners have any questions for the applicants? Mr. Ho: I believe Kaaina alluded to a start date for your property here. He said after we grant (inaudible) you have 1 year to start and 2 years to complete. Is that suitable to you? Mr. Barker: As far as we know, you know, with COVID, who knows but that would be a general reasonable expectation of ours to have it complete within 2 years. Mr. Ho: Thank you. Mr. Hull: Let me just interject real quick. Again, guys that have called in, we’re getting a certain amount of feedback. If you could - if you are not speaking please mute your phones or - or we will - we will be forced to mute all of your phones as well. So if you are not speaking please mute your phones. Go ahead Chair. Chair Nogami Streufert: (Inaudible) calling right now. Okay. If the - all right. Are there any other questions for the applicants? If not, we have a (inaudible). Ms. Apisa: I move to approve Special Management, uh, Use 2021-5 Class Iv Zoning Permit Z- IV- 2021-6 and Use Permit 2021-5 for construction of a farm dwelling unit in associated improvements on Lot 15 of the Seacliff Plantation Subdivision as recommended by the Planning Department. Chair Nogami Streufert: As - it’s been moved (inaudible) to approve the (inaudible) Special Management SMA (U)-2021-5 Class IV Zoning Permit Z-IV-2021-6 Use Permit U-20 21-5. Are there any discussions? If not, do a roll call vote on this please? Mr. Hull: Roll call, Madam Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? 33 Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0, Madam Chair. Chair Nogami Streufert: Congratulations. Mr. Barker: Thank you very much. Ms. Barker: Thank you. Special Management Area Use Permit SMA (U)-2021-6 to allow construction of a Guest House and Carport on a parcel situated near the terminus of Opelu Street in Hanalei Town, approx. 150 ft. north of its intersection with Pilikoa Street, further identified as 5079 Opelu Street, Tax Map Keys: (4) 5-5-010:040, and containing a total land area of 8,300 sq. ft. = Wilcox Family Limited Partnership. Mr. Hull: Moving next to Agenda Item F.2.e, Special Management Area Use Permit U-2021-6 to allow construction of a guest house and a car port on a parcel situated in the terminus of Opelu Street in Hanalei Town, approx. 150 ft. north of its intersection with Pilikoa Street, unidentified as 5079 Opelu Street, Tax Map Key: 5-5-010:040, and containing a total land area of 8,300 sq. ft. The applicant is the Wilcox Family Limited Partnership. This is the Agency Hearing of the agenda. I can note that we have received, sorry, we have received a letter from an Andrea Sopranski, dated 12/7 on this particular agenda item that has been transmitted to you folks and officially folded into the packet. Again, this is the Agency Hearing of the portion. Is there any member of the public that has called in that would like to testify on the Wilcox Family Limited Partnership? If so please speak now. Ms. Andrea Sopranski: Yes, this is Andrea Sopranski. I do not know if you are referring to me as a - or a person as a part of the Wilcox family. Mr. Hull: Are you part of the application, ma’am? Ms. Sopranski: No, I am the one who, uh, sent you a letter. Mr. Hull: Okay. Yeah, then this would be your time to - to testify if you’d like to. Ms. Sopranski: Yes. I would like to testify that this is going to be crowding the area due to flooding we also have, it backs into the pond and a lot of the water gathers at the back part of the property and it’s, like, sort of with, like, the hill is short of going downslope and I don’t know if 34 there exactly 8300 square feet still there. I do not know when was the last time that the land was actually surveyed but I am very concerned about the noise level, the lighting. It is gone take up the entire mountain view of mine. It will take away the quality of my lifestyle. I do not think I will be able to, like, excuse my language but I think I will hear them fart. I have the neighbor on the right - we are in a CPR - so there is only 10 feet on the right so on the left with only 10 feet I am going to be completely smashed in with no view. I was holding art classes here for Patrick Ching and having the neighbors come and join, children come and join, you know, vacation people wanting to experience Hanalei and paint the actual mountains right in front of us. It was a beautiful experience and so my kitchen, my entire li- living space -- I am permanent resident. I do not rent. I have never rented this place. I live here full-time, and for me this is going to radically change my life having a guesthouse, two-story plus a carport, plus considering the land to me is very fragile. After experiencing the flood every single time it rains it floods in the back. And so there’s a considerable amount of footage that doesn’t it into the 8300 square feet that was planning on putting two full huge homes. It is not even - to me it is a full-size home having a kitchen, plumbing, LB, you know, lighting, all the sounds, uh, laundry, all the machines that go in. Then they want to install a septic tank right in front of my window, like, literally right against the property line. So I’m going to be instead of staring at the mountain, a septic tank and two homes completely smashing me in. Um, I believe the noise will reverberate around the entire cul-de-sac as we all face each other and the noise level is already extreme as every single house is rented out to capacity, um, with vacation rentals so they have 10 to 20 people in each home. So as a single person living here with an artistic lifestyle and a musician on top of it I have to say this will radically affect my lifestyle to make it almost impossible to live a normal life. This is quite a project they have here and I just want to mention also they have an outdoor shower backing right up to the end. They have a lot of stuff going on here with cement— Mr. Hull: Three minutes. Ms. Sopranski: And this everything that I look (inaudible)... is up to the mount— Mr. Hull: Andrea, if you could wrap it up, please. You have a three-minute limitation. Ms. Sopranski: Okay. And that’s it. It’s that is all I wanted to say is that I really am concerned about the noise and wanted to know also if they intend on renting this out as a guest unit. I notice it is an ABL and I wanted to know if it was permitted to rent out as well and what is happening there. That’s my - that is it. Mr. Hull: Thank you for your testimony, Andrea. Is there anyone else that is called in that would like to testify on this agenda item? This is an Agency Hearing for the application for the Wilcox Family Limited Partnership. Is there anyone else that would like to testify? You can speak now. Ms. Jackie Shockley: Hi, yes, I would like to back up everything Andrea said. I am one of the neighbors as well. Mr. Hull: Sorry, ma’am...ma’am. Ms. Shockley: Yeah? 35 Mr. Hull: Excuse me, if you could identify yourself and you have three minutes for your testimony. Ms. Shockley: Yeah, sure, Jackie Shockley. I would just like to say that I think the density might be a little bit high and I’d like to have somebody come out and recheck the boundaries of the of the lot to make sure the density is in conjunction with the project that they’re asking to put on the piece of land. Again, it is going to affect the senses, the, you know, the site, the sound now. So there’s going to be several different senses that are going to be affected for all neighbors combined and again this land has been used also as, you know, just open space in the neighborhood. And so if you could just double-check the, you know, the process of, um, the density on this particular land that would be great, and then also the usage. Someone had mentioned that there is a potential that there might be another vacation rental instead of just this family living on this property or a person living on this property. So I just want to make sure, um, the usage as well as the density that’s it’s in line with what the county has already recommended and it’s not a variant. Mr. Hull: Thank you for your testimony. Is there anyone else that is called in as a member of the public that would like to testify in this agency hearing for the Wilcox Family Limited Partnership? If so, if you could please speak. Mr. Fernandez: Yes, this is Aaron Fernandez. I’m also a neighbor and I’d say my questions are not to be redundant but maybe just to be clear, curious if the - if the home has a TVR rental and if the stand-alone unit that they’re proposing is, uh, intended to be an ABU, um, that would also be rented. So that’s -those are the questions for me. Thank you. Mr. Hull: Thank you for your testimony. Is there anyone else that has called in that would like to testify in this agency hearing for the Wilcox Family Limited Partnership application? If so, please speak. Hearing no further testimony. Madam Chair, the department would recommend closing the agency hearing. Chair Nogami Streufert: Could we have a motion to close the agency hearing, please? Mr. Ho: Move to close the agency hearing. Ms. Otsuka: I second. Chair Nogami Streufert: The motion is seconded to close the Agency Hearing on Special Management Area Use Permit SMA (U) - 2021-6. Are there any discussion? If not, we will just do a voice vote on this. All those in favor of closing the Agency Hearing, aye. Commissioners: Aye. Chair Nogami Streufert: Aye. All those who opposed? Nay. Motioned carried. 7:0. Chair Nogami Streufert announces Agency hearing is closed. Mr. Hull: With the agency, hearing closed, Madam Chair, I will move it over to Dale to give the Directors a Report. As far as some of the testimony that has come up, I can say that - that no, they would not be allowed to rent either the single-family dwelling or the proposed guesthouse 36 as a vacation rental. That would be prohibited in this area being that they would not be able to obtain a non-conforming use certificate. And as far as the density, it does qualify for a single- family dwelling and a guest house. So, pursuant to Special Management Area Rules and Regulations as well as HRS 205 the single-family - the first single-family dwelling is exempt from SMA review, which is why it is not part of this petition. But the Department does interpret the guest house as separate and apart from the single-family dwelling and that exemption is not applicable which is in essence why it’s before you folks today. I will turn it over to Dale for the Directors Report. Staff Planner Dale Cua: Thank you. As previously noted the project site is located along Opelu Street within the Hanalei Palm Subdivision in Hanalei. Physically the project site is approximately a quarter mile south of the Hanalei pier. Mr. Cua read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Cua: The project will be subject to various policies, which include the North Shore Planning Area and the SMA policies as well as the CCO Development Standards. They are referenced in the Department’s Direct Report and evaluated as such. And that pretty much concludes the Director’s Report at this time. Mr. Hull: Are there any (inaudible)? If not, is there someone representing the Wilcox family here? Mr. John Kegal: Yes, this is John Kegal. I am the architect. Chair Nogami Streufert: Okay. Mr. Kegal: And yeah, I am just on audio only I am afraid. My camera is not working this morning. Chair Nogami Streufert: All right. Would you like to present your plans for this location? Mr. Kegal: Sure. Yes, so as indicated in the use permit application, we are proposing a single- family dwelling that is I believe the permit has already been approved - the building permit, um, which we, you know, made every effort to keep as compact as we could. It is about 1000 square feet on the lower level and another 400 on the second story with a189 square-foot covered lanai. So we, you know, it is a three-bedroom, two- bathroom home with a really compact blueprint, you know, trying to be sensitive to the lot coverage and density issues that are of concern. The guest house is a two-story structure with 500 square feet of living area above the car port. Um, the concerns for lighting and noise that’s, you know, people living in the guest house day to day we don’t really have, you know, there’s one kitchen window, a jalousie window kind of in the corner that would be facing the neighbor to the north as well as just one window from the bathroom. Uh, so we did kind of, you know, make every effort to minimize the amount of, you know, just talking and going about your life kind of noise emanating from the house toward the neighbor. There is no proposed lighting or anything on that side of the house facing the neighbor. 37 The reason for it being two stories is, again, you know, just trying’ to minimize the amount of construction required and lot coverage and density. You know, it made a lot sense to us to take the approach of having parking below rather than, you know, building another, you know, a one- story garage and a one-story guest house, so those are kinda some of the intentions behind the design, from kind of a program and seismic standpoint. Architecturally, aesthetically, we were very consistent with other homes in the neighborhood. It is a traditional design with a - a hip roof and board and bat siding, and combination of picture windows and jalousie windows. So we are not you know, we are not proposing any kind of atypical, um, construction method or aesthetic or anything there. Um, both buildings are fully compliant with all, uh, flood requirements for drainage. We are not altering any of the natural flow on the property. We do have a survey that was done recently that kind of - we are working from in determining the elevations. Uh, we are well below our allowed lot coverage and both buildings are compliant with, um, overall building heights, plate height requirements, um, all those sort of things. Um, so I guess that is about it for me and, um, I would be happy to answer any questions anybody may have. Chair Nogami Streufert: Commissioners, are there any questions for the applicant? Ms. Apisa: This is Donna. I - just to clarify, there is already an existing house or you are building the house and the guesthouse? Mr. Kegal: The proposed house is permitted but has not been built yet. But there is an approved building permit ready for it. Ms. Apisa: Okay. Then you are just asking, this is to get approval for the guesthouse that is in the SMA? Mr. Kegal: Correct. Ms. Apisa: Thank you for clarifying. Mr. Kegal: Sure, my pleasure. Ms. Otsuka: Thank you for asking that question, Donna. I was not aware. I thought there was a house already on it. Chair Nogami Streufert: Just worried about sorry am I muted. No. There was a concern about the septic system being very close to your neighbor’s kitchen window I think she said. Ms. Sopranski: Yes, this is I. Mr. Kegal: The septic system is located on the opposite corner. So the neighbor to the north, the septic system is actually on the southeast or southwest corner of the property. And, given the - the low lying nature of the property over there it’s adjacency to the pond we did do a fairly elaborate septic system - an aerobic system with UV filtration so we really did take some extra expense and effort there in making sure we had a septic system that was going to be very eco- friendly. Ms. Apisa: Is that septic system— 38 Ms. Sopranski: My main— Ms. Apisa: Is the septic— Ms. Sopranski: My I speak. Mr. Hull: No, not right now. Ms. Sopranski: Okay. Mr. Hull: Is the septic system above or below ground? Mr. Kegal: It is below grade. It is buried. Mr. Hull: Okay. Ms. Sopranski: But the tank is above ground. That was my concern, the tank, LPG tank that is a big white - the gas tank. Mr. Hull: Ma’am that is time, it’s not public testimony time. Ms. Sopranski: Okay, forget it. Chair Nogami Streufert: Okay. All right. Any other questions for the applicant? I guess the question is why - what - what - what are we talking about here? We are not talking about a septic system then. Is that correct? I this is to the applicant. So the septic system is underground so that should not be— Mr. Kegal: Yeah, I - yeah, again their - I guess the question is regarding the gas tank. Uh, we will have, uh, gas appliances, um, so we will have a - a propane storage tank. And that is located on that northwest corner of fairly, you know, close to the property lines of both the street and and the neighboring property there. It would be perfectly reasonable for us to relocate that to a more agreeable position. There are a couple of guidelines that we need to follow with that placement and this is required by the gas company. So their requirements are for that tank to be within 60 feet of the service truck when it comes to fill it and then it needs to maintain a visual line of sight between the tank and the truck. So taking those two things into consideration, we can relocate that tank. It will probably need to stay on that north side of the guest house but it doesn’t need to be as close to the street as originally, um, intended and it’d be very easy for us to, um, screen it either with a wall or landscaping, anything like that. I mean that’s not something we want to see or, you know, my clients don’t want to see it either, um, so there would be every intention to - to provide, um, screening in either the forms of a short fence around it or - or landscaping. Chair Nogami Streufert: All right. Mr. Kegal: It would probably end up a combination of both. Chair Nogami Streufert: Are there any other questions for the applicant or the architect for the applicant? If not, could we have a motion? Oh wait, do we want to - before we do that do we want to hear what the the Conditions are - the Department’s report? The Planning Department— 39 Mr. Cua: I am sorry, Chair. Did you want me to read the Conditions of the project? Chair Nogami Streufert: We all have it in front of us so the question is do the Commissioners want to have it read or is having in your hand enough? Ms. Apisa: I think just to hear the recommendation is good enough for me. Chair Nogami Streufert: Do we want to add a Condition about the LPG tank or that they should work with the neighbors to resolve that issue? Mr. Ho: I believe when he places the tank he has - it’s to work with the neighbors would be sufficient. I do not think you need to make it a Condition. Chair Nogami Streufert: Okay so we are ready for a motion. Mr. Ho: Motion to approve Special Management Area Permit SMA (U)-2021-6 Tax Map Key: (4) 5-5-010:040, Wilcox Family Limited Partnership. Chair Nogami Streufert: Is there a second? Moved and seconded. Mr. Chiba: I second. Chair Nogami Streufert: It’s been moved and seconded. We approve of Special Management Area Use Permit SMA (U)-2021-6. Any discussion? Let us do a roll call vote on this one. I’m sorry, yes? To speak on this - the Commissioners? Okay. Then could we have a roll call vote, please. Mr. Hull: Roll call vote, Madam Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. 40 Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0. Madam Chair. Special Management Area Use Permit SMA (U)-2021-7 for demolition and reconstruction of a single-family residence on Lot 11 of Waioli Beach Lots in hanalei Town, approx. 100 ft. west of the Weke Road/Anae Road intersection, further identified as 5514 Weke Road, further identified as Tax Map Keys: (4) 5-5-005:018 , and containing a total land area of 15,224 sq. ft. = Deborah Boden Manoogian. [Director’s Report received by Commission Clerk 11/24/20.] Mr. Hull: Moving onto the next agenda item, F.2.f, Special Management Area Use Permit SMA (U)-2021-7 for the demolition and reconstruction of a single-family residence on Lot 11 Waioli Beach Lots in Hanalei Town, further identified as 5514 Weke Road, Tax Map Key: 5-5-005:018 and containing a total land area of 15,224 square feet. The applicant is Debra Bolden Manoogian. This is the Agency Hearing portion of the agenda. Is there any member of the public that has called in that would like to testify on this agenda item? Please speak now. Hearing none, the Department will note that a letter from Suzanne Kobayashi has been received for this application as well as a letter from Christine Kobayashi as well as a letter from Carl Emperado on behalf of Haena Community Association. I am sorry, was there somebody that called in that would like to speak in this agency hearing or the Manoogian application? Hearing none. Madame Chair, the Department will recommends closing the Agency Hearing. Mr. Ho: Move to close the Agency Hearing. Ms. Otsuka: I second. Chair Nogami Streufert: It has been moved and seconded to close the Agency Hearing. Any discussion? We will do this as a voice vote. All those in favor, say? Aye. (Unanimous voice vote) All those who oppose? Nay. Chair Nogami Streufert announces Agency hearing is closed. Mr. Hull: With the Agency Hearing closed; I will turn it over to Dale for the Director’s Report. Dale- I think you are muted, Dale. Staff Planner Dale Cua: Sorry again. The project is located on the northern side of Weke Road, west of the intersection with Anae Road. Physically it is approximately a quarter mile west of Hanalei Elementary School. Mr. Cua read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Cua: Project is subject to the objective and goals of the North Shore Planning Area as well 41 as the SMA rules and policies as well as the (CCO) Development Standards. They have been identified in the Director’s Report. And that concludes the Director’s Report at this time. Chair Nogami Streufert: Are there any questions for the planner? Are there plans—? Mr. Ho: I have a question for Dale. Dale? Mr. Cua: Yeah? Mr. Ho: When you - in an SMA zone when you demolish a building or destroy, the replacement building would it have to be the same size or within the same footprint as the original building? Mr. Cua: No, not necessarily. Mr. Ho: Does it have to have the same monetary value? Mr. Cua: No, because the rules have changed over the years. The current standard now is SMA use permit is required when the development exceeds a $500,000 threshold. Mr. Ho: Thank you. Mr. Hull: Yeah, and to that, I am Commissioner Ho, because I think what you’re getting at is that in some situations if it’s the same square footage and it’s the same footprint or monetary amount then it would be exempt from permitting. But it’s been determined that this is not exempt just because of the$500,000 threshold. And so this essentially is an application for a new residence essentially. Mr. Ho: Thank you. Chair Nogami Streufert: And they are two residences on this lot and only - only one is covered by this. Is that correct, the primary one? Mr. Cua: Yes, the one that was damaged during the - the rain event of 2018. Chair Nogami Streufert: It is still - it says it will be demolished. So is it still— Mr. Cua: Yeah, I believe it is still standing today. Ms. Apisa: What is the elevation on the proposed building, just because of floods? Mr. Cua: Yeah, for the record the current residence would have to be built in compliance with today’s flood requirements. So in this particular area there is a base flood elevation and I believe that’s noted in the elevation drawings. But the overall height of the building would be the base flood elevation plus 15 feet. Mr. Hull: Is that I think, too Commissioner Apisa, there’s a real concern about this residence 42 being that it was, you know, hit pretty hard and the rain ‘18 event and the need to reconstruct. And in your view and our view of it to ensure that it can adequately mitigate another rainy ‘18 type event; because it’s been proven in the history that in fact, flooding does occur here. So part of this application there was a pretty thorough analysis and review and proposal from the applicant’s side to not only elevate but also to deal with storm water. And I think the representative can go a bit further in detail with you folks on those particular measures. Ms. Apia: Thank you. Chair Nogami Streufert: Is there any other question for the planner? I thought I heard something in the background. I am not sure. If not, could we have the applicant? Where is the applicant? Mr. Ian Jung: Good Morning Commissioners, Ian Jung on behalf of applicant Debra Manoogian. Let me first apologize. There is some tree-trimming going on behind - outside my office so if I have some voice issue let me know and I will try to adjust. So just for a little bit of background when we embarked on this project we realized that there was the house and ADU on the subject property rather than the guesthouse. We undertook the Departmental Determination process to allow and recognize the demolition of the primary dwelling unit and the reason for the demolition is this property is unique. It is actually not in the flood zone required BFE is just outside the flood zone. It is on that knoll that kind of stretches through Weke Road there. But their prior design of the home had a little subterranean floor which during the rain event, you actually stepped down to go at a lower floor area almost as if it’s a basement. During the flood event water did intrude that area, so we had to come up with an alternative design to try and fill that area, as well as create a rather unique grading system to deal with water as it came onto the property because we have to capture all our own water and not allow the water to divert from its normal sheet flow. So if you look at Exhibit E.2 we have a grading plan that’s assigned to this project which created an elevation of the grade about a foot and a half with swales around it and then a contraption to capture water. Then piping to deliver the water to underground chambers similar to what you would have for a septic system. Esaki’s office, our engineer, did a great job in dealing with the situation that brings the grade up to a little bit of elevation to prohibit any future intrusion of water into the house. The new system that was designed would then capture that water and allow it to remain on site through the swales into the existing trap system that will be subterranean. And so there was great effort to deal with the issue to make sure water is monitored on the property and that the flooding event wouldn’t happen again to deteriorate the foundation that occurred on this particular property during the rain ‘18 event. So with that I hope that answers the question about how we preemptively tried to figure out solutions to deal with flooding in the future. And just to clarify the North Shore DPA does allow for 25 feet of height limitation so it is a two-story home. Without the BFE here, because we are above the flood requirement we can go up to 25 feet on the second floor. Chair Nogami Streufert: Okay. Mr. Jung: So with that I can answer any additional questions. If not, I know there was, we did and there was two things I wanted to follow up on the report, I know before Romeo left for 43 vacation we had some comments from the Hanalei to Haena Community Association based on the shoreline setback. One of the comments they asked for was a revised Condition to allow for monitoring and mitigation of any vegetative intrusion for Waioli Beach Park. We crafted an additional item as a Condition for that. Dale, did you get that in the packet? Mr. Cua: (Inaudible). Mr. Jung: And if so, I can read it into the record— Mr. Cua: Yes. In fact, I may have. Oh in fact, I do have it in front of me, yes. Mr. Jung: Then okay. Just for the Commissioners, the way we framed it is, I quote, “The applicant shall periodically inspect and maintain vegetation along the northern boundary of the subject property to ensure vegetation does not encroach into Waioli Beach Park.” So this is an ongoing issue with Shoreline properties where vegetation often encroaches these access corridors. We have no objection to dealing with it in the same scenario as beach park right and actually beach pathway. So we’re happy to— Mr. Cua: So— Mr. Jung: Add that into our Conditions. Chair Nogami Streufert: Does that become Condition 10 then? Mr. Hull: Sorry, correct, Madam Chair, that would be Condition 10. A new Condition 10 and the Department would welcome that in the friendly amendment and so I can read onto the record (inaudible) in reading the testimony. Condition 10 would read, “The applicant shall maintain the proposed vegetation along the boundary between the subject property and the Waioli Beach Park.” Mr. Jung: And that is acceptable to the applicant. Mr. Ho: All right, Ian, could you touch upon this one more time? What is the mea- the mean flood height for that area? Mr. Jung: Uh— Mr. Ho: Did you say 25 feet? Mr. Jung: Well, it is actually - so Hanalei has along the Weke Road corridor, it is actually a unique mill system that was part of the old dune system that was there. So it’s actually out of the flood zone. It is in XS rather than in AE or BE which requires the structure to be elevated to the point of the base flood elevation. So the topography there, it sits upon mean sea level in a range of 13 to 15 feet. So there is no what we call base flood elevation required for this particular property. But to mitigate any potential future flooding based on the prior even the applicant is proposing to elevate the natural grade by a foot and a half and then we had to accommodate for 44 whatever water would come into the property to be retained on the property. So then we had Esaki’s office design a trap system which would capture the water in the (inaudible) over it through these little hole covers into a subterranean trap system which has these - kind of a unique design similar to a septic system which could filter the water down into the earth kind of, like, an underground retention system. Mr. Ho: So by engineering it and raising the floor level you - you are out of the flood area. Mr. Jung: Yeah, well we are out of the flood area to start with and this is just, um, better improves the property so it does not - it has not impacted with future flooding. Mr. Ho: Thank you. Chair Nogami Streufert: All right. That seems to be a little bit further away from the streams. That is what it looks like. Mr. Jung: Yeah, this is on the corridor of Weke Road and the Waioli Beach Park access lane. So it is quite a ways away from (inaudible). Chair Nogami Streufert: I meant the (inaudible). I am sorry (inaudible) beach access so it is a little bit further back than it was previously. Mr. Jung: Yeah, we have a problem. There is when we did the certified shoreline for this property we - there was a - during the rain event there was a shore that was created, um, that kind of did an outflow of water that pulled water into (inaudible) Waioli Beach Park and because it bumps in there we had to follow our setback line to bump it in. So the house is pulled back from what has called the rear boundary line which is technically the Makai boundary line to accommodate that shoreline setback requirement. Chair Nogami Streufert: And the second house that is already there that was not - or not significantly damaged that will continue to be there? Is that correct? Mr. Jung: That is correct. Ms. Apisa: So what is the setback from the offshore line? Mr. Jung: The setback from the shoreline was (inaudible)...well the - a unique problem because it is a common actually the County’s lot in front of it the setback requirement (inaudible) has a shoreline, (inaudible). Ms. Apisa: Thank you. Yeah, I forgot there was a County park - that County strip in front. Mr. Jung: No, so there is about eight I think it was about 82 feet but I - I will need to confirm that in detail...with Romeo because we just put - platted on our site plan in Exhibit E.1 the shoreline setback requirement, which extends beyond the typical. Previous setback line. 45 Ms. Apisa: Thank - thank you. That is sufficient. Mr. Jung: Okay. Ms. Apisa: I was forgetting about the county land in front. Mr. Jung: Yeah, that is the Waioli Beach Park. Ms. Apisa: Right. Mr. Jung: Yeah. Ms. Apisa: Right. Mr. Jung: That fronts, it’s, the (inaudible) house lots. Chair Nogami Streufert: Are there any other questions for the applicant or for Mr. Jung? If not, could we have a - a motion? Ms. Apisa: I move we approve Special Management Area Use Permit SMA (U)-2021-7 for demolition and reconstruction of a single-family residence on Lot 11 of the Waioli Beach lots in Hanalei town, as recommended by the Planning Department and amended to include Condition Number 10. Ms. Otsuka: I second. Chair Nogami Streufert: It’s been moved and seconded. (Inaudible) 2021-7 as amended. Mr. Hull: Sorry. Roll call, Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba. Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Commissioner Ho? 46 Ms. Otsuka: Commissioner Ho, there is a button on the right of the microphone. Oh wait, he cannot hear me. Hold - hold on. Hold - hold on. Mr. Hull: Mr. Hull, you are muted. You just have to unmute yourself. Ms. Otsuka: No, he is text— Mr. Ho: I got it. Ms. Otsuka: Here - okay he got— Mr. Hull: I am sorry, Commissioner Ho, again? Mr. Ho: I am here. Mr. Hull: Yeah, no you are - as far as your vote is that an aye or a no? Mr. Ho: Aye. Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0. Madam Chair. Mr. Jung: Well, thank you Commissioners. New Public Hearing Zoning Amendment ZA- 2021-1: A bill for an ordinance amending Chapter 8, Kauai County Code 1987, as amended, relating to Comprehensive Zoning Ordinance (CZO). The proposal amends sections8-1.5 and 8-2.4 of the CZO relating to Definitions and Tables of Users, respectively. = Kauai County Council. Mr. Hull: Moving on in the agenda New Public Hearing Zoning Limit ZA-2021-1, a bill for an ordinance amending Chapter 8 of the Kauai County Code 1987 as amended relating to the comprehensive zoning ordinance CZO proposal amend Section 8-1.5 and 8-2.4 of the CZO relating to definitions and tables or users. Respectively the applicant is a Kauai County Council. This is an Agency Hearing so we can take testimony after the Director Report. So very briefly I will just go over, I am sitting on this one so I will be handling the Director’s Report myself. This proposal was introduced by Council Chair Kaneshiro and specifically looks at areas of the Agricultural Zoning District to free up and allow commercial types of uses. Currently the way 47 that the CZO Use Table is structured the agriculture district it does not list any type of commercial uses as permissible - as outright permissible in the agricultural zoning district. While the Department is in general support of not allowing commercialization of the agricultural zoning district, there are some uses as Council Chair is proposing that may be appropriate. One is the ability for farmers to be able to sell their own produce on their property in a small Ag retail stand. He is proposing is that what the bill proposes is to outright allow ag retail stands that are up to 1000 square feet for the sale of produce from the subject property or the subject property’s associated farm. Secondly, it’s also adding for definitions that allow for restaurant…okay - that allow for restaurant activities to also be permissible on agricultural lands, however, with a use permit. And specifically as that restaurant would be linked to a Ag production with the subject property so, you know, the vegetables grown or livestock raised on the subject property could be utilized in a restaurant use. However, a use permit and public hearing review with the Planning Commission would still be required. Then it also establishes definitions for uses that are currently listed in the use table but to clarify exactly what they are. And those particular uses are the botanical garden and zoological garden as well as food processing and packaging of ag products. So that’s kind of the bill in a nutshell. I can say that there, um, it has been brought to the Department’s attention to a certain degree that botanical gardens may need further clarification in that, you know, all botanical gardens theoretically can exist on Ag properties. The Council Chair’s proposal is looking at requiring a use permit and I’m very certain and I can have discussions with him that it wasn’t his intention or the bill’s intention to require all botanical gardens as any, you know, person who has Ag property who grows things have to get a use permit. I am certain that he was looking at the commercial display of trees and plants in a botanical garden section - situation would require use permits. So that needs to be further clarified as well as and just cleaning it up the way that they restaurant is listed in the use table actually does not have that Number (2-4) which denotes the requirement that the restaurant be utilized Ag produce from the subject property. So that definitely needs to be cleaned up. So ultimately the Department will be asking for a deferral on this proposal to the January 12 meeting, but if you folks have any questions, we are available. Chair Nogami Streufert: The retail sales that are also owned to the restaurants and the - that should probably be about what they are growing on that property or are they or are you anticipating that that retail sales could be over whatever they want to sell? Mr. Hull: I am sorry. Can you repeat that question? There was a little static there. Chair Nogami Streufert: Okay. There is no (inaudible) the retail sales, that should also have two on it. It should be based upon what the uh, value added that are produced on that property I would think. Mr. Hull: Correct. Chair Nogami Streufert: I would also ask for another definition of a zoological park. The idea of 48 putting animals in cages would unless - I am not quite sure what that means. Mr. Hull: With the correct definition being proposed are you saying. So what the council - what the bill essentially tries to do is zoological gardens are currently listed in that use table as a use permissible to use permit currently, but there’s no definition. So I think that the bill is just attempting to try and narrow that down, what exactly is that. Are you saying, Chair, that – Ms. Otsuka: It sounds inhumane. Chair Nogami Streufert: I do not see a definition for it and it might be useful to have a definition of what that means just as you are having with the other ones. Mr. Hull: No, so the proposal is the zoological garden means “a parklike area in which live animals are kept in cages or large enclosures for public exhibition.” That is the proposal on the bill. Are you saying that – that— Ms. Otsuka: The cages. The cages sounds a little inhumane. How about, like, fenced area or— Mr. Apisa: Contained. Ms. Otsuka: Cages is a - contained - contained area, enclosed, enclosed area. Chair Nogami Streufert: Well I guess that also depends up on what kind of animals they are thinking of. I am not sure how they are— Mr. Hull: Yeah, they probably could come up with some adjustments and bring it back on the - on the 12th meeting as well. Ms. Otsuka: Yeah, some- something less inhumane. Mr. Hull: Okay. Mr. Ho: Kaaina - would this would this add to your enforcement problems? Mr. Hull: No. It just - it just clarifies because I think too for the commercial display of these types of, you know, uses - whenever there is a commercial aspect to Ag land right- on agricultural land, our - our zoning enforcement is outdated. I think it helps clarify exactly what these uses are being that they are already listed, bringing more clarity to the process does help should anything arise but I can say in my tenure here we have never - we have not experienced a zoological garden complaint at all. Mr. Ho: I would not want you to become the food police too, you know. I would not want you to be out there looking at products on the stand. Thank you. Chair Nogami Streufert: Are there any other questions on this? Do we have them defer then for the next meeting? 49 Mr. Hull: Before (inaudible) being that, this is not technically the Agency Hearing or a public hearing it might be appropriate if we ask if there is anybody that has called in that would like to speak on this agent, uh, agenda. Chair Nogami Streufert: Is there anyone in the public who has called in for this agenda item? Mr. Hull: Hearing none, Madam Chair, the Department would ask for a deferral, uh, to the January 12 meeting. Chair Nogami Streufert: Could we have a motion to defer this issue - the zoning amendment to the January meeting? Ms. Otsuka: I make a motion to defer Zoning Amendment ZA2021-1 to our January 20 - January 12, 2021 meeting. Mr. DeGracia: Second. Mr. Ho: Second. Chair Nogami Streufert: It has been moved and seconded to Defer Amendment ZA-2021 to the January 12 meeting, okay? 2021 meeting. Any discussion? If not, all those in favor say, “Aye.”(Unanimous voice vote). Ms. Apisa: Aye. Mr. Ho: Aye. Ms. Otsuka: Mr. DeGracia: Aye. Ms. Cox: Aye. Mr. Chiba: Aye. Chair Nogami Streufert: All those opposed, “Nay.” Motion passed. 7:0. It is deferred to the January 12th meeting. All remaining public testimony pursuant to HRS 92 (Sunshine Law) CONSENT CALENDAR Status Reports Director’s Report(s) for Project(s) Scheduled for Agency Hearing. 50 Mr. Hull: Next up on the agenda we have nothing on the Consent Calendar with the Executive - well, let me ask this, Chair. Did you just still want to keep on going? Do you want to go for a 10- minute recess? Or lunch? Chair Nogami Streufert: Yeah. Was there a problem with having everybody here for one of the other parts coming up? I thought there was a time limit on them. Mr. Hull: Yeah. Because the - one of the representatives for the declaratory order request did have to step out at 1:00 ‘til about 1:15, so if you guys want to- the other thing that can happen is we can muscle through Executive Session portion and the Bancroft issue if you guys want to try. Or you folks can take a lunch break right now if you’d like and should the rep be still detained during the (inaudible) we could table it and go into the Maui asphalt. So it really is at the discretion of you folks. If you guys wanted to take a break now or not. Chair Nogami Streufert: Okay. Well, like, what would you like to do? Take a break now or continue on with your Executive Session or to continue on with the Laura (inaudible) Living Trust before we take a lunch break? Ms. Apisa: How about just a 10-minute break? Or continue. Chair Nogami Streufert: It’s a little difficult to do when we’re not all in the same room but let’s take a 10-minute break and then we’ll be - we’ll start back up at about, uh, 10 after 12:00 and we’ll get directly into the, uh, into the Executive Session. But before we do that I think we need a - a motion that when we get back from break we will go immediately into Executive Session. Is that correct? Mr. Hull: You can make the motion now or when you guys get back from break. It might be easier if in trying to herd everybody together if we just come back here after break and - and the motion is made here and then you guys can go into the Executive Session. Chair Nogami Streufert: Okay. Then we will do that. We will take a 10-minute break. 12:10 we will be back. Thank you. The Commission recessed this portion of the meeting at 12:00 p.m. The Commission reconvened this portion of the meeting at 12:10 p.m. Chair Nogami Streufert: Call the meeting back to order after recess. Mr. Hull: Commissioners Ho and Apisa, are you folks present? Mr. Ho: Yes. Ms. Apisa: Present. Mr. Hull: Commissioner Otsuka, are you here? Ms. Otsuka: Here. 51 Mr. Hull: Ms. Cox is present. Commissioner Chiba are you here. Mr. Chiba: Yes, I am. EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), the purpose of this executive session I to consult with County’s legal counsel on questions, issues, status, and procedural matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they relate to the matter of remand from the Circuit Court of the Fifth Circuit regarding Laura Bancroft Living Trust, et al. vs. Planning Commission of the County of Kauai, et al., Civil No. 17-10029 JKW. Mr. Hull: Okay. Returning to the meeting, we are on agenda item H - Executive Session. I can turn it over to Teresa to read you folks into Executive Session. Teresa, are you back? Deputy County Attorney Teresa Tumbaga: Yes. I am here. Okay, Item H.1 - Pursuant to Hawaii Revised Statute Sections 92-4 and 92-5(a)(4) the purpose of this Executive Session is to consult with County’s legal counsel on questions, issues, status, and procedural matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they relate to the matter of remand from the Circuit Court of the Fifth Circuit regarding Laura Bancroft Living Trust, et al versus Planning Commission of the County of Kauai, et al, and Civil Number 17-1-0029JKW. Chair Nogami Streufert: Okay. Could we have a motion to go into Executive Session? Ms. Cox: I move we go into Executive Session and I apologize for not being on the phone for so much of the morning. Mr. Ho: Second. Ms. Otsuka: I second. Chair Nogami Streufert: It is moved and seconded that we go into Executive Session and at the end of Executive Session, we come back to the original meeting is that correct? Ms. Otsuka: So is someone going to send us an invite? Chair Nogami Streufert: There is an invite that was sent to you earlier for the executive - executive meeting. Ms. Apisa: It was sent by Arleen. Mr. Hull: I am sorry. Hold on. Hold on. If you guys could take the (inaudible) first. Sorry. 52 Chair Nogami Streufert: But before we do that could - could everyone check to see that they have the Executive Session before we end this? Ms. Apisa: It came from Arleen. Ms. Kuwamura: Yes. It was there on Friday. It should be there. It is there. Chair Nogami Streufert: Okay. All right. Well, then. Let us have a vote now since we are all on it I hope - on the executive pool - or we can connect to it. I have (inaudible) from Mel or from Francis - you guys okay with that? Mel or Francis can you - do you have the Executive Session before we do a vote on it and, uh, go into Executive Session— Mr. Chiba: I did get it originally but I was one of those that lost it after that too. So I need to go back and check. Ms. Apisa: Arleen, if we need to— Mr. Chiba: Okay. I will go back to it. Chair Nogami Streufert: All right. Then are we ready for a vote to go into Executive Session? All of those - if we go through this as a board vote - all those in favor of going into the Executive Session Say “Aye.” (Unanimous voice vote). Ms. Otsuka: Aye. Ms. Cox: Aye. Mr. Chiba: Aye. Mr. Ho: Aye. Chair Nogami Streufert: Okay. All those who opposed? Okay. We will go into Executive – I cannot even talk now - Executive Session. We will see you back— Ms. Apisa: The question - do we log out of this one then? Mr. Hull: Yeah, Commissioner. So if you just log out of this one and then you have a separate invitation that only you - the Commissioners and the attorney have to log into that Executive Session myself and the rest of the public and applicants for the other agenda items will just stay on this line. Chair Nogami Streufert: And if we can— Ms. Apisa: We actually - if we hang up with this one we actually hang up and we can log back in after? Mr. Hull: Correct. 53 Ms. Apisa: Okay. Thank you. The Commission moved into Executive Session at 12:17 p.m. The Commission returned to Open Session at 12:34 p.m. Chair Nogami Streufert: Call the meeting back to order after Executive Session. Mr. Hull: Commissioner Cox? Is that you on the phone line? Ms. Cox: Hi, sorry. My internet is going in and out and in and out so I am the phone again. Mr. Hull: Okay. Thanks. Chair, did you want me to do roll call again? Sorry. Chair Nogami Streufert: Yes, please. Mr. Hull: Okay. Starting from the top. Commissioner Apisa? Commissioner Apisa? Ms. Apisa: Here. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Cox: Here. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Ho? Mr. Ho: Here. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Here. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Here. Mr. Hull: You have all members present 7:0. Madam Chair. 54 GENERAL BUSINESS MATTERS Remand from the Circuit Court of the Fifth Circuit regarding Laura Bancroft Living trust, et al. vs. Planning Commission of the County of Kauai, et al., Civil No. 17-1-0029 JKW and receipt of the Fifth Circuit’s Final Judgement and Findings of Fact, Conclusion of Lay, and Decision and Order directing the Planning Commission to direct the Planning Department to Process the Bancroft’s Application for a nonconforming use certificate pursuant to the Decision and Order. Mr. Hull: Moving out of Executive Session into I. General Business Matters. Item one - Remand from the Circuit Court of the Fifth Circuit regarding Laura Bancroft Living Trust, et al., versus Planning Commission of the County of Kauai, et al, Civil Number 17-1-0029 JKW and received of the Fifth Circuit Fifth Circuit’s Final Judgment and Findings of Fact, Conclusions of Law, and Decision and Order directing Planning Commission to direct the Planning Department to process the Bancroft’s application for a Non-Conforming Use Certificate pursuant to the Decision and Order. We also have excuse me. We also have a letter with attachments from Karen Diamond received on 12/07/20, I guess I will turn it over to the Commission for any questions or I’m not sure the County Attorney had any statements. Chair Nogami Streufert: Is Teresa on? Ms. Tumbaga: Yes. Hi. I am here. Chair, did you want to start with a question for the Director or? Chair Nogami Streufert: Oh, we could do that. I think Mr. Ho had a question for the Director. Mr. Ho: Kaaina, I believe by this Court Order here, it’s directing you to process the application for NCUC? Mr. Hull: Correct. Mr. Ho: And then after that where does it go for approval? Does it come back to the Commission? Mr. Hull: No, Non-Conforming Use Certificates are reviewed - well, there’s no longer a process for reviewing Non-Conforming Use Certificates being that the window is closed. But with this, when it was in place it was strictly a Department review. It is not even a Permit. It is just a Certificate certifying that this TVR operation existed prior to the prohibition on vacation rentals outside the BVA and allows them to operate with that Certificate in so far as it meets the annual renewal requirements every year. So ultimately, in a nutshell no - once it’s re- officially remanded to us we process it, issue it, and it does not go to any other bodies or agencies for further review. Mr. Ho: Thank you. That is all I wanted to hear. Ms. Tumbaga: Thank you. So I am just going to make a statement regarding this, um, matter. This was a decision by the Department that was appealed to the Commission. This is back a few 55 years ago. The Department did not process the Bancroft’s TVR Registration and Non- Conforming Use Form. So the decision not to process was appealed to the Commission. The case went before a Hearing Officer who had a hearing and made recommendations and ultimately the Commission entered an Order affirming the Director’s decision not to process the application for various reasons. The Bancrofts appealed that decision to the Circuit Court and this remand if stemming from that appeal. The Court found in favor of the Bancrofts and reversed and remanded the Commission’s decision. So the Order that is included in this packet simply states that the Commission is ordered to direct the Department to process the application in compliance with certain things listed in the Order. So that judgment is final. It was not appealed. This is just a procedural matter now that the Commission needs to take care of. The Commission does not have any discretion over what it can do with this Permit. It simply needs to Order the Department as directed in the Order from the Fifth Circuit Court. Chair Nogami Streufert: Are there any questions from the Commission to our attorney? Okay. If not, do we open this for anyone who is here who may want to say something on this? Mr. Hull: it is at your discretion, Chair. The agency hearings we didn’t specifically call for it because those are agency hearings. Those are public hearings. There was a call for public testimony at the beginning of the Agenda for any other item as well on the Agenda so you’re not required to open up for public hearing at this point but it’s at your discretion. Chair Nogami Streufert: If there were anyone here who would like to speak on this matter? Mr. Jonathan Chun: Madam Chair, Jonathan Chen on behalf of the Bancrofts. I was the attorney that represented the Bancroft’s in front of both the Planning Commission, the Hearings Officer, and the Circuit Court. I can respond to any questions the Commission might have regarding this matter and what happened back in 20- 2009. If you - if the Commission so desires. If not— Chair Nogami Streufert: Well, we are not, we, it’s just open for any comment and we will then dispense with this matter. Mr. Chun: Okay. Thank you. Chair Nogami Streufert: Thank you. Any other (inaudible)? If there’s no other comment from the (inaudible) the Chair will then take a motion to (inaudible). Chair will entertain a motion to direct the Planning Department to (inaudible) the Planning Co- to, sorry - the Chair will entertain a motion to direct the Planning Department to process the Bancroft’s Non-Conforming Use (inaudible) an Order. Could we have a motion to that effect? Ms. Apisa: So moved. Chair Nogami Streufert: Is there a second? Ms. Otsuka: Second. 56 Chair Nogami Streufert: It’s been motioned and seconded that the Planning Department direct the planning or - I’m sorry - the Planning Commission direct the Planning Department to process the Bancroft’s application for a Non-Conforming Use Certificate per the Circuit Court - the Fifth Circuit Court Order. Is there any discussion? If not, could have a roll call vote, please? Mr. Hull: Roll call, Madam Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0. Madam Chair. At this point, we will have to move into what is anticipated to be possibly a lengthy proceeding. Did you folks want to continue or take a lunch break? Ms. Apisa: I am good to continue but up to the majority. Chair Nogami Streufert: But the attorney was not going to be available. Is that correct? Mr. Hull: I believe he has to - he has to take a 1:00 meeting with one of the judges. I think he has a court proceeding at 1:00 but it should only take 15 to 20 minutes he mentioned. Chair Nogami Streufert: Okay. Do we want to have an Executive Session with the attorney on 57 this matter before we get to the - to (inaudible)? Mr. Mauna Trask: Hello, can you hear me kind of, Chair? Mr. Hull: Yeah. Hey, Mauna. We are trying to figure out the handling of this next matter before we read it on the Agenda. Sorry, for the Commissioners, Mauna Kea Trask is the attorney representing the Petitioner. Mauna Kea did you have to excuse yourself for a certain time here? Mr. Trask: Yeah, I - I have a hearing at 1:00. Um, it’s going to be a quick status on mediation but as far as the other matter we’d ask - we’d note for the record that Executive Session for this item is not posted on the Agenda. It would be premature at this time to go in as there is not only no notice but any justification we’d have to show a unanticipated and I don’t think that there has been such a showing as of yet so we would just request to - I’ll - I have to get off ‘cause it’s on the same screen but I’ll call back in after my hearing with the judge is finished and then maybe we can take it up at that time. Chair Nogami Streufert: And do you - how long - when do you - when do you anticipate you will be able to come back? Mr. Trask: As soon as possible, Chair. It would not be too long. It is a quick status on mediation and it’s not contested. So that’s - so, like, like, uh, the, uh, Director said maybe 15 minutes - 20 minutes just at max. Chair Nogami Streufert: So if we took a lunch break and came back at, uh, 1:30 would that give everybody enough time? Ms. Cox: Yep. Ms. Otsuka: Yes. Mr. Jung: This is Ian Jung. Mr. Ho: Yes? Mr. Jung: I am on for Maui Asphalt so if you want to take it out of order I am happy to do that as well to accommodate Mr. Trask. Chair Nogami Streufert: (Inaudible). Mr. Hull: What was that, Chair? Mr. Ho: What is—? Chair Nogami Streufert: To take the Maui Asphalt— 58 Mr. Ho: Maui Asphalt? Chair Nogami Streufert: Ahead? Mr. Hull: I will be honest Maui Asphalt we anticipate lasting about 10 minutes. It could last longer but more than likely. Chair Nogami Streufert: How about we go out to, if that is the case then we could probably do that and then go for a lunch break. Would that work? Mr. Hull: Do you want to move to Maui Asphalt right now and then consider lunch after that? Is that what you are saying, Chair? Chair Nogami Streufert: Yes. Mr. Ho: Yes. Mr. Hull: Okay. So we’ll have to— Chair Nogami Streufert: Sounds good. Mr. Hull: Sorry. It’s, to move something out of order what would be the formal process? They are trying to make a motion to - to hear Maui Asphalt out of order. Ms. Tumbaga: That would be fine. Mr. Hull: So, yeah. Do we have a motion? You are saying? Ms. Tumbaga: Sure. We can do that. Mr. Hull: Thanks, Teresa. So we just need a motion to move the Maui M- Asphalt petition out of order to be reviewed right now essentially, a motion to that effect. Ms. Otsuka: I will make the motion— Mr. Ho: I make a motion to move Maui Asphalt ahead of HBR hearing. Chair Nogami Streufert: So was there a second? Ms. Otsuka: Second. Chair Nogami Streufert: It’s been moved there to move Maui Asphalt prior to the HBR Enterprises on our Agenda. Any discussion? If not, all those in favor? Aye? (Unanimous voice vote). Ms. Otsuka: Aye. 59 Mr. Ho: Aye. Ms. Apisa: Aye. Ms. Cox: Aye. Mr. Chiba: Aye. Chair Nogami Streufert: All those who opposed? Nay? Okay. Motion carried 7:0. We will now continue with the Maui Asphalt. Petition to Modify Condition No. 2 Class Iv Zoning Permit Z-IV-2015-16, Use Permit U- 2015-15, Variance Permit V-2015-2, and Special Permit SP-2015-4; Exhibits “A” – F’F” from Ina Jung, Esq. = Maui Asphalt X-IV, LLC. Mr. Hull: Okay. Agenda Item I.3, Petition to Modify Condition Number Two of Class IV Zoning Ordinance Z-IV-2015-16, Use Permit U-2015-15, Variance Permit V-2015-2, and Special Permit 2015-4, Applicant is Maui Asphalt, and Dale is our planner on this so I will turn our Director’s Report over to Dale. Mr. Cua: Thank you. Consideration of Applicant’s request to amend Condition two of Class IV Zoning Permit, Use Permit, Variance Permit, and Special Permit to allow continuation of operation involving the asphalt - that is plant facility. Mr. Cua read the Summary, Project Data, Project Description and Use, Additional Findings, Preliminary Evaluation, and Preliminary Conclusion sections of the Director’s Report for the record (on file with the Planning Department). Mr. Cua: So in this request the Applicant is seeking to amend the condition in order for them to operate an additional year so that the new expiration date would be November 11, 2021. And that’s pretty much the summary of the Director’s Report that and - and Applicant’s request. Chair Nogami Streufert: Right. Any questions for the, uh, planner? From the Commissioners? Maui Asphalt representative? Mr. Michael Lingaton: This is Michael Lingaton representing Maui Kupono. Mr. Jung: This is Ian Jones, also on behalf of Maui Asphalt who’s partners with Maui Kupono. So just to bring all the Commissioners up to speed on where we were at with the original permit. The original permit 19 in 2015, contemplated just this one-time project for a State DOT and once the Applicant got here, they realized there was a need for the State and County jobs for road resurfacing. I think we can all attest to the need for road resurfacing right now. Okay. At the time they realized they wanted to try and create a footprint here on Kauai for a business opportunity and we got the second - the first and second extensions and now during the period of the second extension we were trying to locate a suitable permanent site which we were in negotiations with Grow Farm but due to COVID things slowed down in early March to try and negotiate these terms and now we’re at the point where we’re pretty close with Grow Farms to identify suitable 60 sites for the operation and relocate to (inaudible). We don’t have a - a finite location as of yet but we worked with Wade Lord who’s a CIP Manager to get an extension to the current lease and I don’t know if you folks are familiar but in 2019 the County acquired from (inaudible) Villages, LLC, the parcel for which the batch plant operation is located. So now we’re, um, we’re in month-to-month holdover status with County as our landlord and they’re agreeable to a two-year lease, one-year for continuation of operation and then one additional year for the required clean-up of the site and so we haven’t formalized that contract amendment yet. Mr. Lord wanted to wait to see what the feeling of the Commission was to allow for the extension and then if it is extended, then we would enter into the amendment to the contract to extend operations and then extend that one period for the cleanup while we relocate. And so, with that I’ll answer any questions. I think one other thing Dale may have mentioned the Staff Report we did have one complaint this past year, and Dale asked that I follow-up with the complainant and I spoke to him and I did let him know that we are in the process of relocating. But he did indicate that on certain occasions when the wind comes from a certain angle, in his case it was on a north angle, that they would have some smell impact. But the condition that was negotiated with the school back in 2017, that condition requires us to cease operation if there’s a southwest or Kona wind at the start of the day. So we’re actively working with the community to monitor the wind patterns and if we do have a southwest blowing day then we do halt operations for the morning pursuant to that - that condition. But the one complaint - recent complaint once I informed him that we’d be relocating he thought that was a great idea and didn’t have any further items to discuss with us. Once we - I’m sure you’ll - you folks will be hearing back from us soon once we identify the location ‘cause we’ll be coming in with a certain set of permits similar to this for the new location. Chair Nogami Streufert: All right. Are there any questions for the Applicant or for Mr. Jung? If not, is there a recommendation from the Department? Mr. Cua: Yes, Madam Chair. The Department’s recommendation is to approve the extension of time to allow the continuation of the bench plant facility at its current location and to amend condition number two such that the new date would read November 11, 2021. Chair Nogami Streufert: Can we have a motion for that? Ms. Apisa: I will make a motion to, uh, approve, um, based on the Planning Department’s recommendation or modify - to modify Condition number two of Class IV Zoning Permit Z-IV- 2015-16, Use Permit U-2015-15, Variance Permit V-2015-2, and Special Permit SP 2015-4. Maui Asphalt. Mr. Ho: Second. Chair Nogami Streufert: It’s been moved and seconded that we approve the Director’s Report on amending Condition two of the Class IV Zoning Permit, Use Permit, Variance Permit, and Special Permit for Maui Asphalt. Do we have any discussion? 61 Ms. Apisa: I will just make a comment. I think - I was on the Commission when that originally, the prior time it came and I feel comfortable with that decision. Chair Nogami Streufert: Are we ready for a roll call vote, please? Mr. Hull: Roll call, Madam Chair. Commissioner Apisa? Ms. Apisa: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Aye. Mr. Hull: Motion passes 7:0, Madam Chair. Mr. Jung: Okay. Thank you, Commissioners. We will all look forward to seeing you folks in next year with the new setting. Chair Nogami Streufert: Without the potholes. Mr. Jung: Yeah. Mr. Hull: Yeah, I just think you guys want to break for lunch? Chair Nogami Streufert: Yes. If we could break for lunch for half an hour? Back at 1:30? Would that give us would that give Mr. Trask enough time? 62 Mr. Hull: Yeah, I believe from the statement he made that should be sufficient. Chair Nogami Streufert: Okay. All right. We will have a break for half an hour and we will be back at 12:30 - or 1:30. Sorry. Mr. Hull: Thank you. The Commission recessed for lunch this portion of the meeting at 1:02 p.m. The Commission reconvened this portion of the meeting at 1:30 p.m. Chair Nogami Streufert: Call the meeting back to order after recess. Mr. Hull: Thank you. I will do the roll call. Commissioner Apisa? Ms. Apisa: Here. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Cox: Here. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Ho? Mr. Ho: Here. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Here. Mr. Hull: Chair Streufert? Chair Nogami Streufert: Here. Mr. Hull: Excuse me. All seven members present, Madam Chair. 63 Petition for Declaratory Order regarding Noncompliance with the Comprehensive Zoning Ordinance and Variance Application V-72-11, Memorandum in Support, Verification of Petition, Declaration of Mauna Kea Trask, Exhibits “1-20”’ Certificate of Service by Mauna Kea Trask, Cades Schutte LLP, Attorneys for Petitioner HBR Enterprises, LLC. Mr. Hull: Moving into the next Agenda Item, given the content of the next agenda item I’m going to actually turn it…I’m going to stand down from my role as Clerk of Commission and turn it over to it over to the attorney, Teresa to read the agenda onto the record. Chair Nogami Streufert: Teresa, is that what we are doing? Ms. Tumbaga: Hi, sorry, one moment. Let me just get to it. Okay. Um, Item I.2, yeah, okay. Petition for a Declaratory Order Regarding Non-compliance with the Comprehensive Zoning Ordinance and Variance Application V-7211, Memorandum in support, Verification of Petition, Declaration of Mauna Trask, Exhibits 1 through 20, Certificate of Service by Mauna Trask, Cades Schutte LLP, attorneys for petitioner HBR Enterprises, LLC. Mr. Trask: Well, good afternoon, Chair, um, honorable members of the Commission. For the record, Mauna Trask on behalf of petitioner. Pardon me, you know, before we start, I would like to respectfully raise one issue per Commission Rule 1-2 15A. Um, it’s my understanding that the Honorable Commissioner Apisa is president and principle broker of Oceanfront Sotheby’s Realty. I believe that oceanfront some of these listed units at Hanalei Bay Resort. At last check I believe it’s between four to seven and the listing price of which is the amount of, you know, approximately a million dollars per apartment unit. So I just request that she, that she recuse herself for this matter because of the possible direct - or direct possible financial interest again per that rule. Ms. Apisa: That is - I will just answer that. That is correct. Um, your statement is correct and I am okay to recuse myself from any discussion and voting. Mr. Trask: Thank you very much. I do not mean to offend. I am sorry. Thank you for understanding. Ms. Apisa: Sure. Can I still just sit in and listen? Chair Nogami Streufert: Yes, I think you can. Is there any reason why (inaudible) listen in on it regardless of whether she participates or not? Mr. Trask: I will— Ms. Tumbaga: I just— Mr. Trask: Go ahead. Chair Nogami Streufert: Is Teresa? Ms. Tumbaga: I am sorry. What was being said? A couple people were talking at the same time. 64 Chair Nogami Streufert: Donna Apisa will recuse herself from voting but she would like to listen in on the conversations or on the proceedings. Would that be possible? Is that a— Ms. Tumbaga: According to the rule 1-2-15A, “When a member has made a disclosure of interest and is deemed by the Commission to have a conflict of interest, such conflict shall apply to all subsequent actions relating to said member. The member with the conflict of interest shall refrain from voting except where the member’s vote is required to constitute a quorum to act in which event he shall be permitted to vote.” So the rule is really silent. It you are required to refrain from voting with that exception listed. Ms. Apisa: I agree to mute my microphone and disappear. Chair Nogami Streufert: But there is no prohibition to listening in on the proceedings? Ms. Apisa: No, I will— Ms. Tumbaga: That is correct. Chair Nogami Streufert: Okay. Great. Ms. Apisa: Thank for clarifying. Commissioner Apisa recused herself from the meeting at this time. Ms. Tumbaga: Okay. Mr. Trask: Okay. Chair Nogami Streufert: Are we ready to proceed? Mr. Trask: Yes, Chair, thank you. So, yeah, um, I - I wanna note for the record I did receive Mr. Carol’s pleading late yesterday afternoon. It was hand-delivered to my office about 3:30 pm and emailed by Planning Department staff at approximately 2:30 pm. So, at this point, and this is per the petition filed on October 22, 2020, we are requesting as a primary matter, that a hearing be held on this - an agency hearing be held on this request per Commission Rule 1-10-6 and that is on Part Five, Page 60 in the petition. And the reason why is simply because that is the appropriate procedure. Under the rules, what is supposed to happen is that a petition is filed and in the event, a hearing request is made, which we did in this case, and if that hearing is granted - the request is granted - the rules relating to agency hearing procedures before the commission shall govern the proceeding. Now, along with that goes agency hearing notification, publication that the petitioner asked me to cover. And at which time seven days prior to agency hearing any interested person would have an opportunity to intervene. Now, without you know, giving up the argument we would note that Mr. Carol in his pleading raised an issue regarding service of all 134-unit owners - apartment unit owners of the resort - Hanalei Bay Resort. Now the reason why we have not given notice to anybody yet is because our request for hearing 65 was not granted and of course, upon request of hearing we would make all appropriate notifications. And we’re not saying necessarily we would have to notify everybody at this time but we would make all the appropriate publications to cover said costs. So what we would like to do today and - and we know again Mr. Carroll made his filing (inaudible) would presumably make a motion to intervene. But I have been informed that they’re also possibly other neighbors from the Princeville area that live next to Hanalei Bay Resort or Hanalei Beach and Racquet Club that may also have an interest because of the activity going on over there. So what I don’t want to do is create a situation whereby a - a decision is made - a hearing is held without appropriate notice, and even (inaudible) and it qualifies as contested case hearing. But the Planning Department’s own rules haven’t been followed in doing so. So I believe at this point given the submittal by (Inaudible), we should or the Commission should hear it and grant the contested case hearing. We anticipated that they would want to be involved, um, and set it out before hearings officer. Because as you know there is a lot of confusion. All parties I think can agree there is a lot of confusion with this issue. It is a nearly a 50-year-old issue at this point. There is, we would like to take testimony. There is numerous amount of exhibits and various other proceedings. A lot of legal issues are raised and those would be most appropriately held and addressed via an organized contested case hearing, per the Commission. With that, we would like to start with that matter and then set this out as appropriate. Chair Nogami Streufert: So let me (inaudible) understand those. You want a hearing. You want the Planning Commission to have a hear a contested hearing on this thing or some— Mr. Trask: An agency hearing, correct, which is defined as in effect the contested case hearing under the rules of the Commission per Rule 1-10-6 regarding the declaratory orders. Chair Nogami Streufert: I am going to have to defer this to the attorney. Ms. Tumbaga: So regarding a hearing under the Commission’s rules for declaratory orders Rule 1-10-6 states, “Request for hearing - Although in the usual course of disposition of a Petition on for a Declaratory Ruling no formal hearing will be granted to the petitioner or to a party in interest. The Commission may in its discretion order a hearing. Any petitioner or party in interest who desires a hearing on a Petition for Declaratory Ruling shall set forth in detail in his request the reasons why the matters alleged the petition together with supporting affidavits or other written briefs or memoranda of legal authorities will not permit the fair and expeditious disposition of the petition. And to the extent that such a request for hearing is dependent upon factual assertion shall accompany such request by affidavit establishing such facts and shall deposit with the Department such amounts as deemed necessary to cover applicable publication costs. In the event a hearing is ordered by the Commission, the rules relating to agency hearing procedure before the Commission shall govern the proceeding.” Mr. Michael Carroll: Madam Chair, may I interrupt? My name is Mike Carroll. I represent the Association apartment owners. We filed a brief where we specifically objected to the request for hearing and at the opportune time, I would like an opportunity to address the Commission with our specific objections to the request. 66 Chair Nogami Streufert: At this point, I am not…I would like to have the attorney weigh in on this. What are the options? What are we doing at this point? Ms. Tumbaga: Well at this point you have…what we have is a petition that’s been filed with the Commission, a document was filed by this other party. The rule is clear that the… in the usual course of disposition no formal hearing is - will be granted. It’s a discretionary for the Commission. I am going to note that the filing done by the other party came in yesterday. That’s the day before the hearing. So the matters raised in that filing that Mr. Carroll is addressing are - is that something that the Commission should be discussing with their attorney as far as their liabilities as far as what they can do. That is a reason for an executive session. Again the filing just came in yesterday so if the Commission wants to -- I’m hearing an echo -- if the Commission wants to go into executive session that was an unanticipated event because it was filed after the agenda had already been published. That is one option. Chair Nogami Streufert: So our option right now is that we could go into executive session just to discuss the legal liabilities and options that we might have. Okay? Ms. Tumbaga: That is an option if - because this is complicated and the parties are raising various issues and there again could be more than one party that is interested. Again the hearing request is a discretionary - is not mandated that the Commission give a hearing. Um, but to discuss further what has been raised and the new filing again with the - with the Commission again it was filed yesterday so there hasn’t been an opportunity really for - for the Commission. I do not even know if the Commission has been able to get through all of the - what was filed. Mr. Ho: Madam Chair - Madam Chair. Chair Nogami Streufert: Yes. Mr. Ho: I believe I would like to make a motion that we move into executive session please. Chair Nogami Streufert: Is there a second? Ms. Cox: I second. Ms. Tumbaga: Just to remind the Commissioners that the reason for the executive session needs to be stated on the record. So— Chair Nogami Streufert: So could we have an executive pursuant to the Revised Statute Section 92-4 and -84, “The purpose of this executive session is to consult with County’s legal counsel on questions issues, status and procedural matters. As counsel involves consideration of the powers, duties, privileges and unities and/or liabilities of the Commission and the county as they relate to the matter of “matter of the Petition for Declaratory Order Regarding Non-compliance with the Comprehensive Zoning Ordinance and Variance Application V-72-20, memorandum in support.” That is it. Is that - does that accurately reflect what we would like to do? Ms. Tumbaga: Yes, that is fine. 67 Chair Nogami Streufert: Okay, so that is the, that is the Chair that is the motion on the floor or do we have to make it - vote for again? Ms. Tumbaga: That is fine. Chair Nogami Streufert: So could we have a…we will just have…well, no, we will have - we will have a roll call vote on this since this is now becoming very legalistic. (Inaudible), uh, hence, we do not have Mr. Hull and I will do this. Donna Apisa has recused herself. So who do we have now? Mel Chiba? Mr. Chiba: Aye. Chair Nogami Streufert: Helen Cox? Ms. Cox: Aye. Chair Nogami Streufert: Gosh, I am sorry, I am - I am running out of names. Ms. Otsuka: Frances DeGracia. Mr. Ho: Frances. Chair Nogami Streufert: Frances? Mr. DeGracia: Aye. Chair Nogami Streufert: Sorry, I am order here, Lori. Ms. Otsuka: Aye. Chair Nogami Streufert: Okay, so I have six and I am aye so there is six of us who want to, one one is recusing herself, so we will go into executive session and shortly after our executive session we will be coming back to the regular Planning Commission meeting. Mr. Trask: Yeah, Chair? This is Mauna Trask for the record. Uh, just for the record we would object at this time to a holding of executive session in order to preserve the issue for appeal. That is all. Chair Nogami Streufert: I am not sure I quite understand that. Pass this back to our attorney. Ms. Tumbaga: The attorneys are stating that he is objecting and it will be reflected in a minute. Ms. Otsuka: So you are saying we can still have the executive session even if the attorney is against it. He just stated that for the record. Ms. Tumbaga: That is correct. He is- he is preserving that he has objected so that it will be noted 68 in the minutes that he disagrees. Ms. Otsuka: Okay because I understand he stated it was not listed on the agenda so I can see his point for us not to have an executive session Ms. Tumbaga: If the Commission would like to be extremely cautious with this, matter and notice that on the agenda as its own separate item for the next meeting that is another option. You would need to reconsider the vote that you have just done. But - and there are a few other things that need to be dead-lined but happen when a petition for Declaratory Judgment has been filed. But if the Commission prefers to in all - out of caution move this item to the next meeting that is another option. Again, you would need to reconsider the vote that you just took and not move into executive session and we can - that - that is an option for the Commission. Chair Nogami Streufert: Okay. So the option is we can go into executive session or we cannot go into executive session and then what are our options? Ms. Tumbaga: If you look at the Commission’s rules regarding a Declaratory Petition, just give me one moment. Sorry, I have many windows open. Hold on one moment. Okay. So for Declaratory Petitions, Rule 1-10-3, Commission Actions states, “Within 45 days after the submission of a petition for Declaratory Ruling the Commission shall either deny the petition in writing stating the reasons for such denial, or issue a declaratory order on the matters contained in the petition, or set the matter for hear- hearing. However, that if the matter’s set for hearing the Commission shall render its findings and decision within 45 days after the close of the hearing.” So the since the petition has actually submitted on I believe October 26, the 45-day mark would make that December 10. So the Commission has the option let me just - sorry, give me on moment again. There is a rule that the Commission has, Rule 1-10-3, that states for good cause that the Commission may waive or suspend by a majority vote any rule or procedure established herein. So what you could do is vote to waive that rule. There is various reasons that give you good because, for example, during Covid you are not meeting twice a month therefore the Commission did not even have this on their agenda until today, which is two days before the 45 days. Had it not been for Covid you most likely would have met on this petition last month. Additionally there are multiple others. There’s a lengthy filing that was delivered to the Commission yesterday, which again does not give the Commission time to even look into that to even see whether you would consider it. Additionally the governor’s latest proclamation has suspended HOS91 to the extent necessary such that any deadlines may be waived or suspended. Again, because of Covid I think that has led to a lot of this - this short turnaround that the Commission has. So if you choose to go down that route you could waive your 45-day requirement so that this matter can be put on the next agenda along with an executive session and that will give the Commission the opportunity to review carefully all of these various filings. Mr. Carroll: Madam Chair, if I may have an opportunity to just respond real briefly if it would be okay? 69 Chair Nogami Streufert: Please. Mr. Carroll: So just in short, the reason we filed the opposition when we did is we did not have notice of the petition until late last week or mid last week. So we filed it as quickly as we could. We believe that there really is overwhelming grounds to dismiss the petition pursuant to 1-10-3 - excuse me 1-10-4. and to the extent - we’re in support of the Commission going into executive session and if I could make a suggestion. If - perhaps if I were to articulate the grounds - to summarize the grounds in our petition I think that would - or opposition - I think that would make it even clearer as to why it would be appropriate for the Commission to go into executive session. I believe that it’s appropriate to go into executive session now, however, I think if I can highlight a couple of points that might even further emphasize why it’s appropriate for executive session because ideally what we’d like to see is we would like to see the this petition dismissed today. And, your Honor, I’m sorry. Chair Nogami Streufert: Let our attorney get involved in this because this is now, beyond my knowledge of the of the legal\ limitations that we have. So I will turn this over to Teresa. Mr. Trask: Sorry, Your Honor let me just, I am sorry, petitioner would object because we are just talking about the hearing at this point. If Mr. Carol’s going to get— Chair Nogami Streufert: If that— Mr. Trask: If he gets (inaudible) this case, we get merits, we get to argue the merits of ours, and then we will contest the case. We might as well just set it for hearing so everybody can - can participate. Chair Nogami Streufert: Well I think we are there yet. I am trying to find out what our options are and let the Commission decide how we want to proceed from here legally so that we are all in compliance with whatever laws or regulations we have to be in compliance with. If I could ask Teresa to join the conversation. Ms. Tumbaga: So again, the Commission to be conservative could waive their 45-day rule requirement based on Covid, based on the short time frame that the Commission has been put into because their own - they are dealing with this petition and a lengthy response that was sent in one day before the hearing. The Commission can choose to waive that rule, to set this matter for its next meeting, and to set an executive session. At that point, the Commission will be able to discuss with their attorney the petition. If the Commission wants to discuss what was raised by that opposition which was unanticipated which was filed yesterday then the Commission could vote, which it technically has already done that, to go into the executive session to discuss those things raised by that opposition, again which was filed yesterday. Chair Nogami Streufert: So at this point one of (inaudible), Mr. Ho. Mr. Ho: Trying to get set-up. All right. Would it, Does anybody have Mr. Carroll’s petition of objection? I don’t have anything - any reading on that so, it’s - it’s a one - it’s a one-legged, race here, Mr. Trask - not being facetious but, I do have his (inaudible) so I would not know his 70 objections to your to your petition, Mr. Trask. I strongly suggest that we have an executive session and consult our attorney. I am lost right now. Mr. Trask: Yeah and to answer that, Mr. Ho, I would agree because I haven’t had enough time to review myself. And like I said earlier, the appropriate process is for this Commission to decide whether or not to hold a hearing. Then the reason why Mr. Carroll was not given notice and we would’ve given notice to everybody and I would have included the AOAL is because the hearing hasn’t been set yet. And so what we would argue is effective what you could do within the 45 days now if you set this for agency hearing everyone has an opportunity to participate. If this gets set in a month and only Mr. Carroll’s there no one else has the ability to participate in this within the Princeville community except from the AOAL. And like I said, I’ve been informed today that neighbors also want to participate. So we want the hearing to take place. We think that these are important questions only the Commission can answer them. Mr. Carroll has his arguments. There is numerous arguments. And so the best way to hear this is if you know, if you don’t have the pleading before you, you’re right, what’s the purpose of talking about it in an executive session? This should be set for hearing to allow Mr. Carroll and anyone else to participate. That is the appropriate process. And (inaudible) been very diligent. They jumped the gun on this one. So they’re here today. But it wasn’t our intent to subvert anybody. It was to have a hearing. And - and you have to make that call first, is what we’re— Mr. Carroll: If I may respond briefly, I would urge the Commission and their counsel to review, the Citizen’s Against Reckless Development versus Zoning Board of Appeals case, it is a Hawai’i Supreme Court Case and it basically says that the Declaratory Order Procedures are not an appropriate vehicle to review agency decisions. It has intended to review decisions that have not yet been made. And they are completely using this process in an in an inappropriate means and there’s a number of other procedural issues that just makes this completely impractical, or not in accordance with the rules aside from the fact that they’ve already litigated this issue five times before other proceedings, including this body one year ago. So, Your Honor, we would - excuse me - Members of the Commission, we would respectfully ask that, or suggest that you go into Executive Session so your counsel can explain to you that case and the other procedural issues that makes this petition entirely appropriate. Mr. Trask: Okay, and on that now we are arguing the merits of the case. And what we— Chair Nogami Streufert: No, we are not. Mr. Trask: No, state (inaudible) says the denial of request for contested case constitutes a final decision order that is appealable to the Circuit Court. And now, what we would say in response to that argument is that this is not a Citizens Against Reckless Development issue. There’s no agency decision. Mr. Hull’s Declaration is not a agency decision. That’s his deck. You have not made any decision yet, so we are not overturning any decision. The decision is, the permit back in ‘72 we are asking what it means. Given the abrupt 180 that was done a month ago, or two months ago. 71 Chair Nogami Streufert: Let’s do a time— Mr. Ho: Gentlemen, I am sorry. Let me jump in here and just, I have the motion on the floor for Executive Session. Madam Chair, let me withdraw that motion of Executive Session and if Madam Chair would, want to further discussion, then I take my motion back and let the discussion begin and we will have my motion or another motion after that. Thank you. Chair Nogami Streufert: If you withdraw your motion, then whoever seconded it will also have to withdraw their second. Ms. Cox: I seconded it and I’m willing to withdraw it, but I feel uncomfortable moving forward too far without, if there are other people who have a vested interest and want to participate, it seems like we should schedule it in such a way that allows those people to be - to have their voices heard. Chair Nogami Streufert: If that were the case, then that would be - would be another motion, but we are not— Mr. Ho: I believe - I believe what— Chair Nogami Streufert: (Inaudible) withdrawing the motion. Mr. Ho: I am sorry. I think what we are moving down the road to is probably a deferral with the Executive Session in there. Chair Nogami Streufert: No, right now, we are only withdrawing the motion to go into Executive Session. Mr. Ho: Okay. Chair Nogami Streufert: Okay. Then we will decide what we are going to be doing after this. I am trying to make this very simple, so we all understand it, so I understand what we are doing when we are doing it. Ms. Cox: Maybe somebody could explain, maybe I am the only one who is a little confused, but I am wondering if somebody could explain the difference between deferring it and having an Executive Session, and taking it up next meeting as opposed to setting a hearing date and…which would also be in the future, because they both seem to give us time to look at the documents, since I’m honestly not quite sure what the ramifications of each of those are. Maybe Teresa can explain that, I do not know. Ms. Tumbaga: The hearing is a very different matter from deferring the item. If you defer the item to the next meeting and you do not make a decision on the hearing, then you will make that decision in the future. Setting a matter for hearing is essentially granting the request for hearing. Per your rules, no formal hearing is us- is granted during the usual course of this position of the petition for declaratory ruling. It is the Commission’s discretion to grant one, and the reasons 72 why a hearing is necessary need to be set forth by the petitioner. The person requesting it needs to provide affidavits, briefs, memoranda, explaining why it is that a hearing in which the Commission takes factual evidence versus simply looks at the law - why is that necessary. So, that in itself is a decision that the Commission would be making before which they should be consulting their attorney. To defer the matter simply will put it on for the next agenda, in which case an Executive Session can also be scheduled for that meeting. Chair Nogami Streufert: With - without deferring (inaudible) Executive Session. Look at the merits of the case, is that correct? Ms. Tumbaga: I am sorry, what was the question? Chair Nogami Streufert: So, without deferring this, we cannot really have an Executive Session with you. Ms. Tumbaga: Because the filing by Mr. Carroll and his firm occurred after the agenda was already posted and it raised issues and it argued against a hearing, you could do a limited executive session. If you take the vote, because it was not anticipated that they would be filing those documents. To be conservative and put the entire item on for executive session, you could set it for your next hearing, but we do have that option that go into Exec Session today based on that unanticipated filing. Chair Nogami Streufert: By conservative you mean, the more careful or considerate way to do. Ms. Tumbaga: Yes. Chair Nogami Streufert: Okay. Okay, so, all right Commissioners, I guess, um, we have (inaudible) or we can have a fuller executive session and (inaudible) and discuss the entire case. If we defer this to our next meeting. Is that my understanding, Teresa? Ms. Tumbaga: Yes, if you do choose to defer it to the next meeting, you will need to vote to waive your rule because the rule itself requires the Commission to act within 45 days of submission, so that would be procedurally what would need to happen. So that would allow the Commission to then, you know, place it on their next agenda. Chair Nogami Streufert: If we were to waive the 45-day requirement, would that also mean that both parties would also have to agree to that waiver, or is it something that the Commission could do without having to agreement by both... Ms. Tumbaga: If the Commission waives the rule, then the Commission waives the rule. It does not require the parties’ agreement. Chair Nogami Streufert: All right. Ms. Tumbaga: There are provisions in other areas where, you know parties in contested cases can agree to certain things, but that’s not within this Declaratory Order or Chapter. 73 Chair Nogami Streufert: What would a limited executive session be limited to as opposed to a full (inaudible). Ms. Tumbaga: Well, the filing that was filed yesterday, brought up issues of other parties’ involvement possible interest in this petition, as well as the argument against a hearing, so, the Commission could discuss those things in the Executive Session as it relates to their privileges, liabilities and immunities. Chair Nogami Streufert: Is it possible that the filing that was done yesterday (inaudible). I could not open up the (inaudible). I think that is the - okay. Ms. Tumbaga: If - no - if the Commissioners have not even seen it or reviewed it, it may be more beneficial to just defer this whole matter to the next meeting. Chair Nogami Streufert: All right. Do I have a motion - or, is there any discussion among the Commission members? We have now withdrawn the motion to go into Executive Session and we have withdrawn the second to go into the Executive Session. With that being the case, do we need to vote on that or just at – withdraw? Ms. Tumbaga: The withdrawal is fine. Chair Nogami Streufert: Okay. All right. So, now we don’t have anything on the table. (Inaudible) by the executive, by the Commission on what (inaudible). Ms. Cox: Seems like since we have not even read the thing that we got yesterday because we could not open it and it did not come in until late yesterday. It seems like maybe the deferral is the - is the best route. Chair Nogami Streufert: Are there any other comments from anyone else? Ms. Otsuka: So, we need to make a motion to waive the 45-day, is that—? Chair Nogami Streufert: That’s the first one, yes. 45-day rule. Ms. Tumbaga: So, the rule is, um, rule 1-10-3. Mr. Trask: Madam Chair, if I may, real briefly, I just this is Mauna Trask for the record. You know, I just spoke with my client and we would agree to a deferral of this matter. Of course, we would like a hearing be granted, but we would agree to a deferral on this matter and waive that, so you can be, you know, you can review the material. I think that is just a basic courtesy. And so, you know, without prejudice to any of the other issue, we wouldn’t object to that, just to give you more time. Ms. Cox: I make a motion - this is Helen Cox. I make a motion to waive rule 1-10 10, uh. 1-10- 3, which is the 45-day rule. So that we may defer this item ‘til the next meeting. 74 Ms. Otsuka: Teresa does she need to include because of COVID. Ms. Tumbaga: Hi, I am sorry, yes. For good cause, that is the standard so, just, articulate the cause. Ms. Cox: Okay. Do have to start over or can I just add it? Mr. Hull: Sorry, could I just jump in real quick. This is Kaaina Hull, Plan Director, I am not acting as your clerk, but just also as somebody who will be a party to this proceeding should they, the hearing be scheduled. I would just note, and for you guys to discuss with your attorney, that perhaps the January meeting may not be appropriate as you will have a new chair being sworn in on that January meeting and that chair will have to be conducting the proceedings. And generally, that chair should be working with the attorney’s office to understand how these proceedings go and without having the chair elected, the attorney’s office won’t be able to work with that chair. So, I would recommend or ask that you consider and discuss with your attorney that the deferral, if it occurs, happens on February - is moved to February, would be February 9th Planning Commission meeting. Chair Nogami Streufert: We were still on waiving the 45-day rule, though, right? Before we even get to that. Ms. Cox: Yeah. Ms. Tumbaga: Sorry. I am just going to add - when you make the motion, maybe, oh— Ms. Otsuka: If we are going to do it February 9, we need more than - oh, I guess as long as we defer it to the February 9, you do not have to give a specific day count, yeah. Chair Nogami Streufert: Right. Ms. Otsuka: We do not have to say, like, 90 days, okay, got it. Ms. Tumbaga: So, the motion should cover pursuant to rule 1-2-27 for good cause, the Commission moves to waive rule 1-10-3. The good cause includes delay in meetings caused by Covid as well as filing - a filing received one day prior to the hearing, giving the Commissioners limited time to review. Chair Nogami Streufert: So, does all of that have to be put into one motion? Ms. Tumbaga: Yeah, I think if you could articulate the rule that it is being waived pursuant to. As well as the rule that is being waived and the (inaudible), yeah. Mr. Trask: Madam Chair, this is Mauna Trask, I am conferring with my client. They are not available in February. Could we do it March? Is that possible? Sorry, I apologize. They want to insure that they are here and available. 75 Chair Nogami Streufert: Kaaina is there any problem with that. Mr. Hull: The Department, the Department would not have any problem with that. Chair Nogami Streufert: Okay. So, the motion should be pursuant to 1-2-27. Commission waives the 45-day, uh, waive rule 1-10-3, which is the 45-day (inaudible) due to Covid and the - and the (inaudible) good cause and (inaudible) is that correct? Ms. Tumbaga: Yes. Ms. Otsuka: I believe it is March 9. Chair Nogami Streufert: We do not have to - oh, I guess we could put a date to defer it to that date. We are not there yet, we are waiving the 45-day rule first. Then we will get to when— Ms. Otsuka: Does not include in that? Chair Nogami Streufert: No, not, we are just waiving the rule. Okay, so, can I have a motion that pursuant to 1-2-27, the Planning Commission waives rule 1-10-3, the 45-day rule, due to Covid and to late submission (Inaudible). Ms. Cox: I will make that motion, especially since you said it all. Chair Nogami Streufert: Do we have a second? Ms. Otsuka: I second. Chair Nogami Streufert: Okay, it has been moved and seconded that we waive the 45-day rule. Any— Ms. Otsuka: Due to good cause. Chair Nogami Streufert: Due to good cause. Is there any...Are you ready for the vote? Okay. All right, then we will start again. Donna Apisa not a part of this. So, Mel Chiba? Mr. Chiba: Aye. Chair Nogami Streufert: Helen Cox. Ms. Cox: Aye. Chair Nogami Streufert: Francis DeGracia. Mr. DeGracia: Aye. 76 Chair Nogami Streufert: Roy Ho. Mr. Ho: Aye. Chair Nogami Streufert: Lori Otsuka. Ms. Otsuka: Aye. Chair Nogami Streufert: And Glenda Nogami Streufert, Aye. (Unanimous voice vote) So, there was 6:0. Motion passes. we are - we give - waive the 45-day requirement. Now, this is where if we want to defer it, we can defer it. And or we can set the date. Motion. Thank you Kaaina. Do we have a motion to defer this, or what would you like to do at this point? Ms. Cox: I move that we defer the petition for a Declaratory Order for the item on the agenda, the petition for Declaratory Order regarding Non-Compliance with the Comprehensive Zoning Ordinance and Variance Application Permit V-72-11, to March - what was the date? Ms. Otsuka: 9th. Ms. Cox: 9th, 2021. Ms. Otsuka: Can you also add, to include it in an executive session? Ms. Cox: And that we include an executive session to discuss the legalities. Ms. Otsuka: On the agenda. Ms. Cox: On the agenda, yes. Included on the agenda. Ms. Otsuka: Yes. Ms. Cox: Thank you, Lori. Ms. Otsuka: Thank you. Chair Nogami Streufert: Good of you to have done that. Is there a second on that motion? Ms. Otsuka: I second. Chair Nogami Streufert: It’s been moved and seconded to defer this to the March meeting. (Unintelligible). Is there any discussion - with an executive session? Are we ready for the vote? All right, do the vote one more time. Mel Chiba? Mr. Chiba: Aye. Chair Nogami Streufert: Helen Cox. 77 Ms. Cox: Aye. Chair Nogami Streufert: Francis DeGracia. Mr. DeGracia: Aye. Chair Nogami Streufert: Roy Ho. Mr. Ho: Aye. Chair Nogami Streufert: Lori Otsuka. Ms. Otsuka: Aye. Chair Nogami Streufert: Glenda Streufert, aye. (Unanimous voice vote). 6:0. Motion passes. It’s been deferred to the March 9th, meeting. Mr. Hull: Okay, thank you, Madam Chair. Thank you members of the Commission, moving on to the next agenda item K. Mr. Trask: I am sorry - I am sorry Mr. Secretary, one final thing. Just given that you are going to hear - going to review the pleadings on both sides. I’d like to know, per Rule 1-6-16(d), no reply or supplemental memoranda shall be filed unless specifically allowed by the presiding officer, but Petitioner would request is the opportunity to provide a reply to Mr. Carroll’s pleading once it’s been re- thoroughly reviewed. Also follow up with the information I was provided today with my client regarding - and this would be part of the reply, any other interested parties in the community that - that would want to participate in the agency hearing. That’s just to kind of tie everything up and I - again, I apologize for interrupting, but I would have to make that request to Madam Chair today. Mr. Carroll: And if they are allowed to - permitted to file a reply, when - respectfully ask to file a very brief sur-reply to that, no longer than five pages. Chair Nogami Streufert: Can I have the attorney back. Ms. Tumbaga: Hi, this is Teresa. I am sorry, Mr. Trask, could you cite that - state that rule you cited again. Mr. Trask: Sure, it’s, uh, Rule 1-6-16, “d” as in dog. That is the, I believe it is the 2016 amendment - I am not sure. It is the most recent amendment to part - I am sorry, October 2017. It is the most recent amendment to Chapter 6 of the Commission Rules. Ms. Tumbaga: Okay, thank you. Commissioners, I am going to have to look at this, so I do not know if you want to take a short - give me five minutes. Chair Nogami Streufert: How about if we take a five-minute break? We will be back. 78 Ms. Tumbaga: Thank you. Chair Nogami Streufert: 40- 2:35. Thanks, Teresa. Ms. Tumbaga: Thank you very much. The Commission recessed this portion of the meeting at 2:23 p.m. The Commission reconvened this portion of the meeting at 2:35 p.m. Chair Nogami Streufert: Call the meeting back to order after recess. Mr. Hull: Madam Chair, because this is still over the discussion of the previous issue, I would ask that perhaps you could do the roll call, Madam Chair make sure the staff is here, or the Commissioners are here. Chair Nogami Streufert: Okay. Donna Apisa. Donna? Are you here? Ms. Cox: She may not be, since she does not have to be. Chair Nogami Streufert: Mel Chiba. Mr. Chiba: Here. Chair Nogami Streufert: Helen. Ms. Cox: I am here. Chair Nogami Streufert: Francis. Mr. DeGracia: Here. Chair Nogami Streufert: Roy. Mr. Ho: Here. Chair Nogami Streufert: Lori. Ms. Otsuka: Here. Chair Nogami Streufert: Six present. Where are we? What (inaudible) meeting or do we still have to (inaudible) that we need (inaudible)? Ms. Tumbaga: I was looking into the request by Mr. Trask to file a reply. 79 Chair Nogami Streufert: Okay. Ms. Tumbaga: So, I’ll just okay, so the rule cited by Mr. Trask, 1-6-16, it actually falls into the agency hearing procedures and just to be clear, the Commission has not set this matter for hearing, so we’re not - again, this is not set for hearing. However, the Commission, the Chair would have the discretion to allow it under Rule 1- 2-8 gives the Chair the discretion or the power to (inaudible) perform such other duties as may be required by law, or such as may properly a- pertain to such office. So, if the Commission would like to receive a reply from Mr. Trask that is an option that the Chair could allow. It is really up to you, it is your discretion again. I guess in all fairness again, the rules for Declaratory relief, they do not, necessarily allow an opposition to be filed either. They’re silent on that and an opposition was filed, so if the Commission thinks it would be helpful to receive a reply to the opposition, I just, it would be good to set a due date so that we - the Commission has ample time to review. Chair Nogami Streufert: (Inaudible). Do we have other options? Ms. Tumbaga: Other options would be to not allow a filing, but again, you know, the declaratory judgment rules of the Commission are silent. An opposition to the petition was filed. So if the Commission thinks it may be helpful to allow a reply that is an option. Chair Nogami Streufert: (Inaudible). I do not know what the consequences are going to be for either decision or either way we go. What the advantages or disadvantages are. Ms. Tumbaga: Well, the petition wa filed and then, another party filed an opposition to that petition, right? The rules do not necessarily state that is allowed, yet it was filed and the Commission is going to be reviewing that. The Commission is not granting a hearing at this point. No hearing’s been set, so none of those agency procedures would come into play at this stage, however, if the - because the Commission will be at least reading the documents filed by opposing counsel, a reply would give you an opportunity to - to just see the legal arguments by Mr. Trask in response to that opposition. Chair Nogami Streufert: Oh, that is an interesting one. If no one reads the documents since we have not gotten it yet. Does that change anything? Ms. Tumbaga: I think that would be more a discussion about this would more likely fall into advising. Something that I the attorney would want to do an executive session because we are getting into liabilities, privileges, and duties of the Commission. Chair Nogami Streufert: Well at this point, it appears that if we defer it - it does not mean that we are either he- we are holding a hearing. We are just going to - it is just a petition right now and then we have just deferred that petition until March. Is that correct. It does mean that we are going to have hearing. Ms. Tumbaga: That is correct. Chair Nogami Streufert: Okay. So if we defer the petition for declaratory order to March that 80 still does not say that we are having a hearing we’re just going to hear the whole thing or we’re just going to hear what we would of heard today, and then our actions could be either to dismiss it, to defer it, or to hold a hearing. At that point we could make that decision, is that correct? Ms. Tumbaga: Yes, that is correct. Chair Nogami Streufert: Okay so if we just defer the petition right now or declaratory order to March then (inaudible) the greatest flexibility or the next Chair the greatest flexibility. That also correct. Ms. Tumbaga: Yes, basically, you have enacted one way or another so it remains to be acted upon. Chair Nogami Streufert: Okay. And could I have - a motion to defer? Is that what you would suggest or can I ask— Mr. Hull: Madame Chair, if I could just interject this for clarity sake and, again, I am a party so I am not speaking as your clerk. But, the motion I believe was already acted upon. I think what kind of threw this whole discussion for a loop is Mr. Trask wanted to preserve his right to submit since your rebuttal, and I think what you’re saying is indeed, the next chair can make that determination so the motion has the action has been to defer. And that’s acting upon. Mr. Trask: And it has just to qualify the statement by Director Hull as the party. You know, Mr. Carroll submitted an opposition and like Ms. Tumbaga said it - that is not provided for in the rules but he did do it. And I think due process would require you consider it and so therefore because it appears to have raised more issues. We would like an opportunity to respond to some of them and then he is asking for you an opportunity to respond to what we say. Now if this is just normal course in a civil proceeding. So, you know, we will we are not going to comment on our position regarding his request. I think the given that we have the time and that this is an important issue. We think it would be appropriate just to provide you with as much information that would assist you in making that decision. Chair Nogami Streufert: And you propose to help us make this decision by a rebuttal? Is that what you are saying? Mr. Hull: Mauna Kea, you are muted. Mr. Trask: Okay. Yeah and it would help because some of the arguments raised are beyond that which we included our petition. We believe it would be appropriate for - and in a normal civil case, a reply is allowed. Now Mr. Carol is requesting opportunity to respond to our response, which is, you know, a decision that you guys have to make. But we do believe that the more information that you’re provided in the form of affidavits, exhibits and legal argument only helps you serve the public interest better and enforce the tenants of the CZO and (inaudible) laws in the best way possible. So, and I think the court precedent favors, you know, hearing and submittals and consideration versus turning a blind eye (inaudible). 81 Mr. Hull: And to add and perhaps if your attorney needs to clarify this, Madame Chair, the sub- the submittals, all potential rebuttals, and responses I should say, can be determined by the Chair when that Chair is setting the agenda as well in March. And correspondence can be made from the Chair to the petitioners, as far as deadlines or timelines are set to get those responses in. And what I kind of am getting at is at this point there’s no further action required by the Commission. The motion was acted upon and should the new Chair decide to set the agenda with the responses that will be at the discretion of the new chair. Mr. Trask: You know we would object I mean, again, Mr. Hull is speaking as a party. He is unrepresented. It’s been defer the current question by the two other parties at this point are to make submittals just to in order to flush out the legal arguments. These aren’t simple legal arguments and so we - there’s a lot of time - if you said like for example a deadline for any reply in the beginning of February any (inaudible) by Mr. Carroll by February 15th well then you’ve got three weeks to consider the supplemental before the next hearing. So, that’s what we would say. Chair Nogami Streufert: Could I have our attorney jump in on this? Ms. Tumbaga: I think the best thing for the Commission to do would be to make a determination at whether to allow the briefing or not at this meeting because this is really the time in which if the Commission does want to receive further briefing you can receive in advance of the next meeting. Chair Nogami Streufert: But if we a (inaudible) briefing than it would be to hold their hearing as opposed to dis-, as opposed to dismissing. Is that correct? Ms. Tumbaga: No, the only request being made by the attorneys right now is that -so there is not hearing set. This has simply been deferred to another meeting. So no decisions have been made either way. Mr. Trask filed a petition for declaratory relief and then Mr. Carol’s office filed an opposition right. The opposition is not provided for in the rules but it was filed. Mr. Trask is asking to file a reply and that is just a term that means it is a document that responds to the legal arguments made in the opposition. And then Mr. Carol further asks for a sur-reply which is another response to the reply. Therefore, it is basically to give further argument - further legal argument. Chair Nogami Streufert: So we have already received it, is that correct? Because it has been received by the Planning Department. Ms. Tumbaga: The— Chair Nogami Streufert: (Inaudible) open it up and— Ms. Tumbaga: (Inaudible) the oppose… I am sorry— Chair Nogami Streufert: The op— 82 Ms. Tumbaga: The, sorry. Chair Nogami Streufert: The opposition has submit (inaudible) open it but it was submitted and it was, I guess received by the Planning Department so therefore, it has been received, is that correct? Ms. Tumbaga: I believe it was filed with Planning Commission so I do not know the exact time and then I believe it was sent out as a - a supplement to the packet. And that perhaps is why not all Commissioners were able to review it but as far as procedurally, yes, it was submitted to the Commission via the Department. Chair Nogami Streufert: So if that has already been done then it only seems far to have the (inaudible) but not. Ms. Cox: As a Commissioner, I would say that I would prefer to have as much information as possible as early as possible. I agree that we need to make the decision today and I actually would agree that I would want both the reply to the opposition and then a reply the - if the opposition wants to reply that is okay with me too. The only thing I would say is that we do not want reams and reams of stuff to read. Ms. Tumbaga: You could limit the sur-reply to, you know, only rebuttal of any arguments raised in the reply, you know. Ms. Cox: Yeah that would be great. Chair Nogami Streufert: Okay. Well if that is the case, and if - are - does any other Commissioner want to weigh in on this? I will go with trying to (inaudible) as much information- (inaudible). No more than (inaudible) bonding to whatever issues that are already brought up (inaudible). Could that be done? Mr. Trask: Yes, Chair. Chair Nogami Streufert: Teresa you are muted I think. Ms. Tumbaga: Sorry, there was a little bit of interference when you were speaking earlier so I only caught the end of it when you said, can this be done. Chair Nogami Streufert: Okay. That whatever rebuttals will be limited to whatever issues have already been provide - or been put forth and that they be edited in length. (Inaudible). Ms. Tumbaga: So you could— Chair Nogami Streufert: Or five minutes or three minutes. I am not sure how we would do this. Because we will probably still be in a Covid environment so it is going to be by Zoom, continue to be by Zoom. That is my (unintelligible). 83 Ms. Cox: I think we are talking about getting documents ahead of time. Chair Nogami Streufert: They still have the rebuttals and how much rebuttal do you want to have that - we already have a docue— Ms. Cox: I thought the rebuttal was also written. The response were written. Chair Nogami Streufert: Could be. Mr. Trask: Chair, we are fine with the ten-page limit to only arguments raised by the (inaudible). Mr. Carroll: And Chair, we are okay with ten pages for our sur-reply as well. Chair Nogami Streufert: Okay. Ms. Tumbaga: And then Chair, do you want to set due dates for both, to— Chair Nogami Streufert: What would be - what would be the due dates that you would suggest? Ms. Tumbaga: Well, we should give the Commissioners enough time to review so I am sorry Kaaina, what was the date of the next meeting. March— Chair Nogami Streufert: 9th. Mr. Hull: March 9th. Ms. Tumbaga: March 9th. So does the Commission prefer having these 30 days prior to the meeting enough time for - because this is kind of far out so. Chair Nogami Streufert: Would 45 days from now at the end of January work for everyone? That would give people at least a month to review the documents. Ms. Tumbaga: So 45 days from now would be the, uh, reply and then you would have to set a new deadline for the sur-reply to respond to the reply. So 45 days from today would be January 22. Chair Nogami Streufert: Okay. So if we did to January 22, and we had a rebuttal and when could we get that back do you think? A ten - no more than ten pages. Mr. Carroll: If I could get two weeks that would be - that would be appreciated. Ms. Tumbaga: So— Chair Nogami Streufert: That would be middle of February. 84 Mr. Carroll: I will be right back. Chair Nogami Streufert: That would give us a month before we had the meeting. Okay. If those dates are okay with both attorneys. Mr. Trask: So just to confirm so January 22 is reply and then February— Chair Nogami Streufert: 5th. Mr. Trask: 5th is rebuttal. Thank you. Chair Nogami Streufert: Okay. Does that resolve that issue for right now? Mr. Carroll: Thank you Chair. COMMUNICATIONS (For Action) Mr. Hull: Moving right along, we have no Communications for Actions. COMMITTEE REPORTS Subdivision Mr. Hull: Okay Madame Chair moving onto the next Agenda Item. We are on Agenda Item K. Committee Reports K.1 Subdivision. Subdivision action matters listed in the Subdivision Committee Agenda. I will turn it over to subdivision committee Chair Ho. Chair Ho: We had four clients for consideration this morning, Tentative Subdivision Map Approval Kukui`ula Development was approved, Tower Kauai Lagoons was approved, Final Subdivision Map Approval for Robert S. and Carolyn R.V. Barros approved, and Keopele V. & Ashley H. McBride and Paul E. Pascuilla Trust. Den and Narcisa Concepcion approved. That is my Subdivision Report for your receiving and— Chair Nogami Streufert: Do we have a motion to (inaudible). Ms. Cox: (Inaudible) I will move that we receive and approve, do we just approve or we just receive the— Chair Ho: Receive. Ms. Cox: The Subdivision Report? Chair Nogami Streufert: Do both. Okay is there a second. Ms. Otsuka: I second. Chair Nogami Streufert: There has been a motion to receive and to approve the Subdivision 85 Committee report. All those in favor? (Unanimous voice vote). Aye. Ms. Cox: Aye. Mr. Ho: Aye. Mr. Chiba: Aye. Mr. DeGracia: Aye. Ms. Otsuka: Aye. Chair Nogami Streufert: All this opposed nay. Motion Carried 6:0. UNFINISIHED BUSINESS ( For Action) Mr. Hull: Moving on, there is no Unfinished Business. NEW BUSINESS Mr. Hull: We have no New Business as we handled the New Business previously. For Action - See Agenda F for Project Descriptions ANNOUNCEMENTS Topics for Future Meetings The following regularly scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter on January 12, 2021. The Planning Commission anticipates meeting via teleconference but will announce its intended meeting method via agenda electronically posted at least six days prior to the meeting date. Mr. Hull: And so for Topics for Future Meetings we have actually had a massive glut of applications which hence today’s rather robust agenda. But after that glut there things kind of tapered off as far as submittals. So technically, on January we only have the deferral of the zoning amendment that folks have today and essentially the election of leadership. I think we are all now aware of what is going to be a topic for our future meeting in March. Plus it’s fairly light folks but other then that, I’ll say as this is, you know, Chair Streufert will be gaveling the January but this was her last phone meeting. So just want to acknowledge her leadership in helping us navigate not just sticky Commission items. And more particularly, having to navigate a Planning Commission and be the Chair of it in this teleworking environment I think is a true testament of how well Glenda was equipped to navigate us through these waters. I just want to thank her for her leadership in leading us through. She is not going anywhere. She’s still with us but having her a Chair - as chair from the Department’s perspective has been absolutely - absolutely wonderful so thank you - thank you so much Glenda. Mr. Chiba: Thank you. 86 Ms. Cox: Thanks Glenda. Ms. Otsuka: Thanks, Glenda. Ms. Cox: You really earned your - your stripes today. Chair Nogami Streufert: Thank you, guys. All right so before we - are there any other announcements and Roy will be with us here is another announcement. Roy will be with us on the Commission for at least another four months right. Mr. Hull: Three months yeah. Commissioner Ho has agreed to be a holdover - unfortunately, Commissioner Ho is terming out but we have him for three more months so for the Department is very appreciative. Mr. Ho: I love you guys. Kaaina, Kaaina, before that March meeting, we have if the agenda is quite full could you schedule two meetings in February to clear your calendar? Mr. Hull: What was that? Mr. Ho: Well you know to clear your calendar for that March meeting HBR. If the agenda is full, could you schedule two meetings in February to lessen your load? Mr. Hull: Oh, no - no - yeah, we could - we could absolutely look at doing two meetings. The reason we only have, you know, the way the applications are submitted and the deadlines we have to put it on this December meeting. We do not anticipate full meeting quite honestly for the next two or three months. Granted, I imagine the March meeting will have rather robust and lengthy discussions, but as far as the number of applications Commissioner Ho, with the application rate we are seeing right now, we do not anticipate large numbers of applications on the agendas for the next couple of months. Mr. Ho: Good deal. Chair Nogami Streufert: Okay well then Merry Christmas, happy Hanukah, joyous Kwanzaa, whatever you celebrate let us celebrate and, enjoy the year as it comes to an end and a new year starts. Ms. Tumbaga: Thanks Glenda. Mr. Hull: Thank you, all. Ms. Cox: Happy holidays everybody. Teresa, it is really nice to see you. Ms. Tumbaga: Nice seeing you too. Ms. Cox: I am sure KCC misses you still. 87 Ms. Tumbaga: I am sure they miss you. ADJOURNMENT Chair Nogami Streufert: Could we have a motion to adjourn and then we can still continue to— Ms. Otsuka: I make a motion to adjourn. Mr. Ho: Motion to adjourn. Ms. Cox: I second that motion. Chair Nogami Streufert: It’s been moved and seconded that we adjourn this meeting. All those in favor it’s a voice vote. Ms. Cox: Aye. Mr. Ho: Aye. Ms. Otsuka: Aye. Mr. Chiba: Aye. Mr. DeGracia: Aye. Chair Nogami Streufert: All those opposed. Nay. Thank you very much. Motion carries. 5:0. If you would like to stay on it’s not going to be recorded. Season’s greetings and everything else. Mr. Hull: Thank you all. Mr. Chiba: Thank you very much. Chair Nogami Streufert adjourned the meeting at 3:03 p.m. 88 Respectfully submitted by: _________________________ Arleen Kuwamura, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) ( ) Approved as amended. See minutes of __________ meeting KDLAUEA NEIGHBORHOX»DASSOCIATION GOUNTV O'-KAUAI President Yoshito L'Hote Vice President Beryl Blalch June5,2021 "21 JUL-8 P1 :29 PLANNING OEPT.Ms.Donna Aplsa,Chair Kaua'i Planning Commission Kaua'i Planning Department 4444 Rice St.,Suite A473 LThu'e,Hl 96766 RE:SMA Permit for TMK 4-5-2-004-084-0001.(Phil and Unda Green)Secretary Jeremy Burns Dear Planning Chair Apisa and Members of the Planning Commission: Treasurer Gary Pacheco Sergeant-at-Arms Bill Chase PTSA Rep Sonrisa Stepatti Directors Stephenie Brown Ttiomas Oaubert Emlly Dunn Mike Latlf Mike Lyons Charlie Martin Don McConnell Ron Paul Sonrisa Stepath Phit and Linda Green have requested a letter of support from the Kilauea Neighborhood Assodation for their proposed new residence in the SeaCliff Estates. lan Jung,the Greens attorney,gave a presentation at the December 2020 KNA Board Meeting.Subsequentto this meeting,story poles were erected so thatthe community coutd see what kind of a visual impact the proposed resldence would have. The Greens also invited any and all members ofthe communityfor a personal tour of their site.In addition,Mr.Green said that every effort would be made to ensure that the house would be sensitive to its surroundings,and that any stormwater runoff be minimized. Mr.Green attended the May,2021 KNA Meeting,where he answered more questions from the Board and members ofthe larger community.The KNA Board voted unanimously to approve the forthcoming SMA Permit application. AttheJune 2021 KNA meeting,the Kilauea organization Na Kia'l o Nihoku gave a presentation outlining their concerns about the current proposed Green House.They also included recommendations thatwould help mitigate some oftheir concerns.They looked at the proposed house from a uniquely Hawaiian cultural perspective. While the KNA remains committed to support the Green's SMA Permit application,we also hope that the Greens be open and sensitive to the concerns raised by Na Kia'i o Nihoku and think about adjusting their plans in a manner that satisfies all Kilaueans and allows us to thrive and move forward into the future as one unifled community. With aloha, Yoshito L'Hote President <^6^ (I's^^^^ PO Box 283,KHauea,Kaua'l,Hawail 96754 www.kna-kauBi.org |Joekilauea@gmall.comLikeusonFacebook:Facebookxom/kna.kauai F.a.^.i SEP 1 4 2021 Ka'aina S.Hull DirectorofPlanning Jodi A.Higuchi Sayegusa Deputy Director of Planning I.SUMMARY Action Required by PIanning Commission: COUNTY OF KAUA'I PLANNING DEPARTMENT DIRECTOR'S REPORT Consideration of CIass IV Zoning Permit,Use Pennit,and Special Management Area Use Permit to allow the construction of a Farm Dwelling Unit,guest house,garage,and misc.site improvements. Permit Application Nos.Class IV Zoning Permit Z-IV-2022-1 UsePermit U-2022-1 Special Management Area Use Permit SMA(U)-2022-1 Name of Applicant(s)PHILIP J.GREEN AND LINDA M.GREEN II.PERMIT INFORMATION F:^.4.2^ V:\2022 AAaster Files\Regulator/\Zoning Permirs\Class IV\Z-IV-2022-1\ReporT\Report-l 8.26.21_Z.IV-2022.1__U-2022.1_SMA(U)-2022- 1 _Green.docx ^i 4 202] PERMITS REQUIRED Use Permit Pursuant to Article 11,Section 8-11.3 of the KCC,1987 as amended,a Use Permit is required to allow any development,stmctures or uses within the Special Treatment District (ST). [_|Project Development Use Permit 1I Variance Permit [_|Special Permit ^Zoning Permit CIass ^]IV Dm Pursuant to Section 8-3.1 of the KCC,1987,as amended,a CIass IV Zoning Permit is a procedural requirement in applying for a Use Permit. Special Management Area Permit Use Q Minor Pursuant to Section 205A of the Hawaii Revised Statutes (HRS)and the Special Management Area Rules and Regulations of the County of Kaua'i,the change in intensity of use of land,including but not limited to the division or subdivision of land;which constitutes "Development . Therefore,a SMA Use Pennit is required as defined in Section 7.3 of the SMA Rules. AMENDMENTS Date ofReceipt of Completed Application:July8,2021 Date of Director's Report:August 25,2021 Date of Public Hearing:SEPTEMBER 14,2021 Deadline Date for PC to Take Action (60TH Day):October 24,202 1 III.PROJECTDATA IV.LEGAL REQUIREMENTS Z-IV-2022-I,U-2022-1,SMA(U)-2022^1;Director's Report Green August25,2021 2 l Pag e Zoning Amendment I1 General Plan Amendment State Land Use District Amendment PROJECT INFORMATION Parcel Location:The project site is located within the SeacliffPlantation at Kilauea Bay Subdivision in Kilauea,approximately half (1/2)a mile southeast from the KTlauea Lighthouse.Parcel is along the makai side Makana Ano Place and approximately 990 feet north of its intersection with Pali Moana Place. Tax Map Key(s):(4)5-2-004:084 Area:12.305 acs. ZONING &DEVELOPMENT STANDARDS Zoning:Open (0)/Special Treatment-Resource (ST-R) State Land Use District:Agricultural General Plan Designation:Natural Height Limit:25 feet OR Based Flood Elevation (B.F.E.)plus 15 feet Max.Land Coverage:10%or 3,000 s.f.max Front Setback:lO'-O" Rear Setback:5'or '/2 the wall plate height whichever is greater Side Setback:5 or '/2 the wall plate height whichever is greater Community Plan Area:North Shore Development Plan (NSDP) Community Plan Land Use Designation:N/A Deviations or Variances Requested: Section S-3.1(f),KCC:This report is being transmitted to the Applicant and Planning Commission in order to satisfy the requirements ofSection 8-3.1(0,relating to the provision of the Planning Director's report and recommendation on the subject proposal within sixty (60)days of the filing of a completed application.The application was received on July 8,2021 and the Applicant,through its authorized agent,was notified accordingly ofthe Planning Department's intent to commence permit processing. PuMic Hearing Date:SEFTEMBER 14,2021 V.PROJECT DESCRIPTION AND USE The subject property is identified as Tax Map Key number 5-2-004:084 (CPR unit 1) consisting of approximately 12.305 acres (536,006 square feet)and has a county zoning designation of Open/Special Treatment-Resource (0/ST-R).The applicant is proposing to constmct a 6,113 square foot single-story farm dwelling unit (FDU)with a covered portico, a 1,849 square feet four (4)bay detached garage ,a five hundred square foot guest house with kitchen,swimming pool,and miscellaneous site improvements,such as rock retaining walls,fencing,outside shower,driveway,ground mounted photovoltaic (PV)solar array, and landscaping (see Exhibit "D"). The FDU features three (3)bedrooms,three and a half (3-1/2)bath,a great room,library media room,kitchen,pantry,laundry area,portico,and two (2)lanais.The guest house is composed of one (1)bedroom,one (1)bath,and a kitchen.The detached garage is for two (2)vehicles,farm equipment,and a workshop.As illustrated in the application (refer to Exhibit "D"pages 3,4,and 15),the proposed structures will have a "Hawaiian Contemporary"design that features a split-pitch hip roof line,standing seam copper roofing rooffinish,and moss rock exterior siding. VI.APPLICANT'S REASONS/JUSTIFICATION The project is intended to be the applicant's full-time residence. VII.ADDITIONAL FINDINGS 1.The project site is located within the Seacliff Plantation at KIlauea Bay Subdivision in Kilauea,approximately half a mile southeast from the KIlauea Lighthouse.Parcelis along the makai side Makana Ano Place and approximately 990 feet north from the intersection with Pali Moana Place. 2.The State Land Use District (SLUD)designation for Parcel 84 is "Agricultural,"which allows for agricultural growth in a specific area. Z-IV-2022-1,U-2022-1 ,SMA(U)-2022-1;Dircclor's Repon Green August25,202I 3.The property is situated within the North Shore Planning area and will be subject to the objectives and goals ofthe North Shore Development Plan (NSDP),which that includes the following: Goal A:To preserve the unique natural beauty of the North Shore Planning area. Goal B:To preserve the special rural charm of the North Shore Planning area. Goal C:To provide for the safety and welfare of the people,of their property of the North Shore Planning Area. Goal D:To provide for economic development of the North Shore planning area. Goal E:To preserve the wildlife and flora and the North Shore,recognizing man's dependence upon this preservation for his own health and welfare. Goal F:To insure the preservation of historic-archaeological sites in the North Shore Planning Area. Goal G:To create a development for evolutionary growth that depends upon a planning process whereby conflicts can be resolved through the establishment of priorities and community participation. Goal H:To provide for recreational opportunities that are compatible with the unique qualities and natural features of the North. 4.The proposed development is outside the 500 feet shoreline setback threshold,pursuant to the County's shoreline setback requirements contained in Chapter 8,Article 27 ofthe Kaua'i County Code (1987),as amended.As such,a Shoreline Setback Determination is not necessary. 5.The subject property is NOT located within the Visitor Designation Area (VDA). 6.The General Plan designation (GP)is "Natural".According to the GP,areas designated as Natural have limited development due to topography,hazards vulnerability,sensitive resources,and other constraints.They include State Land Use Conservation District lands and some County Open Zoning District lands. 7.The proposed residence is located within Zone "X"of Federal Emergency Management Agency (FEMA)Flood Insurance Rate Map.FEMA had identified these areas to be outside of the 0.2%floodplain and is far enough inland to be vulnerable to coastal erosion or impact coastal waters. Z-IV-2022-1.U-2022-1,SMA(U)-2022-1;Director's Repon Green August25,2021 4|Page 8.The proposed site slope upwards from the southerly comer to the highest point at the northerly edge ofthe parcel.The applicant will apply for grading permits as required for the proposed development. 9.Special Management Area (SMA) In addressing the issues ofthe Special Management Area and its objectives and policies,the following aspects will be considered and evaluated: a.Recreational Resources b.Cultural/Historic Resources c.Scenic resources d.Coastal Hazard e.Coastal Ecosystem Furthermore,the proposal does not: f.Involve dredging,filling or otherwise altering any bay,salt marsh,river mouth,slough or lagoon; g.Reduce the size of any beach or other area usable for public recreation; h.Reduce or impose restrictions upon public access to tidal and submerged lands,beaches,rivers,and streams within the SMA;and i.Adversely affect water quality,existing areas of open water free of visible structures,existing and potential fisheries and fishing grounds,wildlife habitats, estuarine sanctuaries,potential or existing agriculture uses of land. 10.CZO Development Standards The proposed development is subject to standards prescribed in Sections 8-4.3 and 8- 9.2 ofthe CZO.The following standards are considered: a.Setback Requirements:Front property line setbacks are lO'-O"with a side and rear property line setback of five feet (5'-0")or half the distance of the plate height whichever is greater. b.Parking Requirements:A minimum of two (2)off street parking spaces shall be provided. c.Setback between buildings:The distance between buildings shall be ten (10)feet minimum. Z-IV-2022-I.U^2022-I,SMA(U)-2022-1;Direclor's Repon Green August25.2021 5|Page d.Lot Coverage:Parcel 84 has a County zoning designation of Open (0),and it is entitled to a maximum lot coverage of 10%.As such,the total allowable lot coverage for the subject parcel is approximately 53,600 square feet.As proposed, the lot coverage for the development that includes all of the buildings and impervious surfaces will be approximately 30,177 square feet. 11.Building Height PursuanttoSec.lO-2.4(e)(l)oftheKaua'iCountyCode 1987,as amended, commonly referred to as the North Shore Development Plan (NSDP),it specifies that no structure shall be no higher than twenty-five (25)feet,except as provided under Ordinance No.416 (Flood Hazard Areas).However,Section 15-1.5(c)(4)(A) of the KCC allows a structure to be no higher than 25 feet from ground level OR base flood elevation plus fifteen (15)feet,whichever is greater at the site.As stated earlier this parcel is Zone "X"and is outside ofthe 0.2%floodplain. 12.Use Permit Pursuant to Article 3 of the Comprehensive Zoning Ordinance (CZO),Chapter 8 of the Kauai county Code (1987),the purpose ofthe Use Permit Procedure is to assure the proper integration into the community of uses which may be suitable only in specific locations of a district,or only under certain conditions,or only if the uses are designed, arranged or conducted in a particular manner,and to prohibit the uses if proper integration cannot be assured.Section 8-3.2 ofthe CZO specifies a Use Permit may be granted only if the Planning Commission finds that the use meets the following criteria: 1)The use must be a compatible use; 2)The use must not be detrimental to persons or property in the area; 3)The use must not cause substantial environmental consequences;and 4)The use must not be inconsistent with the intent of the Comprehensive Zoning Ordinance (CZO)and General PIan. VIII.AGENCY COMMENTS See attached Exhibit "A" IX.PRELIMINARY EVALUATION In evaluating the Applicant's request to allow the construction ofthe proposed development,the following shall be being considered. 1.General Plan The proposed development satisfies the following policies of the General Plan,as taken from Section 1.3 and 1.4: A.1.3,entitled "VISIONS AND GOALS" Z-IV-2022-1,U-2022-I,SMA(U)-2022-1;Director's Repon Green Augusl25,2021 6|Pag e 1)Goal #1 "Sustainable Island -The proposed farm dwelling and guest house is within the long-established neighborhood known as "SeadiffPIantation"that was formerly a part of KTlauea Sugar Plantation.The applicant will implement a a number ofgreen (environmentally enhancing)initiatives such as a 675 square foot ground mounted PV system. 2)Goal #2 "Unique and Beautiful Place"-The proposed design of the development will be composed of moderate to dark earth tone colors and landscaping to blend in the surrounding area.The development will have minimal impacts to the natural,cultural,social,and built environmental qualities ofthe KIlauea Community. 3)Goal #3 "A Healthy and Resilient People"-The proposed development will be used as the full-time residence for the applicant and designed to support multi-generational families.The development is within walking and biking distance to downtown Kilauea for shopping,medical,commercial,and recreational opportunities. 4)Goal #4 "An Equitable Place,with Opportunity for All"-The project will support and enhance economic,business opportunities,andjobs on Kaua'i. B.Section 1.4,entitled "POLICIES TO GUIDE GROWTH" 1)Policy #1 Manage Growth to Preserve Rural Character The proposed development is within the Seacliff Plantation subdivision.The subdivision is within County Zone Open/Special Treatment Resource (0/ST-R)and offers low density development and is consistent with preserving rural character. 2)Policy #2 "Provide Local Housing -As stated within the application the farm dwelling will serve as the applicant's full-time residence. 3)Policy #3 "Recognize the Identity of Kaua'i's Individual Towns and Districts -The proposed development is located within an approved subdivision with a county zone designation of OPEN/ST-R (0/ST-R)with a 10%maximum allowable lot coverage.The project will have minimal negative impacts to the surrounding area and will preserve open space. 4)Policy #4 "Design Healthy and Complete Neighborhoods"-The proposed site area is located close to the KTlauea's Town Center offering shopping, medical,commercial,and recreation opportunities as well as access to public transportation. 5)Policy#5 "Make Strategic Infrastructure Investments"-The farm dwelling, guest house,and detached garage are within Seacliff Plantation subdivision and 7|Page Z-IV-2022-I,U-2022-1,SMA(U)-2022-1;Director's Report Green August25,2021 uses infrastmcture built for these types of development while preserving vital open space. 6)Policy#6 "Reduce cost of Living -As stated earlier,the dwelling is within close proximity to the KIlauea Town Center.This provides connectivity to housing,potential of employment opportunities,and public transportation. 7)Policy#8 "Protect Kaua'i's Scenic Beauty"-As shown in the applicant's Architectural submittal (see exihibt "D"),the proposed structures shall use moderate to dark earth tone color as well as landscape screening to minimize the visual impacts to the surrounding area. 2.North Shore Development Plan Standards The applicant has identified and addressed all the goals within the Northshore Development Plan (NSDP).The proposed use will provide full-time residency for the applicant. 3.Native Hawaiian.Traditional ,&Cultural Rifihts Exhibit "M"ofthe application contains a letter from Na Kia'i Nihokii (NKN), caretakers and guardians of Nihoku that addresses this subject matter.The cultural practitioners who are familiar with the surrounding area,identified as Mehana Blaich Vaughn,Kau'ionalani Fu,William Kenney,and 'Ohana of Na Kia'i Nihoku provided feedback conceming the proposed development and that it may result in negative impacts to the native bird habitat,the ability to observe the native avian species,the KTlauea view plane,cultural refuge/teaching areas,and possible restrictions for future generations having access to the area.The applicant,through their Attomey,is working with NKN for proper mitigative solutions to these concems. Construction plans should not be finalized until all issues are resolved with Na Kia'i Nihoku. 4.SMA Rules and Regulations The COK SMA Rules and Regulations contain objectives,policies and guidelines designed to protect coastal resources.Within the SMA,special consideration is given to recreational opportunities,cultural and historic resources,scenic qualities and open space,coastal ecosystems,and coastal hazards.In evaluating the proposed development relative to the goals and objectives of the SMA Rules and Regulations,the following aspects are taken into consideration: a.Public Access and Coastal Recreation -The subject site is approximately half (1/2) a mile to the KTlauea Wildlife Reserve which is accessed through KTlauea Lighthouse Road.Kahili Beach and Kllauea Stream access is provided through KTlauea Quarry Road which offers numerous recreation activities such as swimming,surfing,fishing,camping,and kayaking.There is also a pedestrian trail which runs from Kahili Quarry Road to the west bank of KTlauea Stream.The 8|Page Z-IV-2022-],U-2022-1,SMA(U)-2022-1;Director's Rcport Green August25,2021 proposed development will not restrict any public access to the shoreline and other recreational areas. b.Cultural/Historical Resources -The subject property is in an existing subdivision with an improved road and utility infrastructure.An Archaeological Inventory Survey dated 1989 (prepared by Fredricksen and Fredricksen)was prepared for a portion of the subject property.No historic sites are know or were identified within the project area.A service reconnaissance of the project area did not reveal any archaeological features.The applicants are not aware of any archaeological, cultural,or historical resource on the surface of the project site;however,in the event of an inadvertent historic site or burial discovery in the future,the applicant will immediately contact the Department of Land and Natural Resources (DLNR), State Historic Preservation Division (SHPD). c.Scenic and Open Space Resources -The project will have no significant negative impacts on the scenic and open space resources.The color scheme of the dwelling, guest house,and garage will be ofmoderate to dark earth tone colors.The site will be landscaped to blend in with the surrounding area. d.Coastal Hazards -The subject property is not abutting the shoreline.There is one parcel between the subject site and the natural rocky shore cliff.The project area/site is not located within the tsunami evacuation area.The project site is located within Zone "X",as shown on Federal Insurance Rate Maps (FffiM 150002-0060E).The project will not be impacted by any coastal hazards. e.Coastal Ecosvstems -The project site is abutting lands owned by the U.S.Fish and Wildlife Service as the Kilauea Wildlife Refuge area along its northem boundary. Indigenous seabirds such as the Laysan Albatross,the White-tailed Tropicbird,the Red-tailed Tropicbird,the Brown Booby,the Red-footed Booby,and the Great Frigate bird frequent the nearshore areas of the KIlauea National Wildlife Refuge. Several migratory shorebirds species such as the Pacific Golden-Plover,the Ruddy Tumstone,the Wandering Tattler,and the Sanderling are present on the subject site during late July and late April ofeach year.The endangered Hawai'ian Petrel and the threatened endemic sub-species of the Newell's Shearwater have been identified to fly over the project area between April and the end of November each year.The development is located on a bluff above cliffs of the of the KTlauea National Reserve and portion of the property is an Open Space Easement of 3.154 acres which is managed by the U.S.Fish and Wildlife Service.The development will have very minimal impacts to the coastal ecosystem. 5.Use Permit a.Pursuant to Article 3 of the Comprehensive Zoning Ordinance (CZO),Chapter 8 of the Kauai county Code (1987),the purpose of the Use Pennit Procedure is to assure the proper integration into the community of uses which may be suitable only in specific locations of a district,or only under certain conditions,or only if the uses Z-IV-2022^1,U-2022-I,SMA(U)-2022-I;Director's Report Green August25,2021 9 1 Pag e are designed,arranged or conducted in a particular manner,and to prohibit the uses if proper integration cannot be assured.Section 8-3.2 of the CZO specifies a Use Permit may be granted only ifthe Planning Commission finds that the use meets the following criteria: 1)The use must be a compatible use; 2)The use must not be detrimental to persons or property in the area; 3)The use must not cause substantial environmental consequences;and 4)The use must not be inconsistent with the intent of the Comprehensive Zoning Ordinance (CZO)and General Plan. b.Based on the foregoing,the following aspects are considered: 1)Compatible Use -The proposed development is designed to be integrated with the surrounding residential uses within KTlauea Town.As noted in the Director's Report,the project site is within the Seacliff Plantation ofthe KIlauea Bay Subdivision and the proposed use is compatible with the surrounding uses and is not expected to impact urban activities in the area. 2)Community Input -The KTIauea Neighborhood Association (KNA)Board and members of the community voted unanimously to approve the forthcoming SMA Use permit application.While KNA is in support of the applicant s development,KNA also hope that the applicants be open and sensitive to the concems raised by Na Kia'i Nihoku and its residents. X.PRELIMINARY CONCLUSION Based on the foregoing,it is concluded that through proper mitigative measures,the proposed development can be considered,and it complies with the policies and guidelines of the Special Management Area Rules and Regulations in that: 1.The development will not have any substantial adverse environmental or ecological effect. 2.The development is consistent with the objectives/goals/policies ofthe County General Plan,the Comprehensive Zoning Ordinance,and other applicable ordinances. Furthermore,the proposal DOES NOT: a.involve dredging,filling,or otherwise altering any bay,estuary,salt marsh,river mouth,slough or lagoon; b.reduce the size of any beach or other area usable for public recreation; Z-IV-2022^1,U-2022-1.SMA(U)-2022-1;Director's Report Green August25.2021 io 1 Pag e c.reduce or impose restrictions upon public access to tidal and submerged lands, beaches,rivers or streams within the special management area;and d.adversely affect water quality,existing areas of open water free of visible structures,existing and potential fisheries and fishing grounds,wildlife habitats, estuarine sanctuaries or existing agricultural uses of land. Furthermore through proper mitigation measures,the proposed development would not have any detrimental impact to the environment or the surrounding area and is in compliance with the criteria outlined for the granting of a Use Permit and Class IV Zoning Permit. The Applicant should institute the "Best Management Practices"to ensure that the operation of this facility does not generate impacts that may affect the health,safety,and welfare of those in the surrounding area of the proposal. The Applicant shall implement to the extent possible sustainable building techniques and operational methods for the project. XI.PRELMINARY RECOMMENDATION Based on the foregoing evaluation and conclusion,it is hereby recommended Class IV Zoning Permit Z-IV-2022-1,Use Permit U-2022-1,and Special Management Area Use Permit SMA(U)-2022-1,be APPROVED.If approved,the following conditions shall be implemented: 1.The proposed improvements shall be constructed as represented.Any changes to said development shall be reviewed by the Planning Director to determine whether Planning Commission review and approval is warranted. 2.Prior to commencement of the proposed development,written confirmation of compliance with the requirements from all reviewing agencies shall be provided to the Planning Department.Failure to comply may result in forfeiture of the SMA Permit. 3.The proposed dwelling and guest house shall not be utilized for any transient accommodation puqioses.It shall not be used as a transient vacation rental (TVR)or as a homestay.This restriction shall be incoqiorated into the deed restrictions of the subject parcel in the event the property is sold to another party, draft copies of which shall be submitted to the Planning Department prior to building permit application approval. 4.In order to ensure that the project is compatible with its surroundings and to minimize the visual impact of the structures,the extemal color of the proposed dwelling,guest house,and detached garage shall be of moderate to dark earth- Z-IV-2022-1,U-2022-1,SMA(U)-2022-1;Dh-ector's Repon Green August25,2021 ii|Page tone color.The proposed color scheme and a landscape plan should be submitted to the Planning Department for review and acceptance prior to building permit application. 5.The Applicant is advised that should any archaeological or historical resources be discovered during ground disturbing/construction work,all work in the area of the archaeological/historical findings shall immediately cease and the Applicant shall contact the State Department ofLand and Natural Resources,Historic Preservation Division at (808)692-8015 and the Planning Department at (808)241-4050 to determine mitigation measures. 6.In order to minimize adverse impacts on the Federally Listed Threatened Species, Newell's Shearwater and other seabirds,if extemal lighting is to be used in connection with the proposed project,all extemal lighting shall be only of the following types: downward-facing,shielded lights.Spotlights aimed upward or spotlighting ofstructures shall be prohibited. 7.The Applicant shall develop and utilize Best Management Practices (B.M.P's) during all phases of development in order to minimize erosion,dust,and sedimentation impacts of the project to abutting properties. 8.The Applicant shall resolve and comply with the applicable standards and requirements set forth by the State Health Department,State Historic Preservation Division-DLNR, and the County Departments of Public Works,Fire,Transportation,and Water. 9.To the extent possible within the confines of union requirements and applicable legal prohibitions against discrimination in employment,the Applicant shall seek to hire Kauai contractors as long as they are qualified and reasonably competitive with other contractors and shall seek to employ residents of Kauai in temporary construction and permanent resort-relatedjobs.It is recognized that the Applicant may have to employ non-Kauai residents for particular skilledjobs where no qualified Kauai residents possesses such skills.For the purposes ofthis condition,the Commission shall relieve the Applicant ofthis requirement ifthe Applicant is subjected to anti-competitive restraints on trade or other monopolistic practices. 10.The Planning Commission reserves the right to revise,add,or delete conditions of approval in order to address or mitigate unforeseen impacts the project may,create,or to revoke the permits through the proper procedures should conditions of approval not be complied with or be violated. 11.Unless otherwise stated in the permit,once permit is issued,the Applicant must make substantial progress,as determined by the Director,regarding the Z-IV-2022-1,U-2022-1,SMA(U)-2022-];Director'sReport Green Augusl25.2021 ia|Pa g e development or activity within two (2)years,or the permit shall be deemed to have lapsed and be no longer in effect. The Planning Commission is further advised that this report does not represent the Planning Department's final recommendation in view of the forthcoming public hearing process scheduled for September 14,2021 whereby the entire record should be considered prior to decision-making.The entire record should include but not be limited to: a.Pending govemment agency comments; b.Testimony from the general public and interested others;and c.The Applicant's response to staff's report and recommendation as provided herein. By -<-<. ROMIO IDICA Planner Approved &Recommended to Commission: KA'AINA S'.HULL Director of Planning Date:^ 'l^l l^f^-\ Z-rv-2022-1,U-2022-1,SMA(U)-2022-1:Director's Report Green August25,2021 13 lP age EXHIBIT"A" (Agency Comments) For reference JI.IL !2 RSC'u COUNTY OF KAUA'I PLANNING DEPARTMENT 4444 RICE STREET,SUITE A473 LlHU'E,HAWAI'l 96766 (808)241.4050 FROM:Kaaina S.Hull,Director (Romio)July 8,2021 SUBJECT:Class FV Zoning Permit Z-IV-2022-1,Use Pei-mit U-2022-1,Special Maiiagement Are Use Pennit SMA(U)-2022-1,Dwellmg,Single Family Detached Tax Map Key:(4)5-2-004:084,Phillip J.&Linda M.Green,Trustees, Applicant TO: D Department of Transportation -STP DPW-Engineering DOT-Highway,Kauai(info only)DPW-Wastewater DOT-Airports,Kauai (info only)n DPW-Building D DOT-Harbors,Kauai (info only)D DPW-SolidWaste State Department of Health D Department of Parks &Recreation a State Department of Agriculture FiTe-Department ^ State Office of Planning D County Housing-Agency D State Dept.ofBus.&Econ.Dev.Tourism u County Economic Development a State Land Use Commission a KHPRC State Historic Preservation Division Water Department D DLNR-Land Management Kaua'i Civil Defense D DLNR-Foresty &Wildlife a U.S.Postal Department DLNR-Aquatic Resources UH_Sea_Grant D DLNR-OCCL County Transportation Agency D Other: FOR YOUR COMMENTS (pertaining to your department): Sprinklers will probably be required based on the distance from the standpipe (not stated in plans)and the inadequate water supply.The nearest stand pipe to the site has low pressure and GPM's.The drive way may not have the turning clearance needed for fire department access This matter is scheduled for a public hearing before the County of Kauai Planning Commission on 9/14/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lihue,Kauai,at 9:00 am or soon thereafter.If we do not receive your agency comments within one (1) month t'rom the date of this request,we will assume that there are no objections to this permit request. Mahalo! COUHTY "''KAUA! •21 PLANNiHG DEPT. Jl.!!. COUNTYOFKAUA'I JUL 29 P 1 :41 PLANNING DEPARTMENT 4444 RICE STREET,SUITE A473 LlHU'E,HAWAI'I 96766 (808)241-4050 FROM:Kaaina S.Hull,Director (Romio)July 8,2021 SUBJECT:Class IV Zoning Permit Z-IV-2022-1,Use Permit U-2022-1,Special Management Are Use Permit SMA(U)-2022-1,Dwellmg,Single Family Detached Tax Map Key:(4)5-2-004:084,Phillip J.&Linda M.Green,Trustees, Applicant TO: FOS^3B8ifi^d&tgNT&«8ffigtlnglte«eurdepartment): See conments on attached sheet. July 26,2021 :en Ta^eka^j^Acting Chief District l-jivircfeiental Health Office Kauai/This matter is scheduled for a public hearing before the County of Kauai Plamiing Commission on 9/14/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lihue,Kauai,at 9:00 am or soon thereafter.If we do not receive your agency comments within one (1) month from the date of this request,we will assume that there are no objections to this permit request. Mahalo! ~0 Department ofTransportation -STP s DPW-EngineeringsDOT-Highway,Kauai(info only)^DPW-WastewatersDOT-Airports,Kauai (info only) 'n DPW-BuUding 3 DOT-Harbors,Kauai (info only) ~a DPW-SolidWaste ^State Department of Health Department of Parks &RecreationsStateDepartmentofAgriculture ~s Fire-DepartmentsStateOfi'ice of Planning County Housing-Agency~D State Dept.of Bus.&Econ.Dev.Tourism 3 County Economic DevelopmentsStateLandUseCommissioasKHPRC~s State Historic Preservation Division Water DepartmentsDLNR-Land Management ^Kaua'i Civil Defense"D' DLNR-Foresty &Wildlife ~n~ U.S.Postal Department"D' DLNR-Aquatic Resources s UH_Sea_Grant~D DLNR-OCCL ~w County Transportation Agency"n Other: Class IV Zoning PermitApplication:Z-IV-2022-1 Use Permit:U-2022-1 Special Management Area:SMA(U)-2022-1 Applicant:Phillip J &Linda M.Green Based on our review ofthe application,we have the following environmental health concems for your consideration. 1.The use of individual wastewater systems is allowed as presented in the zoning application.The type and number of individual wastewater systems to be used on each lot witl be detennined by the wastewater rules in effect at the time of building permit application. 2.Noise will be generated during the construction phase of this project.The applicable maximum permissible sound levels as stated in Title 1 1,Hawaii Administrative Rules (HAR),Chapter 11-46,"Community Noise Control",shall not be exceeded unless a noise permit is obtained from the State Department of Health (DOH). 3.Temporary fugitive dust emissions could be emitted when the project site is prepared for construction and when construction activrties occur.In accordance withTitle 11,HAR,Chapter 11-60.1 "Air Pollution Control",effective air pollution control measures shall be provided to prevent or minimize any fugitive dust emissions caused by construction work from affecting the surrounding areas. This includes the off-site roadways used to enter/exit the project.The control measures include butare not limited to the use ofwaterwagons,sprinkler systems,dust fences,etc. 4.The property may harbor rodents which may disperse to the surrounding areas when the site is cleared.In accordance with Title 1 1,HAR,Chapter 1 1 -26, "Vector Control",the applicant shall ascertain the presence or absence of rodents on the property.Should the presence of rodents be detennined,the applicant shall eradicate the rodents prior to clearing the site. 5.The construction waste that is generated by the project shall be disposed of at a solid waste disposal facility that complies with the applicable provisions of Trtle 11 HAR,Chapter 11-58.1 "Solid Waste Management Control",the open buming of any of these wastes on or off site prohibited. Due to the general nature of the application submitted,we reserve the right to implement future environmental health restrictions when more detailed infonnation is submitted. Ka'aina S.Hull Director of Planning Jodi A.Higuchi-Sayegusa Deputy Director of Planning COUNTY OF KAUA'I PLANNING DEPARTMENT SUPPLEMENT #1 TO PLANNING DIRECTOR'S REPORT "*t!^.<"1?') ...».»-i RE:Class IV Zoning permit Z-IV-2022-1 UsePermit U-2022-1 Special Management Area Use Permit SMA(U)-2022-1 APPLICANT:PHILIP J.GREEN AND LINDA M.GREEN ADDITIONAL FINDINGS Attached for the PIanning Commission's reference is supplemental information as follows: •Na Kia'i Nihokii,Dr.Mehana Blaich Vaughan,Additional comments,Received August 31,2021 By Romio Idica Staff Planner CIass IV Zoning permit Z-1V-2022-1 UsePermit U-2022-1 Special Management Area Use Pennit SMA(U)-2022-1 Supplementftl to Director's Repon PHILIP J.GREEN AND LINDA M.GREEN 09.01.21 V.1.^.% SEP \4 202^ Background Pertaining to The Significance ofNihoku,Kilauea,Kaua'i Permit Application for Development of Single Family Home,TMK 52004084000 Nihoku,or Crater Hill,is a volcanic cinder cone located along the coast ofthe ahupua'a of Kilauea, within the moku of Ko'olau.Nihoku is the volcanic crater that gives the Kilauea area its name. Kilauea means "spewing,"like the Big Island's active caldera.Nihoku is located in the coastal zone Special Management Area and within a Scenic/Ecologic Resources (ST-R]special treatment district.The area offers sweeping vistas of both Halele'a and Ko'olau districts and is one of Hawai'i s most important sea bird nesting sites.Nihoku is also uniquely culturally significant as a site ofmultiple mo'olelo and ongoing Native Hawaiian traditional and customary practices. Geologic Significance Nihoku is a volcanic crater rising 560 feet above the shoreline on the north-east side ofthe Island ofKaua'i. The crater is part ofthe late-stage Koloa Volcanlc series that covers most of Kaua'i's east side, erupting through large fissure-like fractures in the shield volcanic dome ofthe earlier Wai'ala'ale series.Other Koloa series craters and land forms indude Nomilu and cinder cones along the Po'ipu coastline. The exact age of Nihoku's eruption is still undetermined and likely ranges from .5-2 million years ago. Only 1/3 ofthe volcano complex still exists,the rest having fallen into the sea.[t likely had a former dlameter ofat least 1.2 mlles,large enough to encompass Diamond Head. Nihoku's volcanic eruptions produced ash that continues to enrich surrounding soils. Nihoku is one of the highest cliff points along the northeastern coast of Kaua'i. The mountain offers a significant vantage point and location for atmospheric and phenological observations,connecting indicators such as plant flowering and bird nesting to annual weather patterns and climate change. Soils of Crater Hill consist primarily of Lihu'e Silty Clay;deep,nearly level to steep,well-drained soils that have a fine textured or moderately fine textured subsoil.These soils are well to excessively drained,found on very steep to precipitous mountains and gulches. SUMMARY:Nihoku is a unique geologic feature of Kaua'i and all of Hawai'i,from which it is possible to teach and observe the geologic history ofthe islands,erosion processes and impacts ofclimate change,The proposed house would be the highest structure ever built on Nihoku,located directly below the narrowest point ofthe crater rim.Excavation into the subject parcel's steep hillside should be minimized due to the area's sensitive geology and susceptibility to erosion. Ecological Significance •Approximately half the lands that make up Nihokii,along with Wowoni point to the west,site of Kilauea lighthouse and Mokolea point to the east,fall within the Kilauea Point National Wildlife Refuge due to their sensitive ecology and significant seabird habitat. •Nihoku is a significant geological feature that impacts atmospheric processes such as rainfall and wind patterns along the northeastern coastline of Kaua'i. •This area comprises one ofthe largest seabird nesting colonies in the Main Hawaiian Islands. •Ten different sea and shorebird specles nest here including 'a (red footed booby],moli (laysan albatross],ua'u kani [wedge tailed shearwaters),koa'e kea and ula [red and white tailed tropic birds),and 'iwa (great frigate birds). •Some birds are threatened and endangered specles such as nene (Hawaiian geese - endangered),and a'o (newell's shearwater -threatened). •Nihoku is also site ofa predator prooffence where chicks ofboth a'o (newell's shearwater)and the (ua u]endangered Hawaiian petrel are being relocated from mountain nesting areas of Kaua i.Chicks ofboth species can no longer survive in the wild due to predation by feral cats. •Moli (laysan albatross]chicks from the Pacific Missile Range Facility at Polihale are also relocated to Kilauea refuge lands. •Nihoku is a signlflcant high-island refugia for the mass exodus of populations of millions of seabirds and shorebirds in the Northwestern Hawaiian Islands (NWHI]whose nesting grounds are already being impacted by sea level rise and climate change. •The higher slopes of Nihoku,including the subject parcel,are home to native pueo (Hawaiian short-eared owl),which are ground nesting field hunters,Pueo are listed as endangered on O'ahu and have high mortality rates on the island of Kaua'i from undetermined causes potentially linked to human impact.(Note:the Hawai'i state legislature in 2021 passed a resolution asking DOFAW to request review by USFWS ofpueo for endangered species listing across Hawai'i.) •Nihoku is also home to the endangered hoary bat (ope'ape'a),the only land animal native to the Hawaiian archipelago. •Seabirds require expanses of open space in which to land and soar and are highly sensitive to Hght interference.Development ofhomes on agricultural lands surrounding the refuge shrinks habitat and potentially impacts bird populations. •Proactive efforts to cultivate and increase wllderness habitats,as well as environmental restoration efforts in the Main Hawaiian Islands,are critical,especially in areas with established seabird nesting habitats. SUMMARY:The subject parcel adjoins the Kilauea Point National Wildlife Refuge on two sides of the property.The proposed house site would comprise the closest development to existing seabird nesting areas,some of the most critical in all of Hawai'i.The subject parcel is likely suitable habitat for moli (laysan albatross),ua'u kani (wedge tail shearwaters),and nene,all of which nest just on the other side ofthe fence separating the property from refuge lands.These species have been spotted on the subject parce],along with pueo.With seabirds'primary habitat in the NWHI shrinking due to sea level rise,Nihokii and the surrounding refuge lands are the most likely suitable relocation site. It is vital to expand protection ofbuffer areas surrounding the refuge and maintain critical habitat rather than threaten its integrity through encroachment. Cultural Signlflcance Nihoku,is a wahi pana,a storied and sacred space,unique in all of Hawai'i. •The wind ofNihokii,ao po'o muku,can be translated as cutting or splitting the tops ofthe clouds. This may refer to the way clouds and incoming weather from the north-east separate at Nihoku. Though small,the mountain blocks wind and storms,sending rain showers either towards the mountains or seaward. •Chants for the area refer to groves of hala and the scent of hinano (hala blossoms)on the mountain. Nihoku is referred to in multiple Hawaiian mo'olelo (chronicles,history,stories]including: •Pele and her siblings mlgrated to Hawai'l from Kahiki as Pele sought to find a home for her fires. This mo olelo shares of Pele digging the volcanic crater of Nihoku,her sister Namakaokaha'i sending crashing waves to destroy it,and ofthe three Kilauea sisters who watched their battle only to be turned to stone by Pele's wrath.A1I three stone sisters stand today on the rim of Nihokii. •Puapualenalena is referred to in an archival chant labeled a hula 'ilio (dog hula]related to Nihoku. Puapualenalena,a trickster kupua or spirit,appearing in this case in dog ('ilio)form may be associated with a heiau located on Nihoku,referred to by Thrum in 1907 as a heiau pa 'ilio. •Menehune jumped from the cliffinto the ocean here as a favored game.They attempted to build a bridge to Makapili islet at the base of Nihoku before being foiled by sunrise.Nihoku is also referred to as a possible home site ofa prominent menehune chief. The area is mentioned in stories ofthe ali'i Lonoikamakahiki and associated with makahiki rituals for the deity Lono,rituals which continue at Nihoku and Mokolea today. Areas visible from Nihokii encompass multiple mo'olelo ofHalele'a and Ko'olau including the mo'olelo ofAahoaka,child ofKaIalea and Koananae with its many characters who are mountains and valleys within sight ofthe hillside.This mo'olelo also speaks oftwo eel siblings who dug sea caves and waterways in the Kilauea area seeking fresh water. Another mo olelo attributes formation of Kilauea plateau and its two surrounding river valleys to Kamo'okoa,a giant mo'o visible from Nihokii along the eastern flank of Namahana mountain. Historical and Ongoing Traditional and Customary Hawaiian Cultural practices at Nihoku: Kilo:Seasonal observation ofweather patterns,star lines and the path ofthe sun and moon over the mauna. Mo'olelo:Perpetuation ofstories ofthe Ko'olau and Halele'a area through visitation and viewing of wahi pana (storied places)that serve as both setting and characters Inoa 'aina:Study,interpretation and perpetuation ofplace names. OIi,haku mele,hula:Composition,and offering ofchants,songs and dance.Halau hula from across Hawai'i and the world,particularly those associated with the volcanic traditions of Pele,study and visit Nihoku and its associated mele. Hulu Manu:Gathering and utilization ofseabird feathers to facilitate teaching and perpetuation of feather arts.Seabirds deflne levels ofthe atmosphere (ao lewa lani lewa,for example,the region where birds soar)as a marker of space and sacredness.They teach about behavior in the way koa'e court and nest,nene guard their young,and 'iwa,though regal,steal food from others rather than working for their own.Their feathers are used in lei design to carry certain qualities,and in ceremonies such as makahiki.They signify royalty and are used to make kahili,such as those at lolani Palace,surrounding Lili'uokalani and Kalakaua. Malama;Care and guardianship ofplaces that embody gods,ancestors,and 'ohana. Lawai'a:Fishing.Nihoku includes a historic fishing trail used by Hawaiians and later Kilauea residents through the plantation era to access Makapili.It is an important spotting site for fish. Ho'okele and Wa'a:Celestial observation and navigation.Nihoku is a key training ground in these arts as well as a key navigational marker for canoes journeyingto,from and around Kaua'i. A'o -Education to perpetuate connection to place along with associated customary practices. SUMMARY:Nihoku is the highest accessible point in much of Ko'olau and Halele'a,situated near where the two moku join.The mountain affords significant and rare views as far as Anahola and Pila'a to the east,past Kalihikai,Wanini,and Hanalei to Ha'ena in the west.This rare vantage point is vital to understanding the entire Ko'olau and Halele'a moku,their mo'olelo,mountains,place names and many wahi pana.Nihoku is a critical kilo or observation point.The proposed home site impacts perpetuation ofmultiple cultural practices connected to the area and the traditional and customary rights associated with each. Past assessments for development surrounding Nihoku,located within Sea Cliff Plantation,including a 2019 Ka Pa'akai Analysis for permitting ofa single family home before the Kaua'i Planning Commission,incorrectly concluded that there is no existing cultural significance or traditional and customary practices for the area. KO KO'OLAU KOVMOHANA MAU WAHI PANA (KO JIWA 'IKENA)-- MAKALEHA MOUNTAINS WAIAKALUA NUI ^....,ffnffT""'' (PAPA-A).^" >3^Sj^y,^1^ m~^^<.~"^^ KEPUH)PT..^*>/«.'•''/"KA LAE 'O WOWONI—^c^\—' ^K^*.^ —-"-.^ROKU •A.E'A'E^ f^(J.£"K^U'SN(TV TMwi Communlty Slgnlflcance The Kilauea community has long recognized the significance of Nihoku and fought to protect Crater Hill and surrounding areas. •In the early 1980s,Kilauea Neighborhood Association opposed the Sea Cliffsubdivision due to concerns about imposition ofa gated community,loss ofKilauea's agricultural way oflife,and protection of the viewscape and significant landmark of Nihoku for all of Kilauea. •Though the subdivision was permitted,community members won multiple conditions: 1)75 acres at the base of Nihoku were set aside for the Kilauea Agricultural Park,now 'Aina Ho'okupu o Kilauea. 2}Houses built at Sea Cliffwere required to use earth-toned materlals and to be built below a setback line,so as not to detract from the profile of the landmark of Nihokii. •When the roads,induding Makana 'Ano place,were surveyed and built within Sea Cliff PIantation subdivision,the setback line had to be raised and redrawn.Installed roadways left less than 50 ft. ofbuildable area between roads and agreed upon set back lines. •Multiple houses within Sea Cliff Plantation are visible on Nihoku from Kuhio highway in both directions,from Lighthouse Road,and from public access roads to Kahili beach from both Wailapa and KTlauea town. •During the subdivision of Sea Cliff Plantation,the communlty also fought to protect Mokfllea Point from development ofaround ten luxury home sites. •With the leadership ofSenator Daniel Inouye's office,Mokolea and much ofNihoku were purchased by the federal government in 1988 to expand Kilauea Point National Wildlife Refuge. •This conservation effort was brokered by Trust for Public Lands in one oftheir first land deals in Hawai'i. •Senator Inouye came to dedicate the expanded refuge lands in 1988,along with Sparky Matsunaga and Daniel Akaka.When Inouye looked at the vista from Nihokii for the first time,he declared that the parcel at the top of Makana'ano place,must also be preserved and added to the refuge lands as the public viewing area that remains today. •Kilauea 'ohana had already accessed Nihokii throughout the plantation era to fish,hunt,explore, picnic,hike,and watch the sunset together. •Nihokii continues to be a vital recreational asset to Kilauea due to the generous support of Sea Cliffhomeowners who allow walking access through the gated community.From early morning to sunset,Kilauea kupuna,mothers,keiki and multiple generations of'ohana walk,bike,run,bird and whale watch,take family photos,and enjoy the view. •Access to an important fishing trail on Nihoku is also preserved and continues through the refuge. Na Kia'i o Nihokii (NKOK),a group ofcultural practitioners from the Kilauea area founded in 2016, holds a cultural use permit with the USFWS to escort groups to Nihokii for cultural,educational and ecologlcal restoration purposes.These groups are subject to strict size limitations and access requirements due to the ecological sensitivity ofthe refuge. In their first four years (prior to the coronavirus epidemic),NKOK held 40 events,escorting over 800 individuals to Nihoku including Kaua'i school children,hula halau and other cultural practitioners along with groups like Leadership Kaua'i and Kaua'i Community College Classes.Over halfofthose attending had never been to Nihoku. Removal ofinvasive species by NKOK's volunteer members and groups is crucial to annual preparation ofkipuka ofnative plantings on Nihoku for annual bird nesting seasons. The Kilauea community has also worked to preserve neighboring Kahili beach and estuary, where Kilauea River meets the sea,at the foot of Nihoku.Beach cleanups,begun in the 1990s, continue monthly,along with restoration of native dune habitat. KTlauea community members worked with property owners ofthe dunes at Kahili beach,also once slated for a luxury home,to instead gift that land to the Hawai'i Land Trust (formerly Hawai'i Islands Land Trust.Hawai'i Land Trust works wlth the Kilauea community and USFWS to steward Kahili along with multlple area conservation easements. SUMMARY: The Kilauea community has worked steadily for over fifty years to secure and implement protection of Nihoku and to care for the vital Kilauea landmark.Community members have continually accessed the mountain as part oftheir way oflife and 'ohana experiences.Nihoku rises above the former plantation town and recent agricultural subdivisions sprawling across the former sugar lands providing a place of refuge for the community to learn about Kilauea,spend time together,reconnect, and replenish.The subject parcel is the most sensitive and potentailly impactful ofall the building sites within the Sea Cliff plantation,and possibly in all of Kilauea,because it is the highest and closest to areas ofNihoku still easily and regularly accessed by community members. Community Concerns Regarding Development of Proposed House; The proposed development is situated on a 12.2 acre parcel,consisting of two CPR units.According to the County of Kaua'i real property website,the upper and larger unit is 7.93 acres.The smaller and lower unit is 4.3 acres.Both are owned by the appllcant,who purchased the entire TMK in 2019 for 1.75 million dollars.The proposed size and siting ofthe house prompts multiple community concerns. Size;The proposal indudes extensive developed area of 30,177 square feet within this sensitive site. •The proposed total roofarea is just over 12,000 square feet (12,071 sf)including a main house,garage,and guest house,with an additional 1,283 square feet beyond roofeaves. •The proposal includes excavation ofa nearly 3,000 square foot (2,970 sf)swimming pool. *Driveway and court areas encompass nearly 12,000 additional square feet [11,597 sf),plus 1,581 square feetofpavers (stepping stones)and 675 squarefeetofphotovoltaicpanels. Siting:The selected siting of the house on the upper CPR unit,is one of the steepest sections of hillside.Extensive excavation into the hillside will be required to flatten the lot.The lower, smaller CPR unit is flatter,nestled out ofthe wind and rain storms that funnel around Nihokii. Drainage:The roof,driveways,and impermeable surfaces planned for the parcel with its high elevation and steep terrain along with the grading required to build them pose drainage concerns. *The area's average rainfall is aproximately 65 inches.The lot is subject to high intensity storms and rainfall events,expected to increase with climate change. *The property encompasses a small ravine that drains from the upper reaches of Nihokii into the Sea Cliff storm drain system. *Water from storm drains at Sea Cliff funnels into a drainage that washed out the Rock quarry road to Kilauea Bay in 2019,the only public access from Kilauea town.The county roadway remains closed. Water:Kilauea's water infrastructure is at capacity,which impacts available water for housing and agriculture.There is some question ofwhether existing water pressure is adequate to feed development at this height without impacting other Kilauea water users. Llghts:Light interference critically impacts threatened and endangered species such as newell shearwaters and Hawaiian petrel,both ofwhich nest near the subject property.Lights also impact the traditional and customary practice of celestial navigation and observance of stars. Climate Change:Community concerns also emphasize the increasing sensitivity and importance ofthe site in the face ofclimate change.Climate change is projected to increase rainfall intensity and speed up erosion rates,while also leading to longer dry periods and enhanced fire risk.The exposed nature and strong winds ofthe Nihoku portion ofthe refuge and adjoining lands increase chances of wildfire,exacerbated by the year-round growing season for vegetation.Increasingly rapid sea level rise in the northwest Hawaiian islands makes it vital to protect and expand seabird habltat at Nihoku. •The Kilauea Neighborhood Assoclation (KNA)submitted a letter to the Planning Department in June 2021 supporting the proposed SMA permit application.However,the letter noted that some Kilaueans have legitimate concerns regarding the development,which the KNA Board urged be addressed "in a manner that satisfies all KIIaueans and allows us to thrive and move forward into the future as one unified community." •Many Kilauea community members are still learning about the proposed house development and permlt. •Na Kia'i o Nihoku and other Kilaueans have articulated proposed conditions to mitigate impacts ofthe home and have been meetingwith the homeowners to discuss them. 1)Decreasethe size ofthe house 2)Minimize excavation and grading into the hillside 3]Move the house down the mountain to the lower 4.3 acre CPR unit,further from the refuge 4)Lowerthe roofline 5)Combine the two CPR lots within the TMK so that it remains one large property with one house and owner,preventing subsequent sale ofthe second lot and possible further development. 6]Perpetual protection for the land such as a conservation easement with the Hawai'i Land Trust or donation to expand the refuge •'^1^"':"-•••.:".-:^^^'^SS',^°^:£Sw^v^^."..•.,'..^'•'.'.-.''•.'^::':':.--^.'^..^:<.;—^si Land Use and Zoning •Nihoku s land use designation is Conservation and Agricultural at the state level,Natural and Open at the county level.The 2020 Kaua'i general plan states:"Areas designated as Natural have either limited development capacity or are not suitable for development due to topography, hazards vulnerability,sensitive resources,and other constraints.Very few residential uses are found in the Natural designation and are generally not encouraged." •Comprehensive zoning Ordinance article 11 -sec.8.11 requires that the Planning Commission ensure that development within special treatment areas recognizes,preserves,maintains, and contributes to the enhancement ofthose characteristics ofparticular significance or value to the general public (because ofunique or critical cultural,physical or locational characteristics). •North shore zoning maps have not been updated slnce the North Shore Development PIan Update in 1979,adopted by the Kaua'i Planning Commission in 1983.However,Nihoku and surrounding parcels meet requirements ofthe following special treatment districts: a)Cultural/Historic (ST-C).Communities and land or water areas which have a particular and unique value to the general public because of significant historic background,structures,or landforms. b)Scenic/Ecologic Resources (ST-R).Land and water areas which have unique natural forms, blologic systems,or aesthetic characteristics which are ofparticular significance and value to the general public. c)Open Space (ST-0).Areas which,pursuant to Article 9 ("Open Districts"),have been designated as "open space"areas. d]Coastal Edge (ST-CE).Areas that are highly vulnerable to coastal hazards,including but not limited to sea level rise,coastal eroslon,high wave run-up,passive flooding,and an increased frequencyandintensityofstorms.(Ord.No.935,November 14,2012;Ord.No.1085, December 3,2020] •Nihokii and the subject parcel are within the designated Scenic/EcologicaI Resources (ST-R) Special Treatment District. •The Kilauea town plan identifies views from Nihoku as part of Kilauea's assets and a desire to retain Kilauea's rural charm and scenic landscapes. SUMMARY The subject parcel is located within multiple protective county level zoning designations:natural, open,SMA,and special treatment resource district,all ofwhich recognize its limited development capacity due to topography,hazards vulnerability and sensitive ecological and scenic resources. 10 UMUGHIHOUSESEitVICE KiUUEARO ILOOAuis VtniiBcMitiiyiilctifil;-. ^MM-^-»<a^ UNnED STATES OF AMERICA ^LWAcm Vtew:n6(>crt]51.tttt.elinclninell/J[[EaeniS ^LJBSOI UN1TID OTATCS Of AMEBICA f7M»avs VleuKREwwll MateseEZi UN 1 Ttt)STATES OF AME ItlCA 7.47 Acm •BCH£ilI Shcltlics 1 Pli tomtilrTLjs^E£[Y^£wyi!c MjDSflt <jREEN.PH [LIPJJFITRUST CBEEN.UNDAMTRUST HAWAIIAN ISIANM LANO TBUST WAILAIURD GREEH.PHILIPJJFirdUCT GllEEN.tlNDAMTftUST 4WACIS /lewgsadlSi'etrisiiei HAWAIIAN 1SIAN DS LW D TRUST U^OAtTTS VBW B£ii2a1 Stelttei t £" yai&SB COUNnOFKAUAI WAILAPARD Z.MAcrs £hH|P SOMEBS^HARLES M TRU^r WEST SUNSE7 32 PHASE 1 LLC lS57KAHIUWW[|lYRt) uisaiais VIW.Rencirt I Sketcbt-i 1 Pjct; Malrioincr Rlrul 10520040640001 Acnaga 7.934 a*u AG Brinf Tkx OuCTtptton Kha/PhyilcaIAddi MalllniAAireu TotalMarket^lue $U)25.400 GRE EN.PH lUPJJRTRUffT TotalAsseswdniue tl,02S,400 POBOXS4 TotalDiunptlofn SO KllAUEAHt96754 TotaINetTuuhteV.ilue SU25.-)00 UNmS£ACUFFKILOHANACM5A43TaG/UN050XINTINALLCOMMONELEMENTS (Nole:Not to be used on [egal dimjmentsl UstZSato Date Prke Reaian S/7/2019 (1750000 VALID SALE 11 Listoflmages: Page 1: 1}View of Nihoku Crater and Makapill islet within.Mokolea point in the distance suggests the size ofthe original crater before it eroded into the ocean (page 1). Page 3: 2]Ua u (wedge tailed shearwater)and moli (laysan albatross)nesting at Nihoku (page 3). Page 5: 3]Ko Ko'olau Komohana mau Wahi Pana -Storied Places ofWestern Ko'olau,An iwa's eye view of Nihokii (Crater Hill)and surrounding areas,by Gary Smith. 4]Kilauea child carrying kahili made with iwa and moli feathers. 5]Image of Lonikamakahiki set as part of makahiki ceremonies at Nihoku and Mokolea Point. Page 7: 6)Kilauea school first graders working to weed invasive species from native plantings at Nihoku. 7)Nihoku kilo,observance of the summer solstice,Ke ala polohiwa a Kane. Page 9: 8}Photo ofthe subject parcel looking ma uka at Nihoku,with sight line poles demarcating height of proposed house.The Kilauea Point National Wildlife Refuge fence is visible at top left. Page 10: 9)View of subject parcel and proposed house site,looking ma kai,down Nihoku. Pagell: lOJMap ofsubjectparcel and surrounding land ownership. ll)Archlval photo ofWowoni Pt.with Kilauea Lighthouste,Nihoku and Mokolea Pointtaken in 1924. Page 13: 12)Archival photo of Nihoku and surrounding areas.Date is unclear,however Kilauea sugar plantation operations are evident and the photo may capture ranching,a long time land use for Nihokii. 12 13 References Antaky,C.,N.Galase,M.R.Price (2019)Nesting ecology in the Hawaiian population ofan endangered seabird,the Band-rumped Storm Petrel (Oceanodrama castro).Wilson Journal ofOrnithology 2:402- 4Q6.httcs://doi.ore/10.1676/l8-123 Bell,S.,L.Luther,C.Wilhite,M.R.Price.Mortality in the Hawaiian Short-eared Owl (pueo;Asio flammeus sandwichensis).Subminingto Raptor Research. Blay,Chuck and Siemers,Robert.(2004)Kaua'i's Geologic History.A Simplified Guide.Updated Edition.TEOK Investigations. Baker,J.D.,C.L.LiUnan,and D.W.Johnston.2006.Potential effects ofsea level rise on the terrestrial habitats ofendangered and endemic megafauna in the Northwestern Hawaiian Islands.Endangered Species Research 4:1-10. County ofKaua'l.Department ofWater.Water Plan 2020.March 2001.Available at http://www.kauaiwater.org/ce_waterplan2020app.asp. County ofKaua'i.2006.Kilauea Town Plan.September 2006. http;//kilauealighthousevillage.com/wp-content/uploads/2010/12/KilaueaTownPlan.pdf. Fletcher,C.2010.Hawai'i's Changing Climate,Briefing Sheet.University of Hawai'i Sea Grant College Program,Center for Island Climate Adaptation and Policy. http://icap.seagrant.soest.hawaii.edu/hawaii%E2%80%99s-changing-climate-briefing-sheet. Foote,D.E.,E.L.Hill,S.Nakamura,and F.Stephens.1972.Soil Survey ofthe Islands ofKaua'i,O'ahu, Maui,Moloka'i,and Lana'i,State of Hawai'i.U.S,Department ofAgricuIture,Soil Conservation Servlce. Fornander,Abraham and Thomas G.Thrum.1919.Fornander Collection ofHawaiian Antiquities and Folklore,T.G.Thrum edit,Memoirs ofthe Bernice Pauahi Bishop Museum (Vol.VI,Part I],Bishop Museum Press,Honolulu,HI. Friswold,B.,K.Swindle,D.Hyrenbach,M.R.Price (2020]Wedge-tailed Shearwater (Ardenna pacificaj fallout patterns inform targeted management.Marine Ornithology 48:245-254. Handy,E.S.Craighill and Elizabeth G.Handy.1972.Native Planters in Old Hawaii:Their Life,Lore, and Environment,B.P.Bishop Museum Bulletin 233,B.P.Bishop Museum,Honolulu,HI. Hula 'Ilio.Unknown Composer and Date.Bishop Museum Archives. Joesting,Edward.1984.Kaua'i:The Separate Kingdom,University of Hawaii Press and Kauai Museum Association,Ltd.,Honolulu,HI. Juvik,S.P.and J.O.)uvik.1998.Atlas ofHawai'i,Third edition.University ofHawai'i Press:Honolulu. 333pp. Leong,J.A.,Marra,].].,Finucane,M.L.,Giambelluca,T.,Merrifield,M.,Miller,S.E.,Polovina,J.,Shea,E., Burkett,M.,Campbell,).,Lefale,P.,Llpschultz,F.,Loope,L.,Spooner,D.,and Wang,B.2014.Ch.23: Hawai'i and U.S.Affiliated Pacific Islands.Climate Change Impacts in the United States:The Third National CIimate Assessment,J.M.Melillo,Terese (T.C.)Richmond,and G.W.Yohe,Eds.,U.S.Global 14 Change Research Program,537-556.doi:10.7930/)OW66HPM. McMahon,Nancy.Ka Pa'akai Analysis.(2019J."Native IIawaiian Traditions,Customary Practices and Perspectives of Kilauea Ahupua'a Moku o Ko'olau,Kaua'i Island for TMK (4)5-2-004:088."Prepared for Paul Barker by Exploration Associates,Ltd. Middleton,B.A.2006.Invasive Species and Climate Change.U.S.Geological Survey Open-File Report 2006-1153. Nupepe Kuoko'a.1861."Legends ofHawai'i and Kaua'i."Hawaiian Language Newspaper -Nupepa Kuokoa,Honolulu,HI. Pukui,Mary Kawena and Samuel H.Elbert.1986.Hawaiian Dictionary,2nd Edition,University of Hawaii Press,Honolulu,HI. Reynolds,M.H.,Courtot,K.N.,Berkowitz,P.,Storlazzi,C.D.,Moore,).,and E.FIint.Will the effects of sea-level rise create ecological traps for Pacific [sland seabirds?PLoS ONE 10(9):e0136773. doi:10.1371/journal.pone.0136773. Smith,C.W.and J.T.Tunison.1992.Fire and alien plants in Hawai'i:Research and management fornative ecosystems.In:C.P.Stone,C.W.Smith,and ).T.Tunison,eds.Alien plant invasions in native ecosystems ofHawai'i:Managementand Research.UniversityofHawai'i Cooperative National Park Resources Studies Unit,Honolulu,HI.Pp.394-409. Smith,Gary.Oral Histories conducted from 2013 -2016. USFWS "About Kilauea Point National Wildlife Refuge.U.S.Fish and Wildlife Service. https://www.fws.gov/refuge/Kilauea_Point/about.html USFWS (U.S.Fish and Wildlife Service).1989.KTlauea Point National Wildlife Refuge Draft Public Use Management Plan.Honolulu,Hl. USFWS.2007.Land Conservation Plan and Environmental Assessment.Kilauea Point National Wildlife Refuge,Kaua'i County,Hl. Vitousek,Peter M.1994.Beyond Global Warming:Ecology and Global Change.Ecology 75(7]:1861- 1876. Wichman,Frederick B.1998.Kaua'i Ancient Place-Names and Their Stories,University of Hawai'i Press,Honolulu,HI. Wilhite,Chad.(2021,May).Population Dynamics and Habitat Use ofPueo (Hawaiian Short-Eared Owl:Asio Flammeus Sandwichensis).Masters ofScience Thesis,University ofHawai'i at Manoa. 15 Ka'aina S.Hull Director of Plamiing Jodi A.Higuchi Sayegusa Deputy Director ofPlanning I.SUMMARY Action Required by Planning Commission: Permit Application No. Name ofAppIicant(s): COUNTY OF KAUA'I PLANNING DEPARTMENT DIRECTOR'S REPORT Consideration ofan Ordinance amending Chapter 8,Kaua'i 1987, as amended,relating to Transient Accommodations. Zoning Amendment ZA-2021-2 KAUA'I COUNTY COUNCIL II.PERMIT INFORMATION III.LEGAL REQUIREMENTS r4.^.^ JUL 1 3 2021 v:\2021masterfiles\amendments\zoning\z3-2021-2\reports\report-16.25,21 mv_za-2021-2 campgrounds.docx AMENDMENTS [X]Zoning Amendment Pursuant to KCC Section 8-3.4(a),as amended,a Zoning Amendment is necessary when changing the text whenever the public necessity and convenience and the general welfare require an amendment. General Plan Amendment I1 Community Plan Amendment State Land Use District Amendment KCC Section 8-3.4 Public Hearing Date: JULY13,2021 Date of Publication: Junel 1,2021 Date of Director s Report: June 25,2021 IV.DESCRIPTION OF THE AMENDMENT The proposed legislation (see attached Exliibit A)amends Section 8-1.5 (Definitions), Section 8-2.4 (Use Table),and Section 8-4.9 (Development ofOther Uses in a Residential District)ofthe Comprehensive Ordinance (1987)relating to "undeveloped campgrounds" and "developed campgrounds."In addition,new sections are added to clarify where developed campgrounds are prohibited. Specifically,the draft bill: 1)Clarifies the definitions of "undeveloped campgrounds"and "developed campgrounds";amends the use table to prohibit "developed campgrounds"in the Open Zoning District (0)and the Agriculture Zoning District (A); 2)Amends the use table to outright permit "developed campgrounds"in the Resort Zoning District (RR)and the General Commercial Zoning District (C- G);and 3)Adds new language under Section 8-8.7 and Section 8-9.6 to clarify that developed campgrounds are prohibited in the Open (0)and Agriculture (A) Zoning Districts It should be noted that the proposed legislation (see attached Exhibit A)amends portions of the original draft bill transmitted by the County Council (see attached Exhibit B).The table below fiirther clarifies some ofthe major differences between the proposed legislation and the County Council's draft bill. CZO Section to be Amended Sectfon 8-1.5 Definitions Developed Csimpgrounds ZA-2021-2 Director'sReport Kaua'i County Council July 13,2021 Existing versus Proposed Language 1.Eristine Lanenaee in the CZO "Developed Campgrounds"means land or premises designed to be used,let,or rented for temporaiy occupancy by campers traveling by automobile or otherwise and which contain such facilities as tent sites,bathrooms or other samtary facilities, piped water instaUatioiis,and parking areas,but not including mobile home parks. Developed campgrounds may include facilities for the temporary placement ofcamp traileis and camping vehicles which are utilized for non-pennanent residential uses at no more than six (6)vehicles per acre." 2.Council Verslon "Developed Campgrounds"means land or premises designed to be used,let,or rented for temporary commercial occupancy by campers traveling by automobile or otherwise and which contain such facilities as tent sites,bathrooms or other sanitaiy facilities,piped water installations,and parking areas,but not including mobile home parks.Each individual tent campme site offers a campsite that mav have geimanent footines.platfonns.and/or private restroom facilities.Developed campgrounds may include facilities for the temporaiy placement of camp trailers 2 |P ag e ^ and camping veMcles which are utilized for non-pemianent residential uses at no more than six (6)vehicles per acre." 3.Department Version "Developed Campgrounds"means land or prcmises designed to be used,let,or rented for [temporaiy]compensation.monetary or otherwise.for transient occupancy by campers traveling by automobile or otherwise and which contain such facilities as tent sites,bathmoms or other sanitary facilities,piped water mstallations,and parking areas,but not mcluding mobile home parks.Each individual tent campine site offers a campsite fhat mav have permanent footmes. platforms,and/or private restroom facilities.Developed campgrounds may mclude facilities for the temporary placement ofcamp trailers and camping veUcles which are utilized for non-permanent residential uses [at no more than sbt (6)vehicles per acre]." Section 8-1.5 Definitions Undeveloped Campgrounds 1.Existins Laneuaee in the CZO "Undeveloped Campgrounds"means land or premises designed to be used for temporary occupancy by campers traveling by foot or horse which may contam facilities and fireplaces,but do not contain facilities as are provided at developed campgrounds." 2.CouncU Version "Undeveloped Campgrounds"means land or premises designed to be used [for temporary occupancy by campers traveling by foot or horse which may contain facilities and fireplaces,but do not contain facilities as are provided at developed campgrounds]by propertv owners and their euests for non-commercial camping purposes.There are no permanent footings orplatforms,and_there are no permanent sfructures.There is no compensation,monetarv or otherwise,for use ofthis site. 3.Department Version "Undeveloped Campgrounds"means land or premises designed to be used [for temporary occupancy by campers traveling by foot or horse which may contain facilities and fireplaces,but do not contain facilities as are provided at developed campgroimds]by propertv owners and their guests for non-commercial camping purposes.There are no permanent footings^or platforms,and_there are no pemianent stmctures.There is no compensation,monetary or otherwise,,for use ofthis site. Section 8-2.4 TabIeofUses Resort Zoning District Section 8-2.4 TableofUses ZA-2021-2 Director's Report fCaua'i County Council Julyl3,2021 3|Page Use Eristing Council Version Department Draft Developed Campgrounds N/A p p General Commercial Zoning District Setitlon 8-2.4 -Tii!M^|81BU!(ig|^ l%%niiM8ct^ Section 8-2.4 TableofUses Open Zoning District dIlpnffliiJrVSnSiuie'ibaiiieiGZO ^..-.';8;.FiS^^;-''; |^|^|||^|gijl|||g)g||l;(y^^^^''^'^5^^%^^f^'f^y^'''^^^^'-i:^'"'-'' •^S ^%1^%%^ ^'#8BI%tSSS^8 Sa.ffiKSSsi^iS '•",^^w^'€^;<^N^^.^^i^^l^lM^Si .:^^y^^^jK^^ •W:>wSwsSSWt>!S ;eZoniiffil>ngaN8!B ?tt<(%IS8W13^^a^w^l?etai^^!'?tBi^t:^i^s^im^ C^li^isacfft^jj^tfn^'jl^lJsft^PenBit.QrVanance.PemutA^;;:•w.'^.r::-i^" 3.'a^DCT>artinentVennlon •'.-'.:;'.;"/•:,:',:;^.:'^,,...-,:•?. ZA-2021-2 Director's Report Kaua'i County Council Julyl3,2021 4|Page Use Existing Council Version Department Draft 1 Developed Campgrounds N/A p p •iVMXy S I-^MM^^^'.^'K^.:';;A.ii;"H^g'y''^'.^.i^,:'/';-;"..'."^^' l;E:c"une'"''l sS'BSSs^'-^i ?C<iuni:Bf/:l::'"' titon¥.:"1'^ 'DCTijiirtmeint' Ij^^l^^^ll'SSSWit;^iWIWIS Mm^'w W /^ ^ Use Existtng CouncU Version Department Draft Developed Campgrounds u [U][U] NEW Section 8-8.7 Developed Campgrounds in Agriculture Zoning Districts All permittcd uses,all uses requiring a Use Peimit,and all Uses allowed by variance other than residential shall coiiform to: (a)Development standards established for the disti'ict in which they are normally permitted,provided that: (1)The mimmum distance from property lines shall be the same as that required for single family detached dwellings;and (2)The maximum building heights shall be the same as that required for single family detached dwellings;[or]and (3)Developed campErounds are prohibited in all Residential ZoninE Districts:or (b)The requirements and conditioiis imposed by the Plamung Commission in granting the Use Pennit or Variance Peimit." 1.Existine Laneuase in the CZO N/A 2.Council Version "Sec.8-8.7 Developed Camperounds in Aericulture Zoninz Districts. Developed campgrounds are prohibrted in all Agriculture Zoning Districts. 3.Department Version "Sec.8-8.7 Developed CampBrounds inAariculture Zonine Districts. Developed campgrounds are^rohibjted m all Agriculture Zoning Districts. NEW Section 8-9.6 Developed Campgrounds in Open Zoning Districts 1.Eristine Laneuase m the CZO 2.Council Version "Sec.^5.6 Developed CampErounds in Open Zonin2 Districts. Deyelot)ed_campgroimds are_BrohibitdJnall Open Zonine Districts." 3.Deoartment Version "Sec.S^.6 Developed CampETounds tn Open Zoiiine Districts. Developed camperoimds are prohibited in all Open Zoiiine Districts." In contrast to the CpuncU version,the Department v^rsion dfles not amend this section. Time Sharing and Transient Vacation Rentals ZA-2021-2 Director's Report Kaua'i County Council Julyl3,2021 5|Page V.AMENDMENT JUSTIFICATION —— The primary function ofthe draft bill is to prohibit developed campgrounds in the Open (0) Zoning District and the Agriculture (A)Zoning District in order to ftlrther restrict transient accommodation uses from proliferating m areas outside ofthe Visitor Destination Areas. In addition,this draft bill outright permits developed campgrounds in the Resort and General Commercial Zoning Districts-areas where transient accommodations are appropriate and outright permitted uses. The draft bill does not amend portions of the Transient Vacation Rental sections as such changes are intended to be addressed at a fiiture date through a separate draft bill. VI.AGENCY COMMENTS See attached Exhibit C. VII.PRELIMINARY EVALUATION In evaluating the proposed zoning amendment,the following aspect should be taken into consideration: 1.The proposed request is to be evaluated pursuant to Section 8-3.4(d)ofthe KCC,as amended,relating to the consideration ofaproposed amendment and it reads: "(d)Consideration.In considering an amendment,the Planning Commission shall consider the purposes ofthe existing and proposed changes to the Zoning Ordinance.A change in the Zoning Map or text shall not be made unless the change will filrther the public necessity and convenience and the general welfare." The proposed legislation will promote the public necessity and convenience and the general welfare by managing growth and preserving mral areas. 2.General Plan The proposed bill is in aligmnent with the following goals and policies ofthe General Plan,which emphasizes the protection and preservation ofKaua'i's natural beauty: A.Section 1.3,entitled "Visions and Goals" 1)Goal #1:"Unique and Beautiful Place"-The proposed draft bill will ensure that natural and cultural landscapes,located within the Open (0) and Agriculture (A)zoning districts,will continue to be protected and preserved as part ofKaua'i's natural beauty. ZA-2021-2 Director'sReport Kaua'i County Council July 13,2021 6|Page B.Section 1.4,entitled "Policies to Guide Growth" 1)Policy #1:"Manage Growth to Preserve Rural Character"-To preserve rural areas,the draft bill will prohibit developed campgrounds in the Open (0)and Agriculture (A)zoning districts to maintain the rural character in between towns,but will direct such uses to be outright permitted in the Resort (RR)and General Commercial (C-G)zoning districts.Directing growth and transient accommodations to the towns ensures that open space and scenic views are protected and preserved. 2)PoUcy #8:"Protect Kaua'i's Scenic Beauty"-The proposed draft bill will directly protect Kaua'i's scenic beauty by ensuring that open spaces and scenic view corridors will be preserved, 3)Policy #11:"Help Agricultural Lands Be Productive"-The proposed draft bill will ensure that agricultural lands will be utilized for the active production and promotion ofagricultural activities.Prohibiting developed campgrounds as transient accommodations on agricultural lands will preserve the land supply available for agricultural uses. 3.As set forth in the General Plan,the protection ofopen space and scenic view corridors is what makes Kaua'i a unique and beautifiil place to live and to visit. Therefore,growth must be managed to preserve our rural character. 4.Although developed campgrounds are currently allowed in the Open (0)and Agriculture (A)zoning districts,such uses are no longer appropriate in these areas and better directed in urban areas such as in the Resort (RR)and the Commercial-General (C-G)zoning districts.This proposed bill will allow developed campgrounds to be consistent with transient accommodations which are uses that are allowed within the Resort (RR)and Commercial-General (C-G) zoning districts. 5.In contrast to the County Council draft bill (see Exhibit B),the Department's proposed draft bill (see Exhibit A)focuses only on the campground aspects and does not address the Transient Vacation Rental sections which require further assessment and analysis.The administration intends to work with the County Council on possible further vacation rental modifications in the fiifaire. VIII.PRELIMINARY CONCLUSION Based on the foregoing fmdings and evaluation,it is concluded that the proposal is reasonable and appropriate. IX.PRELIMINARY RECOMMENDATION ZA-2021-2 Director's Rqmrt Kaua'i Couaty Council JulyI3,202I 7|P ag e Based on the foregoing evaluation and conclusion,it is recommended that the subject request to amend Section 8-1.5,Scction 8-2.4,Section 8-4.9,Section 8-8.7,and Section 9.6 ofthe Kaua'i County Code (1987),as amended,be TENTATIVELY APPROVED and DEFERRED pending ftlrther analysis with community groups and govemment agencies. Marisa Digitally signed by Marisa Valenciano D.1te:2021.06.25Byvaienciano7s':42:35''io'oo'- Marisa Valenciano Planner Approved &Recommended to Commission: By Digitally signed by Jodi Jodi Higuchi £^,.06.25 15:44:38-10'00' KA'AINA S.HULL Director ofPlanning Date:6/25/21 ZA-2021-2 Director's Report Kaua i County Couacil JulyI3,2021 8|Page EXHIBIT"A" Proposed Bil Planning Department Version (June2021) Planning Department Version for Planning Commission Mtg.July 13,2021 ORDINANCE N0.BILL N0. A BD.L FOR AN ORDINANCE AMENDING CHAPTER 8, KAUA'I COUNTY CODE 1987,AS AMENDED, RELATmG TO TRANSIENT ACCOMMODATION8 BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF KAUA'I,STATE OF HAWAI'I: SECTION 1.Chapter 8,Section 8-1.5,Kaua'i County Code 1987,as amended,is hereby amended by amending the definition of "Developed Campgrounds","Undeveloped Campground",and "Organized Recreation Camps as follows: "Developed Campgrounds means land or premises designed to be used, let,or rented for [temporary]compensation.monetarv or otherwise,for transient occupancv by campers traveling by automobile or otherwise and which contain such facilities as tent sites,bathrooms or other sanitary facilities,piped water installations,and parking areas,but not including mobile home parks.Each individual tent campine site offers a campsite that mav have permanent footings.platforms.and/or private restroom facilities. Developed campgrounds may include facilities for the temporary placement of camp trailers and camping vehicles which are utilized for non-permanent residential uses [at no more than six (6)vehicles per acre]. ["Undeveloped Campground"means land or premises designed to be used for temporary occupancy by campers traveling by foot or horse which may contain facilities and fireplaces,but do not contain facilities as are provided at developed campgrounds.]"Undeveloped CampKrounds"meansjland or _Bremises _designed to be used bv Dropertv owners and their euests for non-commercial campine purBfises.There are no uermanent footines or platforms,an^there are_jio oermanent structures.There is jio compensation,nionetary or otherwise.for use ofthis site. SECTION2.Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to outright permit "Developed campgrounds in the Resort Zoning District as follows: Sec.USE ZONINGDISTRICT Residential Commercial Industrial AG o UNV 'RT to R-6 R-10 to R-20 RE CN CG IL 10 8-2.4(g)(1)Accessory uses and structures p 8-2.4(g)(2)Apartment hotels p 8-2.4(g)(3)Automobile service and storage p 8-2.4(g)(4)Barber shop and beauty shop p 8-2.4(g)(5)Commercial recreation p 8-2.4(el (6)DeveloEed campsrrounds p [8-2.4(g)(6)] 8-2.4(e)(7)Gift shops p [8-2.4(g)(7)I 8-2.4(g)(8)Golf courses p Planning Department Version for Planning Commission Mtg.July 13,2021 SECTION3.Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to outright permit "Developed campgrounds"in the General Commercial Zoning District as follows: Sec.USE ZONING DISTRICT Residential Commercial Industrial AG o UNV in- to R-6 R-10 to R-20 RR CN CG IL IG [8-2.4(g)(8)] 8-2.4(el (9)Home business p [8-2.4(g)(9)] 8-2.4(e)(10)Hotels p [8-2.4(g)(10)] 8-2.4(e)(ll)Laundromat p [8-2.4(g)(11)] 8-2.4fe)(12)Libraries p [8-2.4(g)(12)l 8-2.4(e)(13)Motels p [8-2.4(g)(13)] 8-2.4(el (14)Museums p [8-2.4(g)(14)] 8-2.4(£)(15)Police and fire stations p [8-2.4(g)(15)] 8-2.4(e)(16)Public parks and monuinents p [8-2.4(g)(16)] 8-2.4fe)(17)Restaurants and food service p [8-2.4(g)(17)][Retail cleaning outlets][p] 8-2.4(g)(18)Retail cleaning outlets p 8-2.4(g)(19)Retail food and drug shops p 8-2.4(g)(20)Shoe repair shops p 8-2.4(g)(21)Single family detached dwellings p 8-2.4(g)(22) Transient vacation rentals,provided they are located within the designated Visitor Destination Areas established pursuant to Article 17 ofthis Chapter.These uses are prohibited in non-VDA areas. p Sec.USE ZOMING DISTRICT Residentiat Commercial Industrial AG o UNV 'WT to R-6 R-10 to R-20 RR CN CG IL IG 8-2.4(j)(1)Accessory uses and structures p 8-2.4CJ)(2)Automobile sales,repair,and storage p 8-2.4(j)(3)Automobile services p 8-2.4(j)(4)Churches,temples,and monasteries p 8-2.4(j)(5)^lubs,lodges,and community centers p 8-2.4(j)(6)Commercial indoor amuseinent and parks p 8-2.40-)(7)Department stores p 8-2.4d)(8)Developed camperounds p [8-2.4(j)(8)] 8-2.40)(9)Hotels and motels p [8-2.4(j)(9)] 8-2.4d)(10)Household services p [8-2.4(j)(10)] 8-2.4(i)(ll) Light manufacturing,such as handicrafts and garment fabrication p Planning Department Version for Planning Commission Mtg.July 13,2021 SECTION4.Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to prohibit "Developed campgrounds"in the Agriculture Zoning District as follows: Sec.USE ZONING DISTRICT Residential Commercial Industrial AG o UNV TtT to R-6 R-10" to R-20 RR CN CG IL IG [8-2.4(j)(11)] 8-2.4d)(12) Minor food processing,such as cracked seeds,jellies,candies,and ice cream p [8-2.40')(12)] 8-2.4d)(13)Museums,libraries,and public services p [8-2.41J)(13)] 8-2.4(i)(14)Offices and professional buildings p 18-2.4U)(14)] 8-2.4d)(15)Parking garages p [8-2.4(j)(15)] 8-2.4d)(16)Personal services p 18-2.4(j)(16)] 8-2.4d)(17)Public offices and buildings p [8-2.4(j)(17)] 8-2.4(i K 18)Public parks and monuments p [8-2.4(j)(18)] 8-2.4(0(19)Research and development p [8-2.4(j)(19)] 8-2.4d)(20) Residential dwellings,detached,attached or multi-family dwellings p [8-2.4(j)(20)] 8-2.4(D (21)Restaurants and food services p [8-2.4(j)(21)] 8-2.4d)(22)Retail sales p [8-2.4CJ)(22)] 8-2.4d)(23)Supermarkets and shopping centers p [8-2.4^)(23)] 8-2.4d)(24) Transient Vacation Rentals,provided they are located within the designated Visitor Destination Areas established pursuant to Article 17 ofthis Chapter.These uses are prohibited in non-VDA areas. p [8-2.4(j)(24)] 8-2.4d)(25)Transportation tenninals and docks p [8-2.40')(25)] 8-2.4d)(26)Warehouses p [8-2.4(j)(26)] 8-2.4d)(27)Wholesale Outlets p Sec.USE ZONING DISTRICT Residential RR Commercial Industrial AG o UNV R-lto R-6 R-10 to R-20 CN CG IL IG 8-2.4(r)(l)Animal hospitals u 8-2.4(r)(2)Botanical and Zoological gardens u 8-2.4(r)(3)Cemeteries u 8-2.4(r)(4)Churches,temples,and nionasteries u 8-2.4(r)(5)Commercial Recreation u 8-2.4(r)(6)Construction and worker temporary housing u Planning Department Version for Planning Commission Mtg.July 13,2021 SECTION5.Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to prohibit "Developed campgrounds"in the Open Zoning District as follows: Sec.USE ZONING DISTRICT Residential RR Commerciat Industrial AG o UNV R-lto R-6 R-10 to R-20 CN CG IL IG [8-2.4(r)(7>][Development campgrounds][U] [8-2.4(r)(8)] 8-2.4(rt (7)Farm worker housing u [8-2.4(r)(9)] 8-2.4(r)(8)Farmers Markets u [8-2.4(r)(10)l 8-2.4(rl (9)Golfcourses u [8-2.4(r)(lD] 8-2.4(rl (10)Mineral extraction and quarries u [8-2.4(r)(12)] 8-2.4(rt (11) Pet keeping and raising proposed within five biundred (500)feet ofany Residential District u [8-2.4(r)(13)l 8-2.4(rt (12) Piggery,when to be located within three .housand (3,000)feet ofany Use District u [8-2.4(r)(14)] 8-2.4fr)(13) Poultry [and piggeries]Raising,when to be .ocated within three thousand (3,000)feet of uiy Use District u [8-2.4(r)(15)l 8-2.4(rt (14)Private and public utilities facilities u [8-2.4(r)(16)] 8-2.4tr)15 itestaurants and food services U2 [8-2.4(r)(17)l S-2.4(r)(16)^etail Sales u [8-2.4(r)(18)] 8-2.4(rl (17)schools and day care centers u [8-2.4(r)(19)l 3-2.4fr)(18)Fransportation terminals u [8-2.4(r)(20)l 3-2.4(rt (19) \ny other use or structure which the Planning ^irector finds to be similar in nature to those isted in this Section and appropriate to the .)istrict u Sec.USE ZONING DISTRICT Residential Commercial Industrial AG o UNV ~R-T to R-6 R-10 to R-20 RR CN CG IL IG 8-2.4(t)(l)Cominunication facilities TT 8-2.4(s)(2)Day care centers ~u- [8-2.4(s)(3)]'[Developed campgrounds]JHL [8-2.4(s)(4)] 8-2.4(s)(3)Home businesses u [8-2.4(s)(5)l 8-2.4(s)(4)Intensive agriculture u (8-2.4(s)(6)] 8-2.4(s)(5) Livestock and grazing within the Urban District as established by the State Land Use Commission u Planning Department Version for Plamiing Commission Mtg.July 13,2021 SECTION6.Chapter 8,Article 4,Kaua'i County Code 1987,as amended,is hereby amended by amending Sec.8-4.9 as follows: "Sec.8-4.9 Developnient of Other Uses in a Residential District. All permitted uses,all uses requiring a Use Permit,and all Uses allowed by variance other than residential shall conform to: (a)Development standards established for the district in which they are normally permitted,provided that: (1)The minimum distance from property lines shall be the same as that required for single family detached dwellings;and (2)The maximum building heights shall be the same as that required for single family detached dwellings;[or]and (3)_Develoued campgrounds are prohibited in all Residential Zoning Districts;or (b)The requirements and conditions imposed by the Planning Commission in granting the Use Permit or Variance Permit." SECTION7.Chapter 8,Article 8,Kaua'i County Code 1987,as amended,is hereby amended by inserting a new Sec.8-8.7 as follows: "Sec.8-8.7 Developed Camoerounds in Aericulture Zoning Districts, Developed campgrounds are prohibited in all AEfriculture Zoning Districts. SECTION8.Chapter 8,Article 9,Kaua'i County Code amended,is hereby amended by inserting a new Sec.8-4.9 as follows:"Sec.8-9.6 Developed CaniBgrounds iiLOBen ZoninfcDistricts. 1987,as Developed campCTQunds are prohibited in all OpeiiZonine Districts." Sec.USE ZONING DISTRICT Residential Commercial Industrial AG o UNV "RT to R-6 Tt^lT to R-20 RR CN CG IL IG [8-2.4(s)(7)] 8-2.4(s)(6) Organized recreation camps u 18-2.4(s)(8)] 8-2.4(s)(7)Outdoor recreation concessions u [8-2.4(s)(9)] 8-2.4(s)(8)Police and fire facilities u l8-2.4(s)(10)] 8-2.4(s)(9)Quarries u [8-2.4(s)(11)] 8-2.4(s)(10)Recreation vehicle parks u [8-2.4(s)(12)] 8-2.4(s)(ll)Religious facilities u [8-2.4(s)(13)] 8-2.4(s)(12)Utility installations u [8-2.4(s)(14)] 8-2.4(s)(13) Any other use or structure which the Planning Director finds to be similar in nature to those listed in this Section and appropriate to the District u Planning Department Version for Planning Commission Mtg.July 13,2021 SECTION9.Chapter 8,Article 17,Kaua'i County Code 1987,as amended,is hereby amended as follows: "ARTICLE 17.TIME SHARING AND TRANSIENT VACATION RENTALS Sec.8-17.1 Liinitations on Location. Except as provided in this Section,time share units,time share plans,and transient vacation rentals are prohibited. Sec.8-17.2 Permitted Time Share Locations. Subject to the limitations contained in Secs.8-17.4 and 8-17.5,time share units and time share plans are allowed: (a)In hotels in Resort or Commercial Districts;and (b)In the Resort RR-10 and RR-20 Districts and Multi-Family R-10 and R-20 Residential Districts when such districts are located within the Visitor Destination Areas of Po'ipu,Lihue,Wailua Kapa'a or Princeville,as more particularly designated on County ofKaua'i Visitor Destination Area maps attached to Ordinance No.436 and incorporated herein by reference.The boundary lines established on these visitor destination maps shall be transferred onto the Official Zoning Maps for reference purposes. (c)Time share units and time share plans are prohibited in the R-l,R-2, R-4 and R-6 Residential Districts. Sec.8-17.3 Permitted Locations for Multi-Family Transient Vacation Rentals. Subject to the limitations contained in Sec.8-17.5,multi-family transient vacation rentals are allowed: (a)In hotels in Resort or Commercial Districts;and (b)In Resort Districts and Residential Districts within the visitor destination areas as more particulariy designated on County ofKaua'i Zoning Maps. Sec.8-17.4 Time Sharing in Projects Located Within Visitor Destination Areas and Hotels in Resort or Coininercial Districts. If the project in which the time share unit or time share plan is to be created contains an existing time share unit or time share plan,then time share units and plans shall be regulated according to the terms ofthe project instruments. If the project in which the time share unit or time share plan is to be created is not a hotel and does not contain time share units or time share plans,then such use may be created only if such use is explicitly and prominently authorized by the project instruments,or the project instruments are amended by unanimous vote of the unit owners to explicitly and prominently authorize time sharing.Provided, however,that time share units and time share plans permitted under this Section shall be limited to the Visitor Destination Areas described in Sec.8-17.2,and to hotels in Resort or Commercial Districts. Sec.8-17.5 Existing Tiine Share and Multi-Family Transient Vacation Rental Uses. (a)Time Share Units,Time Share Plans,and Multi-Family Transient Vacation Rentals Existing On or Before September 22,1982,That Are Not Located in Visitor Destination Areas.Time share units,time share plans,or multi-family vacation rentals existing on or before September 22,1982 that are not located within the visitor destination areas described in Sec.8-17.2 may continue as allowed uses. However,no additional time share units,time share plans,or multi-family transient vacation rentals outside the visitor destination area shall be created after September 22,1982.The uses left unimpaired by this Subsection shall not be lost by the failure to exercise the use unless it clearly appears that the use has been abandoned for a period in excess of two (2)years.This Subsection shall not apply to hotels in Resort or Commercial Districts. 6 Planning Department Version for Planning Commission Mtg.July 13,2021 (b)Time Share Units,Time Share Plans,and Transient Vacation Rentals in Projects Located Within Visitor Destination Areas Existing On or Before September 22,1982.Time share units and time share plans in projects existing on or before September 22,1982,and located within areas described in Sec.8-17.3 shall be regulated in accordance with the provisions ofSec.8-17.4. Sec.8-17.6 Penalty. An owner of any unit which is operated in violation of this Article,and/or any other person,firm,company,association,partnership or corporation violating any provision of this Article,shall each be fined not less than five hundred dollars ($500.00)nor more than ten thousand dollars ($10,000.00)for each offense. This civil fine may be in addition to any criminal fines.If any person fails to cease such violation within one (1)month,such person shall be subject to a new and separate violation for each day the violation continues to exist. (a)Actions by County Attorney.The County Attorney may file a civil action to enjoin any violation of this Article and collect any penalties provided for by this Article. (b)Disposition ofFines.All fines imposed for violations ofthis Article shall be paid to the Director of Finance to the credit of the Development Fund. Sec.8-17.7 Amendnients to Visitor Destination Areas Designations. Amendments to the location and/or boundaries ofthe Visitor Destination Areas shall be made in accordance with the amendment provisions of Sec.8-3.4 of this Chapter 8,provided that the burden of proof rests with the applicant to show upon the clear preponderance of the evidence that the amendment is reasonable.The criteria for evaluating such proposed amendments shall be as follows: (a)The proposed amendment is consistent with the General Plan and the Development Plan. (b)The parcel or parcels to be afEected by the proposed amendment are suitable for Visitor Destination Area uses. (c)The availability of existing public services and facilities in the affected areas and whether the requested public services and facilities for the proposed change in use can be met without undue burden. (d)The proposed change will conflict with other existing uses in the affected area. (e)The proposed change will cause or result in unreasonable air,noise,or water pollution,or will adversely affect irreplaceable natural resources. (f)The affected areas contain or are in close proximity to other areas that contain: (1)Large numbers of hotel and/or multiple family dwelling units suitable as accommodations by temporary visitors. (2)Lands designated for Resort Use on the General Plan or having Resort zoning. (3)Outdoor or commercial recreational facilities,such as beaches, golfcourses,tennis courts and other similar facilities. (4)Tourist related commercial facilities,such as gift shops,food stores,recreational equipment and services shops,tour and transportation service terminals,restaurants,bars,night clubs,cabarets,shopping centers, theaters,auditoriums,and other similar facilities. (g)The proposed change will include or adversely affect predominantly residential neighborhoods. Sec.8-17.8 Single Fainily Transient Vacation Rentals. (a)Notwithstanding any underlying zoning designation and with the exception of properties on the National or State Register of Historic Places,single family transient vacation rentals are prohibited in all areas not designated as Visitor Destination Areas. Planning Department Version for Planning Commission Mtg.July 13,2021 (b)Development Standards for Single Family Vacation Rentals Permitted Within Visitor Destination Areas and Holders of Nonconforming Use Certificates. Development standards shall be the same as those for single family detached dwellings in Secs.8-4.5 through 8-4.8,inclusive,with the following additions: (1)Applicant for a single family transient vacation rental shall designate a contact person or owner's representative who shall be available on a twenty-four (24)hour,seven (7)days-per-week basis.Applicant shall provide the name and contact information to neighbors adjacent to and directly across subject vacation rental,the Planning Department,the Kaua'i Police Department,the Kaua i Civil Defense Agency,and the Kaua'i Visitors Bureau upon issuance of a nonconforming use certificate or registration number. Owner is responsible for keeping information updated with all agencies. (2)One (1)outdoor sign no larger than one (1)square foot shall be posted in a visible place on a wall,fence,or post immediately inside or on the front boundary of the property where it is easy to see,for the purpose of providing the current Nonconforming Use Certificate number or the Registration Number and the 24/7 phone number.No other signs shall be allowed and there shall be no direct illumination of the required sign.The numbers on the sign shall be no smaller than two (2)inches in height. (3)The applicant shall provide a list ofrequirements and information entitled For the Safety and Comfort ofYou and Your Neighbors."This shall provide essential information to the visitor and shall seek to reduce negative impacts on the surrounding neighborhood.This information piece shall be provided to the Planning Department at time ofapplication and shall be posted in a conspicuous place in the guest's sleeping quarters along with a copy ofthe Nonconforming Use Certificate or the Registration Number,whichever the case may be and if required.The list shall include,but not be limited to, suggested curfews,guidance with respect to the character of the neighborhood and gatherings and noise,and what to do in cases of emergency and natural disaster. (4)All print and internet advertising for single family vacation rentals,including listings with a rental service or real estate firm,shall include the Nonconforming Use Certificate or the Registration Number. (5)A copy of the Nonconforming Use Certificate or the Registration Number,where required,shall be displayed in the back ofthe front door ofthe sleeping quarters. (6)A site and floor plan shall be filed with the application. Sec.8-17.9 Registration of All Transient Vacation Rentals. (a)All single family transient vacation rentals,excluding,however,a time share unit in a time share plan subject to Chapter 514E of the Hawai'i Revised Statutes,as amended,lawfully existing in Visitor Destination Areas on March 7,2008 shall register with the Director of Finance on a form prescribed by the Director of Finance no later than one hundred eighty (180)days after March 7,2008.Any new single family transient vacation rental,excludes,however,a time share unit in a time share plan subject to Chapter 514E of the Hawai'i Revised Statutes,as amended, established in Visitor Destination Areas subsequent to March 7,2008 shall register with the Director of Finance prior to any such use of said rental.All single family transient vacation rental uses will be subject to Kaua'i County Code Title III, Chapter 5A. (b)No single family transient vacation rental shall operate outside a Visitor Destination Area without a Nonconforming Use Certificate obtained underSec.8-13.10. 8 Planning Department Version for Planning Commission Mtg.July 13,2021 Sec.8-17.10 Nonconfonning Use Certificates for Single Fainily Vacation Rentals. (a)The purpose of this Section is to provide a process to identify and register those single family transient vacation rentals as nonconforming uses which have been in lawful use prior to March 7,2008 and to allow them to continue subject to obtaining a Nonconforming Use Certificate as provided by this Section. (b)The owner,operator or proprietor ofany single family transient vacation rental which operated outside of a Visitor Destination Area prior to March 7,2008 shall obtain a Nonconforming Use Certificate for single family vacation rentals. (c)No Nonconforming Use Certificate shall be issued by the Planning Director unless the use as a single family rental is a legal use under the Comprehensive Zoning Ordinance,and the applicant provides a sworn affidavit and demonstrates to the satisfaction of the Planning Director that a dwelling unit was being used as a vacation rental on an ongoing basis prior to March 7,2008.The Planning Director,in making the decision,shall take into consideration,among other things,the following guidelines: (1)The applicant had a State ofHawai'i general excise tax license and transient accommodations tax license for the purpose of the lawful operation of single family transient vacation rentals for a period long enough to demonstrate actual payment oftaxes. (2)That prior to March 7,2008,applicant had deposits for reservations by transient guests in exchange for compensation for use of subject property as a vacation rental. (3)That applicant had transient guests occupy subject property in exchange for compensation prior to March 7,2008,with a pattern of consistency that evidences an ongoing and lawful enterprise. (d)Applications for Nonconforming Use Certificates for single family transient vacation rentals located on land designated Agricultural"pursuant to Chapter 205 ofthe Hawaii Revised Statutes shall be made within sixty (60)days of August 16,2010.Ifan operator as defined under Subsection (c)fails to apply for a Nonconforming Use Certificate within sixty (60)days ofAugust 16,2010,then the Planning Director shall assess an administrative late application processing fee of one thousand five hundred dollars ($1,500.00)at filing.A Noriconforming Use Certificate may be issued for a single family transient vacation rental located on land in the State of Hawai'i's land use Agricultural District if: (1)It was built prior to June 4,1976;or (2)The applicant has obtained a Special Permit under Hawai'i Revised Statutes,Sec.205-6 which specifically permits a vacation rental on the subject property. (A)An application for a Special Permit shall include verification by the applicant that the farm dwelling unit was being used as a vacation rental on an ongoing basis in accordance with Subsection (c). (B)An application for a Special Permit pursuant to Hawai'i Revised Statutes Sec.205-6 and Chapter 13 ofthe Rules ofPractice and Procedures ofthe Planning Commission that is deemed complete by the Planning Director must be filed within one (1)year ofAugust 16,2010. Upon completion ofthe application,the Planning Director shall issue a provisional certificate that will allow the transient vacation rental to operate.The provisional certificate shall be null and void after the Planning Commission or the Land Use Commission makes a decision upon the application. (C)In addition to the Special Permit standards set forth in Hawai i Revised Statutes Sec.205-6 and Chapter 13 of the Rules of Practice and Procedure of the Planning Commission,the Planning Commission may only grant a Special Permit if,prior to March 7,2008: 9 (e) establishing Planning Department Version for Planning Commission Mtg.July 13,2021 (i)the property upon which the transient vacation rental is located had a registered agricultural dedication pursuant to the guidelines set forth in the County of Kaua'i's Department of Finance Real Property Tax Division Agricultural Dedication Program Rules;(ii)a bona fide agricultural operation existed,as shown by State General Excise Tax Forms and/or Federal Income Tax Form 1040 Schedule F filings;or (iii) the Planning Commission finds that the size,shape,topography, location or surroundings ofthe property,or other circumstances,did not allow an applicant to qualify for an agricultural dedication pursuant to the County of Kauai s Department of Finance Real Property Tax Division Agricultural Dedication Program Rules or inhibited intensive agricultural activities. (D)If the application for the Special Permit is granted,then the transient vacation rental operation shall be subject to conditions imposed by the Planning Commission or the Land Use Commission. (E)If the application for Special Permit is denied,then the Nonconforming Use Certificate shall not be issued and the transient vacation rental must cease operation. The owner,operator,or proprietor shall have the burden of proof in that the use is properly nonconforming based on the following documentation which shall be provided to the Planning Director as evidence of a nonconforming use:records of occupancy and tax documents,including all relevant State ofHawai'i general excise tax filings,all relevant transient accommodations tax filings,Federal and/or State of Hawai'i income tax returns for the relevant time period,reservation lists,and receipts showing payment.Other reliable information may also be provided.Based on the evidence submitted,the Planning Director shall determine whether to issue a Nonconforming Use Certificate for the single family transient vacation rental. (f.)The Planning Director shall make available to the public at the Planning Department counter and on the County of Kaua'i website a list of all completed applications for Nonconforming Use Certificates.Applications deemed completed shall concurrently be made available to the public.Copies of applications shall also be made available to the public as public information,as provided by H.R.S. Chapter 92F (the Uniform Information Practices Act).Such list shall include the names of the applicants and the tax map key number of the parcels which are the subject ofthe applications.The Planning Department may physically inspect a single family transient vacation rental prior to a Nonconforming Use Certificate being issued. (g)The Planning Director shall prepare an application form which shall be available to the public.If an operator as defined under Subsection (c)fails to apply for a Nonconforming Use Certificate within sixty (60)days ofAugust 16,2010 the Planning Director shall assess an administrative late application processing fee of one thousand five hundred dollars ($1,500.00)at filing.Applications received more than one (1)year after August 16,2010 shall not be accepted and the use of a transient vacation rental shall be deemed discontinued. (h)The owner or lessee who has obtained a Nonconforming Use Certificate under this Section shall apply to renew the Nonconforming Use Certificate annually on the date ofissuance ofthe Nonconforming Use Certificate. (1)Each application to renew shall include proof that there is a currently valid State of Hawai'i general excise tax license and transient accommodations tax license for the nonconforming use and shall be received by the Department prior to the expiration date of a held Nonconforming Use Certificate.Failure to meet this condition will result in the automatic denial ofthe application for renewal ofthe Nonconforming Use Certificates. (2)Upon renewal,the Planning Department may initiate re-inspection ofproperties for compliance with other provisions ofthis chapter, 10 Planning Department Version for PIanning Commission Mtg.July 13,2021 or other pertinent land use laws,and may withhold approval of a renewal application and issue cease and desist notices to the applicant until all violations have been resolved to the satisfaction ofthe Planning Director. (3)The applicant shall pay an annual renewal fee of seven hundred fifty dollars ($750.00)which shall be deposited into the County General Fund. Sec.8-17.11 Enforceinent Against Illegal Transient Vacation Rentals. (a)In addition to other penalties provided by law,including,but not limited to,Secs.8-3.5(a)and 8-17.6,the Planning Commission Rules,as amended,the Planning Director,or any member of the public who has duly obtained standing pursuant to rules promulgated by the commission,may initiate proceedings to revoke or modify the terms of a Nonconforming Use Certificate pursuant to the Rules of Practice and Procedures of the Planning Commission,as amended.Violations of conditions ofapproval or providing false or misleading information on the application or in any information relating thereto at any time during the application process shall be grounds for revocation or cease and desist orders. (b)Advertising of any sort which offers a property as a transient vacation rental shall constitute prima facie evidence of the operation of a transient vacation rental on said property and the burden of proof shall be on the owner,operator,or lessee to establish that the subject property is not being used as a transient vacation rental or that it is being used for such purpose legally.If any unit is found to be operating unlawfully,penalties established in Secs.8-3.5(a)and 8-17.6 shall apply. Sec.8-17.12 Historic Properties Exeniption. Single family dwelling units on the National or State Register of Historic Places may be allowed to operate as a transient vacation rental through a Use Permit and by abiding by the development standards specified in Sec.8-17.8(b)." SECTION 10.Ifany provision ofthis ordinance,or the application thereof to any person or circumstance,is held invalid,the invalidity does not affect the other provisions or applications of this ordinance that can be given efiect without the invalid provision or application,and to this end the provisions of this ordinance are severable. SECTION 11.Ordinance material to be repealed is bracketed.New ordinance material is underscored.When revising,compiling,or printing this ordinance for inclusion in the Kaua'i County Code 1987,as amended,the brackets, bracketed material,and underscoring shall not be included. SECTION 12.This Ordinance shall take effect upon approval.The requirements of this Ordinance shall not affect any application which has been approved by the Commission prior to the efFective date ofthis Ordinance,unless there is a subsequent approval required prior to a building permit,in which case,that subsequent application shall be subject to the relevant requirements of this Ordinance,excluding subdivisions which have received tentative approval prior to the approval date of this Ordinance. Introduced by: LUKE A.EVSLIN DATE OF INTRODUCTION: MASON K.CHOCK 11 Planning Department Version for Planning Commission Mtg.July 13,2021 Lihu e,Kaua'i,Hawai i V:\BILLS\2020-2022 TERMYAgOpen-no TVR D6 AMK_dmc.docx 12 EXHIBIT"B" Proposed Bil County Council Version (April 2021) couNry COUNCIL Arryl Kaneshiro,Chair Mason K.Chock,Vice Chair Bemard P.Carvalho,Jr. Felicia Cowden BiU DeCosta Luke A.Evslin KipuKai Kuali'i Council Services Division 4396 Rice Street,Suite 209 Lau'e,Kaua'i,Hawai'i 96766 AprU 7,2021 OFFICE OF THE COUNTY CLERK Jade K.Fountain-Tanigawa,County Clerk Scon K.Sato,Deputy County Clerk Telephone:(808)241-4188 Facsimile:(808)241-6349 E-mail:cokcouncil@kauai.gov Donna Apisa,Chair and Members of the Planning Commission c/o County ofKauai Planning Department 4444 Rice Street,Suite A473 Lihu'e,Hawai'i 96766 Dear Chair Apisa and Members ofthe Planning Commission: The Kaua'i County Council,at its meeting on April 7,2021,referred the followingproposed amendments to Chapter 8,Kaua'i County Code 1987,as amended, to the Planning Commission for review and recommendation: "PROPOSED DRAFT BILL (N0.2822)-A BILL FOR AN ORDINANCE AMENDING CHAPTER 8,KAUA'I COUNTY CODE 1987,AS AMENDED, RELATING TO TRANSIENT ACCOMMODATIONS" Thank you for your continued assistance in these planning matters.Should you have any questions,please feel free to contact me at 241-4188. JAD&iC.FOUNTAIN.TANIGAWA County Clerk County of Kaua'i AMK:dmc Enclosure AN EQUAL OPPORTUNITY EMPLOYER ORDINANCE N0.BILL N0. A BILL FOR AN ORDINANCE AMENDING CHAPTER 8, KAUA'I COUNTT CODE 1987,AS AMENDED, RELATING TO TRANSIENT ACCOMMODATIONS BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF KAUA'I,STATE OF HAWAI'I: SECTION 1.Chapter 8,Section 8-1.5,Kaua'i County Code 1987,as amended,is hereby amended by ameuding the definition of "Developed Campgrounds"and "Undeveloped Campground"as foUows: "Developed Campgrounds means land or premises designed to be used, let,or rented for temporary commercial oecuoancv by campers traveling by automobile or otherwise and which contain such facilities as tent sites, bathrooms or other sanitary facilities,piped water instaUations,and parking areas,but not including mobile home parks.Each individual tent campine site offers a camosite that may have oermanent footines.blatforms.and/or orivate restroom facilities.Developed campgrounds may include facilities fer the temporary placement of camp trailers and camping vehicles which are utilized for non-permanent residential uses at no more than six (6)vehicles per acre. ["Undeveloped Campground"means land or premises designed to be used for temporary occupancy by campers traveling by foot or horse which may contain facilities and fireplaces,but do not contain facilities as are provided at developed campgrounds.] Undevelooed^-nmpf'Tounds"means land or cremises desiened to be used bv oroperty ^owners and theu euests for non-commercial campme ourposes.There are no permanent footmes or clatforms,and there are no permanent structures.There is no compensation.monetary or otherwise.for use oftbis site. SECTION2.Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to outright permit "Developed campgrounds"in the Resort Zoning District as follows: Proposed Draft Bill CNo.2822) Sec.USB ZONINGDISTRICT Residential Conunercial Industrial AG o ~ST to R-6 "KM to B-20 RB CN CG LL IG 8-2.4(g)(1)Accessoiy uses and structiires p 8-2.4(8)(2)Apartment hotels p 8-2AWJ~(3~)AutqmobUe service and stprag^p 8-2.4(g)(4)Barber^shop an.d beauty shop .p 8-2.4(g)(6)Comm.ercial recreation p 8-2.4fe)(61 Developed campgroundB p [8-2,4(g)(6)] 8-2.4(g)(7)_Gifb shops p [8-2.4fe)(7)] 8-2.4CeH8)Grolf coiarses p [8-_2,4(g)®] 8-2A(e)(9)Home business p SECTION 3.Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to outright permit "Developed campgrounds"in the General Commercial Zoning District as follows: Proposed Draft Bill (No.2822) Sec.USE ZONING DISTRICT Residential Commercial Industrial _AO o "BT b) R-6 S-IO" to R-20 HK CN co IL _IO [8-2,4fe).(9)l8-2.4fe)ao1 Hotels p [8-2.4(g)ao)] 8-2.4rey(ll)Laundromat p [8-Z.^)(11)}8-2.4fayri2V Libraries p [8-2,4(^).(12)]8-2.4fcT fl31 Motels p [8-2.4fe)a3)] 8-2.4te)<lfl Museums p [8-2,4(g)&4)]8-2.4fe)fisy PoU.ee and fire stations p (8-2,4fe)aS)] 8-2.4feT rieV PubUc parks and monuments p lS-2A^)d6)] S-2A(el(iTi Restaurants and food service p [8.2.4fe)(17)][Retail cleaning outlets]JPL 8-2.4(g)(18)Retail cleaiiing outlets p 8.2.4fe)(19)Retail food and drug shop^p 8.2.4(g)(20)Shoe repair shops p 8-2.4(g)(21)Single famUy detached dwellings p 8-2.4(g)(22) Transient vacation rentals,provided tliey are located within the designated Visitor Destination Areas eetalilished pursuant to Article 17 ofthis Chapter.These uses are prohibited iii non-VDA areas. p Sec.USE ZONING DISTSICT Residential Commercial Industrial _AG,o ~HT to R-6 Ti-W to .R-20 RB CN CG IL,IG 8-2.4Q)(1)Accessory uses and structures p 8-2.4Q)(2)Autompbjle sales,repaic,and storage p 8-2.4Q)(3)Autoniobile services p 8-2.4Q)(4)Chiu'clies,temples,and monasteTies p 8-2.40)(B)CIubs,loclges,and cominunity centers p 8-2.40)(6)Coinmercial ixidoor amusement and parks p 8-2.4Q)(7)Department stores p 8-2.41-fl f81 Developed camnerourLds T [8-2.40).(8)]8-2.4('iVfgY Hotels and motels p [8-_2.40)(9)]8-2.4CiVa6)'Household services p [8-2.40)00)] 8-2.4ffldl) Light manufacturmg,auch as handicrafts and garmenfc fabrication p [8-,2.4(j)a_l)] 8-2A<{)(J2) Mm.cr food procesemg,eucli as cracked seeds,jeUies,candies,and ice cream p SECTION 4..Chapter 8,Kaua'i Couaty Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to prohibit "Developed campgrounds"in the Agriculture Zonmg District as follows: Proposed Draft Bill (No.2822) Sec.USE ZONING DtSTRICT Residential Commercial Jndustrial AG o ~E-T to B-e "B-10 to E.20 RE CN__CG IL IG-[&.2.4(j)a2)] 8-2.4fild3)Museums,libraries,and publie services p T8-2.40-)(13)]8-2.4rtYa4)Offices and professional b'uildixigs p T8.2.4g)(14)] 8-2.4CiY(15y Parking garages p T8:2-4S).(16)]a.2.4rff fieV Personal services p -[8.2.40) (16)] 8-2.4ffl (l7Y Public of&cee and buildings p [8-2.4tj)(17)] 8-2.4riYa8V Public parks and monuments p~w-2AWS8^ 8-2.4ffi a9Y Reeearch and development p [8-2.40).(19)]8.2.4ffl fflOV Eteeidential dweUiiigs,detached,attached or nulti-family dwellinga p "[8.2740) (20)] 8.2.4ffl Ql)Elestaurants and food services p [8-.2-4®,(2yi8-2.4fiYr22y Retail sales p [8-2.40)(22)] 8-2.4(fi (23)3upermarkets and shopping centere p [8-2.4®(23)] 8-2.4fflffi4) Fransient Vacation Rentals,provided they ire loeated within the designated Visitor DestinationAreas establishedpursuant to ^rticle 17ofthis Chapter.Theseusesare )rohibited ia non-VDA areas. p [8^4®(24)] 8.2.4ffl Q6)[*ransportation terxainals and doeks p [8.2.4®.(25)]8.2.4flY(26y Varehouses p [8^4$).(26)]8-2.4flY(27y VIiolesale Outlets p Seo.USE ZONINODISTRICT Sesidential RK Commercial Industrial AG oR-lto B-G B-10 to R.20 CN ca IL IG 8-2.4(r)(l)Aninial hospitalB u 8-2.4(r)(2)Botamcal and Zoological gardens u 8-2.4(r)(3)Cemeteries u 8-2.4(r)(4)Churches,temples,and monasteries u 8-2.4(r)(6)3om.mercial Recreation u 8-2.4(r)(6)^onstrucfcioD.and worker temporary housuig u [8-2.4(r)(7)]Development caoipgrounds]m_ [8-,2.4(r)(8)]8.2.4frt'm'Tarm.worker housuig u SECTION5.Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to prohibit Developed campgrounds in the Open Zoning District as foUows: Proposed Draft Bill (No.2822) Sec.USE ZONINGDISTRICT Residential RE Commercial Industrial AG oE-lto R.6 E-10 to R.20 CN CG IL 10 [8^.4(r)(9)] 8.2.4fr)C8)~Farmers Markets u [8-2,4(r)(10)] 8-2.4M'(9)Solf courses u ]S-2-W(JW 8-2.41'r')(101 Mineral extraction and quarries u [8^,4(r)(12)f S-2Ab)'(nY Pet keeping and raiemg proposed witbin five h.undred (500)feet of any Residential Diatrict u [8-2.4(r)(i^T 8-2Ak)(12) Piggery,when to be located within three ;hoiieand (3,000)feet of any Use District u [8-2.4(r)(14)] S-2.4W (18) Poultafy [and piggeries]Raising,wheii to be .ocated witlun three thoysand (3,000)feet of iny Use District u [8^4(r)(15)] 8.2.4M (14)~?rivate and public utilities facilities u [8.2;4(r)(16)] 8-2.4rri 16 :teataurants cind food services Us [8-2,4(r)(17)] S-2.4('ry(16)- :t,etail Sales u [8-2.4(r)(18)] 3-2.4frY('17')-Schools and day care centers u [8^4fr)(ig)]-i-2.4frt <18Y rransportation termmals u [8-2,4(r)(2p)]3-2.4frt fl9)- \xiy other use or structure which the Planning 3irector finds to be similar in nature to those isted in this Section and appropriate to the ^iatnct u Sec.USE ZONING DISTRICT Residential Commercial Industrial AG o TST to R.6 Tt-lO to R-2B BR CN 00 IL.10 ?2-4®<1'Commimication facUities TT 8:2;4<^.(2}.Day care^enters 3T F8-2.4(8)(3)r CDeveloEed campgroundsl TUT [8.2,4(8).(4)] 8-2.4<s)(3)Home busmesses u [8-2.4(s) )]8-2.4fa)av Intensive agricultiire u [8.2.4(s)<6)]S-2A(s)'(5) Livestock and grazing within fche Urban Districi ae establLshed by the State Land Use Commiesion u (8-2.4(8)^)] 8-2.4fayf6V Organized recreation cainps u t8--2-4(8).(8)] 8.2.4fsKT)'Outdoor recreation concessions u [8-2,4(8)W] 8-2.4fa)(8)PoHce and fire facilities u SECTION6.Chapter 8,Article 4,Kaua'i County Code 1987,as amended,is hereby amended by amending Sec.8-4.9 as follows: "Sec.8-4.9 Developtnent of Other Uses in a Rpsidential District. AU permitted uses,aU uses requiring a Use Permit,and aU Uses allowed by variance other than residential shall conform to: (a)Development standards estabUshed for the district in which they are normaUy permitted,provided that: (1)The mimmum distance from property Unes shaU be the aame as that required for single family detached dweUings;and (2)The maximum buildiiig heights shall be the same as that required for siagle family detaehed dwellings;[or]and C3)Developed camoerounds are prohibited in all Residential Zonine Districts:or (b)The requirements and conditions imposed by the Planning Commission in granting the Use Permit or Variance Permit." SECTION7.Chapter 8,Aiticle 8,Kaua'i County Code 1987,as amended,is hereby amended by insertiiig a new Sec.8-8.7 as follows: "Sec.8-8.7 DeveloBed Cainnerounds in Asfriculture Zoninff Districts. Develoced camperounds are prohibited m all Aericulture 7nninf nistricts." SECTION8.Chapter 8,Article 9,Kaua'i County Code 1987,as amended,is hereby amended by inserting a new Sec.8-4.9 as foUows:"Sec.8-9.6 Develoned CainpBrounds in Qpen Zonine Dlstricts. Develotied camperounds are nrohibited in all Ooen Zoninp Districts." SECTION9..Chapter 8,Article 17,Kaua'i County Code 1987,as amended,is hereby amended as follows: "AKTICLE 17.TIME SHARING AND TRANSIENT VACATION RENTALS Sec.8-17.1 Liinitations on Location. Except as provided in this Section,time share units,time share plans,and transient vacation rentals are prohibited. Sec.8-17.2 Pernutted Tinie Share Locations. Suliject to the Umitations contained in Secs.8-17.4 and 8-17.5,time share units and time share plans are allowed: (a)In hotels in Resort or Commercial Districts;and Proposed Draft Bill (No.2822) Sec.USE ZONING DISTRICT Eesidential Commercial Industrial AQ 0_ ~ST to a.6 Tna' to R-20 RR CN ca IL 10 [8.2,4(8)00)]~S.2A<B) (9)Quarries u [8-2.4(s).(11)]8-2.4feyaoy Recreation vehicle parks u [8-2.4(8).(12)]8-2.4fayaiy ReUgious farilities u [8-2.4(8)03)]~8-2.4(s)(J2)UtUity installations u [8-2.4(8)04)]~S-2.4(s) (13) Any other use or stoucture wbich the Planning Director finds to be simUar in nature to those Usted in this Section and appropriate to the Digtrict u (b)In the Resort RR-10 aiid RR-20 Districts and Multi-Family R-10 and R-20 Residential Districts when such districts are located within the Visitor Destination Areas of Poipu,Lihu'e,Wailua Kapaa or PrmcevUle,as more particularly designated on County ofKaua'i Visitor Destination Area maps attached to Ordinance No.436 aiid incorporated heiein by reference.The boundary lines estabUshed on these visitor destination naaps shall be transferred onto the Of&cial Zoning Maps for reference purposes. (c)Time share units and time share plans are prohibited in the R-l,R-2, R-4 and R-6 Residential Districts. Sec.8-17.3 Pernutted Locations for Multi-Family Transient Vacation Rentals. Subject to the Umitatione contained in Sec.8-17.5,multi-fanuly transient vacation rentals are allowed: (a)In hotels in Resort or Commercial Districts;and (b)In Resort Districts and Itesidential Districts within the visitor destination areas as more particularly designated on County ofKaua'i Zoning Maps. (c)Notwithstandine the visitor destmation area desienation,multi-famUv transient vacation rentals are prohibited ia the Aericulture District and in the Ooen District. Sec.8-17.4 Tiine Sharing in Projects Located Within Visitor Destination Areas and Hotels in Resort or Coinmercial Districts. Ifthe project in which the time share unit or time shaie plan is to be created contains an existing tiine shEire unit or time share plan,then tinie share units and plans shall be regulated according to the terms ofthe project instruments. If the project in which the time shaie unit or time share plan is to be created is not a hotel and does not contain time share units or time share plans,then such use may be created oiily if such use is expUcitly and prominently authorized by the project uistruments,or the project instruments are amended by unanimous vote of the unit owners to explicitly and prominently authorize time sharing.Provided, however,tliat time share units and time share plans permitted under this Section shall be Umited to the Visitor DestuationAreas described in Sec.8-17.2,and to hotels in Resort or Commercial Districts. Sec.8-17.5 Existing Time Share and Multi-Family Transient Vacation Rental Uses. (a)Time Share Umts,Time Share Plans,and Multi-Family Transient Vacation Rentals Existing On or Before September 22,1982,That Are Not Located in Visitor Destination Areas.Tune sbare units,time share plans,or multi-family vacation rentals existing on or before September 22,1982 that are not located within the visitor destmation areas described in Sec.8-17.2 may continue as allowed uses. However,no additional time share units,time share plans,smele-familv transient vacation rentals.or multi-family transient vacation rentals outside the visitor destination area shall be created after September 22,1982.The uses left uiumpaired by this Subsection shaU not be lost by the failure to exercise the use unless it clearly appears that the use has been abandoned for a period in excess oftwo (2)years.This Subsection shall not apply to hotels in Resort or Commercial Districts. (b)Time Share Units,Time Share Plans,and Transient Vacation Rentals in Projects Located Within Visitor Destination Areas Existing On or Before September 22,1982.Time share units and time share plans in projects existing on or before September 22,1982,and located within areas described in Sec.8-17.3 shaU be regulated in accordance with the provisions ofSec.8-17.4. Proposed Draft Bill (No.2822) Sec.8-17.6 Penalty. An owner of any unit which is operated ui violation of this Article,and/or any other person,firm,company,association,partnership or corporation violating any provislon of this Article,shaU each be fijied not less than five hundred dollars ($500.00)nor more than ten thousand dollars ($10,000.00)for each offense. This civU fine may be in addition to any crimmal fines.If any person fails to cease such violation within one (l)month,such person shaU be subject to a new and separate violation for each day the violation continues to exist. (a)Actions by County Attorney.The County Attoiney may file a civil action to enjoin any violation of this Article and collect any penalties provided for by this Article. (b)Disposition of Fines.AU fines imposed for violatioas of this Article shall be paid to the Director of Finance to the credit of the Development Fund. Sec.8-17.7 Ainendments to Visitor Destination Areas Designations. Amendments to the location and/or boundaries ofthe Visitor Destination Areas shall be made iu accordance with the amendment provisions of Sec.8-3.4 of this Chapter 8,provided that the burden of proof rests with the applicant to show upon the clear preponderance of the evidence that the amendment is reasonable.The criteria for evaluating such proposed amendments shaU be as follows: (a)The proposed amendment is consistent with the General Plan and the Development Plan. (b)The parcel or parcels to be affected by the proposed ainendment are suitable for Visitor Destination Area uses. (c)The availability of existing public services and facilities in the affected areas and whether the requested pubhc services and facilities for the proposed change in use can be met without undue burden. (d)The proposed change wiU conflict with other existing uses in the affected area. (e)The proposed change wUl cause or result ia uiireasonable air,noise,or water pollution,or will adversely affect ineplaceable natural resources. (f)The affected areas contain 01 are in close proximity to other areas that contain: (1)Large numbers of hotel and/or multiple family dwelhng units suitable as accommodations by temporary visitors. (2)Lands designated for Resort Use on the General Plan or having Resort zoning. (3)Outdoor or commercial recreational faciUties,such as beaches, golf courses,tennis courts and other similar faciUties. (4)Tourist related commercial facilities,such as gift shops,food stores,recreational equipment and services shops,tour and traiisportation service terminals,restauraiits,bars,night clubs,cabarets,shopping centers, theaters,auditoriums,and other similar facilities. (g)The proposed change will include or adversely affect predomiaantly residential neighborhoods. Sec.8-17.8 Single Family Transient Vacation Rentals. (a)[Notwithstanding any underlying zomng designation and with]With the exception ofproperties on the National or State Eegister ofHistoric Places,single family transient vacation rentals are prohibited in all areaa not designated as Visitor Destination Areas. (b)Notwithstandins the visitor destination area desJBnation.sinele family transient vacation rentals are crohibited in the Aericulture District and in the Open District, (b)Development Standaids for Siiigle Family Vacation Rentals Permitted Within Visitor Destination Areas and Holders of Nonconforming Use Certi&cates. Proposed Draft Bill (No.2822) Development standards shaU be the same as those for single family detached dweUings in Secs.8-4.5 through 8-4.8,inclusive,with the following additions: (1)AppUcant for a single family transient vacation rental shall designate a contact person or owner s representative who shaU be available on a twenty-four (24)hour,seven (7)days-per-week basis.Applicant shall provide the name and contact information to neighbors adjacent to and directly across subject vacation rental,the Planning Department,the Kaua'i Police Department,the Kaua'i CivU Defense Agency,and the Kaua'i Visitors Bureau upon issuance of a noncon&rming use certificate or registration number. Owner is responsible for keeping mformation updated with aU agencies. (2)One (1)outdoor sign no larger than one (1)square foot shall be posted in a visible place on a wall,fence,or post immediately inside or on the front boundary of the property where it is easy to see,for the piirpose of providing the current Nonconformuig Use Certificate number or the Registration Number and the 24/7 phone number.No other signs shall be aUowed and there shaU be no direct iUumiuation of the required sign.The numbeis on the sign shall be no smaller than two (2)inches in height. (3)The applicant shaU provide a list of requirements and informatioB entitled "For the Safety and Comfort ofYou and Your Neighbors."This shall provide essential information to the visitor and shall seek to reduce negative impacts on the surrounding neighborhood.This information piece shall be provided to the Planning Department at time of application and shall be posted in a conspicuous place in the guest's sleeping quarters along with a copy ofthe Nonconforming Use Certij&cate or the Registration Number,whichever the case may be and if required.The Ust shall include,but not be limited to, suggested curfewe,guidance with respect to the character of the neighborhood and gatherings and noise,and what to do m cases of emergency and natural disaster. (4)AU print and internet advertising for single family vacation rentals,including Ustings with a rental service or real estate firm,shall include the Noncon&rming Use Certt&cate or the Registration Number. (5)A copy of the Nonconforming Use Certificate or the Registration Number,where required,shall be displayed in the back of the front door ofthe sleeping quarters. (6)A site and floor plan shall be filed with the application. Sec.8-17.9 Kegistration ofAll Transient Vacation Rentals. (a)All suigle family transient vacation rentals,excluding,however,a time share unit in a time share plan subject to Chapter 514E of the Hawai'i Revised Statutes,as amended,lawftdly existing in Visitor Destination Areas on March 7,2008 shall register with the Director of Finance on a form prescribed by the Director of Frnance no later than one hundred eighty (180)days after March 7,2008.Any new single family transient vacation rental,excludes,however,a time share unit in a time share plan subject to Chapter 514E of the Hawai'i Revised Statutes,as amended, established ia Visitor Destmation Areas subsequent to March 7,2008 shaU register with the Director of Finance prior to any such use of said rental.AU single family transient vacation rental uses wiU be subject to Kaua'i Coimty Code Title III, Chapter 5A. (b)No single family transient vacation rental shall operate outside a Visitor Destination Area without a Nonconforming Use Certificate obtained under Sec.8-13.10. Sec.8-17.10 Nonconforming Use Certificates for Siagle Family Vacation Rentals. (a)The purpose of this Section is to provide a process to identify and register those single famUy transient vacation rentals as nonconforming uses which 8 Proposed Draft Bill (No.2822) have been in lawful use prior to March 7,2008 and to aUow them to continue subject to obtaining a Nonconforming Use Certificate as provided by this Section. (b)The owner,operator or proprietor of any siugle family transient vacation rental which operated outside of a Visitor Destination Area prior to March 7,2008 shall obtain a Noncon&rmuig Use Certificate for single family vacation rentals. (c)No Noncoiiforming Use Certificate shall be issued by the Planning Director unless the use as a single family rental is a legal use under the Comprehensive Zoning Ordinance,and the applicant provides a sworn affidavit and demonstoates to the satisfaction of the Planning Diiector that a dwelling unit was being used as a vacation rental on an ongoing basis prior to March 7,2008.The Planning Diiector,in making the decision,shall take iiito consideration;among other things,the following guideUnes: (1)The applicant had a State of Hawai i general excise tax Ucense and transient accommodations tax license for the purpose of the lawful operation ofsingle family transient vacation rentals for a period long enough to demonstrate actual payment oftaxes. (2)That prior to March 7,2008,appUcant had deposits for reservations by transient guests m exchange for compensation for use of subject property as a vacation rental. (3)That applicant had transient guests occupy subject property in exchange for compensation prior to March 7,2008,with a pattern of consistency that evidences an ongoing and lawful enterprise. (d)Applications for Nonconformmg Use Certificates for single family tiansient vacation rentals located on land designated Agricultural"pursuant to Chapter 205 of the Hawai'i Revised Statutes shaU be made within sbity (60)days of August16,2010.If an operator as defined under Subsection (c)fails to apply for a Noncon&rming Use Certificate within sbtty (60)days ofAugust 16,2010,then the Planning Director shall assess an administrative late appUcation processing fee of one thousand five hundred doUars ($1,500.00)at filing.A Nonconforming Use Certificate may be issued for a single family transient vacation rental located on land in the State of Hawai'i's land use Agricultural Distri.et if: (1)It was built prior to June 4,1976;or (2)The applicant has obtained a Special Permit under Hawai'i Revised Statutes,Sec.205-6 which specificaUy permits a vacation rental on the subject property. (A)An application for a Special Permit shaU include verification by the applicant that the farm dwelhng unit was being used as a vacation rental on an ongoing basis in accordance with Subsection (c). (B)An application for a Special Pennit piirsuant to Hawai i Revised Statutes Sec.205-6 and Chapter 13 ofthe Rules ofPractice and Procedures of the Plamiing Commission that is deemed complete by the Planning Du-ector must be filed within one (1)year ofAugust 16,2010. Upon completion of the apphcation,the Plannmg Director shaU issue a provisional certificate that wiU aUow the transient vacation rental to bperate.The provisional certificate shall be null and void after the Planmng Commission or the Land Use Commission msLkes a decision upon the application. (C)In addition to the Special Permit standards set forth in Hawai'i Revised Statutes Sec.205-6 and Chapter 13 of the Rules of Practice and Procedure of the Planning Commission,the Plamung Commission may only grant a Special Permit if,prioi to March 7,2008: (i)the property upon which the teansient vacation rental is located had a registered agricultural dedication pursuant to the gmdelines set forth in the County of Kaua'i's Department of Fmance Real Property Tax Division Agricultural Dedication Program Rules;(ii)a bona fide Proposed Draft Bill (No.2822) agricultiual operation existed,as shown by State General Excise Tax Forms and/or Federal Income Tax Form 1040 Schedule F filmgs;or (iii) the Planning Commission finds tliat the size,shape,topography, location or surioundmgs ofthe property,or other circumstances,did not allow an appUcant to quaUfy for an agrieultural dedication pursuant to the County of Kauai's Department of Finance Real Property Tax Division Agricultural Dedication Program Rules or inhibited intensive agricultural activities. CD)If the application for the Special Permit is granted,then the transient vacation rental operation shall be subject to conditions imposed by the Planning Commission or the Land Use Commission. (E)If the application for Special Permit is denied,then the Noncon&rming Use Certificate shall not be issued and the transient vacation rental m.ust cease operation. (e)The owner,operator,or proprietor shall have the burden of proof in estabUshing that the use is properly noncoiiforming based on the followmg documentation which shall be provided to the Planning Director as evidence of a nonconforming use:records of occupancy and tax documents,including all relevant State ofHawai'i general excise tax filings,aU relevant transient accommodations tax filings,Federal and/or State of Hawaii income tax returns for the relevant time period,reservation Usts,and receipts showing payment.Other reUable information may also be provided.Based on the evidence submitted,the PIannmg Director shall determiae whether to issue a Nonconforming Use Certi&cate foi the single family transient vacation rental. (!)The Planning Du-ector shaU make available to the public at the Planmng Department counter and on the County of Kauai website a list of all completed appUcations for Ncnconforming Use Certificates.AppUcations deemed completed shaU concurrently be made available to the public.Copies of applications shall also be inade available to the public as public information,as provided by H.R.S. Chapter 92F (the Umform Information Practices Act).Such list shall mclude the names of the applicants and the tax map key number of the parcels which are the subject ofthe applications.The Planning Department may physicaUy inspect a single family transient vacation rental prior to a Nonconforming Use Certificate bemg issued. (g)The Planniag Director shall prepare an application form which shall be available to the public.If an operator as defined under Subsection (c)fails to apply for a Nonconforming Use Certificate within sixty (60)days of August 16,2010 the Planmng Director shaU assess an administrative late application processing fee of one thousand five hundred dollars ($1,500.00)at filing.Applications received more than one (1)year after August 16,2010 shall not be accepted and the use of a transient vacation rental shall be deemed discontinued. (h)The owner or lessee who has obtained a Nonconfornung Use Certificate under this Section shaU apply to renew the Nonconforming Use Certificate annuaUy on the date ofissuance ofthe Nonconformmg Use Certificate. (1)Each application to renew shall include proof that there is a currently valid State of Hawaii general excise tax license and transient accommodations tax license for the nonconforming use and shall be received by the Department prior to the expiration date of a held Noncon&rming Use Certificate.Failiire to meet this condition will result in the automatic denial of the application for renewal of the Noncon&rming Use Certificates. (2)Upon renewal,the Planning Department may initiate re-inspection ofproperties for compliance with other provisions ofthis chapter, or other pertinent land use laws,and may withhold approval of a renewal application and issue cease and desist notices to the appUcant until aU violations have been resolved to the satisfaction of the Planning Diiector. 10 Proposed Draft Bill (No.2822) (3)The applicant shall pay an annual renewal fee of seven hundred fifty dollars ($750.00)which shall be deposited into the County General Fund. Sec.8-17.11 Enforcement Against Illegal Transient Vacation Rentals. (a)In addition to other penalties provided by law,including,but not limited to,Secs.8-3.5(a)and 8-17.6,the Plarmmg Comnussion Rules,as amended,the Plarming Director,or any member of the public who has duly obtained standing pursuant to rules promulgated by the commission,may initiate proceedings to revoke or modiiy the terms of a Nonconforming Use Certificate pursuant to the Rules of Practice and Procedures of the Planmng Commission,as amended.Violations of conditions of approval or providing false or misleading mformation on the application or m any infonnation relatmg thereto at any time diiring the application process shall be grounds for revocation or cease and desist orders. (b)Advertising of any sort which offers a property as a transient vacation rental shaU constitute pruna facie evidence of the operation of a transient vacation rental on said property and the burden of proof shall be on the owner,operator,01 lessee to estabUsh that the subject property is not being used as a transient vacation rental or that it is being used for such purpose legaUy.If any unit is found to be operating unlawfully,penalties established in Secs.8-3.6(a)and 8-17.6 shaU apply. Sec.8-17.12 Historic Properties Exeinption. Single family dweUmg units on the National or State Eegister of Historic Places may be allowed to operate as a transient vacation rental tfarough a Use Permit and by abiding by the development standards specified in Sec.8-17.8(b). & SECTION 10.Ifany provision ofthis ordinance,or the application thereof to any person or circumstance,is held uivaUd,the invalidity does not affect the other provisions or appUcations of this ordinance that can be given effect without the invalid provision or application,and to this end the provisions of this ordinance are severable. SECTION 11.Ordinance material to be repealed is bracketed.New ordinance material is underscored.When revising,compiling,or printing this ordinance for inclusion in the Kaua'i County Code 1987,as amended,the brackets, bracketed material,and underscoriiig shall not be uicluded. SECTION12.This Ordmance shaU take effect upon approval.The requirements of this Ordinance shall not affect any application which lias been approved by the Commission prior to the effective date ofthis Ordinance,miless there is a subsequent approval required prior to a building permit,in which case,that subsequent application shall be subject to the relevant reqmrements of this Ordinance,excludmg subdivisions which have received tentative approval prior to the approval date ofthis Ordinance. Introduced by: LUKE A.EVSLIN DATE OF INTRODUCTION: MASON K.CHOCK Lihu'e,Kaua'i,Hawai'i V:\BILLS\2020-2022 TERM\AgOpen-no TVE D6 AMK_dmc.docx 11 Proposed Draft Bill (No.2822) EXHIBITT" Agency Comments COUNTY OF KAUA'I PLANNING DEPARTMENT 4444 RICE STREET,SCTTE A473 LlHU'E,HAWAI'I 96766 (808)241-4050 FROM:KaainaS.Hull,Director (Marisa) SUBJECT:Zoning Ainendment ZA-2021-2, Kaua'i Coiinty Council,Applicant TO: 6/10/2021 Department ofTransportation -STP DPW-Engineering D DOT-Highway,Kauat(info only)DPW-Wastewater DOT-Au-ports,Kauai (info only)DPW-Buildmg D DOT-I larbors,Kanai (info onty)D DPW-SoIidWaste State Department ofHealth D Departnient ofParks &Recreation State Department ofAgriculture Fire-DepartmentaStateOfficeofPlanningCountyHousing-Agency State Dept.ofBus.&Econ.Dev.Tourism a County Economic Development D State Land Use Commission K RCaStateHistoricPreservattonDivisionWaterDepartment D DLNR-Land Management Kaua'i Civil Defense DLNR-Foresty &Wildlife a U.S.Postal Department DLNR-Aquatic Resources n UH Sea Grant D DLNR-OCCL Coiinty Transpoitation AgencyaOther; FOR YOUR COMMENTS (pertaining to your department): Ensure that plans include Fire department access and distance to nearest hydrant This matter is scheduled for a public hearing before the County ofKauai Planning Commission on 7/13/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lthue,KaiiaJ,at 9:00 am or soon thereafter.Ifwe do not receive yoitr agency commeiits within one (l) moiith from the date oftliis request,we will assume that tjiere are no objections to this pennit request. Mahalo! '?""' S.^l COUNTY nFKAlJAI "21 JUN 23 P 1 :10 COUNTY OF KAUA'I PLANNING DEPARTMENT jl^^tSi 1|4J;^NJ<5.~JUK "\^ m^W^STREET'SUITEA473J:mu'E-HA^AtfI"%7WRrffi3im%%',.s 241-4050 '—.—..^;77;"""°"I"t FROM:Kaaina S.Hull,Director (Marisa)6/10/2021 SUBJECT:Zoning Amendment ZA-2021 -2, Kaua'i County Council,Applicant TO: D Departinent ofTransportation -STP DPW-Engineering D DOT-Highway,Kaiiai(info only)DPW-Wastewater D DOT-Airports,Kauai (info only)a DPW-Building D DOT-Harbors,Kaiiai (info oiily)DPW-SolidWaste State Depaftment ofHealth a Department of Parks &Recreation State Department ofAgricultut'e Fire-Departmcnt State Office ofPlanning D County Housing-Agency D State Dept.ofBus.&Econ.Dev.Tourism County Economic Development a State Land Use Commission KHPRC D State Historic Preservation Division Water Departmenl DLNR-Land Management Kaua i Civil Defense a DLNR-Foresty&Wildlife U.S.Postal Departmeiit D DLNR-Aquatic Resources a UH Sea Grant a DLNR-OCCL County Transportation Agency Otlier: FOR YOUR COMMENTS (pertaiiiiiig to yoi]]'department): See comnents on attached sheet. June 17,2021 ^J^ /Aciting Chi,ef,District ^VW <0i?PSligiiRai§Si larren Taidokazu, Tliis iiiatter is scheduled fbr a public hearing before tli®gvii]i(ii^l^j(gf]iiyg 7/13/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Ricc Street, Lihue,Kauai,at 9:00 am or sooii thereafter.Ifvve do iiot receive your agency coinments within one (1) month fi'om tlie date ofthis request,we will assume tliat tliere are no objections to tliis permit request. Mahalo! Zoning Amendment Permit:ZA-2021-2 Applicant:Kauai County Council We have reviewed the submitted subject proposal and have these environmental health concerns to offer at this time. 1.If County and Private wastewater system connections are not available for the restroom facilities at these camp sites,wastewater systems for the restroom facilities shall be designed and constructed in accordance with applicable requirements of Chapter 11-62,Hawaii Administrative Rules. 2.Noise will be generated during the construction phases.The applicable maximum permissible sound levels as stated in Title 11,Hawaii Administrative Rules (HAR),Chapter 11-46,"Community Noise Control"shall not be exceeded unless a noise permit is obtained from the State Department of hlealth. 3.Temporary fugitive dust emissions could be emitted if /when construction activities occur.In accordance with Title 11,HAR,Chapter 11-60.1 "Air Pollution Control",effective air pollution control measures shall be provided to prevent or minimize any fugitive dust emissions caused by construction work from affecting the surrounding areas.This includes the off-site roadways used to enter/exit the project.The control measures include but are not limited to the use ofwater wagons,sprinkler systems,dustfences,etc. 4.The construction waste that is generated by the project shall be disposed of at a solid waste disposal facility that complies with the applicable provisions of Title 11,HAR,Chapter 11-58.1 "Solid Waste Management Control",the open burning of any of these wastes on or off site prohibited. However,due to the general nature ofthe application submitted,we reserve the right to implement future environmental health restrictions as additional detailed information becomes available. couNry COUNCIL Arryl Kaneshlro,Chair Mason K.Chock,Vice Chair Bemard P.Carvatho,Jr. Felicia Cowden Bill DeCosta Luke A.Evslin KipuK.ai Kuali'i Council Serviees Division 4396 Rice Street,Suite 209 LThu'e,Kaua'i,Hawai'i 96766 April 7,2021 OFFICE OF THE COUNTY CLERK Jade K.Fountam-Tanigawa>County Clerk Scott K.Sato,Deputy County Clerk Telephone:(808)241-4188 Facsimile:(808)241-6349 E-mail:cokcouncil@kauai.gov Donna Apisa,Chair and Members ofthe Planning Commission c/o County of Kaua i Planning Department 4444 Rice Street,Suite A473 Lihu'e,Hawai'i 96766 Dear ChairApisa and Members ofthe Planning Commission: The Kaua'i County Gouncil,at its meeting on April 7,2021,referred the followingproposed amendments to Chapter 8,Kaua'i County Code 1987,as amended, to the Planning Commission for review and recommendation: "PROPOSED DRAFT BILL (N0.2822)-A BILL FOR AN ORDINANCE AMENDING CHAPTER 8,KAUA'I COUNTY CODE 1987,AS AMENDED, RELATING TO TRANSIENT ACCOMMODATIONS" Thank you for your continued assistance in these planning matters.Should you have any questions,please fee]free to contact me at 241-4188. JAIfE-K..FOUNTAIN-TANIGAWA County Clerk County of Kaua'i AMK:dmc Enclosure AN EQUAL OPPORTUNITY EMPLOYER r.i+.fl rJUl I 3 2021 ORDINANCE N0.BILL N0. A BILL FOR AN ORDINANCE AMENDING CHAPTEB 8, KAUA1 COUNTT CODE 1987,AS AMENDED, RELATmG TO TRANSIENT ACCOMMODATIONS BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF KAUA'I,STATE OF HAWAI'I: SECTION 1.Chapter 8,Section 8-1.5,Kaua'i County Code 1987,as amended,is hereby amended by amending the definition of Developed Campgioiuids and Undeveloped Campground"as follows: "Developed Campgrounds"meana land or premises designed to be used, let,or rented for temporary commercial occuDancv by campers traveling by automobile or otherwise and which contain such facilities as tent sites, bathiooms or other sanitary facUiti.es,piped water mstaUations,and parking areas,but not including mobile home parks.Each mdividual tent campuie site offers a campsite th.at mav have cermanent footines.blatforms.and/or private restroom facilities.Developed campgrounds may include faciUties for the temporary placement of camp trailers aad campmg vehicles which are utilized for non-permanent residential uses at no more than six (6)vehicles per acre. ["Undeveloped Campground"meazis land or premises designed to be used for temporary occupancy by campers travelingby foot or horse which may contain facUities and fireplaces,but do not contain facUities as are provided at developed campgrounds.]"Undeveloced Camperounds"means land or crpmiRBs desiened to be used bv oropertv owners and their cuests for non-commercial campuie oiu-poses.There are no permanent footmes or platforms.aad there are no oermanent structures.There J8 no comoensation.monetanr or otherwise.for use ofthis site. SECTION2.Chapter 8,Kaua'i Couaty Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to outright permit Developed campgrounds"m the Resort Zomng District as follows: * ,^-.« •*»» ff Proposed Draft Bill (No.2822) Sec.USE ZONING DISTRICT Residential Conimercial Industrial _AO_o 'HT to R-6 TE-IO" to ^-20 RB CM._ca IL I0_ 8-2.4(g)(I)Accessory uees aiid structures p_ 8.2.4(g)(2)Apartment hotels p 8-2.4(gKS)Autom.obile service and stora^e p 8-2.4(B)(4)Barber shop and beauty shop .p 8.2^(gK5)Commercial recreation p S-2A(e)(6)DeveloDed^amTi eroynds p [8.2.4(g)(6)] 8-2.4feTm Gifb shops p [8^,4fe)/_7)] S-2MS(S)Golf courses p [8-_2.4fe)^)rs-2.4feyr9y Home businesa p SECTION3.Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to outright permit "Developed campgrounds"in the General Commercial Zoning District as follows: Proposed Draft Bill (No.2822) Sec.USE ZONING DISTBICT Residenbial Commercial ladustrial ,AG o TtT tos.-s Tnr to R.20 RR CN CG IL JG tS-ZA^W8-2.4teyao)Hotels p t8.2,4(g).(10)]8-2A(e}<n)Laundromat p [8.2.4(g)a_l)l8-2.4(el 112}Libraries p [8-2.4(g)(12)] 8-2.4frid3)Motels p [8-_2,4(g)a3)] 8-2.4fe)(14)Museums p [8-2.4(g)a4)]8-2.4feyasy PoU.ee and.fire stations p [8._2,4(g)a,6)]8-2.4(gy(l6)PubLc parks and monumenta p [8-_2,4(g)a_6)]8-2.4(g5(l7);Restaurants and food service p [8-2.4fe)(17)]^[Retail cleaning outlets]JPL 8-2.4(g)(18)Retail cleaning outlets p 8.2.4(g)(19)Retail food and drug shops p 8.2.4(g)(20)Shoe repair shops p 8-2.4(e)(21)Siugle fanuly detached dwellings p 8-2.4(g)(22) Transient vacation rentals,provided tliey are located within the designated Visitor Destination Areas established pursuant to Arfeicle 17 ofthis Chapter.These uses are prohibited m non-VDA areas^ p Sec.USE ZONING DISTRICT Residential Comraercial Industrial _&s^o TET to R-e B-10 to _B-20 RR CN CG IL IG ^2.40)(1)Accessory yses and structures p 8-2.4Q)(2)Automobile sales,repair,and storage p 8-2.4p)(3)AutomobUe services ^ 8-2.4fl)(4)Churches,temples,and m.onaste.ries p S-2.4®(S)^lubs,Iqdg^s,and commuiiity centers p 8-2.40)(6)Commercial indoor amusement and parks p 8-2^07(77 Department stqres p 8-2.4fi)(8)Develo^ed camDeTomids p [8-_2,4(j).(8)] 8-2.4d)(9-}Hotelig aad motels p [8-2.40).(9)]8-2.4ffl d 'Hoiisehold services p [8.2.40)(10)]8-2.4fiYnn light nianufacturmg,such as handicrafts and garment fabrication p [S-_2.4fi)a_l)]8-2.4ffl d2y Minor food processing,eucli as cracked seeds,jeUiea,candies,and ice cream.p SECTION 4..Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,m pertment part,to prohibit "Developed campgrounds"in the Agriculture Zoiiing District as follows: Proposed Draft Bill (No.2822) Sec.USE ZONINGDISTBICT Residential Commercial lEidustrial AG o ~ET to R-fi_ ^B-OT to Ji-20 sa _CN_co JL 10-[8^.4(:j).(12)] s-2.4fiYrisy Museums,Ubraries,and public services p [8-2.4(1)(13)] 8.2.4cfffl4)Offices and professional Tbuildmgs p l8-2.4g)(14)] 8-2.4ffi (15)Parking garages p'p^4fi).(15)] a-2.41fi (16)'Person.al eervices p [8.2.4(j)(16)] 8.2.4dVri7y Public offices and builduags p [8.2,4(j)(17)] 8-2.4ffi'(l8y Public parks aiid monumente p [8.2,4tj)(18)] 8-2.4fiya9y Research and development p [8.2.4®(19)] 8.2.4fiV(20y Reeidential dweUmge,detached,attached or multi-family dwellings p 18-274(3)(20)] S-2.i(f{(21)Elestaurants and food services p [8-2,4®.(21)]8-2.4fi)'Q2)Etetail sales p [8.2.4(3)(22)] 8-2.4flT ffl31 3upermarkets and.ahopping centers p [8-2.4Q)(23)]~S-2.4(fl'<24) Fransient Vacation.Rentals,provided they ire loeated withia the desien.ated Vieitor 3estination Areas established pursiiant to ^rti.cle 17 oftlus Chapter.These uses are )robibited in non-YDA areas. p [8^4®p4)] 8.2.4fll (25)Pransportation termmals and docks p [8-2.4CJ)(25)] 8.2.4fiY(26y Varehouses p [8-2.4(3)(26)] 8-2.4flY(27)'Vholesale Outlets p Seo.USE ZONINGDISTRICT Residential ER Commercial Industeial AO o B-lta E-6 B-10 to R-20 CN CQ tL IG 8-2.4(r)(l)Aji.ira.al hospitale u 8-2.4(r)(2)Botanical and Zoological gardens u 8-2.4(r)(3)Cemeteries u 8-2.4(r)(4)Churches,teniplee,smd monasteries u 8.2.4(r)(5)Commercial Reereation u 8.2.4(r)(6)3onstrucfcion and worker temporary housiiig u [8.2.4(r)(7)]Development campgrounds][U]_ [8.2.4(r)@)] 3-2.4frYffl'?arm worker houamg u SECTION5.Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amendmg Table 8-2.4 -Table of Uses,m pertiiient part,to prohibit "Developed campgrounds"in the Open Zoning District as follows: Proposed Draft Bill (No.2822) Sec.USE ZONING DISTRICT Residential RE Commeicial Indiistrial AG o E-lto K.6 B-10 to R-20 CN CQ IL ro [8^2.4(r)(9)] 8.2.4fr)(8)-Farmers Markets u 18^4(r)(l0)r8-2.4fryi'9)Golfcourses u [8^.4(r)(U)T8-2.4rrt (10)Mineral extraction and quarries u [8-2,4(r)(12)]&-2Ati)tllY Pet keeping and raiemg proposed within.five tiundreS (500)feet of any Residential District u [8-2.4(r)(l^T 8-2.4fr1 (12) Piggery,wlien to be located within three :housand (3,000)feet of any Use District u [8-2.4(r)(14)]8-2.4('ryCl3)- Poultry [and piggeries]Raismg,when to be .ocated witliin three thousand (3,000)feet of uiy Use District u [8^4fr)(16>T 8.2.4frt (14)Private and public utiMties facUities u [S^4(r)(16)T3.2.4rr)"i5 :i,eatauranta and food services Us [8-,2,4(r)(17)]3-2.4fr)'d61'ietEul Salee u [8-_2,4(r)(18)]3.2.4frVCl7)-ichools and day care centers u :8-2.4(r)(19)]i-2.4b)d8)'[^•aiisportation terminals u :8-2.4(r)(20)]i.2.4frl 119) ^ny other use or structure which the Planmng 3irector finds to be similar in nature to fhose iated m this Sectioa and appropriate to the )i8trict u Sec.USE ZONING DISTRICT Residential Commercial Industrial AG_o R-l to E.6 R-10 to ,R-20 ^B CN CG IL,10 8-2.4ft)(1)Communu;ation facilifies ~v 8;2:4<s»21.Day care eenters tr f8-2.4(s)(3)1 FDeveloped campgroimdsl [8.2,4(8).(4)]8.2.4(81'f3V Home biifiuiesses u [8-2,4(8).(5)]8-2.4fa)'C4y Intensive agrictilture u [8-2.4(8).(6)] S-2A<B)<6) Uvestock and grazmg withia the Urbaii District as eatablislied ly the State Land Use Coinmissioii u [8^2,4(s)P)] &-2A(B}'(6)Organized rea-eation camps u [8-2,4(8)^8)]8.2.4hym Outdoor recreation concessioiLS u [8-2.4(8).(?)] 8-2A(s)<8}PoUce and fire facOities u SECTION6.Chapter 8,Article 4,Kaua'i County Code 1987,as amended,is hereby amended by amending Sec.8-4.9 as follows: "Sec.8-4.9 Developinent ofOther Uses in a Residential District. AU permitted uses,aU uses requiring a Use Peimit,and aU Uses aUowed by variance other than residential shaU conform to: (a)Development staadards established for the district in which they are norrually permitted,provided that: (1)The minimum distance from property Unes shaU be the same as that required for single family detached dweUings;and (2)The maximum buildiug beights shall be the same as that required for single family detached dwellings;[or]and (3)Developed camtierounds are prohibited in all Eesidential Znnme Districts:or (b)The requirem.ents and conditions imposed by the Planning Commission in grantmg the Use Permit or Variance Permit." SECTION7.Chapter 8,Article 8,Kaua'i County Code 1987,as amended,is bereby amended by mserting a new Sec.8-8.7 as follows: "Sec.8-8.7 Develooed Cainnerounds in Aericulture Zonine Districts. Developed camoerounds are orohibited in aU Aericultu''B 7nTiinfr niat.rift.a " SECTION8.Chapter 8,Article 9,Kaua'i County Code 1987,as amended,is hereby amended by inserting a new Sec.8-4.9 as foUows:"Sec.8-9.6 Develoned CaBaBirrounds in Onen Zonlne Dlstrlcts. Developed camperounds are prolubited m aU Ooen Znninf;Diatricts." SEOTION9..Chapter 8,Article 17,Kaua'i County Code 1987,as amended,is hereby amended as follows: "ARTICLE 17.TIME SHAKING AND TRANSIENT VACATION RENTALS Sec.8-17.1 Liniitations oa Location. Except as provided in this Section,time share units,tune share plans,and transient vacation rentals are prohibited. Sec.&-17.2 Permitted Tinie Share Locations. Subjectto the Umitations contained in Secs.8-17.4 and 8-17.5,time share units and time share plans are aUowed: (a)In hotela in Resort or Commercial Districts;and Proposed Draft BU1 (No.2822) Sec.USE ZONINQ DISTBICT Kesidential Commercial Industrial AQ__0 ^-T to B.e TE-IIT to B-20 BB _CN CQ IL 10 [8-2.4(s)(10)] a-2.4(B)(B)Quarries u [8-2.4(s)(11)]8-2.4feyaoy Recreation velu.de parks v (8-2.4(8).(12)]8-2.4feyftU Religious facilities u [8-2,4(6)03)] S-l.its}(12)UtUity installations u [8-2,4(3)04)]8-2.4CS)(13) Any other use or structure which the Plammig Director finds to be similar in nature to those listed ui this Section and appropriate to the District u (b)In the Resort RR-10 and RR-20 Districts and Multi-FamUy R-10 and R-20 Residential Districts when such districts are located within the Visitor Destination Areas of Po'ipu,Lihu'e,Wailua Kapa'a or Frinceville,as more paiticularly designated on County ofKaua'i Visitor Destination Area maps attached to Ordinance No.436 and incorporated herein by reference.The boundary Unes estabUshed on these visitor destination maps shall be transferred onto the Official Zoning Maps for reference purposes. (c)Time share units and time share plans are prohibited in the R-l,R-2, R-4 and R-6 Residential Districts. Sec.8-17.3 Permitted Locations for IVIulti-Family Transient Vacation Eentals. Subject to the Umitations contained in Sec.8-17.5,mulfei-family transient vacation rentals are allowed: (a)In hotels in Resort or Commercial Districts;and (b)In Resort Districts and Residential Districts within the visitor destuiation areas as more particularly designated on County ofKaua'i Zonmg Maps. fc)Nofrwithstandine the visitor destination area desienation.multi-familv transient vacation reatals are orohibited in the Aericulture District and m the Qpen District. Sec.8-17.4 Tiine Sharing in Projects Located Within Visitor Destination Areas and Hotels in Resort or Coaunercial Districts. If the project in which the tims share unit or time share plan is to be created contains an existing time share unit or time share plan,then time share units and plans shall be regulated according to the terms ofthe project mstruments. If the project in which the time share unit or time shaie plan is to be created is not a hotel and does not contain time share units or time share plans,then such use may be created oiily if such use is explicitly and prominently authorized by the project uistruments,or the project instruments are amended by unanimous vote of the unit owners to explicitly and prominently authorize time sharing.Provided, however,that time share units and time share plans pernutted under this Section shall be Umited to the Visitor Destination Areas described in Sec.8-17.2,and to hotels in Resort or Commercial Districts. Sec.8-17.5 Existing Tinie Share and Multi-FamiIy Transient Vacation Rental Uses. (a)Time Share Units,Time Share Plans,and Miilti-FamiIy Transient Vacation Rentals Existing On or Before September 22,1982,That Ace Not Located in Visitor Destination Areas.Time share units,time share plans,or multi-family vacation rentals existing on or before September 22,1982 that are not located witUn the visitor destination areas described in Sec.8-17.2 may continue as aUowed uses. However,no additional time share units,time share plans,sinele-familv transient vacation rentals.or multi-fanuly transient vacation rentals outside the visitor destmation area shaU be created after September 22,1982.The uses left unimpau-ed by this Subsection shall not be lost by the failure to exercise the use unless it clearly appeais that the use has been abandoned for a period in excess oftwo (2)years.This Subsection shaU not apply to hotels in Resort or Commercial Districts. (b)Time Share Units,Time Share PIans,and Transient Vacation Rentals in Projects Located Within Visitor Destination Areas Existing On or Before September 22,1982.Time share luuts and time share plans in projects existing on or before September 22,1982,and located within areas described in Sec.8-17.3 shall be regulated in accordance with the provisions ofSec.8-17.4. 6 Proposed Draft Bill (No.2822) Sec.8-17.6 Penalty. An owner of any unit which.is operated rn violation of this Article,and/or any other person,firm.,company,association,partnership or corporation violating any provision of tlus Article,shaU each be fined not less than five hundred doUars ($500.00)nor more than ten thousaad doUars ($10,000.00)for each offense. This civil fine may be iu addition to any criminal fines.If any person fails to cease sucli violation withm one (l)month,such person shaU be subject to a new and separate violation for each day the violation contuiues to exist. (a)ActionsbyCountyAttorney.Tlie County Attorney may file a civil action to enjoia any violation of this Article and collect any penalties provided for by this Article. (b)Disposition ofFines.AU fines imposed for violations ofthis Article shall be paid to the Director of Finance to the credit of the Development Fund. Sec.8-17.7 Ainendnients to Visitor Destination Areas Designatlons. Amendments to the location and7or boundaries ofthe Visitor Destination Areas shall be made in accordance with the amendment provisions of Sec.8-3.4 of this Chapter 8,provided that the biirden of proof rests with the appUcant to show upon the clear preponderance of the evidence that the amendment is reaeonable.The criteria for evaluating such proposed amendments shaU be as follows: (a)The proposed amendment is consistent with the General Plan and the Development Plan. (b)The parcel or parcels to be affected by the proposed amendment are suitable for Visitor Destinatioa Aiea uses. (c)TIie availability of existing pubUc services and facilities in the affected areas and whether the requested public seivices and facilities for the proposed change in use can be met without undue burden. (d)The proposed change will conflict with other existing uses in the affected area. (e)The proposed change wiU cause or result in uareasonable air,noise,or water pollution,or wiU adversely affect ineplaceable natural resources. (f)The affected areas contain or are in close proximity to other areae tliat contain: (1)Large numbers of hotel and/or multiple family dweUing units suitable as accommodations by temporary visitors. (2)Lands designated &r Reeort Use on the General Plan or having Resort zoning. (3)Outdoor or conimercial recreational facilities,such as beaches, golf courses,temus courts and other similar facUities. (4)Tourist related commercial facflities,such as gift shops,food stores,recreational equipment and services shops,tour ajid transportation service termmals,restaurants,bars,niglit clubs,cabarets,shoppuig centers, theaters,auditoriums,and other similar facilities. (g)The proposed change will mclude or adversely affect predommantly residential neighborhoods. Sec.8-17.8 Single Family Transient Vacation Rentals. (a)[Notwithstanding any underiying zonuig designation and with]With the exception ofproperties on the National or State Register ofHistoric Places,single family transient vacation rentals are prohibited iii all areas not designated as Visitor Destination Areas. (b)_Notwithstandme the visitor destination area desienatioa.sinele familv tra-asient yacation rentals are orohibited in the Aericulture Diatrict and m the Onen District. (b)Development Standards for Siagle FamUy Vacation Rentals Permitted Within Visitoi Destination Areaa and Holders of Nonconforming Use Certificates. Proposed Draft Bill (No.2822) Development standards shall be the same as those for siiigle family detached dwellings in Secs.8-4.5 through 8-4.8,mclusive,with the following additions: (1)Applicant for a single family transient vacation rental shall designate a contact person or owner s representative who shall be available on a twenty-four (24)hour,seven (7)days-per-week basis.Applicant shall provide the name and contact infoimation to neighbors adjacent to and directly across subject vacation rental,the Planning Department,the Kaua'i Police Department,the Kaua i Civil Defense Agency,and the Kaua'i Visitors Bureau upon issuance of a nonconfonning use certificate or registration number. Owner is responsible for keeping mformation updated with aU agencies. (2)One (1)outdoor sign no larger than one (1)square foot shall be posted in a visible place on a wall,fence,or post immediately mside or on the front boundary of the property where it is easy to see,for the purpose of providing the current Nonconforming Use Certificate number or the Registration Number and the 24/7 phone number.No other signs shall be aUowed and there shaU be no direct illumination of the required sign.The numbers on the sign shall be no smaller than two (2)inches in height. (3)The applicant shall provide a list ofrequirements and Information entitled "For the Safety and Comfort ofYou and Your Neighbors."This shaU provide essential information to the visitor and shall seek to reduce negative impacts on the surroundmg neighborhood.This information piece shall be provided to the Planning Department at time of application and shall be posted in a conspicuous place in the guests sleeping quarters along with a copy ofthe Nonconforming Use Certificate or the Registration Number,whichever the case may be and if required.The list shaU mclude,but not be limited to, suggested curfews,guidance with respect to the character ofthe neighborhood and gatherings and noise,and what to do in cases of emergency and natural disaster. (4)All print and internet advertismg for single family vacation rentals,including listings with a rental service or real estate firm,shall include the Noncon&rming Use Certificate or the Registration Number. (5)A copy of the Nonconforming Use Certificate or the Registration Number,where required,shall be displayed in the back ofthe front door ofthe sleeping quarters. (6)A site and floor plan shall be filed with tbe application. Sec.8-17.9 Registration ofAllTransientVacationRentals. (a)All single family transient vacation rentals,excluding,however,a tune share unit in a time share plan subject to Chapter 514E of the Hawai'i Eevised Statutes,as amended,lawfuUy esdsting in Visitor Destination Areas on March 7,2008 shall register with the Director of Finance on a form prescribed by the Director of Finance no later than one hundred eighty (180)days after March 7,2008.Any new single famUy transient vacation rental,excludes,however,a time share unit in a time share plan subject to Chapter 514E ofthe Hawai'i Revised Statutes,as amended, estabUshed in Visitor Destination Aceas subsequent to March 7,2008 shaU register with the Director of Finance prior to any such use of said rental.AU single family transient vacation rental uses will be subject to Kaua'i County Code Title III, Chapter 5A. (b)No single family transient vacation rental shall operate outside a Visitor Destination Area without a Noncon&Tming Use Certificate obtained under Sec.8-13.10. Sec.8-17.10 Nonconforming Use Certificates for Single Family Vacation Rentals. (a)The purpose of this Section is to provide a process to identify and register those single family transient vacation rentals as nonconforming uses which 8 Proposed Draft Bill (No.2822) have been in lawful use prior to March 7,2008 and to aUow them to contmue subject to obtaining a Nonconforming Use Certificate as provided by this Section. (b)The owner,operator or proprietor of any single fainily transient vacation rental which operated outside of a Visitor Destination Area prior to March 7,2008 shaU obtain a Noncon&rming Use Certificate for single family vacation rentals. (c)No Nonconfortaing Use Certificate shall be issued by the Planning Director unless the use as a single family rental is a legal use under the Comprehensive Zoaing Ordinance and the applicant provides a sworn af&davit and demoiistratea to the satisfaction of the Planning Director that a dweUing unit was being used as a vacation rental on an ongoing basis prior to March 7,2008.The Planning Director,in making the decision,shaU take into consideration;among other thinge,the foUowing guidelines: (1)The applicant had a State of Hawai'i genera]excise tax Ucense and tiansient accommodations tax license for the purpose of the lawful operation of single family transient vacation rentals for a period long enough to demonstrate actual payment oftaxes. (2)That prior to March 7,2008,appUcant had deposits for reservations by tranaient guests in exchange for compensation for use of subject property as a vacation rental. (3)That applicant had transient guests occupy subject property UL exchange for compensation prior to March 7,2008,with a pattern of consistency that evidences an ongoing and lawful enterprise. (d)Applicatione for Noncon&rming Use Certificates for single famUy traasient vacation rentals located on land designated "Agricultiiral"pursuant to Chapter 205 ofthe Hawai'i Revised Statutes shaU be made within sixty (60)days of August16,2010.If an operator as defined under Subsection (c)fails to apply for a Noncon&rmmg Use Certificate within sixty (60)days of August 16,2010,then the Planning Director shaU assess an admmistrative late applLcation processing fee of one tliousand five hundred dollars ($1,500.00)at filing.A Nonconforming Use Certificate may be issued for a single family transient vacation rental located on land m the State of Hawai'i's land use Agricultural District if: (1)It was built prior to June 4,1976;or (2)The applicant has obtained a Special Permit under Hawai'i Revised Statutes,Sec.205-6 which specificaUy permite a vacation rental on the subject property. (A)An appUcation for a Special Permit shall include verification by the applicant that the farm dwelhng unit was being used as a vacation rental on an ongoing basis in accordance with Subsection (c). (B)An application for a Special Pennit pursuant to Hawai'i Revised Statutes Sec.205-6 and Chapter 13 ofthe Rules ofPractice and Procediires of the Plamiiiig Conamission that is deemed complete by the Planning Director must be filed within one (1)year ofAugust 16,2010. Upon completion ofthe application,the Planning Director shaU issue a provisional certifi.cate that will allow the transient vacation rental to operate.The provisional certificate shall be null and void after the Planning Commission or the Land Use Commission makes a decision upon the application. (C)In addition to the Special Permit standards set forth in Hawai'i Revised Statutes Sec.205-6 and Chapter 13 of tbe Rules of Practice and Procedure of the Planning Commission,tlie Planning Comm.iasion may only grant a Special Permit if,prioi to March 7,2008: (i)the property upon which the transient vacation rental is located had a registered agricultural dedication pursuant to the guidQlmes set forth in the County of Kaua'i's Department of Finance Real Property Tax Division Agricultural Dedication Program Rules;(ii)a bona fide Proposed Draft Bill (No.2822) agricultural operation existed,as shown by State General Excise Tax Forms and/oi Federal Income Tax Form 1040 Schedule F filings;or (iii) the Planning Commission finds that the size,shape,topography, location or surroundings oftlie property,or other circumstances,did not allow an applicant to qualify for an agricultural dedication piu-suant to the County of Kauai's Department of Finance Real Property Tax Division Agricultural Dedication Program Rules or inhibited mtensive agricultural activities. (D)If the application for the Special Permit is graiited,then the transient vacation rental operation shall be subject to conditions imposed by the Planning Commission or the Land Use Gommission. (E)If the application for Special Permit is denied,then the Nonconformmg Use Certificate shall not be issued and the transient vacation rental must cease operatiou. (e)The owner,operator,or proprietor shall have the burden of proof in establishing that the use is properly nonconforming based on the following documeatation which shaU be provided to the Planrung Du-ector as evidence of a nonconforming use:records of occupancy and tax documents,including all relevant State ofHawai'i general excise tax filings,all relevant transient accommodations tax fiUngs,Federal and/or State of Hawaii income tax returns for the relevant time period,reservation lists,and receipts showing paynient.Other reliable inforination may also be provided.Based on the evidence submitted,the Planning Director shall determine whether to issue a Nonconforming Use Certificate for the single family transient vacation rental. (f)The PIanning Director shall make avaUable to the public at the Planning Department counter and on the County of Kaua'i website a Ust of all completed appUcations for Nonconforming Use Certificates.Applications deemed completed shaU concurrently be made available to the pubUc.Copies of appUcations shaU also be inade available to the public as pubhc information,as provided by H.R.S. Chapter 92F (the Umform Information Practices Act).Such list shall mclude the names of the applicants and the tax map key number of the parcels which are the subject ofthe applications.The Planiiing Department may physically inspect a single famUy transient vacation rental prior to a Nouconforming Use Certi&cate being issued. (g)The Plaaniag Director shaU prepare an application form which shall be available to the pubhc.If an operator as defined under Subeection (c)faUs to apply for a Nonconforming Use Certificate within sixty (60)days of August 16,2010 the Planning Director shall assess sm administrative late application processmg fee of one thousand five hundred dollais ($1,500.00)at filing.Applications received more than one (1)year after August 16,2010 shall not be accepted and the use of a transient vacation rental shaU be deemed discontinued. (h)The owner or lessee who has obtained a Nonconforming Use Certificate under this Section shaU apply to renew the Nonconfoiming Use Certificate annuaUy on the date ofissuance ofthe Nonconforming Use Certificate. (1)Bach application to renew shall include proof that there is a currently valid State of Hawaii general excise tax license Emd transient accorrmiodations tax license for the nonconforming use and shall be received by the Department prior to the expiration date of a held Nonconforming Use Certificate.Failure to meet this condition will result in the automatic denial ofthe application for renewal ofthe Nonconforming Use Certificates. (2)Upon renewal,the Planning Department may initiate re-inspection ofproperties for compliance with other provisions ofthis chapter, or other pertinent land use laws,and may withhold approval of a renewal application and issue cease and desist notices to the applicant until aU violations have been resolved to the satisfaction of the Planning Director. 10 Proposed Draft Bill (No.2822) (3)The applicant shall pay an annual renewal fee of seven hundredfifty dollars (750.00)which shall be deposited into the County General Fund. Sec.8-17.11 Enforcetnent Against Illegal Transient Vacation Rentals. (a)In addition to other penalties provided by law,including,but not Umited to,Secs.8-3.5(a)aad 8-17.6,the Planning Commission Rules,as amended,the Planning Du-ector,or any memlier of the public who has didy obtained standing piirsuant to rules promulgated by the commission,may initiate proceedm.gB to revoke or modijfy the terms of a Nonconforming Use Certt&cate pursuant to the Rules of Practice and Procedures of the Planning Commission,as amended.Violations of coaditions of approval or providing false or misleading information on the application or in any information relatiag thereto at any time duriag the application process shall be groiuids for revocation or ceaae and desist orders. (b)Advertising of any sort which offers a property as a tranBient vacation rental shall constitute prima facie evidence of the operation of a tranaient vacation rental on said property and the burden ofproof shall be on the owner,operator,or lessee to establish that the subject property is not being used as a transient vacation rental or that it is being used for such purpose legally.If any unit is found to be operating unlawfully,penalties established in Secs.8-3.6(a)and 8-17.6 shall apply. Sec.8-17.12 Historic Properties Exeinption. Single family dweUing units on the National or State Register of Historic Places may be allowed to operate as a transient vacation rental through a Use Permit and by ablding by the development 8tandards speci&ed in Sec.8-17.8(b). SECTION 10.Kanyprovisionofthisorduiance,orthe applicationthereof to any person or circumstance,is held invalid,the mvalidity does not affect the other provisions or applications of this ordinance that can be given effect without the invaUd provision or application,and to this end the provisions of this ordinance are severable. SECTION 11.Ordmance material to be repealed is bracketed.New ordinance material is underscored.When revising,compiling,or printing this ordinance for inclusion in the Kaua'i County Code 1987,as amended,the brackets, bracketed material,and underscormg shall not be uicluded. SECTION12.This Ordinance shall take effect upon approval.The requirements of this Ordinance shall not affect any application which has been approved by the Commission prior to the effective date ofthis Ordinance,unless there is a subsequent approval required prior to a building permit,in which case,that subsequent application shall be subject to the relevant requirements of this Ordinance,excludmg subdivisions which have received tentative approval prior to the approval date of this Ordinance. Introduced by: ?^ LUKE A.EVSUN DATE OF INTRODUCTION: MASON K.CHOCK Lihu'e,Kaua'i,Hawai'i V:\BILLS\2020-2022 TEEMVAgOpen-no TVK D6 AMK_dmc.docx 11 Proposed Draft BU1 (No.2822) Julyll,2021 To the Kaua'i PlanningCommission 1 write in strong support ofBill 2822.This bill is timely.Our island is now bustlingagainwiththe influxofvisitors returning and the new residents that have been relocating here as a safe haven duringCovid.The island'sinfrastructure hasalready been stressed and now more than ever.A plan for controlled and conscious growth has never been timelier. This bill is well thoughtout and proposesa viable and balanced plan forthe preservation ofour precious natural resources,our dailyway of life and the improved infrastructure that assures ease in navigatingour roads and attractions.The bill creates a balancedapproachto planneddevelopmentwhere appropriate. 1 ask you to please vote in favor of Bill 2822. Regards,Roberta Jones 808-639-8266 PO box414 Kilauea,HI 96754 =-9.«.l ^\4 202^ FROM:HONOLULU CIVIL BEAT FRIDAY 07/09/2021 COUNTV !T~KAUAI As visitors return to islands in full force,many local residents are fed31p wll)th1ftieAU :07 negative effects of tourism. PLAHN'NG DEPT. The flood of travelers has made problems like traffic jams,overcrowded beaches and illegal parking all the more noticeable. Now,each of the counties is tackling overtourism issues in its own way. Kauai is considering a new visitor parking fee at overcrowded beaches.The Hawaii County Council recently weighed the pros and cons of defunding Big Island tourism promotion. And last week,the Maui County Council adopted a ban on new hotels in south and west Maui,prohibrting new building permits for visitor accommodations in these areas for up to two years. The changes come as the Hawaii Tourism Authority faces a big budget cut—and shifts its focus to managing tourism instead of just marketing Hawaii to the world. The preceding article will serve as an introduction to my own following PERSONAL OBJECTIONS AND CONCERNS 1.How does the proposed increase in density benefit in any way,our local island housing crisis?With a shortage of affordable housing on Kauai and throughout Hawaii,why are contemplating an actual increase in numbers of pricey resort lots? 2.Will speculative "Ohana"dwellings be allowed on these lots? 3.How will the increase in density affect car traffic in the surroundinR areas? Resort guests presently staying at the Royal Sonesta Kauai Resort,The Marriott Vacation Club,the Resort's Staff,as well as the Pali Kai cottages_r "~r~r^r^T:^^ SEP 1 4 2021 Rice Street are easily backed up,with one car at a time attempting to get ontothe main road. 4.What access and service roads are being proposed in conjunction with this proposal.A change in the nature of the density should be considered.A hotel parking lot is not the same as a subdivision with individual garages and driveways.Have solutions been offered?If so,can the public and affected area residents see it? Kalapaki Circle Road,which is presently underTimbers/Hokuala responsibility is in serious disrepair.Before we contemplate approving more traffic.Are there any plans to repair or improve Kalapaki Circle Road, and other existing access roads?Will parking for beach access,localand Pali Kai residents be taken into consideration and preserved? In closing, 1 am of the opinion,that given the current living climate,and with respect to the future quality of life on Kauai,it would be senseless and irresponsible to approve a development,which has for primary purpose,the satisfying of a big investor's appetite.The leadership of Kauai should instead have the courage to put an immediate freeze on all future developments.The citizens of Kauai will recognize in you a strong sense of responsibility. Here is an exhort from an article in the Garden Island Newspaper from last Wednesday,July 07,2021,written by Mr.Gary Hooser. "To be clear,north,south,east,and west —the push to build new and expand existing zoned resort properties will only grow under the pressure ofvisitor numbers that increase daily.In Princeville,we already have resort "glamping"that is on the table.In Kapa'a there are several hotel sites situated makai of Longs/CVS.And there is that elephant in the room,the property formally known as the Coco Palms Hotel and,yes,its time has definitely passed.Moving through Lihu'e,Kalapaki,all the way to Koloa,Po'ipu,and the far West —laree landowners are chafine at the bit to both expand existLne resort properties and develop new ones. Given the existing strain on highways,sewer and water infrastructure,not to mention our parks and natural environment —it makes no sense at all to permit any further hotel or resort construction on Kaua'i until,as a community,we figure this out." Thank you for your time 5 S.Kamal Salibi 3211 A Kalapaki Circle,Lihue HI 96766.808-639-0770 Duke Nakamatsu From: Sent: To: Subject: Val Owen <valhanalei@gmail.com> Mondayjuly 12,2021 9:51 AM Planning Department Planning Commission Bill 2822 CAUTION:This email originated from outside the County ofKauai.Do not click links or opcn attachments cvcn ifthc scnder is known lo you unless it is something you were expecting. Planning Commission,County ofKauai c/o Planning Dcpartment 4444 Rice Strcct,Suite A473 Lihue,HI96766 Email:planningdepartment(%kauai.eov FAX:(808)241-6699 RE:BILL 2822 Aloha Commissioners, I/we are writing in support ofliill 2822 which is currently sct on the Agcnda for thc 1'lanning Commission s Mecting on July 13,2021. This Bill makes important changes to the dcfinitions ofdcveloped campgrounds"and "undeveloped campgrounds"under Section 8 ofthe CZO relating to transient accommodations.I/we strongly believe that commercial developcd campgrounds should NOT be allowcd on Open zoncd land and should only be allowcd on land zoned for commercial or resort usc. Opcn Spacc is the most valuable asset ofour bcautiful island and the protection ol our cnvironment,our communities,the magnil'icent vistas ofKaua'i,and our qualily oflifc is one oflhe most important mandates of the government. I/wc respectfully request that you vote to pass Bill 2822. With aloha, Valerie &Austin Owcn 4846 Emmalani Drive Princevile,IIi 96722 Interisland Vacation Concepts Ponokai Rcsorl Hanalei Bay Rcsort Makai Club &Cottages ¥=•3.^.^ SEP 1 4 2021 Duke Nakamatsu From: Sent: To: Subject: Douglas Ludolph <d-cludotph@attnet> Monday,July 12,2021 9:56 AM Planning Department Fw;Bill 2822 CAU1ION:'I'his email originated from outside the County ofKauai.Do not click links or opcn attachments even ifthc sender is known to you unless it is somcthing you were expccting. Planning Commission,County ofKauai c/o Planning Deparlment 4444 Rice Street,Suite A473 Lihu'e,III 96766 Email:plamiingdepartment@kauai.gov FAX:(808)241-6699 RE:BILL 2822 Aloha Commissioners, We are writing in suppori ofBill 2822 which is currently sct on the Agenda for thc Planning Commission's Meeting on July 13,2021. 'l'his Bill makes important changcs to the delinitions of'developed campgrounds"and "undcvclopcd campgrounds"under Section 8 ofthe CZO rclating to transient accommodations.We strongly bclieve thal commercial developed campgrounds "SHOULD NOT"be allowed on Opcn zoncd land and should only be allowcd on land zoned for commercial or resort use. Open Space is thc most valuable asset ofour bcautiful island and the protection ofour cnvironmcnt,our communities,the magnificent vislas ofKaua'i,and our quality oflife is one ofthc mosl important mandates of governmenl. I/we respectfully rcquest that you vote to pass Bill 2822. With aloha, Doug &Cheryl I.udolph 5108 Kuhina Place Kauai F-^-^4- SEP \4 2021 Duke Nakamatsu From: Sent: To: Cc: Subject: Jessica Schilling <jessicaschilling808@gmail.com> Monday,July 12,2021 10:00 AM Planning Department Jessica Muffett Schilling Support for Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even ifthe sender is known to you unless it is something you were expecting. Planning Commission,County of Kauai c/o Planning Department 4444 Rice Street,Suite A473 Lihu'e,Hl Aloha Commissioners, 1 am writing in support of Bill 2822 which is currently set on the Agenda for the Planning Commission's Meeting on July 13,2021 This Bill makes important changes to the definitions of "developed campgrounds"and "undeveloped campgrounds" under Section 8 of the CZO relating to transient accommodations.We strongly believe that commercial developed campgrounds should NOT be allowed on Open zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island and the protection of our environment,our communities, the magnificent vistas of Kaua'i,and our quality of life is one of the most important mandates of government. I respectfully request that you vote to pass Bill 2822. With aloha, Jessica MuffettSchilling 5301 Ka Haku Road #215 Princeville Hi 96722 Sentfrom my iPhone r^.^9 SEP 1 4 2021 Duke Nakamatsu From: Sent: To: Subject: Carolyn Knepper <kneppercarolyn@gmail.com> Monday.July 12,2021 11:11 AM frandyhome@gmail.com;Planning Department Fwd:Glamping CAUTION:This email originated from outside the County ofKauai.Do not click links or open attachments evcn if the sender is known to you unless it is something you were expecting. From sam(%knepr.com I strongly opposc glamping in Princeville.I support bill 2822's purpose ofprotecting open space and other designated zoned areas from developed campgrounds (glamping). Glamping would overburdcn traffic and infrastructure to notjust Princeville but the entirc island.Sam Knepper 3692 AIbcrt Rd Princeville,Hi 96722 SamfSlknepr.com .^.to ^P \4 2021 Duke Nakamatsu From: Sent: To: Subject: Carolyn Knepper <kneppercarolyn@gmail.com> Mondayjuly 12,2021 11:05AM frandyhome@gnnail.com,·Planning Department Glamoing CAUTION:This email originated from outside the County ofKauai.Do not click links or open attachments cven ilthc scnder is known to you unless it is something you were expecting. I strongly oppose glamping in Princeville.I supporl bill 2822's purpose ofprotccting open space and other designatcd zoned areas from developcd campgrounds (glamping). Glamping would overburden traffic and infrastructure to notjust Princeville but the entire island.Carolyn Knepper 3692 Albert Rd Princeville,IIi 96722 Kneppercarolyn@gmail,com -r.3 (\n SEP 1 4 2021 Duke Nakamatsu From: Sent: To: Cc: Subject: Jlll Landis <hulagal@hawaiiantel.net> Monday.July 12,2021 11:45AM Planning Department contact@soshui.org Supportfor Bill 2822 CAUTION:This email originated from outside the County ofKauai.Do not click links or open atlachmenls cven ifthe sender is known to you unless it is something you were cxpccting. Planning Commission,County of Kauai c/o Planning Department 4444 Rice Street,Suite A473 Lihu'e,Hl 96766 RE:BILL2822 Aloha Commissioners, We are writing in support of Bill 2822 which is currently set on the Agenda for the Planning Commission's Meeting on July 1 3,2021. This Bill makes important changes to the definitions of "developed campgrounds"and "undeveloped campgrounds"under Section 8 of the CZO relating to transient accommodations.1/we strongly believe that commercial developed campgrounds should NOT be allowed on Open zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island and the protection of our environment, our communities,the magnificent vistas of Kaua'i,and our quality of life is one of the most important mandates ofgovernment. We respectfully request that you vote to pass Bill 2822.Please.Save our open spaces.1 think the road closure on the Hanalei hillside has proven our island,especially the North Shore is already overly impacted by development and tourism.Enough is enough in Princeville. Vote as ifthis development was going in behind your own home. With aloha, Jill and Steve Landis 4484 Pilikoa Street Hanalei,Hl 96714 hulagal@hawaiiantel.net 1^3 ^ SEP 1 4 2021 Duke Nakamatsu From: Sent: To: SubJect: Attachments: Anabella Bruch <abruch@gmail.com> Monday,July 12,2021 12:47 PM Planning Department Bill 2822 -HFUU-Kauai Chapter Letterto Planning Commission Bill 2822 HFUU Kauai.pdf CAUTION:This email originated from outside the Counly ofKauai.Do not click links or open attacliments even ifthe sender is known to you unless it is something you were expecting. Aloha Planning Commissioners, The Kauai Chapter of Hawaii Farmers Union United requests that the commission defer adoption of Bill 2822's proposed prohibition of developed campgrounds on Agriculture zoned parcels.We believe that this issue needs further study for its potential impact on Kauai farmers ability to potentially house temporary agricultural workers. We believe that the Commission is aware that productive farming on Kauai grows more difficult every year,with the rising cost of housing,labor and other agricultural inputs,and that the ability to provide temporary housing for temporary and permanent laborers is essential to family farmers.We would ask the committee to consider where camping would be placed now and,in the future,if not on agricultural zoned land. Far from the farm in the Urban district?How does it make economic sense to develop temporary housing options for ag workers in the most expensive zoned districts on the island?The ability to provide some form of housing for some of the most economically disadvantaged workers in one ofthe lowest paying industry on the island provides housing for people that will be potentially forced into the homeless compounds that are spreading everywhere on the island,and further erode the ability for farming to continue in one of the most expensive real estate markets in the country. We ask that Bill 2822's prohibition on camping in the Ag district be deferred until a working program can be developed that can make this housing option safe,affordable,and subject to county ordinance. We would respectfully remind the Committee that some of the top priorities of the General Plan Update include the desire to maintain the rural character of the island,to support agriculture,provide affordable housing and maintain open spaces.These are primary services that working agriculture provides.The prohibitions proposed,while well meaning,directly impact the ability to maintain successful agriculture on Kauai,and deserve further study before embedding the prohibition in ordinance. Respectfully submitted, Mahalo and Aloha, HAWAII FARMERS UNION UNITED -KAUAI CHAPTER Anabella Bruch,President Virus-free.www.ava.com r.-z.^ SEP 1 4 2021, Vincent Mina State President Anabella Bruch Vice-President Kauai Reba O'Day Treasurer Maui Maureen Datta Secretary Kona,Hawai'i Eric (Drake)Weinert,Jr. East HawaJ'i Reba O'Day Haleakala,Maui Matthew Van Paepeghem Hana,Maui Matthew Drayer K'au,Hawaii Anabeila Bruch Kauai Dash Kuhr Kohala,Hawai'i Maureen Datta Kona,Hawai'i Kaipo Kekona Lahaina,Maui Robert (Bobby)Pahia Mauna Kahafawai,Maui Brynn Foster North Shore,Oahu Steve Lund Puna,Hawai'i Christian Zuckerman Wai'anae,Oahu Vincent Kimura Waimanalo,Oahu [!il<DK)iBiin [?siiriir(ii@frs [Uliiiinoiiii [ttntt®^ Kaual -oahu .Mololtal -Maul •MaMall Aloha Planning Commissioners, The Kauai Chapter of the Hawaii Farmers Union United requests that the commission defer adoption of Bill 2822's proposed prohlbition of developed campgrounds on Agriculture zoned parcels.We believe that this issue needs further study for its potential impact on Kauaifarmersabilityto potentially housetemporaryagriculturalworkers. We believe that the Commission is aware that productive farming on Kauai grows more difficult every year,with the rising cost of housing,labor and other agricultural inputs,and thattheabilityto providetemporaryhousingfortemporaryand permanent laborers is essential to family farmers.We would ask the committee to consider where camping would be placed now and,in the future,if not on agricultural zoned land. Farfromthefarm in the Urban district?How does it make economicsense to develop temporary housing options for ag workers in the most expensive zoned districts on the island?The ability to provide some form of housing for some of the most economically disadvantaged workers in one ofthe lowest paying industry on the island provides housing for people that will be potentially forced into the homeless compounds that are spreading everywhere on the island,and further erodethe abilityforfarmingto continue in one of the most expenslve real estate markets in the country. We ask that Bill 2822's prohibition on camping in the Ag district be deferred until a working program can be developed that can make this housing option safe,affordable, and subject to county ordinance. Wewould respectfully remind the Committee that some ofthe top priorities ofthe General Plan Update includethedesireto maintain the ruralcharacterofthe island,to support agriculture,provide affordable housing and maintain open spaces.These are primary services that working agriculture provides.The prohibitions proposed,while well meanlng,directlyimpactthe abilityto maintain successful agricultureon Kauai,and deserve further study before embedding the prohibition in ordinance. Respectfully submltted, Mahaloand Aloha, HAWAII FARMERS UNION UNITED -KAUAICHAPTER /<)lt^6i£&i-0'LitcA, Anabella Bruch,President The Hawai'i Farmers Union iiniied andits Chapters are a mnprofif corporafion formed under Hawai'i taw anct Section 501(c)(5)ofthe Infernal Revenue Code.HFUU advocates for the sovereign righf offarmers to creale and sustain vibranl and prosperous agriculfwal wmmunities foi Ihe tienefit ofatl t-iawai'i through cooperation,education and legisiation.Because 1-tFUU is an agiicultwal advocacy organization,donations to it are not tax dediictible. Rcvised 2/2021 Duke Nakamatsu From: Sent: To: Subject: Attachments: EmJly LaFave Olson <emilyolson7@gmail.com> Monday,July12,2021 1:08 PM Planning Department Bill 2822 -support Open Zone defer Ag Zone discussion Letter to Planning for Bill 2822.pdf CAUTION:This email originatcd from outside the County ofKauai.Do not click links or opcn attachmcnts even ifthe sender is known to you unless it is something you wcre expecting. Aloha, Please see letter attached in regards to Bill 2822. Mahalo, -Emily Olson ^.^.^.10 SEP 1 4 2021 r^oad Aloha, My name is Emily,and 1 am actively seeking significant private fundraising for a community land trust to address community-first housing solutions integrated with agriculture.These solutions include utilizing developed campgrounds on ag land,and thus,1 respectfully ask for the Use Permit designation forAg Zone to be continued in Bill 2822.Diversified farming and our vulnerable,cultural communities need the full support ofthe 'aina as increasing numbers of people are being displaced from housing.When we weave together housing solutions with regenerative agriculture,La'au Lapa'au Medicinal and Native Hawaiian Gardens we can reconnect and healour most vulnerable community. My motivation for building solutions on Kaua'i is grounded in my purpose and kuleana for transformative 'aina-based healing,and also from personal experience in Maryland with my own sister being among those needing this level ofsupport.Way Station in Frederick,Maryland is the specific proj'ect which supported her transition from nearly homeless with mental challenges to stable moving to productivity.Though 1 see that without connecting to 'aina,the program missed that essential piece for embodied mental and spiritual healing,and true alignment of oneselfwith the ecosystems we are inextricably a part of. Currently,my family's businesses,Holey Grail Donuts and Rainbow Road ice cream are based on cultivating Kaua'i-grown agriculture (taro,ulu,coconut)for retail and growing to multiple locations off island.We have direct experience in creating export quality products working with the agriculture sector,specifically regenerative farms,backyard gardeners,and agroforestry systems.We see the inspiration and health ofthe food producers,even if living at humble levels of income. As a Princeville homeowner not on the golf course,1 support the removal of improved campgrounds on Open Space as the retention basin aspects are critically important to our whole neighborhood. Please support Bill 2822 for removal of permitted improved campgrounds on Open Space at this time,and again 1 kindly ask for the Use Permit designation forAg Zone to be continued in Bill 2822. Mahalo, -Emily Olson Duke Nakamatsu From: Sent: To: Subject: Betsy Lis <betsylis@yahoo.com> Monday.July 12,2021 1:13 PM Planning Department Support Bill 2822 CAUTION:This email originated from outside the County ofKauai.Do not click links or opcn attachmenls even ifthe sender is known to you unless it is something you wcre expecting. Aloha - Please count my voice among the many in favor of Bill 2822 protecting open space (and other designated zoned areas) from development,camping or otherwise. My concern is the proposed "glamping"development on holes 1-3 of the Woods course in Princeville. 1 pass this location daily and see many,many nenes using this open area to nest and raise their young. Due to their "severely endangered"status,I would think any development in or near their chosen habitat would be federally illegal and generally just wrong. Thank you for reading my testimony in support of Bill 2822. Mahalo, Betsy Lis 635-6532 IF.^.^.Il. SEP 1 4 2021 SOF-XI KAUAI PV GOLF, L.P.c/o Starwood Capital Group 591 West Pulnam Avcnue Greenwich,Conneclicut 06830 July 12,2021 VIA E-MAIL Kauai County Planning Commission 4444 lUce St,Lihue,HI 96766 I,ihue,HI 96766 Re:Proposcd Draft Bill No.2822 Testimony This letter is submittcd in opposition to Proposed Draft Bil]No.2822 -A Bill For An Ordinance Amending Chapter 8,Kauai County Code 1987,as amended,Relating to Transient Accommodations ("Bill"). SOF-XI KAUAI PV HOLDINGS,LP and its affiliate entitics ("Owner")have becn actively engaged with the Princeville community and The Princeville at I'lanalei Community Association (PI1CA )in an efFort to work through mitigation commitments and to achieve a rcasonable and mutually beneficial approach to its proposed Developcd Campground projcct in Princeville.It is clear that this Bill is in direct responsc to our proposed Developed Campground project. The Owner is in the process of applying for land use permits for fifty (50) Devcloped Campground sites on a portion of Lot 7,further described as Kauai Tax Map Key No. (4)5-4-006:003.Thc proposed Dcvcloped Campground site presently contains I-Ioles 1-3 ofthe Princevillc Makai Woods Course ("Woods Course"). 'I'he proposed Bill seeks to eliminate Dcveloped Campground uses from tlw Open District tablc of uses allowed with a use permit,even where the use is within the State Land Use Commission Urban District and the County Visitor Destination Area ("VDA")as is our case.Such a broad sweep to remove an allowed use with a use permit within thc SLUC Urban District and the VDA is clearly contrary to the policies set forth in thc 2018 General Plan Update to concentrate transient accommodations within thc VDA overlays throughout the Island. With regard to the proposed Developmcnt Campground in Princeville,thc Owner is currently engaged with the PHCA to establish a community enhancemcnt package for the Princeville community as well as to take mitigative measures to reduce impacts to the adjacenl SOF-XI KUAI PV GOLF,LP IT3.tt-\'t SEP 1 4 2021 propcrly owners.1 he Owncr has offered the following community bcncfits package: 1.The dcdication ofthe remaining Makai Course and IIoles 4-9 ofthc Woods Course for golf usc and/or park use only.The Owner offered lo imposc a deed restriction to limit the use and type ofstructures that support golfand/or park opcrations. 2.The dedication of thc Project arca (Iloles 1-3 of the Woods Coursc)for thc Dcveloped Campground uscs,golf,park,and open space only.No othcr uses or structures shall be peiTnitted,unless associated with the aforementioned uses. 3.The Owner has offered to make a one-timc monctary contribution to support the P1-1CA in its efforts to cxlend and/or improve thc Princeville community's shared-usc path along Ka Haku Road or construct a new path from the Makai Course to the Princeville Shops over a portion ofHoles 4-9 ofthe Woods Course. 4.The Owner has proposed quiet hours associated with the Developcd Campground site shall bc maintained and enforccd between thc hours of 10:00 p.m.and 6:00 a.m.The operator ofthe Devcloped Campground sitc will not provide televisions or speakers in the units to minimize noise impacts. 5.Lastly,the Owner has committed that all fire-related fcatures shall use natural gas or liquid propanc as fuel.Wood and/or coal-based fucls shall not bc pcrmilted. Rather than legislating against the proposed Projcct,we request that Ihe Planning Commission adopt through mitigation clements associated with Devcloped Campground projects, such as those noted above.Such an approach would allow thc Planning Commission to set standards for the use rather than taking an overly broad approach of removing a use that has been in the CZO sincc its inception.Furthermore,the Owner and its representatives arc willing to continue meeting with community membcrs and Planning Department staff as a working committee to establish such standards for any Devcloped Campground use in the VDA. AttachedforyourinformationisaFAQSheetprovidedtothe Princevillecommunityduring one of our community outreach mectings,which dcscribes thc Owner's proposed Developed Campground project. We appreciate the opportunity to testify regarding this Bill and request that the matter be amendcd to allow Developed Campground projects as a use allowed with a use permit when such projects arc located within the SLUC Urban District and the VDA.Alternativcly,we request that the matter be deferred for further evaluation to address the distinction oftransient accommodation uses in the Open District and in the SLUC Urban District with a VDA ovcrlay.This will hclp to ensure the Bill is consistent with the 2018 General Plan Update,which encourages transient uses in thc VDA. SOI'-XI KUAI PV GOLF,LP Rcgards, SOF-XI KAUAI PV HOI.DINGS,I.P A Delaware Limited Partnership ':Jason M.Cruce Its:Vice President Date:July 12,2021 Attachments:HanaleiGlainping_2021051 8_Final.pdf SOF-XI KUA1 PV GOLF,LP CAPITAL GROUr Glamping Noun A form of camping involving accommodation and facilities more luxurious than those associated with traditional camping. Starwood Capital GroupOWNER LOCATION s^^?s''.f §^^?^t^^'.^Holes 1-3,Woods Course Princeville Makai 50 luxury glamping tents,arrival pavilion,grab-n-go cafe,fltness center expansion DESCRIPTION SH Hotds and Resorts East West Partners Hart I-Iowerton OPERATOR DEVELOPER ARCHITECT COMMUN1TY Direct and indirect job creation, charitable program development additional tax revenue,enhanced community amenities,preservation of open space wassse:sw£ east west partners This documcnt was prcparcd by Stai-wood Cipital Group/East Wcst Partncrs.Informition containcd hcrcin docs not rcprcscnt thc opinion of thc PHCA and is intcndcd for mformation.il purposcs only. ALOHA PHCA MEMBERS,CAP1TAL GROUP We are pleased that the PHCA staff and Board of Directors have offered us the opportunity to reach out to you about the luxury glamping concept that Starwood Capital Group (SCG)and East West Partners have been exploring.Over the past year,we've talked with neighbors to present the project and hear their thoughts about glamping in Princeville.Mahalo to everyone we^ve talked with thus far.We have incorporated much of what we have heard from you into our design,program,and operation.The plan 1s greatly improved as a result of the thoughtful response we have received from you.Your contlnued mput and feedback are greatly appreciated. We're writing to share more information,answer frequently asked questions,and provide the latest conceptual plan from our design team at Hart Howerton.We are available to answer any questions and encourage each of you to reach out whenever useful. LATEST UPDATES AND DETAILS •Golf Course Dedication.Starwood is willing to dedlcate the remainlng golf course lands,in perpetulty,to golf use only in exchange for PHCA support of glamping on Woods Course holes 1-3.Please review the May 1,2021 letter to the PHCA board outlining our proposed agreement. •Site Plan Revislons.Development of an updated site plan (attached).A few items to note: 1.The new proposed plan incorporates a natural passive open space,increasing the distance between the adjacent homes and the glamping tents.A dense landscape buffer has been introduced to ensure the privacy of all. 2.The organic farm and orchard concept has been abandoned and converted to open grasslands and passive lawns. 3.In order to ensure as peaceful of an environment as possible for the community and our guests,activity pavilions and spa tents have been removed from the program and commercial activities will be supported on the existing Makai commercial parcels. •Ongoing Community Support.All guests staying at the 1 Hotel Hanalei Bay and glamping resort will be requested to make a voluntary donation to be contributed to local organizations active on the North Shore. •Fitness Improvements.The current fitness center at the Makai Clubhouse will be enhanced and offer a covered outdoor area,improved pool and deck,and a flat lawn for group fitness classes.Kama'aina rates will be offered. Dining.A grab-n-go outlet will be provided for guests at the Arrival Pavilion. eastwest partners This documcnt was prcparcd by St.ii-woocl Capitii)Group/East Wcst Partncrs.Information containcd hcrcin docs not rcprcscnt thc opinion of thc PHCA and is intcndccl for inform.itional purposcs only, CAPITAL GROUF •Expanded Path Network.The communlty walking paths leading to the new 1 Hotel will be improved to provide a more seamless walking experience.SCG will make a contribution to the PHCA to develop new paths wlthln the community. GOLF COURSE BACKGROUND The golf course has struggled for many years to be financially solvent,and previous owners have considered discontinuing its operations and/or selllng the land.SCG is interested in using a portion of the course for glamping,which allows the property to generate revenue and continue golf operatlons in the other areas of the property.Glamping development provldcs for a low-density and low-impact approach that is less obtrusive than single-family home development while helping to sustain the economic viability of the Makai course. Financial solvency is critica]if the golf course is to contribute to the local economy in a meaningful and sustained way. CONCEPT OVERVIEW The glamping site will host 50 tents and associated amenities to maximize the natural beauty of Kaua'i,while implementing sustainable,leave-no-trace practices.Tents will feature all the comforts of a 5-star resort,from modern restrooms to luxury bedding.The glamping umts wlll be supported by and have access to all the amenities of the 1 Hotel Hanalei Bay down the street.By utilizing the in-place infrastructure of the hotel,we have been able to lessen our footprint and provide a more efficient operation. GLAMPING COMMUNITY BENEFITS Sustainability.Glamping accommodations are lower impact on the environment and more focused on sustainability than traditional golf use. Jobs.The project and amenitles,as well as the construction of the site,will provlde economic opportunities for local workers and business owners.New jobs will be created for residents,beyond what is needed for 1 Hotel Hanalei Bay,which will also service the glamping site.In addltion to the direct employees of the glamping operation,the development of the project will also result in a number of construction jobs for local contractors and sub-contractors. Local Community Support.We are working with the operator to cstablish a donation fund that will be donated annually to North Shore organizations. Aligned Recreational Values.Glamping appeals to a wide-ranging demographic who seek sustainable,unique natural experiences.Glamping will encourage the next generation to fall in love with,recreate at,and ensure a thriving Princeville for years to come.east west partners 'l'his documcnt was prcparcd by Starwood Capital Group/East Wcst Partncrs.Inform,ition containcd hcrcln (iocs not rcprcscnt tlic opinion of thc PHCA and 1s intcndcd for inform.itional purposcs only. CAP1TAL GROUP VISUALS Included in this document are the latest conceptual site plans.For those of you who have seen the original version,you'll see that we've incorporated your feedback to create a glamping site which is good for glampers and adjacent homeowners alike. WHAT'S HAPPENING NOW While this letter marks the completion of our initial community outreach effort,we look forward to continuing discussions with neighbors and other community members.We are working with the PHCA Board to provide certainty regarding the broader commitments we are making to the community and completing the Use Permit Application.We plan on submitting the Use Permit application to the County of Kauai Planning Department on May 17th,and plan to continue engagement with the PHCA Board and community to finalize our plan. CONTACT US ANYTIME Please coniact us if you have any questions or would like to receive more information.We appreciate your Interest in the project and we'll keep you upclated at the monthly PHCA meetings. Thank you to the PHCA staff and Board of Directors for continued opportunity to reach out to the entire membership.We look forward to ongoing collaboratlon. Mahalo, Jason Cruce,Starwood Capital Group icruce@starwood.com Mark Hall,East West Partners mhall@ewpartncrs.com east west partners This documcnt was prcpared by Stitm'ood Capltal Group/E.ist Wcst Partncrs.Information containcd hcrcin docs not rcprcscnt thc opinion of thc PHCA and is intcndcc!for infurmational purposcs only, Current Glamping Masterplan A passive open space has been introdwed along the existing thsrd fairway inchdlng a landscaped buffer to minimfze the imapct to homeowners.Ad{fstsona!!y,commerda!programmmg has been reduced. east west partners Dcsign rcpKienuliona arcconcepiual and fonhc purposcs ofpl.inningapprovals onlyaiid subject to aluniion prior 10 submissiun. This liocumcni wji prcparcd by Si^wood Cipit.il Group/KasL Wcsi Partncrs.[nfornution conLiincd hcrcin'jocs not rcpresmt ihc opinion of [hc PHCA ,ind is mtcndcd for informatioiMl purposei only, LEGEND #Spac&s Arrlval Pavillon 1 Arrival Entry 2 Shuttte Pick-Up /Dr^p-Off 3 Nnw Pcdcst^.in Ptith fytGucst/Va^t 4 Arfivyl Pyviliun Drup-Off ^Lobby Loungfi /ChRck-lii (Open Priviiinn) ^Entry Garden f V^let /Office /Piri?Ccintrol /IT ft Ciuest Restrooii-is 9 ^/."J"/Luy9a9y SlorHye / Bftt Storaye/EnifJloyey B^tliruunis 10 Grah &Go/Paitlry ^t-1anrlicflp Ramp 12 Cart Staging ^WoQdft?tfDr<nB Fire Pit uiider Canopy Trpe I4 ActivilyLtiwii >5 Guost C.-irt Pick Up 'A Sc'rvicc'Cart Palh 17 NcwC.trtPtilh 18 Nc'w Cdrt StiiyinEj Ai(-'<i ^Reifnnve Eiijsfiny Cart Ptiih in this arca 20 New Pcde^tri^n Piith tfl Tents 21 To Tents Fitness/Pool A Expancl Existing Pool Df?ck B New Li»''dsc^peAreii -Lawri/Saitd C-Now Pppl Funcc'(w/Pliintiiiy on botli sidcs) p NPW Yoy<i Pflvilion - Non.mn flitinnRd (1,200 SF; G Ncw Fitfie&s /Yogn Liiwn H New Guest Access P^th j <E)Luau /Pusbible Foud TrLick ^toyiiig K Existing PRO> L Exrsling Fitncss Pavillon j^EKisilnrj Piithrocim Renoviition |?er Code ReqLjirf'nei'it N E^i&tiny Pool Mccl*>.Rooin CAPITAL GROUP 21 Proposed Commercial Area Layout A smaller scale arrivafs pavillion utilizing existinggolfcourse infrastructure is no'w p]Anned afong with an expansion of the present day fitness center.Membershsps to the updated fkness center W)H remain available to the community. east west partners Dcsign represcntitlona arc conccptu.tl and for the purposcs of planning approvals only and subjcct to .iltcr.ition prior to submission. This docunicnt was prcparcd by Starwood Capital Group/East Wcst Partncrs.Informatlon contiiincd hcrcin docs not rcprcscnt thc opinion of the PHCA and is intcndcd for informational purposcs only. CAPITAL CftOUP l' Arrival and Fitness Conceptual Design Conceptual renderings ofthe Arnv^s PaviHon (top image)and expanded Fitness Center (bottom imsge).The Arnva/s Paviiion serves as the conimuna/area and transfer point for glampers to access 1 Hotef Hanslei Bay. east west partners Dcsign rcprcscntationa arc conceptual and for ihc purposcs of planning approva.ls only and subjcct to altcration prior to submission. This documcnt was prcparcd by Starwood Capital Group/East Wcst Partncrs.Information containcd hcrcin docs not rcprcscnt thc opinion of thc PHCA and is intcndcd for inform.itional puiposcs only. CADTAL GROUP Typical Glamping Site Ghmping sites each feature a traditional canvas safari tent with bathroom, thatched roof rain sheker and lanai. east west partners Dcsign reprcsentationa are conccptual and for thc purposcs of plinning .ipprovals only .ind subjcct to .iltcration prior to submission. This clocumcnt was prcparcd by Starwood Capital Group/East Wcst Partncrs.Information containcd hcrcin docs not rcprcscnt thc opinion of thc PHCA and is intcndcd for informationnl purposcs oniy. 'ree/uently ^tskeci ^/uestions CAfITAL GROUP What is Glamping? Our verslon of "glamping"is a luxury version of camping provided in sturdy canvas tents with en-suite bathroom facllities.Similar to traditional camping,the emphasis is on a connection with nature.No televisions or stereos are provided,and we encourage our guests to enjoy the bounty of all that Kauai has to offer. Who is the developer of the project? Starwood Capital Group (resort owner)and East West Partners (renovation and development manager),along with input from SH Hotels and Resorts (resort operator). What is the proposed plan? To transform the Woods holes 1 through 3 into a luxurious glamp-site with up to 50 glamping tents,to build an arrival pavilion,improvements to Makai Princeville's food and beverage operations,enhancements to the existing fitness center and an improved trail/signage system within Princevllle. What is the timing for this project? Planning is underway.Provided we undergo a normal permitting process,we anticipate opening the glamping site in mid 2022. Who is operating the glamping site when complete? SH Hotels and Resorts,the same operator as the newly renovated 1 Hotel Hanalel Bay,will operate the glamping site.Troon Golf will continue to manage golf course operations. Where is the glamping site? It's located directly west of Lei O Papa Road and south of Ka Haku Road on holes 1-3 of the current Woods course. What happens to the Woods golf course? The golf course has been challenged for many years to be financially solvent.Previous owners have considered discontinuing the golf course's operations and/or selling the land.To that end,using a portion of the course for glamping allows the property to generate revenue and continue to support the larger Makai course. What will happen to the remaining Woods holes 4 through 9? These holes will be re-dedicated to recreational use including golf,disc golf,park space or passive open space.Starwood is willing to negotiate the sale of this land to the PHCA. east west partners This documcnt was prcparcd by Starwood Capital Group/East Wcst Pa.rtncrs.Information containcd hcrcin docs not rcprescnt thc opinion of thc PHCA and is intendcd for mforiTiational purposcs only, 1uestions CAPITAL CROUP What will happen to the glamping site (Woods holes 1 through 3)if the glamping concept doesn't work? We anticipate glamping to be a long-term,sustainable solution for the land.The site will be committed to glamping or recreational use in perpetuity.Rest assured;glamping is not a first step toward a plan to develop permanent housing. What happens to the golf course property in 2026 if no action is taken by Starwood Capital Group? In 2026,the golf course loses its 50-year dedication as open space.If successful in its use permit application the owner of the property will cooperate with the community and county to re-zone the course to ensure that it will remain a golf course and/or open space after the dedication expires.In the event that Starwood is not successful in its pursuit of glamping or other profitable use prior to the expiration of the dedication,the land becomes available for development according Kauai County Zoning. Will the owner provide some assurance that Makai course holes 1 through 18 will not become a sea of homes? Yes.The 18-hole Makai course dedication will be re-established in perpetuity to allow only recreational use on the golf course /open-space. How will the golf course operate? Troon will continue to manage the Makai 18-hole course,and until the longer-term plan is in place,Troon will continue to manage holes 4 through 9 of the Woods course. Will the tents be visible when driving on Ka Haku Road,Liholiho Road,or Lei O Papa Road? Tents should not be visible from Ka Haku Road.Some tents may be visible from Liholiho Road and Lei O Papa Road,at least until the new landscaping grows in.As the concept is focused on guests being surrounded by nature and the privacy It can provlde,the project>s landscaping will be designed to surround the tents with living barriers,as much as possible. Will adjacent neighbors be able to see glampers from their homes? While the surrounding landscape will minimize the vlslbility of the glamplng tents and guests, some guests may be vlslble from the perimeter of the site from tlme to time. How will the noise and activity level differ from current golf course activity? We anticipate that the activity level will be similar to current golf course activity,and possibly evcn less.The project will be enhanced with added landscaping and berms to help reduce noise and increase privacy.SH will implement a strict Quiet Hours policy out of respect for our neighbors as well as our other guests.^y ggstwest partners This documcnt was prcp.ircd by Starwood Capita)Group/East Wcst Partncrs.Information contamcd hcrcin docs not rcprcsent thc opinion of tlic PHCA antl is intcndcd for lnformition<il purposc-s only. Jree}uently jt\sked ^/uestions CAPITAL GROUP Will vehicles be allowed on the glamping site and where will the glampers park? Only maintenance vehicles will be allowed on the site.Gla.mper^s vehicles,if they choose a rental car in lleu of a shuttle,will be parked in the Makai parking lot. Will the project provide any community benefits? Yes.New and improved food and beverage options,an enhanced fitness center,improved walking trails,job creatlon,increased tax revenues and support for workforce housing initiatives wlll be provlded. Will the tents be equipped with air conditioning and kitchens? We are exploring only quiet solutions for AC,including portable electric units placed inside the tents.We understand that AC compressors outside can be loud and unsightly.No kitchens will be provided wlthin the tents. How big are the glamping tents? Tent design is still in progress,but we are anticipating single tents to be about 500 interior square feet plus an exterior lanai. How many occupants will each tent accommodate? Most of the tents will have single king beds and accommodate two people.A handful of tents wlll be larger to accommodate familles or small groups. What type of guests will glamp? Glamping will appeal to a wide range demographic who all seek the most sustainable,unique nature experiences.Glamping attracts participant from all walks of life,both old and young. Ultimately Kauai is a relatively expensive destination,and we expect mostly couples and small groups. Will we offer kama'aina rates? Yes.However,specific rates are at the discretion of the operator,seasonal and subject to supply and demand constraints. Is the County of Kauai aware of the project? We have discussed the project and toured the property with the Planning Director and other representatives of the County of Kauai Planning Department.They communicated that the project is aligned with the area's land use and encouraged us to proceed with community outreach to gain support from the larger Princeville community. What is involved the project's regulatory process? The project will requires a.use permit under the current zoning as well as a grading permit from thc County of Kauai.Once these are secured, the project may apply for building permits. east west partners This docunicnt was prcparcd by St.irwood Capital Group/Easc Wcst Partncrs.Information cont.iincd hcrcin docs not rcprcscnt thc opinion of thc PHCA and is intcndcd for informational purposus oiily. Jre€}uently r^sked ^^/uest^ons CAPITAL GROUP Will you be required to secure approval from the Princeville Community Association? No,it*s not a requirement slnce Makai Princeville is not a member of tlie PCHA,but in tlie interest of being good neighbors we are working to gain the support of the PHCA and broader community. Are workforce housing units required with this project? All new development on Kauai triggers the County's Workforce housing requirements,which we will fulfill based upon a study required to determine the level of need.We are currently in conversation with the County Planning and Housing Departments to understand the details of the requirements.The required housing will be accomodated either via payment of a fee or development outslde of Prlnceville. How many people will be employed by this project? The operator will determine the workforce requirements,but we anticipate over 30 employees wlll need to be hired to manage and maintain the glamping site and glamplng amenities based on the current program requirements. Have we spoken with employees or the union about this project? SH Hotels and Rlesorts is thc point of contact and will reach out to employees and the unio-n when appropriate. Why is this type of vacation experience important for Kauai? We see glamping as an opportunlty to create visitor accommodations that are lower impact on the envlronment and more focused on sustainabllity in comparlson to tradltional hotel rooms. We are seeing more visitors holding these values in high priority and believe that this trcnd will grow.These are the experiences and vlsitors that this project would like to bring to Kauai. Furthermore,given the COVID-19 pandemic,glamping is also more conducive for physical distancing versus traditional hotel rooms.We wish to be agile during these unprecedented times to lay the foundation for safer travel experiences whlle maintalning the vlsitor industry on Kauai. How will water and bathrooms in the tent work? We will get water from and treat all sewage with Prlnceville Utilities Company,who has confirmed adequate capacity.Princeville Utilities wlll receive additional connection fees similar to any other development in the community that allow for system upgrades and improvements. Will the project utilize renewable energy?If so,what types and how much of the property's energy will be generated by renewable energy? No renewable energy source is anticipated to be constructed on-site for the project,although the project will be designed and built with sustainable practices in mind.Starwood and SH Hotels and Resorts always endeavor to purchase renewable energy. east west partners This documcnt was prcp.ircd by Scarwood Capital Group/East Wcst Piirtncrs.Information cont.iincd hcrcin docs not rcprcscnt thc opinion of thc PHCA and is intcndcd for informational purposcs only. fuestions CAPITAL GROUP Will you hire local contractors and trade partners? Yes,we intend to hire local contractors a.nd trade partners.We are proud to be using Kauavl and Hawal'i companies just as we have on the Princeville Resort renovation. During the construction phase,how will you minimize traffic,noise and dust during construction? Trafflc involving construction vehicles will not affect normal flow on the main road in an out of Princeville.Site access will be via Hanalei Plantation and Lei o Papa roads.Constructing tents is less intrusive and produce less noise and dust than building traditional structures.That sald,dust barrlers w'i\\be installed and noise mitigatlons will be implemented similar to any construction site. Will you remove any trees on the property?If so,which ones? Yes,but very selectively.There are invasive and unhealthy trees on the property which will be removed.Many more new trees and plants will be added than removed. How will you protect the birds that frequent the golf course? Lighting will adhere to all regulations to protect all sensitive species.Additionally,we will take the necessary care to ensure that birds on the property will continue to be safe and comfortable.They should be even happier with thc enhanced landscaped envlronment of the glamplng site than they were with the golf course. east west partners This docunient was prcparcd by Starwood Capltal Group/East \Vest Partncrs.Information contamcd hcrciti ilous not rcprcscnt thc opinlon of thc PHCA ancl is intcndcd for inforni.ilion.il purposcs only. [ore about CAPITAL GROUP About Starwood Capital Group Starwood Capital Group is a private investment firm with a core focus on global real es- tate,and clean energy infrastructure.The Firm and its affiliates maintain 16 offices in seven countries around the world,and currently have approximately 4,000 employees.Since its inception in 1991,Starwood Capital Group has raised over45 billion of equity capital,and currently has in excess of $60 billion of assets under management.The Firm has invested in virtually every category of real estate on a global basis,opportunistically shifting asset classes,geographies and positions in the capital stack as it perceives risk/reward dynam- ics to be evolving.Over the past 28 years,Starwood Capital Group and its affiliates have successfully executed an investment strategy that involves building enterprises in both the private and public markets.Additional information can be found at starwoodcapital.com. About SH Hotels 8t Resorts SH Hotels &Resorts,an affiliate of global private investment firm Starwood Capital Group, is a hotel brand management company that operates 1 Hotels,a nature-inspired lifestyle brand that launched in 2015 with properties in South Beach and Manhattan;and Baccarat Hotels & Resorts,a luxury brand that made its debut in March 2015 with the opening of its flagship property in New York,with projects under development in Doha and Bordeaux.Leveraging its marketing,design,operational and technological expertise,SH Hotels &Resorts is the force behind some of the most groundbreaking and dynamic hotel brands in the world. About 1 Hotels As a luxury lifestyle hotel brand inspired by nature,1 Hotels cultivates the best of sustainable design and architecture,together with extraordinary comfort and an unrivaled level of service. 1 Hotels,which launched in 2015 with the opening of excluslve properties in Miami's South Beach and Manhattan's Central Park,followed by Brooklyn,located on the East River,in February 2017,and 1 West Hollywood,on Sunset Boulevard,in June 2019,is inspired by a simple idea:those that travel the world should also care about it,it is,after all,1 world.1 Hotels upholds this vislon by channeling nature through design and culinary partnerships, while connecting with the local community and taking sustainable steps to make a big difference.In the 2019 Conde Nast Traveler Reader's Choice Awards,1 Hotel South Beach was awarded #1 in the top 10 Hotels in Miami.1 Hotel Central Park and 1 Hotel Brooklyn Bridge claimed the #5 and #8 spots respectively in the Top 50 Hotels in New York City.The brand is expanding with the recent opening of its Los Angeles property,which was ranked #4 Hotel in the United States by 2019 Conde Nast Traveler Reader's Choice Awards,and with properties under development in Nashville,Sunnyvale,Hanalei Bay,Cabo San Lucas,Paris,Haitang Bay, Melbourne and Toronto.Additional information can be found at lhotels.com. east west partners This documcnt was prcparcd by Starwood Capita)Group/E.ist \Vcst Partncrs.Information containcd hcrcin docs not reprcscnt thc opinion of the PI ICA and is intcndcd for information.tl purposcs only. [ore about CAP1TAL GROUP About East West Partners East West Partners is devoted to building,selling,managing and supporting high-quality real estate and life experiences.Their focus is on innovation,sustainability and community. Since 1986,the firm has developed and sold over$7 billion of residential and commercial real estate across the country.East West Partners is one of only two companies to have received three Urban Land Instltute Awards for Excellence for their projects -Beaver Creek Vlllage, Beaver Creek Colorado,Union Station Neighborhood,Denver Colorado and Riverfront Park, Denver Colorado.The Denver headquarters of East West Partners,whlch 1s coordinatlng the Princevllle Resort renovatlon that will become 1 Hotel Hanalei Bay once complete,announced it has been ranked No.1 Large Company on the list of 2019 Top Workplaces awarded by The Denver Post.In addition,East West Partners'CEO Chris Frampton was named Top Large Company Leader for his leadership.On Kaua'i,East West Partners,in partnership with A&B Properties,founded Kukui'ula Club Villas in the fall of 2013.For morc information on East West Partners,visit www.ewpartners.com eastwest partners This docunicnt was prcpiircd by Stanvood Ciipita!Group/East Wcst Partncrs.Information containcd hcrcin docs not rcprcscnt thc opinion of tlic PI-ICA and is Intendcd for infurm.itional purposes only. Terry Passala cqua <terryp ass@gmail.c om> Mon 7/12/2021 2:22 PM To:Planning Department CAUTION:This email originated froin outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. Planning Commission,County of Kauai c/o Planning Department 4444 Rice Street,Suite A473 Lihu'e,Hl 967G6 Email:planningdepartment@kauai.gov FAX:(808)241-6699 RE:BILL2822 Aloha Commissioners, 1/we are writing in support of Bill 2822 which is currently set on the Agenda for the Planning Commission's Meeting on July 13,2021. This Bill makes important changes to the definitions of "developed campgrounds"and "undeveloped campgrounds"under Section 8 of the CZO relating to transient accommodations. We strongly believe that commercial developed campgrounds should NOT be allowed on Open zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island and the protection of our environment,our communities,the magnificent vistas of Kaua'i,and our quality of life is one of the most important mandates of government. If we allow commercial developed campgrounds on this Island,we run the risk of turning a wonderful place to live into a DisneyLand for transient visitors. We respectfully request that you vote to pass Bill 2822. With aloha, Terryand Sonja Passalacqua PO Box 223666 Princeville,H\96722 Tr3.CT.13. SEP 1 4 2021 Duke Nakamatsu From: Sent: To: Subject: Debra Drayton <rick.debra.kauai@gmail.com> Monday,July 12,2021 3:40 PM Planning Department Supportfor Bill 2822 CAUTION:This email originated from outside the County ofKauai.Do not click links or open attachments even ifthc scndcr is known to you unless it is somelhing you were expecting. Planning Commission,County of Kauai c/o Planning Department 4444 Rice Street,Suite A473 Lihu'e,Hl 96766 Email:olanningdeDartmentfnikauai.eov FAX:(808)241-6699 RE:BILL2822 Aloha Commissioners, We are writing in support of Bill 2822 which is currently set on the Agenda for the Planning Commission's Meeting on Julyl3,2021. This Bill makes important changes to the definitions of "developed campgrounds"and "undeveloped campgrounds" under Section 8 of the CZO relating to transient accommodations.1/we strongly believe that commercial developed campgrounds should NOT be allowed on Open zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset ofour beautiful island and the protection ofour environment,our communities, the magnificent vistas of Kaua'i,and our quality of life is one of the most important mandates of government. We respectfully request that you vote to pass Bill 2822. With aloha, Rick and Debra Drayton 4019 Kaikio Ewa Place Princeville,Hl 96722 y?-3.<a.il<: SEP 1 4 2021 Duke Nakamatsu From: Sent: To: Subject: Lori Smith <lorL1955@icloud.com> Monday.July 12,2021 2:41 PM Planning Department SupportforBill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. Planning Commission,County of Kauai c/o Planning Department 4444 Rice Street,Suite A473 Lihu'e,Hl 96766 Email:planningdepartment@kauai.gov FAX:(808)241-6699 RE:BILL2822 Aloha Commissioners, 1/we are writing in support of Bill 2822 which is currently set on the Agenda for the Planning Commission's Meeting on Julyl3,2021. This Bill makes important changes to the definitions of "developed campgrounds"and "undeveloped campgrounds" under Section 8 of the CZO relating to transient accommodations.1/we strongly believe that commercial developed campgrounds should NOT be allowed on Open zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island and the protection of our environment,our communities, the magnificent vistas of Kaua'i,and our quality of life is one ofthe most important mandates ofgovernment. 1/we respectfully request that you vote to pass Bill 2822. Withaloha, Lori Smith Lghpeaches55@gmail.com Sentfrom my iPhone p-s.a.ii?.SEP 1 4 2021 Duke Nakamatsu From: Sent: To: Subject: Ron Wright <ron@aliikairesort.com> Monday,July 12,2021 10:05 PM Planning Department Support for Bill 2822 CAUTION:This email originated from outside thc County ofKauai.Do not click links or open attachmenls cven if thc sender is known to you unless it is something you were expecting. VIA EMAIL:planningdeBartment(%kauai.gov Planning Commission,County ofKauai c/o Planning Deparlment 4444 Rice Street,Suite A473 Lihuc,III 96756 limail:planningdepartment(5ikauai.gov FAX (808)241-6699 RE:BILL 2822 Aloha Commissioners, On bchalfofthe 56 Alii Kai II condominium owners association,including 24 timesharc units,which rcprescnts 1224 intervals;wc are writing in support ofBill 2822. The Bill makes important changes to the definitions of'developed campgrounds"and "undeveloped campgrounds under Section 8 ofthe CZO relating to transienl accommodations.We strongly believe that commercial dcveloped campgrounds should NOT be allowed on Opcn zoned land and should only be allowcd on land zoncd for commercial or resort use. Kauai s Green and Open Space are our most valuable asset.As our precious island incrcases in sizc,density and population,green and open spaces are increasingly important for sustainability and live-ability.The responsible stewardship lo protect,enhance,rcstore and preservc Kauai Open Spaccs has never been more crucial. We respectfully request that you vote to pass this Bill 2822. Rcspectfully, Ron Wright President Alii Kai II 3830 Edward Road F.^.a.Ife SEP 1 4 2021 Princeville,HI 96722 M:808.652.1687 Ron@,aliikairesort.com Duke Nakamatsu From: Sent: To: Cc: Subject: li2 callhan <lizvic3@gmail.com> Monday.July 12,2021 5:50 PM Planning Department maylette@princevillecommunity.com Glamping CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. Aloha, 1 was one of the original purchasers of a lot at Princeville in 1973. 1 paid $8,000.00 more than the exact lot size situated directly across the street from mine because 1 was told my lot would have a golf course view 'FOREVER.' 1 built my home in 1984,it was 1 of 3 homes on the woods. The original master plan which,1 saw,trusted and purchased from,is almost complete at Princeville. 1 have always felt most blessed to live here. Now,the new money is trying to take our way of life away from us. The island of Kauai is so unique,so precious and our green open spaces are so compromised. The idea of 50 tents in our open space on the golf course is unconscionable. This is notthe mainland. 1 am hoping that our mayor and planning department do not cave to the corporations which would have more, buildings,more traffic,more people and less aloha. That's not why we live here and it's not what the tourists come to see. Please leave thegolfcourse as open space forourcommunityto enjoy. Thank you for your consideration of the future generations. Mahalo, Elizabeth Callahan Sentfrom my iPhone ,.^\f. SEP \4 2021 Duke Nakamatsu From; Sent: To: Subject: Eric Crisler <eric@enteroenergy.com> Tuesday,July 13,2021 5:52 AM Planning Department Bill2822 CAUTION:This email originated from outside the County ofKauai.I)o not click links or open attachmcnts even ifthc sender is known to you unless it is something you were cxpccting. Plamiing Commission,County of Kauai c/o PIanning Department 4444 Ricc Street,Suite A473 Lihu'e,HI 96766 Email:planningdepartment@,kayai.gov FAX:(808)241-6699 RE:BILL 2822 Aloha Commissioners, I recently listed my Princeville homc for sale and was consistently told by buycrs that the home had less valuc becausc ofthe uncertainty around glamping.I urge you to makc a decision to vote for bill 2822 today.Your not moving on this issue will prolong harm to the health,well being,and property values ofPrinceville residents. Bill 2822 makes important changes to the definitions ofdeveloped campgrounds"and "undeveloped campgrounds"undcr Section 8 ofthe CZO relating to transient accommodations.I strongly believe that commercial developed campgrounds should NOT be allowed on Open zoned land and should only be allowcd on land zoned for commercial or rcsort use. Open Space is the most valuable asset of our beautiful island and the protection of our environment,our communities,the magnificent vistas ofKaua'i,and our quality oflife is one ofthe most important mandatcs of government. With aloha, Eric Crislcr Rric Crisler Entero Energy 512 736 2038 (cell);512 551 0776 (fax) eric(S!enteroenerev.com;www.enteroenerav.com ^.^.^•'^. SEP 1 4 2021 Kristen Romuar-Cabico From: Sent: To: Subject: MICHAELSHANDLING <arttee@msn.com> Monday,September 6,2021 3:30 AM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, 1/we are writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. 1/we strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. 1/we respectfully request that you vote to pass Bill 2822 as quickly as possible. With Aloha, Michael Shandling 3811 Edward Road #2302 Princeville,Hl 96722 Get Outlook for iOS 17 '(r^.a.^. rSEP 1 4 2021 Kristen Romuar-Cabico From: Sent: To: Subject: Bob Chrisman <bobandsarahchrisman@gmail.com> Monday,September 6,2021 3:45 AM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners,We are writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021.We strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations.We respectfully request that you vote to pass Bill 2822 as quickly as possible.It is the only "Island Friendly"solution.Don't be another MAUI! With Aloha, Bob &Sarah Chrisman<BR>4100 Queen Emma's Drive #31<BR>PRINCEVILLE,Hl 96722<BR>562 818-8070<BR> Sent from my iPad 16 ^.^.a.^o rSEP 1 4 °n21 Kristen Romuar-Cabico From: Sent: To: Subject: Travis Prentice <prentice.travis.22@gmail.com> Monday,September 6,2021 4:50 AM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, We are writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. We strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. We respectfully request that you vote to pass Bill 2822 as quickly as possible. With Aloha, Travis Prentice Kristy Prentice Madison Prentice Braiden Prentice 4210 Liholiho Rd.-Princeville,Hl96722 Thanks! Travis Prentice prentice.travis.22@gmail.com 15 fr^.^^1 SEP 1 4 2021 Kristen Romuar-Cabico From: Sent: To: Subject: Eric Crisler <eric@enteroenergy.com> Monday,September 6,2021 7:40 AM counclitestimonyOkauai.gov;Planning Department Bill 2822 and the Taking of Golf on the Woods CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, I am writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. 1 am also writing to inform you that up here in Princeville we have a classic taking of property from residents i.e. Starwood (the developer of the 1 hotel)has closed golf on the 9 holes of the Makai reserved for locals.This is teeing up the land for development as no golf means "see,we can do whatever we want and so can you eventual buyer"of my hotel.Many golfers that cannot afford the Makai are crushed.Homeowner values are in peril.The closing of golf goes against the dedication of the course,as you probably know,and hence it is illegal,but we have a board at the PHCA that is mysteriously not supporting its residents and supporting Starwood.1 know all this falls outside of your control but felt compelled to point it out as you decide to protect your residents by passing 2822. I respectfully request that you vote to pass Bill 2822 as quickly as possible. WithAloha, Eric Crisler 4487 Emmalani,Princeville,Hl 14 ^A ^ SEP \4 2021 Kristen Romuar-Cabico From: Sent; To: Subj'ect: ROSEMARIE STONE <kemperstone@aol.conn> Monday,September 6,2021 8:11 AM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, 1/we are writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. 1/we strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. 1/we respectfully request that you vote to pass Bill 2822 as quickly as possible. With Aloha and Mahalo for saving our beautiful Kauai open space and for all you do. @@@Ronald Stone 4141 Lei O Papa Rd.Apt39 Princeville.Hawaii 96722 Sentfrom my iPad 13 -F^.a.^. SEP 1 4 2021 Kristen Romuar-Cabico From: Sent: To: Subject: Jonathan McRoberts <jonathanmcroberts4@gmail.com> Monday,September6,2021 10:16 AM Council Testimony;Planning Department In favor of Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. Aloha, 1 am writing to add my voice to those who favor the passage of Bill 2822.The reasons have become self-evident over the last several years.The last things Kauai needs are more tourist accommodations and less open space.The Council and the planning department should be focused on closing down illegal vacation rentals and supporting agricultural expansion,not expanding a tourist destination which puts more strain on our overburdened infrastructure. This Bill should not be tabled for further discussion,as that will only allow developers to rush poorly conceived plans through the permitting process before the Bill is eventually approved.This is just common sense. Jonathan McRoberts Princeville 808-652-6863 12 ^^.«^lfc SEP 1 4 2021 Kristen Romuar-Cabico From: Sent: To: Cc: Subject: mary.ccc@mac.com Monday,September 6,2021 10:39 AM Planning Department Council Testimony PLEASE SAVE OPEN SPACE BY PASSING BILL 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. Planning Commission,CountyofKauai c/o Planning Department 4444 Rice Street,Suite A473 Lihu'e,HI 96766 Email:planningdepartmentfa)kauai.gov FAX:(808)241-6699 RE:BILL2822 Aloha Council Members and Planning Commissioners, I am writing again in support of Bill 2822 which is currently on the September 14 agenda.I was disappointed that the Bill was deferred in July,but now that it's back on the agenda,I urge you to pass it.This Bill should not be tabled for further discussion,as that will only allow more developers to rush poorly conceived plans through the permitting process before the Bill is eventually approved.This is just common sense. At a time when the majority of county residents are against any increase in tourism,it seems paramount that the planning commission not allow any green space to be turned into commercial camping sites,or any other kind of development for that matter.We need to reduce and enforce the number oftourist accommodations and rental cars,not increase them.By maintaining the rural feel of Kauai and preserving open space,the county can attract more affluent tourists.This will result in more money spent by fewer tourists and put less strain on our fragile environment. Kaua'i is such a beautiful and special island and it's been my home for over 30 years.Open Space is the most valuable asset ofour beautiful island and the protection ofour environment,our communities,the magnificent vistas of Kaua'i,and our quality of life is one ofthe most important mandates ofgovernment.1 appreciate all that you do and the time you invest to protect our island.I'm hopeful that you will once again help preserve this remarkable island by passing this Bill. Mahalo nui loa, Mary Paterson 4141LeiOPapa Road #23 Princeville,Hl 96722 808-639-4366 11 fr^,ay SEP^ Kristen Romuar-Cabico From: Sent: To: Subject: miranda moss <mirandamoss@icloud.com> Monday,September 6,2021 11:12 AM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, I am writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. I strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. 1 respectfully request that you vote to pass Bill 2822 as quickly as possible. With Aloha, Miranda Moss 4100 Queen Emma's Drive apt 55,Princeville Hi Sentfrom my iPad 10 ^.^.«.^. SEP1 4 Kristen Romuar-Cabico From: Sent: To: Subject: Ken Rosenthal <krosenthal@cdcloans.com> Monday,September 6,2021 1:28 PM Council Testimony;Planning Department Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. Aloha Council Members and Planning Commissioners, I am writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. I strongly believe that commercial developed campgrounds should NOT be allowed on Open- zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. I respectfully request that you vote to pass Bill 2822 as quickly as possible. Much Mahalo and Aloha, Ken Rosenthal,MBA Sr.Advisor CDC Capital Markets 2448 Historic Decatur Rd #200 San Diego,CA 92106 (858)967-7817 www.cdccapitalmarkets.com ^.^.^.v. SEP 1 4 2021 Kristen Romuar-Cabico From: Sent: To: Subject: Terry Passalacqua <terrypass@gmail.com> Monday,September 6,2021 3:29 PM Planning Department Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, We are writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. We strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. We respectfully request that you vote to pass Bill 2822 as quickly as possible. WithAloha, Terry and Sonja Passalacqua PO Box 223666 Princeville Hl 96722 €^A->7. SFPf 4 -TO? Kristen Romuar-Cabico From: Sent: To: Subject: lynne misajon <lynnemisajon@gmail.com> Monday,September 6,2021 4:38 PM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL 2822<BRxBR>Aloha Council Members and Planning Commissioners,<BRxBR>l/we are writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021.<BRxBR>l/we strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use.<BR><BR>Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. <BRxBR>l/we respectfully request that you vote to pass Bill 2822 as quickly as possible.<BR><BR>With Aloha,<BR><BR>Lynne&Roland Misajon<BR>5250 Ka Haku Rd 214<BR>Princeville Hi 96722<BR> Lynne Misajon 5250 Ka Haku Rd 214 Princeville Hi.96722 ^.A4M ^~\4 202Y Kristen Romuar-Cabico From: Sent: To: Subject: Dave &Lisa Vitorelo <kauai.vitorelo@gmail.com> Monday,September 6,2021 5:32 PM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, I am writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. I strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. I respectfully request that you vote to pass Bill 2822 as quickly as possible. With Aloha, Lisa Vitorelo 4141 Lei O Pspa Rd #44 Princeville,Hl 96722 Sent from my iPhone ^.^.^.%0 SEP 1 4 2021' Kristen Romuar-Cabico From: Sent: To: Subject: Susan Humphrey-Barnett <susanhumphreybarnett@gmail.com> Tuesday,September 7,2021 6:39 AM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, I am writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. I strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. 1 recently read a travel book about Oceania in which the author stated that overbuilding and overdevelopment have caused intractable problems on all of the larger Hawaiian Islands with the exception of Kauai.He states that "There is still hope on Kauai."He says this is due to enlightened public servants and elected officials.Protecting Kaua'i is now up to you.Our current infrastructure cannot handle more tourist accommodations. I respectfully request that you vote to pass Bill 2822 now. WithAloha, Susan Barnett 5104 Napo'okala Circle Princeville f^.^^. SEP 1 4 202i Kristen Romuar-Cabico From: Sent: To: Subject: ssbarnett@gci.net Tuesday,September 7,2021 7:23 AM Planning Department;Council Testimony Saving Open Space on Kauai by passing Bill 2822 CAUTION:This email orjgmated from outside the County of Kauai.Do not click links or open attachments even ifthe sender is known to you unless it Is something you were expecting. Aloha to all concerned regarding the above referenced bill 2822.1 am writing to express my support for this bill.1 have owned property on Kauai for the past 11 years and have seen the increasing encroachment of development on what little open space we have.1 strongly encourage you to pass this bill as commercially developed campgrounds should not be allowed in open zoned land and only land zoned for commercial or resort use. Please pass this bill to keep our island less congested less stressful for all. Respectfully submitted, Stephen Barnett 5104 Napookala Circle Princeville,Hl f:^.^.^> SEP 1 4 2021 Kristen Romuar-Cabico From: Sent: To: Subject: Bob Doyle <robert.doyle183@hawaiiantel.net> Tuesday,September 7,2021 8:14 AM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even ifthe sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, I'm are writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. I strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting our open space is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. 1/we respectfully request that you vote to pass Bill 2822 as quickly as possible. With Aloha, Bob Doyle,Robert.doylel83@hawaiiantel.net Sent from Mail for Windows ^^.«^^. SEP1 4 ?0? Kristen Romuar-Cabico From: Sent: To: Subject: Rod Dryden <olsketch@yahoo.com> Tuesday,September 7,2021 10:00 AM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL 2822 Aloha Council Members and Plann-ing Comm-issioners, I/we are wnting in support of Bi'11 2822 whlch 1s back on the Planmng Commission Agenda for september 14,2021. I/we strongly believe that commerdal developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commerdal or resort use. Open Space 1s the most valuable asset of our beautiful island.Protecting Kaua'i 1s now up to you.Our precious resources and infrastructure cannot handle more tounst accommodations. I/we respectfully request that you vote to pass B111 2822 as quickly as possible. With Aloha, Rod Dryden 4141 Lei O Papa Road,#16,Pnnceville,HI 96722 Rod Dryden o1sketch@yahoo.com ^4>.«.^4- SEPU Kristen Romuar-Cabico From: Sent: To: Subject: Nancy Mahon <yogaproytt@gmail.com> Tuesday,September7,2021 11:40 AM Planning Department;Council Testimony Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai,Do not click links or open attachments even if the sender is known to you unless it Is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, We are writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. We strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. We respectfully request that you vote to pass Bill 2822 as quickly as possible. WithAloha, 'Ann &Gary Mahon 4835 Ou Place,Princeville' f.^.^^7 SEP1 4 2021 Kristen Romuar-Cabico From: Sent: Cc: Subject: Vicki Parvin <vickikauai@gmail.com> Tuesday,September 7,2021 12:12 PM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even ifthe sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, 1 am writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. I strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. 1 respectfully request that you vote to pass Bill 2822 as quickly as possible. With Aloha, Victoria Parvin vickikauai@gmail.com 5238 Honoiki Rd. Princeville F.^.A^- SEP 1 4 Kristen Romuar-Cabico From: Sent: To: Subject: Matthew Schaller <schaller@aloha.net> Tuesday,September 7,2021 12:39 PM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, 1/we are writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. 1/we strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. 1/we respectfully request that you vote to pass Bill 2822 as quickly as possible. With Aloha, MATTHEW SCHALLER 5087-A KAPIOLANI LOOP,PRINCEVILLE f.^.«^y. SEPI^ 1^')1 Kristen Romuar-Cabico From: Sent: To: Subject: Frances L.Lee <james.lee201@hawaiiantel.net> Tuesday,September 7,2021 1:06 PM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, 1/we are writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. 1/we strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. 1/we respectfully request that you vote to pass Bill 2822 as quickly as possible. With Aloha, James &Frances Lee 3815 lluna Pl.Princeville,Hl 96722 ^r^A^ SEP 1 4 2021 Kristen Romuar-Cabico From: Sent: To: Subj'ect: al baroni <bar_oni@yahoo.com> Tuesday,September 7,2021 1:42 PM Council Testimony;Planning Department Please save Open Space by passing Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the sender is known to you unless it is something you were expecting. RE:BILL2822 Aloha Council Members and Planning Commissioners, My wife and 1 are writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14, 2021. We strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now in your hands.Please help us all who call Kauai home by preserving our Aina and it's beauty for Keiki and Kapuna alike. We respectfully request that you vote to pass Bill 2822 as soon as possible! Mahalo and Aloha Nui, Albert Baroni and Sandra Ughoc Lew 4537 Emmalani Dr Princeville KAUAI 1-^.<?t.^ SEP 1 4 m Shanlee Jimenez From: Sent: To: Subject: Follow Up Flag: Flag Status: Kaaina Hull Tuesday,September07,2021 1:49 PM Marisa Valenciano;Shanlee Jimenez FW:Bill 2822 Follow up Flagged Testimony for draft bill 2822 From:Wednesday <hrhi@aol.com> Sent:Tuesday,September 07,2021 1:47 PM To;Kaaina Hull <khull@kauai.gov> Subject:Bill 2822 CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even ifthe sender is known to you unless it is something you were expecting. RE:BILL 2822 Aloha Council Members and Planning Commissioners, As a former Kauai County Planner and a Former Kauai Historic Review Commissioner for 2 terms,and a 30 year resident of Princeville. 1 am writing in support of Bill 2822 which is back on the Planning Commission Agenda for September 14,2021. I strongly believe that commercial developed campgrounds should NOT be allowed on Open-zoned land and should only be allowed on land zoned for commercial or resort use. Open Space is the most valuable asset of our beautiful island.Protecting Kaua'i is now up to you.Our precious resources and infrastructure cannot handle more tourist accommodations. 1 respectfully request that you vote to pass Bill 2822 as quickly as possible. With Aloha, Anne Schneider ^<».^.w SEP1 4 Ka'aina S.Hull Director of Planning Jodi A.Higuchi Sayegusa Deputy Director of Planning RE: APPLICANT: COUNTY OF KAUA'I PLANNING DEPARTMENT SUPPLEMENT #2 TO THE PLANNING DIRECTOR'S REPORT Zoning Amendment ZA-2021-2 KAUAI COUNTY COUNCIL IV.DESCRIPTION OF THE AMENDMENT Following the July 13,2021 Planning Commission meeting,the Department reviewed the July 13,2021 draft bill and proposes additional amendments in a revised draft bill that is summarized below (see attached): The primary changes from the July 13,2021 Department version to the September 14, 2021 version include: 1.The removal ofanv and all reference to outright permitting "developed campgrounds within the GeneraI-CommerciaI (C-G)Zoning District. a.The Department re-analyzed the potential impacts of allowing developed campgrounds within the General-Commercial (C-G)Zoning District and determined that developed campgrounds may not be appropriate and compatible within existing commercial areas.Such uses would be better suited within the Resort Zoning District. b.The Department proposes to amend the July 13,2021 draft bill by proposing no changes to the current code under Section 8-2.4 Table of Uses for the General-Commercial (C-G)Zoning District.The revised draft bill eliminates any reference in the Table of Uses that would have allowed developed campgrounds as a permitted use in commercial zoned areas.The tables below show a comparison between the July 13,2021 draft bill and the proposed September 14,2021 draft bill.Please note,that the revised bill does not propose any changes to the current code in Section 8-2.4 Table of Uses under the General-CommerciaI (C-G)Zoning District. ^^•ti SEP 1 4 2021 EXISTING:July 13,2021 Department Draft Bill (Proposed to add Developed Campgrounds as a permitted use in C-G) SECTTQN^Cliuptur S,IStVAfti C<-'ulll>'^o^v 19ST.d*iitciuiidyd^ts htireby Afflendtttt_l>y aBi&ndmg Table S'&.'il -TdM«of Uses.iit portiii^nr.pjirt.to outjfigTitperniU"Dftve1<)ped<'aRipRTO"0(i^~ii''t}ieOiinerolCo'tiimer<llnl?'rtiiL)iKDistri(!t fta roiiows: PROPOSED:September 14,2021 Department Draft Bill (Proposes to remove Developed Campgrounds from the use table resulting in no changes to the current code) SECTIQN 3 Chaptw S.SauiU Ccunty Coda 1687.as nmondad.is hereby amanil»d by amenduig Tnlik 8.2 4 -Tabl«uf Usas.in pertinent pturt.to outnght pennit "Developed caiupgi'ouiids"in fbe General ConiRiercial Zoningt)istri<;t 83 followa; 2.Delete "Organized Recreation Camps"in the Definitions and the Table of Uses. a.Upon further review,the Department is proposing to remove all reference to organized recreation camps"in the Definitions and the Table ofUse sections. b.Section 8-1.5 ofthe Kaua'i County Code (KCC)defines "organized recreation camps as the "land or premises containing structures designed to be used for organized camping.The structures include bunk houses,tent platforms,mess halls and cooking facilities,and playfields.Examples include Boy Scout ZA-2021-2;Supplement #2 to the Oirector's Report KAUAICOUNTi'COUNCIL 8.27.2021 Sec^1IFIF. TONTVG DiSTRICT Itr.dilrnf.i]Ciimmti-aal IttGUiUul .\Q SL UM\' TTT [i H-G -TET t(? H.M Jt&...CN CG u-J1& a-3.^)[D Acceaaoty uses and an-utturea r 3-2..KJ)i2)Autuuii)()il&i-ttlTd.wuaiz.aiad it'.iia-jt'p 4.2.40)(3)AUtuiu.ui)il(i tvrfiCKi r S.3.-10)(rl>Pl'iDlff}]r.\•rf'nipi''-*),At1<l TtlililJl rl »f.3 T ^.W)1%Cluas,lajaes.aniJ conuaunitv •r'sntera p »-a,4<i) C&nuacrcial indoor aiauacmcDt ajiii ps.tis p czsesis Pe.veloBfrd cauiRfrroundft _£ 8.2.4ffl ^9i ta.2.i()>(ft>]H&uaehold aenieea p {8.2.AO (10)1 &£Mau U^ht ataaulacturiag.such aa handicrafta and BajraicDt fa'bricatic'a p BCf.vse ZO'iB-C DISrBICT BeaulfinEsal Caimneraal Ett'ivstial A6 -s.UMV ^T c-o il.6 ~?raT K H.EI HE c»{JU [L ;G t-S.W (1)AccessoTy uaes and acructures F a-2.4® Aliluiu.ijijil<?iMLl^ii.repaiT,aui3 rfEoiasii?F i-2.1f)(3)Auiumiiiiilei cwivice:;F a.udi H)Cburchcs,tcmpir-3,i^vi^TncinflBKiri&a p t-i.'Ki)0 CluTts,ladco.ajid coinmiuiiity ceatecs p i-s.iS;(S)Couuil-trcial uid^or ajiiua^aicuit aitd parks F i.2.^(jl (7;.Deijiartmetit =tores r~f~ h'l U Kr',',<^ [a.siy-Kai] S.2-4i5>(9) lyi-U wlulWKl"W41.1t.l Hotfrls aud si&tck F la.a.iuxW) a ;M|'.)(I(!>Houselioiii aerviwa p \a3.iifi (io:| a=2.4uiiiii Livht mnEiufactiuiafi;,auch as hiDdicrafta ajiti ffaraieut 1-a^ricataDD p Camps and summer camps."The Department is proposing to delete thi.s definition. c.The Department is also proposing to remove "organized recreation camps from the Table of Uses within the Open (0)Zoning District.Currently, "organized recreation camps"require a Use Permit to operate within Open zoned lands.Under the revised draft bill,the Department is proposing to eliminate this use to further restrict developed campgrounds and similar uses from proliferating in open zoned areas. d.Having such use would be contrary to the purpose of the Open (0)Zoning District,as defined in Section 8-9.1 ofthe KCC. e.The tables below show the proposed changes from the July 13,2021 draft bill to the September 14,2021 draft bill. EXISTING:July 13,2021 Department Draft Bill (Proposed no change to organized recreation camps in Open Zoned Lands) SECTION5.Chapter 8,Kaiia'i County Code 1987,as amended,1s hereby amended by ameudmg Table 8-2.4 -Tablc of Uses,ui pertinent part to prohibit 'Developed cam|)groiin<ls"in rhe Open Zoning District as follows: Sec. ZONINC BISTKICT UBB Residential '-R^T ro R-S ~^w 10 R-2Q gn. Cotaniercial CN co Indiumal _c-_IG AG L~N\' 8.2.4<t)7iy Commumcation facilities 8-2.40)(2)Day care centers 13-2.4(al (3)]FDuvyluptjd fympgi'ouiid^]n-'i is-z.-tw <4)j 3 2.4(al (3) [S.2.4(a)(S)] 8.2.4(D (4) Hujuo bLiainusiatiii Tnten&ive agriculture Livestock and grazing withiu che L'rban District aa establiahe'd by t.he 3tate Land Use Commisaion [S-2.40)(0)1 8-2.4(3t (51 Soik. ZQNINCr DISTRIC'T USE Restdeutidl HCT to RA ~ws~ to R-'?i1 _RR. CDmmerciiil f\' tadustrial -UL L;^n' [8._2,4(s)(7)] 8.2.4(8)(6) Ui-gamzed recreation camps Ul [8 2.4(8)(8)] 8-2.401 n'l [8 2.11(B|t9)) d.2.41a)I'SI Outdoorrecrefttion concesaiojy Police aiid fii'e faciUtie,* ZA-2021-2;Supplement #1 to Ihe Directoi's Reporl KAUAI COUNTY COUNCIL 8.27.2021 PROPOSED:September 14,2021 Department Draft Bill (Proposes to eliminate organized recreation camps in Open Zoned Lands) SECTTON 5.Clifipr^r S,K^l(<l'ji,Couiiiy Coile 19tS7,;IK <itnitii(te<1, hcreby amended by amenctiug Tabie S-2.4 Tablc of l.^scs.m pertinent part. prohibir "Dsveloped campgrniiiidi.;in rhe Opt*n Zoning Dii.st.riet :i<;follows' 3.Clean Up Amendments a.In the revised draft bill,the Department is including additional clean-up amendments to the Table of Uses and other sections that are minor and non- substantial. V.AMENDMENT JUSTIFICATION As previously mentioned,the Department reanalyzed the July 13,2021 Planning Commission draft bill and determined that additional changes were necessary, particularly relating to the potential impacts of allowing developed campgrounds within the General-Commercial (C-G)Zoning District and the removal of "organized recreation camps." VII.PRELIMINARY EVALUATION The Department provides additional evaluation points for consideration: 1.Upon further review,developed campgrounds may not be an appropriate and compatible use within the General-Commercial (C-G)Zoning District.The use of developed campgrounds may disrupt the form and character in commercial areas, particularly in historic towns. ZA-2021-2;Supplement «2 lo the Direclor's Report KAUAI COUNTC COUNCIL 8.27.2021 B^C.USE Resideniu.1 ZONINO 1 Cc'Bamsicjal ISTRieT ladustrial AG _0_..VNV^ TM~ [1:1 R-3 ~^w to R-SO RIt :CN cc JL _IG 3.3.4(0 (1)Communication facilitiea T~'S^AifBS' Day car&centers T~ TS^4?a)ia)T [Dov<:'l<jp(?d cuuip^i'ULiiida]Tuj" 18-2.40)f4)J 8 2.1D W Home biiaintissya L- I8-2.4W <61] 8.2.40)(4)Int-ensive agncu1t«re T" |8.2.4(a)(6)j 8.2.40)(3) Livestock aod ?razing witliiu ihe L'rbau Diatrict aa eatablished by the State Land Use Commbaion u 8cc- ZOMXG OISTKICT (T»E Rgs.tttBntial Comiaftn'ial Industnal AQ Q l!W TH" to Rft ?TO~ to R-30 RR CN CG IL TG [^j^s^y^1 "^•W.Wl [8.2.4(1)(8)] 8-2.40 0)Outdoor recreation concessioas u [8 2.4toxa)] 8.2.4ft)(8)Police and tire facilities u 2.Based on the public testimony that was submitted at the last meeting,the Department is removing all reference to "organized recreation camps as a use that is similar in nature to developed campgrounds.Eliminating the use oforganized recreation camps from the Open Zoning District will ensure that open zoned lands will be further protected and preserved. IX.PRELIMINARY RECOMMENDATION Based on the foregoing revised evaluation,it is recommended that the subject request to amend Section 8-1.5,Section 8-2.4,Section 8-4.9,Section 8-8.7,Section 8-9.6 ofthe Kaua'i County Code (1987),as amended,be APPROVED. By Marisa C.I.Valenciano Staff PIanner ZA-2021-2;Supplement »210the Director's Report KAUAICOUNTYCOUNCIL 8.27.2021 Planning Department Version for Planning Commission Mtg.September 14,2021 ORDINANCE N0.BILL N0. A BILL FOR AN ORDINANCE AMENDING CHAPTER 8, KAUA'I COUNTy CODE 1987,AS AMENDED, RELATWG TO TRANSEENT ACCOMMODATIONS BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF KAUA'I,STATE OF HAWAI'I: SECTION 1.Chapter 8,Section 8-1.5,Kaua'i County Code 1987,as amended,is hereby amended by amending the definition of "Developed Campgrounds ,"Organized Recreation Camps ,and "Undeveloped Campground"as follows: Developed Campgrounds means land or premises designed to be used,let,or rented for [temporary]compensation,monetarv or otherwise.for transient occupancy by campers traveling by automobile or otherwise and which contain such facilities as tent sites,bathrooms or other sanitary facilities,piped water installations,and parking areas,but not including mobile home parks.Each individual tent campine site offers a campsite that mav have permanent footines,Dlatfornis,and/or private restroom facilities.Developed campgrounds may include facilities for the temporary placement of camp trailers and camping vehicles which are utilized for non-permanent residential uses [at no more than six (6)vehicles per acre]. [Organized Recreation Camps means land or premises containing structures designed to be used for organized camping.The structures include bunk houses,tent platforms,mess halls and cooking facilities,and playfields. Examples include Boy Scout Camps and summer camps.] ["Undeveloped Campground"means land or premises designed to be used for temporary occupancy by campers traveling by foot or horse which may contain facilities and fireplaces,but do not contain facilities as are provided at developed campgrounds.] "Undeveloped Camperounds"means land or uremises desiened to be used bv Dropertv owners and their_guests for non-commercial camping purposes^There are no permanent footings or Blatforms,and there are no uermanent structures. site. There is no compensation,monetary or otherwise,for use of this SECTION2.Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to outright permit "Developed campgrounds"in the Resort Zoning District as follows: Sec.USE ZONING DISTRICT Residential Commercial Industrial AG o UNV ~ET to R-6 R-10 to R-20 RR CN CG IL IG 8-2.4(g)(1)Accessory uses and structures p 8-2.4(g)(2)Apartment hotels p 8-2.4(g)(3)Automobile service and storage p 8-2.4(g)(4)Barber shop and beauty shop p Planning Department Version for PIanning Commission Mtg.September 14,2021 SECTION4.Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to prohibit "Developed campgrounds"in the Agriculture Zoning District as follows: Sec.USE ZONING DISTRICT Residential Commercial Industrial AG o UNV TtT to R-6 R-10 to R-20 RB CN CG IL IG 8-2.4(g)(5)Coinmercial recreation p 8-2.4fe)(6)Developed camDSTounds p [8-2.4(g)(6)] 8-2.4(e)(7)Gift shops p [8-2.4(g)(7)] 8-2.4(e1 (8)Golf courses p [8-2.4(g)(8)] 8-2.4(el (9)Home business p [8-2.4(g)(9)] 8-2.4(e)(10)Hotels p [8-2.4(g)(10)] 8-2.4(g)(ll)Laundromat p [8-2.4(g)(11)] 8-2.4fe)(12)Libraries p [8-2.4(g)(12)] 8-2.4(e)(13)Motels p [8-2.4(g)(13)] 8-2.4(e)(14)Museums p [8-2.4(g)(14)] 8-2.4(e)(15)Police and fire stations p [8-2.4(g)(15)] 8-2.4(e)(16)Public parks and inonuments p [8-2.4(g)(16)] 8-2.4fe)(17)Restaurants and food service p [8-2.4(g)(17)][Retail cleaning outlets][p] 8-2.4(g)(18)Retail cleaning outlets p 8-2.4(g)(19)Retail food and drug shops p 8-2.4(g)(20)Shoe repair shops p 8-2.4(g)(21)Single family detached dwellings p 8-2.4(g)(22) Transient vacation rentals,provided they are located within the designated Visitor Destination Areas established pursuant to Article 17 ofthis Chapter.These uses are prohibited in non-VDA areas. p Planning Department Version for Planning Commission Mtg.September 14,2021 SECTION5.Chapter 8,Kaua'i County Code 1987,as amended,is hereby amended by amending Table 8-2.4 -Table of Uses,in pertinent part,to prohibit Developed campgrounds in the Open Zoning District as follows: Sec.USE ZONING DISTRICT Residential RR Commercial Industrial AG o UNV R-lto R-6 R-10 to R-20 CN CG IL IG 8-2.4(r)(l)Animal hospitals u 8-2.4(r)(2)Botanical and Zoological gardens u 8-2.4(r)(3)Cemeteries u 8-2.4(r)(4)Churches,temples,and monasteries u 8-2.4(r)(5)Cominercial Recreation u 8-2.4(r)(6)Construction and worker temporary housing u [8-2.4(r)(7)][Development campgrounds][U] [8-2.4(r)(8)] 8-2.4fr)(7)Fann worker housing u [8-2.4(r)(9)] 8-2.4(rt (8)Farmers Markets u [8-2.4(r)(10)] 8-2.4fr)(9)Golf courses u [8-2,4(r)(lD] 8-2.4fr)(10)Mineral extraction and quarries u 18-2.4(r)(12)] 8-2.4tr)(11) Pet keeping and raising proposed within five lundred (500)feet ofany Residential District u [8-2.4(r)(13)] 8-2.4(r)(12) Piggery,when to be located within three'.housand (3,000)feet ofany Use District u [8-2.4(r)(14)] 8-2.4fr)(13) Poultry [and piggeries]Raising,when to be ocated within three thousand (3,000)feet of iny Use District u [8-2.4(r)(15)l 8-2.4(rt (14)Private and public utilities facihties u [8-2.4(r)(16)] 8-2.4fr)15 :?estaurants and food services U2 [8-2.4(r)(17)] 8-2.4fr)(16) :letail Sales u [8-2.4(r)(18)] 8-2.4(rt (17)3chools and day care centers u [8-2.4(r)(19)] 8-2.4fr)(18)Fransportation terminals u [8-2.4(r)(20)] 8-2.4fr)(19) \ny other use or structure which the Planning 3irector finds to be similar in nature to those isted in this Section and appropriate to the ,)istrict u Sec.USE ZONING DISTRICT Residential Commercial Industrial AG o UNV 'RT' to R-6 ^IO" to R-20 RR CN CG IL 10 8-2.4(t)(1)Communication facilities TT 8-2.4(t)(2)Day care centers TT [8-2.4(t>(3)T [Developed campgrounds]TUT Planning Department Version for Planning Commission Mtg.September 14,2021 SECTION6.Chapter 8,Article 4,Kaua'i County Code 1987,as amended,is hereby amended by amending Sec.8-4.9 as follows: "Sec.8-4.9 Developinent of Other Uses in a Residential District. All permitted uses,all uses requiring a Use Permit,and all Uses allowed by variance other than residential shall conform to: (a)Development standards established for the district in which they are normally permitted,provided that: (1)The minimum distance from property lines shall be the same as that required for single family detached dwellings;and (2)The maximum building heights shall be the same as that required for single family detached dwellings;[or]and (3)Developed campgrounds are urohibited in all Residential Zoning Districts;or (b)The requirements and conditions imposed by the Planning Commission in granting the Use Permit or Variance Permit. SECTION7.Chapter 8,Article 8,Kaua'i County Code 1987,as amended,is hereby amended by inserting a new Sec.8-8.7 as follows: "Sec.8-8.7 Developed Cainogrounds in Affriculture Zojiing Districts. Developed campETQunds are prohibited in all Agriculture Zonine Districts. 4 Sec.USE ZONING DISTRICT Residential Commercial Industrial AG o UNV TFT to R-6 ~R-W to R-20 RR CN CG IL IG [8-2.4(t)(4)] 8-2.4(t)(3)Home businesses u [8-2.4(t)(5)] 8-2.4ft)(4)Intensive agriculture u [8-2.4(t)(6)] 8-2.4(t)(5) Livestock and grazing within the Urban District as established by the State Land Use Coinmission u [8-2.4(t)(7)][Organized recreation camps][U] [8-2.4(t)(8)] 8-2.4ft)(6)Outdoor recreation concessions u [8-2.4(t)(9)] 8-2.4(t)(7)Police and fire facilities u [8-2.4(t)(10)] 8-2.4(0 (8)Quarries u [8-2.4(t)(11)] 8-2.4(tt (9)Recreation vehicle parks u [8-2.4(t)(12)] 8-2.4ft)(10)Religious facilities u [8-2.4(t)(13)] 8-2.4ft)dD Utility installations u [8-2.4(t)(14)] 8-2.4(t)(12) Any other use or structure which the Planning Director finds to be similar in nature to those listed in this Section and appropriate to the District u Planning Department Version for Planning Commission Mtg.September 14,2021 SECTION8.Chapter 8,Article 9,Kaua'i County Code amended,is hereby amended by inserting a new Sec.8-9.6 as follows:"Sec.8-9.6 Developed Camnerounds in Open Zonine Districts. 1987,as Develooed campgrounds are prohibited in all Open Zonmg Districts. SECTION9.Chapter 8,Article 17,Kaua'i County Code 1987,as amended,is hereby amended as follows: "ARTICLE 17.TIME SHARmG AND TRANSIENT VACATION RENTALS Sec.8-17.1 Liinitations on Location. Except as provided in this Section,time share units,time share plans,and transient vacation rentals are prohibited. Sec.8-17.2 Perinitted Tiine Share Locations. Subject to the limitations contained in Secs.8-17.4 and 8-17.5,time share units and time share plans are allowed: (a)In hotels in Resort or Commercial Districts;and (b)In the Resort RR-10 and RR-20 Districts and Multi-Family R-10 and R-20 Residential Districts when such districts are located within the Visitor Destination Areas of Po'ipu,Lihu'e,Wailua Kapa'a or Princeville,as more particularly designated on County ofKauai Visitor Destination Area maps attached to Ordinance No.436 and incorporated herein by reference.The boundary lines established on these visitor destination maps shall be transferred onto the OfBcial Zoning Maps for reference purposes. (c)Time share units and time share plans are prohibited in the R-l,R-2, R-4 and R-6 Residential Districts. Sec.8-17.3 Permitted Locations for Multi-Fainily Transient Vacation Rentals. Subject to the limitations contained in Sec.8-17.5,multi-family transient vacation rentals are allowed: (a)In hotels in Resort or Commercial Districts;and (b)In Resort Districts and Residential Districts within the visitor destination areas as more particularly designated on County ofKaua'i Zoning Maps. Sec.8-17.4 Tinie Sharing in Projects Located Within Visitor Destination Areas and Hotels in Resort or Coininercial Districts. If the project in which the time share unit or time share plan is to be created contains an existing time share unit or time share plan,then time share units and plans shall be regulated according to the terms ofthe project instruments. If the project in which the time share unit or time share plan is to be created is not a hotel and does not contain time share units or tiine share plans,then such use may be created only if such use is explicitly and prominently authorized by the project instruments,or the project instruments are amended by unanimous vote of the unit owners to explicitly and prominently authorize time sharing.Provided, however,that time share units and time share plans permitted under this Section shall be limited to the Visitor Destination Areas described in Sec.8-17.2,and to hotels in Resort or Commercial Districts. Sec.8-17.5 Existing Time Share and Multi-Family Transient Vacation Rental Uses. (a)Time Share Units,Time Share Plans,and Multi-Family Transient Vacation Rentals Existing On or Before September 22,1982,That Are Not Located in Visitor Destination Areas.Time share units,time share plans,or multi-family Planning Department Version for Planning Commission Mtg.September 14,2021 vacation rentals existing on or before September 22,1982 that are not located within the visitor destination areas described in Sec.8-17.2 may continue as allowed uses. However,no additional time share units,time share plans,or multi-family transient vacation rentals outside the visitor destination area shall be created after September 22,1982.The uses left unimpaired by this Subsection shall not be lost by the failure to exercise the use unless it clearly appears that the use has been abandoned for a period in excess oftwo (2)years.This Subsection shall not apply to hotels in Resort or Commercial Districts. (b)Time Share Units,Time Share Plans,and Transient Vacation Rentals in Projects Located Within Visitor Destination Areas Existing On or Before September 22,1982.Time share units and time share plans in projects existing on or before September 22,1982,and located within areas described in Sec.8-17.3 shall be regulated in accordance with the provisions ofSec.8-17.4. Sec.8-17.6 Penalty. An owner ofany unit which is operated in violation ofthis Article,and/or any other person,firm,company,association,partnership or corporation violating any provision of this Article,shall each be fined not less tban five bundred dollars ($500.00)nor more than ten thousand dollars ($10,000.00)for each offense. This civil fine may be in addition to any criminal fines.If any person fails to cease such violation within one (1)month,such person shall be subject to a new and separate violation for each day the violation continues to exist. (a)Actions by County Attorney.The County Attorney may file a civil action to enjoin any violation of this Article and collect any penalties provided for by this Article. (b)Disposition ofFines.All fines imposed for violations ofthis Article shall be paid to the Director ofFinance to the credit ofthe Development Fund. Sec.8-17.7 Ainendments to Visitor Destination Areas Designations. Amendments to the location and/or boundaries ofthe Visitor Destination Areas shall be made in accordance with the amendment provisions of Sec.8-3.4 of this Chapter 8,provided that the burden of proof rests with the applicant to show upon the clear preponderance of the evidence that the amendment is reasonable.The criteria for evaluating such proposed amendments shall be as follows: (a)The proposed amendment is consistent with the General Plan and the Developruent Plan. (b)The parcel or parcels to be affected by the proposed amendment are suitable for Visitor Destination Area uses. (c)The availability of existing public services and facilities in the affected areas and whether the requested public services and facilities for the proposed change in use can be met without undue burden. (d)The proposed change will conflict with other existing uses in the affected area. (e)The proposed change will cause or result in unreasonable air,noise,or water pollution,or will adversely afEect irreplaceable natural resources. (O The affected areas contain or are in close proximity to other areas that contain: (1)Large numbers of hotel and/or multiple family dwelling units suitable as accommodations by temporary visitors. (2)Lands designated for Resort Use on the General Plan or having Resort zoning. (3)Outdoor or commercial recreational facilities,such as beaches, golfcourses,tennis courts and other similar facilities. (4)Tourist related commercial facilities,such as gift shops,food stores,recreational equipment and services shops,tour and transportation service terminals,restaurants,bars,night clubs,cabarets,shopping centers, theaters,auditoriums,and other similar facilities. 6 Planning Department Version for Planning Commission Mtg.September 14,2021 (g)The proposed change will include or adversely affect predominantlyresidentialneighborhoods. Sec.8-17.8 Single Family Transient Vacation Rentals. (a)Notwithstanding any underlying zoning designation and with the exception of properties on the National or State Register of Historic Places,single family transient vacation rentals are prohibited in all areas not designated as Visitor Destination Areas. (b)Development Standards for Single Family Vacation Rentals Permitted Within Visitor Destination Areas and Holders of Nonconforming Use Certificates. Development standards shall be the same as those for single family detached dwellings in Secs.8-4.5 through 8-4.8,inclusive,with the following additions: (1)Applicant for a single family transient vacation rental shall designate a contact person or owner s representative who shall be available on a twenty-four (24)hour,seven (7)days-per-week basis.Applicant shall provide the name and contact information to neighbors adjacent to and directly across subject vacation rental,the Planning Department,the Kaua'i Police Department,the Kaua i Civil Defense Agency,and the Kaua'i Visitors Bureau upon issuance of a nonconforming use certificate or registration number. Owner is responsible for keeping information updated with all agencies. (2)One (1)outdoor sign no larger than one (1)square foot shall be posted in a visible place on a wall,fence,or post immediately inside or on the front boundary of the property where it is easy to see,for the purpose of providing the current Nonconforming Use Certificate number or the Registration Number and the 24/7 phone number.No other signs shall be allowed and there shall be no direct illumination of the required sign.The numbers on the sign shall be no smaller than two (2)inches in height. (3)The applicant shall provide a list ofrequirements and information entitled "For the Safety and Comfort ofYou and Your Neighbors."This shall provide essential information to the visitor and shall seek to reduce negative impacts on the surrounding neighborhood.This information piece shall be provided to the Planning Department at time ofapplication and shall be posted in a conspicuous place in the guest s sleeping quarters along with a copy ofthe Nonconforming Use Certificate or the Registration Number,whichever the case may be and if required.The list shall include,but not be limited to, suggested curfews,guidance with respect to the character ofthe neighborhood and gatherings and noise,and what to do in cases of emergency and natural disaster. (4)All print and internet advertising for single family vacation rentals,including listings with a rental service or real estate firm,shall include the Nonconforming Use Certificate or the Registration Number. (5)A copy of the Nonconfonning Use Certificate or the Registration Number,where required,shall be displayed in the back ofthe front door ofthe sleeping quarters. (6)A site and floor plan shall be filed with the application. Sec.8-17.9 Registration ofAll Transient Vacation Rentals. (a)All single family transient vacation rentals,excluding,however,a time share unit in a time share plan subject to Chapter 514E of the Hawai'i Revised Statutes,as amended,lawfully existing in Visitor Destination Areas on March 7,2008 shall register with the Director of Finance on a form prescribed by the Director of Finance no later than one hundred eighty (180)days after March 7,2008.Any new single family transient vacation rental,excludes,however,a time share unit in a time share plan subject to Chapter 514E of the Hawai'i Revised Statutes,as amended, established in Visitor Destination Areas subsequent to March 7,2008 shall register with the Director of Finance prior to any such use of said rental.All single family Planning Department Version for PIanning Commission Mtg.September 14,2021 transient vacation rental uses will be subject to Kaua'i County Code Title III, Chapter 5A. (b)No single family transient vacation rental shall operate outside a Visitor Destination Area without a Nonconforming Use Certificate obtained underSec.8-13.10. Sec.8-17.10 Nonconfonning Use Certificates for Single Fainily Vacation Rentals. (a)The purpose of this Section is to provide a process to identify and register those single family transient vacation rentals as nonconforniing uses which have been in lawful use prior to March 7,2008 and to allow them to continue subject to obtaining a Nonconforining Use Certificate as provided by this Section. (b)The owner,operator or proprietor ofany single family transient vacation rental which operated outside of a Visitor Destination Area prior to March 7,2008 shall obtain a Nonconforming Use Certificate for single family vacation rentals. (c)No Nonconforming Use Certificate shall be issued by the Planning Director unless the use as a single faruily rental is a legal use under the Comprehensive Zoning Ordinance,and the applicant provides a sworn affidavit and demonstrates to the satisfaction of the Planning Director that a dwelling unit was being used as a vacation rental on an ongoing basis prior to March 7,2008.The Planning Director,in making the decision,shall take into consideration,among other things,the following guidelines: (1)The applicant had a State of Hawai'i general excise tax license and transient accomniodations tax license for the purpose of the lawful operation of single family transient vacation rentals for a period long enough to demonstrate actual payment oftaxes. (2)That prior to March 7,2008,applicant had deposits for reservations by transient guests in exchange for compensation for use of subject property as a vacation rental. (3)That applicant had transient guests occupy subject property in exchange for compensation prior to March 7,2008,with a pattern of consistency that evidences an ongoing and lawful enterprise. (d)Applications for Nonconfonning Use Certificates for single family transient vacation rentals located on land designated "Agricultural"pursuant to Chapter 205 ofthe Hawai'i Revised Statutes shall be made within sixty (60)days of August 16,2010.Ifan operator as defined under Subsection (c)fails to apply for a Nonconforming Use Certificate within sixty (60)days ofAugust 16,2010,then the Planning Director shall assess an administrative late application processing fee of one thousand five hundred dollars ($1,500.00)at filing.A Nonconforming Use Certificate may be issued for a single family transient vacation rental located on land in the State ofHawai'i's land use Agricultural District if: (1)It was built prior to June 4,1976;or (2)The applicant has obtained a Special Permit under Hawai'i Revised Statutes,Sec.205-6 which specifically permits a vacation rental on the subject property. (A)An application for a Special Permit shall include verification by the applicant that the farm dwelling unit was being used as a vacation rental on an ongoing basis in accordance with Subsection (c). (B)An application for a Special Permit pursuant to Hawai'i Revised Statutes Sec.205-6 and Chapter 13 ofthe Rules ofPractice and Procedures ofthe Planning Commission that is deemed complete by the Planning Director must be filed within one (1)year ofAugust 16,2010. Upon completion of the application,the Planning Director shall issue a provisional certificate that will allow the transient vacation rental to operate.The provisional certificate shall be null and void after the 8 (e) establishing Planning Department Version for Planning Commission Mtg.September 14,2021 Planning Commission or the Land Use Commission makes a decision upon the application. (C)In addition to the Special Permit standards set forth in Hawai'i Revised Statutes Sec.205-6 and Chapter 13 of the Rules of Practice and Procedure of the Planning Commission,the Planning Commission may only grant a Special Permit if,prior to March 7,2008: (i)the property upon which the transient vacation rental is located had a registered agricultural dedication pursuant to the guidelines set forth in the County of Kaua'i's Department of Finance Real Property Tax Division Agricultural Dedication Program Rules;(ii)a bona fide agricultural operation existed,as shown by State General Excise Tax Forms and/or Federal Income Tax Form 1040 Schedule F filings;or (iii) the Planning Commission finds that the size,shape,topography, location or surroundings ofthe property,or other circurustances,did not allow an applicant to qualify for an agricultural dedication pursuant to the County of Kaua'i's Department of Finance Real Property Tax Division Agricultural Dedication Program Rules or inhibited intensive agricultural activities. (D)If the application for the Special Permit is granted,then the transient vacation rental operation shall be subject to conditions imposed by the Planning Commission or the Land Use Commission. (E)If the application for Special Permit is denied,then the Nonconforming Use Certificate shall not be issued and the transient vacation rental must cease operation. The owner,operator,or proprietor shall have the burden of proof in that the use is properly nonconforming based on the following documentation which shall be provided to the Planning Director as evidence of a nonconforming use:records of occupancy and tax documents,including all relevant State ofHawaii general excise tax filings,all relevant transient accommodations tax filings,Federal and/or State of Hawai'i income tax returns for the relevant time period,reservation lists,and receipts showing payment.Other reliable information may also be provided.Based on the evidence submitted,the Planning Director shall determine whether to issue a Nonconforming Use Certificate for the single family transient vacation rental. (f)The Planning Director shall make available to the public at the Planning Department counter and on the County of Kaua'i website a list of all completed applications for Nonconforming Use Certificates.Applications deemed completed shall concurrently be made available to the public.Copies of applications shall also be made available to the public as public information,as provided by H.R.S. Chapter 92F (the Uniform Information Practices Act).Such list shall include the names of the applicants and the tax map key number of the parcels which are the subject ofthe applications.The Planning Department may physically inspect a single family transient vacation rental prior to a Nonconforming Use Certificate being issued. (g)The Planning Director shall prepare an application form which shall be available to the public.If an operator as defined under Subsection (c)fails to apply for a Nonconforming Use Certificate within sixty (60)days ofAugust 16,2010 the Planning Director shall assess an administrative late application processing fee of one thousand five hundred dollars ($1,500.00)at filing.Applications received more than one (1)year after August 16,2010 shall not be accepted and the use of a transient vacation rental shall be deemed discontinued. (h)The owner or lessee who has obtained a Nonconforming Use Certificate under this Section shall apply to renew the Nonconforming Use Certificate annually on the date ofissuance ofthe Nonconforming Use Certificate. (1)Each application to renew shall include proof that there is a currently valid State of Hawai'i general excise tax license and transient 9 PIanning Department Version for Plamiing Commission Mtg.September 14,2021 accommodations tax license for the nonconforming use and shall be received by the Department prior to the expiration date of a held Nonconforming Use Certificate.Failure to meet this condition will result in the automatic denial ofthe application for renewal ofthe Nonconforming Use Certificates. (2)Upon renewal,the Planning Department may initiate re-inspection ofproperties for compliance with other provisions ofthis chapter, or other pertinent land use laws,and may withhold approval of a renewal application and issue cease and desist notices to the applicant until all violations have been resolved to the satisfaction ofthe Planning Director. (3)The applicant shall pay an annual renewal fee of seven hundred fifty dollars ($750.00)whlch shall be deposited into the County General Fund. Sec.8-17.11 Enforcement Against Illegal Transient Vacation Rentals. (a)In addition to other penalties provided by law,including,but not limited to,Secs.8-3.5(a)and 8-17.6,the Planning Commission Rules,as amended,the Planning Director,or any member of the public who has duly obtained standing pursuant to rules promulgated by the commission,may initiate proceedings to revoke or modify the terms of a Nonconforming Use Certificate pursuant to the Rules of Practice and Procedures of the Planning Commission,as amended.Violations of conditions ofapproval or providing false or misleading information on the application or in any information relating thereto at any time during the application process shall be grounds for revocation or cease and desist orders. (b)Advertising of any sort which offers a property as a transient vacation rental shall constitute prima facie evidence of the operation of a transient vacation rental on said property and the burden of proof shall be on the owner,operator,or lessee to establish that the subject property is not being used as a transient vacation rental or that it is being used for such purpose legally.If any unit is found to be operating unlawfully,penalties established in Secs.8-3.5(a)and 8-17.6 shall apply. Sec.8-17.12 Historic Properties Exeinption. Single family dwelling units on the National or State Register of Historic Places may be allowed to operate as a transient vacation rental through a Use Permit and by abiding by the development standards specified in Sec.8-17.8(b)." SECTION 10.Ifany provision ofthis ordinance,or the application thereof to any person or circumstance,is held invalid,the invalidity does not affect the other provisions or applications of this ordinance that can be given effect without the invalid provision or application,and to this end the provisions of this ordinance are severable. SECTION 11.Ordinance material to be repealed is bracketed.New ordinance material is underscored.When revising,compiling,or printing this ordinance for inclusion in the Kaua'i County Code 1987,as amended,the brackets, bracketed material,and underscoring shall not be included. SECTION 12.This Ordinance shall take effect upon approval.The requirements of this Ordinance shall not affect any application which has been approved by the Commission prior to the efFective date ofthis Ordinance,unless there is a subsequent approval required prior to a building permit,in which case,that subsequent application shall be subject to the relevant requirements of this Ordinance,excluding subdivisions which have received tentative approval prior to the approval date ofthis Ordinance. Introduced by: LUKE A.EVSLIN 10 Planning Depanment Version for Planning Commission Mtg.September 14,2021 DATE OF INTRODUCTION: MASON K.CHOCK Lihu e,Kauai,Hawai'i V:\BILLS\2020-2022 TERM\AgOpen-no TVR D6 AMK_dmc.docx 11 Ka'aina S.Hull Director of Planning Jodi A.Higuchi Sayegusa Deputy Director of Planning I.SUMMARY Action Required by PIanning Commission: COUNTY OF KAUA'I PLANNING DEPARTMENT DIRECTOR'S REPORT Consideration of Class IV Zoning &Use Permits to allow conversion of a commercial/retail space into a residential unit. Permit Application Nos.Class IV Zoning Permit Z-IV-2022-2 Use Permit U-2022-2 Name of Applicant(s)JOHN &ELIZABETH VON KRUSENSTE1RN Jonathan J.Chun,Esq.,Authorized Agent II.PERMIT INFORMATION PERMITS REQUIRED Use Permit Pursuant to Section 2.2.070 H.of the West Kaua'i Form- Based Code,a Use Permit is a procedural requirement to allow deviations from the development standards contained within the T4 Village Center (T4VC)Transect. Project Development Use Permit I1 Variance Permit Special Permit Zoning Permit Class ISIiv am Pursuant to Section 8-8.4 ofthe KCC,1987,as amended,a Class IV Zoning Permit is a procedural requirement for development of commercial zoned property that is greater than one (1)acre ill size. I1 Special Management Area Permit DUse [_]Minor AMENDMENTS I1 Zoning Amendment General Plan Amendment State Land Use District Amendment Q.:^' SEP 1 4 202; Date of Receipt of Completed August 2,2021 Application: Date ofDirector's Report:September 14,2021 Date ofPubIic Hearing: Deadline Date for PC to Take Action (60 Day): III.PROJECTDATA SEPTEMBER28,2021 November 13,2021 IV.LEGAL REQUIREMENTS Section 8-3.1(f),KCC:This report is being transmitted to the Applicant and Planning Commission in order to satisfy the Z-IV-2022-2,U-2022-2:Director's Report VON KRUSENSTEIRN 0903.2021 2 |Page PROJECT INFORAMTION Parcel Location:3731 Hanapepe Road,Hanapepe Town.The parcel is situated on the mauka side of Hanapepe,approx.550 north of the Hanapepe Road/Hana Road intersection. Tax Map Key(s):1-9-004:015 Area:6,808 square feet (SF) ZONING &DEVELOPMENT STANDARDS Zoning:T4 Village Center (T4VC) State Land Use District:Urban General Plan Designation:Neighborhood Center Height Limit:35 feet Max.Land Coverage:80%max. Parking Requirement:Per Section West Kauai FBC,Section 2.2.070 F., 1 stall per 1,500 gross square feet (gsf)minimum The existing building contains 3,561 SF of residential space.Based on the requirement noted above,the project As proposed,the development requires a total of two (2)off-street parking stalls. As proposed,the Applicant is proposing SEVEN (7)off-street parking stalls. Front Setback:O feet min,10 feet max. Rear Setback:10 feet min Side Setback:O feet min,10 feet max. Community Plan Area:West Kaua'i Community Plan (WKCP) Community Plan Land Use Designation: T4VC Deviations or Variances Requested:Yes.To allow residential use on the ground floor. requirements ofSection 8-3.l(f),relating to the provision of the Planning Director's report and recommendation on the subject proposal within sixty (60)days of the filing of a completed application.The application was received on August 2,2021,and the Applicant,through its authorized agent,was notified accordingly of the PIanning Department's intent to commence permit processing. ComnusSionMeetingDate:SEFTEMBER28,2021 V.PROJECT DESCRIPTION AND USE The project involves the renovation of an existing commercial/retail building in l-1anapepe Town that converts a retail space on the ground floor into a residential unit. The County's Tax Assessment records indicate the building was built circa.1938 and contains two (2)non-conforming residential units that pre-dated the adoption of the Comprehensive Zoning Ordinance (CZO).The residential units are considered "grandfathered." As represented in the Applicant's Floor Plan (refer to Exhibit 'H'of the Application),the retail area located on the ground floor of the building and along Hanapepe Road that is approximately 1,440 SF shall be converted into a residential unit.The proposed development will be the fourth residential apartment unit within the building. There will be a total of three (3)residential units on the ground floor and a single unit at the upper floor area.The area ofthe project is broken as follows: o Apartment #1 (Proposed):Measures 36'x 40'and features a Lanai along Hanapepe Road. o Apartment #2:Contains 2 Bedrooms,1 Full Bath,Kitchen and Living Room o Apartment#3:(Measures 18'x 42')Contains 1 Bedroom,1 Full Bath,Kitchen, and Living Room. o Apartment #4:(Measures 36'x 40')Contains 2 Bedroom,1 Full Bath,Kitchen, Living Room,and Lanai. It is noted that all ofthe residential apartment units have their own entrance.The Applicant did not disclose in their Application the number of bedrooms that will be included within Apartment #1,however,the total area is very similar to Apartment #4 located on the upper floor. Exhibit 'I'of the Application represents a total of seven (7)off-street parking stalls, however,it is uncertain as to whether vehicles can gain access to the rear portion of the subject property.In addition,the Applicant is providing a bicycle rack for its tenants. Z-tV-2022-2,U-2022-2;Director's Report VON KRUSENSTEIRN 09,03,2021 3|Page VI.APPLICANT'S REASONS/JUSTIFICATION Please refer to sections of the application. VII.FINDINGS 1.Project Site &Surroundings The site is situated on the westem edge of the historic Hanapepe Town Core strip and immediately abutting the Hanapepe River along its westem boundary.It is near the mauka (inland)crossing bridge over Hanapepe River.The project site is situated immediately across the street from the former Ueoka Store (TMK:1-9-005:006)and surrounded by commercial/retail uses.They contain a mixture ofuses ranging from hair salon,professional office,and retail stores. The nearest residential development is approximately 500 feet to the northwest (within Hanapepe Valley and along Awawa Road. 2.Flood Zones The general topography of the project site is relatively flat,containing a gentle slope from east to west,in the direction of the Hanapepe River.The Federal Emergency Management Agency (FEMA)Flood Insurance Map shows the project site is situated within the flood zone identified as Zone 'X'.FEMA has identified those areas within the Zone "X"are determined to be outside the 0.2%annual chance floodplain.It is also noted that the subject property as well as properties along the Hanapepe River are protected by the levee system along the riverbank. 3.Existing Land Use Permits The following information represents land use approvals/permits associated with the subject property: o CIass IV Zoning Permit Z-IV-77-35,Use Permit U-77-18 -This application received approval by the Planning Commission on June 22,1977,and it authorized a deviation from the commercial parking requirements. 4.Kaua'i General Plan (GP) The General Plan designation for the subject property is "NEIGHBORHOOD CENTER."The Neighborhood Center designation is focused on historic town cores and corresponds to existing or future areas appropriate for accommodating infill development and growth.In this district,it consists of a mixed-use core with a cluster of retail and service activity,civic spaces,and primary destinations,along with residential uses.This core area can support an interconnected network of streets and blocks that encourage multimodal transportation access.Centers typically comprise a mix of detached and attached buildings between 1 -5 stories in height. Z-IV-2022-2,U-2022-2;Director's Report VON KRUSENSTEIRN 0903.2021 4 |P a ge 5.West Kaua'i Community Plan (WKCP1 The subject property is covered by policies and development standards contained within the West Kaua'i Community Plan,Article 3 ofChapter 10,Kaua'i County Code (1987).More specifically,the project will be subjected to the standards contained in the West Kaua'i Form-Based Code (FBC),Appendix "C"of the WKCP,Section 2.2.070. 6.Vehicular Access The primary access to the project is through Hanapepe Road,which is a County roadway,and it is presently wide enough to accommodate two-way vehicular traffic. An existing driveway connecting into Hanapepe Road provides egress/ingress to the project site. VIII.AGENCY COMMENTS Attached as Exhibit 'A'. IX.PRELIMINARY EVALUATION In evaluating the Applicant's development proposal,the following aspects are being considered: 1.Hawai'i Revised Statutes (HRS) a.HRS Section 226,also known as the Hawai'i State Plan,is a long-range comprehensive plan that serves as a guide for the future long-range development of the State by identifying goals,objectives,policies,and priorities,as well as implementation mechanisms. b.The proposed development is in accordance with the following goals of the Hawai'i State Plan in that: 1)A strong,viable economy,characterized by stability,diversity,and growth,that enables the fulfillment of the needs and expectations of Hawaii's present and future generations. 2)A desired physical environment,characterized by beauty, cleanliness,quiet,stable natural systems,and uniqueness,that enhances the mental and physical well-being ofthe people. 3)Physical,social,and economic well-being,for individuals and families in Hawaii,that nourishes a sense of community responsibility,ofcaring,and of participation in community life. 2.General Plan a.The County General Plan (2018)acts as an over-arching values statement and provides a policy framework for the Kaua'i Island Plan and Community Plans within a twenty-year timeframe.The County General PIan provides broad goals, Z-IV-2022-2.U-2022-2;Director's Report VON KRUSENSTEIRN 09.03.202] 5 |Page objectives,policies,and implementing actions that portray the desired direction of the County's future. b.The proposed development is in accordance with the goals,objectives,and policies ofthe Kaua'i General Plan as demonstrated below: 1)Goal #1:Promote a Sustainable Island Objective:Improve the stewardship ofthe natural environment Policies: o The project is an example of responsible growth for an area that is designated for a mixture of commercial and residential uses. o It would fulfill the vision to create a live,work,and play lifestyle. 2)Goal #2:Stewardship and Protection of Unique and Beautiful Place Objective:Share kuleana,or responsibility to care for and protect treasured resources,traditions,and qualities of the natural,built,and human environment. o The project would complement the natural,cultural,social and built environmental assets of the Hanapepe community by providing a model environment to live,work,and play within West Kaua'i as well as the Hanapepe Town Core. o The proposal would be consistent with similar and historic uses in the area as well as development policies that is envisioned for the area. 3)Goal #3:Healthy and Resilient People Objective:Increase resilience and vitality of communities and improve natural,built,and social environment to promote better health outcomes. o As proposed,the project embraces the walkable community that was envisioned by the West Kaua'i Community Plan as well as the General Plan. 4)Goal #4:Equitable PIace,with Opportunity for All Objective:Foster diverse and equitable communities with vibrant economies,access to jobs and housing,and a high quality of life. o o o Similarly,the project supports and enhances economic and business opportunities by providingjobs for new business as well as affordable housing units. The project would add value to the town core by offering an opportunity to live,work,and play. The proposal supports the economy of the town core by having its residents support the local businesses in the area and offers its Z-IV-2022-2,U-2022-2;Director's Report VON KRUSENSTEIRN 09.032021 6 |Pag e residents altemative modes of transportation since it is in close proximity to the town core and public transportation along the main highway. o The project creates and fosters thriving commercial areas in the Town Center through improved infrastructure,civic space,and streetscapes. 5)Policies of the GP:The Applicanthas demonstrated the project's conformance to the policies contained in Section 1.4 of the General Plan. The discussion begins on Page 16,Section 8.4 ofthe Application. c.The project is consistent with the Neighborhood Center GP designation in that it serves as an opportunity to revitalize the Hanapepe Town Core by providing an opportunity for its residents to work,live,and play.What makes this project desirable is that it is centrally located to services and public transportation.With the Neighborhood Center designation,residents can take advantage of commercial amenities and recreational activities in the area.Furthermore,the project would economically diversify the neighborhood by adding permanent housing targeting a variety of incomes in an urban neighborhood comprising of retail businesses and govemment services. 2.West Kaua'i Communitv PIan (WKCP) a.As proposed,the project would be consistent with the Hanapepe Town Plan Community Vision of the WKCPs that reads,"The vision for Hanapepe is to protect the existing historic buildings,develop supportive infrastructure and facilities to enhance the commercial environment,and improve the livability ofthe residential neighborhoods.Small-scale develop,along with additional shared spaces,will produce a more walkable,mixed-use environment." b.Due to the project's centralized location,the project can be considered "distinct yet connected"since it is adjacent to well-travelled roadways that connects to commercial/retail facilities at the nearby shopping mall in Ele'ele &Port Allen,as well as commercial operations along the main highway in Hanapepe Town. c.The project is consistent with the sustainable strategies contained in the County s community plans with regards to the "10 Minute Walk."The strategy ensures that growth occurs near existing community centers to avoid sprawl and to accommodate anticipated housing needs at densities appropriate to the specific towns. d.Residential Density The properties that are immediately adjacent to the subject property are commercially zoned;the CZO designation is General Commercial District (C-G). As represented,the Applicant will be converting a retail space at the ground floor into a residential apartment and as a result,there will be a total of four (4) residential units on the property.With the form-based code standards that are 7|Page Z-IV-2022-2,U-2022-2;Director's Report VON KRUSENSTEIRN 09,03.2021 f. applicable to the property,there are no assigned density as long as the developments that occur on the parcel comply with the standards specified in Section 2.2.070 ofthe West Kaua'i Form-Based Code.As proposed,the project meets the criteria. Compatibility As previously noted,the project site is situated within the Transect T4 Village Center (T4VC).While the project is subjected to the design standards reflected in Section 2.2.070,the overall design of this project reflects and incorporates the historic architectural elements of the area.The site is surrounded by many historic buildings that define the Hanapepe town core and more importantly,its location is a part ofthe well-known "historic town core." A Use Permit was triggered since residential uses are not allowed on the ground floor within the T4VC,except when it is located behind an allowed ground floor use.As previously mentioned,the other three residential uses were grand-fathered. Prior to the adoption of the WKCP,it is noted that the zoning designation of subject parcel was C-G District,and with the recent amendments to the CZO,the proposed residential use would have now been an outright permitted use in that zoning district.Given that,the project would have met the Use Permit criteria established in Section 8-3.2(e)of the Kaua'i County Code (1987)and been compatible with the surrounding uses. As proposed,there will be no additions made to the structure.However,the Applicant is encouraged to utilize similar materials for the residential conversion in order to maintain the historical integrity of the building and to integrate the project with its surroundings. Off-Street Parking The development standards for the project are managed by the standards contained in the West Kauai FBC,Section 2.2.070.It specifies 1 stall per 1,500 gross square feet (gsQ.Based on the cumulative residential area of the project (approx.3,561 SF) and applying the foregoing standard,the project would require two (2)off-street parking stalls. However based on the size ofthe parcel,the department has reservations with regards to the provision of off-street parking for the residential units.In further considering the project and applying the CZO parking requirements,the project could be evaluated as a multiple-family residential project and thus requiring 1.5 stalls per residential/dwelling unit.Based on this standard,the project would require six (6)off-street parking stalls. As represented,the Applicant shall provide a total ofseven (7)off-street parking stalls and accommodations for bicycle racks for the project.Additionally,the Applicant is made aware that the PIanning Director may increase parking requirements when particular uses or locations occur in areas where unusual traffic Z-IV-2022-2,U-2022-2;Director's Report VON KRUSENSTEIRN 09.032021 8|Page congestion or conditions exist or are projected. Other factors to consider relative to the integration of the proposed development at this location are noted as follows: 3.Infrastructure The department is awaiting comments from various govemment agencies relating to the infrastructure serving this development.While infrastructure issues are generally resolved between the Applicant and respective agencies,certain issues warrant further discussion and analysis: a.Wastewater Treatment There is no public sewer available to the subject property.The State Department of Health (DOH)and County Department of Public Works (DPW) have not provided their recommendations for the project as it relates to wastewater capacity.As such,the Applicant would be advised that this issue should be resolved prior to submittal of any building permit application for any of the proposed buildings in the development. b.FIood/Drainage The department has not received DPW's recommendations for the project relating to drainage.A Drainage Study may be necessary to evaluate the impacts of stomi ninoff because of the development.Prior to permitting,the Applicant is advised that this issue be resolved prior to submittal of any building permit application. 4.Agencv Comments The Applicant should resolve and comply with all agency requirements as recommended in the permit application review,including but not limited to the fire code requirements as imposed by the County Fire Department, drainage/flood requirements for DPW-Engineering Division,wastewater requirements for the State Department of Health (DOH),and the archaeological/ historical requirements of the State Historic Preservation Division (SHPD). 5.Native Hawaiian Traditional and_Cultural Rights It is noted that the project site was previously disturbed since it is within an urban in the town core.While there wasn't a requirement prior to any development to conduct an Archaeological Inventory Survey at the time project was initially constructed in the 1970's,there has been no unexpected archaeological discoveries or any known impacts to Native Hawai'i Traditional and Cultural Practices on the subject property.However, the Applicant has been informed to contact the State Historic Preservation Division and Planning Department if they receive any knowledge of or discover any cultural/ historical resources. It is uncertain as to whether the Applicant has made provisions for night illumination with the project,based on the preliminary plans that have been submitted.If so,night 9 |P age Z-IV-2022-2,U-2022-2;Director's Report VON KRUSENSTEIRN 09.03.2021 illumination should be designed to minimize adverse impacts on the Federally Listed Threatened Species,Newell's Shearwater,and other seabirds.Night lighting should be shielded from above and directed downwards and shall be approved by the U.S.Dept.of the Interior Fish and Wildlife Service.If extemal lighting is to be used in connection with the proposed project,all extemal lighting should be only ofthe following type:downward- facing shielded lights.Spotlights aimed upward or spotlighting of structures is prohibited. X.PRELIMINARY CONCLUSION Based on the foregoing findings and evaluation,it is concluded that through proper mitigative measures and compliance efforts,the proposed development is appropriate relative to the provision of providing altemative housing opportunities within Hanapepe Town. It is further concluded that in anticipating the agency requirements from the State DOH and County DPW,various technical requirements relating to infrastructure improvements need to be resolved during the land use permit process and prior to building permit application. The Applicant should institute the "Best Management Practices"to ensure that the operation ofthis facility does not generate impacts that may affect the health,safety,and welfare ofthose in the surrounding area ofthe proposal. XI.PRELMINARY RECOMMENDATION Based on the foregoing evaluation and conclusion,it is hereby recommended that the proposed development involving the conversion of the commercial/retail space into a residential unit through Class IV Zoning Permit Z-IV-2022-2 and Use Permit U-2022-2 be APPROVED with the following conditions: 1.The project and its amenities shall be constructed and operated as represented.Any changes to the subject buildings and/or operations shall be reviewed by the Department to determine whether Planning Commission review and action is required. 2.As represented,the Applicant shall provide a total of seven (7)off-street parking stalls and accommodations for bicycle parking &storage for the project.However, the Applicant is made aware that the PIanning Director may increase vehicle and bicycle-parking requirements when particular uses or locations occur in areas where unusual traffic congestion or conditions exist or are projected. 3.At the time of building permit application,an Environmental Impact Assessment fee of \$1,000 shall be paid pursuant to Section 11A ofthe Kauai County Code. 4.Prior to building permit application,the Applicant shall resolve the following infrastructure requirements to the satisfaction of the respective agency,and shall 10 1 Pag e Z-IV-2022.2,U-2022-2;Director's Report VON KRUSENSTEIRN 09.03.202] submit corresponding communication to the PIanning Department that addresses these matters: a.Wastewater treatment for the project through the State Department of Health (DOH)and County Department of Public Works (DPW); and b.Flood &drainage requirements for the project through the County DPW. 5.In order to minimize adverse impacts on the Federally Listed Threatened Species, Newell's Shearwater and other seabirds,all extemal lighting shall be only of the following types:downward-facing shielded lights.Any spotlights aimed upward or spotlighting of structures,landscaping,or the ocean shall be prohibited. 6.The Applicant shall comply with the fire code requirements as imposed by the County Fu'e Department,drainage/flood requirements for DPW-Engineering Division, wastewater requirements for the State Department of Health (DOH),and the archaeological/historical requirements of the State Historic Preservation Division (SHPD). 7.Prior to operation/occupancy of the proposed residential unit,written confirmation of compliance with the requirements from all reviewing agencies shall be provided to the Planning Department. 8.The Applicant shall develop and utilize Best Management Practices (B.M.P.'s) during all phases of development in order to minimize erosion,dust,and sedimentation impacts ofthe project to abutting properties. 9.The Applicant shall implement to the extent possible sustainable building techniques and operational methods for the project,such as Leadership in Energy and Environmental Design (L.E.E.D.)standards or another comparable state-approved, nationally recognized,and consensus-based guideline,standard,or system,and strategies,which may include but is not limited to recycling,natural lighting, extensive landscaping,solar panels,low-energy fixtures,low energy lighting and other similar methods and techniques.All such proposals shall be reflected on the plans submitted for building permit review. 10.The Applicant is advised that prior to construction and/or use,additional govemment agency conditions may be imposed.It shall be the Applicant's responsibility to resolve those conditions with the respective agency(ies). 11.The Planning Commission reserves the right to add or delete conditions of approval in order to address or mitigate unforeseen impacts this project may create or revoke the permits through the proper procedures should conditions of approval be violated or adverse impacts be created that cannot be properly addressed. The Planning Commission is further advised that this report does not represent the PIanning Department's final recommendation in view ofthe forthcoming public hearing 11 |P a ge 2-IV-2022-2,U-2022-2;Director's Report VON KRUSENSTEIRN O?03.2021 process scheduled for SEPTEMBER 28,2021,whereby the entire record should be considered prior to decision-making.The entire record should include but not be liinited to: a.Pending govemment agency comments; b.Testimony from the general public and interested others;and c.The Applicant's response to staff s report and recommendation as provided herein. By DALE A.C Planner mended to Commission: KA'AINA &JHULL Director of Planning Date ^ ^-l^^ Z-IV-2022-2,U-2022.2;Director's Report VON KRUSENSTEIRN 09.03.2021 12 1 Pag e EXHIBIT"A" (Agency Comments) For reference r ^ountyofKdii;-, PLANNINGDEP).COUNTY OF KAUA'I PLANNING DEPARTMENT 4444 RICE STREET,SUITE A473 LlHU'E,HAWAI'I 96766 2'/!UG 27 fl 9:35 (808)241-4050 r-..^IVu^..;:,....._Lyiji.'j ry'~.~~~J'^i!i AtlG 1 0 2020 |'-/,' i ••-.^iBIHr'TT^'i'"^-^--,;!.-,' (-.',.••^:-""••-•}; (Dale)August3,2021FROM.-Kaaina S.Hull,Director SUBJECT:CIass IV Zoning Permit Z-IV-2022-2,Use Permit U-2022-2,Office And Office Buildings Tax Map Key:(4)l-9-004:015,John And Elizabeth Von Krusensteim, Applicant TO: a Department of Transportation -STP DPW-Engineering a DOT-Highway,Kauai(info only)DPW-Wastewater a DOT-Airports,Kauai (info only)a DPW-Building a DOT-Harbors,Kauai (info only)D DPW-SolidWaste State Department of Health Department of Parks &Recreation D State Department of Agriculture Fire-Department a State Office of PIanning D County Housing-Agency a State Dept.ofBus.&Econ.Dev.Tourism D County Economic Development a State Land Use Commission D KHPRC State Historic Preservation Division Water Department a DLNR-Land Management a Kaua'i Civil Defense a DLNR-Foresty &Wildlife U.S.Postal Department a DLNR-Aquatic Resources a UH Sea Grant a DLNR-OCCL County Transportation Agency Other: FOR YOUR COMMENTS (pertaining to your department): See comments on attached sheet. August 12,2021 )arren T^nek^zu,^jfeting Chief This matter is scheduled for a public hearing beforeDte6®tlstytfi<teetiS!&9BafcBeatahs&Bfite Kauai 9/28/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lihue,Kauai,at 9:00 am or soon thereafter.If we do not receive your agency comments within one (1) month from the date of this request,we will assume that there are no objections to this permit request. Mahalo! r'r' Class IV Zoning Permit Application:Z-IV-2022-2 Use Permit:U-2022-2 Applicant:John &Elizabeth Von Krusensteirn Based on our review ofthe application,we have the following environmental health concerns for your consideration at this time. 1.Temporary fugitive dust emissions could be emitted when construction activities occur.In accordance with Title 11,Hawaii Administrative Rules (HAR),Chapter 11-60.1 "Air Pollution Control",effective air pollution control measures shall be provided to prevent or minimize any fugitive dust emissions caused by construction work from affecting the surrounding areas.This includes the off-site roadways used to enter/exit the project.The control measures include but are not limited to the use of water wagons,sprinkler systems,dust fences,etc. 2.Noise will be generated when construction begins.The applicable maximum permissible sound levels as stated in Title 11,HAR,Chapter 11-46,"Community Noise Control"shall not be exceeded unless a noise permit is obtained from the State Department of Health (DOH). 3.lnaccordancewithTitle11,HAR,Chapter 11-58.1,entitled "Solid Waste Management Control",the grubbed material and construction waste that will be generated bythe project shall be disposed ofat a solid waste disposal facility that complies with the DOH.The open burning of any of these wastes on or off site is prohibited. Due to the general nature of the application submitted,we reserve the right to implement future environmental health restrictions when information that is more detailed is submitted. Ka'aina S.Hull DirectorofPIanning Jodi A.Higuchi Sayegusa Deputy Director ofPlanning COUNTY OF KAUA'I PLANNING DEPARTMENT SUPPLEMENT #1 TO PLANNING DIRECTOR'S REPORT RE:Previously considered through Class IV Zoning Permit Z-IV-2021-8 and UsePermit U-2021-7 APPLICANT:MICHAEL KAPLAN Laurel Loo,Esq.,Authorized Agent Background The subject permits were scheduled before the PIanning Commission at their meeting on April 13,2021.At that meeting,a Petition for Intervention was filed and subsequently addressed at the following meeting on May 11,2021.The Commission voted to deny the intervention request and moved forward with the Agency Hearing involving the subject application. During the hearing,there was public testimony expressing concems that the project would impact cultural resources on the property.In particular,there were numerous individuals who mentioned the presence ofa "birthing stone"on the Kuleana Lot.An Archaeological Inventory Survey Report (AISR)was prepared for the subject parcel and approved by the State Historic Preservation Division (SHPD)on April 5,2010 and identified two (2)historic sites.The AISR did not identify any birthing stones but did recognize pohaku (large rocks)on the Kuleana Lot. Based on the public testimony and concems over impacts to cultural resources on the property, the Commission requested additional time to research this matter and address additional cultural resource and cultural practice issues.At the May 11,2021 meeting,the Applicant was unwilling to consent to additional time and subsequently,the Commission voted to deny the subject permits. The Applicant appealed this decision to the Circuit Court of the Fifth Circuit (Civil No.5CCV- 21-0000057).In this appeal and under the authority ofthe Court,a draft settlement has been submitted to the Commission to review under Court Seal. Commission's Consideration This matter is being forwarded to the Planning Commission for consideration.On behalf of the Applicant,Ku'iwalu prepared an "Expert's Written Assessment Related to Native Hawaiian Traditional and Customary Practices on Kuleana Lot Owned by Kaplan TMK No:(4)5-2-012- 019 (Kuleana Lot)"dated August 24,2021 (Exhibit A).This report contains an analysis that complies with the analytical framework detailed in Ka Pa'akai O Ka'aina v.Land Use I.\.« SEP 1 4 202.1 Commission,94 Hawai i 31,(2000)and recommended actions to address cultural resource and cultural practioner concems raised at the agency hearing.It is further noted that the Department prepared its Director's Report that recommended approval of the project with a total of twelve (12)conditions for the initial hearing (Exhibit B). Should the Commission agree with the findings ofthe Ku'iwalu report and decide to approve the project,the PIanning Department recommends that all ofthe 12 conditions initially recommended in the Director's Report as well as the recommendation contained in the Ku'iwalu report be incorporated as conditions of approval. 1. 4. 5. 6. 7. The project shall be constmcted as represented.Any changes to the operation and/or the respective structures shall be reviewed by the Department to determine whether Planning Commission review and approval is warranted. In order to ensure that the project is compatible with its surroundings and to minimize the visual impact of the structure,the extemal color of the proposed residence shall be of a moderate to dark earth-tone color.The proposed color scheme and a landscape plan should be submitted to the PIanning Department for review and acceptance prior to building permit application. The Applicant shall submit for review and approval by the Planning Department, a landscape plan composed of native species,or species common to the area,to help to screen the proposed structures,and integrate the site with its surroundings. The Applicant is made aware that the proposed residence shall not be utilized for any transient accommodation purposes.It shall not be used as a transient vacation rental (TVR)or as a homestay. Ifextemal lighting is to be used in connection with the proposed project,all extemal lighting should be only of the following type:downward-facing shielded lights.Spotlights aimed upward or spotlighting of stmctures is prohibited. The Applicant shall develop and utilize Best Management Practices (BMPs) during all phases of development in order to minimize erosion,dust,and sedimentation impacts ofthe project to abutting properties. Unless otherwise stated in the permit,once a permit is issued,the Applicant must make substantial progress,as determined by the Director,regarding the development or activity within two (2)years,or the permit shall be deemed to have lapsed and be no longer in effect. The Applicant should resolve and comply with all agency requirements as recommended in the permit application review,including but not limited to the buildmg permit &drainage requirements of the County DPW Engineering Division,County Fire,Department,potable water &fire protection Z-IV-2021-8;U-2021-7;Supplement »1 to Director's Report KAPLAN 09.07.2021 requirements for the County Dept.of Water,and regulations involving enviroiunental concems as administered by the State Department of Health. 9.Since there are known archaeological sites (agricultural terraces)on the subject parcel,the Applicant shall closely with State Department ofLand and Natural Resources -Historic Preservation Division (SPIPD)in order to ensure that these archaeological sites remain undisturbed and/or unaffected by the proposed construction activities.Furthermore,the Applicant is advised that should any archaeological or historical resources be discovered during ground disturbing/construction work,all work in the area of the archaeological/historical findings shall immediately cease and the Applicant shall contact the SHPD and the Planning Department. 10.Prior to commencement of the proposed development,written confirmation of compliance with the requirements from all reviewing agencies shall be provided to the Planning Department. 11.The Applicant is advised that prior to constmction and/or use,additional govemment agency conditions may be imposed.It shall be the Applicant's responsibility to resolve those conditions with the respective agency(ies). 12.The Planning Commission reserves the right to add or delete conditions of approval in order to address or mitigate unforeseen impacts this project may create,or revoke the permits through the proper procedures should conditions of approval be violated or adverse impacts be created that cannot be properly addressed. 13.Based upon the AISR,SHPD concurrence,and relevant public comments,the following feasible action or mitigation measure,if any,to reasonably protect Native Hawaiian right if they are found to exist are recommended for consideration: a.Archaeological monitoring shall be present during ground disturbance activities associated with the construction of the single-family dwelling,including activities related to utility trenching and excavation for both the septic system and the house foundation. b.In the event iwi kupuna or subsurface resources are discovered during construction,all work in the immediate area shall cease and compliance with State Historic Preservation laws shall apply. c.No further work is required to protect or preserve Site 2012,the concrete slab,and the Permits may be issued because the AISR sufficiently documented the historic property. Z-IV-2021-8;U-2021-7;Supplemenl »1 to Direclo^s Report KAPLAN 09.07.2021 d.No further work is required to preserve or protect portions of Site 2011,the nine terraced fields,and the Permits may be issued because the AISR sufficiently documented the historic property on the Kuleana Lot,and an Archaeological Preservation Plan (Preservation Plan)shall be prepared for the adjacent properties (TMK:(4)5-2-21:041 (por.)&5-2-21:041-001 &5-2-12:35 por. &5-2-21:004 por.(Adjoining Lots),that will accommodate the functional restoration ofthe irrigation system and lo'i kalo,which is consistent with SHPD's concurrence letter ofjuly 24,2012. e.Based upon comments and recommendations by some members of the public,the restoration of the irrigation system on the Adjoining Lots,as set forth in the Preservation Plan,shall be done either by or in consultation with knowledgeable trained cultural practitioners on lo'i kalo restoration from the area, especially those who may have ancestral connections to the Kuleana Lot,to ensure cultural protocols are adhered to and the restoration is grounded in the unique lo'i kalo practices of KTlauea.The Kaplans may contact Mehana Blaich Vaughan for ancestral descendants and knowledgeable trained cultural practitioners. f.Based upon comments by some members of the public,the landscaping of both the Kuleana Lot and the Adjoining Lots should use appropriate native plants to the extent feasible. g.The Kuleana Lot and the Adjoining Lots are unique for several reasons, 1)it was awarded to Naiamaneo,a woman and widow,when kuleana lands were historically awarded only to native Hawaiian males,2)it contains a unique mauka lo'i kalo system unlike most of the lowland river bottom or makai lo'i kalo systems of Kaua'i,and 3)the Kaplans own both the Kuleana Lot and the Adjoining Lots.The uniqueness of these lots provides the Kaua'i Planning Commission the opportunity to fully embrace Article XII,Section 7,state law,andjudicial precedent that seeks to find balance between preserving and protecting traditional and customary native Hawaiian rights and practices and private landowners right to develop.Thus,the feasible action or mitigation for the impact of the completion of the construction of the farm dwelling on the Kuleana Lot on the valued cultural,natural,and historic resources, including traditional and customary practices,the Kaplans shall coordinate with the Kilauea community,for example community stakeholders including descendants of the Kuleana Lot and immediate surrounding 'aina (to the extent that they are amenable)and cultural practitioners to implement the Preservation Plan which is applicable only to the Adjoining Lots,and if appropriate,modify the Preservation Plan to address community recommendations in coordination with SI-FPD and Z-IV-2021-8;U-2021-7;Supplement 11 to Director's Report KAPLAN 09.07.2021 ensure that access to the cultural practitioners to continue to exercise their traditional and customary practices,including the practice of malama aina,mo'olelo,and kilo are protected.To ensure there is coordination with the KIlauea Community,the Kaplans shall comply with the following: 1)submit annual reports to the Planning Director before December 31 of each year until the issuance of the Certificate of Occupancy for the Kilauea Lot,unless otherwise made applicable by the Commission to the entitlements for the Adjoining Lots,providing a status update on the coordination and implementation of the Preservation Plan,and 2)submit a copy of the annual report to the community stakeholders 30 days before submission to the Planning Director to provide the community an opportunity to provide their comments on the annual report to the Planning Director.The coordination and implementation of the Preservation Plan for the Adjoining Lots shall not preclude the timely issuance ofthe subject Permits for the Kuleana Lot. By Dale A.Cua PIanner Recommended to Commission for Consideration: KA'AINA S.PIULL Director of Planning Date:^/^/^ll Z-IV-2021-8;U-2021-7;Supplemenlifl lo Director's Repoit KAPIAN 09.07.2021 EXHIBIT"A" (Ka Pa'akai Analysis) For reference ^ Ku'iiwaiu Expert's Written Assessment Related to Native Hawaiian Traditional and Customary Practices On Kuleana Lot owned by Kaplan TMK No:(4)5-2-012-019 (Kuleana Lot) Submitted by Dawn N.S.Chang,Esq. DatedAugust24,2021 I.Introduction A.Project Site and Proposed Project Michael Kaplan,Trustee ofthe Michael A.Kaplan Revocable Trust,dated August12,1992 (Kaplan)owns real property identified as TMK:(4)5-2-012-019 located within the Kahili Ahupua'a Ko'olau District,Island and County ofKaua'i,State ofHawai'i (subject parcel).The subject parcel is a former kuleana that was awarded to Naiamaneo during the Mahele as Land Commission Award (LCA)10333.The County of Kaua'i recognizes the subject parcel as a Kuleana (hereinafter referred to as Kuleana Lot).The Kuleana Lot consists ofa 0.735 acre parcel,located near the town ofKTlauea. On February 11,2021,Kaplan submitted an Application for a Use Permit and Class [V Zoning Permit (Application)to the Kaua'i County PIanning Department (KCPD)to complete construction ofafarm dwelling unit.Kaplan specifically requested approval ofCIass IV Zoning Permit Z-IV-2021-8 and Use Permit U-2021-7 (Permits)to complete the construction.On April 13,2021 and May I 1,2021,public hearings were held on the Application and public comments were provided at both public hearings in relation to the Kuleana Lot. B.County's Constitutional Obligation The State and its agencies are obligated to preserve and protect the reasonable exercise of customarily and traditionally exercised rights ofnative Hawaiians to the extent feasible.This affirmative obligation is set forth in the Hawai'i State Constitution (Article Xll,section 7),State Laws (Hawai'i Revised Statutes Sections 1-1 and 7-1),andjudicial precedent.The Court has held that state agencies may not act without independently considering the effect oftheir actions on Hawaiian traditions and practices.Public Access Shoreline v.Hawai'i Countv Planning Commission (PASH).903 P.2d 1246,79 Haw.425 (1995). 'Article XII,section 7 ofthe State Constitution provides that that State reaffirms its obligation and shall protect all rights,customarily and traditionally exercised for subsistence,cultural and religious puq?oses and possessed by ahupua'a tenants who are descendants ofnative Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right ofthe State to regulate such rights. To assist the state and its agencies in fulfilling its constitutional obligation as set forth in Article XII,section 7,the court has provided an analytical framework "to accommodate the competing interests ofprotecting native Hawaiian culture and rights,on the one hand,and economic development and security,on the other."Ka Pa'akai O Ka 'Aina v.LUC (Ka Pa'akai),94 Haw. at 46,7 P.3d at 1083 (2000).The analytical framework provides the following,(1)the identity and scope ofvalued cultural,historical,or natural resources in the petition area,including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area;(2)the extent to which those resources,including traditional and customary native Hawaiian rights,will be affected or impaired by the proposed action;and (3)the feasible action, ifany,to be taken by the LUC to reasonably protect native Hawaiian rights ifthey are found to exist.Id.at 47,7 P.3d at 2084. C.Scopeand PurposeofAssessment The KCPD has requested that an expert consultant (Consultant)be engaged to conduct an assessment related to Native Hawaiian traditional and customary practices,ifany,on the Kuleana Lot.The assessment shall consist ofoutreach to the members ofthe public who submitted oral or written testimony at or for the public hearings regarding Native Hawaiian traditional and customary practices on the Kuleana Lot.The Consultant shall make good faith efforts to contact those identified members who provided oral or written testimony related to Native Hawaiian traditional and customary practices on the Kuleana Lot.The Consultant shall prepare a written assessment ofthe Ka Pa'akai analytical framework for the Kuleana Lot which shall be submitted to the Kaua'i County Planning Director (Planning Director) The KCPD identified fifteen individuals who provided oral or written testimony that made reference to cultural resources on the Kuleana Lot that should be contacted.KCPD provided contact information for most but not all the individuals.The Consultant reached out by telephone or email to twelve ofthe individuals where contact information was provided.Ofthe twelve individuals,the Consultant was able to interview or talk story to nine ofthe individuals. Interviews were conducted between August 11,2021 and August 17,2021.Four ofthe individuals had no personal knowledge ofany cultural,historic,or natural resources on the Kuleana Lot nor did they have any personal knowledge of any traditional and customary practices on the Kuleana Lot.Five individuals were familiar with the property and had some knowledge ofcultural,historic,and natural resources on the Kuleana Lot.These individuals also identified some traditional and customary practices that may have been exercised on the Kuleana Lot but were not aware ofany traditional and customary practices currently being exercised on the Kuleana Lot.None of the five individuals claimed that they were ancestral descendants to the Kuleana Lot.However,the court in PASH noted,"the right ofeach ahupua'a tenant to exercise traditional and customary practices remains intact,notwithstanding arguable abandonment ofa particular site,although this right is potentially subject to regulation in the public interest."PASH 903 P.2d at1271,79 Haw at 450.Thus,the comments from these five individuals are relevant to the assessment even ifthey are not descendants ofthe ahupua'a tenant. D.Expert's Qualification My mother is Edna Kealohapauole Ho'okano Shiroma,her father was Kamiko Ho'okano,his father was Willy Ho'okano,and his mother was Louisa Cooke Ho'okano and his father was 'Iokewe Ho'okano.Our 'ohana come from the ahupua'a ofKahalu'u on Oahu and still own several kuleana parcels that were used for lo'i kalo and residence.My Tutu and other members ofour 'ohana are buried on our kuleana lands in both marked (headstone)and unmarked (near a ti or pohaku)burials.Our 'ohana are lawai'a (fishers)who practiced traditional fishing using ko'a and continue to fish in an area traditionally known as Ka-waha-o-ka-mano (Kaneohe Bay). I have a Master's Degree in Social Work and was a community organizer for the Queen Lili'uokalani's Children's Center in Waimanalo in the 1970's.I graduated from the William S. Richardson School ofLaw in 1985.After graduating from law school,I clerked forjudge Walter Heen with the Intermediate Court ofAppeals for several years beforejoining the State Attomey General's (AG)Office.As a Deputy Attomey General,I served as counsel to various Boards and Commissions with the Department ofLand and Natural Resources.During my tenure at the AG's Office,I had the privilege ofdrafting the Hawai'i State Burial Laws (HRS,Chapter 6E-42)and litigating numerous cases involving Native Hawaiians rights and issues,including State v.OHA (2009)involving the alienation ofstate ceded lands which was decided by the U.S. Supreme Court.Since 2001,1 have been the Principal and owner ofHo'akea LLC dba Ku'iwalu,a consulting finn that specializes in facilitating culturally sensitive and contentious issues,including preparation ofcultural impact assessments.Currently,I also sit on the Hawai'i State Land Use Commission.In addition to my private consulting work,I offer training on Native Hawaiian Land Laws and Rights,including on Traditional and Customary Native Hawaiian Rights,to private and govemment agencies. II.Ka Pa'akai Analysis A.The identity and scope ofvalued cultural,historical,or natural resources on the Kuleana Lot,including the extent to which traditional and customary native Hawaiian rights are exercised on the Kuleana Lot. /.An Archaeological Inventory Survey (A1S)ofthe Kuleana Lot was conducted in 2009 by Rechtman Consulting and the AIS Report (AISR)was submitteci to the State Historic Preservation Division (SHPD)in February 2010 and revised in April 2010. The AISR was approved by SHPD on April 5,201 0.The AISR included archival research,previous archaeological studies,site inspection and consultation.The AISR identifies thefollowing valued cultural,historical,or natural resources on or adjacent1 to the Kulecma Lot: The coun in Ka Pa'akai found that LUC erred in not considering resources outside the proposed project site."Moreover,none ofthe LUC's findings or conclusions addressed possible native Hawaiian rights or cultural resources outside ofKD's 235-acre RMP,such as Ka Pa'akai's members'use ofthe mauka-makai trails to reach salt-gathenng areas,the religious signiflcance of the 1800-1 801 lava flow,or the gathering of Pele's Tears."Ka Pa'akai 7 P.3d at 1086,94 Haw.at 49. The Kuleana Lot was awarded in 1848 to Naiamaneo as LCA 10333.Naiamanco was the widow ofO'opu who died in 1847.Her husband was given the land by the konohiki in the days oflCamuali'i (prior to 1824).Naiamaneo claimed that her house was elsewhere and that the kuleana consisted ofseveral small irrigated taro fields (lo'i)and adjacent kula (flat)land in the 'ili (section ofland smaller than an ahupua'a)ofKupa.The Mahele records indicate that the lower reaches of KTlauea Gulch (primarily in Kahili Ahupua'a)supponed more than twenty-five lo'i,house sites,and kula land where noni,wauke,and oranges were cultivated. Radiocarbon dates obtained through subsurface excavation within the fields have shown that initial construction ofthe terraces typically occurred during the Precontact Period (priorto 1778);4 At some point in time,the Kuleana Lot became part ofthe Kllauea Sugar Plantation Company.Based upon the A1SR archival research,rice was also grown on the KTlauea Sugar Plantation lands displacing the taro fields.Taro fields were most desirable for rice production because the taro could be uprooted easily, and the fields usually carried water rights with them.By 1892 fifty-five acres of rice were under cultivation in KTlauea,and the plantation eventually included its own rice mill that was located to the northeast of the Kuleana Lot.Mike Dyer who purchased the Kuleana Lot from Kilauea Sugar Plantation Company was consulted during the AIS.He confirmed that the terracing was in place prior to his ownership and that there were foundation remains of an old structure that he referred to as a small rice mill.In addition,a 1925 map that was prepared for the KTlauea Sugar Plantation Company showed that by the early twentieth century the taro lo'i in the vicinity ofthe Kuleana Lot had been converted to the cultivation of rice and vegetables,and two structures were present next to the property; During the AIS,Merri Lee Chandler,a kupuna ofthe KTlauea area,was consulted and asked about any personal knowledge she might have conceming the Kuleana Lot.She had no information about the Kuleana Lot or its former use.According to the AISR,Ms.Chandler also checked with other kupuna and could not find anybody who had historical knowledge ofthe Kuleana Lot; The AISR identified two historic sites within the Kuleana Lot.The first site was State Inventory ofHistoric Places (SIHP)Site 50-30-04-2011 (Site 201 1),a series ofnine terraced fields (Fields 1-9)that covered the entire Kuleana Lot.However, these fields are part ofa larger irrigated field system that continues beyond the boundaries ofthe Kuleana Lot to the adjoining property situated to the south and east ofthe Kuleana Lot.The field system was once irrigated by an 'auwai that ran across the steep slope from a point above the waterfall along the stream (south 'Seepage 14oftheAISR."Seepage23oftheAISR. 'Seepage ISoftheAISR.6 See page 23 ofthe AISR.7Id. "Id. 2. ofthe Kuleana Lot).Each field consists ofan artificially leveled garden bed with a stone retaining (terrace)wall along its down slope edge.Three trenches were excavated as part ofthe AIS fieldwork,and they confirmed that the terrace walls were only present at the surface and did not extend into the subsurface soil deposit.Some ofthe walls may have been shifted or been dismantled to accommodate the residential structures that were added to the property by the previous landowner.The AISR concluded that Site 2011,which consisted of nine terraced fields on the Kuleana Lot was part of a much larger terrace system beyond the boundaries ofthe Kuleana Lot and is considered significant under Criterion D for the information it yields,relative to the Precontact and Historic use ofthe general project area.Although Site 2011 was considered significant, the AISR recommended as treatment that no further work be required,in other words the AISR did not require preservation ofthe nine terraces.It appears the basis for that recommendation was based upon,1)the AISR included sufficient documentation ofSite 2011 (9 terraced fields)that was on the Kuleana Lot,and 2) the landowner ofthe Kuleana Lot who also owns the adjoining land upon which Site 2011 extends and expressed a desire to restore and preserve the remaining portions (69 terraced fields)ofSite 2011 located beyond the boundaries ofthe Kuleana Lot; •The second site identified in the AISR was SIHP Site 50-30-04-2012 (Site 2012) which consists ofa cobble lined concrete slab located along the southeastem boundary ofthe Kuleana Lot.The slab is partially intact,and most ofthe concrete is missing from its northwestem half.The concrete slab dates to the Historic Period and the AISR suggests that the concrete slab may have been the foundation for one ofthe two structures that was visible in the 1925 map.The AISR concluded that Site 2012 is significant under Criterion D for information it has yielded related to the Historic use ofthe project area.However,the AISR recommended no further work as treatment. The relevant oral and written public testimony presentect at the two Kaua 'i County Planning Commission (KCPC)public hearings (April 13 and May 11.2021), identijied thefollowing cultural,historical,and natural resources,including traditional and customary native Hawaiian practices that may be related to the Kuleana Lot: Several ofthe relevant public testifiers stated that the Kuleana Lot is culturally significant because ofthe lo'i terrace complex,on both the Kuleana Lot and the 9 See page 25 ofthe AISR.10 Criterion D is set forth in the DLNR,SHPD,Hawai'i Administrative Rules §13-284-6. The adjoining lotto the Kuleana Lot is identified as TMK:(4)5-2-021:041 (por.),consists ofan agricultural complex of69 formerly irrigated,terraced fields (Fields 1-69)located within a roughly 4.5 acre area.An Archaeological Preser^ation Planfor a Portion ofSite 50-30-04-20]l,Kahili Ahupua'a,Ko'olau District,Island of Kaua'i,was prepared by ASM affiliates for Michae!and Rose Kaplan,dated October 2019 (revised January 2020).12 See page 40 ofthe AISR.13 See page 36 ofthe AISR. 14 See page 40 ofthe AISR. adjoining Lot which are both owned by the Kaplans.Mehana Blaich Vaughan (Vaughan)speciflcally noted that,"This is a significant site,one ofthe few lo'i systems in Hawai'i not located on the floor ofa river valley where rich depositions ofsediment provide nutrients to kalo."There were others who compared the lo'i complex to being even more beautiful than Limahuli andjust "chicken skin"because ofits unique location and the fact that most ofthe fields are intact; •There were numerous individuals who mentioned the presence of'birthing stone(s)"on the Kuleana Lot.However,most ofthe individuals did not have personal knowledge ofwhere on the Kuleana Lot the birthing stones were located, ifthey were removed,or ifthey were even birthing stones.There were several individuals who firmly believed,based upon credible source,that the Kuleana Lot has or had birthing stones located on the property and felt a deep sense of hurt and disrespect that the birthing stones may no longer be on the Kuleana Lot. Vaughan shared that she actually walked the Kuleana Lot with several community members and practitioners and saw multiple large pohaku that they felt were culturally significant,although they did not believe they were birthing stones.In addition,although the AISR does not identify birthing stones in their findings,it does note that there are pohaku on the Kuleana Lot; •In addition to the lo'i complex and birthing stones or pohaku as cultural resources, several traditional and customary practices related to the Kuleana Lot were identified including,1)the right to access to continue to malama or the practice of care and guardianship ofplaces that have significance to ancestors,gods,and 'ohana,2)practice ofmo'olelo or perpetuation of stories ofthis 'aina which requires visiting and viewing places which have connection to mo'olelo,and 3) the practice ofkilo or seasonal observation ofweather pattems,stars lines and the path ofthe sun and moon over the mauna. B.The extent to which these resources,including traditional and customary Native Hawaiian rights will be affected or impaired by the proposed action; /.The AISR doesn 't specificalty describe the impacts ofthe proposed construction ofthe single-family dwelling on Sites 201 l or 2012. *However,it recommends that the detailed mapping and subsurface testing "is adequate to mitigate any potential impacts that may result from the construction ofthe single-family dwelling on the parcel." 2.Several ofthe relevant pubiic testifiers noted impacts ofthe proposed construction of thefarm dwelling to the identified cultural resources (specifically the terraced lo 'i Mehana Blaich Vaughan confirmed the accuracy ofthis information and gave oral permission to the Consultant to identify her in the assessment.I6Seepage40oftheAISR complex and the birthing stones or pohaku)and Iraditional and ciistomary practices. These impacts include the following: •Displacement ofseveral ofthe terraced fields (Site 2011)within the Kuleana Lot; •Removal ofthe birthing stones or pohaku,removes the mana from the place; •Hurt,pain,and disappointment that cultural descendants or community members were not consulted before these actions were taken which is disrespectful; •No access to Native Hawaiian tenants to continue to exercise their traditional and customary practice ofmalama 'aina for this land. III.RECOMMENDATION A.Based upon the AISR,SHPD concurrence,and relevant public comments,the following feasible action or mitigation measures,ifany,to reasonably protect Native Hawaiian rights ifthey are found to exist are recommended to the KCPC for consideration: /.Archaeological monitoring shall be present during ground disturbance activities associated with the construction ofthe single-family dwelling,including activities related to utility trenching and excavationfor both the septic system and the house foundation; 2.In the event iwi kupuna or subsurface resources are discovered during construction, all work in the immediate area shall cease and compliance with State Historic Preservation laws shall appty; 3.NofurtherworkisrequiredtoprotectorpreserveSite2012,the concrete slab,and the Permits may be issued because the AiSR sufficiently documented the historic property; 4.No further work is required to preserve or protect portions of Site 2011,the nine terracedfields,and the Permits may be issued because the AISR sufficiently documented the historic property on the Kuleana Lot,and an Archaeological Preservation Plan (Preservation Plan)shall be prepared for the adjacent properties (TMK:(4)5-2-21:04l (por.)&5-2-21:04l-001 &5-2-12:35por.&5-2-21:004por. (Adjoimng Lots),that will accommodate the functional restoration ofthe irrigation system and lo 'i kalo,which is consistent with SHPD 's concurrence letter ofJuly 24, 2012;'8 J.Based upon comments and recommendations by some members ofthe piiblic,the restoration ofthe irrigation system on the Adjoining Lots,as setforth in the Preservation Plan,shall be done either by or in consultation with knowledgeable trainecl cultural practitioners on lo 'i kalo restorationfrom the area,especially those who may have ancestral connections to the Kuleana Lot,to ensure cultural protocols are adhered to and the restoration is grounded in the unique lo 'i kalo practices of KUauea.The Kaplans may contact Mehana Blaich Vaughanfor ancestral descendcmts and knowledgeable trained cultural practitioners; "Seepage40oftheAISR. 18 See SHPD's July 24,2012 letter to Dr.Rechtman regarding the Historic Preservation Review,AIS ofthe 21 acres. 6.Based upon comments by some members ofthe piiblic,the landscaping ofboth the Kulecma Lot cmd the Adjoining Lots should iise appropriate native plants to the exlent feasible; 7.The Kuleana Lot and the Adjoining Lots are uniquefor several reasons,l)it was awarded lo Naiamaneo,a woman and widow,when kuleana lands were historically awarded only to native Hawaiian maies,2)it contains a unique mauka lo 'i kalo system unlike most ofthe lowland river bottom or makai lo 'i kalo systems o/Kaua 'i, and 3)the Kaplans own both the Kuleana Lot and the Adjoining Lots.The uniqueness ofthese lots provides the KCPC the opportimity tofully embrace Article XII.section 7,state law,and judicial precedent that seeks tofind balance between preserving and protecting traditional and customary native Hawaiian rights and practices andprivate landowners right to develop.Thus,thefeasible action or mitigationfor the impact ofthe completion ofthe construction ofthefarm dwelling on the Kuleana Lot on the valued cultural,natural,cmd historic resources,including traditional and customary practices,the Kaplans shall coordmate with the Kiiauea commumly,for example community stakeholders including descendants ofthe Kuleana Lot and immediate surrounding 'aina fto the extent that they are amenable) and cultural practitioners to implement the Preservation Plan which is applicable only to the Adjoining Lots,and ifappropriate,modijy the Preservation Plan to address community recommendations in coordination with SHPD and ensure that access to the cultural practitioners to continue to exercise their traditional and customary practices,including the practice of malama 'dina,mo'olelo,andkiloare protected.To ensure there is coordination with the Kilauea Community,the Kaplans shall,1)submit annual reports to the Planning Director before December 31 ofeach year until the issuance ofthe Certificate of Occupancy for the Kilauea Lot,unless otherwise made applicable by the KCPC to the entitlementsfor the Adjoining Lots, providing a status update on the coordination and implementation ofthe Preservation Plan,and 2)submit a copy ofthe annual report to the community stakeholclers 30 days before submission to the Planning Director to provide the community an opportunity to provide their comments on the cmnual report to the Planning Director. The coordination and implementation ofthe Preservation Planfor the Adjoinmg Lots shall not preclude the timely issuance ofthe subject Permitsfor the Kuleana Lot. EXHIBIT "B" (Director's Report) Ka'aina S.Hull Director of Planning Jodi Higuchi Sayegusa Deputy Director ofPlanning COUNTY OF KAUA'I PLANNING DEPARTMENT DIRECTOR'S REPORT I.SUMMARY Action Required by Consideration ofUse and Class IV Zoning Permits to allow Planning Commission;construction ofafarm dwelling unit (FDU). Permit Application Nos.Class IV Zoning Permit Z-IV-2021-8 UsePermit U-2021-7 Name of Applicant(s)MICHAEL KAPLAN II.PERMIT INFORMATION F.l.t'-i ]APR^32021 ";•'-•-••.'.p]ERMrTS;REQfnRED-"•:'.';::!'^'f';."^;':"^-,;.. Use Permit Pursuant to Section 8-11 .3 ofthe Kaua'i County Code (1987)as amended,a Use Permit is required since the project is situated within the Special Treatment District. I1 Project Development Use Permit 11 Variance Permit I1 Special Permit S Zoning Permit Class KIIV m A Class IV Zoning Permit is a procedural requirement for obtaining a Use Permit within the Special Treatment - Resource (ST-R)District. 1I Special Management Area Permit DUse D Minor AMENDMENTS I1 Zoning Amendment General Plan Amendment I1 State Land Use District Amendment Date ofReceipt ofCompleted Apptication: Date ofDirector's Report: Date ofPubIic Hearing: Deadline Date for PC to Take Action (60 Day): III.PROJECTDATA February 11,2021 March23,2021 APRIL 13,2021 May 22,2021 IV.LEGAL REQUIREMENTS Section 8-3.1(1),KCC: Public Hearing Date: This report is being transmitted to the Applicant and Planning Commission in order to satisfy the requirements ofSection 9.0 ofthe COK SMA Rules and Regulations,relating to the scheduling of a public hearing within sixty (60)days ofthe filing ofa completed application.The application was received on February 11,2021 and the Applicant was notified accordingly ofthe Planning Department's intent to commence permit processing. APRIL 13,2021 Z-IV-2021-8,U-2021-7:Dirsctor's Report KAPLAN 3.17.2021 2 |P ag e /'.'';.E^3[EC^INFORA]^3CT<3N^:.,.::/:,^^": .':::::,.' Parcel Location:Kilauea.Situated approximately 1,700 feet from Kahili Makai Road and 2,700 feet from the Kahili Makai Road/Kuhio Highway intersection. Tax Map Key(s):5-2-012:019 Area;0.735 acres ZONING &DEVELOPMENT STANDARDS Zoning:Open (0)/Special Treatment District -Resources (ST-R) State Land Use District:Agricultural General Plan Designation:Natural Height Limit:25 feet Max.Land Coverage:50% Parking Requirement:2 min.parking spaces required per dwelling unit, Total =Two (2) Front Setback:lOfeet Rear Setback:5 feet OR %Building Plate Height Side Setback:5 feet OR 'A Building Plate Height Community Plan Area:North Shore Planning Area (NSPA) Community Plan Land Use Designation; NA. Deviations or Variances Requested:NA. V.PROJECT DESCRIPTION AND USE As represented,the Applicant is proposing the construction of a one-story farm dwelling unit (FDU)featuring 2 bedrooms with 2.5 bathrooms and containing a total living area of approximately 2,373 square feet (SF).The primary entrance to the FDU is covered by a Porte Cochere that occupies approx.396 SF,which brings the total area ofthe project to 2,796 SF.The entire site is located in the Open (0)zoning district aiid construction occurs within a cleared area on the parcel. The County's Tax Maps shows the subject parcel is recognized as a Kuleana (Land Commission Award L.C.Aw.10333)and contains an area approximately 0.735 acres. As represented in the application,access to the project site is through easements affectinj adjacent properties (refer to Page 2,Section II ofthe Application). VI.APPLICANT'S REASONS/JUSTIFICATION It is noted that the Applicant has commenced with the construction ofthe residence through a previous application;SMA Use Permit SMA(U)-2011-1,Class IV Zoning Permit Z-IV- 2011-1,and Use Permit U-20 11-1.The application involved the construction of the dwelling unit that is being proposed through this application as well as improvements on a neighboring parcel (TMK:5-2-021 :Por.041,Unit 1).These permits were invalidated by a court order indicating that it time limitations has lapsed (refer to Page 3,Section V.ofthe Application). 3 |P ag e Z-!V-2021-8,U-2021-7;Director's Reporl KAPLAN 3.17.2021 The Applicant appeared before the Planning Commission on April 23,2019 and received approval involving modifications to the previously approved FDU design that resulted in: o a 341 sq.ft.reduction from 2,694 sq.ft.to 2,353 sq.ft. o a reduction of lot coverage from 9.9%to 8.7%. o a reduction ofbuilding height from 21'to 19''A". o a design change for the farm dwelling. Based on the circumstances noted above,the Applicant is requesting permits to allow continuation for the construction ofthe proposed FDU and thejustification ofthe project is contained in the Application. VII.ADDITIONAL FINDINGS 1.The project site is located in the KTlauea area,along the makai side of Kuhio Highway.The property is considered a Kuleana and situated entirely within Open (0)zoning district.The area within the Open District is also situated within the Special Treatment -Resource District (ST-R). 2.Special Treatment-Resource District fST-R) The property is located in the ST-R District.It is the intent ofthat district to insure that development within these areas recognize,preserve,maintain and contribute to the enhancement ofthose characteristics which are ofparticular significance or value to the general public. 3.The State Land Use District (SLUD)designation is "Agricultural,"which allows for agricultural uses that are consistent with Chapter 205 ofthe Hawai'i Revised Statutes (HRS). 4.The subject property is NOT located within the Visitor Designation Area (VDA)and the General Plan (GP)designation is "Natural".The GP recognizes that residential development on agricultural lands is an unsustainable trend,and emphasizes preserving agricultural lands in intact form while limiting other uses.When development occur,it should be clustered so as to minimize the requirements for new infrastructure and the impacts on open space,and adjacent land uses. 5.The property is situated within the North Shore Planning Area CNSPA)and will be subjected to all applicable requirements.Additionally,the proposed development shall be subjected to the standards prescribed in Sections 8-4.3 and 8-4.5 ofthe CZO. 6.The subject parcel is in close proximity to the KTlauea River along its northern boundary and approximately 5,000 feet away from the shoreline area (Kilauea Bay). As such,a Shoreline Setback Determination is not applicable. 7.The proposed Farm Dwelling Unit (FDU)is located within Zone 'X'ofthe Federal 4 |P ag e Z-IV-2021-8,U-2021-7;Director's Report KAPLAN 3.17.2021 Emergency Management Agency (FEMA)Flood Insurance Rate Map.FEMA has identified those areas within the Zone "X"are determined to be outside the 0.2% armual chance floodplain,which means a llood ofthat size or greater has a 0.2- percent chance (or l in 500 chance)ofoccurring in a given year. 8.The general topography ofthe property contains a very gentle slope that moves from south to north,in the direction towards KTlauea River.The neighboring parcels are characterized by steep slopes that slope towards KTlauea River.There are numerous lava rock terraces on this parcel as well as neighboring properties. 9.Access As previously mentioned,the primary access to the project site is through easements affecting adjacent properties and is through an unimproved driveway. 10.Existing Land Use Permits The following information represents land use approvals/permits associated with the subject property: o Special Management Area Use Permit SMA(U)-2011-1,Use Permit U-2011 -1,and Class IV Zoning Permit Z-IV-2011-1:The application received approval by the Planning Commission on September 28,2010 and it authorized the construction of a Farm Dwelling,accessory agricultural storage &office structures,and site improvements. 11.Special Management Area (SMA) The subject property is located within the SMA,however,the construction ofthe first residence on a parcel is not considered "development"and therefore exempt from an SMA Permit,pursuant to Hawaii Revised Statutes (HRS)§205A-22. VIII.AGENCY COMMENTS Comments from applicable government agencies are being sought and are expected at time ofthe public hearing scheduled on April 13,2021.At the present time,the department has received comments only from the COK Dept.ofPublic Works Engineering Division,which is attached as Exhibit 'A'.Comments from the COK Fire Dept.,Housing Agency &Dept.ofWater,and the State Department ofHealth (DOH)are being anticipated. IX.PRELIMINARY EVALUATION In evaluating the Applicant's proposal to construct the residence and associated site improvements,the following aspects are taken into consideration: 1.GENERAL PLAN The proposed development satisfies the following policies ofthe General Plan,as Z-IV-2021-8,u-2021-7;Director's Reporl KAPLAN 3.17.2021 5 |Page taken from Sections 1.3 &1.4: A.Section 1.3,entitled "VISION AND GOALS" 1)Goal #1 A Sustainable Island"-As represented,the project is an example of responsible growth in an area designated for residential and open space uses.The Applicant intends to utilize the parcel to support agricultural activities for the island. 2)Goal #2 "A Unique and Beautiful Place -The project will complement the natural,cultural,social and built environmental assets of the KTlauea area,and more specifically,around the Kllauea River area.As proposed, the project is compatible with similar uses in the area.The Applicant is selecting earth-tone colors,vegetation screens,and landscaping which will enhance the appearance of the dwelling unit. 3)Goal #3 "A Healthy and Resilient People"-There will be minimal visual impacts since the footprint of the structure has decreased in size from the original application in 2011 (approx.341 SF)and anticipate no significant negative impacts on historic sites or Hawaiian cultural practices. 4)Goal #4 "An Equitable Place,with Opportunity for AI1"—The project would support and enhance economic and business opportunities andjobs onKaua'i. B.Section 1.4,entitled "POLICIES TO GUIDE GROWTH" 1)Policy #1 "Manage Growth to Preserve Rural Character"-As proposed,the project is consistent in preserving the rural character of the neighborhood and occurs in a location that is zoned for residential development. 2)Policy #2 "Provide Local Housing"-The Applicant recognizes the need for more housing in the north shore area and is intended to further support housing opportunities. 3)Policy #8 "Protect Kauai's Scenic Beauty"-The project should not have any substantial negative impacts on the visual resources in the KTlauea area.The proposed new color scheme and landscaping for the project would lessen the overall visual impact ofthe current improvements,as viewed from the KTlauea Bay area or along the river side. 4)Policy #9 "Uphold Kaua'i as a Unique Visitor Destination"-The General Plan identify areas like Ha'ena,Wainiha and Hanalei being drastically impacted by non-traditional visitor industry operations.As a result,these communities have been considerably altered as a consequence ofthese operations.The project area is outside ofthe visitor destination area and the proposed FDU is prohibited from being utilized as a Transient Vacation Rental or Homestay. 5)Policy #11 "Help Agricultural Lands Be Productive"-As previously represented,the Applicant intends to utilize a portion of the Z-IV-2021-8,u-2021-7;Direcfor's Report KAPLAN 3.17.2021 6 |P ag e parcel for agricultural purposes. NORTH SHORE PLANNING AREA WSPA) The proposed dwelling unit is consistent with the goals and objectives ofthis plan, and is compatible with the existing residences in this neighborhood.Furthermore,it complies with the development standards contained in Section 10-2.4(e)ofthe Kaua'i County Code (1987),as amended. USE PERMIT Pursuant Article 20 of the Comprehensive Zoning Ordinance (CZO),Chapter 8 of the Kaua'i County Code (1987),the purpose ofthe Use Permit procedure is to assure the proper integration into the community of uses which may be suitable only in specific location ofa district,or only under certain conditions,or only ifthe uses are designed, arranged or conducted in a particular manner,and to prohibit the uses ifproper integration cannot be assured.Section 8-20.5 ofthe CZO specifies a Use Permit may be granted only ifthe Planning Commission finds that the use meets the following cntena: o o o o The use must be a compatible use; The use must not be detrimental to persons or property in the area; The use must not cause substantial environmental consequences;and The use must not be inconsistent with the intent ofthe Comprehensive Zoning Ordinance (CZO)and General Plan. Based on the criteria noted above,the following aspects are examined: a.Compatible Use -The construction of a farm dwelling remains consistent with surrounding improved land uses.Historically,the kuleana was utilized for agricultiiral puqioses and the proposed development will allow for the Applicants to continue this use.The appearance of the building has been designed to minimize visual impact to the sunounding community.The location and size ofthe proposed project will not create unusual noise or other conditions that may be incompatible to the surrounding area. b.Will Not Be Detrimental to Persons Residing on Property or in the Area - As represented,the proposed project is located within a rural agricultural neighborhood.As previously mentioned,the project site is not prone to flood hazards.Since the project is situated within a very rural neighborhood,the proposed development would not be detrimental to persons residing in the area and properties surrounding the project site are similarly zoned. Therefore,the project should not have significant adverse impact to the community. c.Will Not Cause Substantial Harmful Environmental Consequences -The project site has been previously disturbed and utilized for agricultural puq^oses,and it is unlikely that rare,threatened or endangered species,or sensitive habitat will be affected by the proposed development.Due to the 7|Page Z-IV-2021-8,U-2021-7;Director'!Report KAPLAN 3.17.2021 extensive ground disturbance that occurred from the past,it is unlikely that any mammalian or avian species,or botanical resources vvould be impacted by theproject. d.Will Not Be Inconsistent With the Intent ofthe CZO and General Plan The subject property as well as the adjacent parcels along the makai side of the highway are similarly zoned to accommodate the mixed uses in this agricultural subdivision.As proposed,the project is consistent with the development standards ofthe CZO and Vision &Goals ofthe General Plan. 4.CZO DEVELOPMENT STANDARDS As proposed,the project complies with the building height,setback,and off-street parking requirements for development within the Open/Special Treatment -Resource (0/ST-R)zoning district,as specified in Sections 8-4.3 &8-4.5 the Comprehensive Zoning Ordinance (CZO). In order to further ensure that the project is compatible with its surroundings and to minimize the visual impact of the structure,the external color should be of a moderate to dark earth-tone color,and the Applicant should provide substantial landscaping.The proposed color scheme and a landscape plan should be submitted to the Planning Department for review and acceptance prior to building permit application. As previously mentioned,the project site is situated outside ofthe VDA.As such,the proposed farm dwelling should not be utilized for transient accommodation purposes. a.Special Treatment -Resource District (ST-R):In considering the proposal,it is noted that the project is not visible to the general public from Kahili Makai Street or public vantage points along KTlauea Bay.The project is already situated within a heavily wooded area,and through proper landscaping,any visual impacts of the farm dwelling or associated structure would be mitigated as viewed from certain vantage points across the KTlauea River. Finally,it is uncertain as to whether the Applicant has made provisions for night illumination with the project,based on the preliminary plans that have been submitted.If so,night illumination should be designed to minimize adverse impacts on the Federally Listed Threatened Species,Newell's Shearwater and other seabirds.Night lighting should be shielded from above and directed downwards and shall be approved by the U.S.Dept.of the Interior Fish and Wildlife Service.If external lighting is to be used in connection with the proposed project,all external lighting should be only ofthe following type:downward- facing shielded lights.Spotlights aimed upward or spotlighting ofstructures is prohibited. X.PRELIMINARY CONCLUSION Based on the foregoing,it is concluded that through proper mitigation measures the proposed development would not have any detrimental impact to the environment or the surrounding area and is in compliance with the criteria outlined for the granting of a Use 8 |Page Z-IV-2021-8.U-2021-7;Director's Reporl KAPLAN 3.17.2021 Permit and Class IV Zoning Permit.Additionally,the project is consistent with the objectives/goa!s/po!icies ofthe General Plan,North Shore PIanning Area,the Comprehensive Zoning Ordinance,and other applicable ordinances.The development will not have any substantial adverse environmental or ecological effect.Any adverse environmental or ecological effect that may result will be minimized to the extent practicable;and The Applicant should institute the "Best Management Practices during the construction phase ofthe project in order to insure that the proposed development does not generate impacts that may affect the health,safety,and welfare of those in the surrounding area of the proposal. The Applicant shall implement to the extent possible sustainable building techniques and operational methods for the project. XI.PRELMINARY RECOMMENDATION Based on the foregoing evaluation and conclusion,it is hereby recommended that the proposed development involving the construction of a farm dwelling and associated site improvements through Class IV Zoning Permit Z-IV-2021-8 and Use Pemiit U-2021-7 be APPROVED subject to the following conditions: 1.The project shall be constructed as represented.Any changes to the operation and/or the respective stmctures shall be reviewed by the Department to determine whether Planning Commission review and approval is warranted. 2.In order to ensure that the project is compatible with its surroundings and to minimize the visual impact of the stmcture,the external color of the proposed residence shall be ofa moderate to dark earth-tone color.The proposed color scheme and a landscape plan should be submitted to the Planning Department for review and acceptance prior to building permit application. 3.The Applicant shall submit for review and approval by the Planning Department, a landscape plan composed ofnative species,or species common to the area,to help to screen the proposed structures,and integrate the site with its surroundings. 4.The Applicant is made aware that the proposed residence shall not be utilized for any transient accommodation purposes.It shall not be used as a transient vacation rental (TVR)or as a homestay. 5.Ifexternal lighting is to be used in connection with the proposed project,all external lighting should be only ofthe following type:downward-facing shielded lights.Spotlights aimed upward or spotlighting of structures is prohibited. 9 I P ag e Z-IV-2021-8,U-2021-7;Director's Report KAPLAN 3.17.202] 6.The Applicant shall develop and utilize Best Management Practices (BMPs) diiring all phases ofdevelopment in order to minimize erosion,dust,and sedimentation impacts ofthe project to abutting properties. 7.Unless otherwise stated in the permit,once a permit is issued,the Applicant must make substantial progress,as determined by the Director,regarding the development or activity within two (2)years,or the permit shall be deemed to have lapsed and be no longer in effect. 8.The Applicant should resolve and comply with all agency requirements as recommended in the pennit application review,including but not limited to the building pennit &drainage requirements ofthe County DPW Engineering Division,County Fire,Department,potable water &fire protection requirements for the County Dept.ofWater,and regulations involving environmental concems as administered by the State Department ofHealth. 9.Since there are known archaeological sites (agricultural terraces)on the subject parcel,the Applicant shall closely with State Department of Land and Natural Resources -Historic Preservation Division (SHPD)in order to ensure that these archaeological sites remain undisturbed and/or unaffected by the proposed construction activities.Furthennore,the Applicant is advised that should any archaeological or historical resources be discovered during ground disturbing/constmction work,all work in the area ofthe archaeological/historical findings shall immediately cease and the Applicant shall contact the SHPD and the PIanning Department. 10.Prior to commencement ofthe proposed development,written confirmation of compliance with the requirements from all reviewing agencies shall be provided to the Planning Department. 11.The Applicant is advised that prior to construction and/or use,additional government agency conditions may be imposed.It shall be the Applicant's responsibility to resolve those conditions with the respective agency(ies). 12.The Planning Commission reserves the right to add or delete conditions of approval in order to address or mitigate unforeseen impacts this project may create,or revoke the permits through the proper procedures should conditions of approval be violated or adverse impacts be created that cannot be properly addressed. The Plarming Commission is further advised that this report does not represent the Planning Department's final recommendation in view ofthe forthcoming public hearing process scheduled for April 13,2021 whereby the entire record should be considered prior to decision making.The entire record should include but not be limited to: a.Pending government agency comments; b.Testimony from the general public and interested others;and Z-IV-2021-8,U-2021-7;Director's Report KAPLAN 3.17.2021 101P age c.The Applicant's response to staffs report and recommendation as provided herein. ^ DALE A.CtUA Planner Approved &Recommended to Commission: Date KA'AINA~S.HULL Director ofPIanning 3/'Z-3 /•Zo2-t 2-IV-2021-8,u-2021-7;Director's Report KAPLAN 3.17.2021 11 |P a g e ^ ^,ii*iwa)ti Expert's Written Assessment Related to Native Hawaaian Traclitional and Customary Practices On Kuleana Lat owned by Kaplan TMK No:(4)5-2-012-019 (Kuleana Lot) Submitted by Dawn N.S.Chang,Esq. DatedAugust24,2021 I.Introduction A.ProjectSiteand Proposed Project Michael Kaplan,Trustee ofthe Michael A.Kaplan Revocable Trust,dated August 12,1992 (Kaplan)owns real property identified as TMK:(4)5-2-012-019 located within the Kahili Ahupua'a Ko'olau District,Island and County ofKaua'i,State ofHawai'i (subject parcel).The subject parcel is a former kuleana that was awarded to Naiamaneo during the Mahele as Land Commission Award (LCA)10333.The County of Kaua'i recognizes the subject parcel as a Kuleana (hereinafter referred to as Kuleana Lot).The Kuleana Lot consists ofa 0.735 acre parcel,located near the town ofKTlauea. On February 11,2021,Kaplan submitted an Application for a Use Permit and Class FV Zoning Permit (Application)to the Kaua'i County Planning Department (KCPD)to complete constmction ofa fann dwelling unit.Kaplan specifically requested approval ofClass IV Zoning Permit Z-IV-2021 -8 and Use Permit U-2021 -7 (Permits)to complete the construction.On April 13,2021 and May 11,2021,public hearings were held on the Application and public comments were provided at both public hearings in relation to the Kuleana Lot. B.County's Constitutional Obligation The State and its agencies are obligated to preserve and protect the reasonable exercise of customarily and traditionally exercised rights ofnative Hawaiians to the extent feasible.This affirmative obligation is set forth in the Hawai'i State Constitution (Article XII,section 7),State Laws (Hawai'i Revised Statutes Sections 1-1 and 7-1),andjudicial precedent.The Court has held that state agencies may not act without independently considering the effect oftheir actions on Hawaiian traditions and practices.Public Access Shoreline v.Hawai'i Countv Plannine Commission fPASH),903 P.2d 1246,79 Haw.425 (1995). 'Article XJI,section 7 ofthe State Constitution provides that that State reaffirms its obligation and shall protect all rights,customarily and traditionajly exercised for subsistence,cultural and religious purposes and possessed by ahupua'a tenants who are descendants ofnative Hawaiians who inhabited the Hawaiian Istands priorto 1778, subject to the right ofthe State to regulate such rights. 3:.l.<o. SEP 1 4 2021 To assist the state and its agencies in fulfilling its constitutional obligation as set forth in Article XII,section 7,the court has provided an analytical framework "to accommodate the competing interests ofprotecting native Hawaiian culture and rights,on the one hand,and economic development and security,on the other."Ka Pa'akai O Ka 'Aina v.LUC (Ka Pa'akai),94 Haw. at 46,7 P.3d at 1083 (2000).The analytical framework provides the following,(1)the identity and scope ofvalued cultural,historical,or natural resources in the petition area,including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area;(2)the extent to which those resources,including traditional and customary native Hawaiian rights,will be affected or impaired by the proposed action;and (3)the feasible action, ifany,to be taken by the LUC to reasonably protect native Hawaiian rights ifthey are found to exist.Id.at 47,7 P.3d at 2084. C.Scope and Purpose of Assessment The KCPD has requested that an expert consultant (Consultant)be engaged to conduct an assessment related to Native Hawaiian traditional and customary practices,ifany,on the Kuleana Lot.The assessment shall consist ofoutreach to the members ofthe public who submitted oral or written testimony at or for the public hearings regarding Native Hawaiian traditional and customary practices on the Kuleana Lot.The Consultant shall make good faith efforts to contact those identified members who provided oral or written testimony related to Native Hawaiian traditional and customary practices on the Kuleana Lot.The Consultant shall prepare a written assessment ofthe Ka Pa'akai analytical framework for the Kuleana Lot which shall be submitted to the Kaua'i County Planning Director (Planning Director) The KCPD identified fifteen individuals who provided oral or written testimony that made reference to cultural resources on the Kuleana Lot that should be contacted.KCPD provided contact information for most but not all the individuals.The Consultant reached out by telephone or email to twelve ofthe individuals where contact information was provided.Ofthe twelve individuals,the Consultant was able to interview or talk story to nine ofthe individuals. Interviews were conducted between August 11,2021 and August 17,2021.Four ofthe individuals had no personal knowledge of any cultural,historic,or natural resources on the Kuleana Lot nor did they have any personal knowledge of any traditional and customary practices on the Kuleana Lot.Five individuals were familiar with the property and had some knowledge of cultural,historic,and natural resources on the Kuleana Lot.These individuals also identified some traditional and customary practices that may have been exercised on the Kuleana Lot but were not aware ofany traditional and customary practices currently being exercised on the Kuleana Lot.None ofthe five individuals claimed that they were ancestral descendants to the Kuleana Lot.However,the court in PASH noted,"the right ofeach ahupua'a tenant to exercise traditional and customary practices remains intact,notwithstanding arguable abandonment ofa particular site,although this right is potentially subject to regulation in the public interest."PASH 903 P.2d at 1271,79 Haw at 450.Thus,the comments from these five individuals are relevant to the assessment even ifthey are not descendants ofthe ahupua'a tenant. D.Expert s Qualification My mother is Edna Kealohapauole Ho'okano Shiroma,her father was Kamiko Ho'okano,his father was Willy Ho'okano,and his mother was Louisa Cooke Ho'okano and his father was'Iokewe Ho okano.Our 'ohana come from the ahupua'a ofKahalu'u on Oahu and still own several kuleana parcels that were used for lo'i kalo and residence.My Tutu and other members ofour 'ohana are buried on our kuleana lands in both marked (headstone)and unmarked (near a ti or pohaku)burials.Our 'ohana are lawai'a (fishers)who practiced traditional fishing using ko'a and continue to fish in an area traditionally known as Ka-waha-o-ka-mano (Kaneohe Bay). I have a Master's Degree in Social Work and was a community organizer for the Queen Lili'uokalani's Children's Center in Waimanalo in the 1970's.I graduated from the William S. Richardson School ofLaw in 1985.After graduating from law school,I clerked for Judge Walter Heen with the Intermediate Court ofAppeals for several years before joining the State Attomey General's (AG)Office.As a Deputy Attomey General,I served as counsel to various Boards and Commissions with the Department of Land and Natural Resources.During my tenure at the AG's Office,I had the privilege ofdrafting the Hawai'i State Burial Laws (HRS,Chapter 6E-42)and litigating numerous cases involving Native Hawaiians rights and issues,including State v.OHA (2009)involving the alienation ofstate ceded lands which was decided by the U.S. Supreme Court.Since 2001,1 have been the Principal and owner ofHo'akea LLC dba Ku'iwalu,a consulting firm that specializes in facilitating culturally sensitive and contentious issues,including preparation ofcultural impact assessments.Currently,I also sit on the Hawai'i State Land Use Commission.In addition to my private consulting work,I offer training on Native Hawaiian Land Laws and Rights,including on Traditional and Customary Native Hawaiian Rights,to private and govemment agencies. II.Ka Pa'akai Analysis A.The identity and scope ofvalued cultural,historical,or natural resources on the Kuleana Lot,including the extent to which traditional and customary native Hawaiian rights are exercised on the Kuleana Lot. 1.An Archaeological Inventory Survey (AIS)ofthe Kuleana Lot was conducted in 2009 by Rechtman Consulting and the AIS Report (AISR)was submitted to the State Historic Preservation Division (SHPD)in February 2010 and revised in April 2010. The AISR was approved by SHPD on April 5.201 0.The AISR included archival research,previous archaeological studies,site inspection and consultation.The AISR identifies thefollowing valued cultural,historical,or natural resources on or adfacent1 to the Kuleana Lot: The court in Ka Pa^akai found that LUC erred in not considering resources outside the proposed project site."Moreover,none ofthe LUC's findings or conclusions addressed possible native Hawaiian rights or cultural resources outside ofKD's 235-acre RMP,such as Ka Pa'akai's members'use ofthe mauka-makai trails to reach salt-gathering areas,the religious significance ofthe 1800-1801 lava flow,or the gathering ofPele's Tears."Ka Pa'akai 7 P.3d at 1086,94 Haw.at 49. >The Kuleana Lot was awarded in 1848 to Naiamaneo as LCA 10333.Naiamaneo was the widow ofO'opu who died in 1847.Her husband was given the land by the konohiki in the days ofKamuaIi'i (prior to 1824).Naiamaneo claimed that her house was elsewhere and that the kuleana consisted ofseveral small irrigated taro fields (lo'i)and adjacent kula (flat)land in the 'ili (section ofland smaller than an ahupua'a)ofKupa.The Mahele records indicate that the lower reaches of Kllauea Gulch (primarily in Kahili Ahupua'a)supported more than twenty-five lo'i,house sites,and kula land where noni,wauke,and oranges were cultivated.3 Radiocarbon dates obtained through subsurface excavation within the fields have shown that initial construction ofthe terraces typically occurred during the Precontact Period (prior to 1778);4 •At some point in time,the Kuleana Lot became part ofthe KIlauea Sugar Plantation Company.Based upon the AISR archival research,rice was also grown on the KTIauea Sugar Plantation lands displacing the taro fields.Taro fields were most desirable for rice production because the taro could be uprooted easily, and the fields usually carried water rights with them.By 1892 fifty-five acres of rice were under cultivation in Kllauea,and the plantation eventually included its own rice mill that was located to the northeast ofthe Kuleana Lot.Mike Dyer who purchased the Kuleana Lot from KTlauea Sugar Plantation Company was consulted during the AIS.He confirmed that the terracing was in place prior to his ownership and that there were foundation remains ofan old structure that he referred to as a small rice mill.In addition,a 1925 map that was prepared for the KTlauea Sugar Plantation Company showed that by the early twentieth century the taro lo'i in the vicinity ofthe Kuleana Lot had been converted to the cultivation of rice and vegetables,and two structures were present next to the property; •During the AIS,Merri Lee Chandler,a kupuna ofthe Kilauea area,was consulted and asked about any personal knowledge she might have conceming the Kuleana Lot.She had no information about the Kuleana Lot or its former use.According to the AISR,Ms.Chandler also checked with other kupuna and could not find anybody who had historical knowledge ofthe Kuleana Lot; •The AISR identified two historic sites within the Kuleana Lot.The first site was State Inventory ofHistoric Places (SIHP)Site 50-30-04-2011 (Site 201 1),a series ofnine terraced fields (Fields 1-9)that covered the entire Kuleana Lot.However, these fields are part of a larger irrigated field system that continues beyond the boundaries ofthe Kuleana Lot to the adjoining property situated to the south and east ofthe Kuleana Lot.The field system was once irrigated by an 'auwai that ran across the steep slope from a point above the waterfall along the strearo (south 3 See page 14 ofthe AISR. 4 See page 23 ofthe AISR. 'Seepage 18oftheAISR. 'See page 23 ofthe AISR. 7Id. 'M. 2. ofthe Kuleana Lot).Each field consists ofan artificially leveled garden bed with a stone retaining (terrace)wall along its down slope edge.Three trenches were excavated as part ofthe AIS fieldwork,and they confirmed that the terrace walls were only present at the surface and did not extend into the subsurface soil deposit.Some ofthe walls may have been shifted or been dismantled to accommodate the residential structures that were added to the property by the previous landowner.The AISR concluded that Site 2011,which consisted of nine terraced fields on the Kuleana Lot was part of a much larger terrace system beyond the boundaries ofthe Kuleana Lot and is considered significant under Criterion D10 for the information it yields,relative to the Precontact and Historic use ofthe general project area.AIthough Site 2011 was considered significant, the AISR recommended as treatment that no further work be required,in other words the AISR did not require preservation ofthe nine terraces.It appears the basis for that recommendation was based upon,1)the AISR included sufficient documentation of Site 2011 (9 terraced fields)that was on the Kuleana Lot,and 2) the landowner ofthe Kuleana Lot who also owns the adjoining land upon which Site 2011 extends and expressed a desire to restore and preserve the remaining portions (69 terraced fields)ofSite 2011 located beyond the boundaries ofthe KuleanaLot; •The second site identified in the AISR was SIHP Site 50-30-04-2012 (Site 2012) which consists of a cobble lined concrete slab located along the southeastem boundary ofthe Kuleana Lot.The slab is partially intact,and most ofthe concrete is missing from its northwestem half.The concrete slab dates to the Historic Period and the AISR suggests that the concrete slab may have been the foundation for one ofthe two stmctures that was visible in the 1925 map.The AISR concluded that Site 2012 is significant under Criterion D for information it has yielded related to the Historic use ofthe project area.However,the AISR recommended no further work as treatment. The relevant oral and written public testimony presented at the two Kaua'iCounty Planning Commission (KCPC)public hearings (April 13 and May 11,2021), identified thefollowing cultural,historical,and natural resources,including traditional and customary native Hawaiian practices that may be related to the Kuleana Lot: Several ofthe relevant public testifiers stated that the Kuleana Lot is culturally significant because ofthe lo'i terrace complex,on both the Kuleana Lot and the 9 See page 25 ofthe AISR. 10 Criterion D is set forth in the DLNR,SHPD,Hawai'i Administrative Rules §13-284-6.11 The adjoining lot to the Kuleana Lot is identified as TMK:(4)5-2-021:041 (por.),consists ofan agricultural complex of69 formerly in-igated,terraced fields (Fields 1-69)located within a roughly 4.5 acre area.An Archaeological Preservation Planfor a Portion ofSite 50-30-04-2011,KahUi Ahupua'a,Ko'olau District,Island of Kaua'i,was prepared by ASM affiliates for Michael and Rose Kaplan,dated October 2019 (revised January 2020). 12 See page 40 ofthe AJSR. "See page 36 ofthe AISR. 14 See page 40 ofthe AISR. l^i I nl n i»-if-r T (-»)•i.<rhir*f-<rirn 1-"^><'u\4JUtil.liig i-iuL ttriii^ll ui \/L'UII fy t.i it^Mchana Biaich Vaughan (Vaughan)specifically noted that."This is a significant site,one ofthe tew lo'i systems in Hawai'i not located on the floor ofa river valley where rich depositions ofsediment provide nutrients to kalo."There were others who compared the lo'i complex to being even more beautiful than Limahuli andjust "chicken skin"because ofits unique location and the fact that most ofthe fields are intact; •There were numerous individuals who mentioned the presence of'birthing stone(s)"on the Kuleana Lot.However,most ofthe individuals did not have personal knowledge ofwhere on the Kuleana Lot the birthing stones were located, if they were removed,or if they were even birthing stones.There were several individuals who firmly believed,based upon credible source,that the Kuleana Lot has or had birthing stones located on the property and felt a deep sense ofhurt and disrespect that the birthing stones may no longer be on the Kuleana Lot. Vaughan 5 shared that she actually walked the Kuleana Lot with several community members and practitioners and saw multiple large pohaku that they felt were culturally significant,although they did not believe they were birthing stones.In addition,although the AISR does not identify birthing stones in their findings,it does note that there are pohaku on the Kuleana Lot; •In addition to the lo'i complex and birthing stones or pohaku as cultural resources, several traditional and customary practices related to the Kuleana Lot were identified including,1)the right to access to continue to malama or the practice of care and guardianship ofplaces that have significance to ancestors,gods,and 'ohana,2)practice ofmo'olelo or perpetuation ofstories ofthis 'aina which requires visiting and vievving places vvhich have connection to mo'olclo,and 3) the practice ofkilo or seasonal observation ofweather pattems,stars lines and the path ofthe sun and moon over the mauna. B.The extent to which these resources,including traditional and customary Native Hawaiian rights vvill be affected or impaired by the proposed action; /.The AISR doesn 't specifically describe the impacts ofthe proposed construction ofthe single-famity dwelling on Sites 201 1 or 2012. •However,it recommends that the detailed mapping and subsurface testing is adequate to mitigate any potential impacts that may result from the construction ofthe single-family dwelling on the parcel." 2.Several ofthe relevant public testifiers noted impacts ofthe proposed construction of thefarm dwelling to the identified ciiltural resources (specifically the terraced lo 'i 15 Mehana Blaich Vaughan confirmed the accuracy ofthis infonnation and gave oral pennission to the Consultant to identify her in the assessment. "See page 40 ofthe AISR conipiex and ths bi'i'thif'ig stones or pohtiku)cinci tf'uuitiofiul ufiu cuSiOmiify pruL'ut'f^. These impacts inchicle thefollowing: •Displacement of several ot'the terraced fields (Site 2011)within the Kuleana Lot; •Removal ofthe birthing stones or pohaku,removes the mana from the place; •Hurt,pain,and disappointment that cultural descendants or community members were not consulted before these actions were taken which is disrespectful; •No access to Native Hawaiian tenants to continue to exercise their traditional and customary practice ofmalama 'aina for this land. 111.RECOMMEiNDA'riOiN A.Based upon the AISR,SHPD concurrence,and relevant public coninients,the following feasible action or mitigation measures,ifany,to reasonably protect Native Hawaiian rights ifthey are found to exist are recommended to the KCPC for consideration: /.Archaeological monitoring shali be present during ground disturbance activities associated with the construction ofthe single-family dwelling,including activities related to utility trenching and excavationfor both the septic system and the house foundation; 2.In the event iwi kupuna or subsurface resources are discovered during constriiction, all work in the immediate area shall cease and compliance with State Historic Preservation laws shall apply: 3.Nofurther work is required to protect or preserve Site 2012,the concrete slab,and the Permits may be issued because the AISR sufficientty clocumented the historic property: 4.Nofurther work is required to preserve or protect portions ofSite 2011,the nine terracedfields,and the Permits may be issued because the AISR sufficiently documented the historic property on the Kuleana Lot,and an Archaeological Preservation Plan (Preservation Plan)shall be preparedfor the adjacent properties CTMK:(4)5-2-21:041 (por.)&5-2-21:041-00l &5-2-12:35por.&5-2-21:004por. (Adjoining Lots),that will accommodate the functional restoration ofthe irrigation system and !o 'i kalo,which is consistent with SHPD 's concurrence letter ofJuly 24, 5.Based upon comments and recommendations by some members ofthe piiblic,the restoration ofthe irrigation system on the Adjoining Lots,as setforlh in the Presen?ation Plan,shall be done either by or in consultation with fwowledgeable trained cultural practitioners on lo 'i kalo restoration from the area,especially those who may have ancestral connections to the Kuleana Lot,to ensure cultiiral protocols are adhered to and the restoration is groimded in the unique lo 'i kalo practices of Kilauea.The Kaplans may contact Mehana Blaich Vaughanfor ancestral descendants and knowledgeable trained ciiltural practitioners: 17Seepage40oftheAJSR. !s See SHPD's July 24,2012 letter to Dr.Rechtman regarding the Historic Presen/ation Review,AIS ofthe 21 acres. 6.Based upon comments by some members ofthe public,the landscaping ofboth the Kuleana Lot and the Adfoimng Lots should use appropriate native plants to the extent feasible; 7.The Kvleana Lot and the Adjoining Lots are uniquefor several reasons,1)it was awarded to Naiamaneo,a woman and widow,when kuleana lands were historically awarded only to native Hcmaiian males,2)it contains a unique mauka lo 'i kalo system unlike most ofthe lowland river bottom or makai lo 'i kalo systems ofKaua 'i, and 3)the Kaplans own both the Kuleana Lot and the Adjoining Lots.The uniqueness ofthese lotsprovides the KCPC the opportunity tofully embrace Article XII,section 7,state law,andjudicialprecedent that seeks tofind balance between preserving and protecting traditional and customary native Hawaiian rights and practices andprivate landowners right to develop.Thus,thefeasible action or mitigationfor the impact ofthe completion ofthe construction ofthefarm dwelling on the Kuleana Lot on the valued cultural,natural,and historic resources,including traditional and customary practices,the Kaplans shall coordinate with the Kilauea community,for example community stakeholders including descendants ofthe Kuleana Lot and immediate surrounding 'aina fto the extent that they are amenable) and cultural practitioners to implement the Preservation Plan which is appiicable only to the Adjoining Lots,and ifappropriate,modify the Preservation Plan to address community recommendations in coordination with SHPD and ensure that access to the cultural practitioners to continue to exercise their traditional and customary practices,including the practice of malama 'Sina,mo'olelo,andkiloare protected.To ensure there is coordination with the KTlauea Community,the Kaplans shall,1)submit annual reports to the Planning Director before December 31 ofeach year until the issuance ofthe Certificate of Occupancy for the Kilauea Lot,unless otherwise made applicable by the KCPC to the entitlements for the Adjoining Lots, providing a status update on the coordination and implementation ofthe Preservation Plan,and 2)submit a copy ofthe annual report to the communily stakeholders 30 days before submission to the Planning Director to provide the community an opportunity to provide their comments on the annual report to the Planning Director. The coordination and implementation ofthe Preservation Planfor the Adjoining Lots shall notpreclude the timely issuance ofthe subject Permitsfor the Kuleana Lot.