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HomeMy WebLinkAbout2023-04-20 DRAFT Joint Meeting Exh B (Proposed Amendments to PC Ruls 8 & 9) JOINT PUBLIC MEETING AND HEARING LEEWARD AND WINDWARD PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT (DRAFT) APRIL 20, 2023 A duly advertised hearing on proposed amendments to County of Hawaii Planning Commission Rule 8 Shoreline Setback and Rule 9 Special Management Area was called to order at 9:50 a.m. via live stream online meeting, with Chairperson Barbara DeFranco presiding. The Leeward Planning Commission members participated via interactive conference technology (ICT) from the West Hawaii Civic Center, Council Chambers, Building A, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii, and the Windward Planning Commission members participated remotely via ICT. LEEWARD COMMISSIONERS PRESENT: Barbara DeFranco, Zaheva Knowles, Clement Kanuha III, Mahina Paishon-Duarte, and Michael Vitousek, WINDWARD COMMISSIONERS PRESENT: Dennis Lin, Louis Daniele III, Lauren Balog, John Cross, Wayne De Luz, and Chantel Perrin ABSENT AND EXCUSED: Michael Dela Cruz (Leeward) ALSO PRESENT IN THE COUNCIL CHAMBERS: Sinclair Salas-Ferguson, Esq. (Counsel to the Planning Commissions), Jean Campbell, Esq. (Counsel to the Planning Department), Zendo Kern (Planning Director), Maija Jackson (Planning Program Manager), Tracie-Lee Camero (Planner), Clinton Mercado (Planner), Alex Roy (Planner), and Noriko Sauer (Leeward Planning Commission Secretary) ALSO PRESENT VIA ICT REMOTELY: Melissa Dacayanan-Salvador (Windward Planning Commission Secretary) and Janice Hata(Zoom host) Proposed Amendments to Planning Commission Rule 8 and 9 Review and action of proposed amendments to County of Hawai`i's Planning Commission (PC) Rule 8 regarding the Shoreline Setback and PC Rule 9 regarding the Special Management Area (SMA) to conform with Act 16, which amended Chapter 205A, Hawaii Revised Statutes (HRS) regarding the Special Management Area and Shoreline Setbacks. The proposed amendments to PC Rule 8 and 9 seek to add sea level rise to the definition of coastal hazards, adds a definition of beach to enhance beach protection, restricts construction of shoreline hardening structures at sites with beaches, increases the minimum shoreline setback from 20 feet to 40 feet and includes the construction of a single-family residence on a shoreline parcel as "development". DEFRANCO: We are on to New Business, and this is the introduction of the agenda item. So, the proposed amendments to the Planning Commission Rule 8 and 9 review 1 EXHIBIT B (DRAFT) and action of the proposed amendments to the County of Hawai`i's Planning Commissions (PC) Rule 8 regarding Shoreline Setback and PC Rule 9 regarding the Special Management Area (SMA) to conform with Act 16, which amended Chapter 205A, Hawaii Revised Statutes (HRS) regarding the Special Management Area and Shoreline Setbacks. The proposed amendments to PC Rule 8 and 9 seek to add sea level rise to the definition of coastal hazards, adds a definition of beach to enhance beach protection, restricts construction of shoreline hardening structures at sites with beaches, increases the minimum shoreline setback from 20 feet to 40 feet and includes the construction of a single-family residence on a shoreline parcel as "development'. So, we're going to proceed now with the staff presentation. Tracie, are you ready for us? CAMERO: Yes, I am. If we could just wait while staff gets the presentation up on the screen. MERCADO: Janice, what do you see on the screen please? HATA: I see the presentation, but I also see the slides on the left side. MERCADO: Okay, thanks. Now? HATA: Looks good, thank you. Clinton, we can't see the presentation anymore. Oh, sorry, I see it's loading right now. MERCADO: Sorry, what do you see now? HATA: Sorry, I see the presentation, but I also see the slides on the left side. Okay, now I can see the presentation in full screen, and I don't see the slides on the left. MERCADO: Thank you. CAMERO: Good morning, Chair, and members of the Windward and Leeward Planning Commission. I welcome you today to our Joint Planning Commission Meeting. Before you today, we have the review and action of the proposed amendments to Planning Commission Rule 8 and 9 regarding the Special Management Area and Shoreline Setback Area. Sorry, I just want to move this a little out of the way so it's not in our view. Okay. So, again like I mentioned before you today is the proposed amendments to the Planning Commission Rule 8 and 9 which includes changes made by Act 16 which amended Chapter 205A of the Hawaii Revised Statutes regarding the Special Management Area and the Shoreline Setback Area. The proposed amendments just in a brief form to the Planning Commission Rule 8 and 9 relating to Act 16 includes adding the definition of"beach"to enhance beach protections. It adds a definition of"coastal hazards" . It includes the construction of a single-family residence on a shoreline parcel as "development." It restricts the construction of shoreline hardening structures at sites with beaches and it clarifies when a public hearing for granting a Shoreline Setback Variance can be waived. In addition to the Planning Commission Rules that are being proposed or proposed amendments that are before you today. There are also proposed amendments to the 2 EXHIBIT B (DRAFT) Planning Department Rule No. 11 which includes changes made by Act 16, which again amended Chapter 205A of the Hawaii Revised Statutes regarding the Shoreline Setback Area. The proposed amendments to Department Rule 11 relating to Act 16 seek to add a definition of beach to enhance the beach protections. It adds the definition of coastal hazards. It clarifies when permitted structures may be repaired and maintained but not rebuilt and replaced. It adds the definition of rebuild and repair and it increases the minimum shoreline setback from 20 feet to 40 feet. So, first I'm going to start off with the proposed amendments to the Planning Commission Rule 8, Rule 9, and the Planning Department Rule 11 which resulted from the changes made by Act 16. The common occurrence within these three rules is that the definition of"beach,"which you can see on your screen was added by Act 16. As defined by Act 16 the definition of"beach" means a coastal landform primarily composed of sand from eroded rock, coral, or shell material, or any combination thereof, that is established and shaped by wave action and tidal processes. "Beach" includes sand deposits in nearshore submerged areas, or sand dunes or upland beach deposits landward of the shoreline, that provides benefits for public use and recreation for coastal ecosystems, and as a natural buffer against coastal hazards. In addition to the definition of beach, Act 16 also provided a definition for "coastal hazards". "Coastal Hazards" means any tsunami, hurricane, wind, wave, storm surges, high tide, flooding erosions, sea level rise, subsidence, or point and non-point source pollution. Prior to this provision, there was no definition of beach or coastal hazards within our rules as well as HRS. So, before you today, I'm going to start off with the Planning Commission Rule 9 proposed amendments. Planning Commission Rule 9 is the Special Management Area Commission Rule. So, the proposed amendments to Planning Commission Rule 9 amended Chapter 205A-22 of the HRS by defining what"development" does not include. So, according to HRS 205A-22 "development" does not include the construction and reconstruction of a single-family residence that is less than 7,500 square feet of floor area. Is not situated on a shoreline parcel or a parcel that is impacted by waves, storm surges, high tide, or shoreline erosion, and is not a part of a larger development. This amendment was added to Rule 9-4, Section I(2)(A) and prior to this amendment only single-family dwellings with 7,500 square feet or more in size were considered "development" and therefore required an SMA permit. With this amendment all single-family dwellings located within a shoreline parcel or a parcel that is impacted by waves, storm surges, high tide, or shoreline erosion will not be exempt and will require an SMA permit in order to determine potential impacts to the shoreline area and other ocean resources. Next, I'm going to go over the Planning Commission Rule 8 proposed amendments. Rule 8 is the Shoreline Setback Variance. I do want to point out before going over this slide for the waiver of the public hearing and action of the Commission that the PC or the Planning Commission may delegate the authority to the Department to waive a public hearing as said in Act 16 on Page 264 within your exhibits in Section 9. So, this specific slide is going over the changes that Act 16 made to Rule 8-10 which is the Waiver of Public Hearing and Action of the Commission within our rules. I want you to note that there are four(4) situations where a shoreline setback variance can be waived, and we will review two (2) of the situations in this slide as well as the next. This specific slide changed the definition of a protection of a structure 3 EXHIBIT B (DRAFT) and clarified if it could be an artificial structure. This also included the emergency authorization and gave a time period that shall not exceed three (3) years should an emergency authorization be granted. This is the second situation that I mentioned earlier in which the waiver of a public hearing or action can be granted for a shoreline setback variance. As you can see in your background and rec this provision is also made to be in order with conformance with changes made to Chapter 205A of HRS prior to Act 16. In addition to the two slides previous, the Planning Commission Rule 8-10 (d) and(e) Waiver of the Public Hearing is also being proposed to be amended as followed on this screen. This again provision was made in order to be in conformance with the changes made to Chapter 205A of the HRS prior to Act 16. The proposed change that's being presented to you now is Rule 8-10 the Criterial for Approval of a Variance. This specific section was taken directly from Act 16 which is currently in our Rule 8-11 Criteria for Approval of a Variance. This is important because this restricts the construction of shoreline hardening structures that sites with beaches. In addition to the Planning Commission Rule 8 and 9 proposed amendments the Planning Director is also proposing amendments to the Planning Department Rule 11 regarding to the Shoreline Setback in order to conform to Act 16. Please note that the changes do not require the approval by the Planning Commissions however, the Planning Director has provided the Commission with the draft rules as these are proposed changes relating to Act 16 and they are pretty significant. One of the first changes that Act 16 has amended in Chapter 205A was the establishment of the Shoreline Setback Lines. In Planning Department Rule 11-5, the setbacks along the shorelines are being proposed to be 40 feet inland from the shoreline. This provision was done to help shift new development away from exposure to coastal hazards. This amendment will no longer allow for counties to reduce the shoreline setback to less than 40 feet for existing shallow shoreline lots. Where the buildable area of the parcel will be less than 50% of the parcel but after applying the setback. Based on this amendment HRS Section 11-5 is being proposed on the bottom as you can see. In addition, the Planning Department Rule 11-7 the structures or activities permitted within the shoreline setback area is being proposed to be amended to match Act 16 which did include that permitted structures may be repaired but shall not be enlarged, rebuilt, or replaced within the shoreline area without a variance. This provision will prohibit the rebuilding or replacement of existing structures within an approved shoreline setback without an approved shoreline setback variance. Based on that amendment HRS Section 11-7(b) of Department rule was proposed to be amended as followed on the bottom. Lastly, because the previous slide did have certain words in there that the Planning Department rules did not specifically address in our definitions. The Planning Director has proposed the two amendments before you today and those two amendments include adding the definition of rebuild and repair. So, "rebuild"would mean the reconstruction of a lawfully existing structure when the reconstruction is valued by a licensed professional engineer or architect at more than 50% of the replacement cost of the structure. And also "repair"which would mean the fixing, renovation, improvement, or restoration of any part of the lawfully existing structure, but not the entire structure, solely for the purpose of its maintenance and does not result in the addition to, or the enlargement or expansion of the lawfully existing structure. "Repair" includes, but is not 4 EXHIBIT B (DRAFT) limited to the alteration of floors, roofs, walls, or the supporting structure of a building or the rearrangement of any of its component parts. Again, this provision will provide the definitions for "repair," "rebuilt," and"replace" and in order to effectively implement this section of HRS, these definitions are being added. These definitions are similar to other definitions used by other counties in the State of Hawaii. So, before you today the Planning Director is recommending that the Joint Planning Commission approve the proposed Planning Commission Rule 8 and 9 amendments. And just as an FYI the next steps include. So, for the Planning Commission Rule 8 and 9. Should the Commission adopt the rules as recommended by the Planning Director, the rules can be transmitted to the mayor for review. Once the Mayor has signed the rules, the rules will be filed with the County Clerk's office and the rules will then become effective 10 days after they are filed with the County Clerk's office. The Commission can also make motions to amend the rules in specific sections as they please. For the Planning Department Rule 11. The Planning Director will incorporate the feedback from the Planning Commissions. The Planning Director will hold a community meeting to present Rule 11 and get public feedback once a final draft of Rule 11 is completed, Rule 11 will then transmit to the mayor's office for review. Once the Mayor has signed the rules, the rules will be filed with the County Clerk's office and the rules will again be effective 10 days after they are filed with the County Clerk's office. So, that concludes my presentation, and I can turn it back to Chair DeFranco. DEFRANCO: Thank you so much Tracie. I'm just going to ask the Commissioners, can we put them back up so we can see them. If they have any questions for the staff and this isn't, we're going to hold off on discussion until we have our motion made. But these are for direct questions that you may have to clarify. So, is there, yes. LIN: Chair DeFranco. A question for either Tracie or the Planning Director regarding that one provision where there doesn't need to be a hearing or notice. I have a little bit of concern just based off of, what if a neighbor is doing something and they don't notify anybody, and it does have an impact to their neighboring property. And there's no hearing or any notice to anybody else in the area. Just if you could comment on that. I forget which slide it was, I'm sorry Tracie. I believe it was towards the beginning or maybe in the middle. JACKSON: Hi, Vice Chair Lin this is Maija Jackson. I can go ahead and respond to that. So, the waiver of a public hearing for issuance of a shoreline setback variance provision and State law. It does actually require that the department send notice to a surrounding property owners as well as a public notice and so that provision still stays. The only difference is that for those four(4) types of activities or uses the Director can make the decision should the Commission choose to delegate that authority to the Director and if they do the hearing is waived but the Director still has to make like a findings. Decision and findings and the decision has to be based on the same criteria that the Planning Commission uses for issuing a shoreline setback variance. Did that answer your question? LIN: Yes. Thank you Maija. 5 EXHIBIT B (DRAFT) KNOWLES: Chair DeFranco. DEFRANCO: Yes, Commissioner Knowles. KNOWLES: Maija, along those lines can you speak to one of the concerns that was raised about the public notice requirement in the newspapers and sort of has the County considered that fewer people receive newspapers or have access to them. I'm just thinking about that public notice requirement. If we've thought about evolving, it at all. JACKSON: So, currently our Planning Commission rules require public notice in the newspaper for all of the applications that goes before the commission and that would include a shoreline setback variance that is issued by the Director where the public hearing is waived. So, unless the Planning Commission rules are amended to take that out which they're not being amended to take that out now. That would not change. KNOWLES: Thank you. DEFRANCO: Commissioners, any other questions for the staff? LIN: Chair DeFranco, I have — DEFRANCO: Wait, excuse me, Commissioner Vitousek. VITOUSEK: I'm just curious what would be the appropriate time to bring up some potential administrative changes in the rules. That would be now or after a motion has been made. DEFRANCO: I think it's going to be after the motion is made. Any other direct questions for the staff? LIN: I had one, Chair DeFranco. DEFRANCO: Vice Chair Lin. LIN: I might be getting into the weeds but what is the definition for the Planning Department of shallow? Because that is referenced in that one slide. You defined rebuild and you defined the other terms but what is the definition of shallow? JACKSON: Give us just a moment to get that slide up. Clinton, can you go back to that slide. I think it's the third to the last. Can you see that Chair Lin, Vice Chair Lin? LIN: Yes. I think it was one slide before that. It talked about the properties with or shorelines where it had shallow. JACKSON: Yes, so I can speak to that. So — 6 EXHIBIT B (DRAFT) LIN: Okay. JACKSON: —prior to Act 16, the minimum shoreline setback was 20 feet, statewide and the County applied a 40-foot setback however, we did allow exceptions to that based on the lot depth. So, what Act 16 did is they took away the ability for the County to have that exception and now any lot along the shoreline has a minimum 40-foot setback regardless of their lot depth. LIN: Okay, got it. Thank you. DEFRANCO: Yes, Commissioner Duarte. PAISHON-DUARTE: Yes, for Commission Rule No. 9 the proposed amendments. When using the term adverse environmental or ecological effect and trying to minimize adverse effect. Can you help me understand how that is measured and quantified. It says here, minimize extent practical and is clearly outweighed by public health, safety, or compelling public interests shall include, but not limited to potential community impact of individual developments and so forth. So, how is individual, a cumulative effect of individual developments measured and quantified. JACKSON: Can you point to where you're speaking to in the rule. PAISHON-DUARTE: It's Commission Rule No. 9. I'm sorry, I'm looking at the packet and not the slides. It's in our packet background and recommendations. It's on Page number 5. JACKSON: 9-5? Did you say 9-5? PAISHON-DUARTE: Page number 5, page number 5. JACKSON: And you're on number 7, is that correct? On Page 5, number 7? PAISHON-DUARTE: Yes. JACKSON: Okay. PAISHON-DUARTE: Yes, yes. JACKSON: Okay. I'm sorry, can you repeat your question? PAISHON-DUARTE: Yes. JACKSON: Now that I'm looking at it. PAISHON-DUARTE: So, in determining cumulative impact, effect or impact. Help me understand how are we measuring cumulative impact of individual developments? How do we 7 EXHIBIT B (DRAFT) measure that? How do we quantify it? How do we determine whether there's an adverse impact or not? JACKSON: So, I think we attempted to answer that at the last meeting, at the Leeward Planning Commission. PAISHON-DUARTE: Yes. JACKSON: We generally use the guidance document for assessing cumulative impacts that was provided by the Office of Planning and Sustainable Development(OPSD) and they have a checklist that they go through. Basically, you look at temporal effects and spatial effects based on the resource, and you go through and identify what the resource is and what the temporal and spatial effects of the activity or development would be on that resource. PAISHON-DUARTE: So, as a follow up question. Is our County, are we required, can we provide, can we create additional tools to understand adverse impact or are we required to only be guided by those State level rules? JACKSON: We absolutely have the ability to create our own tools. This information that was provided by OPSD is just a guideline. PAISHON-DUARTE: General. JACKSON: Yes. PAISHON-DUARTE: Broad direction. JACKSON: Yes. PAISHON-DUARTE: Thank you that's helpful. DEFRANCO: Thank you Commissioner. Is there any other questions for — VITOUSEK: Yes, Chair. DEFRANCO: Oh, yes Commissioner Vitousek. VITOUSEK: A couple of questions. Is there any exemption in the rules for kuleana use or cultural use of sites for habitation? JACKSON: Not specifically at this time. I know there was a bill at the State Legislature, and I think it's still active that addresses that. So, if those changes are adopted then we can incorporate that into the next round of rule changes. 8 EXHIBIT B (DRAFT) VITOUSEK: Next is on Page 14 it's the 9-13 archaeological material and I'm just curious how you see that working with the timelines for submittal to Planning Department or to Planning Commission and the timeline for the historic preservation review process. JACKSON: That has always been a challenge aligning those two processes because they both have statutory deadlines to follow. So, this change was made because I want to say about 4 years ago, the County met with SHPD and SHPD said we are no longer doing review when requested by applicants. Based on the HAR they wanted to do an agency-to-agency review. Meaning the County initiates the HAR process. So, due to that we removed this section in our applications and we're proposing to remove it now from our rule. Where the applicant would initiate that process by writing a letter to SHPD and saying, hey, I don't have any resources on my property can I get a letter of no-historic effect. And so, what this does it just changes it so that the County initiates that process once we receive an application. So, as you mentioned the downside of that can be that the applicant doesn't think they have any resources on their property and so on the application they say I'm not aware of any resources. Then we send it to SHPD for review and SHPD says "no"we think there may be resources, so we want an AIS done. At that point in time, we typically work with the applicant and say, we could move this forward to Planning Commission but, we wouldn't necessarily be able to provide a favorable recommendation because we don't have the information, we really need to assess the historic and cultural impact. Typically, when that happens the landowner understands that, and they proceed to do the AIS and that puts the application on hold so that process can be completed before coming to the Planning Commission. VITOUSEK: Yeah, I mean, to me it just feels like that has the potential of making the process longer and more difficult. If the application is submitted and then they have to go to basically square one of accessing impacts on historic properties. I feel like if an application comes in it should have enough information contained within that application to access the effect of that project on historic sites. So, to me, again, SHPD rules haven't changed. The way that they were implemented by SHPD to their HICRIS system that changed but their administrative rules HAR 13-284 haven't changed. They're exactly the same. So, to me I think the language needs to — DEFRANCO: So, Mike. I think that when we get the motion on the table, VITOUSEK: — sure. DEFRANCO: Then, maybe we can discuss that a little further and put it out there. VITOUSEK: Sure. DEFRANCO: Yeah. Okay, yes Commissioner Knowles. KNOWLES: I have one further question. DEFRANCO: It's a question? 9 EXHIBIT B (DRAFT) KNOWLES: Yes. DEFRANCO: Okay. KNOWLES: Promise, it has a question mark at the end. DEFRANCO: Tune your mic on though. KNOWLES: I just wanted to go, sorry, circling back to 8-10, the waiver provision and the amendment specifically looking at 8-10 (A)(3). Can you speak to this kind of broad language that gives the department the power to waive a public hearing or action for other structures and activities provided that no person or agency has requested a public hearing within 25 calendar days after public notice of the application. It seems very broad and again I think — DEFRANCO: Are you asking a question? KNOWLES; I'm asking a question. Why that provision is kind of a catch all. Is that how you're looking at it? Can you. JACKSON: Yes, I agree it is very broad. KNOWLES: Right. JACKSON: But it was actually already part of HRS prior to the Act 16 change. I think some counties have included this in their Planning Commission rules and some have not and the way HRS reads. Each County can decide whether or not they want to delegate that authority to the Director. If you disagreed with that provision, then if somebody proposed other structures and activities then that shoreline setback variance would come to the Planning Commission for a decision. KNOWLES: On it, we can take this to the next phase. Thank you so much Maij a. JACKSON: I'd also like to add that even though this provision is in law. I've worked here 15 something years and I've seen it used very, very rarely. I want to say maybe 2 or 3 times in 15 years. So that's not to say that it won't be used more frequently in the future since sea level rise and erosions occurring, but the past track record is that it's not utilized very often. KNOWLES: Thank you. DEFRANCO: So, if we don't have any more questions then and we don't have any comments on Zoom, oh. Sorry, is anybody on the Windward Planning Commission, do you have any questions for the staff before we move on. There's no public testimony. So, then, if we can get a motion for action so that we can actually discuss this I think it's an appropriate time to do this. So, I'm looking for a motion,please, [Unintelligible crosstalk] motion yes. 10 EXHIBIT B (DRAFT) KNOWLES: Yes. Sorry, I don't have the language in front of me. But I move that we — DEFRANCO: Affirmative or make. KNOWLES: — affirm and enter the discussion. I move to accept the proposed changes that the Planning Department has presented to us today for Rules 8, 9. DEFRANCO: Thank you. We have a second. PAISHON-DUARTE: Second. DEFRANCO: Commissioner Paishon-Duarte. Okay, so, now we have a motion on the floor. So, now we are open to discuss and look at this and pull it apart and ask questions amongst each other and talk about how this is going to affect everybody. So,please raise your hands if you want to make your comment. I know Mike, I cut off there. Do you want to start off? VITOUSEK: Sure. DEFRANCO: Okay. VITOUSEK: Sure, okay. Going back to the 9-13. So, under HAR 13-284 it is the County's responsibility to identify any historic properties that are present in the project area and to conduct the historic preservation review processes six (6) steps, right, identification, evaluation, mitigation, confirmation mitigation. In order to do that I think the County would need to receive more information up front as part of the application. My recommendation would be that the application include some sort of assessment prepared by a qualified archaeologist that identifies the potential for historic properties and provides a determination of a fact that the agency can then agree with or not agree with and submit that to SHPD for concurrence. I think that the information that's there currently in the language is adequate. It does put responsibility on the applicant but SHPD's rules 13-284 allows for the agency to delegate responsibilities of the process to an applicant. So, there can be a formal delegation from the agency to the applicant to conduct the historic preservation review process items which would allow the applicant to then prepare an AIS in advance of the application and get all that stuff figured out before it comes to Commission. DEFRANCO: And that would shorten the process. VITOUSEK: I think so because I think as it currently is as is proposed, I'm sorry, as is being proposed all the information that we would have is a plot map and information on any known historic sites and cultural properties. Which as we've all known is insufficient in determining whether there are actually historic and cultural properties on the, in the area. So, that application comes in with that limited information that has to go to SHPD and would be relying on them to turn that around within 30 days and I don't know how that works with our 11 EXHIBIT B (DRAFT) timeline. But to me it's not going to create an effective process. I think the County needs to have the authority as it is granted under 13-284 to make its own decisions about impacts on historic sites. So, you need to have that information up front. KNOWLES: I agree Commissioner Vitousek. I think it actually is also very helpful because it sets it up front that this is a priority for the County and requires people to kind of go through the steps early on rather than go back and forth. VITOUSEK: Right. DEFRANCO: So, okay. Well, I was just asking for some clarification because if we want to pursue this and to incorporate this language or make it a change here. I think we have to actually; we can't really actually do it here. We can either affirm or negate what we want to go forward and if we want to change something with an amendment to what they're asking then we have to give the public 30 days' notice. Am I hearing this right? SALAS-FERGUSON: Yes, so, Deputy Corporation Counsel Sinclair Salas-Ferguson here. So, today the public has been provided notice of the changes to the rules as they're are written here today. So, the Commission can make a decision today to accept or reject. But if the board members suggests the significant change to a rule that wasn't provided in the notice, then we've have to give the public 30 days' notice. So, what the Commission can do today is say, for example, you want to accept the majority of the changes but there's a certain changes that you don't want to accept, you can reject that and then suggest changes to the Planning Department. And then they would issue those changes and then the public would have the opportunity to comment on it and then we could come back at a further time. VITOUSEK: So, essentially, hi it's Mike Vitousek. So, essentially all we can do is either accept or not accept the language that's been proposed. SALAS-FERGUSON: Yes. DEFRANCO: We can recommend what you're saying[indecipherable] in it. VITOUSEK: But for today to adopt these we can either adopt what is written or we can make non-substantive changes? SALAS-FERGUSON: Correct, yes. So, if we make a change to the rules that's substantive that the public would have wanted the opportunity to comment on that then we got to give them 30 days' notice. VITOUSEK: Okay. In that case, I would make a secondary motion that the change to, was it, let me find the exact language, Rule 9-11(b)(4)be removed. DEFRANCO: Okay. So, we're going to note this and because there may be other changes that are going to come up now as we're having these discussions, is that right? Action 12 EXHIBIT B (DRAFT) should be taken at each motion, okay. [indecipherable crosstalk] So, we need a second for that. Commissioner Knowles, you're seconding that? KNOWLES: I second. DEFRANCO: Okay, now do we need the vote? VITOUSEK: Discussion. DEFRANCO: Discussion, so now we're going to discuss the removal of this language from the amendment, the proposed amendment. LIN: Chair DeFranco. DEFRANCO: Vice Chair Lin. LIN: This is Vice Chair Lin. I'm on the same thought process of Commissioner Vitousek. But I guess I wanted to get more clarification on how it's written is that the Planning Department initiates the process with SHPD, right. Is that correct? VITOUSEK: Yes, that's correct. Yep, it's the agency, is the language — LIN: So, I guess from when the applicant provides the plot map and the information to the Planning Department. What actions of the Planning Department then make to initiate the process. That would be my question. JACKSON: What initiates the process for the Planning Department is the filing of an application. LIN: Okay and so then what other steps goes on from Planning Department then to the submittal to SHPD. JACKSON: Once the application is accepted, the staff planner submits it to SHPD through their HICRIS system and then they— LIN: Okay. JACKSON: —have a certain period of time to review the application and what's submitted to decide whether there is no effect, or an AIS is required. LIN: Okay, so there's not really like a due diligence phase that the Planning Department would go through to just kind of check the property to see if we know of any archaeological or historical aspects. JACKSON: Yes, so in addition to the information received in the application when the staff planner submits through HICRIS we are supposed to provide SHPD any records 13 EXHIBIT B (DRAFT) we have within the department that show that there are historic or cultural resources on the property. That way SHPD has not only the applicant's information but the department's information as well. LIN: Thank you for the clarity. DEFRANCO: Commissioner Paishon-Duarte. PAISHON-DUARTE: The question is to Commissioner Vitousek. Can you please restate the motion you made? VITOUSEK: My motion is that we basically don't make this change that's being proposed. That the language be kept as is for now until we can revise it to make it more adequate for considering the effect of the project on historic properties. So. DEFRANCO: Okay, we can talk about the proposed language right now. VITOUSEK: Okay. To me, I think that would be most helpful is if the Department is receiving an assessment from a qualified archaeologist that's able to look at, do their own review of it and say there are no historic properties on this parcel. We've checked it out, we looked at the records all that and they have a archaeological license that they can stamp on it and then the Department doesn't need to have that expertise internally. They can review the qualified perspective and then they can say they've checked against their records, agree, and send that over to the State. If the qualified archaeologist says hey, there are sites here, you guys got to do a full-on AIS then you'll have that information up front, and we'll all be able to really assess the effect of the project on historic sites. PAISHON-DUARTE: I'd like to comment. So, I wholeheartedly agree with the thought process behind this. I believe that it could be beneficial for all parties involved. My question is to the staff. What might be some other reasons or challenges that need to be overcome to implement a recommendation like this? CAMERO: So, I think one of the more confusing mentions in this specific section that I've had trouble with, with applicants that come before me is the request for the copy of the letter written by the applicant to the DLNR-SHPD requesting a no-effect . In the past I've had members of the public tell me that SHPD doesn't want to hear from them. Those were kind of the words that they would rather hear from the Department and a lot of the times some of these applicants are really laymen. It's their first time they are applying for this type of application and so, I understand where Commissioner Vitousek is coming from. There are certain sections in there that are still confusing for the layman's. So, I'm not too sure. VITOUSEK: Sure, for that particular example. If we're just strictly going off of the administrative rules it'd be HAR 13-284 (c)(1). The agency has responsibility for initiating the historic preservation review process. The agency may have others prepare the review process items. So, under the rules, the agency can formally delegate to the applicant to conduct the review process. To prepare the archaeological assessment, to prepare the request for a letter 14 EXHIBIT B (DRAFT) of no-effect. That's in the rules and so, it's one of those things where they have to follow their rules and we would, County would totally be okay in delegating that to somebody. So, as it is currently written, it does match with rules as they're currently written. I would just require more, I guess standard operating procedures from the County on how that delegation, the notice of delegation of authority under 6(e) is given to the applicant. DEFRANCO: Director Kern. KERN: Just a clarification. Zendo Kern, Planning Director. So, essentially what you're saying is that every application be required to hire an archaeologist. VITOUSEK: Yeah, it's tough. That is a tough one. I don't know if that's what's appropriate, but we need, you need to have an assessment of historic properties in order to meet the minimal requirements of the SMA, right. Who does that? If the County has the staff to do it, that's ideal. If the County doesn't have the staff to do that, then the County needs to have the applicant hire somebody to do that. KERN: So, in most cases when an application is being thought about or processed the County staff tells the person, hey this is an area along the coast, you're being your best interest to conduct an archaeological survey or at least a recon. Not everybody listens to that, not everybody has that preliminary conversation around it and so then when the application is submitted that's when it's put into the HICRIS system. SHPD looks at and then comes back and says that is an area that we need it or not. So, but we're just trying to get clarity. So, what you're saying is any application would then require the hiring of an archaeologist whether it was a small one or whether it was a large one to make that initial review not necessarily resulting in an AIS right off the bat but in some type of archaeological survey or recon. And then in that case where would there be an exemption, or would there be? VITOUSEK: See and — KANUHA: One question Zendo. With you saying that. Well, if there's an archaeologic report on the property but it's under the application that's coming through. Are you having to refile and that's a quick. There's been a bunch of instances where there's stuff that's done in the 80's but there's new stuff that's found now that's updated for a bunch of projects here on the coast. Not only on the coast but anything in that setback below Kuakini and I would say and call upon us. So that's a question that qualify [indecipherable]. VITOUSEK: Sure, my theory on that again is I feel like it should be something that the County is able to assess and if they have staff to do that. They should be able to take into account the effect of a project on historic sites. That would fit into the Hawaii Administrative Rules where there is provisions saying, determining whether an adequate archaeological inventory exists. That's one of the steps in the process and so if an adequate archaeological inventory survey is found to exist, you skip ahead to the next phase of the process. KANUHA: Yeah, that was my question. 15 EXHIBIT B (DRAFT) VITOUSEK: Yeah. KANUHA: I know there's been a bunch that's been there, and I know there's been certain things that have come up before that require a new arc survey with anything on a new application even if there's something that was previously done in the 90's, 80's or even early2000's. VITOUSEK: Yes, so, even if it's not a requirement to be submitted by an archaeologist but if we have the criteria that needs to be submitted in order to be considered. Then if it's a qualified archaeologist submitting that the County is more likely to agree with it versus requiring them to go back to SHPD and go through the process sequentially and — KNOWLES: Essentially it streamlines the process potentially. VITOUSEK: Potentially. KNOWLES: And takes the onus off of the Planning Department to sort of track. VITOUSEK: So, the thing there is we've often gotten hung up where Planning Department has received an application or something and it goes to SHPD for review and they're unable to complete the review in the statutory time period. But the Planning Department's unable to move forward because they don't have the internal expertise to make a determination on a historic property and if there's a process and I don't know exactly what that would be. Where someone can submit a letter of determination from a qualified archaeologist that the Planning Department can then use to forward to SHPD, request the determination and if SHPD doesn't meet their statutory deadline then the Planning Department can move forward with the application in the statutory time period and having considered the effect of historic properties. I mean that's what the rules say. So, we just need to have that process where we can do that, and I don't know what that is. We are a volunteer Board that looked at this for what a few hours yesterday. KERN: Yeah, so I would say just thinking out loud here, right, in order to effectuate that you'd either have to have a licensed archaeologist submit something ideal a recon or the Department would have to have a licensed archaeologist on staff to be able to make that professional review. Right. Kind of one or the other because we're not professionals in that. It's hard to make that full determination. VITOUSEK: Yeah, it's hard to be, I mean, yes. It's hard to make that determination without that expertise. I think you could and technically it's the agency official with all federal projects, it's the agency official who's responsible for making the determination. The professional archaeologists, whoever they may be, they're recommending to the agency official. KERN: Sure, and when a license archaeologist makes a recommendation it's a lot easier for the agency official to say, yes,we concur with that. 16 EXHIBIT B (DRAFT) VITOUSEK: 100 percent, 100 percent, and that's what I'm suggesting as an avenue to explore with the Planning Department is to have an avenue where a professional archaeologist can make a recommendation as a part of this that the agency can agree with or not agree with. And then pass that on to SHPD and then use that determination to move forward when they miss their deadline. KERN: So, would that be are you proposing that across the board because then so just thinking out loud here. If that's proposed across the board then everybody is required to hire a licensed archaeologist. VITOUSEK: And as you said, I don't know that it has to be across the board. It's just us brainstorming here, right. But if that's another line item where someone may submit that along with their application that could happen. KERN: Like I say, and we do do that or we say, hey you're coming in the an area where we know that there's a high likelihood it's in your best interest to prepare the recon or just do a full-blown AIS and submit that with your package. VITOUSEK: Yeah. KERN: And then we've also seen other cases where they don't do it and then we get caught up in the process or for example, we've seen the case where its come here and you've requested and say, hey I want to see something more. Right. VITOUSEK: Yeah. KERN: We saw that recently in Kaloko. VITOUSEK: Just like how the rules are currently written. There're multiple types of submittal that satisfy the archaeological requirement. So, if this is just one of them. What the current language states is you need a map and any known historic sites. That basically puts you at a point where you're at the bottom of the historic preservation review process and you have to claw your way through all of that without a lot of support from the Department because they don't have any information on it. But if there's another line item that allows you to submit a more complete assessment. In the federal review process Section 106, which Hawaii Administrative Rules is patterned after you receive a letter that identifies the historic properties in the area, describes any assesses them for their significance and then describe any needed mitigation. So, you're at the end of the ladder. You're just basically saying yes, you agree or no you don't agree and if the County is receiving those types of assessments prior to this it would make it a lot easier for the County to make adequate determination of effect. To me, it's like we basically do the same thing that we did with Act 16, but you compare it instead to 13-284 and you see how that process works together. Where you take what's existing in 284 and then put that into the language for archaeological assessment under 9-11 or whatever it is. 17 EXHIBIT B (DRAFT) DEFRANCO: Thank you Mike, I'm just going to include our Windward Commissioners. Do you have any comments on this motion? LIN: Yes, this is Vice Chair Lin. I like the discussion we're having. I would feel for the applicant in terms of they submitted the application, and they find out they need to do an AIS is a significant cost burden to the applicant and in terms of money and time. So, I liked the discussion but is there something we can do to kind of set just like the, like you said the exemptions are the minimal requirements of what is needed. So that people know up front if they have even an inkling when they apply that there might be. What are they going to ask their archaeologist to submit? VITOUSEK: It could be the SMA major or minor. DEFRANCO: Director Kern. KERN: Yes, I think there's a couple elements here. We're bound by HRS and the SHPD rules, regardless and then we're looking at a process question and one of the processes is how do we streamline, not streamline but make the process efficient. So, you get the archaeological conversation started early and so I'm wondering within this combo if there's not a, we have to follow the rules guarantee and then is there language as instructions or suggestions that say this in your best interest, or you should really do this in these areas. And if you don't, it's kind of like pause, time out, you might have to redo it. There's nothing that going exempts us from following SHPD rules. I don't think there's anybody here that would want to exempt that. I think we all really value the cultural resources here. It's the process that we're talking about and how do we make it efficient, articulate what they should do, or we are demanding that they have to and that's kind of I think what Vice Chair Lin was bringing up. Like how are they going to kind of figure that out and I think that's what we're trying to massage. DEFRANCO: And part of the reason is like what Tracie was saying. Part of the reason that this was initiated is because some people are getting a negative from SHPD when they are trying to get this letter of determination, right. KERN: So, it changed actually. So, I was one of those people many years ago. Before when you would start an application, if you were the one doing the application or you're the consultant. One of the first things you would do is write a letter to SHPD saying I'm requesting a no-effect determination for this property and if you got the letter back you could provide that in your application as this language suggests. If they came back and say "no,"we believe there's archaeological resources in this area, go ahead and do the work. DEFRANCO: And then if they didn't come back in a certain time period, it defaulted or something. KERN: The Department would hold; we wouldn't default so then you go ahead and bulldoze it doesn't happen. 18 EXHIBIT B (DRAFT) DEFRANCO: Okay. KERN: So, then SHPD called one day after sending a number of letters and then they said do not send us another letter, this process has stopped, stop sending us letters. You need to go through the agency, you need to go through the Department and they're the ones who communicate with us. And that's what this language is correcting is the State Historic Preservation Department request that it goes through the agency and then what we're trying to do here with Commissioner Vitousek is find the efficiency and the effectiveness on the process. DEFRANCO: So, we're trying to strengthen the process so that everything is protected, right. KERN: So, what I want to try to avoid is the appearance that things are not being protected. The processes are being followed. I would say in some cases it's not efficient. DEFRANCO: Okay. So, efficiency. KERN: Yes, but it's not that if they don't respond or don't respond, it's like okay go ahead and just bulldoze it. It's like, no, we want a response, or you can hire an archaeologist. We really do make sure that's taken care of. DEFRANCO: Okay. So, we're just coming up with some extra language in here to make sure that the process is efficiently being done for the applicant and for the land and for the County. VITOUSEK: Again, I think that we can go on forever on this, but I think that the recommendation that I have is that we leave that language in place for now because it is in line with administrative rules. It doesn't really change it. DEFRANCO: It would be in affirmative place still if we leave it the way it is. VITOUSEK: I would leave the, I wouldn't amend the language as its being proposed. DEFRANCO: Okay. VITOUSEK: My motion was that we do not amend that particular section. DEFRANCO: Okay. VITOUSEK: Of it. DEFRANCO: All right. Is there any further discussion on this point, or can we bring up some other, oh, that was a motion that we need to vote on. All right. Is there any further discussion before we vote on this motion? 19 EXHIBIT B (DRAFT) PAISHON-DUARTE: Sorry, I have a point that I'd like to make. So, my question is to you, Commissioner Vitousek. So, if the motion is that we do not revise or amend what's being proposed here. What's your ideas as to how we would move forward or advance with your recommendations that we've just discussed. VITOUSEK: I think that would be more up to the Planning Department on how they would consider that and compare it to the HAR's and come back with revised language. KERN: I'm hearing the same thing. DEFRANCO: Will somebody repeat the motion and then vote on it, is that where we are. Is there any more discussions on this? PAISHON-DUARTE: Sorry, so, we've raised the thoughts and the questions. So, my question is to Director Kern. Would you favor moving forward thinking through possible revisions for future conversation. KERN: Yes, this section does need to be cleaned up regardless. So, if it were to this motion is to be approved. We'll go back and we'll look at taking the conversation and discussions that's being had today and looking at on how we can improve that process and then like I'm trying to say find that balance on the requirement versus the communication upfront and early. So, everybody is very clear on it and again maintaining that we are very responsible for archaeological resources as we have been. So, yeah. DEFRANCO: I'd like to call a five-minute recess before we go further. Is that okay. Okay, all right. Five-minute recess. Chairperson DeFranco called a recess at 10:SS a.m. and called the meeting back to order at 11:03 a.m. DEFRANCO: Everybody is I think is here now. Alright, and Maija first, no, Director Kern or Maija. JACKSON: Chair DeFranco can I just remind all the Leeward Planning Commissioners to identify yourself before speaking so that the Windward Commissioners knows who's speaking because they're just seeing the general image — DEFRANCO: Oh, they can't see us. JACKSON: —rather than everyone's faces. Thank you. DEFRANCO: Thank you. KERN: And also saying your name, you got to do the wave as well. DEFRANCO: Director Kern. 20 EXHIBIT B (DRAFT) KERN: Thank you. If it's agreeable to the Commission our suggestion will be to have discussion around each one of the elements that there's discussion and then to move to postpone the entirety of the rule application so then we can take it back, make the adjustments, go back out for the public comment, and then bring it back to the Joint Commission as a whole package instead of breaking these out. So similar results at the end by keeping it whole instead of fractioned. That's our request. Thank you. VITOUSEK: Chair. DEFRANCO: Commissioner Vitousek. VITOUSEK: This is Commissioner Vitousek Would you like me to withdraw the motion to amend? KERN: If the Commission is agreeable to our request, that would be the next step to withdraw and then we'll take the notes and then move on to the next topic. VITOUSEK: Okay. I will withdraw the previous motion to amend. DEFRANCO: We need a second. KANUHA: Second. DEFRANCO: Okay, then, do we discuss this, or are we done? [conversing with Counsel indecipherable] Okay, so the motion has been withdrawn, so now we go back to the main motion to see if there's any other points that the Commissioners would like to comment or discuss. And Commissioner Vitousek. VITOUSEK: Chair, Commissioner Vitousek, I'll just finish up my last things and then I'll be quiet the rest of the time. DEFRANCO: I don't believe that. VITOUSEK: Page 4, I think is a typo on our PDF. I don't know if that is incorporated into the language, but let's see. DEFRANCO: Where is he. VITOUSEK: The PDF's that we got for the background report. Where was it. CAMERO: Is it the high tide word. VITOUSEK: No, it's number 2, it says "Costal hazards" means amy tsunami. 21 EXHIBIT B (DRAFT) CAMERO: My apologies, I did catch that one, when I was doing the PowerPoint presentation. However, if I'm not mistaken within the rule itself that was — VITOUSEK: Okay. CAMERO: — actually correct. VITOUSEK: Okay. CAMERO: And I don't know where Amy came from, it supposed to be any. VITOUSEK: Cool and then Page 9 and 11. There's a reference to sand beaches. Let's see. Yeah. DEFRANCO: It is supposed to be sandy beaches. VITOUSEK: So, sand beaches. I would replace sand beaches with capital B, Beaches. So, it's under the defined term of"beaches." Right, because we're adding a definition of"beaches"which includes sand beaches and so, I don't think, I think having the capital B, Beaches as a defined term, right. DEFRANCO: Thank you. VITOUSEK: Okay, that's it for me. DEFRANCO: Okay. Yes, Commissioner Knowles. KNOWLES: Commissioner Knowles, thank you. Chair DeFranco, I wanted to pick up the query about 8-10 (a)(3). Which addresses the waiver of public hearing and action. Specifically, 8-10(a)(3) states "other structures or activities; provided that no person or agency has requested a public hearing within twenty-five calendar days after public notice of the application". I'd like to see this taken out. It seems to me that this provision of 8-1 0(a) gives the Commission, allows the Commission to delegate to the Department the authority to waive the public hearings for these instances where it seems sort of exigent circumstances. Stabilization of the shoreline, protection of a structure that's at risk and maintenance repair and reconstruction and that this other structures or activities is a little bit too broad and maybe doesn't belong in this section. Because it's so, sort of general. DEFRANCO: Someone would like to comment? [indecipherable crosstalk] KNOWLES: I'm open to feedback on that one. DEFRANCO: Comment on that too? CAMERO: This particular section was just added,just to make a comment. This particular section was added due to the changes in HRS that added the section and when we 22 EXHIBIT B (DRAFT) matched up our rules, we just took it as a concurrency to match the two and keep the two together. You're speaking about the other structures or activities provided that no person or agency has requested a public hearing within 25 calendar days after public notice. Correct? KNOWLES: That's correct. I mean, it just seems very broad to me, and I just wonder what the purpose of it is. So, that the Planning Department can waive a public hearing kind of generally based on their own discretion under this provision? CAMERO: Yes, that is correct. Me and Maij a had talked about this part prior to this meeting that you guys do actually have the authority to take away that delegation under the Commission. DEFRANCO: Yes, excuse me. SALAS-FERGUSON: Deputy Corporation Counsel Sinclair Salas-Ferguson for the Commission. So, if everyone can take a look at their packet it's 8-6 is the page number. It's section 8-10. I think it's, for me it's easier to look at the amendments to the actual rules. So, 8- 10 Waiver of Public Hearing and Action states subsection A, "the Commission hereby delegates to the Department the authority to waive a public hearing and to take action on a variance application for:" certain situations. The first one is stabilization of shoreline erosion by moving sand, protection of a structure determined by the Department, et cetera and then 3 and 4. So there's 4 situations. So, the Hawaii Revised Statutes grants the Commission the authority to delegate these powers to the Department. So as the rules are currently written, the Commission in the previous iteration of rules that are currently in effect right now delegates to the Department the authority to waive a public hearing if subsection 1 is satisfied, subsection 2 is satisfied or subsection 4 is satisfied and the Department is proposing an amendment to subsection 3 which is based on an amendment to the Hawaii Revised Statutes. But the Department is also suggesting that the Commission delegates its authority to grant the variance for other structures or activities under subsection 3. So, that is for the Commission to decide whether or not they want to delegate that authority under subsection 3, other structures and activities to the Department. So, that's something the Commission has to decide. KNOWLES: I guess I'm saying, I'm hesitant to delegate that authority for this broad catch-all. I see the necessity of it in these other areas because it seems like there's exigent circumstances or something that we don't want to be happening is happening. But in this case, it sorts of just like and then anything else. So, I'm proposing that we do not add this amendment. DEFRANCO: Do we have any other Commissioners that want to comment on this? Yes, Balog. Commissioner Balog. BALOG: Hi. I agree with the Vice Chair on this. I don't think we should delegate this to the Department. DEFRANCO: Thank you. 23 EXHIBIT B (DRAFT) KERN: Madame Chair. I'm asking for the microphone just for a quick second. So, because we're not going to be going through each section and amending it here and doing a vote. I do think it would be helpful to kind of get a pulse from the general Commission on how they are feeling about some of these suggestions that are being made. So that way we can kind of know get the directions moving in one way or the other. Because if one's Commissioner, no offense, but if one Commissioner says it, the rest of the Commission is like, no didn't really agree with it, we hadn't really take time to make the amendment on it. Then we are not really doing our service. So, I think that would be helpful,just to kind of get a general pulse. Like most folks agree in that direction, great, most folks don't then you know what I mean. DEFRANCO: I think that's excellent. KERN: Thank you. DEFRANCO: We're open for discussion now so, let's take these moments to — [unintelligible crosstalk] We want to hear what everybody how they feel so,— PAISHON-DUARTE: Commission Paishon-Duarte here. I'm in support of Commissioners Knowles's thoughts and recommendations. DEFRANCO: Do we have anybody from the Windward Planning Commission, yes Vice Chair. LIN: Vice Chair Lin. I guess for Sinclair, the clarification that you were trying to make was that the Hawaii Revised Statutes currently states that we have the power to delegate, right. Not necessarily waive all this but we have the power to delegate to the Planning Director or the Planning Department to waive all these items, waive a hearing for these items. SALAS-FERGUSON: Vice Chair Lin, so the Hawaii Revised Statutes says that the Commission may delegate the authority to the Department to waive a public hearing for certain variances and so the Commission may delegate these authorities which are under 8-10 (1)(2)(3) and (4). So, it's up to the Commission to delegate it or not. You can keep that authority within the Commission or delegate it to the Department. KNOWLES: I'm sorry. DEFRANCO: Commissioner Knowles. KNOWLES: Commissioner Knowles. I just have then a follow up. How I read this language is the Commission hereby delegates to the Department the authority to waive so that by agreeing to this amendment as it currently stands. We are delegating it now. We're not deciding moment to moment or hearing to hearing when we want to delegate it. It's being delegated pursuant to the rules. Correct? 24 EXHIBIT B (DRAFT) SALAS-FERGUSON: That's correct. So, the Commission can either delegate the authority to waive a variance for other structures and activity or can keep that authority within the Commission. So, that's the decision. Does that answer your question Chair Lin, or Vice Chair? LIN: Yes, it does. KERN: If I could real quick. DEFRANCO: Director Kern. KERN: What might be easier is that when a suggestion is made if somebody has an opposition to it, to bring it up and that might save on time and efficiency assuming that we're not hearing any opposition or any further comments or remarks or adjustments we'll take that as general concurrence to move forward with some type of amendment. Is that fair? DEFRANCO: Yes. Thank you. So, moving forward do we have some other points that want to comment on or make a discussion? So, when they go to revise this that, we're covering up all the thoughts of all the Commissioners and it's okay to say something. Commissioner Vitousek if you have another thought. KNOWLES: Chair DeFranco I just had a question. DEFRANCO: Yes. KNOWLES: Commissioner Knowles with a quest, Vice Chair Knowles with a question. Assuming that we agree with some of these other definition changes or the expansion of the setback or those sorts of things. Should we just not discuss those, or do we need to go through and say all the things we like and all the things we would like to change? KERN: Again, this would be up to you folks. So, my suggestion is that we pick up the things that there might be issue with or want to talk to. Again, this is really in alignment with Act 16 and also, I wanted to clarify at the beginning that since Act 16 came into law the Planning Department has been operating as that's in law. Regardless whether these have been in effects of the 40-foot shoreline setback's been in place, the SMA, all of that has been in place and the Department's been acting that way. KNOWLES: Thank you for that clarification. [Unintelligible crosstalk] DEFRANCO: I think it's being pointed out that if we have any more exceptions to anything we should voice it and because of the way that its written some of them involve the Planning Commission more than other things that are in here. Maybe the County, someone could speak to that to point out to us the ones that directly affect the Planning Commission. 25 EXHIBIT B (DRAFT) CAMERO: Those would be — DEFRANCO: [indecipherable] CAMERO: —My apologies. So, I apologize because Act 16 did cover three rules. So, I thought it was very important to include Planning Department Rule 11 which does have the substantial 40-foot setback. The Planning Commission today would specifically looking at Rule 8 and 9 within the Planning Commission Rules and the changes that are being made there. However, if you guys do have feedback for the Planning Department Rule 11, we are also gathering it today. Please also take in mind that like I mentioned it with the next steps. We will be having another public meeting to address the Planning Department rule changes after we go through the Planning Commission rule changes. DEFRANCO: So, any other comments. I know one of the little buzz things that I've heard going on is the incorporation of the word "development" and who that is for and how much that will affect maybe a small homeowner that is now going to be considered a development. Is there any comments on this? KERN: I can jump on that. DEFRANCO: Yeah. KERN: You're pretty much referring to the change in the SMA — DEFRANCO: Yeah. KERN: — element for the shoreline components. DEFRANCO: Yes. KERN: Yeah, so, prior to this the single-family exemptions, a single- family residence were exempt up to 7,500 square feet. Regardless of whether they were shoreline or not or not shoreline and with this change has done is that if it's a shoreline property there's no longer an exemption for a single-family residence essentially. So, if it exceeds $500,000.00 in value it turns into a SMA Major. If it's a project that's less than that it would be an SMA Minor. So, for the small folks the mom and pops — DEFRANCO: Right. KERN: — it would still fall under if it's less than $500,000.00 it would fall under an SMA Minor category. DEFRANCO: Commissioner Kanuha. 26 EXHIBIT B (DRAFT) KANUHA: All I ask, isn't everything on the shoreline now a SMA Major. Correct? KERN: It is if it exceeds the $500,000.00 cost threshold. Yes. KANUHA: These days in times majority is an SMA Major. KERN: Many, yes. DEFRANCO: Yes, Commissioner Kanuha. KANUHA: With that I know there's a concern just looking at written testimony here just for the definition of development that was in there and a couple of other things. Could you just kind of clarify on that? Can you not hear me? I'm loud so I'll try not to speak so loudly into the mic. KERN: Could you repeat that? KANUHA: The only provision that this is coming off of a testimony and obviously we got to touch on all of that. But it is coming back and obviously like I just asked anything over 500 is going to trigger an SMA Major and majority of shoreline property nowadays and anything going on is an SMA Major. Especially with costs moving forward with that going forward one question I want to ask you. Is what Mike brought up kuleana properties and kuleana lands especially to Native Hawaiians that say we come through and there's a tsunami or adverse effect onto the property. That they are able to go back and rebuild and that have been there. Are there any exemptions for that? Is there anything that's set-in place in the language? KERN: I don't believe there's anything explicitly exempt as it relates to kuleana's and that side of it. There are some areas that would be defined as not as maybe development as far as like repair and maintenance goes — KANUHA: Yeah. KERN: — or minor activities and outside of that everything that's defined as development which it now includes the single-family residence on the shoreline would be under there. But I'm not aware of any other special provisions for those land types. KANUHA: I think that language needs to just coming in, I think that language needs to be changed as well and there needs to be something put in there. For special cases and especially like you said the "mom and pop,"the local families that are able to have property on the ocean or are able to actually get to that point where they're able to buy a shoreline property and they're able to do something for their family and their kids. Even with family and friends helping you still construction cost is going to hit that SMA Major no matter which way you look at it. 27 EXHIBIT B (DRAFT) KERN: I think we would need a legal opinion on whether or not we could adjust that down because that would be less stringent than what the State's requiring right now. [indecipherable] KANUHA: Yes. That was a question that was on my mind, I've been just looking at it. So, I wanted to bring that up and have a discussion about it. DEFRANCO: Commissioner Paishon-Duarte. PAISHON-DUARTE: Thank you Commissioner Kanuha. Commissioner Paishon-Duarte here. I appreciate all the questions that you raised, and I would like to also advocate that our staff should seek a legal opinion to find if there are any provisions, exceptions that can be made for kuleana landowners in certain cases. KERN: And so, you'll be looking for some type of exemption that would not define it as development in that$500,000.00 threshold. So, basically avoiding a SMA Major is that what— PAISHON-DUARTE: Director Kern. I'm more in the exploratory phase. I want to understand what are the various options it might not be in the exemption per se. But what are some of the options that we can look at? KERN: You guys good on that? DEFRANCO: Your good Mike? You're good, yes. JACKSON: Staff can work with Corporation Counsel Salas-Ferguson to explore what the options are related to that. Thank you. DEFRANCO: Okay, thank you. Is there any more points that we want to bring up or discuss? No, we all good then? So, we're going to need a motion to continue, is that right or a motion to adjourn? VITOUSEK: I make a motion that we continue. KERN: Can we just verify with staff on the most appropriate action here. JACKSON: So, we're required to provide 30 days minimum notice. So, I think the earliest we would be able to schedule would be for June 2nd after the Windward Planning Commission meeting. So, that afternoon. KERN: My suggestion if we can would be to the call of the Chair to the call of the Department as we need to arrange both Commissions and the timing factor and we do have some work on the backend and we do have a myriad of people taking vacation till this next month. So, that would be the request just to give us a little bit of flexibility on the exact date, but we'll get it back up as soon as possible. 28 EXHIBIT B (DRAFT) VITOUSEK: Chair, I make a motion that we continue until the Planning Department can resubmit the requested amendments. DEFRANCO: Language, yes. Thank you. LIN: I second the motion. This is Vice Chair Lin. DEFRANCO: Vice Chair Lin. Okay, oh. KNOWLES: Chair, can I say one thing is this the appropriate time? I just wanted Commissioner Kern, Planning Director Kern. Can you just reiterate that a lot of the things, this won't have any impact on Planning moving forward with setbacks et cetera because the County is currently in compliance. KERN: Yes, thank you for that clarification opportunity to clarify again. Yes, since Act 16 came into law the Department has been acting as if these rules are already there. Following exactly what Act 16 laid out in that legislation. So, yes this will not affect or disrupt that in any way. It'll just give us the time for us to work out these adjustments. Thank you. DEFRANCO: Okay, with no further business and we have a motion to adjourn, we have a second on the motion. [indecipherable crosstalk] I think we're voting. I'm hearing two different sides here. [indecipherable crosstalk] All right, we so have a motion on the table, do we need to discuss anything about going forward then, the motion to continue. Is there any discussion from anybody? Seeing none, then we're going to call a vote then. CAMERO: Perfect. Commissioner Vitousek? VITOUSEK: Aye. CAMERO: Commissioner Lin? LIN: Aye. CAMERO: Commissioner Balog? BALOG: Aye. CAMERO: Commissioner Cross? CROSS: Aye. CAMERO: Commissioner Daniele? DANIELE: Aye. 29 EXHIBIT B (DRAFT) CAMERO: Commissioner De Luz? DE LUZ: Aye. CAMERO: Commissioner Perrin? PERRIN: Aye. CAMERO: Commissioner Kanuha? KANUHA: Aye. CAMERO: Commissioner Knowles? KNOWLES: Aye. CAMERO: Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. CAMERO: And Commissioner or Chair DeFranco? DEFRANCO: Aye. All right, so the ayes have it. CAMERO: The motion carries eleven to zero. Thank you. DEFRANCO: Thank you. The hearing adjourned at 11:30 a.m. Respectfully submitted, Melissa Dacayanan-Salvador Secretary to Boards and Commissions 30 EXHIBIT B (DRAFT)