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2022-01-11 PC Agenda Packet 21 KAUA‘I PLANNING COMMISSION SUBDIVISION SESSION August 10, 2021 Draft The regular meeting of the Planning Commission Subdivision Committee of the County of Kaua’i was called to order at 8:33 a.m., Microsoft Teleconference. 1 469-848-0234, Conference ID: 747 174 28# The following Commissioners were present: Mr. Francis DeGracia Mr. Chiba Absent and Excused: The following staff members were present: Planning Department Director Kaaina Hull-Planning Deputy Director Jodi Higuchi Sayegusa, Dale Cua, Kenneth Estes, and Planning Commission Secretary Shanlee Jiminez; Office of the County Attorney – Deputy County Attorney Laura Brazalia; Office of Boards and Commissions – Support Clerk Arleen Kuwamura Discussion of the meeting, in effect, ensued: CALL TO ORDER Subdivision Committee Chair DeGracia: Called the meeting to order at 8:33 a.m. ROLL CALL Planning Director Mr. Kaaina Hull: Chair, it is 8:33 a.m. and we let the entire lobby in are you ready to commence the meeting. Chair DeGracia: Yes, I’d like to call to order the Subdivision Committee Meeting for Tuesday August 10, 2021, roll call please. Mr. Hull: Roll call, Commissioner Chiba. Mr. Chiba: Here Mr. Hull: Chair DeGracia Chair DeGracia: Here Mr. Hull: You have a quorum Mr. Chair. Two Present. APPROVAL OF AGENDA Mr. Hull: Next agenda item is the approval of the agenda. The Department has no recommended changes. 2 Chair DeGracia: Thank you. Do we have a motion to approve the agenda as is? Mr. Chiba: I move to approve the agenda. Chair DeGracia: Second. All in Favor? Aye (Unanimous voice vote). Opposed? Discussion? Hearing None. Motion carried 2:0. MINUTES of the meetings(s) of the Subdivision Committee Mr. Hull: Next, we have the minutes for the July 14, 2020, and minutes for September 8, 2020, meeting. Mr. Chiba: I moved to approve the minutes dated July 14, 2020. Chair DeGracia: I’ll Second. All in Favor of approval? Aye (Unanimous voice vote). Any Opposed? Discussion? Motion carried 2:0. Mr. Hull: Next, we need a motion for the September 8, 2020, minutes as well Chair. Chair DeGracia: Motion to approve for September 28. Mr. Chiba: I moved to approve the minutes for the Subdivision Committee dated September 8, 2020. Chair DeGracia: I’ll Second. All in Favor of the approval of September 8, 2021, minutes, Say aye? Aye (Unanimous voice vote). Oppose? Discussion? Hearing none. Motion carried 2:0. RECEIPT OF ITEMS FOR THE RECORD Mr. Hull: Thank you Chair, we have no additional receipt of items for the record. HEARINGS AND PUBLIC COMMENT Mr. Hull: We have F. Hearings and Public Comment the Planning Commission accepts written testimony as well as oral testimonies, at this for members of the Public that have called in. We will be calling out the phone numbers of your respective phone number, if you would like to testify, please state your name and that you would like to testify, and you will have three minutes for testimony. So, moving down the list for people that have called in. Area code would you like to testify on any Subdivision Committee agenda item at this time? Area code would you like to testify on any Subdivision Committee agenda item at this time? Mr. Brackenridge: This is Zach Brackenridge of area code no I would not. Mr. Hull: Thank you. Area code would you like to testify on any agenda item on the Subdivision Committee at this time? 4 Woman: No, thank you. Mr. Hull: Thank you, area code , would you like to testify on any agenda item at this time? Man: No, thank you. Mr. Hull: Thank you, I have called all the listed phone numbers, but as a last call are there any members of the public that called in that would like to testify on any of the agenda items before the Subdivision Committee at this time? Please state your name if so. I have one last phone number that came in area code would you like to testify on any agenda item at this time? Woman: No, thank you. Mr. Hull: Thank you, hearing no further testimony Chair, we can move on to New Business. GENERAL BUSINESS MATTERS (None) Mr. Hull: General Business, we have none. UNFINISHED BUSINESS (For Action) (None) Mr. Hull: We have no Unfinished Business. NEW BUSINESS (For Action) Tentative Subdivision Map Approval. Subdivision Application No. S-2021-5 Kukui`ula Development Co., LLC. Proposed 11-lot Subdivision TMK: (4) 2-6-022:055 Koloa, Kauai Mr. Hull: Item I. 1. Tentative Subdivision Map Approval for Subdivision Application No. S- 2021-5 Kukui’ula Development Co., LLC, is the applicant. It is a proposed 11-lot Subdivision. TMK: (4) 2-6-022:055, located in Koloa, Kaua`i. I’ll turn it over to Kenny who is the planner for this application. Staff Planner Mr. Estes: Hi, Good morning. I will read the report for the record. Residential District (Par 4). Mr. Estes read the Subdivision Report for the record (on file with the Planning Department). Mr. Estes: Based on the reasons noted above the Department supports the applicant’s deviation request and recommends it’s approval. However, the applicant shall be made aware that in the 5 event these private roadways are dedicated to the County the developer would be required to retrofit roadways to comply with the present roadway standards that are administered by the County of Kauai Department of Public Works Engineering Division. Chair we have received our agency comments are still pending from the Department of Public Works and Department of Water. However, in the subdivision report is noted that the applicant shall comply with those agencies prior to final decision. Chair DeGracia: Thank you Kenny, do we have any questions for the Department Planner? Hearing none, I have no questions. At this time, would the applicants or applicant’s representative like to make any comments. Ms. Maren Arismendez-Herrerra: Good morning this is Maren Arismendez-Herrerra of Esaki Surveying, here on behalf of the owners. The owners accept the Conditions and would like to respectfully request your tentative approval and I would answer any questions from the Commission, if there are any, thank you. Chair DeGracia: Thank you, do we have any questions for the applicant or applicant’s representative? Mr. Chiba: I do not have any. Chair DeGracia: I have no questions, hearing no questions, I’ll entertain a motion. Mr. Chiba: I would like to make a motion to approve the Tentative Subdivision Map approval of the Tentative Subdivision Map Application No. S-2021-5. Chair DeGracia: Second. Motion is to approve Tentative Subdivision Map Approval for Subdivision Application No. S-2021-5. All in Favor? Aye (Unanimous voice vote). Any Opposed? Any discussion? Hearing none. Motion carried 2:0. Subdivision Application No. S-2021-6 Kee Kauai Carport, LLC. Proposed 2-lot Subdivision TMK: (4) 2-6-017:045 Koloa, Kauai Chair DeGracia: Mr. Hull? Mr. Hull: Apologies, I was on mute. Moving on to the next Subdivision Item I 1.b. Subdivision Application No. S-2021-6 Kee Kauai Carport, LLC. Proposed 2-lot subdivision TMK: (4) 2- 6017:045, Koloa, Kona. Kauai. I will turn it over to Kenny who is the planner on this application. Staff Planner Mr. Estes: I will read the evaluation. The proposed development involves a 2-lot subdivision within the Kauai County Residential, the subject property was originally part of Kukui`ula’s Residential Subdivision Phase II Subdivision Application No. S-2021-6 that was approved by the Kauai Planning Commission on April 24, 2012. Chair the department is recommending tentative Subdivision approval. 6 Mr. Estes read the Subdivision Report for the record (on file with the Planning Department). Staff Planner Mr. Estes: Chair, the Department is recommending tentative Subdivision approval. Chair DeGracia: Thank you Kenny. Do we have any questions for the Department or Planner at this time? Hearing none, does the applicants or applicant’s representative like to make any comments at this time. Mr. Eric Kaneshiro: Hello. This is Eric Kaneshiro the representative for the applicants, I’ll be glad to take any questions or answer any questions if there may be. Chair DeGracia: Do we have any questions? I have no questions, hearing none I’ll entertain a motion. Mr. Chiba: I move to approve the Subdivision Map Application No. S-2021-6 Kee Kauai Carport, LLC. Chair DeGracia: Motion on the floor is to approve Subdivision Map Application No. S-2021-6 for Kee Kauai Carport, LLC. Second. All in Favor of this motion say? Aye (Unanimous voice vote). Opposed? Any discussion? Hearing none. Motion carried 2:0. Subdivision Application No. S-2021-7 Yellow Hale, LLC. Proposed 2-lot Consolidation and Re-subdivision into 4-lots TMK: (4) 2-8-014:032 Koloa, Kauai Mr. Hull: Thank you Chair, moving on to Item I. c. Subdivision Application No S-2021-7 Yellow Hale, LLC is the applicant. There is a proposed 2-lot consolidation a resubdivision into 4 lots TMK: (4) 2-8-014:032. Again, Kenny is our planner on this application. Staff Planner Mr. Estes: I will read the evaluation for the record. The proposed development involves a four lot Subdivision that establishes 2-lots within the County Residential District R10 zoning 1 remanent lot zoned open district and one roadway lot. Mr. Estes read the Subdivision Report for the record (on file with the Planning Department). Mr. Estes: Chair, I just would like to note for the record that the Department has revised the Subdivision Report to include conditions 2a. and 2b. that is noted on the approval letter for Class 4 Zoning Permit. Z4-2006-27 and those conditions are noted on the revised Subdivision Report as condition 1a and b. Chair DeGracia: Thank you Kenny. Do we have any questions for the Department or Planner? I have a couple of questions for the Department. Reading through a lot of testimonies there were many concerns that brought up and a lot of it surrounded cultural resources, archeological remains and whether or not they are abiding by regulations for the Department of Interior. Would 7 the Department like to speak on any of those items, to clear up any possible Conditions that may not be followed or needs to be followed so, I can better understand this situation. Mr. Hull: Yes, sure, Mr. Chair, I will briefly address that so as this is a tentative Subdivision approval recommendation all tentative Subdivision is ensuring that the applicant has met the basic standards of providing the maps which is necessary documentation to initiate the application process. Should the Commission choose to act today, to approve tentative approval that does not mean that this project is approved by any means. What it means is that it can move forward with agency conditions and requirements. There are several outstanding agency conditions that need to be resolved prior to final action including and not limited to poly works, Department of Health, Department of Water, as well as the State Historic Preservation Division requirements; concerning cultural or archeological features on the site. So, all it is doing is initiating the project to go and be able to look at resolving those requirements from those respected agencies. So, at this time that is all this action would be. I also clarify that the Department and the Commission ultimately did get a fair amount of testimony concerning this project. Now, while this project is occurring on the same property that a 280 multifamily unit project is occurring. This project is not that. It is part of in a sense, that it’s the Subdivision of a road out of the project area. The 280 units that’s a lot of the testimony that was referring to, those reviewed previously and have been actually granted their approval. Much, much due back in 2006 or 2007 and that not what this application is for. If there are concerns and there may very well be concerns about roadway subdivision occurring, and the applicant needs to address those concerns prior to coming back to you folks for final actions. But that is ultimately that is what this application is in front of you right now. Chair DeGracia: Thank you, Mr. Hull. And just for clarification this roadway feeds into the Wainani Subdivision, correct? Mr. Estes: Yes, correct. Chair DeGracia: I have no further questions. Do we have questions to the Department? Hearing none, would the applicants or applicant’s representative like to make any comments at this time. Ms. Maren Arismendez-Herrerra: Good morning, Commission, this is Maren Arismendez- Herrerra of Esaki Surveying, here on behalf of the owners. The main purpose that was stated previously is to separate the roadways, to make it into a separate lot, and we would like to respectfully request your tentative approval and I would answer any questions that the Commission has, thank you. Chair DeGracia: Do we have any questions for the applicant? I have no questions. Hearing no questions, at this time I would like to entertain a motion. Mr. Chiba: I would like to make a motion to approve a Tentative Subdivision Application No. S-2021-7, Yellow Hale, LLC. 8 Chair DeGracia: Second. Motion on the floor is to approve Tentative Subdivision Application No. S-2021-7 for Yellow Hale, LLC. All in Favor of this motion say? Aye. (Unanimous voice vote). All opposed? Any discussion? Hearing none. Motion carried 2:0. Final Subdivision Map Approval. Subdivision Application No. S-2021-3 Allan & Karen Nesbitt, Trust Proposed 2-lot Boundary Adjustment TMK: (4) 2-3-022:044 &045 Koloa, Kauai Mr. Hull: Next, we have Agenda Item I 2. a. Subdivision Application No. S-2021-3 Allan & Karen Nesbitt, Trust Proposed 2-lot Boundary Adjustment TMKs: (4) 2-3-022-044 & 045 turn it back over to Kenny for this matter. Staff Planner Mr. Estes: The proposed evaluation boundary adjustment between two existing lots. Mr. Estes read the Subdivision Report for the record (on file with the Planning Department). Mr. Estes: Chair we have received final recommendations from the Department of Public Works, Department of Water, and the Department of Health. The Planning Department is recommending is requesting an approval of this Subdivision Application. Chair DeGracia: Thank you Kenny. Any questions for the Department or Planner? I have no questions, would the applicants or applicant’s representative like to make any comments at this time. Mr. Zach Brackenridge: This Zach Brackenridge, the applicant’s representative. I have no comments. Chair DeGracia: Any questions applicants or applicant’s representative? Hearing none, I will entertain a motion at this time. Mr. Chiba: I move to approve the Subdivision Map for Application No. S-2021-3 Allan & Karen Nesbitt, Trust. Chair DeGracia: Second. Motion on the floor is to approve Final Subdivision Map approval for Application No. S-2021-3 for Allan & Karen Nesbitt, Trust. All in Favor of this motion say? Aye (Unanimous voice vote). Opposed? Any discussion? Hearing none. Motion carried 2:0. Mr. Hull: And with that Chair, we have no further agenda items, the Committee will be ready for adjournment. ADJOURNMENT Chair DeGracia: Could we have a motion to adjourn the meeting. 9 Mr. Chiba: I’ll motion to adjourn the meeting. Chair DeGracia: I’ll Second. Approve say? Aye (Unanimous voice vote). Meetings adjourned. Motion carried 2:0. Subdivision Committee Chair DeGracia adjourned the meeting at 9:02 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. 1 KAUA‘I PLANNING COMMISSION SUBDIVISION SESSION September 14, 2021 DRAFT The regular meeting of the Planning Commission Subdivision Committee of the County of Kaua’i was called to order at 8:41 a.m., Microsoft Teleconference. The following Commissioners were present: Mr. Francis DeGracia Mr. Ako Mr. Chiba Absent and Excused: The following staff members were present: Planning Department Director Kaaina Hull-Planning Deputy Director Jodi Higuchi Sayegusa, Dale Cua, Kenneth Estes, and Planning Commission Secretary Shanlee Jiminez; Office of the County Attorney – Deputy County Attorney Laura Brazalia; Office of Boards and Commissions – Support Clerk Arleen Kuwamura Discussion of the meeting, in effect, ensued: CALL TO ORDER Subdivision Committee Chair DeGracia: Called the meeting to order at 8:41 a.m. ROLL CALL Planning Director Kaaina Hull: Chair it is 8:41 a.m. and we let the entire lobby in are you ready to commence the meeting. Chair DeGracia: Yes, I’d like to call to order the Subdivision Committee Meeting for Tuesday September 14, 2021, roll call, please. Mr. Hull: Roll call. Commissioner Ako Mr. Ako: Here and by myself. Mr. Hull: Commissioner Chiba Mr. Chiba: Here Mr. Hull: Chair DeGracia Chair DeGracia: Here Mr. Hull: You have a quorum Mr. Chair. Three Present. 2 APPROVAL OF AGENDA Chair DeGracia: Motion to approve the agenda. Mr. Ako: I move to approve the agenda for September 14, 2021, Subdivision Committee Meeting. Mr. Chiba: Second. Chair DeGracia: The motion is to approve the agenda as is. All in Favor signify by say? Aye. (Unanimous voice vote). Any opposed? Hearing None. Motion carried 3:0. MINUTES of the meetings(s) of the Subdivision Committee Mr. Hull: Next, we would be Item D. minutes for the November 10, 2020, and minutes for December 8, 2020, meeting. Chair DeGracia: Could we have a motion to approve the minutes for November 10, 2020, and Subdivision Minutes for December 8, 2020. Mr. Chiba: I moved to approve the Subdivision Minutes dated November 10, 2020, and Subdivision Minutes for December 8, 2020. Mr. Ako: Second. Chair DeGracia: Thank you. Motion on the floor is to a approve the Subdivision Committee Minutes for November 10, 2020, and Subdivision Minutes for December 8, 2020. All in Favor? Aye (Unanimous voice vote). Any discussion? Any Opposed? Hearing none. Motion carried 3:0. RECEIPT OF ITEMS FOR THE RECORD Mr. Hull: Thank you Chair, we have no additional receipt of items for the record. HEARINGS AND PUBLIC COMMENT Mr. Hull: We have no individuals signed up for Public Testimony. GENERAL BUSINESS MATTERS (None) UNFINISHED BUSINESS (For Action) (None) 3 NEW BUSINESS (For Action) Extension Request to Complete Improvements. Subdivision Application No. S-99-49 Kulana Association of Apartment Owners Kulana Subdivision 23-lot Subdivision TMK: (4) 4-3-011:001 Kapaa & Waipouli, Kawaihau, Kauai Mr. Hull: Item I. 1.a Subdivision Application No. S-99-49 Kulana Association of Apartment Owners, Kulana Subdivision 23-lot Subdivision TMK: (4) 4-3-011:001 Kapa’a, & Waipouli, Kawaihau, Kaua`i. We have a Subdivision Report, but before we go into that, there was a discrepancy caught in the Applicants mailing of notice to the surrounding property owners. It was absently placed given that we have a virtual meeting, it also listed the meeting at 9:00 a.m. Given that listing at 9:00 a.m. which is subsequent to actual 8:30 a.m. start time of the meeting. Despite the delays we had this morning, it actually would be a faulty of the property owners. Given that we ultimately need to defer this item to re-publish as well as the property owners. Asking for a deferral to October 26, 2021, and with that, Kenny is here along with the applicant should any of the Commissioners have any questions. Chair DeGracia: Fellow Commissioners, do we have any questions for the planners or the applicant? Mr. Ako: I don’t have any questions. Chair DeGracia: I don’t have any questions? At this time could we have a motion to defer to October 26, 2021. Mr. Chiba: I moved to defer this matter to the October 26, 2021, Subdivision Committee Meeting. Deputy County Attorney Laura Barzilai: We need a second on the motion, please. Mr. Ako: I’ll Second. Chair DeGracia: Motion to defer to the October 26, 2021, Subdivision Committee Meeting. Before we have a roll call vote, is there any discussion on this matter? If not, could we have a roll call vote, please. Mr. Hull: Roll call, Chair. Commissioner Ako? Mr. Ako: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. 4 Mr. Hull: Chair DeGracia? Chair DeGracia: Aye. Mr. Hull: Motion passes 3:0, Mr. Chair. ADJOURNMENT Mr. Hull: With that, we have no further business matters, Chair. We are ready for adjournment. Chair DeGracia: Could we have a motion to adjourn? Mr. Chiba: I motion to adjourn the meeting. Mr. Ako: I Second. Chair DeGracia: The motion is to adjourn the meeting. All in Favor signify by saying? Aye (Unanimous voice vote). Motion carried 3:0. Subdivision Committee Chair DeGracia adjourned the meeting at 8:47 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. DEPARTMENT OF PLANNING KA'AINA HULL,DIRECTOR JODI A.HIGUCHI SAYEGUSA,DEPUTY DIRECTOR DEREK S.K.KAWAKAMI,MAYOR MICHAEL A.DAHILIG,MANAGING DtRECTOR SUBDIVISION REPORT SUMMARY Action Required by Planning Commission: Subdivision Permit No. Name of Applicant(s) PROJECT INFORMATION Consideration of Subdivision Application No.S-2022-G that involves a fifty-one (51)lot subdivision. Application No.S-2022-6 KUKUI'ULA DEVELOPMENT COMPANY,LLC. Map Title Parcel HH Subdivision.Consolidation of Lots 26,29,and 31 Kukui'ula Residential Subdivision,Phase 111-A Being Portion of R.P.6714,L.C.Aw.7714- B,AP.2 to M.Kekuaiwa no M.Kekuanaoa Resubdivision of said Consolidation into Lots 1 through 51,Inclusive and Designation of Easements D-10 through D-14,Inclusive at Koloa,Kona,Kaua'i,Hawai'i. Tax Map Key(s):2-6-019:026,029,031 Area:84.13 acres Zoning:Open /Special Treatment-Open /Resort RR-10 /Residential R-10 /Residential R-4 State Land Use District(s): Urban General Plan Designation: Resort/Residential Comm./GolfCourse AGENCY COMMENTS COK Public Works COK Water: Other(s) 11.01.2021 Q State DOT-Highways: 12.23.2021 1X1 State Health: DLNR-SHPD: 11.10.2021 pending EXISTING ROAD RIGHT-OF-WAY(S) Road Name Existing Width Required Width Pavement YES N0 Reserve 'Alihilani Street 44 feet 44 feet a Ke Alaula Street 56 feet 56 feet a Lawa'i Road 60 feet 60 feet a APPLICABLE FEES Environmental ImpactAssessment (EIA)$23,500.00 Park Dedication TBD.Appraisal required Appraisal Report Required Yes l-.i.<a.i- JAN 11 2022 III.EVALUATION The proposed development establishes forty-seven (47)lots within the Residential District (R- 10),one (1)roadway lot (Lot 48),one remnant Lot (Lot 50),proposed Lot 49 that encompasses The Club at Kukui'ula facility,and proposed Lot 51 that encompasses the Kukui'ula golf course. It is noted that the proposed residential lots are outside ofthe Special Management Area (SMA);however,proposed Lots 50 and 51 have portions ofthe lots that are within the SMA. Any new "development",as defined in Section 1.4 ofthe SMA Rules and Regulations ofthe County of Kaua'i,may require an SMA Permit and if so,the applicant is subject to all applicable requirements/conditions ofthe permit. It should also be noted that the Public Path and Trails Exhibit dated October 2020 shows the proposed subdivision as part ofthe trail system within the planned community.The applicant will need to work with the Planning Department to address the provision of public access. IV.RECOMMENDATION TENTATIVE APPROVAL FINALAPPROVAL D Denied D Approval D Denied Tentative Approval subjectto all requirements as noted on the follow pages: All conditions have been complied with Sctor of Planning Date 1/»/72-|Director of Planning Date V.AGENCY REQUIREMENTS 1.Requirements of the Planning Department: a.An updated preliminary title report for the existing lot shall be submitted to the Planning Department for review. b.All existing and proposed easements,ifany,shall be identified in the deed descriptions of the affected lots,draft copies of which shall be submitted to the Planning Department for review and approval. c.Pursuant to Ordinance No.PM-2004-370,the Applicant is allowed to credit Environmental Impact Assessment and Park Dedication fees for developments within their Project Area,Since the Applicant has not resolved with the Planning Department whether they will pay fees or provide improvements for credit,the following fees are being assessed: 2 1 Page S-2022-6;SuMivision Report Kukui'ula Dev.Co. 01.11.2022 1)An Environmental Impact Assessment FeeofTwentyThreeThousand Five Hundred Dollars ($23,500.00)shall be paid to the County of Kaua'i;and 2)The Applicant shall pay a Park Dedication fee pursuant to Section 9-2.8 ofthe Kaua'i County Code Subdivision Ordinance.An appraisal report and price list shall be provided to the Planning Department to forward to the Real Properties Division to help calculate the fee amount. The Applicant shall resolve with the Planning Department the method that will be utilized to satisfy these fee requirements prior to final subdivision approval. d.Relative to Condition No.l.c.and prior to final subdivision map approval,the Applicant shall meet with the Planning Department to resolve the applicable requirements of Ordinance No.PM-2004-370.Specifically,the following conditions shall apply to this subdivision: Conditions of Ordinance No.PM-2004-370: o 3.(prohibition ofAdditional Dwelling Units) o 7.(improvements to roadway system) o 14.(EIAcredit) o 15.(recreation) o 16.(park dedication credit) o 23.(wastewater system master plan) o 27.(solidwaste managementplan) o 30.(blasting plan) e.Prior to final subdivision approval,Lot 26 (existing)shall be amended to be labeled as Lot 10 as shown on the final subdivision map of Subdivision Application No.S- 2019-9 (Kukui'ula Parcel FF Subdivision)that was approved on March 24,2020.Lot 26 was initially a part of the 10-lot subdivision that was approved through S-2019-9 where it subsequently became Lot 10 on the final subdivision map. f.Relative to the requirements/standards setforth in Ordinance No.777,the Applicant shall resolve with the Planning Department the provision of public access. The subdivider shall incorporate the features of the Conceptual Trail Master Plan (dated April 2004)within the project area,if applicable.The access plan shall be reviewed and approved by both the Planning and Parks &Recreation Departments. Furthermore,proper documents shall be prepared and ready for execution prior to final subdivision approval.The Planning Department reserves the right to impose additional conditions relating to this matter while in the process of resolving this condition. There shall be no direct access permitted onto Lawai Road from proposed Lot 50. Semi-circles denoting no direct access permitted shall be shown on the final 3 I Page S-2022-6;Subdivision Report Kijkui'uia Dev,Co. 01.11.2022 subdivision map.These provisions shall be incorporated as a restrictive covenant for the subject lot,draft copies of which shall be submitted to the Planning Department for review and approval. h.The Applicant is made aware that the streets designated within the subdivision must be officially named before the Department approves the construction plans.Street names should be in Hawaiian and be submitted to our Department for review and approval,along with a request letter and 12 maps (on S'/z"x 14"paper).The maps should be detailed such that emergency vehicles,police services,postal deliveries, etc.,are able to locate the street.References to roadway,such as the highway and other surrounding roads,should be shown on the street-naming map i.The Subdivider shall comply with the requirements in Section 9-2.3fe)of the Kaua'i County Code (1987)relating to the provision of curbs,gutters and sidewalks along Roadway Lot 48.The extent of improvements shall be resolved with the Planning Department and Department of Public Works prior to final subdivision map approval. j.The Applicant shall prepare and obtain construction plan approvals for necessary road, water,drainage,electrical and telephone utilities and facilities,and either construct the same or post a surety bond for completion. k.The Applicant shall establish bus stops/shelters pursuant to Ordinance No.406.The details shall be resolved with the Planning Department and Department of Public: Works priorto construction plan approval. I.The Applicant shall identify on the final subdivision map whether the proposed lots will be utilizedforTransientVacation Rental (TVR)purposes.lfso,thetotal amountof the lots within the Kukui'ula Parcel HH Subdivision,shall be counted towards the total amount approved through Ordinance No.PM-2004-370. m.The subdivider is informed that a portion ofthe subject property is located within the Special Management Area (SMA).Additional lots within the SMA or any new "Development,"as defined in Section 1.4 of the SMA Rules and Regulations of the County of Kaua'i,may require an SMA Permitand ifso,theapplicantissubjecttoall applicable requirements/conditions of the SMA Permit. n.The applicant shall depict with a dotted line on the final subdivision map zoning lines delineating the boundaries between each County Zoning District as shown on the "Kukui'ula South Shore,Kaua'i,Zoning Refinement Area Map"dated June 8,2020. o.Pursuant to Section 9-3.8fb)of the Subdivision Ordinance,Kaua'i County Code (1987),the Applicant shall submit to the Planning Department an electronic record (digitized format)of the final subdivision map(s)on dlsk for record keeping purposes prior to final subdivision approval. 4 1 Pa ge S-2022-6;Subdivision Report Kukui'ula Dev.Co. 01.11.2022 2.Requirements of the Department of Public Works (DPW): a.We have no site-specific comments for the preliminary map for the proposed consolidation of Lots 26,29,and 31 and Resubdivision of said consolidation into Lots l through 51 (Parcel HH). In general,the applicant shall comply with all the provisions ofthe "Sediment and Erosion Control Ordinance"to safeguard the public health,safety,and welfare,to protect property, and to control soil erosion and sedimentation.This shall include,but not limited to,a grading and/or grubbing permit,which is required if any of the following conditions apply: 1)Theworkareaexceedsone (1)acre. 2)Grading involving excavation or embankment,or combination thereof exceeds 100 cubicyards. 3)Grading exceeds five (5)feet in vertical height or depth at its deepest point. 4)The work area unreasonably alters the general drainage pattern to the detriment ofabutting properties. b.Best management practices (BMPs)shall be incorporated to the maximum extent practicableto prevent damage by sedimentation,erosion,ordusttowatercourses,natural areas,andotherproperties.The permittee and the propertyownershall be responsibleto ensure that BMPs are satisfactorily implemented at all times. c.The existing grass strip and sidewalk on Lawai Road previously built by Kukui'ula Development Corporation is difficult for the County of Kaua'i Public Works Department to maintain due to limited equipment available.Therefore,we recommend that the Planning Commission include the following condition with this subdivision: "The applicant shall maintain the portion of the County right-of-way of Lawai Road between the curb (or edge of pavement where there is no curb)and the property line separating the County right-of-way and the properties being subdivided as part ofthis subdivision.The maintenance shall include mowing or otherwise maintaining the grass or other vegetation within this area,maintaining the concrete sidewalk to be free of obstructions and debris,and replacing the concrete sidewalk in the event it is broken or uneven in the future." 3.Requirements of the Department of Water (DOW): a.Pay the Department of Water the following charges in effect at the time of receipt.At the present time,these charges include: 1)A Facilities Reserve Charge (FRC)of $705,750 (50 lots at $14,115 per lot). b.Prepare and receive DOW's approval of construction drawings for the necessary water system facilities and either construct the said facilities or post a performance bond for construction.These facilities shall also include: 5 I Page S-2022-6;Subdivision Report Kukui'ula Dev.Co. 01.11.2022 c. d. 1)All facilities required in the approved Kukui'ula Water Master Plan for the proposed project. Prepare and convey to the Department of Water a Right-of-Entry and Temporary Grant of Easement for the purpose of construction,repair,maintenance,and operation of the subdivision water system improvements installed in other than County-owned property. Ifa bond is filed,to secure final subdivision approval,the subdivider shall clearly letter the following on the approved construction plans,final subdivision map, and deeds: "Domestic water service will not be available until the required construction improvements for this subdivision are completed and accepted by the Department ofWater,CountyofKaua'i." This deed restriction shall be recorded with the Bureau ofConveyances within ninety (90)days offinal subdivision approval bythe Planning Department. e.Kukui'ula Development Company (KDC)will be required to: 1)Submit an updated Kukui'ula Water Demand and System Capacity Tracking Matrix. 2)Be made aware that the Facilities Reserve Charge and the adequacy of source,storage and transmission facilities for the proposed development will be dependent on the approved updated Kukui'ula Water Demand and System Capacity Tracking Matrix. 3)Show water service assignments on the subdivision map for DOW's review and approval.The DOW comments may change depending on the approved subdivision map. 4.Requirements of the Department of Health (DOH): a.The property may harbor rodents which will disperse to the surrounding areas when the site is cleared.In accordance with Title 11,Hawaii Administrative Rules (HAR),Chapter 11-26,"Vector Control",the applicant shall ascertain the presence or absence of rodents on the property.Should the presence of rodents be determined,the applicant shall eradicate the rodents prior to clearing the site. b.Noise will be generated during the construction and grading phases of this project.The applicable maximum permissible sound levels as stated in Title 11, 6 1 Page S-2022-6;SuMiuision Report Kukut'ula Dev.Co. 01.11.2022 HAR,Chapter 11-46,"Community Noise Control"shall not be exceeded unless a noise permit is obtained from the State Department of Health. c.Temporary fugitive dust emissions could be emitted when the subdivided lots are prepared for construction and 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 of water wagons,sprinkler systems,dust fences,etc. 5. d.The construction waste that is to be 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. Requirementsofthe State Historic Preservation Department (SHPD): a.The subdivider shall comply with the requirements ofthe State Historic Preservation Department,if any,prior to final subdivision approval.The subdivider shall be notified upon receipt oftheir report. 6.The Applicant is advised the 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 of Land and Natural Resources,Historic Preservation Division and the Planning Department to determine mitigation measures. 7.The Applicant is advised that prior to and/or during construction and use additional conditions may be imposed by government agencies.Should this occur,the applicant shall resolve these conditions with the respective agency(ies). The Planning Commission is further advised that this report does not represent the Planning Department'sfinal recommendation inviewoftheforthcoming public hearing process scheduled for JANUARY 11,2022 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 c.The Applicant's response to staff's report anfi recomrri^ndation as provided herein. KENNETH A.ESTES Planner 7 1 Pa ge S-2022-6;Subdivision Report Kukui'ula Dev.Co. 01.11.2022 1;\- ^-^ PREUMIKARY MAP (Porcei HH) CONSOUDA710N OF LOTS 26.29.ANO 31 Kukui'ulo Residentia)Subdiwsion.Phase 111-A Being Portion of R.P.6714, LC.Aw.7714-B,Ap.2 to M.Kekuaiwa no M.Kekuanaoa RESUBDIViSION OF SAiD CONSOUOATION iNTO LOTS 1 THROUGH 51.JNCLUSIVE AND DESiGNATIOfrt OF EASEMENTS D-10 THROUGH D-14.1NCLUSVE KOLOA.KAUA'I.HAWWI Owner;Kukuhtla Oavrfoptnant Co.LLC TUK-(4}2-6-19;26 (4)2-G-19:28 (4)2-6-19:31 Date;Octoher S.2021 ,lrthC t IftWPNa. LOCATION MAP (S-2022-6 KUKUIUL^PARCEL HH) COUNTY OF KAUA'I PLANNWG DEPARTMENT 4444 RJCE STREET,SUITE A473 LlHU'E,HAWAI'I 9^766 •. (808)241-4050 i'HG Ot SUBDIVISIONAPPLICATIONROUTINGFORiV^I QEC-3 A 8:01 DATE:November 1,2021 Subdivision Map Review and Approval Rpn REQUEST: ^l Preliminary Q Pre-Final d Flnal F]Exteusion SUDIVISION APPLICATION N0:Subdivision Permit N0.S-2022-6, Owner<s)/App licant(5):Kukuiula Development Company Name ofSurveyor/Engineer/Authorized Agent:j Dennis M.Esaki Tax Map Key:Tas Map Key:(4)2-6-019:026,29,31 |Assigned to:|Kenny Improvements: Route To: COMMENTS FROM DPW ENGINEERING (Comment Due £late;12/1/2.021 ):PW#11.21.002 We have no site-specific comments for the preliminary map for the proposed consolidation ofLots 26,29, and 31 and Resubdivision of said consolidation into Lots 1 through 51 (Parcel HH). In general,the applicant shall comply with all provisions ofthe "Sediment and Erosion Control Ordmance"to safeguard the public health,safety,and welfare,to protect property,and to control soil erosion and sedimentation.This shall include,but nol be limited to,a grading and/or grubbing pennit, which is required ifany ofthe following conditions apply: a.The work area exceeds one (l)acre. b.Grading involving excavation or embankment,or combination thereof exceeds 100 cubic yards. c.Grading exceeds five (5)feet in vertical height or depth at its deepest point. d.The work area unreasonably alters the general drainage pattem to the detriment ofabutting propertles. ~s DPW-Engineering ~a Department ofTransportafion -STP-a- DPW-SolidWaste ~a DOT-Highway,Kauai~ET DPW-Wastewater ~w State Department of Health~D Fire-DepEirtment ~D State Historic Preservation Division-D- Departmenf ofParks &Recreation ~D UH Sea Grant~w County Housing-Agency 'W U.S.Postal Department-D- KHPRC ~a Othcr:~w County Water Department~s County Transportation Agency Best management practices (BMPs)shall be incorporated to the maximum extent practicable to prevent dainage by sedimentation,erosioni or dust to watercourses,natural areas,and other properties,The permittee and the property owner shall be responsible to cnsure that BMPs are satisfactorily implemented at all times. The existing grass strip and sidewalk on Lawa'i Road previously built by Kukui'ula Development Corporation is difRcult for the County ofKaua'i Public Works Department to maintain due to limited equipment available.Therefore,we recommend that the Plamiing Commission include the following condition with this subdivision: The applicant shall maintain the portion ofthe County right-of-way ofLawa'i Road behveen the curb (or edge ofpavement where there is no curb)and the property line separating the County right-of-way and the properties being subdivided as part ofthis subdivision.This maintenance shall include mowing or otherwise maintaining the grass or othor vegetation within this area, maintaining the concrete sidewalk to be free of obstructions and debris,and replacing the concrete sidewalk in the event it is broken or uneven in the future." Sincerely, Michael Moule,P.E. Chief,Engineering Division 4398 PUA LOKE STREET LIHU'E,KAUA'l,HAWAI'I 96766 PHONE:(808)245-5400 /FAX:(808)245-5813 SUBDFVISION REPORT '21 DEC2S P2"'. TO:PLANN1NG DEPARTMENT PtA •'•:.;•~"':'=" FROM:DEPARTMENT OF WATER '" DATE:December 22,2021 z-fi-o l ():()2<>,Kukiiiula Development Dennis TOIK:1)2').I):!I _NAME;Company_SURVEYOR:Esaki REFORT N0:S-2022.6 1.Domestic vvatcr is adequate.TentaUve approval 1s recommended. 2.Atl requirements have been fully met and;therefore,Final approval is recominended. 3.Before final approval can be recommended,the subdivider must: A.Pay the Department of Water the follo\vmg charges in effect ar the rime of receipt.At the present time,these charges include: 1)The Facilities Reserve Charge (FRC): 50 Lots S>S14,II5 perlot -S •$705,750 (See Item 5) 2)Payment to install or relocate service connections(s)at the fL\ed cost of S If the subdivider causes a delay in the service connection instatlation after one year since final map approval,the subdivider shall be charged the increase in the fixed cost,if any. 3)Deposit (the subdivider wiU either be biUed or retumed the difference between this deposit and the actual cost of construction of $__for construction by the DOW. B.Submit to the Department of Water a copy of the subdivider's peraait to perform work upon a State highway from the State Highways Division C.Prepare and receive DOWs approval of construction drawings for the necessary waier system facUities and either construct said facilities or post a performance bond for construction. These facilities shaU also include: 1)All facilities required in the approved Kukui'ula Water Master Plan for the proposed project. D.Prepare and convey to the Department of Water a Right-of-Entry and Temporary Grant of Easement for the purpose of construction.repair,mamtenance and operation of the subdivision water system improvements installed in other than County-owned property. E.If a bond is filed,to secure final subdivision approval,the subdivider shall clearly letter the following on the approved construction plans,final subdivision map,and deeds: "Domestic water service \vill not be available until the required constructlon improvements for this subdivision are completed and accepted by the Department of Water,Coimty of Kaua'i." This deed restriction shatt be recorded with the Bureau of Conveyances withm ninety (90)days of final subdMsion approval by the PIanning Department. 4.Installation of service connections wUl not be required until request for vvater service is made.The applicant for service vvill be charged the applicable service connection charges at that time. 5.Other (or remarks): Kukui'ula Development Company (KDC)witt be required to: a.Submit an updated Kukui'ula Water Demand and System Capacity Tracking Matrt\. b.'•'•"•'Be made aware that the Facilitles Resen'e Charge and the adequacy of source,storage and transmission facilities for the proposed Development mll be dependent on the approved updated Kukul'ula VVater Demand and System Capacity Tracking Matrtv c.Show vvater servlce assignnients on subdivision map for the DOVV's revlew and approval. The DOW conunents may change depending on the approved subdivision map. a a D D D D a ^LicA&t^j^.^ut^',<tt Dec23,2021 St'BDIVlSION RB'ORTNO.S-2022.6 Michael Hinazuml,P.E. Program Administrator Engineering Division Date yW2'£-a,TL'nrati\'r Application,Kukuiiila OfvflopmrfiT.I'an'el HH. .l-()-Ot():02G;.;-(>-«!():02i);2-ti.01<):031 f"1 "'.:i 1IIl^t."i"- 1,'"^y COUNTY OF KAUA'I PLANNING DEPARTMENT 4444 RICE STREET,SUITE A473 LIHU'E,HAWAI'I 96766 (808)241-4050 II-HEAUHStilUCES SUBDIVISION APPLICATION ROUTING FORM DATE:November 1,2021 Subdivisian Map Review and Approval REQUEST: ^,PreUmiDary d Pre.Final 1_1 Final Q Extcnsion SUDIVISION APPLICATION N0:Subdivision Permit N0.S-2022-6, Owner(s)/AppIicant(s):Kukuiula Development Company Name of Surveyor/Engineer/Authorized Agent:j DenniS M.Esaki Taii Map Key:Tax Map Key:(4)2-6-019:026,29,31 [Assigned to:|Kenny Improvements: Route To: COMMENTS (Comment Due Date:12/1/2021 ): 5^/)T^^^ ^(i^ 'w DPW-Engineering ~a Department ofTransportation -STP~D DPW-SolidWaste ~0 DOT-Highway.Kauai~w DPW-Wastewater ~s~ State Department of Health~D Fire-Department "D' State Historic Preservation Division"D' Department ofParks &Recreation ~D~ UH Sea Grant~w County Housing-Agency "w U.S.Fostal Department~D KHPRC -a" Other~s County Water Department~B" County Transportation Agency Subdivision Application No.:S-2022-6 Applicant:Kukui'ula Development Co.- Based on our review of the application at this time,we have these environmental health concerns or comments for your consideration at this time. 1-- The property may harbor rodents which will disperse to the surrounding areas when the site is cleared.In accordance with Title 1 1,Hawaii Administrative Rules (HAR),Chapter 11-26,"Vector Control",the applicant shall ascertain the presence or absence of rodents on the property.Should the presence of rodents be determined,the applicant shall eradicate the rodents prior to clearing the site. Noise will be generated during the construction and grading phases ofthis project.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. Temporary fugitive dust emissions could be emitted when the subdivided lots are prepared for construction and 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 ennissions caused by construction work from affecting the surrounding areas. This jncludes 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. The construction waste that is be 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",theopen burning of any of these wastes on or off sile prohibited. Due to the general nature of the application submitted,we reserve the right to implement future environmental health restrictions when informalion that is more detailed is submitted. COUNTY OF KAUA'l PLANNING DEPARTMENT 4444 R1CE STREET,SUITE A473 LIHU'E,HAWA1-I 96766 (808)241-4050 SUBDIVISLON APPLICATION ROUTING FORM DATE;Novcmbcr 1,2021 SubdivisioiLMap Review and Approval REQUEST: ^[Preliminary d Pre-Final a Final Q Extension SUDIVISION APPLICATION N0;Subdivision Permit N0.S-2022-6, Owner(s)/Applicant(s):Kukuiula Development Company Name ofSurveyor/Engineer/Authorized Agent:|Dennis M.Esaki Tax Map Key:Tax Map Key:(4)2-6-019:026,29,31 |Assigned to:[Kenny Improvements; Route To: COMMENTS (CoHHne»w Due Ou/e;12/1/2021 ): Ot^-c'^C^^-^^'^i^'. ^ 'w DPW-Engineering ~D DepartmenE oFTransportation -STP~D DPW-SolidWaste "D' DOT.Highway,Kauai isi-^ltfl^ 'DPW-Wastew^liy ~w State Department of Health D Fire-Dcpanment "D' Statc Historic Preservation Division~D Department of Parks &Recreation ~a UHSeaOranl~w Counly Housing-Agency ~w U.S.Postal Department~D KHPRC ~D Other:~w County Water Departmenl~w County Transponation Agency PL .••iNiNG"COUNTY OF KAUA'I PLANNING DEPARTMENT 4444 RICE STREET.SUITE A473 LIHU'E.HAWAI'I 96766 21 NOV-9 A3S5 (808)241-4050 SUBDIVISION APPLICATION ROUTING FORM DATE:Novcniber 1,2021 RE C >.:i ••-• S^ibdivision Map Review and Approval REQUEST; ^Preliniinary Q Pre.Final Q Final Q Extension SUDIVISION APPLICATION N0: Owncr(s)/Applicant(s): Subdivision Permit N0.S-2022-6, Kukuiula Development Company Name ofSurveyor/Engtneer/Authorized Agent:|Denilis M*Esaki Tax Map Key; Improvements: Tax Map Key;(4)2.6-019:026,29,31 |Assigned to;|Kenny Route To: COMMENrS (Comment Due Date:12/1/2021 ): CT(\VW9 1^0 ^-^^(Lo^^t^^Ot^^ic>pz^^T. \^w\ ll.&-^oZ-l ~w DPW-Engineering "D' Department ofTransportation -STP~n- DPW-SolidWasle ~a DOT-Highway,Kauai~w DPW-Waslewater ~w State Department of Health"D' Fire-Department "D' Statc Historic Prcscrvation Division~a Depanmcnt of Parks &Recrcation ~0 UH Sea Oranl~w County [-{ousing-Agency ~s U,S.Postal Departmcnt~0 KHPRC ~D Olher:~a~ Coiinty Water Departmcnt IK Gpynty Transportation Agency r DEPARTMENT OF PLANNING KA'AINA HULL,DIRECTOR JODI A.HIGUCHI SAYEGUSA,DEPUTY DIRECTOR r DEREK S.K.KAWAKAMI.MAYOR MICHAELA.DAHILIG,MANAGING DIRECTOR SUBDIVISION REPORT SUMMARY Action Required by Planning Commission: Subdivision Permit No. Name of Applicant(s) Consideration ofSubdivision Application No.S-2022-7 that involves a two (2)lot boundary adjustment. Application No.S-2022-7 TINKTANK,LLC. PROJECT INFORMATION MapTitle Consolidation of Lots 1-L &1-N Being Portions of Royal Patent Grant 4485, L.C.Aw.7712,and Apana 5 to M.Kekuanaoa and Resubdivision of said Consolidation into Lots 1-L-l and 1-N-l and Deletion of Easement AU-1 Affecting Lot 1-L for Access and Utilities in Favor of Lot 1-N and Easement U-l Affecting Lot 1-L for Utilities in Favor of Lot 1-N at Ele'ele,Koloa,Kaua'i, Hawai'i. Tax Map Key(s):2-1-003:016,031 Area:40,546 sq.ft. Zoning:General Industrial (1-G) State Land Use District(s): Urban General Plan Designation: Transportation AGENCYCOMMENTS COKPublicWorks COK Water: Other(s) 12.08.2021 Q State DOT-Highways: pending 1X1 State Health: QDLNR-SHPD: 11.10.2021 EXISTING ROAD RIGHT-OF-WAY(S) Road Name Exlsting Width Required Width Pavement YES N0 Reserve Aka'ula Street (Private Roadway)24 feet 56 feet a a D a a APPLICABLE FEES Environmental Impact Assessment (EIA)N/A Park Dedication N/A Appraisal Report Required N/A rp.i.^< JAN 11 2022 r r III.EVALUATION The proposal redefines the boundaries between two (2)existing lots within the County General Industrial District (1-G).The intent of this proposal is to adjust the boundaries between existing Lots 1-L and 1-N to accommodate the construction of a 9,000 square foot warehouse/repair facility and associated site improvements that will be used to store and repair tour boats,and to provide a parking area.The Applicant is also proposing to renovate the existing abandoned storage tank on the project site to serve as a warehouse and for storage.The warehouse/repair facility and associated site improvements were reviewed through Class III Zoning Permit Z-lll-2021-1 and Special Management Area Use Permit SMA(U)- 2021-4 that was approved by the County of Kaua'i Planning Commission on December 8,2020. The subject subdivision will be subject to all applicable requirements of Z-lll-2021-1 and SMA(U)-2021-4,and any new "development",as defined in Section 1.4 ofthe SMA Rules and Regulationsofthe CountyofKaua'i,may require an SMA Permitand ifso,the applicant is subject to all applicable requirements/conditions of the permit.The subject site is located along the makai side of Aka'ula Street in Port Allen,approximately 650 feet east of its intersection with Waialo Road.Since there are no additional lots being created with this application,there will be no assessment of EIA and Park Dedication Fees. IV.RECOMMENDATION V.AGENCY REQUIREMENTS 1.Requirementsofthe Planning Department: a.An updated preliminary title report for the existing lots shall be submitted to the Planning Department for review. b.All existing and proposed easements,if any,shall be identified in the deed descriptions ofthe affected lots,draft copies ofwhich shall be submitted tothe Planning Department for review and approval. 2 1 Pa ge S-2022-7;Subdivision Repcrt TinkTank.LLC. 01.11.2022 TENTATIVE APPROVAL FINALAPPROVAL ^Approval D Denied d Approval D Denied Tentative Approval subj'ectto all requirements as noted on the follow pages: All conditions have been complied with lir^ctor ofPlannTng Date 1/^/1-^Director of Planning Date c.Pursuant to Section 9-3.8(b)of the Subdivision Ordinance,Kaua'i County Code (1987),the Applicant shall submit to the Planning Department an electronic record (digitized format)of the final subdivision map(s)on disk for record keeping purposes prior to final subdivision approval. d.The subdivider is informed that the subject property is located within the Special Management Area (SMA).Additional lots within the SMA or any new "Development,"as defined in Section 1.4 of the SMA Rules and Regulations of the County of Kaua'i,may require an SMA Permit and if so,the applicant is subject to all applicable requirements/conditions ofthe SMA Permit. Additionally,theApplicantshall be subjectto all applicable requirementsofClass III Zoning Permit Z-lll-2021-1 and Special Management Area Use Permit SMA(U)-2021- 4.These requirements shall be satisfied prior to final subdivision approval. Requirements of the Department of Public Works (DPW): a.Thesubdividershall complywiththe requirementsofthe DepartmentofPublicWorks,if any,priorto final subdivision approval. Requirements of the Department of Water (DOW): a.The subdivider shall comply with the requirements ofthe Department of Water,if any,prior to final subdivision approval.The subdivider shall be notified of such requirements upon receipt oftheir report. Requirements of the Department of Health (DOH): a.The property may harbor rodents which will disperse to the surrounding areas when the site is cleared.In accordance with Title 11,Hawaii Administrative Rules (HAR),Chapter 11-26,"Vector Control",the applicant shall ascertain the presence or absence of rodents on the property.Should the presence of rodents be determined,the applicant shall eradicate the rodents prior to clearing the site. b.Noise will be generated during the construction and grading phases ofthis project.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. c.Temporary fugitive dust emissions could be emitted when the subdivided lots are prepared for construction and 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 3 1 Page S-2022-7;Subdivision Report Tink Tank,ILC. 01.11.2022 measures include but are not limited to the use of water wagons,sprinkler systems,dust fences,etc. d.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 ofanyofthese wastes on oroffsite prohibited. 5.The Applicant is advised the should any archaeological or historical resources be discovered during ground disturbing/construction work,all work in the area ofthe archaeological/historical findings shall immediately cease and the applicant shall contact the State Department of Land and Natural Resources,Historic Preservation Division and the Planning Department to determine mitigation measures. 6.The Applicant is advised that prior to and/or during construction and use additional conditions may be imposed by government agencies.Should this occur,the applicant shall resolve these conditions with the respective agency(ies). 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 JANUARY 11,2022 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 c.The Applicant's response to staff's report and recommendation as provided herein. c-1-/l.^^ KENNETH A.ESTES Planner 4 I Pa ge S-2022-7;Subdivision Report TinkTank.LLC. 01.11.2022 tiSii liitnillJ1!JJ11111i!l!l itiiilililS!!I!!iiljiii!lliiliiili!!) •a§i§3 llll.3 °Siiili' to5^ gGg-•wsg** u -S?t.iiiJiilis^5^?e:3-si|sl.3|5 gl^llel ,~^ IJIiitl l!<i!'ii' i-11 >t.'»1 S Bs11 i!!l!!lili!ill £1 03 LOCATION MAP SUBDIVISION S-2022-7 TINK TANK LLC. "?w-^.'.,,l ^--<s--..^,.v-i~:.,»S"SBX"'tl-»»'?;'~"""---S .--M POWER PLANT Q/^'i\w^,///^^v. '^ 1^"vl A ^BI(,,SAVJEMARKE'^-<:':---\'° ^SN».i.63T Ac.t>'^".^.'•/'' Y:%r"?"".:i''^.."^",--i:y ~^- '^s^ ^~- ^-<^-S)L-~-/-.--?%--, ^- ^e;^%^ s Q^yLs l-~~i~~^VSk.'""'k-i ,'il'a- ^^n>- ^-^~-'«^..^"25s:;1'^>i////a^2T'~C2T^TSa^« ^,-^-J^^S^»e»-^_/[s2^^s3-A^y^-~^7!,{ ^^(/y^^\^r":^ff^^-G-^y>^^f^^/y y ^'"il^'_"°.^^'^SSa6^^.fM-f~"~"w"aT'.~^:^rff^ PORT AL'£SN l^iL.StfAI HARBOR '&.t'ff '"^1'''' ^-///'^^"" TAXATtON MAPS BLIREAU TERfllTOWOFHAWMl 7AX MAP r'r COUNTYOFKAUA'I PLANN1NG DEPARTMENT 4444 RICE STREET,SUITE A473 LIHU'E,hIAWAI-1 96766 (808)241-4050 SUBDIVISION APPLICATION ROUTING FORM DATE:November 1,2021 Subdivision Map Revievv and Approval REQUEST: @ Preiiminar>' a Pre-Final I_l Final D Extcnsion SUDIVISION AFPLICAT10N N0:Subdivision Permit N0.S-2022-7, Own e r(s)/A pplica n t(s):Tink Tank LLC Name ofSurveyor/Engineer/Authorized Agent:[Llicas Z. Tax Map Key:Tax Map Key:(4)2-1-003:016,031 |Assigned to:Kenny Improvements: Route To: COMMENTS FROM DPW ENGINEERING (Comment Due Date:12/1/202]): We have no site-specific comments for the proposed consohdation ofLots 1-L &1-N. Sincerely, Digitally signed by Michael Date:202].1 2.08 12:55:46 ^0!00' Michael Moule,P.E. Chief,Engineering Division 12/8/2021 PWM1.21.003 ~w DPW-Engineering ~0 Ucpartment ot'Transportation -STP~u Dl'W-SolidWaste ~a DOT-IIighway,Kauai~w DPW-Wastewater w State Department oflleallh~a Fire-Department -D State Historic Preservation Division-D- Department ofParks &Recreation -D- UH Sea Grant~w County Housing-Agency w U.S.Postal Department~D KHPRC ~u Other:~w County Water Department~w County Transportation Agency ^(<l|u COUNTY OF KAUA-I PL.WNING DEPARTMENT 4444 RICE STREET,SUITE A473 LlHU'E,HAWAI'I 96766 (808)241-4050 SUBDFVISION APPLICATION ROUTING FORM DATE:November l,2021 Subdivision Map Review and Approval REQUEST; @ PFeliminary a Pre-Final Ll Flnal Q Extenston SUDIVISION APPUCATION N0:Subdivision Permit N0.S.2022-7, Owner(s)/Applicant(s):TinkTankLLC Name ofSurveyor/Engineer/Authorized Agent:[LucaS Z.Breckenridge Tax Map Key:Tax Map Key:(4)2-1.003:01<,031 [Assigned to;|Kenny Improvements: Route To: COMMENTS (Comment Due Date:12/1/2021): 56F ^iT'c-ti?^ /(/^/l^(A- tf /(?/^ ~w DPW-Engineering ~a Department of Transportation -STP"u" DPW-SolidWaste "a DOT-Highway,Kauai~s DPW-Wastewater ~w StateDepartmentofHealth ^f"D Fire-Department -D State ffistoric Preservation Division"a' Department of Parks &Recreation "a' UHSeaOrmt~s County Housmg-Agency ~w U.S.Postai Department"D' KtIPRC ~a Othcr:~s County Water Department~w County Transportation Agency r r' Subdivision Application No.:S-2022-7 Applicant:Tink Tank LLC Based on our review ofthe application at this time,we have these environmenta!health concerns or comments for your consideration at this time. The property may harbor rodents which will disperse to the surrounding areas when the site is cleared.In accordance with Title 11,Hawaii Administrative Rules (HAR),Chapter 11-26,"Vector Control",the applicant shall ascertain the presence or absence of rodents on the property.Should the presence of rodents be determined,the applicant shall eradicate the rodents prior to dearing the site. Noise will be generated during the construction and grading phases ofthis project.The applicable maximum permissible sound levels as slated 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. Temporary fugitive dust emissions could be emitted when the subdivided lots are prepared for construction and 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-srte 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. 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. Due 1o the general nature ofthe application submitted,we reserve the right to implement future environmental health restrictions when information that is more detailed is submitted. r r r^ni 1 >JT v .^-i./A ii^i tL-U U .'..'' COUNTYOFKAUA'I '21 NDV -9 !\yP.t-^NNlNG DEPARTMENT 4444 RICE STREET,SU1TE A473 LlHU'E,HAWAl-I 96766 PiA,>,.(i^PJ,<^)241^°_ SUBDIVISION APPLICATION ROUTING FORM DATE:Novcmber 1,2021 Subdivision Map Rcvlew and Approval REQUEST: Preliminary D Pre-Final Q Final Q Extension SUDIVISION APPLICATION N0:Subdivision Permit N0.S-2022.7, Owner(s)/Applicant(s):Tink Tank LLC NameofSurveyor/Engineer/AuthorizedAgent:[Lucas Z.Breckenridge Tax Map Key:Tax Map Key:(4)2.1.003:016,031 |Assigned to:|Kenny Improvements: Route To: COMMEN'tS (Connneitt Due Dale:12/1/2021 ): G^-t^^k ^Q ^(?WQfi G>'^»A^J^OtJ rT^\S Qz^G-Fa \\.^.f~^'^\ ~s DPW-Engineering ~n Department ofTransportation -STP~c DPW-SoIidWaste ~n DOT-Highway,Kauai~w DPW-Wastewater ~s State Department of Heatth"D' Fire-Depanment ~D~ State Historic Preservation Division"a' Department ofParks &Recreation ~a UH Sea Oranl~s County Housing-Agency ~s U.S.Postal Department~u KHPRC ~D Othcr:~w Cuunty Water Department~w County Transportation Agency^ 1 KAUA‘I PLANNING COMMISSION REGULAR MEETING August 10, 2021 Draft The regular meeting of the Planning Commission of the County of Kaua‘i was called to order by Chair Apisa at 9:10 a.m., - Microsoft Teams Audio +1 469-848-0234, Conference ID: 705 277 252# The following Commissioners were present: Ms. Donna Apisa Ms. Helen Cox Mr. Gerald Ako Mr. Melvin Chiba Mr. Francis DeGracia Ms. Glenda Nogami-Streufert Ms. Lori Otsuka The following staff members were present: Planning Department – Director Kaaina Hull, Deputy Director Jodi Higuchi Sayegusa, Myles Hironaka, Dale Cua, Romio Idica, Kenneth Estes, and Planning Commission Secretary Shanlee Jimenez; Office of the County Attorney – Deputy County Attorney Laura Barzilai; Office of Boards and Commissions – Administrator- Ellen Ching and Support Clerk Arleen Kuwamura. Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Apisa: Called the meeting to order at 9:10 a.m. ROLL CALL Planning Director Kaaina Hull: I’m just waiting one moment just to give members of the public a little bit more time to fall in just knowing that there was a considerable amount of testimony that came in for this particular agenda. Well, it’s 9:10 Madame Chair, so whenever you’re ready to gavel the meeting. Chair Apisa: Okay. I have called the meeting to order. Can do a roll call, please, Kaaina. Mr. Hull: Roll call. Commissioner Ako? Mr. Ako: Here. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here. 2 Mr. Hull: Commissioner Cox? Ms. Cox: Here. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Here. Mr. Hull: Commissioner Streufert? Ms. Nogami-Streufert: Here. Mr. Hull: Chair Apisa. Chair Apisa: Here. Mr. Hull: You have a quorum, Madame Chair. Seven Present. APPROVAL OF AGENDA Mr. Hull: Next, up we have the approval of the agenda. And the only amendment that the Department makes is a standard amendment we make under the virtual meetings that all Unfinished and New Business Items be received and reviewed during their, excuse me. There is no necessary amendment because there are no New Agency, there are no new agency (hearing), I apologize. The Department has no recommended changes to the agenda. Chair Apisa: Thank you. Do we have a motion to approve the agenda? Ms. Nogami-Streufert: I move to approve the agenda. Ms. Otsuka: I second. Chair Apisa: We have a motion on the floor. Any discussion? All in favor? Aye. (Unanimous voice vote). Are there any opposed? Hearing none the agenda is approved 7:0. Well, I’m sorry. Sorry, Kaaina, that’s your call. APPOINTMENT OF SUBDIVISION COMMITTEE MEMBER Mr. Hull: Next, we have appointment of a Subdivision Committee Member. The current Subdivision Committee sits, three seats. There are two seats filled with one vacancy. So, at this time it may be appropriate if there is a nominee for a Subdivision Committee member. 3 Chair Apisa: I would like to initiate here that right now Commissioner DeGracia will continue as the chair of the Subdivision Committee. And I would like to appoint Commissioner Chiba as Vice Chair of the Subdivision Committee. And appoint Commissioner Ako as the third member of the Subdivision Committee. May I have a motion to approve this? Ms. Cox: I move to approve that. Ms. Nogami-Streufert: Second. Chair Apisa: Is there any discussion on the motion? Hearing none all in favor? Aye. (Unanimous voice vote). Any opposed? Hearing none the motion carries 7:0. Thank you. Mr. Hull: Thank you, Madam Chair. Congratulations, Commissioner Chiba in the vice role as well as Commissioner Ako. MINUTES of the meeting(s) of the Planning Commission Mr. Hull: Next, we have agenda item E, Minutes of the Meeting of the Planning Commission. The first set of minutes is minutes for the July 14, 2020, Planning Commission meeting. Chair Apisa: I think we could do all four of them together. Are you okay with that Kaaina? Mr. Hull: As long as there are no objections by the Commissioner as that may want to make amendments or clarifications on the minutes. But you do, in fact, have four meeting minutes - minute meetings for July 14, 2020, August 11, 2020, September 8, 2020, October 13, 2020. Chair Apisa: If there are no amendments or comments could we have a motion to approve the four sets of minutes? Ms. Cox: I move we approve the sets of minutes from July 14, 2020, August 11, 2020, September 8, 2020, and October 13, 2020. Mr. Chiba: I second. Chair Apisa: We have a motion on the floor. Is there any discussion on that? All in favor? Aye. (Unanimous voice vote). The motion carries. The minutes of July 14, August 11th, September 8th and October 13, 20 is approved 7:0. RECEIPT OF ITEMS FOR THE RECORD (None) Mr. Hull: There are no Receipt of Items for the record. HEARINGS AND PUBLIC COMMENT Mr. Hull: For the record the agenda was, essentially an addendum was submitted for the agenda to submit a series of communications primarily pertaining to subdivision for a Yellow Hale applicant, LLC, or Yellow Hale, LLC application. So that was transmitted to the Commission concerning all those communications that we have received on behalf of the Commission. At this time, it is 4 appropriate, it would be appropriate to go on to item G, which is Hearings and Public Comment. The Planning Commission accepts the testimony for any agenda item herein. As well as oral testimony. So, at this point I’ll be calling out the list of phone numbers of the members of the public that have called in. If you have called in with a phone number and you are actually part of a petition or representing an applicant, you would not testify at this time. You have the application time. But, for members of the public that would like to testify to any agenda item I’ll be calling out the phone numbers now. So, if you’d like to testify again, state your name, and you’ll have three minutes for testimony. Area code You like to testify in any agenda item at this time? Man: I am the applicant. Thank you. Mr. Hull: Thank you. Area code . Would you like to testify on any agenda item at this time? Woman: No. Mr. Hull: Thank you. Area code Would you like to testify on any agenda item at this time? Woman: I’m an applicant. No testimony. Mr. Hull: Okay. Woman: Thank you. Mr. Hull: Okay, thanks. Area code Would you like to testify on any agenda item at this time? Man: Hello? Mr. Hull: Hello? Yes, sir, would you like to testify on any agenda item at this time? Man: I’d like to oppose. I mean, I just joined so I’m kind of, I just joined so I’m kind of, I don’t know where everybody’s at right now. Mr. Hull: I’ll call your phone number in the line of who you we’re calling through the phone numbers. But if you’d like to testify your time will come. Man: Okay. Mr. Hull: So, again, Area code . Would you like to testify on any agenda item at this time? Hearing none, oh. Man: (Unintelligible)... Woman: Good morning. Applicant again. Mr. Hull: Okay, thank you. Area code Would you like to testify on any agenda item 5 at this time? Man: Um, hello? Mr. Hull: Yes, sir, if you’d like to testify on any agenda item before the Planning Commission now would be the time you could state your name. And you have three minutes for testimony. Mr. Lucky Kanahele: Okay. My name is Lucky Kanahele. My testimony is, I oppose them continuing with the 300 whatever condos they are building in that area. Because I know my grand- my grandparents are in that area. And there’s nothing being done to acknowledge that. And that’s my testimony is they should stop that. Because how would you feel if I did something on your grandparents. That’s a lack of disrespect for myself and my culture and my kids. That’s my testimony is look deeper into this before this is approved. It’s not right. That’s all I have to say. Mr. Hull: Okay. Thank you for your testimony, sir. Area code, excuse me, (unintelligible). Area Would you like to testify on any agenda item at this time? Woman: No, thank you. Mr. Hull: Area code . Would you like to testify on any agenda item at this time? Woman: Yes. (Unintelligible)... Mr. Hull: Hold on one second, ma’am. For the members of the public that have called in, unless you are speaking, please mute your phones. Okay, ma’am, go ahead. Woman: Okay. Yes. So, this is testimony for agenda item I.1.c Yellow Hale, LLC. This comment is on behalf of E Ola Kakou, Hawaii, a Kauai, 501(c)(3) nonprofit. I would like to say that the County of Kauai accepting the 5 million deal is completely unacceptable. Not only is it not a justifiable amount, but there’s also no valid EIS survey. This property is also pending complaints filed with SHPD, DLNR, and the County of Kauai. There is pending burial registrations. And lineal descendant forms for this property. That also involves a huge conflict of interest. This land is noted in 2014 by the U.S. Fish and Wildlife Services seeing critical habitat for the Koloa cave spider and cape arthropods. This property has been illegally bulldozed, graded and drilled since December 2020. And these are all violations of Endangered Species Act and related project conditions. Uh, the Koloa cave ecosystem is considered to be one of the ten most critically endangered cave ecosystems in the world. And the drilling that occurred here was in direct violation. They had no filter or monitors present. They had no geofencing or any protection of culturally sensitive areas. We have multiple lineal descendants that are coming forward with knowledge of burials in this land. And in 2016 the County agreed that it would consider the Koloa Field System to be a significant property, historical property. The County also admitted to approving an adjacent (unintelligible) subdivision that it failed to adequately protect significant historical property and comply with historic preservation of due process. Uh, in Docket A76-418 Moana Corporation, it states that the (unintelligible) today must comply with these same conditions per the Eric A. Knudsen Trust. I would also like to say that I’m extremely disappointed that at a time like now when our local community is suffering more than ever that our Housing agency and our County, would even consider this completely outdated development that was planned in the ‘60s. I would like to say shame on you guys for accepting the money and for even considering moving forward with this. That’s all. Thank you. Mahalo. 7 Mr. Hull: Mr. Hammond, are you calling in on behalf of the subdivision application, or on behalf of the excuse me, the Hokuala Status Report? Mr. Hammond: Well, I have the TMK number here. It’s 4 2-8-014: 032, Lot 1. For Meridian Pacific. Mr. Hull: Yeah. Sorry so, let me just clarify. The subdivision is generally reviewed by the Committee. And the Committee did take action on it. Generally, unless the questions are, there are questions from the Commissioners, there isn’t much discussion during the overall Subdivision Commission - Commission Review. So, if you’d like to testify three minutes (unintelligible) public there may not be any discussion unless the Commissioners have some for the Subdivision Committee Report. So, I’ll say it’s ultimately up to you whether or not you want to use these three minutes. Mr. Hammond: Okay. No, no, I’ll just wait. Thank you. Mr. Hull: Okay. Mr. Hammond: Thank you, sir. Mr. Hull: With that let me ask one last time. For members of the public who have called in is there any member of the public that would like to testify on any agenda item at this time? If so, please state your name. Hearing none, Madam Chair, we can move on. Continued Agency Hearing Mr. Hull: We have no Continued Agency Hearing. New Agency Hearing Mr. Hull: We have no New Agency Hearing. Continued Public Hearing Mr. Hull: We have no Continued Public Hearing. New Public Hearing ZA-2021-4: A bill for an ordinance amending Chapter, Article 5A, Kauai County code 1987, as amended, relating to the Lihue Town Core Urban Design. The proposal amends Section 10.5A of the Kauai County Code to designate the Lihue Mill site within the Lihue Town Core, Special Planning Area “D” (SPA-D), also known as the “Rice Street Neighborhood Design District, with the location further identified as Tax Map Keys: (TMK’s) (4) 3-8-004:007 and a (4) 3-8-005:009. 8 Mr. Hull: Moving on to Agenda Item G.4, New Public Hearing for Zoning Amendment 2021-4. A bill for ordinance amending Chapter 10, Article 5A, Kauai County Code 1987 as amended relating to the Lihue Town Core Urban Design Plan. The proposal amends Section 10.5A of the Kauai County Code to designate the Lihue Mill Site within the Lihue Town Core Special Planning area “D” (SPA-D), also known as the” Rice Street Neighborhood Design District” with the location further identified as Tax Map Keys 3-8-004007 and 3-8-005009. The applicant is the County of Kauai. And I’ll turn it over to Kenny who is the planner assigned to this application. Staff Planner Kenny Estes: Hi. Good morning, Commissioner. I’ll read a section of the report for the record. Applicants, reasons, and justification. One, adjusting Kauai’s housing crisis. Presently, the Island of Kauai is facing a public shortage to accommodate local residents (unintelligible). In an effort to address these issues the County has taken proactive measures to increase the inventory of housing opportunities across the island. In the Lihue District plans and policies developed for the area have reinforced the smart growth planning principles that are necessary to achieve a balance between Lihue as an urban center of Kauai, the island, and Kauai’s predominantly rural, rural character. Mr. Estes 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. Estes: Through smart growth planning principles the concept of infill development is the basis for addressing the housing shortage and future population growth in the Lihue District. Infill development focuses on development within existing town centers in order to preserve vital open spaces and minimize urban sprawl. Two, implementation of the Kauai County 2018 General Plan. The proposed legislation implements the goals and policies outlined in the 2018 General Plan by providing the zoning framework to support housing, mixed use development, and walkable communities. Three, implementation of the 2015 Lihue Community Plan. The proposed legislation implements division, policies, objectives, and guiding principles outlined in the 2015 Lihue Community Plan by utilizing existing open space and using smart growth principles to redevelop a former mill site within the Lihue town core to provide housing, mixed use development, and walkable communities. Mr. Hull: Just in kind of a nutshell, guys, the General Plan, and the Lihue Community Plan both kind of look at this basically being used for possible mixed-use development and not just being limited to industrial development. Some of that is, you know, considering the adjacent residential commercial uses that are currently occurring. Those plans recommend kind of pulling the Rice Street district down into Lihue Mill. So, the County of Kauai initiated this to essentially implement parts of those plans. We did definitely touch bases with the landowner. And so, the landowner’s here if you have any questions or if the landowner may want to make statements. But ultimately, the County of Kauai is pursuing this. And if you have any questions for Kenny or I we’re available for you folks. But, again, the landowner is here as well. Chair Apisa: Do any of the Commissioners have any questions for the planner? Is the applicant here to give a presentation? 9 Mr. Hull: Well, Madam Chair, the County of Kauai Planning Department is the applicant of this. We’re just implementing the plan. Again, as Kenny kind of pointed out, it’s to address the housing issues in particular. And then also because of the long-range plans that pertain to this area that is significant public vetting both recommended changing the zoning to a mixed-use zoning. And so, we are the applicant here. But, again, the landowner’s representative is here. And they have consented to this zoning change. But if you have any questions for the landowner, they have representation. Chair Apisa: Thank you for clarifying that. Ms. Nogami-Streufert: Can I ask a question, ma’am? So, is this going to be developed by the developer or the owners, or is this being developed by the County of Kauai? Mr. Hull: It’s ultimately it would be the responsibility of the landowner to develop it. Right now, we are not seeing any development. We’ve seen, I’ll say honestly a fair amount of interest, a landowner or developer is to pursue Workforce housing, or what’s called the missing middle housing, housing that’s kind of aimed at more residents. Sorry, please mute your phones. Sorry. I’m going to mute everybody’s phones. And then if you need to unmute it star 62. ‘Okay, so where was I? So, no, the County of Kauai has no intention of developing this property. Ultimately is looking at the ability to change the zoning to entice either the existing landowner or future developers to look at putting housing units to address our lack of housing or housing crisis today. I don’t think that would foreclose on any opportunities in the future. So, the County of Kauai would want to partner with a developer and landowner to look at affordable housing either credits or infrastructure, what have you. But at this time, the County of Kauai has no intention of itself being the developer of this property. Deputy County Attorney Laura Barzilai: Excuse me, Madam Chair, it’s Laura. Would you like to hear now from the landowner? Mr. Hull: You’re muted, Chair. Chair Apisa: Thank you. Yes, is the, I believe the landowner is present. Do you have anything you would like to add to the presentation? Ms. Michelle Premeaux: This is Michelle Premeaux, on behalf of Lihue MS, LLC who’s the landowner. We just want to say that right now this is not approval for development. It’s merely including the property into the Lihue Town Core which we think makes absolute sense considering the property is located within the Town Core. And there isn’t really a need for industrial use in that area. Whereas there is a need for infill housing and mixed use. Chair Apisa: Thank you. Commissioners, any other questions? Hearing none. Ms. Nogami-Streufert: Donna, if I could ask, perhaps I’m not reading the map right. But it appears that there are already things that are there. Buildings and businesses that are already in this area, is that correct? Or am I reading this map correctly? Ms. Premeaux: There aren’t businesses on the property that were moving to include now. But you 10 are correct, that the surrounding area does have housing and businesses. Yes. Chair Apisa: Yes. I’m personally familiar with the area. I think that’s where it’s fairly near Kawamura’s farm. And the County, I believe it’s the County, someone just did some housing for the homeless nearby. It’s on a different street but that general area. And it’s very close to, it’s very fairly close to Rice Street. And the Bank of Hawaii and First Hawaiian Bank. There are a number of commercial, areas. But there’s also residential. Ms. Premeaux: That is correct. The property actually borders Rice a portion of the property borders Rice Street. Ms. Nogami-Streufert: So, we’re looking at S - S-P-A-D, S-P-A-E, and S-P-A-F, is that correct, on the map? Mr. Hull: No. On the map that’s provided as the attachment to the ordinance as well as what’s embedded within Kenny’s Report, S-P-A, D, E, F, and G are all part of the Lihue Town Core Urban Design area. If you look in the lower portion where there is an outline and a red dot, that red dot is the proposed expansion of Special Planning Area D. Ms. Nogami-Streufert: Okay. So, it’s just the expansion of it, it’s not the entire map that I have here, okay. Mr. Hull: Yeah, the entire map already exists as its only district. Respective zoning overlays. And then we’re just looking at proposing to you folks to pull Special Planning Area D a little bit further down around the Lihue Mill area. Ms. Nogami-Streufert: Okay. Chair Apisa: Okay. And the nice thing is that it provides more housing. Mr. Hull: It provides for an opportunity for more housing. Ultimately, you know, if we are able to get possible inquiries or proposals for that, that would still have to come back before the Planning Commission, to review. Chair Apisa: Any other questions? Is someone ready to make a motion? Ms. Cox: I will move that we approve, the ZA-2021-4, amending Chapter 10, Article 5 of the Kauai County Code 1987, expanding the Lihue Town Core Urban Design as described on the map identified as Tax Map Key 4 3-8-004:007 and 4 3-8-005:009. Ms. Nogami-Streufert: Second. Chair Apisa: We have a motion on the floor. Is there any discussion? Hearing none, all in favor? Could we do a roll call, please, Kaaina? Mr. Hull: Absolutely. Roll call, Madame Chair. Commissioner Ako? 11 Mr. Ako: 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 Otsuka? Ms. Otsuka: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami-Streufert: Aye. Mr. Hull: Chair Apisa? Chair Apisa: Aye. Mr. Hull: Motion passes, Madam Chair. 7:0. All remaining public testimony pursuant to HRS 92 (Sunshine Law) CONSENT CALENDAR Status Reports 2021 annual Report Annual Report on the progress and status of compliance of the conditions of the subject permits for Hokuala Resort (formerly Kaua’i Lagoons Resort) in accordance with Conditions No. 28 of the Second and Third Amendments to Special Management Area SMA(U)-2005-8, Project Development Use Permit U-2005-26, Use Permit U-2005-25, and Class IV Zoning Permit Z-IV-2005-30. Mr. Hull: Next up we have the Consent Calendar, and there’s just one Status Report on the consent calendar. And so, the consent calendar has Status Report 2021 Annual Report. Annual report on the progress and status of the compliance and the conditions of the subject permits for Hokuala Resort. In accordance with the Condition No. 28 of the second and third amendments to Special Management Area SMA 2005-8, project development and use permit U-2005-26 and use permit 12 2005-25. And Class IV Zoning Permit Z-IV-2005-30. We did attach it directly to the report to pertain to the matter. And it’s a consent calendar. So, unless the Commissioner wants to remove the agenda, an item off the consent calendar as a review, it just gets automatically received. Chair Apisa: So, no action is required, correct? Mr. Hull: There’s no action required on it, correct. Chair Apisa: Thank you. Does any Commissioner have any comments on that before we move on? All right, thank you very much. We can move on. Director’s Report(s) for Project(s) Scheduled for Agency Hear GENERAL BUSINESS MATTERS Coastal Zone Management Program and Special Management Area presentation by the State Office of Planning and Sustainable Development staff. Mr. Hull: Moving on to General Business Matters. The Coastal Zone Management Program, Special Management Area presentation by the State Office of Planning and Sustainable Development Staff. I believe we have Shichoa from Office of Planning here with us. And Justine Nihipali. So, I’ll kind of turn it over to them. They’re definitely very strong partners with the County of Kauai in the implementation of various state policies including but not limited to the Coastal Zone Management Act. So, thank you guys so much for being here. I’ll turn it over to you guys. Ms. Justine Nihipali: Thank you, Chair Apisa and Commissioners for allowing us to appear before you today. I just wanted to also thank Director Hull and his staff. We do work very closely with them. Primarily for the administration of Special Management Area Permits. So today, we’re appearing before you because we do periodically do so for all the Planning Commission to provide just an overview of the state program and some of the background as well as a little bit of a deeper dive into the Special Management Area and how we work with the planners at the Kauai County Department. My name is Justine Nihipali. I serve as the Coastal Zone Management Program Manager here at the Office of Planning and Sustainable Development which is a new name change that we’re still trying to get used to rolling that off our tongues. And then I’m joined by Shichoa Li, who is a planner, and he serves as the estimate coordinator here at our state office. I’m going to share my screen. Bear with me. Okay, we’re loading it looks like. What are you able to see here? Okay. I think this makes more sense. Are you able to see the big slide? Mr. Hull: Yes. Ms. Nihipali: Okay. Thanks, Kaaina. Excuse me. So, the Coastal Zone Management Program has very origins. Started with the National Coastal Zone Management Act in 1972. It’s enacted by U.S. State Congress. And you can see in the red where the purpose is to preserve, protect, develop and where possible to restore or enhance resources of the Coastal Zone in the State. They identified that the states were in the best positions to manage the Coastal Zone. And, thereby, established a voluntary partnership between the Federal Government and the states to administer the Coastal 13 Zone Management Program. So, this is a voluntary Federal-State partnership. In doing so states have two strong basic incentives, Federal Government provides funds for state planning and administration within the Coastal Zone. As well as the State having the ability to administer the Federal Consistency Review Program which we’ll touch upon a little bit later. So, I’m going to talk about a little bit of what we do at the State, the State level. And then Shichoa Li, as I mentioned before, will talk more specifically about special management area and shoreline setbacks. The opportunity also that’s provided through the State is to enhance our program. The program is a network program which means when we were established the State decided that, you know, it was not that we had and needed more regulations, it was that we needed more management. So, each agency and its statutes remain the same and they are responsible for administering their part of the (unintelligible) network program. Through this we have opportunities to enhance the program, which are through competitive grant funding opportunities. projects of special merit. And in these nine categories that NOAH approves for the State. Right now, we have two priority categories that we’re working on. Which are coastal hazards as well as our Ocean Resources Management Planning. As we establish the program there was an act in 1973 that mandated the development of the program. In 1977 the statewide program was enacted, and NOAH approved of our program in 1978. This is our certificate of approval. Where are we housed? We are in the Office of Planning and Sustainable Development. Right now, we are in transition right now. So, this slide needs to be a little bit updated. July 1, we added some programs. But right now, we are housed in the Planning Division. Within this as well will be the Environmental Review Program, which is the formally Office of Environmental Quality Control. We also, under the Office of Planning but through a policy with the policy wall is the Land Use Commission. So, the Federal funding, we are, we received (unintelligible) allocation of approximately 2.5 million dollars in Federal funds annually. What this is used for is to support the Hawaii CZM Program. So, staff here at our office, we have about ten staff to administer State, State-level, um, responsibilities as well as Federal mandates for the CZM Program. We also fund the County Administration of Special Management Area permitting system. Right now, CZM funds support 14 positions in neighbor island planning departments. Okay, thank you. So here are a number of our CZM program components. We do have some regulatory responsibilities. We have Federal consistency. In the red is where Shichoa will be touching on later. We also have initiatives such as our Ocean Resources Management Plan which is a State-mandated plan. We have a focus in coastal hazards, a federal mandate to achieve a coastal nonpoint pollution control program in which we work very closely with Department of Health. And we also administer a state legislatively established advisory council that has 12 members representative of various interests across the State. Right now, we do have a vacancy for our Kauai seat. Previously we had a number of representatives including Angela Anderson who’s one of our previous MACZAC members. Federal consistency, this is a very broad overview. This is one of the privileges of being able to have this partnership with the Federal Government is the privilege to administer the CZM Federal consistency program. In this it’s an administrative review where Federal actions that have reasonably foreseeable effects on coastal use or coastal effects have to be consistent with our enforceable policies through the CZM program. We have a very specific list of those types of activities. But in general, we require Federal agency certain Federal agency activities, Federal permits, as well as Federal financial assistance that undergoes review. We also are the lead 14 coordinating agency for the Ocean Resources Management Plan. This plan is in its fifth iteration. And we work closely with the Planning Department, um, in its update and they are very supportive in its implementation actions. It is a State-mandated plan. And we have identified three focus areas. Um, the first is Coastal Hazards and Development. The second is reduction of land-based pollution. And the third is marine ecosystems in which DLNR DAR serves as our lead agency in this regard. Another one of our enhancement areas is for coastal hazards. A lot of I think what we talk about in our office is related to (unintelligible) and coastal erosion. Coastal hazards mean, many unfortunately where we’re located many hazards including tsunami. We are wrapping up a five-year effort to build resilience in the State relating to tsunami hazards in which case that certain types of facilities where it would be very challenging to evacuate but have a large occupancy and/or house hazardous materials are subject to stronger building codes but were put forth by the State Building Code Council and the American Society of Civil Engineers. What this does is we’ve developed maps that identify where those facilities will actually need those more stringent building codes. Or it doesn’t make sense for all buildings to do so. So, if you’re in this design zone that we’re developing then, you know, these just design codes apply to you and your essential facilities. And then if you’re not, like the single residences, which we will evacuate, et cetera, they will not be in this design zone. And so not subject to these more stringent building standards. We also, as mentioned before, work with Department of Health. In 1990 the CZMA was amended by adding a new section to protect coastal waters. We are required to work with Department of Health and submit for ETA and no approval of a program. It’s administered jointly and we are almost there. We have four out of 49 of the required management measures that we’re working towards approval for. This is just a broad overview of the marine coastal zone advocacy council. Um, it is lovingly known as MACZAC founded in 2001. Just an overview of some of the outreach materials that we provided. Like I mentioned before,12 members of the public with representation from various industries and interests. I mentioned this before as well is that the Coastal Zone Management Program is a network program. And what that means is in our state the coastal zone area is not just the shoreline. But because no place in our state is more than 30 miles away from the shoreline. The entire state is in the coastal zone. And so, what that means is there are a number of regulations and management that occur. For example, there are a number of enforceable policies from our state and county agencies from the mountains to the shoreline. And, of course, within that is the County Special Management area. And then the shoreline setback, which is a dynamic line, based on certified shoreline. Which it should be a minimum of 40’ or greater based on changes to the Coastal Zone Management law which occurred in 2020 of last year. There’s also jurisdiction of DLNR and other entities within the waters. So, this is the entire Coastal Zone Management Program in the State. Good? Okay. Thank you. I’m going to toss it over to ShiChoa and he’s going to dive in a little bit deeper into shoreline setbacks and SMA. Mr. Shichoa Li: Hey, good morning, Director Kaaina, and Commission Chair, Vice-Chair, and Commission members, thank you for this opportunity. My name is Shichoa Li and I am the State Wide Coordinator. I am working closely with the County Planning Department staff. So, we almost have monthly meetings with the County planners regarding SMA and the shoreline setbacks (unintelligible). So today I will present (unintelligible) regarding SMA. But before we start SMA this (unintelligible) the shoreline setbacks. So we can see, as Justine mentioned, uh, (unintelligible) the diagram the - the previous slide show the shoreline that divides between the County jurisdiction 15 and the State jurisdiction. You see the left side of the picture show these kinds of things. Shoreline (unintelligible) I know people sometimes complain these kinds of things because shoreline divides jurisdiction between County and the State (unintelligible). But, in fact, in practical sense, State and the County always working together to protect shoreline and protect beaches and also regarding the shoreline setbacks. So, this is in practical sense. But in the meantime, you can see the red line the - the shoreline setback (unintelligible) that’s really important line for County jurisdiction like the Planning Commission. I know the County of Hawaii that have the shoreline setback ordinance Article 27 regarding shoreline setback ordinance. Just approval after this year regarding how far away from shoreline setback. So new structure within shoreline area (unintelligible) have followed the requirement of a new shoreline setback (unintelligible). But existing structure for all state of Hawaii a lot of nonconforming structures. This also is a really challenging issue for shoreline setbacks because they’re already there. That’s why shoreline setback (unintelligible) - shoreline setback, (unintelligible) is (unintelligible) from 2005. (Unintelligible). But in 1986 the move from (205) to (unintelligible) (5A). (Unintelligible). So that’s why before (unintelligible) many, many structure really close for shoreline. Also, the condominium shoreline setback for 20 feet. So, you can see existing structure really is a challenge for today and for the future. But today, we already increased the shoreline setbacks. (Unintelligible) this is the slides regarding SMA it’s called Special Management Area. This concept or term is in popular use by the (unintelligible) program also by the public. The reason for that because SMA requirement is enforcing the program get approved by state - by state and by federal as (unintelligible) start from 1975. That means from (unintelligible) as (unintelligible) area extending inland from and along the shoreline. The shoreline (unintelligible) and also cause the water related for SMA, but SMA area is also original concept is not by parcel by parcel, so you in practical sense, and Planning Commission Members, you already know, some of parcel (unintelligible) SMA. So, SMA boundary is not a formal parcel boundary. It’s original concept. You can see this (unintelligible) picture, you can see is that (unintelligible) area is SMA area much more no (unintelligible) but that on the other side mauka side, mauka side is the inland side and much more highly rising in density for development. So, SMA permitting purpose is a (unintelligible) shore development that along the shoreline - that’s the (unintelligible) purpose of SMA permits. Also, in (unintelligible) area just he mentions (unintelligible) Hawaii this exempt area, but at the beginning, 1977, SMA area is defined as a CZM. So, you can see, SMA is so important that, for beginning of this exempt program. These are the basically the purpose of SMA permits. SMA permits it is not (unintelligible) mitigating the impacts from development. That’s why the permit - permitting is that for mitigation measures, these are very important concept, but the shorelines area is (unintelligible) concept with SMA. Shoreline area is a prohibits structure within shoreline area, but SMA permits is a mitigation measure. That’s the major purpose. Also, the time that SMA permitting that (unintelligible) acts when (unintelligible) Shoreline Protection Act, that means SMA really, that time that ran to that shoreline and also conserve water, that’s why it called Environmental Shoreline Protection Act for SMA. Then we started talking about SMA permit- SMA permitting unique is a false permit for a development with SMA area. That’s why public sometime the mix concept regarding (unintelligible) policy with SMA permits because SMA use - permit (unintelligible) SMA permits require public hearing. So, when public hearing come out, sometimes the public (unintelligible) challenge (unintelligible) land use policy, 16 but in fact, SMA permit is not a land use policy. Land use policy by state land use commission by the (unintelligible) conservation land but also by county council regarding zoning. SMA permit is a allowable land use, itself is not land use policy. So, that’s why when people (unintelligible) policy regarding SMA permit (unintelligible) before SMA permitting started, that should be already allowed by the land user policy by county or by state. So, this is really clear that boundary between SMA permitting and the land use policy issue. So, because SMA permit it, permit (unintelligible) some time we get a phone call from public asking us, “Why I need the SMA permit? Can I do that without a SMA permit to do the building, (unintelligible)?” The answer we’ll be saying, “No.” Because 205A requirement is that any development within SMA area must get a SMA permit first, then they can go to other permits. So, this is required by 205A (unintelligible) law. The county authority of SMA permit, you can see, each county has the SMA authority, like, Hawai’i, Kauai, Maui, is only the planning commissions that Hawai’i County (unintelligible) since I think 2009, that (unintelligible) planning commission and (unintelligible) had two planning commissions, but the Maui (unintelligible) Molokai, (unintelligible) and Maui. But city County of Honolulu is a council that has SMA authority. This year, beginning of this year, they tried to change the authority from city council becomes the county planning commission like other counties, but cannot because county and city charter, that had to be amended (unintelligible) can’t change the authority, otherwise, city county Honolulu planning commission cannot (unintelligible), SMA authority. They cannot. So, this was suggestion like this way, yeah. Okay, this thing just gives whole picture from the State of Hawaii, you can see that (unintelligible) shows how (unintelligible) for SMA area. SMA boundary can be amended at any time by planning commission by SMA authority, but the way you the contract of SMA boundary have a good (unintelligible) program approve for (unintelligible) is the county authority. So, you can see, sometimes (unintelligible) before they ask for, “Can we do the whole island become SMA?” Of course, you can, from 205A, but to understand the trade-off between SMA permitting and then what’s the requirement for SMA permitting. If all islands become SMA area, all development (unintelligible) SMA requirement (unintelligible) to do it right. Also, what’s the meaning for SMA permit? So, you can have the (unintelligible) you know, permit - purpose of SMA permit. So, this is an objective and policies and also SMA guidelines, really important for SMA permitting for SMA condition and permitting condition also. I know (unintelligible) program is really broad program that kind, area program, but we cannot use the SMA for everything. So, SMA permitting condition must be sticking to CZM objective policies and also the SMA guidelines. We cannot put in other conditions for SMA permits, like some other things like it’s public safety, like crime or some other kinds of conditions. Sometimes if condition too broad, also beyond the CZM provisions, 205A, we also get a challenge for SMA permitting conditions. So, this is the framework for SMA permitting conditions. Then we, SMA area definite have already two important concept development and non- development. Non-development that means a being exempt from SMA requirement from what 205A, section 22 (unintelligible) potential (unintelligible) structural can be exempt from SMA permit, but keep in mind, at the end of the exemption list, they always say Planning Commission, Planning Authority, SMA authority, if they find significant impact from this kind of exemption list, the proposed actions still have been defined as a development. Still hasn’t (unintelligible) require SMA permit. So, this kind of door is still open to the SMA authority instead of (unintelligible) themselves that, “I’m exempt.” They cannot exempt themselves, always have to go to planning director for (unintelligible) authority that planning commission for exemption. Also (unintelligible) 17 I have to point out the single-family residency, the changes since 1975 SMA permitting start, from 1975 to 2011, any single-family residency is exempt, no matter how (unintelligible) they are, where they are located, all exempt from SMA requirement. But since 2011, if the floor area more than 7500 square feet, the size or larger than that will be trigger SMA requirement. But that also (unintelligible) 2020, last year, they also change the single-family residence location. If along the shoreline or the shoreline parcel or the parcel itself impact by, like, storm surges or shoreline erosion or high tides, they also trigger SMA requirement. So, since last year (unintelligible) restriction for single family residency regarding an SMA requirement. But also, some development (unintelligible) that can be exempt. So, this also (unintelligible) define as development that have the difference between major and minor, this whole SMA user permit also called SMA Major Permit. There are SMA minor permit - two (unintelligible) decided as major and minor. With the significant impact (unintelligible) this is a key part, also ask the county authority (unintelligible) department (unintelligible) about the (unintelligible) impact from the action, the proposal, application. The other (unintelligible) decide as major or minor is (unintelligible) they call they increase the threshold of 2011 and become $500,000 for cost threshold because when the cost threshold more than $500,000, they automatically should get as major. The reason for that because the public (unintelligible) ask for this (unintelligible) for trigger even maybe not as (unintelligible) but a cost threshold (unintelligible) as defined by 205A right now, yeah. That (unintelligible) always challenging’ the SMA assessment at the planning commission members (unintelligible) already knows application some kind assessment for the (unintelligible) impact really, really challenging. We get in the review, our funding recommendation from NOAA agency since 2000, I think in 2019 the (unintelligible) our (unintelligible) program because the public also (unintelligible) ask for community impact as (unintelligible) guidance because (unintelligible) impact the definition is already a problem that (unintelligible) Chapter 11 (unintelligible) is definition really clear, but hard to assess that really, really challenging. That’s why I know we are working with the Planning Department trying to provide some guidance on how to assess that community impact for SMA permit assessment. We provided this kind of criteria from CZM objective policies and the SMA guidance and regarding the time, how large area should be considered for cumulative impact, so this just gives a general idea. We still working on that guidance right now. Then Act 16 Section Law 2020, that change amended the 205A (unintelligible) law last year, that’s four major amended for Act 16. What amendment is that? Amendment of (unintelligible) development and (unintelligible). The second amendment is the increase shoreline setbacks from 20 feet to 40 feet. Kauai County right now minimum is 60 feet, but more restricting than 205A because 205A give authority to counties that can increase more larger than 205A requirement, but minimal right now is 40 feet. They also Sea Level Rise including the definition of a Coastal Hazard right now and provides a definition regarding beach (unintelligible) and also restrict and prohibit housing structure and the sides where the beach is, so we want to (unintelligible), uh, discuss in much more detail regarding this kind of four amendment. This (unintelligible) amendment (unintelligible) and the (unintelligible) and I know when I come to CZM Office of Planning (unintelligible) PSD. They’re (unintelligible) their time before (unintelligible) last year can be development require SMA permit or can be exempt, that have both sides, but last year we gave away (unintelligible) from requirement that SMA permits that become exemption (unintelligible) so only exemption (unintelligible). So, (unintelligible) can be exempt, potentially from SMA requirement. That also, non-structure improvement including single family 18 residency, commercial and a non-commercial structure, that also can be land. I know a single- family residency (unintelligible) structure (unintelligible) also can be exempt, so that’s (unintelligible) single-family residency, but the other things, these things are major in (unintelligible) and I mentioned before, construction or (unintelligible) construction of a single- family residency, when they’re located in the shoreline parcel, there will be two SMA requirements, or in the parcel itself, even though the shoreline parcel, but impacted by the waves, storm surges, and high tides, or shoreline erosion will trigger SMA requirement also. This is the last part (unintelligible) non-shoreline parcel, just (unintelligible) parcel, if impacted by these four types of hazards will trigger SMA requirement. So, I can see county or (unintelligible) more and more application for single-family residency. As far as I know City and County of Honolulu right now, a lot of, more single-family residence asks for a required SMA permitted requirement because they are a shoreline parcel. So, this is a suggestion for county to take and consider about shoreline parcel. How to decide not shoreline parcel impacted by storms or waves or high tides or shoreline erosion. We suggest use a 0.54 sea level rise scenario to from seal level rise (unintelligible) to see which side, potentially impacted by these four types of coastal hazards. This just gives suggestion for County Planning Department to assess this kind of potential impact. So, this is a minimum 40 feet shoreline setback from before 205A before the County of Hawai’i or the City of Honolulu and Maui, they use 20 feet or 30 feet as the minimum requirement. After Acts 16, minimum requirement must be 40 feet, cannot be 20 feet anymore, but I know county Hawai’i, uh, Kauai different. They ask for 60 feet as a minimum requirement. I think that’s really positive way to protect shoreline, also protect the property from coastal hazards. And shoreline setback variances will be potentially granted for use or uses or shorelines (unintelligible) shorelines (unintelligible) parcel. The reason setback (unintelligible) not a permit. Sometimes the property (unintelligible) set back (unintelligible) permit (unintelligible) SMA permits. That’s not true. (Unintelligible) means (unintelligible) prohibiting 205A requirement that with (unintelligible) all structure shall be prohibited without a variance. But some minor structure can be within the shoreline area. This is the purpose of shoreline setbacks. So, definition of “beach” really, really important also really it – first time for the state law defines this so they have the purpose of beach, defining the beach. We can see they have three purposes here. The beach (unintelligible) is for public use for progressing and for protection coastal eco- system or provide buffer zones (unintelligible) coastal hazards. This area as the picture itself only just show the dry beach area. But this definition much broader than this kind of dry beach area. So that is a CZM policy of change. You can see that real color here it prohibits the construction of private shoreline housing structure (unintelligible) in the amendment in the area with the pictures. So, this is very important right now, cannot use sea wall, put it in beach area and the no longer can be allowing this action at all. The reason before that people claim or ask for sale because the erosion, they have hardship. That’s why they ask for sea walls. But Acts 16 right now, prohibits shoreline happening within beach area. Also in the meantime, minimize the construction of public shoreline housing structure also. So, this is a (unintelligible) of amendments in area where the beach is. So, you can see this is shows, this is a sea wall before ACT 16 they have sea walls. After Act 16 no more sea walls from private sector, from private sector in the beach area. So, this is a beach definition also CZM 205A amendment to prohibit shoreline structure within beach areas. So, the last slides I tried to show the OPSD, Office of Planning and Sustainable Development. If you have time, you can look at our webpage. We have 19 provided these kinds of information, a video, SMA Permitting and also provide guidance for as SMA Permitting for public use and also have queues regarding (unintelligible) by Act 16 and also for having county profiles for showing my measurements. So that’s all I have today. If you have any question, please ask. We try to answer. Thank you. Mr. Hull: Thanks for talking’, Justine. Madam Chair, members of Commission, if you have any questions about, um, Office of Planning or the Coastal Zone Management Act or estimated permits as the presentation was given, now essentially would be the time. But thank you guys so much for showing that presentation. Chair Apisa: Yes, thank you that was a very thorough presentation. Thank you. Commissioners, any questions, or comments? Hearing none, we could move on. Mr. Hull: Okay. Basically, again, Justine and thanks again, Shichoa. COMMUNICATIONS (For Action) Mr. Hull: Moving right along, we have no Communications for Actions. COMMITTEE REPORTS Subdivision Mr. Hull: Moving on to Committee Reports, we have the Subdivision Committee Report. I will turn it over to Subdivision Community Chair DeGracia. Mr. DeGracia: Today’s Subdivision Committee consisted of myself and Commissioner Chiba. For New Business there was Tentative Subdivision Application Number S-20-21-5 which is Kukui`ula Development Company, LLC which was approved. And there’s also Tentative Subdivision Application Number S-20-21-6 for Key Kauai Carport, LLC which was approved. A Tentative Subdivision Application, Number S-2021-7, Yellow Hale, LLC which was approved. And there was also a Final Subdivision Application Number S-2021-3, Alan and Karen Nesbitt Trust which was also approved today. Mr. Hull: I’ll just add to Committee Chair DeGracia’s report that you know, there was a fair amount of written testimony that came in. There was some oral testimony which was received today concerning one of the subdivision applications that particularly pertains to Yellow Hale, LLC. Again, as I reiterated to the Subdivision Committee, the petition that was up for review, was for a road subdivision to essentially subdivide a road out of the area. It is not for the 280-some odd units, that was previously proposed several years ago, and did receive approval then. This again, is just for essentially a road subdivision. Having said that though, you know, if there are concerns, and there seem to be concerns about the subdivision, this application is for tentative approval, meaning that all the necessary documents to be reviewed are in place and the Department did make an assessment to determine the documents are in place. But now essentially, it’s up to the applicant to go and meet all the requirement and solicit the comments from various agencies, including but not limited to State Department of Health, the Department of Public Works, and then as well as the State Historic Preservation Division concerning, among other things, historic or archeological 20 assets in the area. And they ultimately have to come back to you folks for a final action once they’ve addressed these concerns commented on by the various state and county agencies. So while the Committee did take action on a tentative approval, it is not a final approval by any means of the subdivision. Mr. DeGracia: Thank you for making that clear. Mr. Hull: Thanks, Chair. Ms. Barzilai: Madam, Chair, it’s Laura, County Attorney, did you want to continue with this item, or did you want to pass this item to Vice Chair Cox for approval of the Subdivision Committee Report? Chair Apisa: Yes. I would like Vice Chair Cox to please proceed with asking for a motion or proceeding, however she sees fit. Ms. Otsuka: Can I interject? I’m not sure if this is the proper time. Regarding Application S-2021- 3, Allan and Karen Nesbitt, Trust. On, page three I would like to amend, if it’s not already done, I would like to amend for the record. It was, uh, public hearing process scheduled for February 9, 2021. It needs to be amended to today’s date, August 10, 2021. Mr. Hull: Yeah, Mr. Otsuka, and we can talk about the way the report is set up. So, the way that our report is set up is that backed in tentative approval, say, for this Nesbitt application, that was done back in February. The report is established back in February transmitting all the industry requirements which has Kenny’s signature and - and reference to the date, February 9th. And then on page two we just fill in when we’ve met all those Conditions for final approval, a July date. So that’s kind of why those dates is there. I didn’t, we’re actually open to looking at reformatting the way that’s been done because I can actually see that now it’s kind of confusing. But technically, it’s not a typo on our part. We just re-use the older part and leave two areas for signatures, the first area tentative approval is done on the February date, but to see that tentative approval, we keep that signature line there and then have the new signature line for final approval. Does that make sense? Ms. Otsuka: Yes. Thank you. Chair Apisa: And just to be clear, Vice Chair Cox, I recuse myself from this one item if you could please chair this portion of the meeting. Chair Apisa recused herself from the meeting at 10:16 a.m. Vice Chair Cox: Yeah. Yep, I will. Thanks for letting me know. So, are there any comments on any of the Commissioners before our Board? Or does somebody want to make a motion? Mr. Ako: Ms. Cox, I’ve got a question. Vice Chair Cox: Yes. Mr. Ako: I don’t know if it is for Francis or Kaaina, but whoever it is for, but you know, you mentioned that it still needs to go to the agency to get more information to come back with. Again, 21 we go for that tentative agreement, but is the information right now can they proceed with the subdivision, or the new information is also critical for the subdivision itself? Or is it just for the development itself, the new information that they’re waiting on? Mr. Hull: The new information, no, I’ll say the information that they’re waiting on from State Historic Preservation Division pertains to this specific subdivision. Now the State Historic Preservation Division has done an analysis previously of the site for the permits. And they are actually doing an analysis again for this subdivision. But they’re actually waiting for that information to be transmitted to them as far as whether or not they find their archeological inventory survey up to snuff, if you will in assessing the assets that are out there or the lack of assets, whichever it is. So, they have received official comments from HSPD pertaining to that. But ultimately, it’s up the Commission if anyone wants to defer to wait for those official comments to come in. But whenever those comments do come in, ultimately the applicant just has to work with HSPD to resolve any of their concerns and issues for HSPD to agree for final action by the Planning Commission on a subdivision approval. Mr. Ako: Okay, so if vote on the tentative agreement today, when the final I guess analysis comes in do we vote again? Mr. Hull: You do vote again. Mr. Ako: Okay, until it’s approved? Mr. Hull: Yes, so in this tentative subdivision, you’re technically just reviewing to say that it can be subdivided in the manner that is being proposed. And so, there is lot size standards and what have you that Kenny as the planner has reviewed to make sure it meets all the subdivision design standards and say it can move forward pursuant to these design standards. But before final action is even taken, they still must resolve all of the agency requirements. And so, all that’s being essentially submitted to you folks today is, “are you in concurrence and meets all the design “standards pursuant to the Kauai County Code?” And for the design standards we’re saying it does. But again, that does not equate final approval or ultimate approval for the subdivision until they resolve all the agency requirements. Mr. Hull: Got it. Thank you. Vice Chair Cox: Thank you. That was a good clarification, Kaaina. Thanks for your question. Okay, does anybody have another question, comment, or motion? Ms. Nogami-Streufert: What, are we excepting the report or are we approving the report? Woman: Aloha. Can I speak now? Mr. Hull: This time isn’t for public testimony, ma’am. The time for testimony was in the beginning of the meeting, thank you. Woman: Okay, so there’s no public testimony coming up later again? 22 Mr. Hull: Did you speak previously in the Planning Commission public testimony? Woman: No, I didn’t. Mr. Hull: Madam Chair, it’d be up to you if you want to reopen public testimony for this agenda item. But it’d be up to you. It’d be at your discretion. Vice Chair Cox: Does anybody, Commissioner, want to weigh in before? If we reopen it, um, that means anyone who’s out there who hasn’t spoken has a chance to speak. Is that correct? Mr. Hull: Correct. Vice Chair Cox: Do you have any idea how many people are out there? Mr. Hull: Right now, I have 12 individuals who have called in. Vice Chair Cox: Okay. I guess I would say and, um, I would suggest that in order to be as transparent as possible we do allow testimony that we have not already heard. Mr. Hull: Okay. Will the individual who just spoke, if you’d state your name and you have three minutes for testimony. Ms. Cummings: Aloha kakou. My name is (Unintelligible) Cummings. Um, for (unintelligible). I’m a lineal descended to the burials in that property that you guys are talking about permitting. And I’m just here because it’s not nothing, it’s not nothing new. And it started back in December when the County of Kauai was notified (unintelligible) to agent is noted (unintelligible). No (unintelligible) was notice to agent. Basically, we were dealing the County of Kauai from December up until the time when the machines came into drill, at Yellow Hale, LLC property. And I submitted an Affidavit of Truth. There’s, and it has not been refuted yet. SHPD, I have submitted my paperwork for the burial. And there’s discrepancy happening right now where who owns the property. And what I’m asking is under the laws of grubbing because when this was when DLNR showed up that day with us and we did a report and a review of it, there was grubbing that was done unlawfully. And the County of Kauai had brushed off the permitting and said that they were going to send it and they never sent it. We got the permits there after all was done and found that it was old permits. So, my thing is the color of law. How do you uphold one law and not uphold the other? And then more so about the unlawful landfills. The unlawful permitting and unlawful commercial transactions that’s happening on these lands and especially where, I’m here and in support of right now to address this and hopefully President Biden can hear this, because we’re out here talking to the native people and finding out that they, there’s no way they would allow desecration to their burial site. Why do we have to accept desecration to our burial sites in Hawaii for our ancestors when all you do is sit there and listen to us, but nothing gets done. This cannot keep on happening. This just cannot keep on happening. So, I know you guys all hear me because you’re all in this conversation. And I hope you guys hear that I’m here, my ancestors exist, your ancestors exist, and they deserve more respect than that. So mahalo for your guys’ time. Aloha. Mr. Hull: Thank you for your testimony. Is there any other member of the public who has called and who did not previously speak at the onset during the public testimony time at the beginning of 23 the Planning Commission and that would like to testify on these subdivision action? If so, please state your name. Again, last call. If there’s anyone in the public who hasn’t previously testified that would like to testify on this subdivision agenda item, please state your name. Ms. Nakailua: Hello? Aloha? Is this, can you hear me? Mr. Hull: Yes, ma’am. Did you previously testify on the Planning Commission agenda? Ms. Nakailua: No, I did not. Mr. Hull: Okay. Then, would you like to testify? Ms. Nakailua: Yes. Mr. Hull: Okay. If you’d like to testify you have three minutes for testimony. Ms. Nakailua: Okay. Aloha, my name is Nakailua (unintelligible). I am representing, our non- profit, E ola Kakou Hawaii, and speaking against the Yellow Hale, LLC permitting. I just wanted to briefly go over a few questions as in what is honor? What is integrity of those treaties that were held between the United States and Hawaii prior to (unintelligible), in 1959 and prior to the military occupation of Hawaii. I want to go over the treaty of 19- of 1840- 49 which is the treaty of friendship, commerce, and a relation that Kamehameha said (unintelligible) when he signed with the United States, that the United States violated during the military occupation and continues to this day because it’s (unintelligible) for one (unintelligible) that Hawaii and the United States needs to be in a state of peace of amnesty to be able to continue their commercial business happening on the lands of Hawaii. And, for me, I’m a descendent of those prior to 1778, which I have (unintelligible) that can (trace) back to my ancestors and (unintelligible), that as a descendent I’m able to use my inherent vested rights as a kanaka, as an heir to those lands to say, “Where is accountability for the treaties that was supposed to be held in perpetuity between these two countries?” And that is my testimony for today. Mahalo. Mr. Hull: Thank you for your testimony. Again, is there anyone else in the member of the public who have called in that did not previously testify that would like to testify on this agenda item? This will be the last call. Is there any member of the public that has not previously testified but that would like to testify on this agenda item? Hearing none, Madam Chair, I turn it back to you for deliberations with the commission members. Vice Chair Cox: Okay. And I would, I’d just like to clarify once again, and correct me if I’m wrong, Kaaina, that today, what we would be voting on is a tentative agreement for this particular subdivision which is for a road and that any development, the development or any of this subdivision request would come back for after being looked at in terms of burials and other issues. Mr. Hull: It would come back only if they’re able to meet those conditions. And so as far as if they cannot meet the conditions of whether the Engineering Division or the State Historic Preservation Division, if they cannot meet those requirements then they would not be coming back to you folks. 24 Vice Chair Cox: Okay. And when they come back do they come back to the Planning the Subdivision Committee or to the full Planning? Mr. Hull: It goes back to both. It’d be the Subdivision Committee first and then ultimately the full Planning Commission. Vice Chair Cox: Okay. Thank you very much. Any other questions or comments from commissioners, or do we have a motion? Ms. Barzilai: Madam Chair, excuse me, it’s, Laura. So, what really is before you right now is the approval of Commissioner DeGracia’s report from this morning from Subdivision Committee and not your actual, it is part and parcel of your actual approval of all of those items, but the appropriate motion would be approval or rejection of Commissioner DeGracia’s report from this morning. Vice Chair Cox: Thank you, Laura, for the reminder of that. Yes, the motion would be for acceptance of the report. Ms. Nogami-Streufert: So, this is for the acceptance of the report, not for the approval of the report? Vice Chair Cox: I think I heard it both ways. Ms. Barzilai: It is for the approval of the report as submitted by Commissioner DeGracia. Ms. Nogami-Streufert: Okay, I move to approve this Subdivision report. Vice Chair Cox: Do we have a second? Ms. Otsuka: I second. Mr. Chiba: I second. Vice Chair Cox: Okay, we should do a roll call. Mr. Hull: Roll call, Madam Chair. Commissioner Ako? Mr. Ako: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Streufert? 25 Ms. Nogami-Streufert: Aye. Mr. Hull: Chair oh, sorry, Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Cox? Vice Chair Cox: Aye. Mr. Hull: Motion passes 6:0, Madam Chair. Vice Chair Cox: And I turn it back to you, Donna. Chair Apisa returned to the meeting at 10:35 a.m. 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; we took the action on 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 September 14, 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: With that, Madam Chair, we’re moving onto announcements. Packets for future meetings we have upcoming, I think I’ll just, to give a little briefing to the Commission members. There was I think a strong hope and desire from both myself, the administration, the Chair, Boards and Commissions, some of you folks and members of the public to be returning in person to the Planning Commission meetings. There was a goal of today being it and if not today, then our September meeting. Unfortunately, with the rise in cases not just nationwide but here in Hawaii as well as on the island Kauai, we’re monitoring, and I won’t say we’re working with Boards and Commissions that we’re foreclosing on the idea of coming back in person in September. But we’re monitoring the situation. I think given the caseload that there’s a very strong likelihood that we unfortunately, will not be returning in person in the September meeting, but we’re monitoring it and I will keep you folks abreast of what the status is. Coming up in September, we have a few 26 cases that sorry I didn’t mean to use the case, we have a few agenda items that could garner significant interest from the community and members of the public. We’ve got a previous one that is the zoning on the amendment concerning transient camping facilities in the open zoning district and agriculture zoning district. We also have, not the application for Cocoa Palms but just a status report for Cocoa Palms and could garner a considerable amount of interest and discussion. Then we also have a guest house administrative rules coming back in for you folks. We are looking and working with the Chair and the possibility of bifurcating those meetings into possibly two meetings, going back to our standard two meetings a month for that caseload, which would be a meeting September 14th as well as September 28th. Part of that is quite honesty just assessing the amount of public participation and discussion that could go for those two specific cases and trying not to quite honesty bog down the virtual system. We have taken the virtual system sometimes to its capacity where it’s almost about to break, and then so some of that is in anticipation of those two meetings. Other than that, we don’t have much really on the horizon. I can see if there’s any, you know, particular issues that you folks would like briefing on or clarification on. The Department is completely amenable and can set those briefings up as well. With that, I don’t have anything else. But if you folks have any input or clarifications or would like to see something on the agenda just, please let us know. Madam Chair, I believe you’re still muted. ADJOURNMENT Chair Apisa: Yes, thank you. Thank you, Kaaina, and just to again, redundant but remind the commissioners that we do have two meetings in September as we’ve had in the past, September 14 and then again, I believe it would be the 28th, two weeks after that. And, no further business, I would call for a motion to adjourn. Ms. Otsuka: I motion to adjourn. Ms. Cox: I second. Chair Apisa: All in favor? Aye. (Unanimous voice vote). The motion carries 7:0. Thank you very much. Thank you, Vice Chair Cox, for filling in and we will see you all on September 14th. Mr. Hull: Thank you all. Chair Apisa: adjourned the meeting at 10:39 a.m. 27 Respectfully submitted by: Arleen Kuwamura, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval). ( ) Approved as amended. See minutes of meeting. 28 1 KAUA‘I PLANNING COMMISSION REGULAR MEETING September 14, 2021 Draft The regular meeting of the Planning Commission of the County of Kaua‘i was called to order by Chair Apisa at 9:34 a.m., - Webcast Link: https://www.kauai.gov/Webcast-Meetings The following Commissioners were present: Ms. Donna Apisa Ms. Helen Cox Mr. Gerald Ako Mr. Melvin Chiba Mr. Francis DeGracia Ms. Glenda Nogami-Streufert Absent and Excused: Ms. Lori Otsuka The following staff members were present: Planning Department – Director Kaaina Hull, Deputy Director Jodi Higuchi Sayegusa, Myles Hironaka, Dale Cua, Romio Idica, Kenneth Estes, and Planning Commission Secretary Shanlee Jimenez; Office of the County Attorney – Deputy County Attorney Laura Barzilai, Charles Foster ; Office of Boards and Commissions – Administrator- Ellen Ching and Support Clerk Arleen Kuwamura. Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Apisa: Called the meeting to order at 9:34 a.m. ROLL CALL Planning Director Kaaina Hull: Madam Chair whenever you're ready to gavel a meeting and do a roll call. Chair Apisa: Okay, if we're all here, I call the meeting to order roll call, please. Mr. Hull: Roll call, Madame Chair. Commissioner Ako? Mr. Ako: I am here and by myself. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here, I’m by myself. Mr. Hull: Commissioner Cox? 2 Ms. Cox: Here by myself, even the cat left. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here just myself. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Here. Mr. Hull: Commissioner Streufert? Ms. Nogami-Streufert: Here by myself. Mr. Hull: Commissioner Otsuka is excused. Chair Apisa? Chair Apisa: Present and by myself, thank you. Mr. Hull: You have a quorum, Madame Chair. Six Present. APPROVAL OF AGENDA Mr. Hull: Next, up we have the approval of the agenda. And the only amendment that we have is as we've done in all virtual meetings during the covid pandemic. All testimony for the agency hearings and agenda item is held during agenda item. F, Hearings and Public Comment. But aside from that, we have no other further amendments. Ms. Nogami-Streufert: I move to… Chair Apisa: We have…go ahead. Ms. Nogami-Streufert: I move to accept the agenda as amended. Ms. Cox: I second that, this is Commissioner Cox. Chair Apisa: We have a motion to approve the agenda with a second. All in favor? Aye. (Unanimous voice vote). Are there any opposed? Hearing none. The agenda is approved as presented. Motion carried, 6:0. MINUTES of the meeting(s) of the Planning Commission Mr. Hull: Next, we have agenda item D Minutes. You have minutes for both the November 10th and December 8th, 2020, meetings. Chair Apisa: Could we have a motion, if there are no comments just maybe one motion on both of them unless someone has changes? 3 Ms. Nogami-Streufert: I moved to accept the minutes of the meeting November 10, 2020, and December 8, 2020. Ms. Cox: I second the motion. Chair Apisa: Are there any comments on the Minutes? All in favor? We can do a voice vote. Aye. (Unanimous voice vote). Any opposed? Hearing none. The minutes of November 10, 2020, December 8, 2020, is approved. The motion carried 6:0. RECEIPT OF ITEMS FOR THE RECORD (None) Mr. Hull: There are no Receipt of Items for the record. HEARINGS AND PUBLIC COMMENT Mr. Hull: Moving out the Hearings and Public Comment. For the members of the public that have registered to testify. You may notice that there's a different format that’s been occurring on this meeting as opposed to the other virtual meetings that occurred for the Planning Commission during the Covid pandemic. In consultation with the County Attorney 's office and Boards and Commissions with the Emergency Proclamation it was determined that both video and auditory participation for testifiers is required for the Commission to provide. So ultimately, we have to spin up a process for this meeting and all future meetings to allow for both audio and visual participation by members of the public. We did have to have a registration deadline in order to meet essentially the implementation and staffing and resources of allowing for both audio and video testimony, so they have to do they have to register within 24 hours in advance of this meeting to testify. Thank you for registering in that manner and providing your names because ultimately, we’ll be handing this over to our Deputy Director who will essentially be calling on the individuals that registers to testify and to go through that process. I can also note for the record Commissioners, you received a number of written testimonies for the Agency Hearings and other agenda items. We have a total of 141 letters relating to Special Management Area Use Permits SMA 2022-1 and Class IV Zoning Permit Z-IV-2022-1and Use Permit 2022-1 for Philip and Linda M. Green. We have another 129 pieces of communication for we Continued Public Hearing for Zoning Amendment 2021-2, and we have an additional 3 pieces of communication concerning the consideration of a Settlement Agreement legal case captioned: in the Circuit Court of the 5th Circuit State of Hawaii, Michael Kaplan Trustee, of the Michael A. Kaplan Revocable Trust, dated August 12th, 1992, appellant versus County Kauai Planning Commission and County of Kauai. Appellees: Civil No. 5 CCV-21-0000057 (Agency Appeal) and so then under court seal. With that for the member of the public again, that have registered, this is the time the agenda item. F Hearings and Public Comment, though we're taking either video or auditory testimony. I'm going to turn this over to Jody to go through the list of those who have registered to testify. When she calls on your name and frees up your platform to speak, it may take a 3 or 4 second delay for the system to kick on board, so just be cognizant of that for the members of public. Jody, I will turn it over to you to go through the list of registrants. Deputy Planning Director Jodi Higuchi Sayegusa: Hey morning, I'm going to go through the list, according to I guess where it appears in the agenda so, topically we're going to be going towards 4 the SMA Use Permit SMU 2022-1. First register speaker Mehana Vaughan, I’m allowing your audio and your video right now. Ms. Mehana Vaughan: (Unintelligible) can you hear me? Ms. Higuchi Sayegusa: Yes, let me just set my timer, sorry about this. Okay, go ahead. Ms. Mehana Vaughan: It's Okay our family submitted two (2) testimonies and one email, so there's my daughters will follow. But I just wanted to say aloha Planning Commissioners, Directors, and staff. You have the hardest volunteer job on Kauai, so thank you for your time. My name is Mehana Vaughan. I’m a lifelong Kilauea resident, raising 3 children here in Kilauea with my husband. Today, I bring with me the many Kilauea Kupuna who worked to protect me through efforts described in testimony by uncle David Sprout, Uncle Gary Smith, and others and the many children who view their homes lives and selves with new perspective when they stand up on her slopes. First, the Greens are wonderful people members of the Kilauea community for over a decade who participate and contribute to many groups. The issue at hand is not the applicant, but our collective responsibility to protect the significant cultural scenic and ecological resources of Nihoku. Second, the project is proposed is inconsistent with multiple protective land use designations and zoning overlays. The General Plan natural designation. The purpose of the open zone to provide for recreational and aesthetic needs of community. The effective functioning of land, air, water, plant and animal systems. This project stands the impact scenic public view planes and experience of this essential landmark in place of recreation and respite. 30,000 feet of developed area, 12,000 square foot homes stonewall, and driveways, situated on the steepest slope of the lot stand to have significant primary, secondary, and cumulative impacts on drainage runoff and erosion. Three, The Special Treatment District Resource Overlay requires the Planning Commission ensure development preserves and contributes to the enhancement of scenic and ecological characteristics. Adverse ecological impacts cannot be approved if they would occur and the planned house represents potentially revocable commitment to loss or destruction of both natural and cultural resources, including the integrity of the mountain itself. Yet there has been no ecological assessment to rule out impacts on seabirds and multiple threatened and endangered species, including the `Ope`ape`a, Hawaiian bat, Newell Shearwater, Petrels, Nene, and the Pueo that are also increasingly threatened in these times. Fourth, existing laws protect this site and yet a house is entitled here. Extensive testimony submitted today, indicates broad concern and community opposition to this project so you're in a bind as decision makers finding this balance. Fortunately, there is substantial scope to improve this project, to align with County zoning protections. State laws like HRS Section. 1-17-1 Article 12. Section 7, of the Hawaii State Constitution and Endangered Species Protections. As Nihoku was once seen as having no ecological value before the area was protected and birds returned, we must reach across boundaries to find balance between protective laws and outdated entitlements, present needs and future possibilities. Thank you so much for your time and attention. We look forward to continuing to work with the applicants to seek resolutions and pono for this place. Mahalo for all you each do, and I'll bring the next testifier up. Ms. Higuchi Sayegusa: 3 minutes. 5 Ms. Vaughan: She and her sister wrote this together or sister can't be… Ms. Higuchi Sayegusa: Sorry. Mehana, if the name if names were not on our list, we're just trying to navigate this system to make sure that it was, it's completely fair. But if are they on the list that we used submitted? Ms. Vaughan: Yes. Ms. Higuchi Sayegusa: Okay, what are what are their names? Ms. Vaughan: Yes. The name was Pi’inae Vaughan, and this is Anna Vaughan submitting/ testifying for herself and her sister who could it be here. Ms. Higuchi Sayegusa: You know, I'm so sorry. I wonder if I could just pause you and just verify the email, but if you don't mind, I'm going to move on to the next registered speaker and then the meantime, we're going to verify the email and then and then call you folks back if so, thank you. Ms. Vaughan: Even though it might be helpful. Go right ahead and come back to list Aloha. Ms. Higuchi Sayegusa: Okay, next register speaker is Don McConnell. Mr. McConnell, I am allowing your camera and your mic at this point. Please confirm when you're able to. Mr. McConnell, I think you're still up, your audio is enabled you have to unmute yourself. Mr. Don McConnell: Okay, am I Okay now? Ms. Higuchi Sayegusa: Yes, please go ahead. I’m going to start your timer, three minutes right now. Mr. Don McConnell: Thank you very much for the opportunity to speak this is all very difficult actually. The dilemma for me, I've known Mehana for quite some time and work with her around the subdivision and I also have known the Greens for a serious amount of time, ever since they were farmers with their farm and have moved on. Let me first say, I am a resident of the Seacliff Subdivision and I'm a past member of the board and other activity, so I'm familiar with what's going on in the community. The real concern that the community has is that we have been a subdivision for some, like 40 years and this is the first time that this has come up. Early on Senator Daniel Inouye, did an eminent domain activity and took two (2) of the lots, which are essentially we're 6 housing areas and donated them to the refuge as well as the 100 plus acres that is the main refuge and what is meant to be a very good place. Now, Mehana and her group can go to the lot that's next door to the Greens proposed site, and they've been there before, it's not much different except that it belongs to the Wildlife Refuge and there's considerable amount of effort, there. So, although there is a strong emotional desire to keep the Nihoku as it is the fundamentals are that this has been laid out as a subdivision and a property on the subdivision for quite some time, as I said, though since the subdivision was formed some 40 or 50 years ago. So, I am really at a dilemma here, but I must say that the Greens deserve this. They've paid an enormous amount of money for the land and the issue of open space, and they use for Mehana 's group is not a question. There are many other places that are available. 6 The second thing that I wanted to point out was that, although Mehana and the group brings up the issue of being on the Wildlife Refuge. I have not seen anything from the Wildlife Refuge endorsing this activity, endorsing her activity and they're used to us being on the bottom of the Hill. We have the total of 6- lots that abut the refuge and some of them are within 40 and 50 feet of the refuge in terms of location. So, we are just looking to move forward. The Greens are good. They've made all of the other requirements. Mr. Hull: four minutes, Madam Chair. Mr. McConnell: And I will we wish that you would move in their direction. Thank you. Ms. Higuchi Sayegusa: Moving on next, register speaker it is Kelvin Ho. Okay, your turn on my card enabled. Mr. Kelvin Ho: Hey Aloha, I want to Aloha the Commission Chair Apisa and Vice Chair Cox and all the Planning Commissioners. My name is Kelvin Ho, I live in Lawai and I'm testifying today in Strong opposition to the requested a Special Management Use Permit. Nihoku in Kilauea is really a profoundly special and storied, it's a very sacred place on Kauai. The public that you all served through your path of decision making and leadership will benefit most from minimizing the impact of this new mega home’s placement on Nihoku. The Kilauea community, conservationists’, scientists, native cultural practitioners, all recognize clearly the rare nature of this fragile creator and its habitat for endangered Bird Life. I believe that allowing home of this size and scale to be built here at that high point on the Nihoku would be an irreversible loss for the community that all of you represent. I understand clearly the kuleana that accompanies your leadership, as you hold the welfare and the quality for our children and their children in your hands. I 've been accessing Nihoku since moving to Kauai from Oahu in the late 70s. We should just be able to drive up there and it is a really profound place that affects our spirits and souls across all levels. Yeah. And while I live on the South Shore, it was always a highlight to spend any time in such a powerful historical and culturally important place. I was present when Senator Daniel Inouye spoke after touring the place and he vowed and put into motion protection from the Federal Government. Yeah, but this meant less access for a lot of us. But for me, it was success that was acceptable in the light of the truth that this would keep the area protected from development and create further sanctuary for the wildlife there, especially the birds. Yeah. More recently, I've been part of a cultural stewardship group that works alongside the staff of the wildlife preserve to help maintain the habitat by removing invasive species, planting native species, and bringing groups of youth from all over not just Kauai but Hawaii to experience this wonder of Nihoku. Yeah, I've witnessed firsthand. The impact this place has had on many, many individuals. Ms. Higuchi Sayegusa: 3 minutes later. Mr. Ho: Thank you. How is deeply imprinted a sense of awe for the nature natural world and the youth from our communities and cultivated the understanding of our need to care for such places. People feel connected to something much larger than themselves here and they also sense the fragile nature of these existence. This place in its natural state holds potential for so much learning for our keiki and it means that to be well, what it means to be in balance with our environment. It's a place of ancestral knowledge hope and heartfelt inspiration. In this day and age to allow a 7 building like this to pass unchecked with send a message to the community that the wants of a few are more value than the needs and the wishes of the whole community that they're choosing to dwell in and live in? Yeah. It's tragic that it's rare to have the chance to voice our truths and opposition and feel that we've been heard. So, the fact that these permits are coming up for you speaks on the extreme nature of this proposal. I'm humbly asking you please to clearly hear the voices of those that you represent and the voices of the children and their unborn children. Ms. Higuchi Sayegusa: 4 minutes. Mr. Ho: I'm going to end now. Thank you for your time and the chance to offer insight and perspective into this process and just want to see that it's not just the Kilauea people, but across the island that we're really supporting from this opposition today, so thank you for your time. Mahalo. Ms. Higuchi Sayegusa: Thank you. Not next, register speaker was Kelsey Molina. I'm not seeing her name and I'm not able to enable. I mean enable your mic and audio so next register speaker is Bruce Whale. Okay. When you're able to please begin your testimony. Mr. Whale, I think you're still on mute, so you have to unmute yourself. Mr. Bruce Whale: Oh, thank you so much. Thank you so much to the Commissioners. really just appreciate this opportunity to talk with all of you. I'm a member of the Seacliff Design Review Committee. And I strongly support the Seacliff community and the Greens. Phil and Linda Green have been devout Kilauea farmers and have worked for decades building up their farm. (Unintelligible) their retirement home in and Seacliff and I find this, their location that they're building in, if you actually have some knowledge of the of the site and the building envelope involved, they are pushed into a small corner of unit A. I'm very aware of this unit as the previous owner is and was a client of mine as well. Over the years, you know, the Seacliff community and the owners there are a lot of some of the nicest people on island, most respectful people and I just fully support them. I fully support the Greens. This is not a mega house, this is a very modest home and if you actually look at the physical plans itself, and they have every legal right. The Seacliff community and development was accepted by the County and decades ago, and the stricter design review guidelines there are in no way overpowering the natural environment there, and I just very strongly support this support the Greens in what they are doing. Ms. Higuchi Sayegusa: Three minutes, Madame Chair. Mr. Bruce Whale: I'm good thank you. Ms. Higuchi Sayegusa: Thank you. Chair Apisa: This this is Chair Apisa. Bruce thank you very much for keeping it to the 3 minutes or under. Some of these testimonies are going rather lengthy so I would ask if you could please future testifiers, keep your testimony to 3 minutes. Thank you. Ms. Higuchi Sayegusa: Next, registered speaker is Billy Kinney. Mr. Billy Kinney: Hey can you guys hear me? 8 Ms. Higuchi Sayegusa: Yes, please go ahead. Mr. Kinney: Aloha Kakahiaka, Planning Commission Chair, members of the public. Mahalo for having us. My name is Billy Kinney and I stand in opposition of the approval of this application. I urge you folks to also deeply and carefully consider these applications noted in this agenda item. I urge you to also consider the unique geological and biological and cultural features of Nihoku through proper analysis and considerations for the law of the land and not just some subdivisions. I'm from Hanalei, but I live in Kilauea now. I'm a part of Na Kea Nihoku, Na Kea Kanaloa, and I am also on the board for Hui Maka`ainana o Makana in Heana. Currently, I'm working through my graduate thesis and the Department of Urban and Regional Planning. And while this while the discipline has sort of pushed me to be learned in Land Use Policies, Community Environmental Planning. I've actually carved out my own focus in Indigenous Planning and I've come to really understand and occupy this sort of slow but very beautiful paradigm shift, within planning that has kuleana to traditional and customary practices, uses, values, and ways people relate to land. And so, recently, at this Kilauea Neighborhood Association meeting, we heard one woman, a Hawaiian woman state that Kilauea is one of the most disconnected Ahupua`a from cultural practices, and that is upsetting an appalling thing to hear because it's untrue. And that, right Planning Commission is the type of like self-absorbed and colonial perspective, that endangers all of us. And I can tell you with confidence that the Greens are not like that person who made that comment. They are good people. But despite evidence of past traditional customary practice use of Nihoku and presence of significant cultural resources uninterrupted cultural practices for generations, not just decades. You've been provided with inefficient, insufficient, and skewed facts by the applicant, and the insufficient and insufficient propositions have been made in order to conduct a Ka Pa`akai Analysis and fulfill your folk’s affirmative constitutional obligation to protect the traditional and customary practices. No actual cultural impact assessment has been done for Nihoku since 1989, and additionally, faulty Ka Pa`akai analysis are nearby, and similarly zoned land incorrectly concluded that there are no traditional and customary practices. Despite many, many much, much evidence, right? So such analysis and this project are inconsistent with the provision provisions provided by HRS Sections. (unintelligible) 1-1-7-1 and Article 12. Ms. Higuchi Sayegusa: Three minutes, Madame Chair. Mr. Kinney: Section 7 of Hawaii State Constitution. And may I remind you that of OHA’s testimony on this agenda item to which I explain my affirmation dangers, it is not the operating, yes? Chair Apisa: Excuse me, we want to hear this, but you are up to 3 minutes can you wrap it up, please? Mr. Kinney: Yeah, wrapping up right now, thank you. I'll explain that it is not the applicant’s responsibility to conduct a couple key analysis. Nor are they able to discharge your folks’ constitutional duties to preserve and protect native land cultural practices, and so that we can invariably be who we are with places like Nihoku. Mahalo. Ms. Higuchi Sayegusa: Thank you. 9 Chair Apisa: Thank you. Ms. Higuchi Sayegusa: Next registered speaker is Hoku Cody. I believe your mic is still unmuted. You will have to unmute yourself, but your mic and camera were enabled. Yeah. So, your mic you have to unmute yourself. There should be an icon on the app or in the browser next to the camera to unmute yourself. Mr. Hull: Seeing that, Jody. We can go back to Hoku Cody at the end of the public testifiers to see if that individual was able to figure out there unmuting aspect. Before we move on to the next series of testimony concerning Zoning Amendment 2021-2. I did speak with the Chair concerning miss. Vaughan, Doctor Vaughan says request to have her children speak. We did not have them listed 24 hours in advance is required by protocol. But in discussions with the Chair, being that minors in some situations may not be able to send the email or have access to the screening. We're going to allow the minors of with Ms. Vaughan, Doctor Vaughan to testify. So, Mehana will be activating your screen for their testimony. Chair Apisa: I would just while we're getting them connected just input that the decision is based on them being a minor and not accessible to email, but that they will have the same limit on time. Ms. Mackenzie Vaughan: The Commission, is it mom? Ms. Higuchi Sayegusa: Your camera Mackenzie, is enabled at the moment. Ms. Vaughan: Okay. And it looks like that. This is the first, one mom, this is the second one. Ms. Vaughan: There you go. Ms. Vaughan: Thank you. Ms. Vaughan: You can. It’s Okay, you can read on screen you see right here, go ahead read right t there, that's good. Ms. Vaughan: This is Anna Vaughan testifying for herself and her sister (unintelligible) Vaughn. Woman: Aloha, members of the Kauai Planning Commission. Ms. Vaughan: (Unintelligible) Vaughan and I'm first grader at Kilauea School. I am testifying today to you today about the permits for the house. We should not be building on it because it's a bird refuge. As a community member of Kilauea, I know that Nihoku is a sacred place where birds can rest in the Mo’olelo and legacy of the battle between Pele and (unintelligible) can live on. This is a letter my sister and I wrote together. Dear Mr. and Mrs. Green. We liked visiting where you are hoping to build your house you who is a birdhouse a refuge were birds live. It's not a human property and it's not the most ideal place. Nihoku is unique for its seabirds and for its cultural practices performed on its beautiful lands. You have a lot of space to build on and it wouldn't hurt even the littlest bit to build further down. It would also be an advantage for everyone because for example, you would be more protected from the weather and still have a magnificent view and we wouldn't see your house as we walk up Nihoku. Nihoku is a place where traditional celebrations 10 such as Makahiki are practiced that celebrates some of our most important akua or gods, such as Lono as health. Please don't build your house on Nihoku because it is for the birds not you. It just for the community and like us, the keiki. Nihoku means a lot to me like family. There is a place to get away from people and a place to connect with the Aina. It is also a home away from home. I hope you decide not to build your house on our mana (unintelligible). Chair Apisa: Thank you very much for your testimony. It's nice to encourage our youth to get involved. And who is next Jody? Ms. Vaughan: Thank you for allowing her to testify. I wanted to let you know, Olena Molina was passed by earlier, but she's here. She can go at the end when you call thank you. Olena Molina thank you. Or you may have heard his Kelsi Molina. Ms. Higuchi Sayegusa: Okay, you can go ahead at this point, if she's able to now. Ms. Kelsi Olena Molina: Okay, thank you so much. I just wanted to aloha and mahalo to the Planning Commission for your time today and letting us all speak and for the difficult job that you all have. My name is Kelsey Olena Molina. My family have lived in Kilauea for generations. I'm blessed to now be raising my children here in Kilauea as well. My career as a nurse aims to serve my community through improving public health. That's why I'm testifying in opposition to the requested special management area use permit for Seacliff Plantation Lot 11-A, because I believe that this development will be detrimental to the health of the Kilauea community. Nihoku is culturally, ecologically, and historically significant to the Kilauea community. This very place was once accessed by my grandparents who worked the Kilauea Sugar Plantation and are now buried at the base of Nihoku. They used to tell me stories of how they would walk through the area to go fishing, but unfortunately, this access has been taken away. Nihoku is only accessible through the private gates of Seacliff’s gated community. A physical example of the layered barriers blocking community access. The health of the community is measured in various ways community connection to one another, to their land, to their culture, having access limited or removed entirely servers of connection between a community and its place. I have seen this happen throughout my life where wealthy landowners are buying acreage and restricting access to the community. Multimillion dollar developments like the Greens will alter open landscape permanently. The Greens excessively big home seems unreasonable for two (2) people more of these types of homes in this sacred place create the feeling of increased in accessibility and changed the cultural and ecological landscape forever. I can't change the past development that has restricted our access to very special places, but I can work towards a better future for our children and our community. Our whole ohana is connected to Nihoku through community workdays with other Kilauea ohana. And the partnership with US Fish and Wildlife and Na Kia Nihoku. We care take the property adjacent to the Greens and connect to our keiki and teach them a history and importance of the area. Through this experience, I’ve learned about the cultural significance of Nihoku. Its creation by Pele her travels through Kauai, it's ideal location for seasonal observations, proper place names of all the land in that area, and the ecological significance being home to meet many native birds’ species such as the mullion and (unintelligible). We've cleared out invasive plants near the fence line that bordered the Green’s property and saw they moved in that very afternoon. As stated in Section 12 of the Green’s permit it states that the project will not detrimentally affect Wildlife or endangered animal species that may be located at this site. Section 1212. I state that the project will not adversely affect wildlife habitats or potential or existing agriculture uses of Land. While 11 there may be well meaning stated intentions. The amount of excavation required for their proposed home site and the well almost definitely impact wildlife habitat. In addition, the proposed home site is at the highest possible point and will likely increase runoff that will impact the already damaged (unintelligible). Ms. Higuchi Sayegusa: Three minutes, Madam Chair. Ms. Molina: I'm asking that the Planning Commission please deny permits to build the proposed house based on the zoning of that land. I urge you please do not support. The development that directly affects the health vitality of our community on land that's located within County Natural Land Use Designation, Open Zoning, and Scenic Ecological Resource Special Treatment District Area, Mahalo Nui. Ms. Higuchi Sayegusa: Thank you. Hey, I'm going to check back with a Hoku Cody at this point. Ms. Apisa: Thank you. Ms. Higuchi Sayegusa: Allowing the mic and camera are you able to unmute yourself at this point? So Hoku, I'm going to move on to the rest and then I'll check back with you with you at the end of the public testimony to see if you're able to unmute yourself at that point, Okay? Moving on to testifiers registered to speak on Bill 2822. First registered speaker is Ann Thurston. I'm allowing your mic and your camera at this point. Miss Thurston, you might have to unmute yourself is as well. Ms. Anne Thurston: Got it. Is that Okay? Thanks. Ms. Higuchi Sayegusa: Please go ahead. Ms. Thurston: Bill 2822 is timely, relevant, and fundamentally important for Kauai’s future. By restricting commercial transient use on open zone and agriculture zoned properties the bill will make a vital contribution in protecting the Island from over development. There's no doubt that much of the island 's aging infrastructure is now at a dangerous tipping point. This can be readily demonstrated for instance, in relation to solid waste management, wastewater treatment, drinking water, and roads. Building additional tourists’ units would add to the strain on the island’s infrastructure to the detriment of the resident population. Particularly with this substantial and growing risks posed by climate change. It is time for the emphasis to shift from supporting tourism to supporting the quality of life for Kauai 's residence. The growing number of applications for commercial campground facilities across the islands would offer significant opportunities from mainland investors. But there would be virtually no benefits for the local community. Without this bill overdevelopment could easily enter through the back door under the thinly veiled guys of camping, it’s significant that the proposed glamping units in Princeville are projected to be essentially very expensive hotel rooms with concrete footings, concrete pads with fixed walls, bathroom facilities, and very likely kitchenettes. The bill’s passage would make an invaluable contribution to preserving Kauai’s unique character inline with the Planning Commissions mandate to protect and preserve the island. I hope very much that we will be able to pass this, this bill. I'm sorry. I turned my camera off throughout all of that, but you know, I think the voice was there Thank you so much for the opportunity to speak to this issue. 12 Ms. Higuchi Sayegusa: Thank you. Ms. Apisa: Yes, thank you for your testimony on your audio was on it, came through loud and clear thank you. Ms. Higuchi Sayegusa: Next register speaker is Debbie Goodwin. I'm sorry, I’m not seeing your name on the list. Moving on to the next, Fran White, enabling your camera and mic. Ms. White, you might have to unmute yourself as well. After Fran White, your camera and your mic are enabled so at this point; you can go ahead and unmute yourself by clicking on the microphone. Oh, there, you go. Ms. Fran White: Okay, there, we got it all right. So, are we there? Can you hear me, Okay? Ms. Higuchi Sayegusa: Yes, please go ahead. Ms. White: Alright, thank you. I too want to express my complete thanks to the Planning Commission for the amazing stress and job that they are doing, it's a job that is not one that I would choose, but we also appreciate what you are doing and the care that you with which you are concerning all these things. I certainly echo everything that Ann Thurston has said. We, echo the question that so many of us have now when is enough tourist development enough? You know, saving open space is our great hope for the future continued over development of tourist accommodations is making this island just another Disneyland, where the visitors pay their entrance fee, and expect the night shift to clean up after them. Kauai is home to us either by birth or by choice. We have chosen Kauai for its special and unique environment, culture, and aloha. If we continue to fall for the developers pitch of “oh, everything will be better for you, after we build our development” were simply not listening to the history or the lessons we learn each day as we traverse this small stressed and overly compressed island community. After its people, open space is the most valuable asset of our beautiful island. It's now up to you our county leadership to protect Kauai, we really cannot handle our infrastructure, our resources can't handle more development. If you can pass Bill 2822 that will certainly help protect our open spaces effectively and ensure that we can draw a line on future tourist development in favor of the true needs of our existing community. Mahalo nui loa for everything, thank you. Ms. Apisa: Thank you for your testimony and if I could ask, please when you do testify for others. Please turn your video on, thank you. Ms. Higuchi Sayegusa: Thank you next register speaker Kristine Koch. Let's see I'm not seeing. I have I'm enabling the microphone and audio for Christine Cox. I'm not sure if there was a miscommunication on the spelling. Miss Cox. Ms. Kristine Koch: Yes, Christine Koch. Hi my name is Christine Koch and my husband, Bobby and I are in full support of Bill 2822 and kindly encouraged it to be passed. It is very critical at this time for permanently protecting and preserving all of keys open zoning from any commercial type of camping or the new glamping style. This protection will prevent developers of and any others seeking loopholes to take advantage of this unique open spacing, zoning agriculture, and residential lands. Who are looking for investment profits such as the new one hotel in Princeville Glamping 13 Resort Proposal? There is clearly an enormous difference between the old-fashioned pop-up tents and sleeping bags versus the new trendy glamping units with walls, electricity, bathrooms, plumbing, feather beds, made in room service, with quarter room prices up 500 to 1200 per night. This surely feels like resort disguising itself as a campground. It only seems appropriate that this kind and any other kind similar to commercial activities be limited to commercial or resort zoning only. Another very important concern of ours is the continued threat of hurricanes and the dangers of these glamping units and blowing around into residential homes or surrounding areas, remembering Hurricane Eva had winds of 100 mph and a hurricane Iniki had 145 mph winds with gusts up to 225, so safety is a great concern here. Thank you very much for keeping commercial camping in commercial lands and for your support of this bill and its protection. Ms. Higuchi Sayegusa: Thank you. Next registered speaker is Mary Ann Minor. I am not seeing your name on this list. Next register speaker Janice slack. I'm not seeing you as attending at this point. Next registered speaker is Tom Mull. Chair Apisa: Again, I asked him when you testified, please turn your video on thank you. Ms. Higuchi Sayegusa: Let's go ahead. Mr. Tom Mull: Okay, hello. My name is Tom Mull, I've lived on Kauai for 30 years now. I've raised my family here. Over that period of time, there have been of course changes, but those changes came slowly. They were incremental, linear study, growth was controlled during that time period. However, things have begun to change and change the exponentially. We are quickly approaching critical mass. So, what do we do? What do we do with this explosion of over popularity? Now we're the most popular place in the world. We all see it. We see it every day, every time we go outside to go to the store, go to the pharmacy get gas, but what are we as citizens supposed to do about it? The answer of course, partially is community involvement. And responsible local government and that's you seven (7) fine people. You were tasked with leading us through this maze for us it is a maze finding the balance between considered growth and the growth we need like affordable housing. The County Council has done their job. They've given us this bill that will help preserve our precious open space. It is a good start, it's a good bill. We're here to ask you to pass it. For us you are the first line of defense, we rely on you for asking you to support and maintain the concept of ecological ballots, which we will ensure future generations. And they will be able to access the natural resources that are the gemstone of this island. Now is the time to act. You have the opportunity to act, act with urgency actually with the fierce urgency of now. It is up to you to preserve and protect Kauai, the most desirable, beautiful, livable, safest, popular place on the planet right now. You have one thing in common. We all have one thing in common that's living on this planet, planet earth. Each and every one of us have the responsibility to protect our magnificent island. You have the power to do it. We are asking you to save it from environmental degradation by promoting environmental sustainability, you can do that by deterring overdevelopment and encouraging careful studied growth. Future generations will depend on the legacy that you are creating starting today. We have finite resources, we have finite open space, we have the duty, you have the duty to protect it for ourselves, our children, and all those who come after us. In short, enough is enough we can maintain our beautiful island with careful preservation. Not let overdevelopment push us in the direction that will be impossible to undo. Ms. Higuchi Sayegusa: Three minutes, Madam Chair. 14 Mr. Mull: If we build it, they will come and more will come, and more development will follow. That would destroy the precious balance we have the natural balance, the ecosystems that have taken mother nature thousands of years to create. Ms. Apisa: Correct. Mr. Mull: Please don't let that happen. Ms. Apisa: Excuse me, Tom, are you wrapping it up? It has been 3 minutes. Mr. Mull: Yeah, thank you. I'm done. Ms. Apisa: So, you don't all right, thank you. Mr. Mull: Thank you. Ms. Higuchi Sayegusa: Okay, next registered speaker is Carolyn Misajon. I am not seeing her as a attendee in our meeting at this this point. The next speaker is Lorraine Mull. Okay there is several here I'm going to enable your audio and mic. For at least one of the links, I allowed and enabled audio and mic for both names here as an attendee under meeting. Ms. Mull you might have to unmute yourself by clicking on the icon that looks like a microphone. Ms. Lorraine Mull: Got it, and video. Sorry about the double registration, I had belt and suspenders. Microsoft Teams are new to me. Good morning, my name is Lori Mull and I'm here to offer my strong support at build 2822. I've been a full-time resident here on Kauai for 30 years have 2 children who grew up here, went to Hanalei a school, and then graduated from UH. Both came back to live in Hawaii in the place they love more than anywhere else in the world, as, do I? Kauai is now at its crossroads. Indeed, a tipping point. The island has faced the recent challenges of floods, road closures, the pandemic, and a sudden influx of tourism that we were not expecting. It was brought into sharp focus the fact that we now face an important choice a manifest destiny kind of choice. No one will argue that tourism isn't it an important cog in the engine of our community and our economy. But if we care about what kind of place we fundamentally are and what we want to be we should not sell out to unbridled development and unfettered tourism. As the recent summer months made abundantly clear we need to have limits to the strain on our roads. Our infrastructure, our way of life, and what we want our future to look like. We can surrender to big money, big corporations,’ big developers, and more visitors than our island can comfortably maintain, but we don't have to do that. We have choices and we need to make them now. If we don't have a plan. We will be part of someone else is plan. You as the Planning Commission have the power and the responsibility to make the right choices and shape the future. What kind of place do we ultimately want to be? Do we want to maintain the magnificent beauty open spaces and green vistas then make Kauai so desirable both for our residents and for the visitor experience? Or do we want to let outside corporate money make their choices for our future before they sell their assets to other big money corporations, then pack up all their tents and leave a trample place behind. Commercial developed campgrounds have become a thinly disguised path for resort expansion on open space. You have the power to hit the brakes, to keep our open space truly open, to keep quiet green for our families, our neighbors, and our future. Money doesn't have to have the loudest voice. It is not the answer for quality of life. We all know that. We ask you to pass this 15 very important Bill and ensure a future that we all want to call ours. Mahalo for your time, your devotion, and for your careful stewardship of this treasured island. We all call home. Ms. Higuchi Sayegusa: Next register speaker is Lisa V Torello. I don't see Lisa as an attendee. Moving on, next register speaker is Caroline Padgett's. I’m allowing your mic and audio and visual. Ms. Carolyn Burkhardt-Padgett: Hello? Ms. Higuchi Sayegusa: Please, go ahead. Ms. Burkhardt-Padgett: Okay, thank you. Aloha. Mahalo for letting me speak. I’m calling also in support of Bill 2822. My name is Carolyn Burkhardt, Padgett, and I live in Princeville. Planning and by definition, is about the future. We plan for the future, we don't plan for the past, but we have to build on the plan room that's been done in the past. 50 years ago, when Princeville became the first Master Planned Community in Hawaii. They had a vision of the future. Their vision is one that allowed for responsible development that would preserve the historic nature of the area, the open vistas, the beauty of the area, along with the comfort of adequate infrastructure and open space. And this foresight on their part allowed Princeville to become the wonderful magical place to live and vacation that we know today. Now, 50 years later, we have the opportunity and the weighty responsibility of shaping the future again, by building on that vision. And we have to ask ourselves, what is our vision for the future of the island? Can we dream big too? I hope so and I hope that we don't succumb to the pressures to permit loopholes and zoning errors to be used to develop new resort areas in the middle of a successfully planned Master Planned Residential Community Open space. My hope we can make choices that will keep on the greed from being the driving force that allow the developers and the foreign investors to turn Kauai into a place we don’t recognize. We must protect against loving the island to death with unlimited tourist and inadequate infrastructure to meet their needs. My hope is that we can envision a magical place or both visitors and residents can coexist in a safe, comfortable, and ecologically nondestructive manner. I shouldn't need to say it, but in case anyone thinks that this is only an issue for Princeville, the same threat hangs over the entire island and all its open spaces. So, we need to make plans for the future we want to see and hope we are remembered fondly for what we've decided and that's the reason why I'm supporting Bill 2822. I thank you very much for all of your efforts and your time and for allowing me to speak. Ms. Higuchi Sayegusa: Thank you. Ms. Apisa: Thank you very much. Ms. Higuchi Sayegusa: Next register speaker is Jonathan McRoberts. Allowing mic and camera right now. Mr. Jonathan McRoberts: I'm unmuting Ms. Higuchi Sayegusa: Thank you. Mr. McRoberts: Hello? 16 Ms. Higuchi Sayegusa: Yes, please go ahead. Mr. McRoberts: Yes, first, I apologize. I tried to get on using my iMac and I couldn't get on, so I am on my MacBook Air, which has a video that doesn't seem to work. So won't be able to see my extremely handsome face. I want to reiterate what everybody else has been saying, which would just be redundant, so I'm going to go off on a little bit of a tangent. First, if you read the local paper and listen to the Hawaii Public Radio. You'll see that everybody is trying to reduce the effect of tourism on our islands. The pandemic really helped put focus on how much better a lot of things are when we don't have as many tourists. You only have to go out to Haena to see what limiting tourism out there has done for the community, so the idea that we are going to allow the building of 50 new high-end structures, which will bring nothing but more cars into the neighborhood and cause more congestion on us already over overburdened roads makes no sense. This is a really tan gentle, but I lived in Nepal for 4 years. Back in the 70s, it was a wonderful country and I enjoyed hiking in the Himalayas. But 40 years later, when I wanted to go back for one last Himalaya hike. I chose to go to Bhutan, a very similar country, but they took 2 different paths. Like Hawaii seems to be doing Nepal said, “come on in we don't care. We're going to build this many tourists hotel as we can, as many vacation rentals as possible as we can, people were allowed to go hiking without permits, not required to carry any cooking gas with them.” Whereas Bhutan controlled tourism, they now have 60% of their forests intact, you have to, if you go there, you have to hire local people to carry things like gas containers, so that nobody chops down trees to allow you to in to travel up into the mountains. The difference between the life of the common people in those two (2) countries is huge. Now, that's a bit of a stretch, but the same thing can be applied to Kauai. We need to become more exclusive not less inclusive of tourism, building high end glamping units on a golf course in a way in which they're going to be a threat and any storm and increasing traffic into Princeville makes no sense given what everybody else, including the County of Kauai has been trying to do. Ms. Higuchi Sayegusa: Three minutes, Madam Chair. Mr. McRoberts: Thank you for your time. Ms. Higuchi Sayegusa: Next register speaker is Mary Patterson. Allowing mic and enabling camera. Sorry, there's a there's several links here, so I'm going to enable both, both cameras. Ms. Patterson, he might have to unmute yourself. Sorry Ms. Patterson, still muted at this point. Let's see yeah, and you're on the Teams app. You might have to press the icon that looks like a microphone, to unmute yourself. Sorry yeah, we're still not able to hear. Mr. Hull: Jody, I think if we give Ms. Patterson, a little more time to figure out her on meeting capabilities. I think we can move on to the next registered speaker and then we can go back to both Ms. Patterson and Ms. Hoku Cody. Ms. Higuchi Sayegusa: Yes, yes, but we'll come back to you, Ms. Patterson, thank you. Yeah, moving on to Bridget Hammerquist. Ms. Bridget Hammerquist: Good morning can you hear me, Okay? 17 Ms. Higuchi Sayegusa: Yes, please go ahead. Ms. Hammerquist: Thank you for having all of us in. I know it's probably a bit tedious. I won't add much but will speak briefly because I'm from the South Shore, I'm from Koloa and I was born in Hawaii, and I care very much about Kauai. I've lived here since I was 16 off and on. Retired here full-time 14 years ago. And it is home, it's always been home. It was home when before it was a state, it was my home. I think open space is probably something that you can't put a price on, it's probably one of the most valuable and precious resources we have. We have it on all parts of the island, and I'm concerned about what happens with this bill for the open space on the South Shore. It isn't just a glamping or an anti-glamping bill. It's a build to preserve our quality of life, and keep a very precious resource available for residents to enjoy. And I'll echo those who said our infrastructure is taxed to the Max because that's true, and I appreciate and praise you all for what you must do and thank you and hopefully you'll support Bill 2822. Thanks for letting me testify, Aloha. Ms. Higuchi Sayegusa: Thank you. Next register speaker is Bill Schilling. Mr. Schilling might have to unmute yourself. Mister Schilling still not able to hear you. Former seconds here. Again, Mister Schilling you might have to unmute yourself by clicking on the icon that looks like a microphone. Just to in the sake of for the sake of moving on at this point, Mr. Schilling when I returned to you at the end of the public testimony. At this point, I'm going to move on to testimonies regarding the Kaplan item. First register speaker is Teresa Tico. Allowing your mic and camera right now. Ms. Tico, you might have to unmute yourself, please. Ms. Tico, I'm still not able to hear you. You must unmute yourself. Ms. Teresa Tico: Sorry about that, can you hear me now? Ms. Higuchi Sayegusa: Yes, thank you go ahead. Ms. Tico: Alright, my apologies, my MacBook doesn't really care for the Microsoft Teams app. My name is Teresa Tico, and I am a resident of Wainiha District of Hanalei. I'm also one of the attorneys for Mr. Kaplan, although I do not represent him in the agenda matter that you're that's before you today. I was at the May 11th, 2021, public hearing on Mr. Kaplan 's application for a use permit or construction of a single-family residence, and I was made aware that several days before that May 11th hearing, an email was circulated that claimed there were or had been birhtstones on the kuleana upon which he was building his home. However, no previous archaeological surveys had ever noted any, so we were surprised that this issue came up at the 11th hour and of course, there was considerable testimony. It was it was emotional, and you know, I understand why the Commissioners would want to look into this matter more, and as we all know that use permit was denied. Well immediately after the denial, Mr. Kaplan contacted me and Sabra Kauka and wanted to bring cultural practitioners or people from the community to his property and investigate these allegations and make a determination as to whether there was a possibility that birth stones had ever been on that kuleana. So, I think it was around the middle of June, June 18th, Mehana Vaughan and Lei Wann, who is the Director of Limahuli Gardens and Gary Smith a Kilauea a resident who's actually completing a book about the history of Kilauea, right now. The four (4) of us visited the kuleana parcel and the surrounding property that Mr. Kaplan owns and the very first stone that we looked at that was purported in these allegations to be a birthing stone was not even located on the kuleana itself. It was located outside the kuleana so you know, that 18 shouldn't even be a consideration. The second alleged birthing stone, according to Lei, was not a birthing stone. It was very small, too small to be a birthing stone, it didn't have the necessary grooves or indentations for a woman to give birth. And so, following that site visit the consensus was that no, there are no birthing stones on the Kuliana and I believe that further studies have been done since our visit that have not established you know, any credibility to these allegations that were made at the May 11th hearing. However, I would like to say that visiting the parcel all of us were incredibly impressed with the extent of the archaeological restoration work that has been done. The terrace, the terracing that has been reconstructed the landscaping. Ms. Higuchi Sayegusa: In this Madam Chair. Ms. Tico: Thank you. It's a beautiful sight and we're only asking that you approve this settlement, so that he can finish the single-family residence that is already half constructed and thank you. Commissioners for everything you do. We are all very grateful to the time that you give the community and for your service. Ms. Higuchi Sayegusa: Thank you. Next register speaker is Mauna Kea Trask. Allowing mic and video now. Mr. Mauna Kea Trask: Aloha, Madame and Deputy Director. Just to confirm before I begin. I signed up for the Exec…to testify in the Executive Session Item, as well as the General Business Item I.2a & b. So, I’d like to because they deal with different issues. I'd like to address them both with my I mean, three minutes on one and three minutes on the other respectively. Ms. Higuchi Sayegusa: I'm going to lodge that to the County Attorney and Chair. Ms. Barzilai: Good morning, Madam Chair. Laura Barzilai, Deputy County Attorney. Good morning, Mister Trask. Mr. Trask: Morning. Ms. Barzilai: The Good morning, your petition and the opposition that were filed or received as pieces of testimony only testifiers have 3 minutes to speak a statement. A statement will be made during General Business and not now during public testimony. Mr. Trask: Well, I'm sorry just to be clear. So, we were to submit oral testimony on each agenda item. And so, I elected for two (2) and similarly, I would like to testify on the ES, H.a, and then on, I.1.a.b. But I believe under Planning Commission Rule 147, there's a separate rule and process for arguments for or against intervention petitions, so I didn't think the intervention applies to these two (2) agenda items. Ms. Barzilai: Well, the petition for intervention is not on the agenda today, but of course, you can have three minutes if you've registered to testify on both items. It depends on how you've registered. Mr. Trask: Well, the petition is on the supplemental agenda. 19 Ms. Barzilai: As a as an accepted piece of testimony this morning, therefore, entitling you to three minutes of testimony. Mr. Hull: I if I could interject. Ms. Barzilai, I think what Mr. Trask is getting at is that putting the petition the side, that he's requesting to his email requested to speak on two (2) different individual agenda items. We will have to check I think we have him listed as you're speaking on one agenda item. Mr. Trask, if you want to speak to that one agenda item and we're speaking to that I can double check the email as we went through our clerical staff to see if there was a specific request for Two (2). Mr. Trask: Got it. Thank you, yes, and I think there was. Ms. Barzilai: So if Mr. Trask is registered for two (2) items. He is entitled to speak 3 minutes on each item. Mr. Trask: Yes. Alright. Thank you very much. So, I'll begin with item H.a, if it pleases the Commissioner. Chair Apisa: Yes, please go ahead on item and then we'll continue later. Mr. Trask: Thank you honorable Chair Commission members. This agenda item involves the same issues raised by the members of the public, that are concerned about the Nihoku development. And in fact, both this development and then the Nihoku development are in the same Special Management Area and Open Space Special Treatment Resource District and all those testified today, and concern over Nihoku need to pay special attention to this agenda item and what happens today. The County has never agreed to issue permits via secret settlement agreement less than 6 months after denial of the same permits by the Commission. However, the precedent being set today, will allow every single development on the island that is denied by the Commission based upon public and neighboring landowners’ objections and concerns to be later approved without public hearing or agency hearing or notice via secret settlement agreement done in executive session. We like to note for the record that the ES agenda item is inadequate under state law because it fails to give notice that it will conduct a decision making on the use permit and class IV zoning permit as required by HRS 9278. And given the facts of circumstances in this case, the Commission must notify the public that this matter is up for approval. Secondly, the settlement agreement must be made public. Some of the agreements between governmental agencies and 3rd parties are public documents except to the extent that information contained therein may be withheld under the Sunshine Law, according to Hawaii IP letter 8910 and 021, a confidentially provision in agreement to which a State or County agencies a party, must yield to the provisions of U IPA. With regards to the Ka Loko Damn case, the State founded the County cannot keep the amount of money in the insurance company paid out as confidential, because insurance proceeds are public monies. Similarly, in this case, land use and permit documents are public records. You cannot have a secret settlement agreement that involves public documents, especially when those public comments have already been provided to the public there's nothing confidential about them. This is not a settlement agreement that includes medical information, psychiatric information of psychological history diagnosis, which all can be kept confidential. This case only involves public permitting records. You cannot do this. ES, this has to be done in open session. That's all I have to say on H.a. And I can move onto I.1.a and b, it's a piece of the Commission. 20 Ms. Higuchi Sayegusa: Please go ahead. Mr. Trask: I'm sorry. Mr. Hull: I believe, Jodi, it follows the format right. We must go through all of the testimony for Kaplan. Ms. Higuchi Sayegusa: Sorry. Mr. Hull: First and then I think Mr. Trask clarified that he was actually not speaking specifically on Kaplan, he was speaking on executive session. Mr. Trask: Yeah, and so this next one is the Kaplan, General Business Matters. Mr. Hull: Okay, my bad then, correct. Mr. Trask: Yeah. Thank you, and just let me know I can proceed. Ms. Higuchi Sayegusa: Go ahead. Chair Apisa: So, I think yeah go ahead. Mr. Trask: Maybe get— Ms. Higuchi Sayegusa: Go ahead, thank you. Mr. Trask: So, with regard to agenda item, the General Business regarding quote Unquote consideration of the settlement agreement. The Planning Department cannot request, and the Commission cannot grant a use permit and a class IV zoning permit when the application was denied only four (4) months ago. CZO Section 8-3.2. G is clear that when I use permit application is denied by the Planning Commission and application for use permit involving the same or substantially similar construction development activity or use may not be filed sooner than 6 months following the denial. This permit was denied. This is the same application, although it was appealed to the Circuit Court, it is still being resubmitted to the Commission and it is otherwise every application of the same development and or a reconsideration of this of an approval. Again, this agenda item is inadequate under HRS, 92, 7, A because it fails to give notice that the Commission will conduct decision making on the permits. CZO Section 8- 3.1(4) still requires a public hearing on this matter because of the new Ka Pa`akai analysis and the new Supplemental Directors Report you cannot waive public hearing on what is it really a second application submitted given that now, they're adding up reported analysis and native Hawaiian cultural practices, the public is not aware of these documents. The County cannot again under purported settlement agreement grant their permits in this fashion, although the County has inherent ability to settle claims it cannot under the guise of the compromise impair public duty owed by it or give validity to avoid claim. And were compromised settlement is made against state public policy, the locality has no power to enter into it. As was stated before, I want to site, Mr. Kenny 's testimony, “There has been a long-held misunderstanding that kill away is disconnected from the traditional 21 and cultural practices. This false belief is both untrue and unfortunate.” So, in this case, you have to grant SMS Permits, Use Permits, and Class IV Zoning Permits, and Zoning Use Permits that is your public duty to ensure that. Ms. Barzilai: Three minutes Madam Chair. Mr. Trask: I just like to wrap it up. So finally, in wrapping it up. Case law is clear, you cannot abrogate your zoning obligations under the guise of a settlement agreement, and you cannot have you do not have the power to make contracts, which will embarrass or control you in the performance of your legislative quasi-judicial powers and duties. Thank you. Ms. Higuchi Sayegusa: Thank you. I should have clarified that yeah; we were able to pull up that email and that's why we were able to confirm that Mr. Trask request to separately testify into agenda items. Next register speaker is Alan Suan. Mr. Allen Suan: My name is Alan. I'm a resident of Kauai and a graduated Kamehameha School. I was not contacted by Ms. Dawnn Chang, who claims to have reached out to the Hawaiian community that had previously testified. I was also one that testified before. My heart is broken that the birthing stones have been displaced. This ancient Hawaiian site is a secret area. A place where our Hawaiian ancestors were born. I only knew of one other ancient Hawaiian birthing stone site, which is in Wahiawa. To now find out about another birthing stone site, I feel that this ancient birthing stone site should be protected for all. Thank you very much. Chair Apisa: Thank you. Jody, do we have more testifiers? Ms. Higuchi Sayegusa: I'm sorry, next register speaker is Bruce Lehman. Chair Apisa: Jody, I would ask how many more? For we've been going now for 2 hours. We may be due for a break shortly. But I don't want to interrupt the testimony, but we'll hear from Mr. Layman and then we may be due for a short 10-minute break shortly. Ms. Higuchi Sayegusa: Okay. Thank you, got it. Mr. Bruce Layman your camera and your mic are enabled so you will have to unmute yourself. Mr. Layman, you must unmute yourself. Chair, unless you want to take a recess now and then perhaps what will resume with Mr. Bruce Layman. Hoping that he's able to unmute himself then. Chair Apisa: Yes, I would like to take a 10-minute recess starting now. We don't need a motion for that do we, Jody? Ms. Higuchi Sayegusa: No, but again, just resuming back at 11:10 to confirm. Chair Apisa: Yes, really, we will resume back at 11:10 AM. Thank you all very much stay tuned. We'll be back in 10 minutes. Ms. Higuchi Sayegusa: Thank you. The Commission recessed this portion of the meeting at 11:00 a.m. The Commission reconvened this portion of the meeting at 11:12 a.m. 22 Chair Apisa Call the meeting back to order after the recess. Ms. Higuchi Sayegusa: Madam Chair, are you ready to proceed again. Chair Apisa: Yes, do we have all Commissioners on the on the meeting. Mr. Hull: We can come back to roll call if you like. Chair Apisa: Should we take a roll call? Yes, please. Mr. Hull: Roll call, Madame Chair. Commissioner Ako? Mr. Ako: I am here by myself. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Cox: I’m here by myself. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here by myself. Mr. Hull: Commissioner Otsuka who is excused. Commissioner Streufert? Ms. Nogami-Streufert: Here. Mr. Hull: Chair Apisa? Chair Apisa: Here by myself. Mr. Hull: We have a quorum, Six Present. Madam Chair. Chair Apisa: Thank you very much. Let's resume Jody please. Ms. Higuchi Sayegusa: Sure, resuming with Bruce Layman. I think at this point if you if you were able to there, you go Yep. Oh, I think you did, unmute and now you're back muted again. Mr. Bruce Layman: We know. Ms. Higuchi Sayegusa: I can hear you now. Mr. Bruce Layman: Well, thank you. Hi Commission, good morning and thank you for allowing me to testify did testify previously and I want to just make mention that I was contacted by the 23 Dawn Chan, who represented herself as being reaching out to members of the a community that testified on behalf of this, Kaplan application, especially the local community and Hawaiians. And I want to play something real, quick because this is important, it’s a short message she left me, and I felt, and you'll understand why I'm playing it so you can just indulge me. “Aloha, my name is Dawn Chang and I have been asked by the Kauai County Planning Department to talk to members of the public, including yourself who may have submitted oral or written testimony regarding the Kaplan use permit” okay, the reason I played that is that she insisted that she was being called and directed by the Kauai Planning Department to reach out to us and I thought that was odd because we already gave our testimony and so I kept asking, her, I called her and I asked her who are you working for? Mr. Layman, I told you, I'm doing this on behalf of the Kauai Planning Department. So finally, I asked are they paying you for this? And she spoke. “No.” I said, well please tell me who's paying you. And she tried to go round and round and finally I said Dawn, Ms. Chang, who is paying you? And she said, “I'm being paid by the Kaplan 's.” Well, I found out later that she reached out to the other Hawaiians in the community and many of us had spoken with each other and she did the same thing, she never disclosed that she was working for the Kaplan 's, she said she was doing this for the County of Kauai Planning Department. So many of the Hawaiians that testified didn't want to talk to her because they didn't trust her, and she wrote a report in there saying that she spoke with these Hawaiians. I spoke with her because I called her and I called her on it, I said why did you do that? Why won't this open and honest with them? How do you expect locals and Hawaiians to engage with you in an open honest way when you were deceitful in in your message and how and when you talk to them? Ms. Barzilai: Excuse me Madam Chair, it's Laura County attorney’s office. This isn't really testimony. It's a telling story about another person who is not here to discuss it and playing a recording of that person voice, which really doesn't qualify as testimony. You are welcome to entertain for another few minutes, but I wanted to make that statement. Mr. Layman: Okay, so, I'll continue. We have knowledge of a birthing stone that was there, not is there. The rocks that they're claiming to see are not the birthing stones. There's a Lance Fu, who lives in 300 feet of this property 30-40 years lived there Hawaiian, native Hawaiian was told by a kupuna and this testimony was brought out before that, he and he saw it and he knows where it was and now it's not there because of the clearing work. Ms. Higuchi Sayegusa: Three minutes. Mr. Layman: So, when the, representing to you, that that they that they have a stone, and they haven't identified it. It's because they're not there and I'll wrap this up one of the persons that testified on behalf of the Kaplan’s, Hope Kalai, had mentioned that she was aware of a birthing stone. You can check her testimony and she believe it's still there and she was hurt. Their expert testimony. We believe it was there and that it now, no longer is there. I don't know what the rushes to pass this thing through because none of the Hawaiians have been spoken to especially lands who lives there. Thank you, Commissioners I appreciate your time. Ms. Higuchi Sayegusa: Thank you. Next registered speaker is Yulian Putsie Almarza. Allowing your mic and camera now, you might need to unmute yourself. Ms. Yulian Putsie Almarza: Aloha. 24 Ms. Higuchi Sayegusa: Go ahead, thank you. Ms. Almarza: Hello, good morning, my name is Yulian Kapuapuna, Almarza and a resident of Kauai. Dawn Chang called me saying she was from the Kauai Planning Department. I couldn't talk to her because I was working at the time. Later, I found out she was not calling on behalf of the Kauai Planning Department. I just wanted to put that out there because I was told that she said she reached out to us. Regarding the birthing stone removed in Kilauea, it, it saddens me to hear about this, this is a sacred area, sacred ground to be protected, and not desecrated to keep it pure and the land sacred. It would…to stop everything and to protect this area would be greatly appreciated, Mahalo. Ms. Higuchi Sayegusa: Thank you. Next registered speaker is Eric Taniguchi. Allowing your mic and camera now. Hey, Mr. Taniguchi, I’m going to have to unmute yourself. Mr. Eric Taniguchi: Hello. Ms. Higuchi Sayegusa: Yeah, we're able to hear you but there's a bit of feedback now. You might have to mute or take off the audio if you have multiple screens up. You did, unmute yourself at one point, I think we can't hear you now. Okay, we cannot hear you at this point I'm going to put you in the on the bottom of the list and see if you're able to fix your muting issue. Mr. Taniguchi: Okay. Ms. Higuchi Sayegusa: Next register speaker was Kuuipo Akau. I am not seeing Kuuipo on our attendee list. We're going to circle back at this point, too Hoku Cody. Let's see Hoku Cody I'm currently on enabling mic and video. There we go. Ms. Hoku Cody: Aloha, can you guys hear me? Ms. Higuchi Sayegusa: Yep, good to go. Ms. Cody: Aloha, just really wanted mahalo you guys for taking the time and all your patience through all these technical hurdles and whatnot so mahalo nui. Aloha. My name is Hoku Cody. I'm testifying in opposition to the requested special management area use permit on Nihoku. I am marine scientist born and raised kamaaina of Oahu and oiwi of Hawaii Island. Since 2008, I've worked with in conservation, reversing human impact on endangered marine species, namely marine mammals, and seabirds. Over the last 6 years, I founded the Kiamanu project that focused on increasing its pathways for communities to engage in traditional stewardship practices and seabird conservation. As well as collaborated and co-founded Na kia Nihoku alongside co-equal Kauai Kua Aina that’s all similarly that Nihoku plays a critical role in maintaining ecological integrity and quality of life for all the Kauai community. From my experiences it's a simple yet very complex idea to see that the presence of good quality seabird nesting habitats or one of the largest indicators of ecological integrity. Seabirds are the only genre species that exist where just by caring for their livelihood, observing, and understanding them so intimately, one can have a good sense of the health and vitality of the ocean, the atmosphere, and the land because it depends so intimately on these factors to survive. And quite simply, they provide good indications for our community because we need that same level of quality in our environment to thrive as people, as 25 communities, and as ohana. Nihoku and the surrounding coastal communities of North Shore, Hawaii is one of the last vestiges in the main Hawaiian Islands for seabirds that called home. And with the present changing climate expediting the transformation of some of our older islands, and atolls. It's our hope to make room for all these manu o iwi to continue to find refuge with us in our home here in Hawaii. Furthermore, this place Nihoku, the beholden and famed coastal hillside of the Halalea and Koolau community. This story is so potent there's no coincidence that Nihoku the place that Pele tried to carve a home is a place where the ecological integrity is weed so deeply into the stories and folklore, that it shaped the values of the people who love this place today, and quite simply, Nihoku is a story that grounded these communities and it stands to protect this same integrity of their home because we remember this very, very simple truth, that the vitality of Pele and the vitality of the places where Pele frequented, is the vitality of us as a people who call Hawaii home. So, I'm asking the Planning Commissioners to deny the requested permits. The multiple protected land use designation and zoning layers was designed to protect, very much protect this very ecological integrity is that we are speaking about today, so mahalo nui for your time and attention. Thank you again, Mahalo. Chair Apisa: Thank you. Hoku, just to clarify, you were testifying on the Green application, correct. Ms. Cody: Yes. Chair Apisa: Thank you. Ms. Cody: Thank you. Ms. Higuchi Sayegusa: Next… Mr. Hull: Yes, Commissioners for a clarification, the deputy is going through a list of people who were having technical difficulties running on so these aren't necessarily testimony for the last listed item, which was the capital application will be kind of jumping all around as we try to return back to folks that we're having we were having technical issues with so just so you're aware. Ms. Higuchi Sayegusa: Right, Okay. Mr. Hull: Thank you. Ms. Higuchi Sayegusa: Circling back with missed or technical difficulties related to the SMA 2022-1, next register speaker is Kaninau Villanueva, I just allowed your camera and your mic. Ms. Kaninau Villanueva: Aloha. Chair Apisa: And again, just I'm sorry, just to clarify again, this is on the Green application. Thank you. Ms. Higuchi Sayegusa: Yes. Ms. Villanueva: Yeah. Can you folks hear me? 26 Ms. Higuchi Sayegusa: Yes, please go ahead. Ms. Villanueva: Aloha nui, my name is Shayla Kaninau Villanueva. I am from Kilauea born and raised and I'm testifying in opposition to the requested Special Management Area Use Permit, Use Permit, and Class IV Zoning Permit for Seacliff Plantation Lot 11.A. As you've heard Nihoku is of great cultural significance that is inspired Mo olelo, Hula, and Oli and still stands as a cultural and ecological resource for both kanaka oiwi and native seabirds and is a place that continues to facilitate traditional practices. I firmly believe that Nihoku should remain as a landscape for our seabirds and for cultural and environmental restoration. I remember when I was in 4th grade, we had a field trip up to Nihoku with Fish and Wildlife. Seacliffs was already a gated community at that time, and it was a huge event for us as keiki of Kilauea after hearing so many stories from our parents and grandparents of all the things they were able to do up there. And we learned about Nihoku, its geological history, the moolelo of Pele, the seabirds that nest there, and their cultural significance akin to our revered deities. Nihoku as an advantage point for observational practices for fishing and planting. Near lot A, we planted native plants to restore the area to provide homes for our birds to nest, and almost 2 decades later, those hollow trees I planted are standing tall, there today. It was at Nihoku, where I had my first collective Malama Aina experience in my home ahupua'a surrounded by my aunties kumu, and dearest classmates and friends. This is a story I tell a lot because it positively changed the trajectory of my life. Inspiring my work in Environmental Conservation, fortifying my identity as Kanaka, mauoli and as a part of the Kilauea and Kauai community. I know from this experience that it is really important for younger generations of Kilauea to have these kinds of experiences and connections to their Ahupuaa. Now, as an educator at Kahili Beach Preserve educating our keiki about the significance of sand dunes in relationships to Nihoku, I wonder what kind of an impact it would be for children and adults in our community to learn about and participate in environmental restoration work at Nihoku near a mansion with a pool that dominates the landscape after they have just learned the history and sacredness of the place and after knowing that the community has sought to protect this area for over 40 years. Again, Nihoku, is maintained as active cultural and ecological resource. The overall interpretation of this ecology and culturally significant space is a priority within our community. The efforts to develop a house structure this large will compromise this interpretation, thus compromising the integrity of Nihoku. Ground disturbance in this area and alterations of the landscape are inevitable with irreversible impacts that will occur due to complete. As a place of important value to the native Hawaiian people the association of this space with cultural practices, traditional beliefs, ecological resources, and the overall nature of this landscape as a part of our identity as Hawaiians and the identity of Kilauea. I humbly ask and that the request did permit should not be approved and that further negotiation to find a better solution to follow. Mahalo for your time and Patience. Aloha. Ms. Higuchi Sayegusa: Thank you. Circling back again to Kaui Fu. Okay, I think you're still muted. Chair Apisa: Again if you could clarify which agenda item this is. Ms. Higuchi Sayegusa: Okay, yeah, this is one of the unresolved items SMA 2022-1, the Green application. 27 Chair Apisa: Thank you. Ms. Higuchi Sayegusa: Yeah, we can see you but cannot hold on. Let me just try unmuting you one where allows mic more time and then I think maybe at this point, you can unmute, we can see you but not here. We do have a couple other folks to circle back with. Okay, you know, I'm going to circle back with her and but return now to Mary Patterson. Sorry did not just find your name right now allowing mic allowing camera now. Ms. Mary Paterson: Yay, success. Ms. Higuchi Sayegusa: Okay and then and to clarify this is on Bill 2822. Ms. Paterson: Bill 2822, that's correct yes, Aloha Commissioners. Thank you so much and I wasn't able to get on before and I just want to mention that it may have been because the mic was not enabled for me, so every time I tried to press the mic button. It said that the presenter had to unmute me. So, I think maybe other people were having the same issue. So, we're on and I appreciate the Commissioners time and what they do for the island. I'm so grateful and I'm glad I was able to hang in here. I am calling about Bill 2822 and I fully support it. I submitted testimony. Both written and oral at the last meeting. So, my position hasn't really changed, but I think the urgency of it has. We are desperately trying to stop more development on open and agricultural land that does not deserve to be there, if you look at the vision and goal of the General Plan, it states that key is a unique and beautiful place, and the protection and preservation of Kauai’s natural beauty is of paramount importance for residents and visitors alike. So, ensuring that our majestic open space and scenic view corridors are protected and preserved is really one of the most important roles of the Planning Department. At a time when the majority of the County residents are against any increase in tourism. It seems paramount that the Commission does 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 of tourist accommodations rental cars and other concerns that that we have with too many people on our roads, that we don't want to increase them. So by maintaining the rural feel of Kauai. Preserving open space and putting less strain on our fragile environment will be something that will benefit from this bill 2822, and it's not only about Princeville, but we might also be too late for the glamping proposal that’s into the Planning Department. But we're not too late for the rest of the island so, even though I live in Princeville. I've firmly believes that this bill should be passed as soon as possible, and I really encourage you all. To do that, and not defer it or deny it. So, thank you so much again for your amazing work for the community and appreciate it very much, mahalo. Ms. Higuchi Sayegusa: Next register speaker re circling back to Bill Schilling. Allowing Mic, allowing camera. Mr. Bill Schilling: Good morning can you hear me? Ms. Higuchi Sayegusa: Yes. Mr. Schilling: Great and can you see me? Yes, you can good. Thank you very much and thank you for your patience, I know it's been a long morning for all of you and uh on a variety of issues. I first came to Kauai some 35 years ago. Now I'm a resident and I really wasn't sure where I would be in 28 terms of understanding the degree of angst by local residents and others regarding the glamping issues, so I said, well, I'll go volunteer and hold a sign up on Saturday morning. This last Saturday morning, which I did at the stop sign as you exit Princeville to the main highway. And I was guessing maybe 100 cars or so would come by in an hour and a half or 2 hours and maybe 5 or 6 people would say you know, I'm really against glamping or they might say something. Well, if any of you had been with me, you would have been as flabbergasted as I was, about the level of anxiousness and anger being expressed by citizens who were opposed to glamping. I counted over 2 years 2 hour stretch about 420 cars and of those, 420 cars. I counted almost 290 is like 196 individuals who either had an aloha has signs saying spot on, people stopped and said, “Sue the hotel group,” People who said, “the Planning Commission has got to vote, yes on this,” individual who asked for the handouts that we had,” one person who was a news reporter stopped and took my picture said, “spot on.” The people who were stopping and saying things, though, we're not just residents of Princeville, there were a great number of tourists as well. It was like I think this is amazing to me and I think it would be into any of you if you'd been there to see. Oh my gosh, this isn't just a kind of casual understanding nor is it a sort of a lightning rod amongst the residents of Princeville. It's amongst people from all walks of life and that's what I saw, I saw people who had surfboards on their cars, I saw people who had brand new vehicles, I saw you know tourist, I guess they're tourists in their Mustang. I think we generally know that that's sort of an indicator of a tourist on the island, and I saw people going to the refuse station, which is what I typically do on Saturday mornings. It was extraordinary, but they think that that many people basically 50% were saying, indicating one thing or another. When I initially thought maybe 20 people max would say something out of 400 cars, so that's my testimony. Chair Apisa: Excuse me excuse me. It's 3 minutes are you able to wrap it up? Mr. Bill Schilling: I just did. Thank you very much and thank you for your time. Chair Apisa: Alright perfect timing, thank you. Ms. Higuchi Sayegusa: Next register speaker re circling back to Eric Taniguchi. I am currently enabling both mic and video camera. Mr. Eric Taniguchi: Can you hear me now? Ms. Higuchi Sayegusa: Yes, and just to clarify, you are testifying about the Kaplan item. Mr. Eric Taniguchi: Yes. Ms. Higuchi Sayegusa: Okay, please go ahead. Mr. Eric Taniguchi: Good morning, Commissioners, and thank you for allowing me to speak this morning. Since my last testimony that I provided to the Commission, this is what has transpired. I was contacted via my cell phone by two individuals who either testified on behalf of or work for the Kaplans. Hope Kalai and Teresa Tico, who is a practicing attorney. I am always solicited these calls they're both inquiring about the sources of my testimony, which is something I found very inappropriate. Teresa Tico’s was called to me was very offensive and that I felt she was trying to intimidate me to get answers and 29 warned me if I was not willing to give her answers over the phone, she would get it out of me one way or another. I subsequently was served with legal papers and as I learned legal action was being brought on me by the Kaplans and their attorneys for my truthful testimony about my knowledge and connection to the Kuleana land in question. This caused my family and me, great anxiety, and financial hardship. As I had to pay several $1000.00 to hire an attorney to defend myself for giving testimony. Later, I was contacted by Ms. Dawn Chang during my workday who represented to me that she was asked by the Planning Department to talk to me. I found it odd because the Planning Department already heard my testimony. I asked her several times, who she was working for? She repeated and stuck to her story saying that she was calling on behalf of the Planning Department. So I asked her, who's paying you? Is the Planning Department paying you? She answered, “no.” So, I asked, you are doing this for free Miss Chang? and she answered “no.” So, I asked Ms. Chang, who's paying you for your services? She finally admitted that she was in fact, hired by the Kaplans, so, I never spoke to her after that call. This past weekend I reached out to Lance Fu, who is the person that knew of this sacred Hawaiian birthing stone and is related to me. Once again, he referred. Reaffirmed to me of his knowledge of an eyewitness of the birthing stone. He assured me of its location on the Kuleana land in question, and that the land had been cleared and the stone was no longer there. He also mentioned to me that workers down there had told him that a woman was going to be contacting him to get information about his knowledge of the area. As of 8:30 a.m. this morning September 14, no one has approached him or his family about information they have as Native Hawaiians and their knowledge of this Kuleana, which I find is quite odd because the property Lance resides on is part of an agricultural, I’ll wrap up. Ms. Higuchi Sayegusa: 3 minutes. Mr. Taniguchi: It's part of an agricultural subdivision that Kaplan has accessed through the property Lance resides on to get to his property. Lance has been associated with this property for 40 years and has lived for 30 years on the property. Lance property line is approximately 300 feet from Kaplans property line. So, in my opinion Lance should be the most important person to Miss Dawn Chang for her report question is why Lance hasn’t been contacted? Thank you very much for your time. Ms. Higuchi Sayegusa: Thank you. I'm going to circle back to Kaui Fu. Second. I enabled both camera and mic. Ms. Kaui Fu: Aloha, I think I finally made it. Ms. Higuchi Sayegusa: Great, I can hear you now. Ms. Fu: Thanks, so much. Aloha and mahalo nui loa to this entire caught your Planning Commission for your precious time, today. It's hot out and I'm working through being here to show my support as the other others in our group, Na Kia Nihoku have to deny permitting of the Green house. My name is Kaui Fu, I'm a resident of Kilauea, a Kauai native, mother of 2, and a student of Po navigators learning and reviving the traditional practice of wayfinding. Today, I come before you all to share my concerns and my worries for the highest buildable property on a unique landform that gives Kilauea its name and characteristic. Today, I bring into the meeting, the wind specific to this crater. The wind name of Nihoku is Au po`o moku. This name is found in the famous mo olele, Hi`iaka I ka poli o Pele in a chant that lists the winds of Kauai. It describes the 30 constant intense trade wind that shears off the tops of vegetation and causes the plants that grow on top of Nihoku to bow down to this force. I asked you. All today to hear my concerns for this special, special place where I've been practicing Kilo the art of observation and weather prediction. Their proposed home is just too big and impactful for the slope of this mountain. I'm concerned for the grading that needs to be that needs to happen to build this house. I worry about the excavation into them into this mountain effects that it has on issues of as runoff and the permit damage it could potentially cause. I have hesitations that the special parameters that govern the use of this land. This specific lot as well as the rest of the buildable lots on Nihoku slope along Makana Ano Place, are not strong enough to protect the resources of Nihoku in its entirety. If we do not carefully weed through the details of this proposal and any future proposal to build, there. We must ensure that what is permitted prepares and plans for important adverse effects of climate change like the loss of critical habitat in Papa hanau moku a kea and how that will force are endemic and Indigenous Manu, Hawaii, the birds, to move toward the eastern end of our archipelago. I've been blessed to be a part of the group Na kia Nihoku, to have cultural access to Nihoku via the Fish and Wildlife Service and we have been working directly with the landowners to share and negotiate and negotiate ideas like what would be acceptable to us? What kind of a building would be acceptable? How far from the setback lines would be good enough for us? What can we do to make it okay for the owners to build something of this size and impact? How many feet do we feel that they have to move the whole house down to be acceptable to our group? We've been grappling hard with these ideas, especially when the proposal details just don't sit right in your not all the initial the initially proposed home is situated right on the building set back line with the roof and retaining Rockwall extending over that setback that boundary. Talking with the community intervenor who initiated these original protections such as setbacks, he said, “I never thought that a house would be permissible to be built this high, up the mountain.” We went to different places around this area from Moloaa to Hanalei looking at new homes in this development and how they could impact the view plane so to negotiate by proposing to move a home 40 feet lower, which means that entire structure and now sits just behind the setback line does not feel like a righteous compromise to further protect this important place and this lot best use of this special district… Ms. Higuchi Sayegusa: 3 minutes. Ms. Fu: Area should be butting homes along the roadside staying far back from the set lines as possible to ensure that we protect those visual impacts and the precious resources on this slope. The lower removed their structures down the slope, the less impact we have on the view pane, and the future structures that remain to be built will remain ha`aha`a below those structures. The landowner and the Commission have this opportunity to impact where things are cited and how big things are. So, I asked somebody for your consideration of these concerns, and I thank you, so much for your time. Chair Apisa: Thank you. Ms. Higuchi Sayegusa: And with that Madam Chair, I think we're at were through the registered speakers for public testimony. Hand it back to Kaaina the clerk and yourself, thank you. Chair Apisa: Thank you very much. Mr. Hull: Thank you Jody and members of the public that are registered to testify. Madam Chair, 31 we would move in next to a review of the… Let me ask this, though Madam Chair, members of the Commission given the content that is on the agenda, there are only 3 items, but they are fairly substantial and weighty and matter. I would anticipate in no less than 3 or more hours to get through the rest of what's on the agenda. Are you folks wanting to take a lunch break at this point in between or prior to starting the SMA review for the Philip and Linda Green application or did you guys want to keep on moving and take a lunch later? I just put that out there understanding the amount of time that you folks are dedicated to this process. Chair Apisa: Is there any of the Commissioners have a preference? We could take a break lunch break now or we could take it after the next agenda item before we went into the ZA-2021- 2, glamping. Are you wanting to continue for one more item? Ms. Barzilai: Excuse me Madam Chair, it's Laura, Commissioner Chiba, could we see you on camera if it's possible. I don't have Commissioner Chiba and my squares, maybe he is on. Mr. Chiba: I am, I'm on. Ms. Barzilai: Okay, Mahalo. Chair Apisa: I think those next 3 items are each one going to take quite a while. Are we Okay? I think we I'd like to proceed with one of them and then take them all lunch break maybe 30 or 45 minutes and then continue, is a Commission or all the Commissioners good for that? Mr. Ako: Madam Chair this is Gerald I'm good with that. Chair Apisa: Okay, I'm hearing no other comments out. Let's proceed with one more agenda item and then we could break for 30- or 45-minute lunch break. Continued Agency Hearing New Agency Hearing SPECIAL MANAGEMENT AREA USE PERMIT (SMA)(U)-2022-1), CLASS IV ZONING PERMIT (Z-IV-2022-1), and USE PERMIT (U-2022-1) for the construction of a farm dwelling unit, guest house, garage and associated site improvements within Lot 11-A of the Seacliff Plantation Subdivision in Kilauea, involving a parcel situated approximately 1,000 feet west of the Pali Moana Place/Makana’ano Place intersection, further identified as Tax Map Key: (4) 5-2-004:084 (Unit 1) affecting portion of a larger parcel approximately 12:305 acres in size = Phillip J. & Linda M. Green. Mr. Hull: Sounds good Madame Chair. For review and action Special Management Area Use Permit. SMA U-2022-1, Class IV Zoning Permit is Z-IV-2022-1, and Use Permit 2022-1 for the construction or farm dwelling unit guesthouse garage and associated site improvements within Lot 11-A of the Seacliff Plantation Subdivision in Kilauea involving a parcel situated approximately 1,000 feet west of the Pali Moana Place/ Makana`ano Place intersection, Further identified as Tax Map Key: 5-2-004:084 affecting a portion of a larger parcel approximately 12.305 acres in size, Phillip and J Linda Green, are the applicants. We have a letter from Yoshito L`Hote, the President Kilauea Neighborhood Association. The Director’s report pertaining this matter, in a supplement 32 No. 1 pertaining to this matter. We also as previously stated during the public testimony section have 141 letters pertaining to this agenda items that are officially part of the agenda packet has been transmitted to the Planning Commission. I'll turn this over to Romio Idica, who's our planner for this agenda item. Staff Planner Romio Idica: Good morning, Madam Chair and Commissioners for your consideration of Class IV a Zoning Permit. Z-IV-2022-1, Use Permit. U-2022-1, and Special Use Permit SMA(U)- 2020-1 for the construction of a farm dwelling unit, guesthouse, garage, and miscellaneous site improvements such as a swimming pool, rock retaining walls, fencing, driveway, and a ground mounted PV. 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: Also, the proposed development will not restrict any public access or recreational areas recreational areas are on the subject property or accessed on Kilauea Lighthouse Road and Kilauea quarry road? Which brings us to the native Hawaiian traditional and cultural rights. There are some concerns with the community about the size and the placement of the proposed development to date. The applicant through their attorney or working on resolving some of the community concerns and working on some agreement to mitigate the communities’ concerns, that concludes my brief summary. Before I read the recommendation is there any questions from Madam Chair or the commissioners at this time. Chair Apisa: Thank you. Romio, I have no questions so any of the other commissioners have questions. Mr. Hull: Romeo, this is just a preliminary evaluation recommendation. I think if there's no further questions for the planner or myself, the Department. I think would be appropriate to turn it over to the applicant to give their presentation. Mr. Idica: Okay. Thank you, Kaaina. Chair Apisa: Commissioners, do you have questions before we turn it over to the applicant? Ms. Nogami-Streufert: Yes, please. I have one question. Romeo, there's an open space easement of 3.154 acres on this lot, which has CPR it into 2 units as I understand it. When you to make the available acreage building does that include that open space easement or does that exclude it. Mr. Idica: Is excluded there's nothing that can be built within that trigger easement? Mr. Hull: No, sorry Romio, to jump in. Commissioner Streufert, are you asking if things can be built in it? or if it's counted in the available lot coverage? I think there are two (2) different questions. Mr. Idica: Yep. Oh, my apologies. 33 Ms. Nogami-Streufert: Was it in the available lot coverage? Mr. Idica: Yes, it is yes, it is. Ms. Nogami-Streufert: So, it decreases the amount of space that they have buildable land that they have? Mr. Idica: Yes. Ms. Nogami-Streufert: And is that where in that a graphical I'm not quite sure I can visualize this, is the open space easement is that on a slope going into the crate to the crater side of it or into the bay side of it. Mr. Idica: Into the bayside. Ms. Nogami-Streufert: Thank you. Mr. Hull: Sorry, just to clarify Commission and Romio. Commissioner, I think the way you phrase the question was, having this included with decreased the buildable area of the landowner is that correct? with the way the way you phrase it. Ms. Nogami-Streufert: That was one of the questions that I had, yes. Mr. Hull: Yeah, so if it was not included in the lot coverage area, it would decrease it. But while they cannot build in it, correct me if I am wrong, Romeo. You still count it in the open available, not to build in but lock coverage calculation. Mr. Idica: That is correct, we used a whole lot of the parcel and lot of record square footage for the lot coverage provided. Ms. Nogami-Streufert: So is this the, so the lot that they're looking at or the 1/2 unit one of the lot is 7.934 acres, that's correct? Mr. Idica: Yes. That is correct. Ms. Nogami-Streufert: Thank you. Chair Apisa: Any further questions from the Commissioners? Hearing none, is the applicant present to give a presentation? Mr. Hull: Jody, the way it looks like it's set up if you're on is that come in Mr. Jung, who is the applicant’s representative has been established as a participant, you have to unmute and allow video to happen. Ms. Higuchi Sayegusa: Yeah, he's able to now. Mr. Ian K. Jung: Good Morning Commissioners, Ian Jong on behalf of Phil and Linda Green. The 34 applicants in this matter. Thank you for your time and patience working through these issues with us this morning. I think what would be best to kind of orientate the property is if I could share my screen, and then we could kind of walk through the area of concern in general and then the project site and explore the plans, but we can get a little hard detail for discussion. Chair Apisa: Thank you, all right sounds good idea, thank you. Mr. Jung: Thanks. I think if the if the Deputy Director can allow me to share my screen. I can kind of help orientate you folks as to where we're at here. Ms. Higuchi Sayegusa: Give us one just 2 minutes about to do that, but Mr. Jung: Yeah, so while we while we wait. I'll kind of jump through my presentation here before I show you sort of the general context of the area. Phil Linda Green are long time, residents here on Kauai. You know, I know some of the testimony you received have vilified them as being newcomers and you know recent movers to the island, which is unfortunate and misinformation. But their goal here is to build their retirement home. They were farmers here on the North Shore for about 17 years, sold their farm and now are in their retirement age. So, when they came to look at this particular property before they buy it. They looked at it, they saw what was established as the 1982 SMA building set back line, and at that point had expectations of what could be built. So going into this, we had some significant community outreach first, we started with the Kilauea Neighborhood Association, where we showed the board and in these trying times it's difficult to do community engagement because we have a situation where most of these things are via zoom now. So, the engagement isn't as what it probably should be. But we did get a presentation before the KNA in December of 2020, and then it took until May of 2022 or 2021 to get the unanimous approval for the project. And then thereafter, we engaged with Mehana, Doctor Vaughn and her group and we reached out to them through the Ka Pa`akai Analysis, which allows for applicants to engage and consider the scope of what cultural resources may be on the property as well as what impacts there may be and how you address those impacts through reasonable mitigation. The Ka Pa `akai Analysis you know, it's been tossed around here quite significantly in the in the Planning Commission discussion. You know, we did this on our own and we felt it fair to share. Ms. Cox: No. Ms. Nogami-Streufert: Did we lose Ian? Ms. Barzilai: We lost the live streaming. Mr. Hull: All of these we just had a glitch there …give us give us a minute or two. Mr. Jung: I'm back. Sorry about that, I don't know if that was me or what. I'm not sure I left off. But if I'm allowed Jody, am I allowed to utilize the screen yet or is that still not operable. Ms. Higuchi Sayegusa: Sorry. You know bear with us as we try to stretch the limits of teams at this point, we, we, we just can't do it sorry about that. Mr. Jung: So, when you well where else where I left off is when we're engaged with community on 35 this, we wanted to at least make clear what concerns were raised as we went through this process, and we and we attached the early concerns that were raised that Mehanna, shared with us, and we attached him as an exhibit for you folks all to see. So, these concerns are real concerns, their concerns that the Green certainly appreciate and understand. But what where we started and it's no offense to the community or even to any cultural practitioners, is that there was this existing building set back line that was set up through a contested case hearing in 1982 and Seacliff Subdivision was approved. And so. what was noted also on the map was an open space easement of about three (3) acres and I think one of the testifiers hit on it today. There are three (3) lots in the Seacliff subdivision that were acquired as a part of the when Senator Inouye was involved in in trying to protect the area next to the Kilauea Lighthouse corridor. So those three (3) lots are all adjacent or two (2) of them are adjacent to the Green’s residents. But the home is not located up on the top of the block the 1982 Subdivision Conditioned and SMA Condition required that the home doesn't Crest above the tree line that existed at the time and I included that Condition into my application. If I can share, we can show that, but if you take a look the exhibits in my application. They're shown in exhibit D, and that'll illustrate the sighting of the home. So, as we went through, and our community engagement process, we met with Mehanna or my client Mr. Green and Linda Green met with Mehana, Billy, and Ka ui on site and they discussed where the project site would be. And then later in May of 2021, we met again, and then again, to discuss you know opportunities. I personally met down at the Kilauea Ag. Park with about fifteen (15) concerned citizens who raised their concerns. And then again, we met with Doctor Vaughn, Gen Waipa, and Uncle David Sproat up on the property. And at the time, the concern was, they raised four (4) concerns. Number one was, the location in sighting of the home and where can we locate insight the home? And at the time, we offered a 40-foot reduction of the home down the mountain to basically establish a new 40-foot set back based on the previously established building set back line as a part of the old subdivision. We also discussed later, moving it down 60 feet from that building set back line and over and across from the building set back line. That and I'm sorry, the open space easement sign that's on the western side of the property that Commissioner Streufert noted. So, when you look at the plan set exhibit D the building footprint starts to narrow, and as you bring it down the Planning Commission allocated two (2) dwelling unit rights to this particular lot. Did you bring it down? You would essentially negate the second dwelling unit right if you brought it all the way down to that flat section that would be allocated to unit one versus Unit 2. So as a part of our discussions, and we emailed the slate of Conditions that would be used as sort of a template. We offered four (4) things. Number 1. bring the property down 60 feet and over and across by 40 feet. Number 2. we offered to lower the pitch of the roof, which was also one of the concerns and then number 3. we offered a conservation easement because it’s very clear from the testimony today that although there's no physical activity on the property from any cultural practitioners that's known to the applicant or even the prior developer. In the project area there is concerns about how these folks view the birds and the flyways that these birds go over as well as the wet weather patterns. So, one of the concepts we came up with was to establish conservation easement in the area behind the building set back line. It's in their eyes it's you know, not giving up much because there's no dwelling unit that can be built back there any structure, but it does help in aiding with kind of reestablishing avian species habitat and the Greens are our AG folks and they're willing to assist and work with Fish and Wildlife to reengage and establish habitats that may be conducive for the area. And then the last thing is, we agreed to reduce the size of the unit one CPR and hold and 36 amend that CPR line, so it's narrowed a little further and then that would allow the house to come down the hill somewhat. So, we could have still reserved the right for the rightful second dwelling on the unit closer to the road. This so, the road that goes along there is Makana Ano Road, there have been two (2) homes along this road that had been approved by the Planning Commission. One, as recently in December, which was the Barker home, that home was approved up there on the top lot on the eastern side and then the next lot over is right adjacent to the Greens as an existing home there that was approved looks like in 2016, at some time ago. So, we're at the point now where we're trying to continue to negotiate with Mehana, who has agreed to kind of take the lead with her organization and try and find solutions and that's the part of the planning process where we listen and learn, and we try and find solutions. One of the things that were obviously trying to work through is that the building site there, it's all where the plan is proposed its mowed grass so there's no vegetation that would have to be removed or trees that may disturb existing habitats. It's all mowed grass so the project site is as proposed would have less impact on any ecological perspective from any removal of vegetation. If the home is moved across and over and down a lot, then we'd have to start removing some nonnative vegetation 's all Christmas berry and small shrubs. But that would have to be removed, which kind of creates a natural windbreak as well as it may have habitat for some kind of avian species up there. So those are all the considerations we’d have to evaluate if we moved to home further down. So with that, said, I don't know if Jody, are you able to then release the screen or is that not possible. Ms. Higuchi Sayegusa: Sorry at this point, it's just yeah, we've tried. Mr. Jung: Okay, so jumping into the plans then it's been represented that the home is a mega home at 12,000 square feet. You know that's not the case, that all the roofs combined return to 12,000 square feet of roofing and that includes the residents, that includes the garage, and that includes the guest house. The home size is for the actual residence is 4,586 square feet of interior space and we have the 500 square foot guest house. And then we also have an 1,800 square foot garage and then there is the pool as well as covered lanais that amount to 992. So, it's the roof footprint is what is being represented as the Mega home but that's the roof footprint combined, the host the home is similar in size to what you folks recently approved for the Barker Residence, which I think that one was about 4,300 square feet. Some of the other components of mitigation that we proposed in our plans is to address the agricultural concern. As I noted, Phil Green and Linda Green are Ag folks, they engage in Ag if you look exhibit D, on the application that there is a substantial Ag plan that discusses all the program that was going to be on there and I won't go through the list. But in addition to that, we had view claimed mitigation elements to address the view plain and have an abundance of vegetation to be grown to help mask or visually mitigate any visual impact from the structure. So, there is a substantial thought that went into defining where we would flat certain things to the mitigate view planes looking up from Kilauea at town and across over from the Kalihi Bay Area. One of the things that was raised by the community group is where they engage up on the top of the Hill is they had concerns about looking down onto the house and we are open, and we offered them to come up and work with us on a landscaping plan that would help visually mitigate the impact of the of the home looking down as well. We are fully engaged with certain members of the community, not all of the testifiers. But we're happy to continue that discussion as well as trying to find solutions. And I think Mr. Green would like to stay at say a few words and then if it is possible, I can try and if they do get it working, I could put up an exhibit that shows that the 37 constraints that are already on the property. I think Jody, if you could release Phil Greens. I guess I'm still on here, but we do have Phil Green available. He wants to make a statement to the Commission if it's possible to release him as well. In the meantime, while we wait for that, I’m happy to answer and address any questions, you folks may have? Chair Apisa: Commissioners, there is an opportunity to ask. Mr. Jung if you have any questions. Mr. Hull: Sorry, Madam Chair just give us one second, Jody is really seeing Mr. Green to have ability to provide a statement. Chair Apisa: Thank you. Ms. Higuchi Sayegusa: Should be enabled now? Mr. Hull: Mr. Green your speaker and microphone have been enabled; you may have to unmute yourself. Mr. Green was still showing you as muted you're able to speak, but you must unmute. I guess we can check. Mr. Jung: Yeah, I guess, yeah, I'll jump back in here, he's he just sent me a message that he's unable to unmute, so I guess it's controlled somehow, but while we wait for him, you know, I don't want to waste anymore of your time, so if you want to ask any questions about the project or the design, I'm happy… Mr. Phillip Green: Generally, click can you hear us? Mr. Hull: Right. Yeah, we can hear you, Mister Mrs. Mr. Green: Okay, good. I clicked it a few times. I appreciate the opportunity to testify before the Planning Commission. My wife Linda and myself have lived on Kauai for 17 years. Owners of Kauai organic farms 45-acre farm, many employees, Organic Ginger, Turmeric, and had plenty of employees and I feel like we were real good stewards of the land and our proposed… Chair Apisa: I'm excuse me are you able to start your video as well or is that. Mr. Phillip Green: No, I can't it won't, it won't there's no access to it and I can't turn it on. Chair Apisa: Okay, thank you for trying, thank you. Mr. Green: I would much rather put a face to what I’m saying. Our proposed home is within the scale of other Seacliff homes currently in Sea Cliff and smaller than some already built. We spent over a year, designing the house with our architect but we have been working with Mehana Vaughan and her group since the beginning of summer. We've offered to move the house down 60 feet from our allowable building set back line to 40 feet to the East from our current 3-acre easement. That's the open space easement. We bought the property with open space easement on it. We've offered to do another conservation easement behind our building site, which is approximately 4 acres additionally, so that would be over 7 acres of conservation easements. It's been difficult to reach a compromise with Mehana as there has not been any substantial counter 38 offerings to our offers, so we thus far have not been able to reach a solution. Also, new people and merge in the discussion at each meeting with Mehana and everyone has their own ideas. If they could show us on site what they could be willing to accept that would be a positive step in finding a common ground in other words, we've thrown ideas out to them, but it's never what she wanted to hear or she just hasn't come back with any concrete ideas about how far removed the house down other than to put the house on the 4-acre site, which we didn't design the house to be on in the first place. Thank you. Do you have any questions? Chair Apisa: Commissioners. Open the floor to questions of the presenters the applicant. Are you on mute? I expected there will be some questions? Ms. Cox: Yes. Mr. Ako: Yes, so I have a question. Ms. Cox: So, Commissioner Cox. I don't I'm not sure this is for the applicant, but I do have a couple of questions. One of them it has to do with the traditional and customary Hawaiian practices. It doesn't appear we heard a lot about that in the written and oral testimony, but I don't know that we have any official analysis of that and the same thing for the birds. We don't have anything from Fish and Wildlife, even though we have a number of other people talking about it, but I'm just wondering why don't we have analysis from either of those Conditions or issues? Mr. Hull: Yeah, thank you Commissioner, though the Department is required to get the Planning Commission, a report with a preliminary evaluation recommendation. So, what you have is a preliminary evaluation of this site, a lot of things have come out in the public hearing which is the Agency Hearing and that's the exact purpose of agency hearing. Where additional things may come out concerning of various aspect various aspects of compatibility whether it be with the surrounding community, the surrounding environment, cultural practices. So yeah, we were the Department is definitely hearing he large volume of input and may warrant follow-up beyond this meeting. Ms. Cox: Thank you. Mr. Jung: Ms. Cox, I think I can address that if you take a look Section 15 on page 40 of our application. We did so there's a lot of misnomers about what a Ka Pa `akai analysis is, and the point of it from a 2000, Hawaii Supreme Court case was you need to engage the community and ask the case lays out 3 points to ask, right. Number 1. identified and scope what the potential Cultural practices that are occurring on the property. Number 2. you know how are these practices affected by the proposed project? And Number 3. Is how is there a reasonable protective measure that can go into play to allow the project to go forward? That's the 3-part test of a Ka Pa `akai Analysis. The 4th prong that we typically put into our analysis, if there's any known burials because that could also lead to another question of a lineal descendant rights to go and visit the site. So, we did analyze that and as a part of our Ka Pa `akai Analysis, Mr. Green went out there and met with Mehana, Billy, and Ka ui to discuss the project and the potential impacts it may have. You know, we did tender out that these are the questions from that, we'd like to get information on but oftentimes when you do speak with certain individuals, they feel that the questions are/or can be disrespectful. So, you know it's a challenge for applicants to follow through on what the 39 requirements are, but we did want to be honest with the responses. So, we attached to our exhibit M the responses we got to our questions and those are included in our application. And then with… Ms. Cox: And I very much approve sorry, go ahead finish. Mr. Jung: Okay, and then the second issue that was raised was about the ecological impacts. You know, and typically if there's certain tree habitats or nesting habitats. Then you would do a full ecological analysis of the project site in subject property. But this project is proposed property is fairly constrained where you have a building set back that takes up about you know almost 40% of the property and then another 10% of the property is for the open space easement. But the Fish and Wildlife maintains so the area of the buildable site is mowed grasslands and so we followed the 75- acre parcel that what they did for their project in terms of how this area was identified with flyways. And the mitigate if Condition, we recommended is that we could make sure we have downward shielded lights, as well as and I spoke with other concerned community members on making sure lamps are not situated in front of windows, so you could have a minimal impact to certain flyway areas, especially during fledging season. But also, as a part of our review, we were willing and open to working with Fish and Wildlife and Mehana 's organization to work on establishing habitats in the behind the open space easement area and create habitats that could encourage avian species to nest and take part on that piece of property up on the top that cannot be built on anyway. So those are the sort of the analysis points we brought up in our application to address some of the concerns that were raised. Ms. Cox: No, that's why I didn't think the question was really to the applicant. Thank you, Ian. It's clear to me that the application did look this in my mind that does not take away from the need for the County to do our due diligence. To me, it's very similar to the Kaplan case that we, we felt like there needed to be something done by the County to look these things and officially, so I appreciated kindness plus, point that we just aren't at that point, yet, but I think we do need to as the County needs to do due diligence looking at these matters. In addition to you as the applicant, and I very much appreciate the fact that the applicant has been has done this due diligence. Mr. Ako: Madam Chair, I have a question. I think the question might be for Mr. Jung. I know a lot of the testimony that came in this morning had to do with the house being too high up and onto the property, and I know you had mentioned that you know had I guess tried to mitigate it by bringing it further down. But by bringing it further down, does that create more concerns for maybe a different group of individuals? And are you too close to the water or? Mr. Jung: No. So, if I wish I could show the screen because I could illustrate how it all works. It's all grassy down there. So the area that is being spoke of is a lower flatter area and it's not flat, because it is, you know it's on the foothill of Nihoku or Crater Hill, but there if the opportunity to bring it down is there, it would eliminate the right for a home site on unit 2 because it's a 2-unit condo condominium or if it's situated to a point where you could still reserve a unit site there, it could be brought down further. We would just have to reevaluate the drainage system, because obviously we want to make sure we can retain if not all, most water on the property after the grading plans are set, and typically in these types of situations, you would have a retention state systems or detention systems that would contain the water, which are like little dips where water can be stored temporarily after a big rain events. So those are some of the considerations we'd have 40 to look into if the home were relocated further down than what we propose at 60 feet. Mr. Ako: It's more than just taking the current plan that you have now and just moving, it down. It's a little bit bigger than that. Mr. Jung: Yeah. They would have to be some probable redesign items, we tried. We had the architect you know, when we proposed the 60-foot protection. We had the architect kind of situated and I wish you know if I could show you this you could see the distinction between where it was cited on the on the plan and then what 60 feet does, and what 60-foot set back does, it does help with the view plane because it drops at topographical level at 425 down to about 410. So it comes down about 15 feet you know, from an elevation standpoint, so there is a significant drop. Mr. Ako: Thank you. Mr. Jung: Sure. Chair Apisa: Thank you. Commissioners, no further questions? Ian, I would like to comment and to the applicant that you know you have reached out to the community and that is appreciated that you're doing some due diligence there. Mr. Jung: Yeah, we're happy to continue that dialogue as well. Chair Apisa: Okay, I'm hearing no further questions like we would go back to the planner. Mr. Hull: If I might Madam Chair, I think as the discussions have evolved and I was pointing out earlier. You know there's been a lot, that has been brought up at this hearing, if with your discretion, I'd like to ask, Doctor Vaughan being that she's kind of been pinpointed as somewhat of the resource in discussions with various cultural ecological concerns. If I could ask Doctor Vaughan if she had reviewed the applicant’s proposal and what she and her group thought of it, if you're okay with that. Chair Apisa: No, I think that would be very helpful if she prepared to give us her comments. Mr. Hull: Let me bring her back into the meeting. Aloha, Mehanna, are you there? Dr. Mehana Vaughan: Aloha, I'm here can you hear me? Mr. Hull: We could hear you I did enable your camera if you wanted to turn on your camera system as well. Oh, there, you are. Ms. Vaughan: Can see me. Alright, well thank you for your questions and thank you for the opportunity to comment. First of all, I just I really want to say thank you to the applicant for their due diligence to Ian Jung as well, he's been amazing to work with. We are all new to this, so we are getting into it, and they've been, the applicant has been patient and wonderful to work with and we're very grateful. I will say that the most recent Conditions, they offered, we offered six (6) Conditions in writing substantive, including decreasing the size of the house, lowering it substantially minimizing impacts of excavation and grading, lower pitch on the roof, proactive 41 efforts to protect bird habitat and restore and protect them in perpetuity. This current offer is the first real substantive it's a very positive move in the right direction. We're really grateful earlier you know, and it only came in Friday night. So, I just want to say that to for one person to represent the whole community and the sorts of concerns you've seen in testimony written and oral today is difficult, and I've transmitted all along to the Greens that we will, we are going to do our best and that our process requires time, to consult with experts on the questions you asked about, and with Kupuna who worked on this property throughout their lifetimes, with friends in the Fish and Wildlife Service. Some people have testified as private individuals, there's no official way in from Fish and Wildlife, but there's definitely concerns and interest and to especially walk the site and spend time on the land and look what it means. I just wanted to briefly address a couple of your questions or really important. We have agreed with Commissioner Cox that it's difficult without ecological studies and a thorough cultural impact assessment to make determinations. The Ka Pa `akai Analysis responsibility sits with you as government. A government agency, this is your constitutional affirmative obligation to protect traditional and customary rights. The applicant, I think was very well, meaning and asking us the three (3) questions. But when we were invited to the property we just said, we had concerns and wanted to, need a place and were invited to be shown around. We had no idea that was part of a Ka Pa `akai Analysis. We were not told that or made aware and that was just a well-meaning mistake by an applicant trying to do the right thing in a difficult area of law. But this obligation rests with all of you and I really want to congratulate Planning Department’s staff and leadership because Kauai is leading in this area. You are trying to do a really good job in other instances that have been difficult here, so thank you for that. I just wanted to mention too, that the question about whether the lowering to the second lot or lowering substantially would create other problems it. It creates other solutions, because it the lower parcel is flat and so, and the land gets flatter the further down you go. Please visit, if any of you ever want to visit, we are happy to you know, show you the essential area and it's up to the Green’s if you walk on their land. But it takes a good 10 minutes to walk from the bottom to the top. It's very, very steep so lowering it as low as possible mitigates impacts substantially because it reduces excavation and grading, it reduces drainage and erosion problems, so it reduces the need to catch water, and all of those things and creating an excavation are the main concern for ground nesting birds. There are already birds nesting surrounding the site and even in spots on the land. Luckily, mowing is good for some birds as is restoration of native plantings and the Greens are interested in both of those things Mr. Green is an amazing hard-working farmer doing so much work on the land himself so there are opportunities for that. The question of whether it was okay to clear vegetation to make space for the home lower down on our site visits. Everyone present, including people with ecological expertise and bird expertise agreed that it was Christmas berry shrub, it was absolutely fine and advantageous to the birds to clear that out, so there is opportunity for space to move and to still meet the Greens basic needs. Some of which I've heard expressed are for privacy, for safety, to be able to do agriculture. And you know, and these things are very important to us. We recognize their rights to build, we are grateful to continue to work with them. I think I've got all the other questions addressed that you asked. The visibility issues also take time as cited the home is visible from the East, which the set back on the highway coming from Pila`a and Anahola, which the setback disallows as well as from the Kilauea roadway as you come around by the lighthouse and from Kalihiwai and other areas. So, I guess our overall sense is that there are many unanswered questions and a lot of evidence. That's missing and we don't want to be hasty. We also really respect how difficult this process is for the Greens, this is a surprise to them; they've been doing their best and I guess I would say to that, other lots in the same special treatment district area and open zone at Nihoku have moved ahead through this body. They did not come through the Kilauea 42 Neighborhood Association. That is not the Greens fault. But we're grateful for you following helping to follow that process where it's directed to the community. The existing house that's there is really different. It's 3,200 square feet versus 12,000. So luckily that's all that's been built to the Barker residences approved but we will, we do want to reach out to them. It's not built yet and just say you know; you have these developments and entitlements. But these are these are things you should know about this place and maybe there's some willingness to adjust their too. Even though it's already permitted. We believe in fairness. Everyone is trying to make this process better. This house is not yet permitted and there's so many layers and special overlay. We're all working to protect. Mainly, we're grateful for more time to work with the Greens They and Ian Jung had been amazing you can see many community members are committed to this we're hanging in and volunteers. We care and we're happy to work with everyone involved so thank you so much. Mr. Hull: Thank you Doctor Vaughan. Chair Apisa: I guess I would have a question of Mehana. You mentioned that you need time and in fairness to the property owner, I mean, we can't have it lasts forever, so do you have any idea on how much time you're saying you need? You're muted. Ms. Vaughan: Thank you for that question. It's essential in fairness to the property owner. We don't want it to drag on as other issues have before this Commission with other landowners. I outlined the process each time we go through this, we would want to respond to their latest offer in writing as Mr. Green has requested. Our hope would be that we could work something out. Ideally, by the next Planning Commission hearing if possible. We also feel that some of these sources of additional information on the ecology and the cultural impacts are vital, but we would want to do our best and definitely not have this drag out beyond this 2021 year, at the worst and would love to have something substantively moving forward by the next hearing, if it all possible. Mr. Hull: If I could add to that Chair. While we absolutely respect the Doctor Vaughan and her group and other community members willingness or openness to find possible solutions with the property owner. I'll be honest, the next Planning Commission meetings October or September 28th and given the publication requirements or documents. We have to have the documents ready in 7 to 10 days, which while the community group and the applicant may be able to come to some type of solution approach, then I can say that the amount of testing the type of testimony was provided at this hearing. The Department is going to need more than 7 to 10 days to digest, reassess, and make analysis of. So, the next following Planning Commission meeting is October 26th, so I ask if the Commission is Okay with that. But there's also 2 days beyond the 60-day window for action on a on a use permit so we have actually have to ask for the applicants consent to. If the Commission is willing, but I have to ask for that for live events consent to defer to the October 26 meeting. Mr. Jung: Yeah, so this is the Ian again, on behalf of the applicant. So yeah, I don't want to end up like your next agenda item, so I think we'll be happy to consent to October. 26th meeting date and the whatever it is the two data extensions of a 60-day timeline. Mr. Hull: So sorry, Chair, So Ian you’re the applicant are you okay with consenting to waiver of the comprehensive zoning ordinance and administrative rules of Planning Commission for timeline requirements for use permits. 43 Mr. Jung: Yes. Mr. Hull: So, with that and Commissioners you may have more questions of the Planning Department or of the applicant or if Doctor Vaughan. But just say at the end of it of this. The Department 's ultimate recommendation. We recommend deferral of both the Agency Hearing and the Action Item to October 26th, 2021. Chair Apisa: Would we then wait to get the planners recommendation until that time. Mr. Hull: I can say yeah, that would be appropriate because. We do anticipate a further assessment, which may warrant changes in recommendations. Chair Apisa: I would just like to state again appreciate both sides being open up first of all the applicant being so considered of the… The community and everyone for working together on this. It's an It's a pleasure to see that. Mr. Jung: Yeah, I know where we're happy to continue. Ms. Nogami-Streufert: I do think that there's a lot of respect on both sides and that that's very refreshing to see. So, I moved to defer this matter until the October 26 is that correct? October 26 meeting. Mr. Hull: That’s correct, and Madam Chair, Commissioners Streufert, if I go to request just salient point, we requested there are a deferral of the agency hearing and the action item both be made to October 26, so essentially keeps the agency hearing open. Ms. Nogami-Streufert: I so move. Ms. Cox: I second the motion. Chair Apisa: We have a motion on the floor to postpone to October 26, the Agency Hearing and the Decision. Hearing no further comments. Are we ready to take a vote, Kaaina? I'd like to take a roll call. Mr. Hull: Roll call Madam Chair. Commissioner Ako? Mr. Ako: Aye. Mr. Hull: Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? 44 Mr. DeGracia: Aye. Mr. Hull: Ms. Otsuka is excused. Commissioner Streufert? Ms. Nogami-Streufert: Aye. Mr. Hull: Chair Apisa? Chair Apisa: Aye. Mr. Hull: Motion passes 6:0, Madam Chair. Chair Apisa: Thank you very much and so I think before we move on. I think the lunch break is appropriate. How much time do people do you feel it is 30 minutes enough for you need 45? What do you need? I'd like to move in on it as quickly as possible. Ms. Cox: 30 sounds good to me. Ms. Nogami-Streufert: 30 is great. Chair Apisa: Alright, we will learn. Mr. Ako: Good. Ms. Nogami-Streufert: Thank you, and thank you into Ian Joan at the same time, please. Ms. Cox: Yes, thanks Mehana, thanks to all of you. Ms. Vaughan: Thank you all so much Aloha. Thank you for your work. Chair Apisa: We will take a lunch break and return at 1:10 this afternoon 1:10 p.m. The Commission recessed this portion of the meeting for lunch at 12:39 p.m. The Commission reconvened this portion of the meeting at 1:13 p.m. Chair Apisa: Call the meeting back to order after the recess. Mr. Hull: Madam Chair, I believe we have all the commissioners on, so whenever you are ready to gavel in meeting back into session. Chair Apisa: Thank you. I call the meeting back to order. Kaaina, could you do a roll call please. Mr. Hull: Yes, Madam Chair. Commissioner Ako? 45 Mr. Ako: Here, I’m sorry here, I’m by myself. Mr. Hull: Commissioner Chiba? Mr. Chiba: Here by myself. Mr. Hull: Commissioner Cox? Ms. Cox: Here by myself. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here by myself. Mr. Hull: Commissioner Streufert? Ms. Nogami-Streufert: Here and by myself. Mr. Hull: Chair Apisa? Chair Apisa: Here by myself. Mr. Hull: You have a quorum, six present, Madam Chair. Continued Public Hearing ZA-2021-2: A bill (2822) for an ordinance amending Chapter 8, Kauai County Code 1987, as amended, relating to Transient Accommodations. The proposal amends various articles of the Comprehensive Zoning Ordinance (CZO) relating to transient accommodations = Kauai County Council. [Director’s Report Received, hearing continued 7/13/2021.] Mr. Hull: Okay, Madame Chair, this is the continued public hearing for ZA-2021-2, A bill (2822) for an ordinance amending Chapter 8, Kaua‘i County Code 1987, as amended, relating to Transient Accommodations. The proposal amends various articles of the Comprehensive Zoning Ordinance (CZO) relating to transient accommodations. The applicant is the Kaua‘i County Council. In addition to the public testimony that you heard this morning, as well as the other public hearing that we held approximately two (2) months ago, we have received and attached for you folks forty (40) letters pertaining to this matter as well as a Supplement #2 to the Director’s Report. I will turn this matter over to Marisa Valenciano, our Planner for this zoning amendment. Thank you, Marisa. Ms. Valenciano: Aloha, Madame Chair and Members of the Commission. I am going to go ahead and present a summarized version of my Director’s Report. Just as Kaaina mentioned, the action required in the action before you is consideration of an ordinance to amend Chapter 8 of the Kaua‘i County Code 1987, as amended relating to transient accommodations. The applicant is the Kaua‘i County Council and a zoning amendment is triggered for changing the text in the existing Code. Just as a recap, at the July meeting, the Department asked to defer this agenda to allow for further analysis by the Department, community groups, and other governmental agencies. In the July draft bill, we amended the definition and use table sections related to developed campgrounds. The 46 major proposed changes included eliminating the use permit requirement for developed campgrounds in the open and agricultural zoning districts, while permitting the same use in the commercial and resort zoning districts. Today, the Department is proposing a revised draft bill and the main amendments is to restrict developed campgrounds in the commercial zoning district and to remove any reference to organized recreation camps. Upon further review of the July draft bill, the Department determined that developed campgrounds may not be appropriate and compatible within existing commercial areas and would be better suited in the resort zoning district. Furthermore, in taking a closer look the open zoning district, the Department is proposing to eliminate organized recreation camps as it used similar in nature to a developed campground. Doing so and removing reference to this use may close a potential loophole and further restricts its use from encroaching onto open zoned lands. Finally, the Department is aware of public testimony received related to deferring action on agriculturally zoned lands, but the Department’s recommendation at this time is to eliminate the Use Permit requirement for developed campgrounds within the agricultural zoning district. This summarizes our Supplement #2 to the Director’s Report, and I will hold for any questions you may have. Thank you. Mr. Hull: So, unlike the previous application, there is no applicant presentation before you. It is just the bill and our analysis. If you have any questions of Marisa or me, we are here to answer them. Chair Apisa: Thank you for pointing that out, Kaaina. I think some people that it is specific to the Princeville “Glamping,” but it is not, and it is a general bill that would affect the entire County. Mr. Hull: That is correct, Madame Chair. Thank you for that clarification. This is in fact…while we did receive a lot of testimony concerning a specific glamping proposal at the Princeville area, this draft bill relates to all open and agricultural lands across Kaua‘i. Ms. Cox: Just as a point of clarification, the Planning Department’s version is different than the Council’s version. Can you just explain why the changes exist? Mr. Hull: Marisa, do you want to go over that? Ms. Valenciano: Sure, I can take an attempt at it. Basically, the Council version was originally presented at the July meeting and then from that the Department made a few minor tweaks to it. That was all that was really presented at the July meeting. We just distinguished between the Council version and the Planning Department’s version in July. From that version we revised it to the September version. Ultimately what it is, just again as I mentioned, we are just on second thought taking out developed campgrounds in the commercial general zoning district and then also removing all reference to organized recreation camps as we believe that would be a potential loophole and is similar in nature to developed campgrounds. This would further restrict these types of uses from encroaching into the open zoning district. Mr. Hull: I will just add too, the original bill that came from Council actually addressed not just somewhat how to prohibit glamping or what would be developed campgrounds as Marisa went into outdoor recreation camps on agriculture open lands. There was a part two to the original bill and that was also to prohibit vacation rentals in the open and agriculture districts in the visitor destination areas (VDA). The Department determined that there are no agriculture districts in the 47 VDA, but there are open districts in the VDA. While the Department is not necessarily objecting to looking at a policy to prohibit vacation rentals in the open district in the long-run, at the same time, the County’s and the County Attorney’s position as of several years of late that the open district in the VDA outright allows vacation rentals in the VDA today and in fact there are existing vacation rentals in the open district in the VDA which means that if we prohibited them, we would be taking a very strong policy change which I am not saying we are adverse to, it would mean we would have to spin up a non-conforming use program for those open district transient vacation rentals (TVRs) that exist today. Right now, the Department is not ready for the staffing and resources it takes for a second non-conforming use permit. I did convey this to the introducers of the bill, both Planning Committee Chair Chock and Planning Committee Vice Chair Evslin and at least in conveying it to them, they had no objections to removing the vacation rental in the open VDA discussion for now. Ms. Cox: Thank you. Mr. Ako: So, I guess Marisa, I had a question. I think it might just be a procedural question. Before us today is to act upon, to approve or not to approve a zoning amendment? Is that what it is? If the amendment is passed, it goes as a recommendation to the Council to pass it as an ordinance? Ms. Valenciano: I believe so. Mr. Ako: That sounds kind of… Mr. Hull: Yes, Commissioner Ako. Mr. Ako: Do you need a zoning amendment before it goes to the Council? Hypothetically, if it is voted down today, there is no zoning amendment approval, does it still go to the Council for their passage? Or do you need approval of the Planning Commission? Mr. Hull: Sorry, Commission Ako. This was initiated by the Council. They initiated a draft bill zoning amendment. All matters relating to any amendments to Chapters 8, 9, and 10, which are within the purview of the Planning Commission, all those are required by law to be referred to the Planning Commission for its review. If ultimately the zoning amendment is denied, it still goes up to the County Council and they can still take action through a different course than the Planning Commission chose, but the Commission is quasi-legislative at this juncture in which you are advisory to the Council. Mr. Ako: Thank you. Got it. Mr. Hull: Procedurally, as the Department Director, I am recommending with Marisa, this position of amendments to you folks. Should the Planning Commission decide to take different action than our recommendation, it would then go up to the County Council. As your Clerk, I am also bound to represent and support the position you folks go if you choose to go in a different direction than the Department. I hope that makes sense. Mr. Ako: Okay. 48 Chair Apisa: Any further questions from the commissioners? Ms. Nogami-Streufert: Is there a presenter here today, regarding this? Mr. Hull: We are it. Chair Apisa: Commissioners, does anyone have any questions? Otherwise, it will actually be a short time here. We will just go to entertain a motion if we do not have any further questions. Ms. Barzilai: Madame Chair, it is Laura from the County Attorney’s Office. Can you hear me? Chair Apisa: Yes. Ms. Barzilai: Just to clarify for you in terms of the motion. What is before you, if you would like to adhere to what the Director has presented, is the Planning Department’s version of the bill and not the Council’s version of the bill. Two (2) version of the bill were presented to you and with removal of the TVR language from the VDA, what is before you are the Planning Department’s version. The motion would have to be phrased that way. Ms. Cox: I will take a stab at this. This is Commissioner Cox. I would like to move that we approve bill 2822, the Planning Department’s version and that is for ZA-2021-2. Ms. Nogami-Streufert: Second. Chair Apisa: I believe that was Commission Streufert with the second. Ms. Nogami-Streufert: Yes. Chair Apisa: Thank you. Are there any further comments? If not, we will go to a roll call vote. Mr. Hull: Roll call Madame Chair. Commissioner Ako. Mr. Ako: 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 Otsuka is excused. Commissioner Streufert. 49 Ms. Nogami-Streufert: Aye. Mr. Hull: Chair Apisa. Chair Apisa: Aye. Mr. Hull: Motion passes 6:0, Madame Chair. New Public Hearing Mr. Hull: Next, we have up the Director’s sorry. We have no New Public Hearing. 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 on Tuesday, September 28, 2021. CLASS IV ZONING PERMIT (Z-IV-2022-2) to allow renovations to the existing building to convert commercial retail and office spaces into residential units on a parcel in Hanapepe Town, situated on the Makua side of Hanapepe Road, approximately 550 feet north of the Hanapepe Road/Hana Road intersection, further identified as 3731 Hanapepe Road, Tax Map Key: (4) 1-9-004:015 and containing a total area of 6,808 square feet = Jon & Elizabeth Von Krusensteirn. Mr. Hull: We have next is the Consent Calendar, which just has one item on it, and being that it is a Consent Calendar. We just need a motion to accept the consent calendar unless a commissioner would like to remove an item off the consent calendar to discuss. Chair Apisa: Do we have a motion to approve the Consent Calendar as presented? Ms. Nogami-Streufert: I moved to accept the Consent Calendar as presented. Ms. Cox: Second. Chair Apisa: All in favor? We can take a voice call on this. All in favor? Aye. (Unanimous Voice Vote). Any opposed? Hearing none opposed. Motion carried 6:0. EXECUTIVE SESSION EXECUTIVE SESSION: The Commission may go into executive session on a agenda item for one of the permitted purposes listed in Section 92-5(a) Hawai’i Revised Statutes (“H.R.S.”) without noticing the executive session on the agenda where the executive session was not anticipated in advance. HRS Section 92-7(a). the executive session may only be held, however, upon an affirmative vote of two-thirds of the members present, which must 50 also be the majority of the members to which the board is entitled. HRS Section 92-4. The reason for holding the executive session shall be publicly announced. Pursuant to Hawai’i Revised Statutes Section 92-4 and 92-5(a)(4), the purpose of this executive session is to consult with the 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 a legal case captioned: In the Circuit Court of the Fifth Circuit, State of Hawai’i: Michael Kaplan, Trustee of the Michael A. Kaplan Revocable Trust, dated August 12, 1992, Appellant v. County of Kauai Planning Commission and County of Kauai, Appellees; Civil No. 5CCV-21-0000057 (Agency Appeal) (settlement under Court Seal). Mr. Hull: Next is Agenda Item H Executive Session alternative the County Attorney for reading into the record. Ms. Barzilai: Good afternoon, Madam Chair. Laura Barzilai, Deputy County Attorney. I will read the item into the record, H, Executive Session. Executive session, the Commission may go into executive session on an agenda item for one of the permitted purposes listed in Section 92- 5(a) Hawaii revised statute. HRS without noticing the executive session on the agenda where the executive session was not anticipated in advance. HRS Section 92- 7(a). The executive session may only be held, however, upon an affirmative vote of two-thirds of the members present, which must also be the majority of the members to which the board is entitled. HRS Section 92 -4. The reason for holding the executive session shall be publicly announced. Item a. Pursuant to Hawaii revised statutes sections 92-4 4 and 92-5(a)(4), for the purpose of this executive session is to consult with the 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 a legal case captioned: In the Circuit Court of the 5th Circuit, State of Hawaii; Michael Kaplan, Trustee of the Michael Kaplan Revocable Trust, dated August 12,1992, appellant v. County of Kauai Planning Commission and County of Kauai, Appellees; Civil No. 5CCV-21- 0000057 (Agency Appeal). Madam Chair, at this time, you can entertain a motion to go into executive session and Please State the purpose if you do choose to go into the session. Chair Apisa: Yes, I would like to go into executive session to discuss this legal matter. Ms. Barzilai: You may entertain a vote from the Commission. Ms. Cox: I move we go into executive session for the purpose of consulting consideration of powers, duties, privileges, immunities, and or liabilities of the Commission and the County, as they relate to illegal case captioned in the Circuit Court of the 5th Circuit State of Hawaii. Michael Kaplan, Trustee of Michael A. Kaplan Revocable Trust, dated August 12th, 1992, Appellant versus County of Kauai Planning Commission and County of Kauai Apelles Civil No. 5CCV-21-0000057. Ms. Nogami-Streufert: Second. Chair Apisa: We have a motion on the floor to go into executive session I believe we can take up voice call on voice vote on this. 51 Ms. Barzilai: Actually, Madam Chair or prefer for you to do roll call. Chair Apisa: Roll call, please Kaaina. Mr. Hull: Roll call Madame Chair. Commissioner Ako. Mr. Ako: 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 Otsuka is excused. Commissioner Streufert. Ms. Nogami-Streufert: Aye. Mr. Hull: Chair Apisa. Chair Apisa: Aye. Mr. Hull: Motion passes 6:0, Madame Chair. Chair Apisa: We will go into executive session come do we need to give an approximate time on this? It's hard to calculate. Ms. Barzilai: Thank you, Madam Chair, please, if you could estimate perhaps 40 minutes. Chair Apisa: I was thinking 40 or even now 30, but yes, I probably will roll into 40 or maybe more. Adjourning to executive Sessions for approximately 40 minutes. Kaaina, I believe the commissioners would log out of this and go into executive session and then come back to this later? We log out of this correct. Mr. Hull: Yes, all the commissioners, and the attorney needs to log out of this, and you folks, the attorneys have set up a separate executive session meeting. I'm not involved. The rest of the members of public and applicants aren't involved. Commissioners, you need to log out of this and go into the executive session invite I believe the attorney 's office sent to you folks and then when you folks have done, you'll be logging back into this channel. 52 The Commission moved into Executive Session at 1:37 p.m. The Commission returned to Open Session at 2:42 p.m. Chair Apisa: Call the meeting back to order after the recess. Mr. Hull: I believe you have all the commissioners here. If the commissioners could turn on your camera 's and whenever that is done, Madam Chair, you can gavel the meeting back into session. Chair Apisa: Thank you. I will call the meeting back to order. Kaaina, could you do a roll call attendance, please? Mr. Hull: Roll call, Madame Chair. Commissioner Ako? Mr. Ako: I am here by myself. Mr. Hull: Commissioner Chiba? Mr. Chiba: I am here and by myself. Mr. Hull: Commissioner Cox? Ms. Cox: I’m here and by myself. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here and by myself. Mr. Hull: Commissioner Otsuka who is excused. Commissioner Streufert? Ms. Nogami-Streufert: I’m here and by myself. Mr. Hull: Chair Apisa? Chair Apisa: Here by myself. Although my grandson will be home in a minute. I'm sure he'll be happy to go to his room and talk to his friends or play games. Mr. Hull: We have a quorum, Six Present. Madam Chair. moving on beyond executive session onto agenda item. I general business matters. GEBERAL BUSINESS MATTERS Consideration of a Settlement Agreement in a legal case captioned: In the Circuit Court of the Fifth Circuit, State of Hawai’i: Michael Kaplan, Trustee of the Michael A. Kaplan Revocable Trust, dated August 12, 1992, Appellant v. County of Kauai Planning 53 Commission and County of Kauai, Appellees; Civil No. 5CCV-21_0000057 (Agency Appeal) (settlement under Court Seal). a. Director’s Supplemental Report on this matter. b. 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., 08/24/2021. Mr. Hull: Moving on beyond Executive Session onto Agenda Item. I, General Business Matters. Consideration of a settlement agreement on a legal case captioned in the Circuit Court of the 5th Circuit State of Hawaii. Michael Kaplan, Trustee, or the Michael Kaplan Revocable Trust dated August 12, 1992, Appellant v. County of Kauai Planning Commission. Excuse me, County f Kauai, Appellees; Civil No. of 5CCV-21 -0000057 is an Agency Appeal Settlement under Court Seal. You have 2 items on here as the Director Supplemental Report on this matter, and then the Written Assessment related to Native Hawaiian Traditional and Customary Practices on Kuleana Lots by Kaplan. TMK No. 5-2- 012-019 submitted by Dawn N.S Chang, Esq. Sorry. You also have an additional Supplemental to the agenda and items, which was a letter dated 9/13/2021 from Eric Taniguchi. They also have a Petition for Intervention Declaration of Charles Summers Declaration of Council exhibits 1 through 17 certificates of service. And, you also have applicant Michael Kaplan 's objection to Petition for Intervention Data. September 13, 2021, or request for hearing exhibits 1 through 2, replied to agreement and consolidate consideration of Class IV Zoning Permit Z-IV- 2021-8 and Use Permit U-2021-7 and related TMK, related property TMK 5- 2-012 -019. So, you guys were in Executive session, the Department was not a party to the settlement agreement that you folks, I guess were being briefed on in executive session by your attorney. We had been provided a documentation that the Applicant has submitted, that was the written assessment by Dawn Chang concerning the Native Hawaiian Traditional and Customary Practices. The Department did prepare a Supplemental Report in the event that you folks are looking at settling. We can entertain questions. Dale can read the Supplement, or if you guys are looking at not pursuing the settlement agreement, then you know we would fore go any of that discussion. Ms. Barzilai: Excuse me, Madam Chair, it's Laura. What is your preference would you like to have the Department present their report? Chair Apisa: Yes, I think present the report and then we could ask questions. Mr. Hull: Dale, if you can just read into the record the Supplemental report and I think the Conditions recommended are on record already. But for edification, if you can just read the supplemental background portion. Staff Planner Dale Cua: Sure, not a problem. Good afternoon, Madam Chair, and members of the Planning Commission. I'll just read the first page of my report and beginning in the first paragraph on page 2. So basically, as far as background subject permits were scheduled before the Planning Commission at their meeting on April 132021. Mr. Cua read the Project Description and Use and Additional Findings sections of Supplement No. 1 to the Director’s Report for the record (on file with the Planning 54 Department). Mr. Cua: It is further noted as the Director mentioned 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. That is also attached as exhibit B…A to the Supplemental Report. So that's the background of the project. Chair Apisa: Thank you, Dale. Commissioners, so we want to ask any questions at this time? Ms. Nogami-Streufert: If I could ask the question. On the experts written assessment related to the Native Hawaiian Traditional and Customary Practices on Kuleana Lot owned by Kaplan that was submitted by Dawn N.S. Chang Esq. One of the reasons why we had denied that the original application was because we thought that we needed, or we needed more information on the birthing stones or any other archaeological findings that might have been on that location. Do you believe that this report that we have gotten is adequate or sufficient to answer those questions? Mr. Hull: Yeah, thank you Commissioner Streufert. The Department indicated in given the background that Dale gave, the Department had reservations about moving forward given at the last hearing, given the testimony that had been received and quite honestly, wanting additional time for the Department to outreach to those that had testified to determine the possible impacts on cultural practices and oracles and that sort of resources in the site. And hesitant with recommending approval at the last hearing. In the settlement, I still haven't seen the settlement myself, but you know the… you're litigating attorney did reach out to the Department and provided ultimately us with this document that the Applicant had gone through with expert services, Ms. Dawn N.S. Chang, and going over the Department does feel it's sufficient in meeting the Ka Pa`akai Analysis that we were so concerned about in the first hearing. Ms. Nogami-Streufert: Thank you. Chair Apisa: I would put it on record to clarify also, we got to this point in that, the prior actions of the Planning Commission have now been altered by court litigation and an order from the judge to reach a settlement agreement for us to review and act on. Does someone want to elaborate on that to make it clearer of how we got to this today? Laura, are you or counsel, are you present maybe to elaborate on that? Ms. Barzilai: Are you able to hear me? Chair Apisa: Yes, now we can. Ms. Barzilai: Madam Chair, it's Laura County attorney’s office. So today we are considering this matter not within the scope of an agency hearing, but the Commissioners are considering a court sanctioned settlement within the scope of an active litigation and whether they (unintelligible) Comment. Chair Apisa: You went mute. Your off. You're back on. Ms. Barzilai: Are you able to hear me? 55 Chair Apisa: Yes. Ms. Barzilai: Okay, so I'll repeat what I said. So today, for your consideration is a court sanctioned settlement within the scope of active litigation. This is not an agency hearing or fresh consideration of these permits. Today, you'll be asked to make a decision of whether you adopt or reject the terms of the settlement agreement that was reached on your behalf by the Litigation Division of the Office of the County Attorney. Chair Apisa: Thank you. Ms. Barzilai: Thank you. Ms. Cox: And just to clarify. One of the terms of the agreement was that Kaplan would engage in expert consultant as recommended by the Director of the Kauai County Planning Department to contact the assessment. So, and Dawn Chang was actually recommended by the Kauai County Planning Department to conduct the report that we got. Chair Apisa: Not only was she chosen Planning Department, but she was given direction and guidance. It was paid by Kaplan, but it was actually under the guidance and direction of the Planning Department, just to clarify that point, thank you. Mr. Hull: I'm sorry, Madam Chair. On behalf of the Department, I have to clarify. The Department did not interact with Ms. Chang in any fashion directly. We did have direct discussions with our litigating attorney and Whatnot, but we did not interact with this Chang. Having said that, I mean having gotten the report from Ms. Chang, we do find it sufficient. Ms. Barzilai: Madam Chair, it's Laura again, if you have specific questions regarding Ms. Chang's Report, I think it would be inappropriate time to ask those. Ms. Nogami-Streufert: Is Ms. Chang available? Ms. Barzilai: I believe that the party to the litigation is available who can answer the questions. If there are if things are not clear from the face of the report and the recommendations that have been incorporated into the permit. Mr. Ako: Madame Chair, I’ve got a question, a really quick one. You know, although Ms. Chang was not yeah, you didn't engage Department did not engage with Ms. Chang in terms of I guess assessment itself with your recommendation from the Department. Mr. Hull: Sorry. Can you repeat that again, Commissioner Ako? Mr. Ako: (Unintelligible) a recommendation from the Department too Mr. Kaplan. Mr. Hull: We had had discussions about possible consultant services out there and Ms. Chang is considerable highest authority, so indeed, we did provide her as an example of a consultant that can do these types of services. 56 Mr. Ako: Thank you. Ms. Cox: And you also provided or identified the 15 individuals who had provided oral and written testimony that made reference, correct? Mr. Hull: Correct. Chair Apisa: And then I think the majority of those people were identified or was contacted, but not necessarily all of them. Mr. Hull: We did provide the contact information that we were able to derive from our meetings, at the hearing i.e., when they identified themselves with very specific phone numbers in the under the old format, you had me calling out individual phone numbers and people identifying themselves. But if there are scenarios, where they didn't identify themselves or the phone number is listed as anonymous then we were unable to identify that particular individual. Chair Apisa: Thank you for clarifying that. I cannot see who all on the call, is Kaplan or their representative or their attorney on the call. Mr. Hull: I believe so I just have to see Laura to see if it's appropriate. If you folks want to have any questions for them if it's appropriate to. Ms. Barzilai: Madam Chair, I think the only questions that are appropriate because the Report is such a critical component of the settlement. There would be questions that are directly related to the report itself and not the settlement agreement. This isn't a forum for a party to make an argument on behalf of their settlement agreement. But if there are technical questions on how the Conditions were arrived at or something that is glaringly absent from this report. I would welcome you to ask that and if Ms. Chang or the representative for the application for Kaplan is here, if they can answer those questions that would be appropriate, limited to the scope of the report. Ms. Nogami-Streufert: Since a lot of this is based upon the report because that was what was (unintelligible). Is there someone who can respond to the qualifications of the person who completed this report. So that everyone can have a little bit of confidence in the completeness of this report. Mr. Hull: Madam Chair, Members of the Commission. I'm not seeing Ms. Bronster as a listed person participating in the meeting. She has had several invitations and we are trying to admit her on multiple fronts. Ms. Nogami-Streufert: (Unintelligible) for Laura Loo. Ms. Barzilai: So, if… Mr. Hull: I don't have Laurel Loo on this meeting either. Ms. Barzilai: If that is the case Madam Chair and Commissioners that you have to accept the report at face value and the way that it's been incorporated into the new permit Conditions. 57 Mr. Hull: Hold on one second Commissioner, we may… I'm trying to look sorry; we do have we do have Ms. Bronster listed my apologies, I can activate? Ms. Bronster, I have you listed under Rex. I'm muting your mic and allowing your camera. Ms. Bronster as I said, to speak you have to unmute your side of the from platform. Ms. Margery Bronster: Okay, can you see me now? Ms. Nogami-Streufert: Yes, we can see you. Ms. Bronster: Okay, on first? Ms. Barzilai: Good afternoon, Madam Chair, excuse me, if it would be appropriate for me to please address Ms. Bronster prior to her starting to speak. Ms. Bronster, I don't know if you had the advantage to hear my comment to the Commission prior to you coming on. Ms. Bronster: Yes, I have heard all of the comments and I apologize for the technical difficulties on my side, which is why I'm now appearing in Mr. Fujichaku’s office and showing up as Rex Fujichaku. Ms. Barzilai: Well, thank you very much. Since we don't have Dawn Chang available to directly answer these questions, perhaps limited to the scope of the report you could answer the questions of the commissioners. Ms. Bronster: I would be happy to do what I can. I believe that what happened was missed? It was clear in the negotiations that the County wanted to identify an acceptable expert, and the first recommendation was Dawn Chang and we accepted Dawn Chang and reached out to her. The scope of the assignment as agreed, was that the expert was going to contact the people who were identified by the County. So, the County provided us with the names and contact information of the people that Dawn was to go out and reach, out to and we simply provided that information Ms. Chang. They are also, the County Attorney, also provided us with the questions that the County Attorney believed that Ms. Chang should ask, and we provided them to Dawn Chang to ask. So, it was done at the request of the of the Department, but it was paid for by Mr. Kaplan and the reason for that is that this is the responsibility of the County to do the review and yet in order to expedite it, we were agreed to pay for it, but we were not participating in the interviews this was something that Dawn Chang did. With respect to the question about her qualifications, in her report that was submitted, she does list her qualifications and she was asked to do an analysis of the (unintelligible) cases and a review of that. She outlined qualifications and explained that this is something that she has been doing. She has had a history in doing Traditional and Customary Native Hawaiian Rights Analysis and doing training on Native Hawaiian Land Laws and Rights and providing that to private and government agencies as outlined. Chair Apisa: Thank you. Thank you very much. Commissioners, I believe we're supposed to limit this to our technical questions about the report. Does any of the other Commissioners have questions about the report itself? Mr. DeGracia: This is Commissioner DeGracia. I have one question concerning the report. My 58 question is how much time was spent reaching out to the information gathering to the of the community by Ms. Chang? I'm just wondering how much efforts were put out if a large enough Net was cast so to speak. Chair Apisa: I don't know. (Unintelligible) is the question to me. That would be more questions for the person doing the report. Dawn Chang, she's not available. Ms. Bronster: If I may Madam Chair. She identified what she did on page 2 of her report. Chair Apisa: I believe Kaaina explained that they provided the contact that was available from those who testified. Ms. Bronster: Can I respond? Chair Apisa: Go ahead, I guess what? What is your response? Ms. Bronster: On page 2, she explains that the Department identified 15 individuals who provided oral or written testimony. And provided contact information, but for most, but not all of the individuals. The consultant reached out by telephone or email to 12 of the individuals where contact information was provided. Of the 12 individuals, the consultant was able to interview or talk story to 9 of the individuals. Interviews were conducted between August 11th, and August 17th. She then goes on to explain what the general, the results were. In addition, she reviewed all of the materials that she outlines in her report and also spoke to people who were familiar with the Kuleana, including Mehana Vaughan, whom she described as having talked to community members and practitioners about the site. Chair Apisa: Alright. thank you. We do have to report thank you. Commissioner Cox, you look like you have a question? Ms. Cox: No. Ms. Barzilai: Madam Chair, are there any other technical questions about the report? Before we can excuse Ms. Bronster. Chair Apisa: Hearing none, Ms. Bronster, thank you very much. I think you may be excused, thank you. Ms. Bronster: I appreciate your time. Ms. Barzilai: So, Madam Chair. Chair Apisa: Are there any other technical questions? Ms. Barzilai: Sorry. Chair Apisa: But go ahead, I'm sorry counsel. 59 Ms. Barzilai: Sorry, I just wanted to comment that this would be a time for your open discussion on this matter and to proceed toward a vote one way or the other. Chair Apisa: The task before us is to a vote on the settlement agreement and we need to have. A motion to accept or reject the settlement agreement. Mr. Hull: Just not that confusing situation, but if Ms. Barzilai, if you could for the Commissioners, there are two (2) Agenda Items listed in General Business One, is consideration of the settlement agreement, which the Commission is on right now, and then second, is in accordance with the terms of the settlement there is essentially two (2) actions here that the Commission is going to entertain. Ms. Barzilai: There is Director Hall, this first action number one would be whether the Commissioners are going to adopt or reject the settlement agreement. And then, the second item if you would please read into the record would be their action on the permit. Mr. Hull: I see. So, they would have to take action on one before we move on to the second General Business Matter. Ms. Barzilai: Yes. Mr. Hull: Thank you for the clarification. Ms. Barzilai: Thank you. Ms. Cox: It seems that we have we’ve already completed some of the terms of the settlement. There was an expert consultant engaged and that report was created with completed and County Planning Department got that report. And then, it was put on the agenda for this meeting and a Supplemental Director’s Report reflects the expert’s assessment and recommendations. So, we are well on our way there already. Chair Apisa: Is there anything further from the Director, I mean from the planner that we should hear? Mr. Hull: No. Not at this point Madam Chair, unless you have more questions for him. Ms. Nogami-Streufert: Okay. Mr. Ako: You know, at this point in time, the Department seen the settlement agreement as of now? Mr. Hull: Sorry, Commissioner Ako, could you repeat that again. Mr. Ako: Has the Department seen and reviewed the settlement agreement? Mr. Hull: We have not. We have not. 60 Ms. Barzilai: No. Commissioner Ako, this is Laura County Attorney, the Department has not seen the agreement. This is a confidential document between the parties sanctioned by the court and distributed to you as the clients. Mr. Ako: But at this point, it's not a sealed document anymore. Ms. Barzilai: It's not a sealed document. We are, in a sense that we are discussing it in open meeting, and we can actually read portions of it if you prefer, and if you elect to adopt the agreement, then it will become a public document, if both parties on both sides of the agreement execute the agreement. Mr. Ako: I don't know, I would ask I guess if this would be something that would be requested by the Department. If they would like to have it read. (Unintelligible) the Settlement agreement so that they are aware and see what's contained in it. Is that appropriate? Mr. Hull: It depends if you folks at your discretion wanted to read into the record and with your attorney’s occurrence, I guess. Our position in the Director 's Report is that you know, should the Commission want to adopt a settlement agreement in whatever terms it’s under, we are understanding that there's going to be those additional Conditions recommended by Ms. Chang in her report. All we're trying to stay in our supplement is should the Commission choose to adopt the settlement and adopt those Conditions of Ms. Chang, that it considers adopting the original 12 or so many Conditions we recommended that our first Directors Report. I can say at the first hearing, The Department was okay with in all aspects of the proposal with the exception of the Ka Pa’akai Analysis, that's essentially all we're waiting for. I don't believe that you know, necessarily the Commission was all okay with everything that's really at each Commissioner has his own discretion on whether or not they were ready to move forward. I think at the original hearing the Department would be ready to move forward after Ka Pa ‘akai Analysis could be addressed in mitigating Conditions could be proposed, which I think the report does. That's not to say that you know, you as Commissioners, may have other issues, concerns you want to discuss as it pertains to the permit, but I'm not sure if you folks are restricted explicitly in the settlement agreement away from further review and analysis. Ms. Cox: It seems to me that this the settlement agreement does in fact, address what our concerns were at the last meeting. They certainly address the concerns that I had at the last meeting for this more evidence, more analysis by an expert, and which we have now gotten. So, I would be ready to move that we adopt the settlement. Mr. Ako: Yeah, I would be ready for vote. Ms. Nogami-Streufert: Then I moved to approve this payment agreement between the parties Michael Kaplan, County of Kauai Planning Commission, and the County of Kauai as in the settlement agreement that we have in hand. Ms. Cox: I second that. Chair Apisa: Is there any further discussion we have a motion on the floor? No discussion. Kaaina, we would take a roll call. (Unintelligible) I would comment that our legal counsel was the 61 one who negotiated this settlement and with the court. Kaaina, are you there to take a roll call? Mr. Hull: Yes, sorry about that in those muted. Roll call, Madam Chair. Commissioner Ako. Mr. Ako: 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 Otsuka is excused. Commissioner Streufert. Ms. Nogami-Streufert: Aye. Mr. Hull: Chair Apisa. Chair Apisa: Aye. Mr. Hull: Motion passes 6:0, Madam Chair In accordance with the terms of a Settlement Agreement in a legal case captioned: In the Circuit Court of the Fifth Circuit, State of Hawai`i: Michael Kaplan, Trustee of the Michael A. Kaplan Revocable Trust, dated August 12, 1992, Appellant v. County of Kauai Planning Commission and County of Kauai, Appellees; Civil No. 5CCV-21-0000057 (Agency Appeal), consideration of Class IV Zoning Permit Z-IV-202-8 and Use Permit U-2021-7 for the construction of a farm dwelling unit and associated site improvements on a parcel located in Kilauea, situated approximately 1,700 feet from Kahili Makai Road and 2,700 feet from the Kahili Makai Road/Kuhio Highway intersection, further identified as Tax Map Key: (4)5-2-012:019 and containing a total area of 0.735 ace . Mr. Hull: Madam Chair, onto General Business Items I.2., In accordance with the terms of the settlement agreement and a legal case captioned and the Circuit Court of the 5th Circuit State of Hawaii. Michael Kaplan, Trustee of the Michael Kaplan Revocable Trust, dated August 12,1992, Appellant v. County of Kauai Planning Commission and County of Kauai, Appellees; Civil No. 5CCV- 2- 0000057 (Agency Appeal), consideration of a Class IV Zoning Permit Z-IV-2021-8 and Use Permit U-2021-7 for the construction or farm dwelling unit and associated site improvements on a parcel located in Kilauea, situated approximately 1,700 feet from Kahili Makai Road and 2,700 feet from the Kahili Makai Road/ Kuhio Highway intersection, further identified Tax Map Key: (4) 5-2-012:019 and containing a total area of 0.735 acres. 62 Ms. Barzilai: Madam Chair? Chair Apisa: I'm sorry about that, I got a little one-off base there. I'm sorry I've lost… I apologize. I was a little off muted in there. What was that Kaaina, could you just back up a step? Mr. Hull: We just read an Agenda Item. I.2, into the record and this is essentially the second action whether or not you folks are voting to approve the permits pursuant to the settlement agreement that was just voted on previously. Chair Apisa: So, any discussion on that? Or try to keep (unintelligible). Ms. Cox: Would it be appropriate to hear the recommendations now since additional recommendations were made based on the experts’ report in the supplemental different Director’s report. Mr. Hull: I think even your muted, Laura. Ms. Barzilai: Sorry about that. Madam Chair, I think what Commissioner Cox might be asking is for the Department to discuss the Conditions, the additional Conditions in the permit. This is not the permit that’s before you. This is a Permit containing additional Conditions in light of Ms. Chang's Report. I'm not sure if that's what Vice Chair, Cox is asking. Ms. Cox: Yes, that's exactly what I was asking. Mr. Hull: Yeah, Commissioner Cox, so we can read all those Conditions. They're essentially their original Conditions that we had recommended in the original report, just kind of putting it the Commissions way that, if it intended to adopt this settlement agreement that it consider, the Commissioner consider also, including, the additional those original Conditions of approval that were put in the original Director’s report did you want us to read each one of those individual Conditions? Ms. Cox: Well, I think it's particularly important that the additional ones are read so that the public can hear what those additional recommendations are, or Conditions are, sorry. Mr. Hull: Yeah, I thank you, Commissioner Cox. Dale if you can just read all of the recommended Conditions of approval, including the ones in Dawn Chang’s Report. Mr. Cua: No problem. So as Kaaina mentioned the recommendations contain the 12 Original Conditions, plus the Recommendations that was contained in the (unintelligible) Report. So, I'll go ahead and read all 13 Conditions. Condition 1. The project shall be constructed 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 number 2. In order to ensure that the project is compatible with their surroundings and to minimize the visual impact of the structure, the external color of the proposed residents shall be of moderate to dark earth tone color. The proposed color scheme and landscape plan should be submitted to the Planning Department for review and accept its prior to building permit application. Number 3. The applicant shall submit for review and approval by the Planning Department a landscape plan 63 composed of native species or species common to the area to help to screen the proposed structures and integrate the site with its surroundings. Number 4. The applicant is made aware that the proposed residential not be utilized for any transient accommodation purposes, it shall not be used as a transient vacation rental or as a home stay. Number 5. If external lighting is to be used in connection with the proposed, all external lighting should be only of the following type: downward facing shielded lights, spotlights aimed upward, or spotlighting of structures is prohibited. Number 6. The applicant shall develop and utilize best management practices during all phases of development in order to minimize erosion, dust, and sedimentation impacts of the project to abutting properties. Number 7. Unless otherwise stated in the permit once a permit is issued application must make substantial progress as determined by the Director regarding development or activity within 2 years or the permit shall be deemed to have lapsed and being no longer in effect. Number 8. Applicant should resolve and comply with all agency requirements as recommended in the permit application review, including but not limited to building permit and drainage requirements of the County Department of Engineering Division, County Fire Department, Portable water and Fire Protection, requirements of the County Department of Water, and regulations involving environmental concerns as administered by the State Department of Health. Number 9. Since there are known archaeological sites on the subject parcel, the applicant shall closely work with the State Department of Land and Natural Resources, Historic Preservation Division 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 historic resources being discovered during ground disturbing, construction work and all work in the area of the archaeological historical finding shall immediately cease. An applicant shall contact these State Preservation Division and Planning Department. Number 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. Number 11. The applicant is advisor prior to construction and re use, additional government agency conditions may be imposed. It shall be the applicant’s responsibility to resolve those Conditions with the respective agencies. Number 12. 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 are proper procedures should condition of approval be violated or adverse impacts be created that cannot be properly addressed. Number13. Based on the AISR, SHPD concurrence, and relevant public comments following feasible action or mitigation (unintelligible) if any, to reasonably protect Native Hawaiian Right, if they are found to exist or recommended for consideration. Subsection 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 septic system and the House Foundation. B. In the event Iwi Kupuna or subsurface subsurface resources are discovered during construction, all work in the immediate area shall cease and compliance with the 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. D. No further work is required to preserve or protect portions of sight 2011, the 9 terraced fields, and the permits may be issued because the AISR sufficiently documented the historic property on the Kuleana lot. An archaeological preservation plan shall be prepared for the adjacent properties identified as TMK: 5-2-21 parcel 41, portion of 5-2- 21 or 41 unit 1, and 5-2 12 parcel 40 parcel 35 and 5-2-21 parcel 4. adjoining lots that will accommodate functional restoration of the irrigation system and lo`i kalo, which is consistent with SHPD Concurrence Letter dated July 242012. E. based on comments and recommendations by some members of the public, the restoration of the 64 irrigation system on the adjoining lots as set forth in the preservation plan shall be done either by or in consultation with knowledgeable training cultural practitioners on lo`i kalo restoration from the area, especially those who may have ancestral connections to the callee analog to ensure cultural protocols are adhered to and the restoration is grounded in the unique Lo`i Kalo practices of the of Kilauea. The Kaplans may contact Mehana Vaughan for ancestral descendants and knowledgeable train cultural practitioners. F. Based upon comments by some members of the public, the landscaping of both the Kuleana Lot and adjoining lots should use appropriate native plants to the extent feasible. G. Kuleana lots and adjoining lots are unique for several reasons. One, it was awarded to Naea (unintelligible) a woman when kuleana lands were historically awarded only to native Hawaiian males. Two, it contains a unique mauka Lo`i Kalo ecosystem, unlike most of the lowland river bottom or makai low ecosystems of Kauai. And three, the Kaplans both be Kuleana lot and adjoining lots. The uniqueness of these lots provides or Kauai Planning Commission, the opportunity to fully embrace article 12. Section 7 State Law and Judicial 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 on the valid cultural natural and historic resources, including traditional and customary practices. Kaplan’s shall coordinate with the Kilauea community for example, community stakeholders, including descendants of the Kuleana lot and immediate surrounding Aina and cultural practice 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 SHPD and to ensure that access to the cultural practitioners to continue to exercise their traditional and customary practices, including the practice of Malama Aina, Mol`olelo, and Kilo are protected. To ensure there is coordination with the Kilauea community that Kaplan’s shall comply with the following, Subsection. 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 why the Commission to the entitlements for the adjoining lots, providing a status update on the coordination and implementation of the preservation plan and subsection 2. Submit a copy of the annual report to community stakeholders 30 days, before submission to the Planning Director to provide the community opportunity to provide their comments on the annual report to the Planning Director. The coordination and implementation of the preservation plan for adjoining lot shall not preclude the timely issuance of the subject permits for the Kuleana Lot and that concludes the 13 Conditions of the project. Ms. Cox: Sorry to make you read so much Dale, but I just think it's important that that the public is aware that there were additional Conditions added as a result of the report from the experts. Mr. Cua: Not a problem, not a problem. Chair Apisa: Thank you very much. I guess we need a motion on this Kaaina, right? Mr. Hull: Yeah, and I'm not aware of this settlement agreement has actual 12 Conditions, though in the original report. So, the Department would say that, if the Commission based on his previous action of adopting the settlement agreement. The Department would recommend that any approval of these permits propose would include all 13 Conditions and Sub-conditions read by Mr. Cua. Chair Apisa: Kaaina, is there any? Go ahead go ahead. 65 Ms. Nogami-Streufert: At this moment. I'm sorry, to make a motion for this, would it be to accept Supplement No. 1, to the Planning Department or Planning Board, is that what we would do? Mr. Hull: That was provided you know, as part of the previous agenda item. I think and Ms. Barzilai, correct me if I'm wrong. I think if you're looking at approving it with all 13 Conditions and Sub-conditions as Dale has read, that an appropriate motion would be a motion to approve with all 13 Conditions and Sub-conditions as read by the staff planner. Ms. Barzilai: Thank you, that's my understanding. Ms. Nogami-Streufert: So, I'll give this a shot and let me know if anything needs to be changed. I moved to approve the Planning Directors Report on the previously considered through Class IV Zoning Permit Z-IV-2021-8 and Use Permit U-2021-7 with all 13 Conditions. Mr. Hull: Sorry, I'm just going to interject, because as a point of clarity the supplement was provided for informational purposes on the previous agenda item. I don't think you can reference the Directors Report. I think would have to be a motion to approve in accordance with the settlement agreement and the total 13 Conditions and Sub-conditions as read by the staff planner. Ms. Nogami-Streufert: So, moved. Ms. Barzilai: Commissioner Streufert, it's Laura County Attorney. Can I try to give you a little help? Ms. Nogami-Streufert: Please. Ms. Barzilai: Okay, so, what Madam Chair, I would recommend is a motion would be to approve in accordance with the settlement and to include total of 13 Conditions as read into the record by Mr. Cua with subparts. Ms. Nogami-Streufert: I so move. Ms. Cox: I second. Mr. Ako: I got a question, I'm sorry. Are we talking about the 13 conditions? Dale read 12 of them, plus the one from Dawn Chang. That would be the 13th? Mr. Cua: Yes. Mr. Ako: Okay, sorry got it. Mr. Hull: Sorry, Commissioner Ako. It would be the 13 Conditions and Sub-conditions. So, the Sub-conditions would be all those multiple parts under 13. Ms. Barzilai: Madam Chair, if Commissioner Streufert has moved, we require a second. Ms. Cox: I seconded. This is Ms. Cox. 66 Ms. Barzilai: Oh, I'm sorry. Thank you. Chair Apisa: We have a motion on the floor is there any further discussion? Kaaina, roll call please. Mr. Hull: Roll call, Madam Chair. Commissioner Ako? Mr. Ako: Aye. Mr. Hull: Commissioner Chiba. Mr. Chiba: Aye. Mr. Hull: Commissioner Cox. Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia. Mr. DeGracia: Right. Mr. Hull: Commissioner Streufert. Ms. Nogami-Streufert: Aye. Mr. Hull: Commissioner Otsuka is excused. Chair Apisa. Chair Apisa: Can I just abstain? Mr. Hull: (unintelligible) abstaining you can do an Aye vote, a No vote or a silent vote. Ms. Barzilai: Madam Chair, a silent vote is considered a voting in the affirmative. Chair Apisa: Okay, I will vote for in favor of it. Thank you. Mr. Hull: Motion passes 6:0. Madam Chair. Chair Apisa: Yeah, motion was carried already, thank you. COMMUNICATIONS (For Action) Mr. Hull: Moving on to, we have no Communications for Actions. COMMITTEE REPORTS Subdivision 67 Mr. Hull: Moving on to the next Agenda Item K, Committee Reports, we have the Subdivision action matters listed in the Subdivision Committee Agenda. I’ll turn it over to the Subdivision Committee, Chair DeGracia. Mr. DeGracia: Thank you. Subdivision Committee in attendance myself, Vice Chair Commissioner Chiba, and also Commissioner Ako. There was one item an Extension to requests Subdivision Extension requests for Subdivision Application No. S-99-49, Kulana Association Apartment Owners. This item was deferred to the October 26th meeting. Mr. Hull: Thank you, Chair DeGracia. Mr. DeGracia: Please. Mr. Hull: Given the deferral there's no action necessary on the Subdivision Reports. UNFINISIHED BUSINESS (For Action) Mr. Hull: Moving on, there is no Unfinished Business. NEW BUSINESS Mr. Hull: We have no 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 September 28, 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: Moving on to Announcements Topics for Future Meetings. Coming up on the horizon Commissioners and thank you for your patience in in bearing through this new system. That is going to come down as a as a recourse of the Governor 's Proclamation and providing public testimony and participation. We've got another meeting here scheduled in 2 weeks, this will be the Coco Palms Status Update Meeting it is anticipated to be a very fairly lengthy meeting given the amount of public participation and concern over this particular site for the members of the Commission and for the members of the public out there, too, definitely public participation and comment will be taken. But to be clear, the agenda item that is scheduled for September 28th is a Status update. There is no actionable review on this particular agenda item. It is just a status. update is required, pursuant to its conditions of approval annually, brief the Commission on the status of where they are on this, so ultimately there is no real action coming up on that agenda. Beyond that, we have of course, the Green application that will be coming up in October, hopefully, with some resolution. We have a have a permit in Hanapepe just for residential unit, we anticipate being non- controversial, but you never know. And then just for the Commissioners edification on radar It's 68 not coming up on the next meeting or two, but the Planning Department in the next 6 to 8 months, is going to be filling the missile tubes if you will, with various zoning amendments. Many, if not most of them are actually just cleanup amendments in areas of the comprehensive zoning ordinance or other parts of the zoning code that just needs to be cleaned up. They've been error issues in areas that we've known about for years and administratively had been able to handle them, but it would be good to to create those cleanups officially. There will also be some policy changes that we're sending your way. One in particular pertaining to vacation rentals and how that thing how that ordinance is structured, but we have to run it through our attorney’s office as well as given our memorandum understanding, we have to actually consult with both Airbnb and Expedia on those. But over the next 6 to 8 months, you can anticipate anywhere from a dozen to 15 zoning amendments coming your way, and so we look forward to robust discussion and participation by both the Commission and members of the public. But if there's any other areas that the Commission would like us to agendize for you folks, you can let us know and we'll work with the Chair on getting those on future agendas. Anybody has any questions other Department well future topics? Ms. Cox: You're keeping us busy. Mr. Hull: Well, thank you. Thank you, all Commissioners I really, appreciate the patience. It's been it's been a full day. I can't express my thanks and gratitude for the patients and commit legally folks put through these very tough issues. With that the following regularly scheduled Planning Commission meeting will be held at 9:00 AM, or shortly thereafter. On September 28th, 2021. The Planning Commission anticipates meeting via teleconference below announced its intended meeting method be an agenda electronically posted at least 6 days prior to the meeting. With that Chair, we are ready for adjournment. ADJOURNMENT Chair Apisa: We have a motion to adjourn. Ms. Cox: I move we adjourn. Ms. Nogami-Streufert: Second. Chair Apisa: We have a second. Ms. Nogami-Streufert: Second. Chair Apisa: Motion to adjourn we can take a voice call. And the anyone. Call for the vote. All in favor? Aye. (Unanimous voice vote). Meeting is adjourned. Motion carried 6:0. Thank you. Chair Apisa: adjourned the meeting at 3:41 p.m. 69 Respectfully submitted by: Arleen Kuwamura, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval). ( ) Approved as amended. See minutes of meeting. GOODSILL ANDERSON QUINN &STIFEL FlRST HAWAIIAN CENTER,SUITE 1600 •999 BfSHOP STREET HONOLULU,HAWAI]96813 MAIL ADDRESS:P.0.BOX 3196 HONOLULU.HAWAII 96801 Co TELEPHONE (808)547-5600 •FAX (808)547-58??, INFO@GOODSILL.COM •WWW.GOODSILL.COM i i- o i i\.;;'i^ -,:'.iNiNGO^, DKe: TRANSMITTAL LETTER November30,2021 21 DEC-2 P2:13 l^i V c u To:VIA EMAIL ANU CERTIFIED MAIL Planning Commission c/o County ofKauai Planning Department 4444 Rice Street,Suite A473 LThu'e,Kauai 96766 Email:planningdepartment@kauai.gov Phone:(808)241-4050 From: W: Cate Goodwin DirectDial:(808)547-5730 Applicant SPD II Makaiwa Resort Development LLC's Petition to Appeal the PIanning Director's Decision Related to the Planning Director's Second and Final Notice of Violation and Order to Pay Fines for constructing a dust screen/wall without a permit on the Property Situated Waipouli,Kauai,Hawaii,identified by TMKNo.'s (4)-3-002:15,16,and 20. APPEAL FROM ACTION OF THE PLANNING DIRECTOR Copies Datc Description 1 11/30/2021 Submission ofrequested information in support ofits Appeal to the above referenced Notice of Violation and Order to Pay Fines. TRANSMITTED FOR: Q Your Information and/or Files 11 Your Signature and Return (Use Black Ink) Your Signalure (Use Black Ink)and Forwarding As Noted Below Q Per Our Conversation |_J Your Further Necessary Action D Yoilf Approval Your Review and Comment Per Your Request SEE REMARKS BELOW <T.l. JAN 11 2022 Planning Commission November30,2021 Page2 GOODSILL TRANSMITTED FOR: REMARKS;Pursuant to Chapter 9 ofthe Rules ofPractice and Procedure ofthe Planning Commission,SPD II Makaiwa Resort Development LLC respectfully submits the following requested information in support of its Appeal to the above referenced Notice of Violation and Order to Pay Fines November30,2021 Planning Commission c/o County of Kauai Planning Department 4444 Rice Street,Suite A473 Lihu'e,Kauai 96766 Email:planningdepartment@kauai.gov Phone:(808)241-4050 Re:Applicant SPD II Makaiwa Resort Development LLC's Petition to Appeal the Planning Director's Decision Related to the Planning Director s Second and Final Notice ofViolation and Order to Pay Fines for constructing a dust screen/wall without a permit on the Property Situated Waipouli,Kauai,Hawaii,identified by TMK No.'s (4)-3-002:15,16,and 20. APPEAL FROM ACTION OF THE PLANNING DIRECTOR Dear Planning Commissioners: Pursuant to Chapter 9 of the Rules of Practice and Procedure of the Planning Commission,SPD II Makaiwa Resort Development LLC respectfully submits the following requested information in support ofits Appeal to the above referenced Second and Final Notice ofViolation and Order to Pay Fines,delivered to Applicant/Appellant onNovember9,2021. (1)Thejiame,address and telephone numberofthe appellant. Mr.Jeffrey L.Laytin Mr.Jason Ding 5 Penn Plaza,23rd Floor NewYork,NY 10001 Tel:212-631-8693 8990606.1 GOODSILL Planning Commission November30,2021 Page2 (2)The identification of the Dropertv and the aimeUanfslnterest therein. SPD II Makaiwa Resort Development LLC ("SPD II"),is the fee simple owner ofa 20.8 acre parcel ofland located in Waipouli,Kauai that is designated as tax map key nos.4-3-02:15,16 &20("Parcel").The zoning for the Parcel is within the urban state land use district and is currently zoned by the County as Resort District (RR-20)and Open District (0).The Parcel is located within the Special Management Area("SMA").SPD II is in the process ofdevelopingthe Parcel into a planned resort timeshare condominium and hotel complex with 343 condominium units and six hotel rooms,and including a restaurant (Project").The cultural preserve and underground utilities for the Project were approved by the County and accepted as complete.SPD II acquired title to the Parcel and all Project entitlements by Warranty Deed,filed in the Office ofthe Assistant Registrar ofthe Land Court ofthe State ofHawaii and recorded on April 15,2016 as Doc No(s) T-9601232.The Grantor and former owner/developer ofthe Parcel and Project was Coconut Beach Developinent LLC ("Prior Developer"), The Parcel and Project are subject to permits issued and re-approved by the Planning Commission ofthe County ofKauai,and identified as: •Special Management Area Use Permit SMA (U)-2006-4 •Project Development Use Permit PDU 2006-6 •Class IV Zoning Permit Z-IV-2006-9 (3)The particular provisionj)f_the zonine ordinance or subdivision ordinance or reeulation in Question. Kaua'i County Code (K.CC)Chapter 8,known as the Comprehensive Zoning Ordinance (CZO),specifically: KCC Sec.8-3.1 (a)When Required.No person shall undertake any construction or development or carry on any activity or use,for which a zoning permit is required by this Chapter,or obtain a building permit for construction,development,activity,or use regulated by this Chapter, without first obtaining the required zoning permit. According to the Notice of Violation and Order,a dust screen/wall erected without the proper permit,is a violation ofthe above referenced statute. GOODSILL Planning Commission November 3 0,2021 Page 3 M)All nertinent facts. As the Parcel is located within the SMA,the Prior Developer was required to get an SMA Use Permit in order to develop the Project. Further,pursuant to the comprehensive zoning ordinance ("CZO")of Kauai County,SPD II was required to get a Class IV Zoning permit as a procedural requirement as the Parcels is "large enough to qualify for more than twenty-five dwelling units".The Class IV Zoning permit was a prerequisite to getting any building permit on the Project. In August,2005,the Prior Developer filed applications for the SMA Use Permits and CIass IV Zoning permits as well as an application for Project Development Use ("PDU")permit (collectively "Application")for the Projects.On January 22,2007,the Planning Department ofthe County of Kauai (County")issued a letter signed by County Plarmer Mike Lauretta and approved by Planning Director lan Costa,which recommended approval ofthe Applications subject to specific conditions.On January 23,2007,the Kauai Planning Commission held a meeting at which it approved the Permits.However,the approvals were made with additional conditions apart from those agreed to by the Prior Developer and recommended by the County Planning Department. On January 24,2007,the County issued the written approvals ("Permits") setting forth the approvals of the Application with the additional conditions,and on February 22,2007,the Prior Developer appealed the form of the Permits and sought modification to delete the challenged conditions pursuant to HRS 91-14(g).For ease ofreference,the Permits issued by the Planning Commission are identified as: •Specia]Management Area Use Permit SMA (U)-2006-4 •Project Development Use Permit PDU 2006-6 •Class IV Zoning Permit Z-IV-2006-9 Following prolonged litigation and administrative review,and pursuant to the order entered by United States District Court Judge Susan Oki Mollway on Febmary 1,2012 in Civil No.12-00065 SOM-KSC,the Planning Commission ofthe County ofKauai by letter dated October 23, 2012 amended and re-approved the Permits.The Commission's actions wholly adopted "Exhibit B"of the order,which,according to the Commission,were considered the controlling conditions of the above referenced Permits,as amended. However,the Prior Developer sought further clarification with respect to conditions pertaining to approval of the building and site construction GOODSILL Planning Commission November 3 0,2021 Page4 permits,as set forth in the amended 2012 Permits.Thereafter,the County,Planning Department and SPD II (as successor to the Prior Developer)agreed upon language that fully clarified the intent of the Parties ("Revised Permits ).The Parties submitted the Revised Permits to the Federal Court that retained jurisdiction over the February 1,2012 order,and pursuant to the Final Order entered by United States District Court Judge Susan Oki Mollway on December 12,2016 in Civil No.12- 00065 SOM-KSC,the Commission re-issued the Revised Permits and again wholly adopted "Exhibit B"ofthe Judge's order,which and are now considered the controlling conditions ofthe Revised Permits. Following issuance of the Revised Permits,and pending construction funding for the Project,SPD II undertook a number of pre-construction activities to secure the property and safety of the public,including removal ofabandoned vehicles,regular mowing,and finally the erection of a temporary perimeter dust screen in an attempt to control the growth ofhomeless encampments.Because the only effective way to dissuade squatters has been to allow the vegetation to grow,SPD II has stopped mowing the property inside the temporary fencing.However,the landscaping on the outside of the temporary fence is maintained on a regular basis,and appropriate repairs are made when needed in conformity with all recognized state and local building standards. {5)The action ofthe Director. On November 8,2021 Planning Director Ka'aina S.Hull issued an Order to Pay Fines for constructing a dust screen/wall without a permit on the Property based upon the Notice ofViolation requiring SPD II to,among other conditions,to "[cjorrect the violation,remove the construction or development,or obtain the proper zoning permits fbr the referenced structure,and cease and desist the impermitted activity and use immediately."Emphasis supplied. (6)The reasons for the appeal.inclyding a statement as to whv the appellant believes that the Director's action was based on an erroneous finding of a material fact,or that the DirectoiLhad^icted in an arbitrarv or capricious manner,or had manifestly abused his discretion. SPD II believes that it is in possession ofthe "proper zoning permit"to erect pre-construction temporary fencing around its property,if for no other reason than that of public safety,and is informed and believes that GOODSILL PIanning Commission November 3 0,2021 Page 5 the Director's action was based upon an erroneous finding of a material fact,i.e.that SPD II did not possess a CZO Permit as required bv KCC Sec.8-3.1 (a),when in fact it has been issued a Class IV Zoning Permit Z-IV-2006-9,per court order and by action of taken by the Planning Commission. The purported violation is to KCC Sec.8-3.1 (a),which states in its entirety:"When Required.No person shall undertake any construction or development or carry on any activity or use,for which a zoning permit is required by this Chapter,or obtain a building permit for construction, development,activity or use regulated by this Chapter,without first obtainina the required zoning permit."Emphasis supplied. The purported erroneous finding of material fact given in the Notice of Violation is that "The dust screen/wall without the proper permits constitutes a violation".SPD II respectfully disagrees. •KCC Sec.12-2.2 (51)of Title V-Building and Constructign Reeulations provides in relevant part:SECTION 420 -FENCES 420.1 General.Fences within required yard space shall be constructed in accordance with £hacter 8,Comprehensive Zonine Ordinance.Emphasis supplied. •SPD II was issued a CZO Chapter 8 Class IV Zoning Permit per order of the Federal Court and by the actions taken by this Commission. •Therefore,the temporary dust screen/wall is properly permitted. SPD II looks forward to an opportunity to address the Commission and is happy to provide additional information,as and when requested.Most importantly,SPD II would like the Commissioners to know that it is a conscientious landowner,and committed to being a good neighbor to the Kauai community.Mahalo for your time and consideration. PIanning Commission November30,2021 Page 6 GOODSILL Very truly yours, GOODSILL ANDERSON QUD^&STIFEL Cate Goodwin Counsel for Applicant SPD II Makaiwa Resort Development,LLC CG PLANNING COMMISSION KAAINA S.HULL,CLERK OF COMMISION MEMORANDUM DONNAAPISA.CHAIR HELENCOX.VICECHAIR GERALDAKO,MEMBER MELVIN CHIBA.MEMBER FRANCIS DEGRACIA,MEMBER GLENDA NOGAMI-STREUFERT,MEMBER LORI OTSUKA,MEMBER To: Fr: Date: RE: Honorable Commissioners Kauai Planning Commission Kaaina S.Hull Clerk of the Commissiori December 12,2021 Clerk ofthe Commission's Recommendation to Refer an Appeal ofthe Planning Director's Decision Related to the Planning Director's Second and Final Notice of Violation &Order to Pay Fines for construction of a dust screen/wall without permits on property situated in Waipouli,Kauai,SPD // Makaiwa Resort Development LLC,Tax Map Key (4)4-3-002:15,16 and 20,received on November 30,2021,for referral to Board and Commissions as Contested Case File No.CC-2022-2. Please refer this appeal filed as CC-2022-2 to Boards &Commissions to conduct the required analysis and contested case hearing,as necessary. Services should include but not be limited to:procure the services of a hearings officer, conduct the hearing,consolidate appeals where necessary,dispose of all pre-hearing motions,receive and record all evidence including subpoenaing any witness,and render a recommended filings of fact,conclusions of law,decision and order for the Planning Commission's Action. 4444 Rice Street,Suite A473 •Lihu'e,Hawai'i 96766 •(808)241-4050 (b) An Equal Opportunity Employer <T.i.<» JAN11 Ka'aina S.Hull Director of Planning COUNTY OF KAUA'I PLANNING DEPARTMENT DIRECTOR'S REPORT Jodi A.Higuchi Sayegusa Deputy Director ofPlanning I.SUMMARY Action Required by Planning Commission: Permit Application Nos. Name ofApplicant(s) Consideration ofApplicant's request to AMEND Condition No.9 of the SMA Use Permit,Project Development Use Permit,and Class IV Zoning Permit to allow completion ofthe project. Special Management Area Use Permit SMA(U)-2005-4 Project Development Use Permit PDU-2005-7 Class IV Zoning Permit Z-IV-2005-7 AHE OROUP (formerly A &B Properties,Inc.) Makani Maeva,Representative II.PERMIT INFORMATION PERMITS REQUIRED Use Permit Project Development Use Permit A Project Development Use Permit was required to allow allocation and transfer of surplus residential density from the single-family development to the multi-family development ofthe project. Variance Permit 11 Special Permit Zoning Pcrmit Class IV D iii A Class IV Zoning Permit was a procedural requirement for obtaining a Project Development Use Permit and since Ihe project consists more than fifty (50)residential dwelling units. Spccial Management Arca Pcrmit KIUse Q Minor An SMA Use Permit was neccssary since the project exceeded the financial threshold for a "development. AMENUMENTS I1 Zoning Amendment General Plan Amendment 3;^.^t. JAN11 State Land Usc District Amcndmcnt Date of Receipt of Complcted Application: Date ofDirector's Report: Datc ofPublic Hearing: Deadlinc Date for PC to Take Action (60TH Day): III.PROJECTDATA N/A January 11,2022 N/A N/A IV.LEGAL REQUIREMENTS SMA(Ll)-2005-4,PDU-2005-7,Z-IV-2005-7:Director's Report [2NO Ext; AtlEGROUP 1.03,2022 2 1 P age PROJECT INFORAMTION Parcel Location:Port Allcn.The parcel situated on the makai side ofthe Kaumuali'i Highway and immediately adjacent to thc Port Allen small boat harbor area. Tax Map Kcy(s):2-1-010:062 I Area:|3.8345 acres ZONING &DEVELOPMENT STANDARDS Zoning:Residential (R-10)&Open (0) State Land Use District:Urban Gencral Plan Designation:Rcsidential Community Hcight Limit:55 feet for Multi-Family Residential Buildings Max.Land Coverage:50% Parking Rcquircmcnt:Off-street parking provided on-site Front Sctback:lOfeet Rcar Setback;lOfeet Sidc Setback:5 feet OR '/2 Wall Plate Height Community Plan Area;NA. Community Plan Land Usc Uesignation: NA. Deviations or Varianccs Rcquestcd:NA. Scction 8-3.1(f),KCC:N/A Commission Mceting Date:JANUARY11,2022 , V.PROJECT DESCRIPTION AND USE BACKGROUND The project (refcrred to as the Port AIIcn Rcsidential development)originally consisted of 17.5 acres ofland area.Approximately 15.6 acres ofthc parcel was zoned Residential District (R-10)and 1.9 acres was situated within thc Open (0)zoning district.Based on the zoning and land area,the subject property would have qualified for a maximum rcsidential density of 156 residcntial dwelling units. The project was considered through a Project Development (PD)whcre the Master Plan consisted ofsixty (60)single-family residential units/lots (Keala 'Ula)and sevenly-five (75)multi-family residcntial units (Kai 'Olino)for a total of 135 dwelling units.The project intent ofthe PD Use Permit was to allow the subdivision and to transfcr the surplus ofresidential density from the single-family development to the multi-family devclopment. The subjcct permits was approved by the Planning Commission on February 22,2005.A condition ofthe permit required the Applicant to complete the project within fivc (5)years from the datc ofapproval ofthe subject permits.As originally approved,Condition No.9 rcad: P.The Applicant shall substantially commence construction ofthe project development within one (l)yearfrom the date offull approval and shall complete construction ofthe project development wilhin 5 years from the date ofapproval ofthe subject permits." Sincc its approval in 2005,the single-family residential development has been completed through Subdivision Application No.S-2005-1 (Keala 'Ula Residenlial Subdivision)and it obtain final subdivision approval on Septcmber 28,2006. The Applicant most recently appeared before the Planning Commission on October 13, 2020 and successfully obtained a time extension to complcte the project.The deadline to complcte the project was cxtended to February 22,2022 and Condition No.9 was subsequently amended to read: 9.The AppUcant shall substanlially commence construclion oflhe project development wilhin one (1)yearfrom the dale offull approval and shall complete construction oflhe project development by February 22,2022" VI.APPLICANT'S REASONS/JUSTIFICATION REOUEST As representcd in the correspondence,the Applicanl is seeking additional time to complete Ihe multi-family developmcnt portion ofthe project.The basis ofthe extension request is contained their letter dated December 7,2021. SMA(U)-2005-4.PDU-2005-7,Z-IV-2005-7;Director's Report [2"o Ext) AHEGROUP 1.03,2022 3|Page In order to accommodate the time extension,it would be necessary to amend Condition No. 9 again to allow a reasonable period to acquire financing and complete the multi-family residential project (aka.Kai 'Olino). VII.PRELIMINARY EVALUATION In considering the Applicant's requcst,it should be noted Ihat the single-family residential dcvclopment has been completed and occupied by residents for over a dccade.The department can validate that there has been aclual improvemcnts on the multi-family site that includes constmction ofretaining walls along thc harbor side ofthe parcel as wcll as a pool that would have served the multi-family development.The infraslructure improvements related to thc Port Allen Residential development havc been complcted and the interior roadways have been already dedicated to the County ofKaua'i. Based on the circumstanccs involving this development,the Applicant's reasons to allow a time extension arc justifiable and no problems are forcsccn in granting the Applicant's request. FinaIIy,the departmenl further supports the amendment to Condition No.9 in order to complete the final phase ofthis affordable housing development.It is further rcitcrated that the majority ofthe site work and infrastruclure related to the Kai 'Olina projcct was already complctcd through the residential subdivision phasc. VIII.PRELMINARY RECOMMENDATION It is recommended that thc Commission approvc the extension oftimc to allow the completion ofthe multi-family development ofthe project and that the Applicant be subjected to the applicable requirements.Furthcrmore,Condition No.9 ofSpecial Management Area Use Permit SMA(U)-2005-4,Project Development Use Permit PDIJ- 2005-7,and Class IV Zoning Pcrmit Z-IV-2005-7 be amended to read as follows: 9.Ihc Applicant shall substantially commcncc construction ofthe projcct development within one (1)ycar from the date offull approval and shall complete construction ofthe project development by Februarv 22,2024 [Fcbruary 22,2022]. l;urthcrmore,the Applicant is adviscd that all applicable conditions ofapproval shall remain in effect. *NOTE:Matcrial to bc dcletcd in brackets &strikcthrough,and ncvv matcrial is underlincd. DALE A.QUA Planner SMA|U)-2005-^1,PDU-2005-7,Z-IV-2005-7;Director's Report (2No Ext) AHEGROUP 1,03.2022 41P age Approved &Recommended to Commission: By^ LA'AINA s" rfector of Planning Date:/^/Z-'Z- SMA(U)-2D05-4.PDU-2005-7,1-^-2005-7:Director's Report [2No Ext) AHEGROUP i .03.2022 5|Page EXHIBIT"A" (Applicanfs Correspondence) AH€_ GROUP December7,2021 VIA E-MAIL (khull(5>kauai.aov) Mr.Ka'aina Hull Director,Kauai County Planning Department 4444 Rice Street,Suite A473 Lihue,Hl 96766 RE:Kai 'Olino Housing Development Special Management Area Use Permit SMA(U)-2005-5 Class IV Zoning Permit Z-IV-2005-7 Project Development Use Permit U-2005-7 Port Allen,Kauai Tax Map Key:(4)2-1-010-062 CPRs 0001-0075 Applicant-AHE GROUP (formerlyA&B Propeties,Inc.) Dear Ka'aina: The Ahe Group is an active affordable housing developer who has successfully built several affordable housing projects on Kauai including Kaniko'o 1 and II (90 units)in Lihue and Kolopua (44 units)in Princeville.In December of 2020,we completed Waimea Huakai (36 units)in Waimea,and we are currently leasing our Pua Loke project (54 units)in Lihue.Our newest project,KaiOlino will be 75 units on land we recently purchased in Port Allen,Kauai. On October 13,2020,the Planning Commission approved our request for an extension of time to complete construction. Specifically,the Planning Commission amended Condition No.9 of the above referenced approval to read as follows: "9.The Applicant shall substantially commence construction of the project Development within one (1)year from the date of full approval and shall complete construction of the project development by February 22,2022." Since the time of your approval,Ahe Group has purchased the property and subsequently, applied for 9%LIHTC financing from the Hawaii Housing Finance and Development Corporation"HHFDC".Unfortunately,the project was not awarded financing. However,our enthusiasm remains undaunted,and we continue to be committed to building Kai Olino as planned.We will be submitting another application to HHFDC in February of and an important element to the evaluation of the application will be the confirmation that the entitlements for construction of the project remain in full force and effect. Mr.Ka'aina Hull December 7,2021 Page2 Please accept this letter as Ahe Group's request to be placed on the Planning Commission's next meeting so that we may update the commission on the status of the project and request a two (2)year extension to Condition No.9 to February 22,2023. Thank you for your time and consideration.We look forward to answering any questions you may have. Sincerely, Makani Maeva 157MakawaoStreet,Kailua,H196734 8083815958 8087787920 info@ahegroup.com www.ahsgroup com