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HomeMy WebLinkAbout2021-03-18 Leeward Exh B (USE 21-085) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MARCH 18, 2021 A regularly advertised hearing on the application of ARTHUR AREJIAN TRUST (USE 21-000085) was called to order at 10:54 a.m. via live-stream online meeting, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Nancy Carr Smith, Barbara DeFranco, Perry Kealoha, Max Newberg, and Mark Van Pernis ABSENT AND EXCUSED: Faith"Faye" Yates ALSO IN ATTENDANCE: Malia Hall, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), April Surprenant(Planning Program Manager, Long Range Division, on behalf of Deputy Planning Director), Alex Roy (Planner), Maija Jackson (Planning Program Manager), Tracie-Lee Camero (Planner), and Noriko Sauer(Leeward Planning Commission Secretary) APPLICANT: ARTHUR AREJIAN TRUST (USE 21-000085) Application for a Use Permit to operate a four(4)bedroom Bed and Breakfast in an existing residence situated on a 14,530 square foot lot within the State Land Use Urban District. The subject property is located at 78-6626 Alii Drive, approximately 0.5 miles south of the La`aloa Road intersection, Kahalu`u Beach Lots, North Kona, Hawaii, TMK: (3) 7-8-014: 076. VITOUSEK: Item number 2, New Business, applicant is the Arthur Arejian—am I saying that right? Arthur, I see you are on, would you correct me? AREJIAN: Yes, Arejian. VITOUSEK: Arejian. AREJIAN: Yeah. VITOUSEK: Arejian. Thank you. Arthur Arejian Trust, that's an application for a Use Permit to operate a four-bedroom bed and breakfast in an existing residence situated on a 14,530-square foot lot within the State Land Use Urban District. The subject property is located at 78-6626 Alii Drive, approximately 0.5 miles south of the La`aloa Road intersection, Kahalu`u Beach Lots, North Kona, Hawaii, TMK (3) 7-8-014: 076. Our staff presentation will be by Alex Roy. Alex, are you ready for presentation? ROY: I am. VITOUSEK: Okay, take it away. 1 EXHIBIT B ROY: All right. Okay, good morning, commissioners, Chair Vitousek. I'm before you today to present for your consideration the Arthur H. Arejian Trust Use Permit application number 21-85. The applicant is requesting to operate a four-room bed and breakfast in the existing residence on the subject property. The home currently consists of five bedrooms and five bathrooms, so one of which will be used for a full-time on-site caretaker. The full-time caretaker will reside on site in the room at the south end of the house on the lower level. The proposed bed and breakfast will provide overnight accommodations to a maximum of 10 guests in the four bedrooms, of course for a period of less than 30 days. Breakfast may be provided to registered guests only. No other meals will be provided. Paved parking will include a three-car garage and two paved parking spaces located on the property for a total of five parking spots. The applicant is also noted that no exterior signage is proposed for this bed and breakfast. Here is a location map. I've got it marked in red. The address there, 78-6626 Alii Drive, between Magic Sands Beach Park and Kahalu`u Beach Park to the south of the project site. Here is the county zoning. Outlined in light blue here in the middle is the subject site, within the RS-7.5, so Residential, Single Family Residential-7,500 square feet. You could see across Alii Drive pardon me, offline GIS but across the street you see the same RS zoning, and then it moves into Multi-Family Residential. South of the project site, we see the Kahalu`u urban this is a Resort Node, Resort zoning, so it's about 500-or-so feet, and then there is some A-5a Agricultural parcel up along. So the road going along here is of course Alii Drive. The State Land Use Boundary Map shows the entire area as within the Urban district, with a small portion of Ag that was that A-5a zone district over there. The General Plan, or LUPAG Map, shows the property is between Open and Low Density Urban. The Open just to remind the commissioners the Open zoning typically is aligned with the shoreline setback area. So the LDU, the Deputy Director had accepted the LDU as acceptable, Low Density Urban. And then of course the Resort Node to the south is Medium Density Urban. Here is an aerial photograph of the existing structure. You can see it's along—it's a couple of stories—right along the shoreline. And this is existing use as a single-family residence. Alii Drive of course running through, and you could see a number of residential structures dotted throughout, rocky coastline with some beach fronting makai of the subject parcel. Here is a site plan. Now, the commissioners did receive in their background and recommendation all the site plans. I just put a couple up for reference. One here kind of shows the property, and I put this up for two reasons, one to kind of show you the distance from the shoreline and the structure and how it's laid out on the property. But there is a couple the trees here along Alii Drive are actually within the right-of-way, and DPW has requested, and went in as a condition of this recommendation, that these be removed. So that's per DPW has asked that these trees be removed. Now, the applicant is removing a coconut palm here that is actually encroaching on to the neighbor's roof, so they are going to be taking that out. 2 EXHIBIT B I added this in just to kind of show the parking spots, so, as existing and then proposed on the top. Here is the additional parking spots that are going to be added to and then the three-car garage kind of outlined. There is not a lot of changes. A lot of the changes are interior, and again for the commissioners, note that an SMA assessment has already been approved by the Planning Department to do those interior changes in preparation for this change of use. I placed this, the proposed on top, existing on the bottom,just to show you the changes from the ocean looking towards the property, so this is from the ocean looking mauka. So you see there is very little change to the structure itself. Here is a view of the property looking south along Alii Drive. The structure itself on the right, and then you note right next to our little county vehicle the palm trees that are to be removed out of the county DPW's right-of-way. I didn't capture the tree that's going to be removed, but it's right over here on the right-hand side. Also, for your consideration,just to provide the information, there is a public shoreline access adjacent to the property. Now, it is not on the property but it is between this property and the one to the south. You can see in the picture on the left, we have the shoreline signage very clear, and then I took a shot of the actual access, which is clear and open and was easily to, you know, get down to the shoreline. So the parking is unclear, how people park here, but there were no parking, there were no, no parking signs. But, but the access is full and accessible, fully open and accessible, and the applicants will work to keep their vegetation out of that. So at this time the Planning Department's deputy director's recommendation is to approve this Use Permit with the conditions as stated. And I'll be happy to take any questions from the commissioners. VITOUSEK: Before we get into questions, I do want to mention that on February 25h, we received an incomplete petition for standing in a contested case hearing form Mr. MarkI believeRochin. This application was incomplete in that the appropriate filing fee was not attached to the contested case application, and that it was not notarized as is required to be considered for standing in a contested case hearing. The person who filled out that application is not here to present today. Therefore, his comments can't be considered to be distinguishable from that of the general public; therefore, we would have to consider his application as we would consider any other public testimony, and not consider in the light of, as contested case. With that, can we make a motion to deny the standing for contested case hearing based on the incomplete application? CARR SMITH: So moved. VITOUSEK: Moved by Commissioner Carr Smith. Is there a second? KEALOHA: I'll second that. VITOUSEK: Second by Commissioner Kealoha—now we are going to miss you guys. Any discussion? Commissioner DeFranco. 3 EXHIBIT B DEFRANCO: Yeah, I just had a question about the septic tank and the cesspool. VITOUSEK: Oh, specifically, any questions specifically on the contested case on the DEFRANCO: Oh, sorry, no, I don't have anything, I'm good with that. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: Did the department consider the matters referred to in the, did the department consider the matter raised in the application, although the application is only going to be considered as public testimony? VITOUSEK: Go ahead, Alex. ROY: We did. I actually tried to contact the petitioner by letter and by phone, and got no response. We addressed the comment, and as you can see, there is one comment, "Do not cut the coconut trees." And as I explained in my presentation, that is actually not our requirement; that's a requirement being put forth by DPW. VITOUSEK: Okay, so, again, not discussing the specific merits, but his testimony would then be considered as public testimony, not, not as contested case testimony. So with that, can we—is there any further questions on the motion on the floor? Okay, let's, let's vote on that. All those in favor? (No audible response) Okay, any opposed? (No audible response) No opposition. Okay, with that, we can proceed on with questions of staff on the specifics of their presentation. Commissioner Van Pernis. VAN PERNIS: Was any prohibition,prohibition or barrier to parking on Alii Drive considered? And I've raised this because I'm familiar with these properties, have seen and been to the property, and it abuts almost to up to Alii Drive, and it's natural that people want to park on Alii Drive. And I don't see why the county should provide parking for this commercial activity. ROY: Well, we are not providing parking for—in fact, as I thought it was clear, the area mauka of the structure and the parcel in question is actually into the authority of DPW, and the Planning Department doesn't have any provisions to allow for parking in the right-of-way; you would have to take that up with Public Works. We have noted that there's five parking spots being provided for this use, and those will all be on the subject parcel. VAN PERNIS: Basically, so that's, so that's basically no, there is no consideration of requirement that the applicant address that issue. VITOUSEK: Okay, Commissioner DeFranco. DEFRANCO: Yeah, thank you — 4 EXHIBIT B VITOUSEK: Oh, I'm sorry, Maija, I'm not still getting used to the little hand thing. I'm sorry, go ahead. Is there a response to that? JACKSON: Yeah, thank you, Chair. So the Planning Department did consider the parking situation. And in the zoning code it states that all uses need to provide their own on-site parking. And so in this case, the applicant is providing the minimum required parking in the zoning code, and so, with that, if that section of Alii Drive, if our county Traffic Division has allowed on-street parking, then it's allowed for anybody. If Traffic has restricted on-street parking in this area, then it would not allow for on-street parking. So the applicant is providing all required parking on site, and the Planning Department did consider that. VITOUSEK: Okay. Commissioner DeFranco. DEFRANCO: I just wanted to bring up the, you know, in the Wastewater portion, number 20, it talks about a permitted cesspool from 1987. And wondering what the requirements is for cesspools and septic tanks now. I mean, is this being considered in this approval? ROY: Well, the Department of Health is the one responsible for regulating the septic systems, and so there is no provision for the Planning Department to force an applicant to remove a septic tank, cesspool, and replace it. And I believe that there is something coming from the state that's moving towards that in the future, but the Planning Department doesn't really have that authority VITOUSEK: But what— ROY: hatROY: Go ahead, Mike. VITOUSEK: What about as a condition of approval for a bed and breakfast use? ROY: Yeah, I'm not clear on what we could require the applicant to do outside of DOH rules, state rules, so—maybe Maija or April can answer that question. VITOUSEK: Sure, I mean I definitely share that concern, given that, you know, a cesspool on the oceanfront lot is basically having a pipe of sewage into the ocean, I mean, the amount of time it's going to take for that sewage to reach the ocean is zero, and especially, if you are adding 10 guests a day, we would be having a pretty big effect. So I think it's worth looking at, while they are in here doing their $150,000 renovation, whether now is the time to request that we convert from cesspool to septic, which will at least slow the leach of waste material into the ocean. Maija, I see the hand again. JACKSON: Thanks, Mike. So the applicant may actually be able to respond to that question a little bit better because they've probably talked to Department of Health to see whether they are going to require a conversion from cesspool to septic with the building permit that's in process for the interior renovations. Sometimes interior renovations don't trigger a conversion and 5 EXHIBIT B sometimes they do, and it's all up to Department of Health. So I think the applicant can better respond to that. VITOUSEK: I understand there, but I believe the question that we have is whether or not as a condition of the issuance of Use Permit that the Planning Commission can include that as a condition. JACKSON: You can. VITOUSEK: Okay. JACKSON: You have that authority. VITOUSEK: Okay. Is there any questions from any other commissioners that haven't spoken yet? Commissioner Carr Smith. CARR SMITH: Yeah, that just lead me to wonderI think it's 2045 that cesspools are supposed to be replaced by septic system. So, is there anything in the county plans to begin to recommend replacement when Use Permits or any other kind of permits come up? Or is that not really on the radar right now? Just curious. ROY: Yeah, Maija or April will have to answer that question. VITOUSEK: Go ahead, Maija. JACKSON: I think actually April. She's here acting on behalf of the director today, and she's our manager of long-range planning; she has a better idea of the county's long-term plan for a cesspool conversion. SURPRENANT: Thank you all. April Surprenant with the Planning Department. Thanks for having me here today. Again, I think we are, the county is following the guidance from Department, state Department of Health. And so we are considering some things in the next round of the General Plan, which would—we are not ready to reveal that or discuss all of that quite yet—but those are, those are part of the considerations going into our long-range plans as a whole. But for now all we can go by is the direction and codes, laws, and rules as provided by the Department of Health. I would also add that the house was permitted as a five-bedroom house, and so that is not being expanded or extended, so theoretically, a family, a large family with guests could also occupy the same dwelling. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: Thank you. I note that the county's background report and recommendation talks about the 10-occupant B and B while the state Department of Health refers to a requirement of a six-person, guests are not to exceed six, so six and a caretaker will be seven. How do, how does staff rectify the difference between the 10 referred to in the application and the six referred 6 EXHIBIT B to by the state Department of Health. Should the county concede to the state's six requirement? I'm talking about the March 4, 2021, memorandum of the state Department of Health. ROY: Ten is the maximum number of guests allowed at a bed and breakfast. I'm not sure why the Department of Health only stated six, but— VITOUSEK: utVITOUSEK: Do you knowI mean, they indicated in their letter that under the definition of bed and breakfast the limit is six—do you know what definition they were quoting? They didn't quote any ordinance in that statement. ROY: Yeah, that's, that was what's unclear to me, Chair, is, you know, bed and breakfast establishment, is that DOH's definition or—you know, unfortunately, we got this only just a few days ago. DOH decided to wait until the eleventh hour to send us comments. So I'm not sure why, or what ordinance or where they came up with that definition. I can look into that, though. VITOUSEK: That will be great. I mean I'm definitely sympathetic with the situation that DOH is undertaking at the moment. But that would be helpful, you know, considering the Hawai i County Code 25-4-7 indicates a limit of 10 that's not to exceed for bed and breakfast, so I was, I also had the same question as Commissioner Van Pernis about the discrepancy. Commissioner Van Pernis. VAN PERNIS: I'd ask Mr. Roy if it's appropriate to, from this point of view, to defer this matter until the discrepancy between 10 and six, which Mr. Roy states he doesn't know why that differential exists at this time. Would it be appropriate to defer until the matter resolved, result in a possible different recommendation about limiting the B and B to six? ROY: I think you should discuss with the applicant if they would be willing to reduce the number. The application came in for 10, the county code allows for 10. So, to defer, I think, you know, would rely on the applicant willing, willingness to do so. I don't believe it's necessary. VITOUSEK: Is it something that our corporation counsel can weigh in on as to if they have any indication on whether the state has rules that establish a limit at six, and where we fit with the discrepancy that's presented to us? HALL: I would have to do the research. I'm going to defer to Maija if she knows the state rules. JACKSON: Thanks, Malia. Yeah, so, the definition that you see before you in their memo is actually from Hawaii Administrative Rules from the Department of Health's food safety code. So the Department of Health has a different definition than we do in our zoning code for B and B. What this simply means is that these rules in their memo apply to their definition of a B and B; since this 10-bedroom B and B does not fit DOH rules, any food service that they do is going to have to comply with whatever other DOH rules they have for food safety for establishments above six bedrooms. So I don't know that it necessitates deferring; I think it's just one of those cases where we have two different definitions. Regardless, the applicant will have to comply with DOH rules for food safety. 7 EXHIBIT B CARR SMITH: Chair Vitousek? VITOUSEK: Yes, Commissioner Carr Smith. CARR SMITH: Could we go ahead and hear the applicant's presentation so we can see where they stand on this? VITOUSEK: Sure. Commissioner Van Pernis, is there anything else you want to add before we have the staff, applicant's presentation? VAN PERNIS: Yes, I'd like to have a question of Ms. Hall or Ms. Jackson in response to what has been said. Is it correct, am I correct in saying that the state could take legal action to limit the guests to six while the county depending on the ordinance say 10? And then if the state prevails, the county would have liability to the applicant for the lost income of the additional four? HALL: I'm sorry, Commissioner Vitousek, I mean, Van Pernis, I'm going to need you to repeat your question. VAN PERNIS: Okay, if the state through its action, legal action or otherwise, limits the B and B to six persons while the county ordinance says 10 people, does the county end up with liability to the applicant for the additional four that were approved in violation of the state? HALL: I would have to do research into the case law, but I'm going to, off the top of my head, I'm going to say no. VITOUSEK: I just want to add, I think I've got a little bit of more information you know, nice thing about having these meetings online and having two computer screens is that I looked up the Hawaii Administrative Rules, Chapter 50, and there is no definition of bed and breakfast in that, in that administrative rule. What is stated about bed and breakfast is that an exemption to the food establishment permit is provided for a bed and breakfast that is under six guests. So, therefore, if a bed and breakfast is over six guests, they have to get a food establishment permit from the state. So there is no limit on the number of guests imposed by the state's food service rules; it's simply a requirement that they then get a food service permit. So with that, I think we are, we are addressed, and we can move on on that subject. The county does have authority to grant a permit for up to 10 guests. With that, we can bring in the applicant—let me get back to my script, hold on one second, shoot, that's the downside of having too many screens. Okay, we are good to go. So, the applicants, could you please raise your right hand? Do you swear or affirm to tell the truth on this matter before the Leeward Planning Commission? AREJIAN: Yes. PIPAN: I do. 8 EXHIBIT B VITOUSEK: Please state your name and area of residence. AREJIAN: Arthur Arejian. I live on Alii Drive in Kailua-Kona. PIPAN: John Pipan, Land Planning Hawaii. I live outside of Honoka`a, Hamakua, Big Island. And, Bryan, Bryan Lindsey, is a project architect—(to Mr. Lindsey) I'm not sure if you want to introduce yourself here, you are still on mute. VITOUSEK: That would be great. Bryan, go ahead. LINDSEY: Yeah, Bryan Lindsey, architect, I live in Captain Cook. VITOUSEK: Okay, Mr. Arejian, have you received the background recommendations, background and recommendation report from the Planning Department? AREJIAN: Yes. VITOUSEK: Do you agree with the planning director's recommendation, including the proposed conditions? AREJIAN: Yes. VITOUSEK: Okay,please go ahead with your presentation. PIPAN: John Pipan, Land Planning Hawaii, I'll start off just for some background. It's been a rough year and a half almost now; the pandemic has had impacts on all aspects of daily life and business here in Hawaii. And the construction industry and, has been a little bit of a bright point, and looks like tourism is starting to get restarted. And throughout this downturn, the applicant, Mr. Arejian, has been pumping money and investing into this property, trying to improve its use, trying to contribute to Hawai`i's economy through the increase in property taxes, GE and TAT taxes, maintenance and management and all of the construction that's going into it. So in evaluating these Use Permits, these are uses that are established within zoning code that should be allowed, given that there is no substantial adverse impacts and it's consistent with the county General Plan and zoning. We've seen in the recommendation that that looks to be the case. There are a couple of wrinkles that we pointed out, or have been pointed out, in terms of the wastewater; we can discuss that further. And it looks like we've addressed already the DOH comment. So far, we intend to provide only non-potentially-hazardous food items, which are exempt from DOH regulation and food establishment permitting; so these are things like pastries, commercial cereals,juice, coffee and tea, very basic, non-hazardous foods. That's the one thing. I'm glad we've got that settled. The cesspool is definitely a trickier question. I did a little bit more research, and this approximately a half-mile stretch of Alii Drive has over 50 lots, most of those with dwellings, and a vast majority of those are on cesspool. The county wastewater system terminates about 1,200 feet north of Mr. Arejian's property, and the private Kahalu`u system terminates about 1,200 feet to the south. As far as I know, there is no plans for extending 9 EXHIBIT B either of those sewers in the near term to the subject property, but that would be the best solution that would serve these 50 lots that would provide for the highest level of treatment, and it would be most cost effective, not, not saying that it wouldn't be costly, but. So that would be the preferred alternative to have, yes, all of these cesspools converted by converting them to sewer use; that would be the best for the environment, nearshore water quality, etcetera, and so forth. So that would be our preference, and I think we'll find that the applicant, Mr. Arejian, is very reasonable and acceptable to reasonable conditions to be imposed on this. So with that, I'll turn it over and hope for just a very respectful discussion with lots of aloha and fair and impartial treatment, that's all we ask for. Thank you. VITOUSEK: Okay, are there any questions from commissioners? Commissioner DeFranco. DEFRANCO: So, back to the waste management, so you've said that, you know, it's an existing cesspool, and granted the other people have cesspools, but the opportunity, the third opportunity is to do a septic system. Have you considered this? PIPAN: Yes, andoh, can I go ahead and respond? VITOUSEK: Yes, yep. PIPAN: So the trick comes with the size and the layout of the parcel and the existing cesspool. If we bring up the site plan, or if you just recall the site plan, the parking is all on the mauka side next to Alii Drive, tucked in the north-end corner of the usable area of this parcel. The cesspool is there, it's 10 by 4 by 10 feet deep, concrete reinforced, you know, all permitted, all up to spec at the time it was installed. So, to design and actually install a septic system there is going to be a little tricky, given the space constraints. I'm not saying that it's impossible; it may be possible. There is an additional wrinkle in that this is a shoreline parcel, and the certified shoreline that we've got on our site plans is from the late, mid-late 80's. Shorelines change. If we plan to put in a septic system, this is going to instigate another round of Special Management Area permitting, they are going to likely, the Planning Department is likely going to look at the certified shoreline from the 80's and request that it be updated. So a new shoreline, may it be closer to the, to the dwelling, could put the backside of the dwelling within the 40-foot mandatory shoreline setback. So then we would be in the position where state law prohibits us from putting in a septic system because it's too close to the shoreline. So what do we do in that situation? We would have to A,prepare an environmental assessment, and B, seek a shoreline setback variance to put the cesspool, or put the septic system in, or any improved wastewater treatment options. So it's not that we are averse to doing this. This is a good idea. It's just there are complicating factors, namely the shoreline setback. VITOUSEK: How far down the road have you gone in that analysis? Have you, have you priced it out and done anything concrete in terms of figuring out what cost it would be to get a cesspool up- or septic upgrade? PIPAN: So,just generally, septic systems run-of-the-mill, kind of easy to layout, not, not any tricky situations would be 10 to 15,000. This one, given that we've got space constraints, we may have to do something innovative or, you know,just unusual that is still within the DOH 10 EXHIBIT B regulations like a seepage pit, so turning the existing cesspool, pumping it out, cleaning it out, and using that as the disposal system for the effluent coming out of the septic system; that's an option maybe, I haven't spoken with the engineer about it, I'm not an engineer myself. There may be options. I just really not like to put the applicant in a tough situation in agreeing to a condition to upgrade to septic system, but then not being able to due to the shoreline. VITOUSEK: Commissioner Kealoha. KEALOHA: I'm wondering if this application doesn't put you in a position of a large-capacity cesspool and require that transition anyway? PIPAN: So we had wastewater, water and wastewater calculations prepared by a licensed engineer, Island Engineering, and the expected water use and therefore water effluent from the property is under the Department of Health limits for, you know, cesspool, septic systems; it's not a large-capacity cesspool. KEALOHA: I'm thinking about use being the commercial capacity, if that doesn't change it to a large capacity and require those changes. PIPAN: Yeah, I'm not sure if this would kick it over in that respect. And again, we are not at all opposed to doing a septic upgrade. We think, you know, that is a worthwhile avenue, but it's tricky because we may not be able to just based on the shoreline setback, recent changes Act 16, the 205A; there is no more 20-foot shoreline setback, which this parcel originally was built within that framework. So this is coming up a lot, and you will probably see a lot more projects where this little wrinkle gets exposed where if a parcel is built up with the 20-foot setback, but now the setback is 40 feet. So anything going forward and anything not fully permitted, which this place is fully permitted, would have to adhere to that 40-foot setback. VITOUSEK: Yeah, I just wonder—maybe this is a question that would be better suited to the architect, on design for a cesspool and how we are going to accomplish that. Bryan, would you mind giving us your perspective on that? LINDSEY: Yeah, again, a bit out of my expertise, but, yeah, going back to John's comments, yeah, there is no, no area, obviously, on the ocean side for installing anything. I do know a full septic system also has a five-foot setback from property lines, so looking on the, you know, Alii Drive side, again, there is, you know, there is no, not much room to put it. I, I'd have to talk to my civil engineer to see if it could be done, but it's, the feasibility doesn't look great. VITOUSEK: And then maybe someone from the county could address the statement about not being able to do it for different codes and regulations. Because it seems to me like putting in a septic system would be a pretty big benefit for the environment, and we should probably look at all avenues possibly make that happen. Is there any restrictions from a regulatory perspective that would prevent them from converting? ROY: There is the 40-foot setbackI'm going to go ahead and share my screen and put up this plan here, I think that'll help us be able to discuss this a little better. So right now you can see 11 EXHIBIT B that the cantilevered lanai is 20-foot, so that's a 20-foot setback from the 1985 certified shoreline. As John mentioned, most likely the shoreline will have migrated mauka, so that means that they are going to have to implement a 40-foot setback, which will bring us somewhere within, you know,probably just underneath the house structure,possibly even further. The limitations with a conversion from a septic, cesspool to more of a drain field structure, you know, there seems to be some confusion that by getting rid of the septic tank and putting in a new drain field system would somehow alleviate material going into the water; that's not the case. It still would be leaching in,just be leaching in a much broader area. The hope and there has been some discussions I've seen—would be to carry sewer down Alii Drive possibly and attach these structures, which to me would be the best environmentally sensitive way to deal with the septic issues that are not only facing Alii Drive but it is happening across the state. You know, every island is facing this issue with material from septic tanks, you know, Kauai is dealing with an old landfill that's now being exposed at the shoreline. So this is an issue for sure, but a broader, more comprehensive system, I think, would be effective. To put the burden on the applicant when they have very little room, I think, may lead to future problems that, you know, would take a lot more engineering to resolve. But as this shows, there is just not the space to do something, you know, if they were to put it, you know, have to deconstruct the house to place a septic tank underneath it, you know, the impacts alone from that process could be more detrimental. But, again, this is a, this is a statewide problem that is being faced, but it appears to me to be looked at from a more comprehensive fix, systemwide fix. VITOUSEK: Is there any systemwide fix in the works now that the applicant could contribute to? ROY: It doesn't appearI wasn't able to find any, anything clear and concrete, only, you know, limited discussions over time about producing, you know, you have the Resort Node that's 500 feet south of this property. I'm not sure where the septic lines, the sewer lines are. And unfortunately, Alii Drive is at a low point, so any septic will have to require pumping stations, things like that, so it's a, it's an extremely big problem. So I just have some concern putting the burden on one applicant to really kind of, you know, resolve that issue when this might be better suited for a more comprehensive solution from the departments within the county. VITOUSEK: I mean, of course, it would be better suited to have the county take care of it, you know, it's concerning the fact that it doesn't appear to be any progress in that direction for something that's so important for the environment, and, you know, we'll be faced by a number of these situations, where here we have an applicant trying to do something that will increase the effect, the environmental effect, and it will be a perfect opportunity for us to require them to make a contribution to like a sewer district or something like that in order for the regional problem to be solved. You know, it's tough that we don't have that ability because of the lack of planning on the county side. ROY: Yeah, I'm not sure of any provision that would but, of course, you know, as the Planning Commission, you have the right to move that forward. VITOUSEK: Right. Commissioner Carr Smith. 12 EXHIBIT B CARR SMITH: So if I understand correctly, you are pretty much banking on the possibility of connecting to one of the two sewers, either north or south, at some point in the future. Is that correct, John? PIPAN: Thank you, Commissioner Carr Smith. Not necessarily. Like I said, we are not at all opposed to implementing and converting to septic system. The trick is not having complete knowledge of where the certified shoreline would lie right now may make that incredibly difficult if at all possible. So, the condition could be written such that if sufficient space, after a certified shoreline survey is conducted, is available on the property to accommodate a septic system, then it would be installed, give it a time frame for that, along those lines, I think those would be acceptable terms. We don't—yeah, obviously, a sewer system is ideal, and there are dozens and dozens and dozens of homes along this stretch of Alii Drive that have no improved wastewater treatment at this point. And many of those homes are million-dollar homes, so it makes sense for the environment, or the county maybe to have an improvement district. A contribution from each owner—I don't know these, these things are probably beyond the scope of this permit as it is, but I think, I think there could be some, some condition that should an improvement district be established, the applicant, Mr. Arej ian, would contribute to that his fair share to extend the sewer to his property. CARR SMITH: You said—one more question,please. VITOUSEK: Go ahead. CARR SMITH: Have you guys considered using the pool area if you need to? PIPAN: Like I said, we haven't spoken to an engineer, and this is going to be a much bigger impact on the Special Management Area, A, decommissioning the cesspool, digging up the driveway and parking area. I think we would have to rely on Mr. Arejian to see if he were amenable to losing the pool—I don't know, that's a pretty big ask, but we can defer to him. CARR SMITH: Thank you. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: I have a couple questions that I want to preface with the following: First, this is the Bienenfeld house that had two residents, now they are going to have as many as 10, and I think the sewage has to be addressed; secondly, the question is out of that 50-some properties that the architect refers to, how many are B and Bs with 10 people coming in, not very many if any; third, I believe from my experience being at the property that their house is up on stilts or poles, so that the construction could go underneath if any pits or other situations for sewage; and thirdly, I think the expense is justified in that this oceanfront B and B is going to make 20 or 30,000 dollars a month. Is there any response? PIPAN: Yes, I think the question as to how many of the properties around this one are used for STVR use would be better directed to the Planning Department, and maybe they can chime in on that. Based on my informal research from online listings, it looks like a fair number of them, 13 EXHIBIT B maybe 10 or so, are used in a similar way, for short-term vacation rental use. And, again, many of these houses are large and expensive right along the shoreline. As for using the under-house space, I think that is kind of moving into the wrong direction with respect to the shoreline, as it gets you closer to the water. We want to keep all the wastewater treatment on the mauka side as close to Alii Drive as practical, and I think the technical difficulty is of doing any work like that underneath the house make it a little impractical. Did I answer your question? (No audible response) VITOUSEK: Okay, we've had a pretty good discussion on this. Is there a motion someone would like to make? Oh, go ahead, Mr. Lindsey. LINDSEY: Just one point on the potential construction of a, you know, septic system. You the DOH does not allow septic systems under house; they require five feet from a wall line and five feet from a property line. So you are basically looking at, best case scenario, a five-foot sliver, you know, between the house and the property line,just as a practicality. VITOUSEK: Thank you. Commissioner Van Pernis. VAN PERNIS: Variances are allowed for such cases. Thank you. VITOUSEK: You know, I, for me, in kind of trying to digest what's going on, you know, obviously the best solution for the wastewater would be connection to sewer, but I like the concept of including language about contribution to a sewer district in the event that one is formed, because that would be the best solution; even including a septic would be a temporary Band-Aid that could be an added cost if an actual sewer was to come into the area. Again, you know, I ask anybody if you'd like to make a motion now that we've had a pretty good question-and-answer session with the applicant. And we can continue our discussion after a motion has been made. Commissioner Carr Smith. CARR SMITH: Thank you—wait, sorry, hold on. I move that the application for Use Permit number 21-000085 be approved based on the planning director's [sic] recommendation, which shall be adopted. VITOUSEK: Would itoh, can we have a second? KEALOHA: I'll go ahead and second that. VITOUSEK: Thank you. For discussion purposes, would you be amenable to including the proposed language by Mr. Pipan about possible contribution to a sewer district in the event that one is formed, a fair share contribution to a sewer district? CARR SMITH: I understand that concept, and what I understood John to say was discussion and I might have missed something—he talked about an improvement district where all property owners in the area would contribute. I have a little bit of issue putting onus on this specific property owner and not the others. 14 EXHIBIT B VITOUSEK: It would, yes, exactly, and my understanding was that they would be contributing to a broader improvement district. It would, they wouldn't be responsible for funding all of it; they would be putting their fair share contribution towards the larger project that would possibly be funded by all other entities as well. KEALOHA: So my understanding for how these things work is it would be mandatory to connect anyway; they'd be charged to connect to the system, fair share—if it's similar to what happened, you know, island-wide. CARR SMITH: So if it comes to their area, Perry, you are saying they wouldn't have a choice; they would have to connect. I guess maybe the concept is if there is an improvement district that's perhaps being more proactive and not waiting for them to come, but forcing the issue in a quicker way but I don't know that we are the body to create that. VITOUSEK: Yeah, we are not the body to create it, but we can say if one is created, that they will help to, you know,pay their fair share for it. And perhaps someone from the county could give us a little more background on whether that's appropriate and what they would recommend. Anyone from the county? ROY: I could say the language would be something along the lines of the applicant will contribute to a sewer district and sewer upgrades in the vicinity of the property if and when one such sewer district is formed. Maybe something along the VITOUSEK: Yeah, I would just add the fair share so they are not contributing everything; they are contributing their fair share. But I like that language. Maija, does that sound good to you? JACKSON: I have no opinion on this one. VITOUSEK: Okay. Commissioner DeFranco. DEFRANCO: Yes. I'm just agreeing a little bit with Perry; I'm not sure why we need the language, because when they finally do this maybe 20 years from now, they are going to mandate all the people there to pay for it. I mean that they will create that, and why would we put the language in there if we already know they are going to, it's, when they create it, that's what they are going to require. I'm not sure why VITOUSEK: I DEFRANCO: I mean I would be more interested—let me just finish my thought—in that I didn't really feel like they explored totally the septic thing, the idea of conversion to a septic system. I know it isn't maybe the answer and I know it still has the runoff into the ocean, but I think it does treat it and slow it down a little bit. And I know we are facedI don't want to put the onus on one property owner, but it's hard to allow it just to, you know,just to keep happening like this and going right into the ocean. So, I like that he was, they were willing to, like, look a little bit further to see if a septic system is even possible to be done, to upgrade it a 15 EXHIBIT B bit and to make an effort to do that, because it's going to be 20 years before Alii Drive gets dug up, unless the county has plans to do it sooner than that, I'm not sure. VITOUSEK: Well, I mean, I feelI definitely understand where you guys are coming from and, you know, for us not having any experience with a sewer district or anything like that I feel like the idea behind it is that it facilitates the construction of the sewer in advance of the connection fees. So the payments to a sewer district would be in advance so that, hey, we are going to form this sewer district, we are going to collect fees that would set and go towards the construction of the sewer, and then at that point once it's constructed, there could be a connection fee as well. This is to allow for the upfront costs of the construction of the sewer, rather than after-the-fact connection fee. I agree with your discussion about the septic conversion to, from cesspool to septic, and possibly including language about the assessment of the feasibility of that connection during the, during the permit, because ifI feel like the time to do it would be the time during the renovations and remodel. Would—is there language that you would propose to be amended to the motion on the floor? DEFRANCO: I just think that—let's see to amend it to include the exploration of the possibility of having a septic system upgrade. I mean we can't really rule that out until they've looked a little bit further into it. CARR SMITH: As the—Mike? VITOUSEK: Yes, Commissioner Carr Smith. CARR SMITH: As the maker of the motion, I felt, I guess, Barbara, I felt that they have looked into it. I was pretty satisfied with John's discussion about the options that they have. And it's my opinion is that they are going to have to deal with that regardless when the time comes because everybody is, but it's down the road. Maybe there are some other options. There is, it seems that there is nothing that the county is requiring right now in terms of, you know, something that triggers the upgrade sooner than what the state has proposed. So personally, I don't think that there is a need to require that. But, Perry, what do you think? DEFRANCO: Ican I respond? CARR SMITH: Oh, sorry. DEFRANCO: I agree KEALOHA: DEFRANCO: Oh, go ahead, Perry. VITOUSEK: Let's see, go ahead, Perry, go ahead. 16 EXHIBIT B KEALOHA: I'm just going to say, you know, this is my last meeting, and it's kind of ironic that I'm jumping in here technically, but I have a strong suspicion that the change in use will trigger a large capacity and will require that change sooner than you think. VITOUSEK: Okay, Commissioner DeFranco. DEFRANCO: Yeah, I just, I agree with you, Nancy, on what you said, and I'm glad to know what you are saying, too, Perry, because I think that it may make, that it may get changed on its own and it'll trigger something. So, you are right, there is no telling when, when this will move any direction, but. Thank you. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: Unlike the other landowners or property owners in the area, moving as to enable this applicant to make hundreds of thousands of dollars a year—and I think it's the commission's job to be proactive in suggesting or encouraging the kind of improvements that are necessary. I disagree with Ms. Carr Smith in that we should do nothing and just hope that other entities will initiate necessary changes. I think that we should make that suggestion and encourage them, rather than stand still as if we don't care. I think we should express that we do care, as Mr. Vitousek has enunciated. And I think that encouraging a septic system and special improvement district or other situation for the area is a good thing, not that we should do it because we don't have the authority, but we should encourage it, rather than sit back and do nothing, as Ms. Carr Smith and Mr. Kealoha suggest. VITOUSEK: Okay, I'm not sure that that's exactly what either of them are suggesting. I see that John had his hand raised. Is there something you'd like to respond? PIPAN: Yeah, I'd just like to reiterate; it's not the position of the applicant that they don't want to do anything. They are perfectly okay with the condition that would require a septic conversion as long as it turns out that that's actually technically feasible, given that the shoreline setback has changed and the limited space available on the property for that improvement. So I'd just like to, you know, if this is still unsettled,we'd like to entertain a motion to defer to another meeting, get some more input from a civil engineer on this. But I think perhaps the motion could be crafted in such a way that if there is sufficient space on the property for a septic system, then it will be implemented within, you know, five years. That's a reasonable ask. But we have to really keep in mind that the shoreline setback has changed, and it really makes our commitment to improving to a septic system much more tricky. VITOUSEK: So proposed language could be applicant will convert existing cesspool to a septic system within five years, if determined feasible by the constraints of the lot, individual lot. Would that be appropriate? PIPAN: That's, that's basically what I was getting at, yes. VITOUSEK: Mr. Arejian, are you, do you agree with that? 17 EXHIBIT B AREJIAN: (Inaudible—microphone on mute) VITOUSEK: You are on mute. AREJIAN: Yes, I do. VITOUSEK: Okay, okay. Commissioner Carr Smith, would you be okay with including that in the motion that you've made? CARR SMITH: I wouldn't have thought so, but since the applicant is suggesting it, sure. VITOUSEK: Sure, okay, and then as with the applicant's initial suggestion, do we maintain the language that was suggested by John about the contribution to a sewer district in the event that one is formed to cover this individual property? Are you guys still okay with that, John? PIPAN: I believe that would serve as a good plan B, should there not be sufficient room, given the shoreline setback and the property constraints,to then input into the capital for the improvement district. So, yes, I believe that that would be okay. VITOUSEK: Yeah, but I see it not as a plan A and B, but as a short-term plan and a long-term plan PIPAN: Right. VITOUSEK: where short term, you know, we are trying to do what we can, put a Band-Aid on a sewage outfall, and that by converting from cesspool to septic if possible; and then long term, you guys will contribute to the sewer district if and when one is formed to serve that lot. I mean, that seems like a fairly reasonable short-term solution and a long-term solution if feasible. PIPAN: Yes, that makes perfect sense. VITOUSEK: Okay, with the applicant agreement, Commissioner Carr Smith, would be willing to amend the motion to reflect those changes? CARR SMITH: Can we hear what Mr. Lindsey might have to add? VITOUSEK: Of course. Mr. Lindsey, go ahead. LINDSEY: Yeah, I have a question about the feasibility of the septic system. So, yeah, we hired a civil engineer to do this feasibility, so we are, we are looking within the, yeah, obviously, within the setbacks, but we are also assuming existing construction remains, you know, all the existing permitted construction. VITOUSEK: I think that would be fair to assume that the existing construction, we don't, are not going to ask to tear down their home or a portion of their home in order to accommodate the conversion. I think that would be fair to say 18 EXHIBIT B LINDSEY: Yes VITOUSEK: that the feasibility to include the usable area outside of the space of the existing home and improvements, but, you know, proceeding with any possible variances or minimizing the setback to allow for this environmentally friendly conversion. LINDSEY: Thank you. VITOUSEK: Okay CARR SMITH: As far as amending the motion, Mike, could I ask you to take a moment and create what that would read like, please? VITOUSEK: Okay, for sure, and then, Alex, if you still have the language that you suggested for the second part of that, I really like the way you stated that— ROY: hatROY: Yeah, sure, I can give, I can give mine, and then you can beef it up if you'd like. VITOUSEK: Sure. ROY: Just so we can get it on the record, too. VITOUSEK: Yep. ROY: So the applicant will make fair share contributions to an applicable sewer district if and when one is formed near and adjacent to the project site—and I think prior to the implementation of a sewer district, the applicant will work to determine the feasibility of converting the existing septic, or cesspool, to an appropriate septic system prior to that's the only one I'm not sure. When, when do you want this done? VITOUSEK: The applicant suggested within five years, that they'll have a, they'll make the effort to convert from cesspool to septic within five years, if feasible. ROY: If determined feasible within the space provided, right— VITOUSEK: ightVITOUSEK: Yep. ROY: As Bryan and John—okay. Yeah, so I think we have something along that lines. So, yes, the applicant will make fair share contributions to an appropriate sewer district if and when one is formed adjacent to the property, or that contains the property we can change that language VITOUSEK: And maybe even indicating, "serving the property." ROY: Yes, serving the property. 19 EXHIBIT B VITOUSEK: Yep. ROY: In the interim the applicant will work to determine the feasibility to convert the cesspool to an appropriate upgraded septic system within the space provided all within five years of final approval of this Use Permit. VITOUSEK: The one change I would have in that second one is I would say the applicant will convert the cesspool to a septic within five years, and then "if feasible, given the constraints of the lot and the existing structures." ROY: Yeah, we'll say "shall?" VITOUSEK: Okay, yeah. CARR SMITH: Hey, Alex, I'm a stickler for words, so one more time,please. ROY: Okay pardon me while I make sure. CARR SMITH: Yeah. ROY: The applicant will contribute, will make a fair share contribution to an applicable sewer district if and when one is formed that serves the property. The applicant shall convert the existing cesspool to an appropriate septic system within five years of the approval of this use, if determined feasible and within, available, within the space provided by the parcel's dimension or setbacksI'm not sure how you want to say that. VITOUSEK: Let's go with the, I think that"if determined feasible considering the limitations of the lot and its existing structures." ROY: Okay. Is that good, Commissioner Carr Smith? CARR SMITH: I think so. Did the applicant have something to say about that? John? PIPAN: Yeah, I think, I think that sounds good just so long as we keep in mind that the limitations of the property would include the shoreline setback. ROY: Yes, definitely, and the, and of course this would all require SMA review and approval. PIPAN: Of course. ROY: Yap. VITOUSEK: Okay, Commissioner Carr Smith, can you confirm that this language can be added to the existing motion? 20 EXHIBIT B CARR SMITH: Yes, so the language as outlined by Alex will amend the motion that I made. I think it was, you spoke slowly enough and clear enough that I think Noriko can get that. VITOUSEK: Okay, and I'm sure, Alex, you have it written down, right? ROY: I do have it written down, but I was speaking slowly for Noriko. VITOUSEK: We are doubly (indiscernible—simultaneous speech) I think CARR SMITH: Perry, are you(indiscernible—simultaneous speech) VITOUSEK: do you still second the motion? (No audible response) Okay, nodded in affirmation. With that, let's go to roll call. ROY: Okay. Moved—Commissioner Carr Smith? CARR SMITH: Aye. ROY: Commissioner Kealoha? KEALOHA: Aye. ROY: Commissioner DeFranco? DEFRANCO: Aye. ROY: Commissioner Van Pernis? VAN PERNIS: Aye. ROY: Vice Chair Newberg? NEWBERG: Aye. ROY: And Chair Vitousek? VITOUSEK: Aye. ROY: Commissioner Yates is excused. Motion carries, six to one. VITOUSEK: Okay. Thank you. To the applicants, you will be notified of this decision in writing (indiscernible—simultaneous speech) PIPAN: Thank you very much. I appreciate your time and your hard work. Keep doing what you are doing. 21 EXHIBIT B VITOUSEK: Thank you, appreciate it. You guys can drop off the meeting. Aloha. AREJIAN: Thank you. LINDSEY: Aloha. AREJIAN: Aloha. CARR SMITH: Alex? ROY: Yes. CARR SMITH: Do we usually say you said "six to one." ROY: Oh, did I count that wrong? VITOUSEK: It was unanimous. ROY: Oh, I'm sorry, yeah, one was excused, I'm sorry. So, six, six with one excused. CARR SMITH: Thank you. ROY: Six votes aye, with one excused. VITOUSEK: Good catch, thank you. ROY: Sorry about that. The hearing ended at 12:09 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 22 EXHIBIT B