POSTED: 6 December 2006 - 8:00am HST

Time has expired for Kapalawai Resort

view west from front yard of Robinson Estate at Pakala's near proposed "resort"

testimony by Bruce Pleas on 5 December 2006
on Bill No. 2201 before Planning Commission

Ordinance wording
Condition (t) of the original Ordinance (No. PM-2001-356) that the developer agreed to is specific in requiring "Substantial construction of the hotel shall be completed within five years from the effective date of this ordinance. If substantial construction is not completed within this time, the Planning Commission shall initiate proceedings to rezone the property to the designations existing prior to the date of this Ordinance"

This wording, in my opinion, requires that if the hotel (not condominium-hotel) does not have substantial construction completed within the time frame agreed upon by the developer then it shall be rezoned by the Planning Commission.

As a few of the present Council members that were in office during the formation of the wording of this Ordinance will remember the long discussions on the 'shall/may' wording on this and other Ordinances and the general consensus that 'shall' means that it will be done and 'may' meaning that is could be done. In any case to uphold the meaning of 'shall' in this and other Ordinances I feel that it is of the best interest of the present County Council to require the developer to follow the Ordinance they agreed to and suggest to the developer that they resubmit the development back to the County for new zoning if they want to. To allow a 'shall' wording not to be followed may set a precedent for other Ordinances which could allow the 'shall' wording to be generally ignored.

Planning issues
As I have always and will continue to testify at all planning meetings that it is, in my opinion, a very illogical planning process to allow any development in areas that are in 1) Tsunami zones, 2) Flood zones, and 3) Hurricane inundation zones. To allow development in these areas is knowingly putting the residents of Kauai and citizens of the world into an area that could jeopardize their life.

Therefore because the proposed development in Bill 2201 lies within all 3 of these danger zones (amount of development in each zone is approximately 80% in Tsunami zone, 60% in flood zone and 10% in Hurricane inundation zone) I continue to oppose the development at Kapalawai. With insufficient emergency shelters presently available for the present population of the Westside and no condition(s) in the present Ordinance for the developer to provide any additional shelter(s) for the guests and employees of the resort in the existing Ordinance this Ordinance is in need of revision/resubmittal, not an extension.

At the County Council Public Hearing the developer, Lew Geyser, presented to the Council the new plan to make the development a condo-hotel. In the EIS and in the following meetings with the State and County this project was presented as an 'eco-hotel' and the existing Ordinance passed in 2001 was based on this presentation of use by the developer. In 2004 the developer went before the Planning Commission to add kitchens to some of the units and at that time the development was presented to the Planning Commission as a condominium hotel project which would sell for around $400,000 for a unit with out a kitchen and around $600,000 for a unit with a kitchen. This proposal was withdrawn from the Planning Commission by the developer.

Now again the developer is proposing before the County Council a condo-hotel use for this area which under the existing Ordinance is zoned RR-1, resort/residential with 1 unit per acre and since 2 hotel units are considered 1 unit the development is allowed 250 units on the approximately 160 acres of the project (there are a number of acres that are in Transition zones and Special Treatment zones due to the Historical and Cultural sites located in the development which are not allowed to be included in the acreage to determine the total units allowed). At the present zoning only hotel units should be allowed as these are transitional uses for guests.

To allow a condominium hotel use would mean that the units are being owned and should count as a full unit per acre, which would mean that the present zoning is insufficient to cover 1 unit per acre. In the condo-hotel proposal brought before the Planning Commission in 2004 the developer presented a "Form of Project Ownership" (I will provide copies of this page to the Council members at the Planning Committee) in which is stated the following "The unit owner is entitled to exclusive ownership of the unit but the land is a common element, owned jointly in common with other unit owners in the condominium project. The project will be owned and managed as a condominium hotel. This means that each unit will be owned by one or more individuals or legal entities (e.g., a corporation).

It is possible that individuals or legal entities might own more than one unit........The individual units MAY then be placed in a rental pool by the owner and managed by a qualified hotel operator. The operation of the project will appear to be the same as a hotel. None of the units in the project will be sold or occupied as time-share units (or fractional units or vacation clubs)." This is on Page 3 of a letter sent to the Planning Director from Helber Haster & Fee, Scott Ezer, Principal, dated September 8, 2004 on the issues pertaining to the new development request that were presented at a Public Hearing on July 13, 2004. Please note that it is stated that "...the land is a common element, owned jointly in common with the other unit owners in the condominium project." A question I have is how can the unit owners own the land in common when the project is on leased land?

From this request and the definition of a condominium hotel use for this project these units;

1) Would be the property of the owners and could be remodeled by the owner (legally or illegally) with or without the consent of the developer or County,
2) Could be lived in full time,
3) Rented out by the owner or any manager/qualified hotel manager,
4) Multiple units could be owned by a corporation and managed by any managing company/qualified hotel manager.

On 1, 3 and 4) This is the problem that Kauai has experienced around the entire island over the last decade and is called VACATION RENTALS. Since this project area is only zoned RR-1 and not VDA zoned is it sensible to allow a condominium type of hotel operation in which private ownership of the units is allowed with the possibility of the owners renting/leasing out their own units to other people. To allow this is to make more of a hardship ($$ needed in the County Budget for additional inspectors) on the County administration (Planning and Building departments) to inspect and regulate the privately owned units in this project for (illegal) non conforming use (vacation rentals). If the development is to be a condo-hotel then the developer should change the zoning to VDA to allow this use.

On 2) As a private owner of a unit it gives the owner the right to live in the unit full time which changes some to possibly all of the project to a (high end) residential use and therefore the parts of the project that are designated for condominium use should be rezoned as Residential for the residential use and VDA if the units are to be used as vacation rentals.

To allow a condominium type of ownership and the associated changes in land use that could happen with this type of ownership would be a change in use intended by the existing Ordinance.

After the Public Hearing on Bill 2201 I sent via e-mail to the County Council a number of sites on global warming, sea levels and erosion rates that pertain to Hawaii as requested by the Planning Committee Chair. This information shows that there is still the chance that the sea level will continue to rise in the future. Since approximately 50%+ of this project and most of the proposed units are in areas that are under 10' above sea level these possible erosion rates need to be seriously considered.

All of the above leads to a new use (condo-hotel) of the project that should require new zoning (VDA) and with the new shoreline/erosion setback requiring a completely new site plan that also may require some zoning changes it seems to me that an extension should not be granted and that due to the new nature and lay out of the project, the compromised erosion rate decision not to mention that time has run out (by Ordinance) for the project, that this Bill either be denied or received for the record by the Planning Committee.



POSTED: 22 November 2006 - 8:00am HST

Kapalawai Resort & Planning Commission

erosion history of Pakala shore area of Kauai. Clickon image to see in greater detail

public testimony from Bruce Pleas on November 21, 2006 on Bill No. 2201

Following is my testimony on Bill No. 2201 that covers many different areas of the Kapalawai project.

Process at last Planning Commission meeting on recommendations presently before the County Council

At the last Public Hearing before the Planning Commission in which the legislation on Kapalawai that is presently before the County Council was passed the following timeline was followed;

The Public Hearing was convened late (around 6:30pm) with only 1 person of the 3 people signed up to give public testimony in attendence. The Public Hearing was closed after 1 person testified, the other 2 people were not given the chance to present their testimony thru either oral or written forms.

The Planning Commission went directly into formation and discussion of the recommendation before the Council today with again only 1 person available to give public testimony and the Planning Commission then passed the recommendations sent to the County Council.

I brought up the fast process to the Planning Commission Chair and read the Planning Commission Rules in which this process is allowed.

In the past the Planning Commission has kept open Public Hearings when they are held late and people who are signed up to testify are not present. This is done as a courtesy to the public so that the people who have expressed interest in the Public Hearing have a chance to present their testimony to the Planning Commission by either written form or at the next scheduled continued Public Hearing.

I feel that this process followed by the Planning Commission on the recommendations now before the County Council did not allow the interested public a fair opportunity to present their testimony.

On the shoreline certification
The first shoreline certification was approved in 2001 and even with 2 amendments presented to the Planning Commission for approval there was not another shoreline survey done for a shoreline certification done until November 2005, which was reviewed and re-submitted in February of 2006. This review/re-submittal was appealed in May 2006 by myself and to my knowledge the appeal has not had a decision made on it.

In any case State/County regulations require a new shoreline certification within 1 year of any building, grading and grubbing permits being issued and since the last shoreline survey was done on February 2006, only good until February 2007, the project will need another new shoreline survey/certification done before any permits can be issued.

It is pointless to pass an amendment (At the writing of this I do not have a copy of the legal amendment before the County Council, all I have to go on are my notes from the Planning Commission meeting, copy of Special Management Area Time Extension Request dated July 11, 2006 and what was in the newspaper) that is tied to the shoreline certification and gives the applicant a set amount of time for an extension (18 months) "from the most current shoreline certified by the State of Hawaii at the time of building permit application." As I presented to the Planning Commission this equates to a pretty much open ended extension unless specific wording is inserted to specify which shoreline certification (2005?, 2006? 2007?) and how to deal with the appeal process (does the appeal process supercede the shoreline certification or does it run concurrent with the shoreline certification?) and is this the final or just the first in a line of extensions?

All of this adds up to a confused amendment when the original Ordinance (No. PM-2001-356) that the applicant agreed to is specific in requiring "Substantial construction of the hotel shall be completed within five years from the effective date of this ordinance."

The original intent of this five year requirement on completion of "substantial construction" was from the realization in 2000/2001 of prior resort zoned areas that had set idle for 20+ years that were then coming back on line due to the availability of monies and the renewed interest of building resort-condo developments on Kauai. The realization that over the last 20+ years that the infrastructure and the local work/living conditions have changed so much in these areas (and on Kauai as a whole) that prior resort zoned areas that looked feasible 20+ years ago were no longer as feasible and in some cases no longer needed. This is why Council member Valenciano proposed the five year requirement on both Westside resort zoning Ordinances so that in five years these projects could be reviewed and see if they were still a viable project.

Five years ago PMRF had almost closed, Kekaha Sugar was closed, G&R Sugar was in dire straights and unemployment was much higher than today. Now there are not enough workers for the businesses on Kauai, PMRF needs trained and untrained employees, there are more agriculture jobs in seed companies than there were in Kekaha Sugar, aquaculture has returned more jobs to the Westside, G&R sugar is now expanding into energy production with a new plant and increased acreage in energy crops and unemployment is at an all time low. Plus now there are 2,000 to 3,000+ resort units planned for Kauai with more waiting in the wings to be passed which will employ any resident who wishes to be employed in this field of work and to complete these already passed projects some workers will probably have to be brought in from other areas. All of this adds up to another reason that the five year requirement be enforced and not extended as there is not the great need for another development on Kauai at this time, especially one that will only be paying service level wages when there are higher level wages available on many different types of employment.

On the erosion setback

The erosion study presented is a "The data presented here represent a draft analysis of the maximum erosion hazard." and "This map is not a final product....Our final product will have a more accurate and precise analysis of erosion hazards that may vary significantly from this. For instance, one crucial missing piece of information is a modern, high resolution aerial photograph. We hope to have such a photo within the next 6 months to assist in the production of our final erosion analysis."

The recommendation (#21) from the Planning Commission (as presented to me in July 2006) states that "A building setback line shall be established from the most current shoreline certified by the State of Hawaii at the time of building permit application. This setback line shall take into consideration the "red line" (the 70-year erosion hazard line plus 40 feet as established by the preliminary erosion study by Dr Chip Fletcher dated June 2006, or 200 ft., whichever is closer to the shoreline, or other acceptable setback based on other models developed by the County of Kauai shoreline erosion study." There was another note written in by Mike Laureta that I could not decipher completely that could of also been added to this condition that has to do with the Transition zones along the shoreline.

A note is that the setback agreed upon and presented in all of the maps is 100' for this project, not 40' and that the setback line only has to take into consideration the 70-year erosion hazard line and has the phrase "whichever is closer to the shoreline" as a loop hole to allow buildings as close to the shoreline as possible. On the map that was presented by Dr. Fletcher available at: (see image above for preview of image)
the original computed erosion setback varied from 100+ feet to around 500 feet for the 70-year erosion rate and if you add the 100' setback to these figures the agreed upon 200' setback does not appear to be supported by even the draft erosion analysis.

On type of resort

There is still the question as to the type of resort this will be. It started out as an Eco-hotel on which the EIS was based on, on July 13, 2004 the applicant submitted a modification to the Conceptual Site Plan that included kitchens in some units along with a proposal to make the use of this parcel a Condo-resort with the starting price for a 1 bedroom unit at $420,000. This request was withdrawn by the applicant.

This still brings up the question as to the present plans as to what type of hotel/resort/condo is planned for this land parcel. Please remember that developers at the zoning amendment stage have presented one type of use to the County Council and at the opening of the project the type of use has changed from what was presented as a conceptual plan/use to the Planning Commission after it left the Council's venue.

On planning

From the time of the formation and passing of the 2000 General Plan this project has been considered and was included in the General Plan. Since then this project has been before the Planning Commission and County Council in various forms. For the entire time I I have been questioning the location of this proposed resort on a couple of different levels;

1) Fully 75%+ of the land area is in Flood and Tsunami zones, the entire area along the ocean (approximately 10%+ of the project area) is in the Hurricane Inundation Zone. I have always questioned the logic of putting any people into an area that has potential to harm those people, especially with the project providing no shelters in case of an emergency situation (evacuation of resort area and housing of visitors if the resort is destroyed or not livable) for their guests and the additional residents that will be needed to staff the project.

2) This project is a prime example of spot zoning as it does not adjoin any significant residential/commercial area that will support it or that the resort will support and will require that all guests at this project will have to drive into the closest town. There is an adjoining parcel of land that lies next to the Russian Fort and is well within walking distance of Waimea town that I have long contended is a better location for a resort. Also this adjoining parcel of land is 90%+ out of the Flood, Tsunami and Hurricane Inundation zones and is a much better land parcel for this type of development.

3) The Cultural and Historical significance of this parcel is very well documented in the EIS
which makes up a decent portion of the EIS.

(See EIS Section 4-9 @ 22 pages-Historic, Cultural and Archaeological Resources, Appendix D @ 108 pages-Archaeological Inventory Survey, Appendix E @ 54 pages-Architectural Analysis of Structures at Kapalawai, Appendix G @ 48 pages-Traditional Customs and Practices Report)

From the beginning of this project certain members of the public have presented testimony on the Cultural significance of this area and have expressed their concerns of developing this very unique area of Kauai into a resort development. At the same time these members of the public have asked that legislation be passed to protect this area as a Historic and Cultural Preserve and move the project to the adjoining parcel of land closer to Waimea.

From the beginning of this project I have asked that due to the sensitive nature in both previous Cultural and Historic uses that the entire project (especially any area that will have trenching or ground disturbing activities) be gone over with Ground Penetrating Radar to begin to identify the areas that there may be some Cultural and Historic deposits before any Grading and Grubbing Permits are applied for. Five years ago this was a tall task to ask for as that technology was not available in Hawaii but now that technology is in Hawaii, is being used to identify Cultural and Historic deposits with this new condition needed to be added to any legislation that is passed for this parcel of land. Please reference the EIS and note that only 27 areas were trenched and fully 17 of those contained the minimal 'charcoal deposits' and much more including a burial site.

Assorted issues

Presently the work force on Kauai (including the Westside) is barely to not able to provide sufficient workers for the existing businesses on Kauai. When this project was proposed it was to provide additional jobs for Westside residents in case sugar was phased out. Presently the unemployment figures are under 3%, the local businesses can not find enough workers to fill existing job openings, there are proposed increases in jobs at PMRF, at presently being built and passed projects from Hanapepe to Poipu and at the new ethanol production facility (7,500 additional acres in sugar and 150+ more workers within 2 years). At this time this project is not needed to supply employment.

The applicant agreed on December 24, 2001 to the condition (t) that "Substantial construction of the hotel shall be completed within five years from the effective date of this ordinance. If substantial construction is not completed within this time, the Planning Commission shall initiate proceedings to rezone the property to the designations existing prior to the date of this ordinance." From the beginning the applicant agreed to and has know that "substantial construction" was to be completed by December 24, 2006.

Over the last 5 years there has been an unprecedented amount of previously Resort zoned areas around Kauai brought up before the Planning Commission to be developed, yet this and the other Westside resort project have not been developed or even worked on. Both of these projects have a 'five year use it or lose it condition' which should be enforced.

For the Kapalawai project there is now a revised setback of 200' which will require a completely new site plan, possibly a change in the Zoning since a percentage of the proposed units and most, if not all, of the restaurants/snack bars are within this 200' setback. There is also a percent of lot coverage that is allowed by Ordinance in each zoned area and with the units being compressed and paved fire lanes being added it is questionable that the existing Zoning will allow the entire 250 units and associated amenities to be located within the existing zoned areas.

To change the Zoning, to change the lot coverage or to significantly change to site plan would be a significant change in the complexion of the proposed resort, with the possibility of a change in type of use (eco-hotel to proposed condo-resort ownership of units), with the 200' setback only a draft proposal along with the significant Cultural and Historical sites on this parcel I ask the County Council to deny this request for an extension and require the applicant to reapply for a new Zoning request once they have completed a new site plan, defined what type of unit use will be used in the project, provided a final shoreline erosion rate for the project and have fully identified the cultural areas that exist over the entire project.

Bruce Pleas
PO Box 721
Waimea, Hawaii 96796

(808) 337-9509 or 639-2850