BOARD OF WATER SUPPLY
COUNTY OF MAUI
REGULAR MEETING
OCTOBER 27, 2005
Held at the Council Committee Room, 7th Floor, Kalana O Maui
Building, 200 South High Street, Wailuku, Maui, Hawaii,
commencing at 9:00 a.m. on Thursday, October 27, 2005.
REPORTED BY: GLORIA T. BEDIAMOL, CSR/RMR #262
IWADO COURT REPORTERS, INC.
A P P E A R A N C E S
CHAIRPERSON: MICHAEL VICTORINO
VICE CHAIRPERSON: KENNETH OKAMURA
MEMBERS: STACY HELM CRIVELLO
GINNY PARSONS
GREGORY SMITH
SALLY RAISBECK
RALPH JOHANSEN
KENT HIRANAGA
STAFF: ED KUSHI, CORPORATION COUNSEL
GEORGE TENGAN, DIRECTOR
MICHELLE SAKUMA, SECRETARY
HOLLY PERDIDO, FISCAL OFFICER
HELENE KAU, FISCAL OFFICER
ALVA NAKAMURA, ENGINEERING
HERB CHANG, ENGINEERING
BOARD OF WATER SUPPLY
TRANSCRIPT OF PROCEEDINGS
* * *
CHAIRMAN VICTORINO: I would like to call this
meeting to order of the Board of Water Supply, County of
Maui. Our regular meeting of October 27, 2005.
Present today is Mr. Greg Smith, Stacy Crivello
Helm, Kenneth Okamura, Ginny Parsons, and Sally Raisbeck,
and myself Michael Victorino.
Announcements? Any announcements at this time?
Does any board member have any announcements?
MS. PARSONS: Do you want me to --
CHAIRMAN VICTORINO: No, we'll wait until later.
Sally, do you have something?
Oh, I'm sorry, and Director Tengan is also
present. I apologize.
MR. TENGAN: I would just like to inform the board
officially that Cathy Howard has left the department to
pursue her personal endeavors. And we need to thank
Michelle, who is Eric's secretary, for pitching in and
manning the meeting this morning.
CHAIRMAN VICTORINO: Thank you, Michelle, for
being here. Thank you, George, for the information.
MS. RAISBECK: Mr. Chair?
CHAIRMAN VICTORINO: Yes.
MS. RAISBECK: In response to that, could I
suggest that the board should send a letter of appreciation
to Cathy?
CHAIRMAN VICTORINO: I'll take a note of that and
I'll have something put together and send it on behalf of
all of us.
MS. RAISBECK: Thank you.
CHAIRMAN VICTORINO: If that's okay.
MS. RAISBECK: Yeah. And also, I'd like to know,
has she gone to a different department in the county?
CHAIRMAN VICTORINO: She left the county itself to
do some personal endeavors.
MS. RAISBECK: Okay.
CHAIRMAN VICTORINO: I did come up last week
Friday and had a little get together for her. I gave her a
lei on behalf of all of us and said mahalo for all her help.
MS. RAISBECK: Thank you.
CHAIRMAN VICTORINO: Also make note that corp
counsel Edward Kushi is present and Ralph Johansen, board
member, is also present. Good morning, Ralph.
MR. JOHANSEN: Good morning.
CHAIRMAN VICTORINO: Okay. Moving right along.
Approval of the minutes of the September 2, 2005, as
provided in the packet. Any corrections, deletions, or
additions to the minutes?
MS. RAISBECK: I have to confess, Mr. Chair, that
I did not read the minutes yet, so I move that they be
approved subject to a 30-day correction period.
CHAIRMAN VICTORINO: So moved. Do I have a
second?
VICE-CHAIR OKAMURA: So moved.
CHAIRMAN VICTORINO: It's been moved and seconded,
all those in favor say "aye."
(A chorus of ayes.)
Opposed?
(No response.)
Okay.
At this time, we open up for public testimony. If
there's anyone who is present -- did anyone sign up to
testify? No. Okay. Now, if you have a specific agenda
item that you want to testify on, you can wait until that
point; okay? But if you don't have or you want to speak on
another matter that may not be here, now is the time. None?
Okay.
Moving right along. Let's go to Unfinished
Business. Report on the Dowling Well Agreement. That's
Director's 05-16. To be distributed at the meeting.
On this matter, the board may convene in executive
session, because in order to consult with our board's
attorney on any questions and issues pertaining to the
board's powers, duties, and privileges, immunities, and
liabilities. So do I have a motion to go into executive
session?
MR. JOHANSEN: So moved.
CHAIRMAN VICTORINO: Do I have a second?
MS. CRIVELLO: Second.
CHAIRMAN VICTORINO: It's been moved and seconded
that we go into executive session. All those in favor say
"aye."
(A chorus of ayes.)
Opposed?
MS. RAISBECK: No.
MS. PARSONS: Do we even get discussion here?
CHAIRMAN VICTORINO: Yes.
MS. PARSONS: Can we have discussion first? I
wonder why we need to go into executive session.
CHAIRMAN VICTORINO: Okay. Well, I'll open up the
discussion, then. I apologize, because I know there was
some sensitive materials that -- okay, go ahead.
Mr. Okamura, you have questions?
VICE-CHAIR OKAMURA: Yes. I was wondering if we
can have time to read it, and then to bring it up at the
next meeting so we can ask questions about it, instead of
trying to spend the time now.
CHAIRMAN VICTORINO: Okay. Mr. Kushi, I think
there is some information that, yes, we can discuss it in
executive session, but cannot be handed out and cannot be
kept by board members; am I correct in saying that?
I'm asking the question specifically to Mr. Kushi,
who is our corp counsel.
MR. KUSHI: Mr. Chair, are you talking about the
Dowling agreement?
CHAIRMAN VICTORINO: Yes. The report on the
Dowling Well Agreement. That is correct, sir.
MR. KUSHI: If you want to look at -- I mean, I'm
assuming that you have it.
VICE-CHAIR OKAMURA: We have --
MR. KUSHI: You just got it today.
CHAIRMAN VICTORINO: Yeah.
MR. KUSHI: My recollection of the agreement, I
mean, if you -- I don't see why you need to go into
executive session, because the agreement is a matter of
public record.
CHAIRMAN VICTORINO: Okay.
MR. KUSHI: What your discussion will be is -- I'm
not sure what you're thinking about. But the agreement
itself is part of the department's public records.
CHAIRMAN VICTORINO: Okay.
MR. KUSHI: So I don't see the need for it right
now.
CHAIRMAN VICTORINO: Okay.
MR. KUSHI: If you just got the agreement, that's
another matter.
CHAIRMAN VICTORINO: Okay. Since --
MR. KUSHI: Then I can see why Mr. Okamura says he
needs more time to look at it.
CHAIRMAN VICTORINO: Okay. Well, then, if that's
the case, can we withdraw the motion? The motion -- will
you withdraw your motion?
MR. JOHANSEN: Yes.
CHAIRMAN VICTORINO: Will you withdraw your
second?
MS. CRIVELLO: Yes.
CHAIRMAN VICTORINO: Okay. The motion has been
withdrawn. And if it is all right, and if it's with the
privilege of the board, we will defer this matter to our
next meeting to allow all of us time to review the
agreement.
MS. RAISBECK: Mr. Chair?
CHAIRMAN VICTORINO: Yes, Ms. Raisbeck.
MS. RAISBECK: The reason I did not want to go
into executive session is that, first of all, I really
object to having things presented to us at the start of the
meeting that require, you know, reading and thought, because
then there is no opportunity to think about things in
advance of the meeting, which wastes our time in the
meeting.
CHAIRMAN VICTORINO: That's correct.
MS. RAISBECK: Also, I wonder, if there is
something that requires us to be in executive session, then
we ought to know what that specifically is. It shouldn't
just be a generic thing that any time we deal with subjects
that people would rather not talk about we go into executive
session. So I'm willing to defer this.
In fact, I would vote for deferring it so that we
do have a chance to read the material that's been given us
so far, and if necessary, ask questions of the department
that they would be able to respond to at the next session.
CHAIRMAN VICTORINO: Okay. That's fair enough.
Mr. Okamura, you had something?
VICE-CHAIR OKAMURA: No, thank you.
CHAIRMAN VICTORINO: Okay. So --
MS. PARSONS: Was there a reason for executive
session when you drafted this? The agreement was --
CHAIRMAN VICTORINO: I was told that there may be
some sensitive materials to be discussed about some
agreements and other things, so that -- that's why this was
put this way.
MS. PARSONS: By whom?
CHAIRMAN VICTORINO: By the former secretary,
Cathy. She said there may be things that we need to discuss
in executive session. And I didn't have the report so I
couldn't address it. But now, since Mr. Kushi as corp
counsel says that probably there isn't, as far as he knows
at this point --
MR. KUSHI: Well, put it this way, Mr. Chair. The
agreement itself is part of the department's records.
CHAIRMAN VICTORINO: Right.
MR. KUSHI: It's public record. You can discuss
the agreement, what it says. Now, if you want to discuss
why the agreement was entered into and the discussions
leading up to that agreement, again, I wasn't there, I can't
say if it's privileged or confidential or what. And
remember, this agreement was made when the board was
semiautonomous.
CHAIRMAN VICTORINO: That is correct.
MR. KUSHI: I'm not sure if any of the staff
people from the board was present when the board negotiated
this agreement. That being said, I leave it up to you.
CHAIRMAN VICTORINO: Okay.
MR. KUSHI: In the interest of open meetings, I
would say at this point I think executive session would not
be proper.
CHAIRMAN VICTORINO: Okay. With all that being
said and taking legal counsel as the final say, then I will
make that -- defer this report for our next meeting, and I
will not put it into executive session; okay?
MS. RAISBECK: All right. May I also ask if there
are any later agreements, subsidiary agreements, any other
contracts between the department and Kula Mala, that we
could also be given prior to the next board meeting?
MS. PARSONS: Addendums (sic).
MS. RAISBECK: Or addendums (sic) or whatever.
Are there any other things besides what's in these pages?
CHAIRMAN VICTORINO: Mr. Tengan?
MR. TENGAN: Mr. Chair, as it states in the
write-up, there was another agreement dated September 9,
1999, and coming through this material here, I don't see it.
So we'll get that to the board also.
CHAIRMAN VICTORINO: And could we have that before
the next meeting because --
MR. SMITH: It's right here. Last page.
CHAIRMAN VICTORINO: Oh, it is. Okay. I haven't
had a chance to look through this, so everybody help me out.
It is there? Okay. Okay. It is there. So do you know of
anything else, Mr. Tengan?
MR. TENGAN: I think there was one more concerning
storage. I believe there was one more agreement, I'll get
that to the board.
CHAIRMAN VICTORINO: Please.
MR. CHANG: Did Elmer Carvalho sign one -- on this
thing?
CHAIRMAN VICTORINO: Well, I think all proper
and -- documentation that's appropriate with this whole
report and subsequent agreements would be very important.
Because then, you know, then -- and also get it out to the
board prior to, at least two weeks prior to, so they can sit
there and at least address it; okay?
Is that all right with you, Sally, that we --
Ms. Raisbeck, that we get all the reports that we need,
addendums (sic), whatever?
MS. RAISBECK: Okay.
CHAIRMAN VICTORINO: Mr. Tengan?
MR. TENGAN: Mr. Chair, it might help us to put
information together, too, if we know, you know, what the
board is looking for or looking at within these agreements.
And I don't know if there's any particular thing that the
board wants to look at. Or is it just a general review of
the agreement?
CHAIRMAN VICTORINO: Ms. Raisbeck?
MS. RAISBECK: I was about to ask why it's on the
agenda at this time. What is the reason for putting this
agreement from 1996 and 1999 on the agenda at this time?
CHAIRMAN VICTORINO: Well, I mean, part of it
was -- it was requested by a board member.
MS. RAISBECK: Oh, Okay.
CHAIRMAN VICTORINO: Okay. And I followed through
on those things, and I think the board -- was it you?
MS. PARSONS: I think it was both Sally -- both of
us were looking at this.
CHAIRMAN VICTORINO: Yeah. I remember distinctly
you guys -- this being asked of me and I requested it.
I would ask this, that if any board member -- I
know you guys haven't had time to go over the report and any
addendums (sic) -- if they can get out -- and if you have
any specific questions that you want them to look into, then
to get them to me and I'll forward it on to Mr. Tengan, to
make sure those are addressed at the meeting; okay? So we
won't waste time.
MS. RAISBECK: Thank you.
MS. PARSONS: I think we were looking at the --
weren't we looking at that time at what our capacities were
Upcountry, and how much was being used and what portion
Dowling was using for the subdivision now, where we are, and
how much was going to the community? So maybe it's --
CHAIRMAN VICTORINO: Okay. So if you have the
specifics, Ginny, would you kindly e-mail me that?
MS. PARSONS: Yes.
CHAIRMAN VICTORINO: And I will forward it. That
way we won't expend time trying to decide what we want to
know. Let's get specifics and let's get to that so we can
get answers. Is that all right with everybody?
VICE-CHAIR OKAMURA: Yes.
CHAIRMAN VICTORINO: So we will defer this matter
to our next meeting. Do I have a motion to defer?
MS. RAISBECK: I move to defer.
VICE-CHAIR OKAMURA: Second.
CHAIRMAN VICTORINO: It's been moved and seconded.
Any discussion? All those in favor say "aye."
(A chorus of ayes.)
Opposed.
(No response.)
Moving on to the second item on Unfinished
Business, verbal update on the status of Pookela well.
Mr. Nakamura?
MR. NAKAMURA: Good morning.
CHAIRMAN VICTORINO: Good morning, sir. Introduce
yourself just for the record.
MR. NAKAMURA: Alva Nakamura, engineering program,
manager for the department. Of interest, I just received
this e-mail from Mike Smith of Flow Serve -- regarding the
manufacturer of the motor. Let me just read this short note
to you, so it'll give you an idea of what he said.
He says, I just received some outstanding news
from Flow Serve regarding the Pookela project. The new 600
horsepowered submersible motor has been manufactured and
tested and is -- and awaiting shipment to Hawaii. Flow
serve is still manufacturing the pump, though. Flow serve
is sending me a detailed progress report of the pump today
or tomorrow showing anticipated test date and shipped date.
At this point, Flow Serve appears to be
significantly ahead of schedule, already having the -- item
completed. So this has some significant impacts in terms of
the scheduled date. I still need to get the schedule from
them as to exactly when the shipment date is; but if that
moves up by a couple of months, then we may see some, you
know, action out at the well to get the pump and motor
installed.
There are some other issues that have come up
also, which is the review and submittal of drawings. There
has been some delay in that and we're trying to work with
the general contractor to kind of resolve some of these
issues. So that's kind of the way this is at this point in
time. And any further -- I'll still leave the completion
date about March; but based upon this information, it may
possibly move up. But we'll just have to wait and see.
CHAIRMAN VICTORINO: That's good news. Any
questions for Mr. Nakamura?
MS. RAISBECK: I didn't understand what you said,
Alva.
CHAIRMAN VICTORINO: I'm sorry, Ms. Parsons was
asking the question first. Let her ask, and then Ms.
Raisbeck.
MS. PARSONS: Let her ask first.
MS. RAISBECK: You said one of the issues was
joins?
MR. NAKAMURA: Drawings. See, whenever they do a
project like this, the manufacturer submits drawings for
approval and it has to be sent through the general
contractor through our consultant and --
MS. RAISBECK: I don't know what joins are.
MR. NAKAMURA: Drawings.
MS. RAISBECK: Oh, drawings. I couldn't
understand. Sorry, I apologize.
CHAIRMAN VICTORINO: I was confused, too, he said
drawings -- and you're asking -- okay. That's fine. Okay.
CHAIRMAN VICTORINO: Ms. Parsons?
MS. PARSONS: Outstanding that you're on top of
this. This is really good. The question I have is
basically for George. On the water testing, I think I asked
you at one of the meetings, are we going to look at having
the source water -- the mixture of the source waters tested
at one of the labs? The AWWA, basically they suggested that
when you do this, that we have it tested.
MR. TENGAN: I'll leave the question to Alva.
MS. PARSONS: Okay, good. All right.
MR. NAKAMURA: Actually, we probably test it after
the well is up and running.
MS. PARSONS: But the mixture of it is what
they're saying. The mixtures of the sources is a real --
it's a chemistry balance. And one of the things that was
suggested when we were at the AWWA this year was to send out
the water mixtures to a major lab and let them tell us what
the mixtures do together. Because you can't just dump
source to source.
MR. NAKAMURA: Well, at this point, I didn't have
plans to do that, but we can take that under advice and see
what's involved.
MS. PARSONS: I think it might -- the UL is one of
the big testing labs. There's a couple of different ones
out there, but maybe we should check in to see what the
costs are and get a feel for what the mixtures are going to
do together. Because you'll know how much you're going to
be putting into that and -- compared to how much of the
reservoir.
CHAIRMAN VICTORINO: Alva, since we have such a
lead time right now, maybe if you can look into the matter
of how much it would cost if we were to do that and come
back to us and let us know. Because I think, like anything
else, I mean, not that cost is the overriding thing, but we
would like to know that, you know.
But I think it's important what Ms. Parsons is
saying, that we do have that ultimate test by that outside
lab. Because, again, if it's going to work out well, good;
if it's not, then we got to make sure we protect the people.
MS. PARSONS: And the more detailed we are for
Upcountry right now, I think that it would help with our
communications with the community.
CHAIRMAN VICTORINO: Thank you, Mr. Nakamura.
Moving along. Completion of Unfinished Business.
We go to item No. 7, Communications "A." There's pages 4
through 34. Communication 05-04, letter from Dan Judson
dated July 24, 2005, requesting waiver of fire protection
requirement. And I see Mr. Judson.
Mr. Judson, would you like to come up?
Who is going to speak on behalf of the department,
George?
MR. TENGAN: Alva will.
CHAIRMAN VICTORINO: Alva. Okay. Speak into the
mic and introduce yourself, sir.
MR. JUDSON: Good morning, my name is Dan Judson.
I work at Orchids of Olinda. And I guess I began -- I
applied for a farm dwelling permit in December of 2003, and
the issue of whether it was a second or third structure on
the property was originally exempted by the water department
on January 28, 2004. They said that it was exempted. It
wasn't required for fire protection.
They then withdrew that and suggested that I join
the structure to the existing greenhouse, which I have done
through numerous plan revisions with the planning
department, and they finally signed off on my covered
breezeway with the cement floor, so it won't lift off in the
event of wind.
The water department then decided I was violating
the intent of the law, and said no. And they are still
saying no, even though in April 26, 2005, the planning
department was decided to be the governing body in matters
such as this regarding plans and plan review.
So, you know, you might ask, well, can a two-acre
farm actually be viable economically. And, you know,
Orchids of Olinda has done it. We work hard, but we need to
expand. Having an employee live on the premises close to
the greenhouse will provide us with incentive economically
to do better, which we need in these times like -- like
every business is.
Diversified ag is repeatedly called for a goal of
Maui County, and I know that we are representing of what
diversified ag in Hawaii looks like as a small business.
It's our livelihood. But we need to have an employee live
on the premises to make it more viable.
I would like to thank Arnold Abe at the
engineering department, the whole engineering department for
their suggestions during this time. And even at times as I
followed their suggestions, I ran up against opposition
after I formalized it with a plan revision.
I would like to ask if there's any questions from
the board.
CHAIRMAN VICTORINO: At this time, I open up the
floor to questions for Mr. Judson. Mr. Johansen?
MR. JOHANSEN: First of all, I think my questions
mainly are going to be with the department.
CHAIRMAN VICTORINO: If you have questions for the
department, let's hold up, because I want the department --
MR. JOHANSEN: I do have one question for --
CHAIRMAN VICTORINO: For Mr. Judson?
MR. JOHANSEN: -- for Mr. Judson.
CHAIRMAN VICTORINO: Go ahead.
MR. JOHANSEN: Have you offered to compensate any
neighbors uphill for installing a storage tank on their
property?
MR. JUDSON: His point is well taken. The water
department's position is that it needs to be 20 pounds of
pressure-heads standing at the standpipe. And the only way
to do that in Olinda would either be to build a tank on
legs, like you see in the midwest, or for us to -- our
property runs, unfortunately, or maybe fortunately, on a
level. The uphill neighbors have declined the option of us
putting such a structure, although I did approach them.
MR. JOHANSEN: There's no price on that.
MR. JUDSON: Well, I don't know, I guess if you go
high enough there is. But this is an economic decision too.
I mean, I'm willing to offer somebody a certain amount, but,
you know, if they're going to hold out that I necessarily
have to buy the land, I can't do that.
MR. JOHANSEN: My feeling would be, any way we can
help you as a grower on this island, we would like to do it.
I would like to do it, but --
MR. JUDSON: Thank you.
MR. JOHANSEN: -- if there's a cost benefit
alternative, I was just asking you about that.
MR. JUDSON: Thanks.
CHAIRMAN VICTORINO: Ms. Parsons?
MS. PARSONS: Is this a pressure issue that we're
talking about while -- more so than the water itself?
Because you said you got a sprinkler system in there, so
we're talking about a pressure issue?
MR. JUDSON: When she's talking about the
sprinkler system, I think she's referring to my offer to
have the fire department approve the sprinkler system
installed as a viable option to it, instead of the other
plan.
The fire department doesn't have authority in this
particular instance. If I didn't have a water meter, the
fire department would be the overriding governing body; but
because I have a water meter, the water department steps in
and has the final ruling.
MS. PARSONS: The reason I'm asking, if there's a
pressure issue, it's my understanding that all the fire
trucks now have pumps that are pressurized pumps that pump
it out, and there's not a need from a pressure standpoint
other than to refill. As long as there's water accessible,
they have their own pressure; is that correct?
MR. CHANG: It depends on the situation. There's
two things that kind of pop up.
CHAIRMAN VICTORINO: Wait, hang on. Before we
start, this is what I don't want happening, let's stay on
one side. Let Mr. Judson say what he needs to say, then I
want the department to say what they need to say, and then
we'll open up questions for the department; okay? If that's
all right.
So as far as you know, pressure is not an issue,
in your mind, Mr. Judson?
MR. JUDSON: Only by being told by the water
department.
CHAIRMAN VICTORINO: Any more questions for
Mr. Judson? Sensing none, I will go to the department
and -- okay, Herb, would you give the department's
standpoint, please?
MR. CHANG: To answer Ms. Parson's question --
CHAIRMAN VICTORINO: Before you answer her
question, can you give us the history, how you came to this
point, and then you can answer the question, because just to
make sure we're all up to the same point.
MR. CHANG: I suggest board members look at
Exhibit A.
CHAIRMAN VICTORINO: What page? Page 30?
MR. CHANG: The third figure for --
CHAIRMAN VICTORINO: Exhibit A is page 30.
MR. CHANG: This is the one that shows the overall
site plan.
CHAIRMAN VICTORINO: Page 30.
MR. CHANG: Let me show you the second -- the one
dated --
CHAIRMAN VICTORINO: Go ahead, please.
MR. CHANG: 3304.
CHAIRMAN VICTORINO: 3304. Page 30.
MR. CHANG: If everybody would look at the
diagram, you notice it shows the existing structure is a
dwelling on the left side, upper portion of the page, and
there's existing greenhouse. And below that is what is
proposed as a second farm -- the farm dwelling. Sorry.
That's the new structure that's being applied for in the
building permit application.
When Mr. Judson came to the department, we tried
to work with him to try to fall within the first and second
dwelling exemptions, as far as the exemption from the
department requiring improvements for fire protection. So
we're trying to help Mr. Judson, you know, like he said, he
couldn't afford to do all the improvements to the public
system, so we tried to find a way to work within the rules
using the first and second dwelling exemptions.
So one method we tried to work was trying to have
the end result after this proposed farm dwelling is
constructed, to have only two structures on the property.
Because having that, the first and second exemption works.
It would be applicable and Mr. Judson wouldn't have to do
any fire improvements.
So the thought about you adding the, what you call
that, breezeway or connection structure was brought up as a
good solution; but unfortunately, at the time that we had
discussed this option, there was a problem the department
had, to determine when it was a practical solution.
One situation where the fire department wasn't
really applicable was if the structure that you're trying to
connect was maybe 60 feet or a hundred feet apart. So they
would still end up with two separate structures, even though
it's connected by a breezeway. That's the way the
department is looking at it. So that's why Mr. Judson was
kind of like, at one point we said yes; one point we said
no.
But in April of 2005, the department finally came
up with a new procedure where we said we would leave it up
to the Department of Public Works -- Department of
Development Service Administration, who handled the building
permits, we'll let them decide whether by attaching a
breezeway, whether it's 20 feet long, or a hundred feet
long, a thousand feet long, we let them make the decision.
And so that's where we are. So if Mr. Judson can
find out from the DSA whether they would take this breezeway
as an addition and thereby having only two structures as a
final product, we'll go along with their decision.
CHAIRMAN VICTORINO: Now, let me ask you this
question, Mr. Judson. Did you not just state that the
Department of Planning said it was okay for this connection
to make it two structures on the property?
MR. JUDSON: The history of this, of course, is
the initial drawing, which has been separate, then we went
to the shade cloth to make it be an operative part of the
existing greenhouse structure, because that way we would
have use of it.
At plans review, they decided, or from their point
of view, they wanted to see it more affixed in the ground so
that they knew it was actually a permanent connection. So
they required a 6-inch cement walkway with a 4-foot wide
breezeway with a permanent roof, so it wouldn't lift off in
a storm like we seen roaring through in the news lately. So
that's why we went to their formatting. And at that point
they approved it.
In fact, technically, they approved this before we
ever went back to this plan revision because they didn't
have a problem with this farm dwelling existing. It was the
water department engineering suggestion that we connect it,
that precipitated this whole redesign that we went through.
CHAIRMAN VICTORINO: So, Alva, if they said okay,
then what is the problem?
MR. CHANG: I think it may be a timing -- maybe
you can explain when did planning say okay and when did
water department say okay. Was it pre-April 2005?
MR. JUDSON: Definitely. We had this thing all
the way through, except for the water department in their
rechanging of their dating there, we had an original
exemption on January 28th from 2004 from your very
department, which you then recanted on. If you look at your
packet, the letter showing that we were in. Everyone
thought we were in.
It was at the shade cloth stage that I started the
process of saying, "Okay, what can I do to work with you
folks?" And then I went to the breezeway to work with the
planning department, because they didn't like the structural
grade. And it's been a process, and if I feel upset here,
I'm sorry.
CHAIRMAN VICTORINO: No, that's all right. You
have the right to.
MS. RAISBECK: Mr. Chair, I would like to ask,
does anyone live in the greenhouse?
MR. JUDSON: No, not of the human variety.
MS. RAISBECK: I didn't mean plants or animals.
Is the greenhouse used as a dwelling in any respect?
MR. JUDSON: Not -- currently it's not.
MS. PARSONS: It would be like -- I'm in this
business and I do this every day. This would be like an
extended lanai.
MS. RAISBECK: Yeah, I understand. Mr. Chair, I
think the rule -- maybe Mr. Kushi can correct me. But I
thought the rule read, the second dwelling on the property
was exempt. And you don't -- in an agricultural area, I
would think this means that barns or storage sheds or
greenhouses are not considered dwellings; therefore, the
second dwelling would be exempt, as the department
originally said.
MS. PARSONS: It's the third structure --
MS. RAISBECK: May I ask, if the greenhouse is not
a dwelling, why is not the proposed dwelling, you know, a
second dwelling?
MR. CHANG: I don't understand your question.
MS. PARSONS: I think I can answer that. It's the
third structure rule we're looking at; right?
MR. CHANG: That's critical --
MS. RAISBECK: The third structure rule?
MS. PARSONS: Yeah, that Elmer put in years ago
and it kicks into this.
MS. RAISBECK: You can't have two barns and two
dwellings?
MS. PARSONS: It's the third structure, it can be
a shack and a house, and a third structure is where this
kicks -- the fire flow issue kicks in. How close are your
neighbors?
CHAIRMAN VICTORINO: Wait. Mr. Johansen has been
waiting to ask a question. Go ahead, Ralph.
MR. JOHANSEN: What rules define separate
structures, first of all? Is there any rule?
MR. CHANG: As far as the water department's rules
and regs?
MR. JOHANSEN: As far as the county rule. So we
got a question whether connecting two dwellings with the
affixed breezeway constitutes joining the structure to the
satisfaction of the county. And we don't know.
MS. RAISBECK: Well, excuse me, Mr. Chair, I do
know that many people construct additions at a distance from
their house by putting in a permanent connection. This is
how many people deal with the county's regulations.
MS. PARSONS: This is not, as far as I can see --
and he's saying he has had approval. This is a normal
course of business. What we're doing right now is we're
obstructing him, we're seven months into obstruction. Which
is not fair. I mean, if the county said the breezeway goes,
we can't second-guess that, that's the planning department.
I mean, that really is. And you know how I feel about fire
flow, it shouldn't be on the backs of the homeowner or the
farmer.
But if he's in here and he's willing to put in a
sprinkler system, and the trucks do have their own pumps, so
pressure is not the issue, what are we -- I mean, Piiholo
Road, let's be honest, folks, if there's a fire on Piiholo
Road, you're going to be doggone lucky to have it put out
before the house goes down anyway. No matter how much
pressure you have. Because the trucks are going to take a
long time to get there from Kula. And that's just the way
it is. So why are we doing this to this gentleman?
CHAIRMAN VICTORINO: Thank you, Ms. Parsons. Any
more questions?
MR. NAKAMURA: In response to Ms. Parson's
comment. You know, this issue that we're talking about is
something that we have wrestled with time and time again.
Let me say that from the division's standpoint, we have
tried to be as much as -- give as much flexibility to how we
interpret the rules as we possibly can.
Now, however, we have to also go on how we have
treated and ruled on past applicants in situations. And
Herb has a tough job in trying to determine a lot of times
what is fair, what is reasonable, what we can allow, what we
can't allow. And we go through a lot of discussions about
this kind of situation, not necessarily this particular one
but others, a lot of times to try to come up with something
that, in essence, is in conformance with the rules; but at
the same time, maybe in terms of how we interpret the rules
we could offer a little flexibility.
I just want to say that, you know, it's a very
difficult situation. All we can go by is what the rule
basically says, what we -- how we have interpreted it in the
past and be as consistent as we can. Sometimes being
consistent causes some obstructions like this, you see.
MS. PARSONS: Okay. I think we have to defer to
the county planning, public works is probably a very good
way to go.
CHAIRMAN VICTORINO: We appreciate that. And I
think that's what we're trying to come to right now.
Mr. Okamura, you had a question?
VICE-CHAIR OKAMURA: I have a couple of questions
I wanted to ask Herb. Herb, you mentioned in April of 2005
there was some kind of change that had occurred. Can you
explain that, please? I couldn't follow it.
MR. CHANG: Extending what Alva was saying, when
we dealt with these proposals to have them have a connecting
breezeway or hallway, we were kind of like waffling, we
wasn't sure what to do. So in some instances, we said looks
okay, looks close enough, let them go. We really didn't
have anything solid.
So in April 2005, we said, you know, we're going
to try do -- try to put the burden of when the building
permit application is a new structure versus the application
being an addition, we'll leave it up to the public works. I
mean, we leave it up to them. We're not going to decide
when it's an addition; when it's a new separate structure.
VICE-CHAIR OKAMURA: So the public -- but then,
now Mr. Judson is saying that the public works says it's
okay; right? They approved whatever they approved. They
are saying the present layout is okay, but we're saying that
it's not. So we're not -- we switched again. From April
2005 we switched, then we switched back "no" again.
MR. CHANG: I think Mr. Judson said we said no
prior to 2005. So we were still in the time where we
weren't sure.
VICE-CHAIR OKAMURA: But now you can say yes.
MR. CHANG: Right. If the building permit
application is classified as an addition, not a new
structure.
VICE-CHAIR OKAMURA: Did the building permit get
approved as an addition?
MR. JUDSON: It was approved as a separate farm
dwelling initially by the planning review plan check. And
the total impediment to this the whole time has been the
water department.
CHAIRMAN VICTORINO: I don't think that's the
question.
VICE-CHAIR OKAMURA: The question was, right now,
if you present your plan to the public works, they approved
it?
MS. PARSONS: Only if it gets signed by water. I
mean, we don't know --
CHAIRMAN VICTORINO: Wait, hang on. Let
Mr. Judson answer the question.
MR. JUDSON: If we submit a covered roof, they
have approved the plans as drawn.
CHAIRMAN VICTORINO: That one there; not this last
one.
MR. JUDSON: They don't like the shade cloth one;
it doesn't look permanent to them. They want to see a
permanent structure connecting this farm dwelling.
VICE-CHAIR OKAMURA: Are you willing to do that?
MR. JUDSON: Definitely.
VICE-CHAIR OKAMURA: But now the water department
switches and says no. Herb, you're saying April 2005, the
new procedure was that you would -- whatever you decide
depended on public works?
MR. CHANG: Yes.
VICE-CHAIR OKAMURA: So now public works has
given, it seems to me, has given the okay, but you still
holding it up.
MR. CHANG: Not really. What we need to see is if
he can present -- if Mr. Judson can present a building
permit application -- I don't know if you have to revise it
to have it classified as an addition and not a separate
structure, if we can get that accomplished, we would be able
to sign off.
MS. PARSONS: It's a new building permit down
there at the bottom --
CHAIRMAN VICTORINO: Stacy -- go ahead --
VICE-CHAIR OKAMURA: I can ask later.
CHAIRMAN VICTORINO: Go ahead. I just want to
keep some order. If you're going to ask a question, go
ahead.
VICE-CHAIR OKAMURA: Okay. Couple of things. I
agree with Sally that -- well, the rule, the way it seems to
be written is that two dwellings are allowed. But Ginny
mentioned the third structure rule, so I would like to see
the third structure rule. And if not, we have to go by the
second dwelling rule. And then we need to have a definition
of dwelling.
Can I ask corporation counsel for that
information? Not necessarily now, but --
MS. PARSONS: You got the third structure rule in
there.
VICE-CHAIR OKAMURA: Yeah, the third structure
rule and the definition of dwelling.
MR. KUSHI: Mr. Chair, I'm not sure what you're
talking about, the third structure rule.
MS. PARSONS: I can find it if you give me your
book. I have to work with it, so I can find it.
MR. KUSHI: Okay, why don't Ms. Parsons find it.
CHAIRMAN VICTORINO: In the meantime while we're
doing that, Ms. Crivello?
MS. CRIVELLO: I guess I'm going to try to get
clarification. What I'm hearing the department is saying,
that at one point they identified it as a third structure,
and then after that they identified it -- if the Department
of Public Works identifies it as a second structure, you can
go according to that building permit approval; is that how I
understand it?
MR. CHANG: You identify it as a -- a second
structure as an addition?
MS. CRIVELLO: Right. Right. As an addition.
Because then it's no longer considered a third structure.
MR. CHANG: But we're working with two dwellings.
MS. CRIVELLO: What I'm hearing is that you're
waiting for the actual additional permit that -- or whatever
has to be added on to say this is an approved structure as
such for existing?
MR. CHANG: Yeah. To rephrase, the department is
waiting for the permit application to be classified as the
dwelling as an addition.
MS. CRIVELLO: Right. Okay.
CHAIRMAN VICTORINO: So let me just -- and for
what Ms. Parsons says, so what you're saying right now, if
he does whatever that last request, and then is that
something feasible, and it's not going to be another big
hoop-dee-dah and take forever and prolong this whole agony,
or is it something very simply done that we can get this
approved?
MR. JUDSON: I'm not sure.
MS. PARSONS: Can I just interject something in
here?
CHAIRMAN VICTORINO: Yes.
MS. PARSONS: A dwelling is a place where you
live; a structure is a garage or a storage unit or a --
CHAIRMAN VICTORINO: Non-inhabitable facility.
MS. PARSONS: -- greenhouse. So our rule really
flies in the face of planning. Planning looks at dwellings
as being homes, and they don't really care about our third
structure rule when they come to doing their review. That's
our job. We have to look at the plot plan, then we have to
look to see what's on there and we have to review that in
the department.
So to call this an addition, it's an addition to
what? To the greenhouse? Because they don't look at that.
To them it's going to be a second dwelling and the
greenhouse is the addition, is really the way they are going
to look at it. So you can't get him to go back and revamp
the application to say "addition."
You guys can look at it as saying, well, this is
a -- it's something you're going to have to clarify in the
department, that the greenhouse is an addition to his
dwelling.
CHAIRMAN VICTORINO: Ms. Raisbeck?
MS. RAISBECK: Yeah. I heard Mr. Judson say that
his original plan, which had a separate dwelling, it had the
original dwelling, the greenhouse, a separate dwelling with
garage, that the planning department approved that
originally.
MR. JUDSON: That's correct.
MS. RAISBECK: And the only reason he had to do
this legal fiction of connecting is because of the water
department.
MS. PARSONS: Exactly.
CHAIRMAN VICTORINO: That's correct.
MS. RAISBECK: So what my suggestion would be is
that the board waive the third structure rule for
Mr. Judson. In this case, we waive the third structure
rule, in which case he doesn't even have to build the
connector.
VICE-CHAIR OKAMURA: Can I ask --
CHAIRMAN VICTORINO: Go ahead.
VICE-CHAIR OKAMURA: Herb, is there a third
structure rule that you know of?
MR. CHANG: There's a rule that exempts the first
and second dwelling from the department requiring fire
protection improvements.
VICE-CHAIR OKAMURA: You don't have any third
structure rule?
MR. CHANG: I think that is the same.
MS. PARSONS: Yeah.
MS. RAISBECK: It's the same.
MS. PARSONS: It's the fire flow issue thing. If
you go into a third structure on the property, then you open
yourself up to having to fix the fire flow issues within the
neighborhood. Whatever the department deems that we have to
do, which is what I've been fighting for, for four years.
VICE-CHAIR OKAMURA: The first two dwellings are
exempt.
MS. PARSONS: Right. The first two dwellings are
exempt, but it's a structure rule, it's not dwelling.
VICE-CHAIR OKAMURA: It says "dwellings" in the
rule.
MS. PARSONS: But it's the third structure, is how
it reads. It's the third structure, not the third dwelling.
It's the third structure. The first two dwellings on any
property -- all right. When you put a building permit in,
the water department on the first dwelling does not even
review it. On the piece of property if it's a -- an empty
piece of property, the water department does not review any
of the applications on that.
When the second dwelling comes up, they do. When
the -- if there's a -- if there is another -- a separate
garage or storage bin, that becomes a third structure on the
property and the fire flow kicks in with that review of the
second dwelling. Does that make since?
CHAIRMAN VICTORINO: Yes.
MR. JOHANSEN: Mr. Chair, can we have the wording
of that rule read into the record so that we know for sure
whether it states "dwelling" or not? Because if it does
state "dwelling," that has significance for us.
MS. RAISBECK: Can you find the third structure
rule, Ginny?
MS. PARSONS: This is the one we go by.
CHAIRMAN VICTORINO: This is the one, okay. So
this is Section 2, Section 14-4-0101(E), water service
regulation is hereby amended to read as follows: E, fire
hydrants are necessary -- and necessary pipelines and
appurtenance to be installed by the developer in rural,
residential, business, industrial --
VICE-CHAIR OKAMURA: This part here. The first
part, Section 1.
CHAIRMAN VICTORINO: Okay. The purpose of this
amendment is to revive the Section 14-4-0101(E), water
service regulation is required to developments in
agricultural and rural districts to install fire protection
is to be exempt from the first and the second --
VICE-CHAIR OKAMURA: And to exempt --
CHAIRMAN VICTORINO: -- and to exempt the first
and second dwelling units from fire protection requirements.
You guys telling me read different sections, so
I'm sorry, I apologize. I'm only told to read, I read.
MR. JOHANSEN: You have the applicable rule.
CHAIRMAN VICTORINO: Well, now Ms. Parsons is
saying no. You heard what I read.
MS. RAISBECK: Meanwhile, could I ask Herb --
CHAIRMAN VICTORINO: Yes.
MS. RAISBECK: If the third structure rule is a
Department of Planning or Public Works rule -- or is it
solely a water department rule, the third structure rule?
MR. CHANG: That rule is a water department
rule --
MS. RAISBECK: I know that one, but that's not a
third -- that says nothing about a third structure.
MS. PARSONS: It's only a water department rule.
MS. RAISBECK: All right. If it's only a water
department rule, we have the authority to waive that for
good and sufficient calls. And it seems to me that if we
could waive the third structure rule, then the first and
second dwelling exemption kicks in, and Mr. Judson doesn't
have to build this fictitious -- this connector that is
expensive and unnecessary.
CHAIRMAN VICTORINO: Mr. Okamura?
VICE-CHAIR OKAMURA: But like you said in the --
at the beginning, if this exempts the first and the second
dwelling and the dwelling is defined as a place where people
live, the one -- the new building he wants to build would be
the second dwelling, which would be exempt from fire
protection. So I don't see a problem if we follow this
rule.
MS. RAISBECK: They were applying a different rule
that says if you have three structures --
VICE-CHAIR OKAMURA: There's no rule like that.
MS. PARSONS: Do you know which one it is offhand?
MR. CHANG: That's the one that Mike read.
CHAIRMAN VICTORINO: But it says first and second
dwelling.
MR. CHANG: That's what we're working off, it says
the first and second dwelling.
VICE-CHAIR OKAMURA: But if you're defining
dwelling as a structure, but it should be a dwelling, it
says dwelling in this.
MS. RAISBECK: Uh-hm.
MS. PARSONS: I don't think that's the one we're
working on.
MR. CHANG: I can give you a little more history.
VICE-CHAIR OKAMURA: Okay -- sorry, go ahead.
MR. CHANG: It goes back to this rule that Chair
Victorino was reading. To even help further the public
assisting them in building what they want to build on
properties, the department has allowed -- I'll give an
example.
Say an applicant comes in to build a -- like this
one, a greenhouse on a property that already has one
dwelling on it, nothing else, we would allow the second
exemption to be used up not only by dwelling but another
structure. Like a garage, greenhouse. As long as the fire
flow demand of this new second structure did not exceed the
existing dwelling's fire protection requirements.
So I think this is what happened in this
particular case. The greenhouse took up the second
exemption.
VICE-CHAIR OKAMURA: It took the second exemption.
MS. RAISBECK: Excuse me --
CHAIRMAN VICTORINO: Mr. Johansen has a question.
Ralph?
MR. JOHANSEN: As a matter of legal definition, a
dwelling is a place where people live. And I can't see why,
unless they changed the wording of the rule, this rule
applies in this case.
CHAIRMAN VICTORINO: Ms. Raisbeck?
MS. RAISBECK: I was going to say that the
situation Herb just quoted, in which someone builds, say, a
storage shed, and they interpret that as using up the
exemption for the second dwelling, to me that is totally a
wrong interpretation and not fair, and we certainly should
not be bound by that interpretation of the department, when
the rules says clearly it's the second dwelling that is
exempt.
CHAIRMAN VICTORINO: Okay.
MR. JOHANSEN: May we ask corporation --
CHAIRMAN VICTORINO: I was going in that
direction. Mr. Kushi, as hearing this discussion, what is
your interpretation when the rules clearly states a second
dwelling, the definition of dwelling being an inhabitable
location, in other words, someone can live in it?
MR. KUSHI: Mr. Chair, let's put it this way. The
department did ask me, I believe, within the last two years
to clarify this and I believe I sent you guys a memo.
CHAIRMAN VICTORINO: That's possible. I
apologize.
MR. KUSHI: Not to the board, but to the internal
department. The rule as referenced and as you stated, it
says what it says. It says first or second dwellings. You
have a definition of what a dwelling is in your rules also.
And it's found in Section 1-2 under definitions.
However, you know, not to defend the department,
the department did what they did, and we have had instances
where a second building permit -- building permit for a
second structure came up, the department used that
exemption, be it a barn, a storage shed, and strangely
enough it becomes a second cottage later on.
And when they apply -- the landowner applies for a
second, a third structure, you know, then we're caught.
Then the landowner claims, Now I'm using my second dwelling
exemption. So the department has been caught in those
instances. So, you know, you have to understand the history
of this.
CHAIRMAN VICTORINO: And I can appreciate that.
And I know, like any other rule, somebody always will try to
skate the rule. I have seen that happen. I've seen farm
buildings turned into dwellings. I lived on this island all
my life, I've seen this happen. So I defend the department
in that respect. No offense to you, Dan, we've known each
other for a long time. But that does happen.
But to carte blanche say that's the rule for
everybody, especially if he's putting in a greenhouse as the
second -- and the greenhouse is not inhabitable --
MR. KUSHI: Not now.
CHAIRMAN VICTORINO: I don't think you can inhabit
a greenhouse, but I'm not an expert in that area, you know.
Maybe down the road he can switch it and make it into a bed
and breakfast with the plans. I don't know.
MR. JUDSON: That's not my intention.
CHAIRMAN VICTORINO: Yeah, I'm just throwing
something out there.
Anyway, let me read under the amendments or rules
and regulations of the Board of Water Supply of the County
of Maui. This would be on page 44 of our index here. And
it goes under F. New structures with approved building
permits are required to apply for separate water service or
additional water service based upon the director's estimate
as to the size of service required for the structure. Okay.
You know, everything is so different between books.
MR. JUDSON: May I speak?
CHAIRMAN VICTORINO: Go ahead.
MR. JUDSON: We had to revise our worksheet
downwards because we had overused our five-eighths meter
water allocation. So you have certain credits and you're
allowed a number of fixtures, etc., so we had to adjust
downward to make that happen. And the department agreed to
our adjustment and we had to provide proof of it
photographically.
And so from that point of view, this existing
dwelling plus the farm dwelling are within the allowable
usage amounts for five-eighths meter. Since then, we have
applied for a larger meter. You are only allowed to go up
one size per application. It's on file that we applied for
a bigger meter.
CHAIRMAN VICTORINO: Like three-quarter?
MR. JUDSON: I think that's the next step. I'm
not sure.
CHAIRMAN VICTORINO: Yeah, three-quarter inch. I
know we discussed this matter and I think we're all kind of
at a standstill, so I would now move if somebody wants to
make a motion in some --
MR. JOHANSEN: I have another question.
CHAIRMAN VICTORINO: Okay. You have another
question.
MR. JOHANSEN: The whole business about a second
sprinkler and a backflow valve, we didn't discuss that. Is
that something relevant here?
MR. JUDSON: I can speak to it if you care to --
MR. JOHANSEN: Is it going to be dispositive?
MR. JUDSON: I was willing to comply with the farm
sprinkler protection within the building, the same way you
have in any commercial structure, and that would be
operative when the temperature got to be 140 degrees inside
the structure, the sprinklers would kick on and spray water.
I was willing to do that as a compromise, because I didn't
have room for a 30,000 gallon tank that would be uphill
enough to provide the standing pressure-head requirements of
the department.
The backflow preventive was brought up because I
have to have a backflow preventive after my meter already.
And if the issue of water potability -- or portability was
the issue, I would probably install another backflow
preventive by the fire sprinkler, so that water would never
return to the drinking water.
MR. JOHANSEN: And was that acceptable to the
department?
CHAIRMAN VICTORINO: Herb, was that acceptable to
the department?
MR. CHANG: No, the department does not allow --
approve the substitution of standpipes along the road by
automatic sprinkler systems. We have not accepted that.
CHAIRMAN VICTORINO: So that area is still only
standpipes, too, right, Mr. Judson?
MR. JUDSON: Well, your nearest standpipe, as you
see, you know, multiple thousands of feet away. And that's
where I would have to bring down Piiholo Road a 6-inch line
at many thousands of dollars per foot, I'm sure. And far
beyond the cost of the dwelling by multiples.
MR. JOHANSEN: My question is, what is there in
the department water system standards that installing a
second backflow valve doesn't comply with? What's the
safety risk?
MR. CHANG: In the case of automatic sprinklers,
the -- you could have a system that let's the water stand
by. A standby could be six months, two years. So to
prevent the migration of stagnant water back into the public
system, we have that device, backflow device.
MR. JOHANSEN: This is a technical question. I
don't know why a second backflow valve wouldn't protect
public safety. I don't understand that.
MR. CHANG: If the system -- if the department did
allow automatic sprinklers, we would require at least one
backflow preventer. If it's set up right, he could probably
just get away with just one.
CHAIRMAN VICTORINO: Okay. I guess everybody has
asked the questions they wanted. Is there a motion on the
floor?
MS. RAISBECK: Well, I would -- I don't know if
this solves the problem. My approach would be to excuse --
to waive -- if there is a rule about having three
structures, to waive that rule and to then allow the
exemption for the second dwelling to apply to the proposed
dwelling that Mr. Judson wants to construct.
And then it would -- to me, it would be his option
whether he goes with the approved building plan using this
unnecessary and expensive connector or whether he would be
able to work it out that he could go back to the original
design that he says was approved by -- but that would be his
option, to do whichever of those ways he thought would be
fastest and most convenient for him.
But I would like to take out of the way any
roadblocks that the department is putting up to Mr. Judson's
building permit.
MR. NAKAMURA: Mr. Chair, may I --
CHAIRMAN VICTORINO: Sure.
MR. NAKAMURA: Before you folks vote on what you
want to do, I would like to just advise you or make you
aware that, you know, we have had to make decisions like
this in the past, and if you were to waive this rule for
Mr. Judson, what do we do about others that have been forced
to put in improvements because we have enforced that rule?
And I'm sure if I go back into history books, we
can find some of those. And, you know, what if they came
back to the department and asked the department to pay for
those improvements that they did make under the rules when
we waive this? So there's some other implications that you
folks need to be aware of or realize that, you know, what
kind of implications this would have.
CHAIRMAN VICTORINO: Before we -- and that hasn't
been seconded, so there's no formal motion on the floor.
Before we do something, I get two questions.
Number one for you, Dan. Are we close enough, and Alva, to
what has been said with the planning, the rules, April 2005
and all that, if public works, planning says it's okay, do
you feel that would be sufficient, based upon what you had
stated, that rule or that interpretation of the rule, that
we could allow Mr. Judson to move on, on his project?
MR. CHANG: I would say yes, but --
CHAIRMAN VICTORINO: Okay. Again, I guess the
"but" will always come in. So what I'm saying is, with what
we have right in front of us now, do you feel confident that
we could get this project running?
MR. CHANG: I think if he could resubmit an
application showing it's an alteration and check off
alteration on the application --
MS. PARSONS: That's --
MR. CHANG: -- we would sign off.
MS. PARSONS: I can't deal with that.
CHAIRMAN VICTORINO: I'm just looking for the most
expedient way of solving this situation without making a
big -- again, I agree with the third structure, once we
waive something, then we open Pandora's Box, then everybody
will come. I'm looking for an alternative solution.
MS. CRIVELLO: Mr. Johansen has his hand up.
CHAIRMAN VICTORINO: I'm sorry, you're always
waving your hands --
MR. JOHANSEN: Well, I'm just -- when it says
dwelling, either the ordinance has changed or the rule has
changed or you can apply the rule as it's written. And I
don't care whether the department has ruled in the past that
a dwelling is the same as a structure.
We're invited to make a rule which applies the
existing rule as it's written, and if that affects people
who have already had to comply with the department's
interpretation, that shouldn't make any difference to us.
The important thing is, if the county council wants to
change the rule, fine. Until and unless they do, let's
apply it as it's written.
CHAIRMAN VICTORINO: Okay. Mr. Okamura?
VICE-CHAIR OKAMURA: I think the role of the board
is to -- for appeals and to make the exception on a
case-by-case basis. So I think people that come in and say,
okay, the board passed this so you have to do this, to the
engineers, I don't think you need to follow that. Because
Mr. Judson is asking for an exception in this case or is
appealing this case. And so every case is different.
We need to deal -- the board can deal with a
case -- deal with it on a case-by-case basis. So I don't
think we need to worry about making -- setting a precedent
in that sense. Maybe the board has to worry about this,
maybe not. Thank you.
MR. JOHANSEN: Just to follow up on what I said.
If no one else has contested this matter before and this is
the first time it's being contested, it's the same thing as
when you take a case to court on appeal. However the lower
entity has ruled in the past, once it comes to a decision at
an appellate level, that decision applies to everything.
And I think we're in the same situation here.
MS. PARSONS: You know what I recall that we've
had -- where we've had this issue come up, it has been more
in subdivisions than it has in an actual residential issue.
I mean, we only have a few of them that we have kicked that
in and they did have structures on the property. One of
them was in Lahaina. I can remember it's got five units and
they have two dwellings -- three dwellings on the property
and one to build a fourth. So those things I can see.
When it comes to this, this is an individual case,
he clearly has a greenhouse. I mean, and he's building a
second farm structure. And that breezeway, we used to be
able to attach the breezeways in the old days, up to maybe
about two years ago, with just -- a beam went across and we
attached it. Now they make a complete enclosure with
concrete and walls and a roof and everything. Which is a
lot of money. It's a big expense.
If you figure he's got -- he's got to have a
breezeway, it's got to be 4 feet and it's 4-by-6 feet, that
times a hundred and -- maybe a hundred dollars a square
foot, it's a lot of money. So if we don't -- if he doesn't
have to do that and we can help him along that way, too, I
think this is one of those cases where it is an exception.
CHAIRMAN VICTORINO: Mr. Kushi?
MR. KUSHI: Mr. Chair, I think I better say this.
This issue has caused the department much -- a situation.
What you have here is, either way you go, you have a
property, a two-acre property, a farm, ag property, he has a
farm dwelling on it existing, he has a greenhouse, a second
structure, not second dwelling, now he's applying for a
second dwelling, which clearly falls within the rules.
If the department grants the second dwelling
permit, signs off, what happens to the greenhouse? That's
the third structure. So does the department now go back and
examine its water requirements for the third structure
albeit after the fact? We still have three separate
structures.
Now, your solution, which I think will be proper,
is to just approve a second dwelling with a connection,
which planning department says is correct. Now, when -- in
the future he comes for a third structure, be it a barn or
another farm dwelling, then the requirements may change.
MR. JOHANSEN: Mr. Chair?
CHAIRMAN VICTORINO: Yes, Mr. Johansen.
MR. JOHANSEN: I think the appropriate thing to be
done here is for the county council to consider whether they
want to change this rule to say "structure" and define the
structure in such a way that the public safety requires that
a third structure have the necessary fire protection. And
that way you'd eliminate all the ambiguity. Until that
time, I think we ought to apply the rule that's written.
MR. KUSHI: Mr. Chair, to that I say fine and
well. If you approve this as a second dwelling without
mentioning that greenhouse, the department would have every
right to go back and recalculate the third structure. The
greenhouse.
MS. RAISBECK: Mr. Chair, that's why I suggested
that this board vote to waive the third structure rule in
this case. And if it is waived, there's no need for the
department to go back and figure out fire for a third
structure if we have waived that third structure rule.
MR. KUSHI: Mr. Chair, there's no -- and as
Mr. Chang has stated, there's no set third structure rule.
They are using that rule or interpretation by reason of
omission from the existing rule. The existing rule says
first and second dwellings are exempt.
That being the case, if there's a third dwelling,
it's not exempt. So there's no written third structure
rule.
CHAIRMAN VICTORINO: This is a challenging one,
yeah. Ms. Raisbeck?
MS. RAISBECK: Are you saying that it is the
department's interpretation that -- because if the first and
second dwellings are exempt, why does the third structure --
why is it third if the first one and two are exempt?
MR. KUSHI: Mr. Chair, if the first and second
dwellings are exempt by ruling and nothing about a third
dwelling or structure is mentioned, then it's an additional
structure. And the department through your quoted rule must
review whether the system is adequate for protection of the
third structure.
MS. RAISBECK: Then I will rephrase my suggestion
to be that this board will waive the fire protection
requirements for the greenhouse structure on Mr. Judson's
property. Case by case, we are waiving the fire protection
requirements for the third -- for the greenhouse structure
on Mr. Judson's property.
MR. SMITH: I have a question.
CHAIRMAN VICTORINO: Yes, Mr. Smith.
MR. SMITH: If we waive it, and then he sells the
property five years or so down the line and the greenhouse
has been used as a dwelling, where does the liability fall?
CHAIRMAN VICTORINO: The question has been asked,
do we have a response, please?
MR. SMITH: Does it fall back to us?
MR. KUSHI: Well, let me try to think about that.
If the greenhouse is attached by a breezeway, which the
applicant says the planning department will approve, then
it's one structure. It's a dwelling with an extension to a
greenhouse.
MR. SMITH: An addition.
MR. KUSHI: And subsequently he sells it and they
don't do farming and they --
MR. SMITH: They use it as a dwelling.
MR. KUSHI: -- use the greenhouse as a dwelling,
it's still a second dwelling. Unless they sever -- unless
some planning inspector comes and says these are two
separate kitchens, then it becomes a third dwelling. Then I
would think there might be some zoning violations; there
might be some water system inspections. I really can't say.
MR. SMITH: That's what I mean, from the water --
MR. KUSHI: Anyway, these are the scenarios that
we may get into. But not to confuse the issue, just to let
you know what the department is going through, why these
things are done like that. But what the applicant is
proposing, I believe Mr. Chang is saying that if he does A,
B, C, they will sign off.
VICE-CHAIR OKAMURA: May I make a quick comment?
CHAIRMAN VICTORINO: Yes, Mr. Okamura.
VICE-CHAIR OKAMURA: I think it would be easier if
the department were a little bit more -- the interpretation
of this -- of this particular rule, wouldn't it make it
easier in the future if they are a little stricter in the
interpretation of this rule?
MR. KUSHI: That's what we're trying to do.
VICE-CHAIR OKAMURA: But they've been lenient in
that if there's one dwelling and somebody wants to build a
greenhouse, they would consider that to be the second
dwelling and exempt it from the fire requirements.
MR. KUSHI: As the second dwelling.
VICE-CHAIR OKAMURA: Yeah. So maybe they
shouldn't be doing that, just so that there's no confusion
in the future, and change the rule. I really don't know.
Change the rule in the future.
CHAIRMAN VICTORINO: Mr. Johansen?
MR. JOHANSEN: Just to clarify in my mind, would
you reread the rule definition of a dwelling?
MR. KUSHI: Mr. Chair, for the record, the
definition is found in Section 1-2 of the rules. It's under
dwelling unit, it states, Any building, addition, extension,
or any portion thereof which is designated or intended for
occupancy by one family or persons living together or by a
person living alone. That is the definition of a dwelling
unit.
MR. JOHANSEN: So the question is, what's the
intention? Right? And that's the subjected question to be
answered by the applicant, or is it a question to be
answered by the department?
MS. PARSONS: Can I see the building application,
please? What page is that?
MR. CHANG: I don't have the pages.
CHAIRMAN VICTORINO: Okay. I think we've come to
a point where -- I'm still waiting for a motion so we can
act one way or the other on it.
MS. CRIVELLO: Okay. I would like to put in
motion that -- for discussion purposes, that -- how can I
word this -- that we have in accordance to what the
department has said, dependent on the building permit from
the Department of Public Works as to how it's going to
define whether it's considered the second dwelling or not --
and an exemption, then we apply that rule.
MS. RAISBECK: I'm sorry, I didn't follow.
MS. CRIVELLO: I'm trying to --
CHAIRMAN VICTORINO: Try state the motion and that
way we can take it from there.
MS. CRIVELLO: Okay. I move that we go according
to the department's recommendation in having the client,
Mr. Judson, work through the building permit application
with the Department of Public Works and be in accordance to
their -- they defining that as a second dwelling, and then
the rule applies as an exemption of the second dwelling.
CHAIRMAN VICTORINO: Is there a second to that
motion?
VICE-CHAIR OKAMURA: Second.
MS. PARSONS: Discussion?
CHAIRMAN VICTORINO: Now discussion, go ahead.
MS. PARSONS: The only problem that I see with
that is the -- in our interpretation and the planning
department's interpretation. If they have deferred it to
the planning department, the planning department says that
they will go forward with it, and not, you know, not to
offset, because I understand what you want to do too. But
if the planning department is willing to go through with it,
that should be sufficient and -- without altering the
application.
Because I'm not sure -- there's another rule that
kicks in on the size of your buildings that you can have on
the size of the lots. And so you can have -- your main
house can be as big as you want it to be, and your secondary
dwelling goes along with the size of the lot. So that could
interfere if he had to change that. So saying what you're
saying, we might run into a little bit of a problem.
I like the fact that you deferred it to the
department, to the planning, public works, and if we're
going to make a motion here, that it should be that whatever
they say we go along with at this point, and no alterations
to the application.
CHAIRMAN VICTORINO: Ms. Raisbeck?
MS. RAISBECK: Mr. Judson, what's the size of the
proposed farm dwelling?
MR. JUDSON: Well, we're allowed to have a
thousand square feet as the actual area, and then we're
allowed the storage area for the farm. My concern is that
the water department per the engineering's point may come
back and say, Well, you know what, we're going to put some
imposition now on your already permitted greenhouse, and
they may pull my permit for some reason, deciding that I
didn't comply with that.
And so then I'll be in a real Catch-22, because
now my formally legal greenhouse that was used as a dwelling
under their requirement to get it approved in the first
place, they may decide, You can't have that greenhouse
anymore. You can have your farm dwelling.
Again, if I could do a field crop or cattle ranch,
I wouldn't even need the structure. I can't do that. I
need a structure to operate my business. If they will not
allow my existing greenhouse to be exempted from the third
structure requirement, I'm concerned that the planning
department will say, Well, you didn't need to connect it
anyway, you can go ahead and leave it separate like you
originally got approved back here. Because I did originally
get it approved. And then the water department will go,
Well, then your greenhouse has got to go.
MS. PARSONS: See, you could put your breezeway
into the existing dwelling to the greenhouse and probably
not have any problem if we went with what he was saying.
But the way that it's sitting right here, this makes this
structure huge and your secondary -- and your existing house
is already large. So, you see what I'm saying?
They're looking -- the planning department is
looking at this existing greenhouse as being a storage area.
And on a farm dwelling -- on a farm acreage you can make
that huge. But you can't do that -- if it was a residential
property, you couldn't do that.
MR. JUDSON: Right.
MS. PARSONS: So, I mean, maybe the only way it
would go through with what he wants to do, is your breezeway
attachment is going to attach to the existing home and your
secondary farm dwelling is over here. It's smaller, it's
your thousand square foot.
MR. JUDSON: So your point, then, is, if I run my
breezeway from my A to B right now, my existing to my -- and
then I leave my farm dwelling alone, that is an interesting
retroing (sic) of the plan. But I don't know how -- I mean,
I can redraw my existing dwelling and show a connection
using the same engineering criteria that we used for this
breezeway, connect those two and then make this -- I mean,
we're split in -- there are so many ways to interpret this.
Because you're right, if I go back and I mention
this whole existing greenhouse and I go wall by wall, I'm
going to put a giant structure, I'm going to put a tile roof
on it, and I'm going to have me a 12,000 square foot house
in Olinda. I live next door to Mr. Krueger, his is 7100, I
guess I might get into a competition with him.
MS. PARSONS: Legally you could do that. Legally
that whole thing could attach to your main house right now
and you could legally do that and there's nothing anybody
could say. That's just an addition to your main house.
MR. JUDSON: There's nothing I could say, that's
not my intent.
MS. PARSONS: No. No. I'm just saying -- I'm
just telling you it's a goofy situation.
MS. RAISBECK: Mr. Chair?
CHAIRMAN VICTORINO: Yes.
MS. RAISBECK: I think what we're all bending our
minds to is finding devious ways around the way the water
department is interpreting an existing rule, which -- and
the fear that once the second dwelling is recognized as a
second dwelling, then the department will start imposing
conditions based on the greenhouse as a third structure.
This is why I'm trying to come up with some kind
of wording, and I could use help here, that will accomplish
what we want at the least trouble to Mr. Judson and the
least cost to Mr. Judson. I hate to see him spend $24,000
to put in a connector that has no earthly use and actually
interferes with the movement of vehicles on his property.
And can't we do that by simply waiving whatever
the department is saying our rules that are being applied,
in my opinion, incorrectly?
CHAIRMAN VICTORINO: Mr. Kushi?
MR. KUSHI: I know there's a motion on the table
and it's been seconded. After brief discussion with the
director and Mr. Chang, the department, if this motion goes
through and if the applicant does what he's proposing to do,
which is to connect by a breezeway, a concrete breezeway, a
second farm dwelling to the greenhouse, the department would
then consider that as the second dwelling entirely.
CHAIRMAN VICTORINO: Okay.
MR. KUSHI: And they will not go back and
recalculate the figures for the existing greenhouse.
However, in the future, if any barn, any shed, any other
greenhouse comes about, that's the third structure, then the
department will then recalculate -- do its calculations
again.
CHAIRMAN VICTORINO: That's fair.
MR. JUDSON: If that's the truth, then, if I
wanted to add on to my existing house now, I would no longer
be allowed to do that?
It might make more sense to do what was proposed,
since this is only 50 feet right here, to make this existing
house connect to the greenhouse and allow the original
planning department's approval of the original submitted
plans to stand. And I would retro an installation of a
breezeway between the closer of the two and not affect my
ingress and egress, as was correctly pointed out.
MR. KUSHI: Department has no position on that --
CHAIRMAN VICTORINO: Okay. I want to settle this
before I do anything else. I understand. You think you'd
be able to do that and --
MR. JUDSON: Connect the existing structure to the
existing greenhouse with a breezeway --
VICE-CHAIR OKAMURA: And that would still be --
MR. JUDSON: I will submit a new application for
that individual, along with the revised original set of
drawings for this, and then not have my farm dwelling end up
being lumped together with my structure and have my farm
dwelling break out to a thousand square foot limit that
technically applies.
Because this house is allowed to be as big as it
wants, it's the main dwelling. If I want to make it a
mansion, I can. So I don't want to be bound by this and
then later on say, Well, you can't add on to that because --
it's just -- this seems the more direct path.
CHAIRMAN VICTORINO: Herb, would that be feasible
and acceptable as presented to you?
MR. CHANG: Going along with the April 2005
procedure, in this process of connecting the existing
dwelling and existing greenhouse, would there be a
department, whether it's public works or planning, to be
able to say by connecting the two it's one structure?
CHAIRMAN VICTORINO: In other words, you're saying
yes, based upon all the department's approvals?
MR. CHANG: If you're saying the end result is two
structures, then there's no problem.
VICE-CHAIR OKAMURA: It depends on the Department
of Public Works, depends on what they say if you do that.
MR. JUDSON: In a sense, I need to return to my
original footprint and make the breezeway come over here on
the existing dwelling and resubmit it?
MS. PARSONS: That's what I would do.
CHAIRMAN VICTORINO: That sounds like a plan. And
maybe the fastest, most expedient way, Dan, to get this all
taken care of. And making yourself what I call in a safe
haven, not getting tied down on what we stated earlier.
MR. JUDSON: Uh-hm.
CHAIRMAN VICTORINO: The motion is still basically
to follow the rules as applied. So you would be just
switching from your new structure to the existing structure.
That's all we're doing.
MS. PARSONS: Yes.
MS. RAISBECK: I would like to have Stacy's motion
repeated because I'm not sure it covers it.
CHAIRMAN VICTORINO: Okay. I'm going to have to
ask you to repeat it. You didn't want to do that.
MS. CRIVELLO: You want to give me a break,
because this is all just exchange, I mean, it's going to
take me awhile. We can do it if you want to. What I'm
basically saying is, we go according to the department
recommendations to work with the planning department as to
see how they determine if it's two dwellings, and then
that --
MS. PARSONS: Without any extra caveats.
MS. CRIVELLO: Yeah. And Mr. Judson would go
through that permit process.
MS. RAISBECK: My opinion is, it's a little
ambiguous, and I think in ambiguous situations we don't
quite know how the department is going to come down on it.
But I'll vote for it if the rest of the people feel that it
covers it --
CHAIRMAN VICTORINO: Would you want to add an
amendment to make sure that if all rules are followed, then
the department would then --
MS. RAISBECK: I don't know how to phrase it,
frankly, Mike. I don't know how to phrase it. I'm not sure
how to phrase it. Sorry. I'll vote for the motion if other
people feel it covers it adequately.
CHAIRMAN VICTORINO: The last thing I'll do is
I'll turn to Mr. Tengan. After hearing everything that has
been said, Mr. Director, do you feel with this motion
relatively certain if all the rules were followed as far as
the second structure, meaning from the breezeway --
basically, I think what we're determining, Dan, is from the
old structure to your --
MR. JUDSON: Existing greenhouse.
CHAIRMAN VICTORINO: -- existing greenhouse, not
from the new structure, from the old structure, put the
breezeway in, making that the second -- the farm dwelling
would be the second dwelling on the property, complying with
all the rules --
MS. CRIVELLO: Just to clarify. The reason I say
that is because if the Department of Public Works will
define or determine if that is the second dwelling --
CHAIRMAN VICTORINO: With all that, Mr. Tengan, do
you feel relatively confident that we can move on
Mr. Judson's request?
MR. TENGAN: Yeah, I think that would be a good
solution, you know, provided that planning and DSA would
sign off on the permit and that they would consider the
existing dwelling and the greenhouse as a single structure,
then the farm dwelling could be considered the second
dwelling and it could be waived under the rules. So I see
that as a good solution to the issue here.
CHAIRMAN VICTORINO: Mr. Judson, are you
comfortable with that alternative?
MR. JUDSON: If we can put that in a motion.
CHAIRMAN VICTORINO: Basically, that's what the
motion is.
MR. JUDSON: I feel that's a very fair solution.
VICE-CHAIR OKAMURA: It all depends on what
happens with your application with the planning and public
works. You can come back to us later.
CHAIRMAN VICTORINO: Hopefully it will be approved
and we can move on.
MR. KUSHI: Mr. Chair, clarification. Just
one connection?
CHAIRMAN VICTORINO: One connection.
MR. KUSHI: Not going to connect two --
CHAIRMAN VICTORINO: No.
MR. JUDSON: We're going to go back to the
original plot plan as originally submitted, with on the plot
plan the existing dwelling having the proposed breezeway
that was approved by their drawing and their specs as far
as --
CHAIRMAN VICTORINO: Mr. Johansen?
MR. JOHANSEN: Just one thing. I would recommend
at some point here that we recommend to the county council,
since the rules are in the process right now of change, that
they change this rule to eliminate the ambiguity.
"Structure" is what we want. That's the applicable word.
Because it has to do with fire safety, not only of dwellings
but of other structures on the property. And if that rule
is changed, we don't have this problem.
MS. PARSONS: That's another thing too. We need
somehow to educate the architects in Maui County, because
that's a simplistic solution to this that they should have
thought of before they charged you to do all this. And they
should know the rules.
CHAIRMAN VICTORINO: Director Tengan?
MR. TENGAN: I do have a concern about the use of
the greenhouse. My concern would be, you know, whether
flammable liquids or material contained or once -- or
previously soaked in flammable liquids would be used or
would be stored in that greenhouse.
CHAIRMAN VICTORINO: Point well taken. Any more
discussion?
VICE-CHAIR OKAMURA: Question.
CHAIRMAN VICTORINO: Question. Okay. Oh, you're
calling for the question. All those in favor say "aye."
(A chorus of ayes.)
Opposed?
(No response.)
Thank you, Mr. Judson. You got it.
MR. JOHANSEN: Mr. Chair, point of order. We have
decided that the rules require us to poll the committee when
we make a vote, and I noticed we didn't do that at our last
session and we're not doing it at this session.
MS. RAISBECK: I agree with Ralph. The rules do
say, you know --
CHAIRMAN VICTORINO: Individually?
MS. RAISBECK: Individually.
CHAIRMAN VICTORINO: Okay. I can do that.
Mr. Smith?
MR. KUSHI: Mr. Chair, it's unanimous, everybody
voted "yes."
MR. JOHANSEN: I didn't vote.
MR. KUSHI: Oh, okay. Then poll it.
CHAIRMAN VICTORINO: Okay. All right, let's poll
it just to make sure that everybody is on the same page.
Mr. Smith?
MR. SMITH: Yes, I voted in favor.
CHAIRMAN VICTORINO: Ms. Crivello?
MS. CRIVELLO: Yes.
CHAIRMAN VICTORINO: Mr. Okamura?
VICE-CHAIR OKAMURA: Yes.
CHAIRMAN VICTORINO: Ms. Raisbeck?
MS. RAISBECK: Yes.
CHAIRMAN VICTORINO: Mr. Johansen?
MR. JOHANSEN: Abstain.
CHAIRMAN VICTORINO: Ms. Parsons?
MS. PARSONS: Yes.
MR. KUSHI: What did Mr. Johansen say?
CHAIRMAN VICTORINO: Abstain.
MS. RAISBECK: An abstention is considered an
affirmative?
CHAIRMAN VICTORINO: Yes, that is correct. And
we're going to take a quick break to give this young lady a
break.
(A recess was taken.)
CHAIRMAN VICTORINO: Reconvene the meeting. We go
now to Communication item B, pages 35 to 44. Communication
05-06, letter from Michael Conway of Silversword Engineering
dated August 15, 2005, regarding Fleck Residence, TMK:
2-2-17:14, Kula, Maui. If you want to come up. Are you
Mr. Conway?
MR. CONWAY: Yes, I am. Thank you.
CHAIRMAN VICTORINO: Introduce yourself and then
go ahead.
MR. CONWAY: My name is Michael Conway of
Silversword Engineering, representing Bill Fleck on his
request. We are revisiting the issue of the second dwelling
for the second time today.
Basically, what has happened, I need to get this
out in the open, obviously, because my client has done
something that's wrong, but it has nothing to do with the
water department.
He had a dwelling that burnt down completely to
the ground; he rebuilt it without a building permit. He is
in the process of getting the building permit and it's being
held up because the water department will not sign the
building permit for the reconstruction for the building that
he has rebuilt due to the fire, because of the third
dwelling rule.
There is an existing storage shed, and I believe
there may be -- I mean, a garage, and there may be a small
little wood storage shed also on the property. Very small
storage shed. Which you will have a picture outline of.
Basically, the house that burnt down is the unit
No. 1 and that's on the makai side of the property.
CHAIRMAN VICTORINO: Page 40?
MR. CONWAY: Exhibit A.
CHAIRMAN VICTORINO: Exhibit A, page 40?
MS. RAISBECK: Middle Road up in Kula?
MR. CONWAY: Keokea. And this basically -- Middle
Road, while you can see sort of a dash line that seems to
take it up further, and on map it's taken up further, in
actual fact the road dead-ends at that point in time. And
you have an existing waterline actually on the lower edge of
this property.
What I am -- basically, we're in the same
situation, we need to get the water department's approval on
the building permit so that we can make it -- make the --
get the building permit and make the project legal.
In hearing the first discussion, there was a
couple of points that I thought would be germane to this.
The issue of whether an existing structure, even though it's
not a dwelling, could be made into another dwelling, I think
it's moot as far as the water department is concerned,
because if people are going to do illegal dwellings, they
are going to do illegal dwellings.
You know, I can build a house and I can split it
up in two or three phases and I've got an illegal dwelling.
And that's really not -- that's an enforcement issue; that's
not really a permit issue. So I think that's kind of --
should be moot as far as the discussion.
The other thing that I kind of heard about is what
would happen if you guys passed this to people who have
previously requested, would there be sort of an uprising or
up-lash, I don't think so. Because, in fact, I have
personally written a letter to the water department,
requesting a three-quarter inch meter in the 1970s, because
my fixture count was such that it required a three-quarter
inch meter. And I have a letter back from the water
department, at that time the deputy director was Kent Simond
(phonetic), he denied it and said no, you can't have it.
And if there was any kind of retro backlash,
certainly I should be able to get my three-quarter inch
meter that should have been supplied to me before the rules
went into effect that you had to buy water meters and things
like this. So, you know, what's in the past is kind of in
the past.
Even the fact that the sizes of lots or the sizes
of the second dwelling has changed over the years just by
interpretation --
CHAIRMAN VICTORINO: Hang on a second. You got
that thing switched?
Okay, go ahead, continue. I'm sorry.
MR. CONWAY: -- just by interpretation. So I
don't think -- again, I think that's a moot question or a
moot discussion. Basically, what we have here is a house
that burnt down; we're building the exact same house in the
exact same location, and it is the second dwelling. As I
mentioned, there are two other structures on it, very small
structures: an unattached garage and a small shed.
The property is an agricultural zone. This person
has avocados that he is basically farming or selling off of
his property. He has one person on it, who I gather kind of
handles it. He is an absentee owner who comes periodically.
So again, we're hoping to get approval for this
second dwelling at this point in time. The water
department, as you can kind of see going through the
records, is recommending that he build a water tank, a
booster pump, and so forth, that will obviously upgrade the
system, the water department system.
In the past, the water department has approved in
situations where they described it as being a condo, where
there's a horizontal, you know, HPR, basically, and they
then -- even if there's two or three structures on that
point in time, they will allow -- they come under different
rules or different regulations.
I am kind of back pedaling on this a little bit,
to be honest with you, because the homeowner was -- is and
he probably still is willing to put in a standpipe, and
that's what we proposed to do, but it would be on his
property for the use of fire flow for fire protection on his
property.
But as I heard this discussion from the previous
thing, that again may be something that may be moot, because
again the second dwelling situation, I think, comes into
play. This is the second dwelling. And the requirement,
again, of the water department to put in a booster pump, a
new line, and a tank upstream is really an excessive amount
of money that would be put on to this homeowner to rebuild a
house, an existing house that was already there.
In a nutshell, what we're asking is, again, for
this to be considered a second dwelling. I would suggest if
you do go and review your rules and interpretation of the
rules, because basically it seems like it is interpretation
of rules that we're talking about here, that there's all
kinds of things that you're going to have to come into play
when you think about the interpretation of the rules.
Because Ulupalakua Ranch has line houses; right?
What happens to those kinds of things is just a small little
dwelling space, not even a dwelling space, but an overnight
tent, basically, and so you're going to need to think about
things like this.
And, you know, if they have electrical
connections, we're talking about public safety, I would
imagine people's life and health is what you're concerned
about, and by limiting it to two dwellings, obviously that's
probably something that's very reasonable for a rancher or a
facility, because then you're not -- you only have to worry
about people's lives in that particular place or case.
Different structure like a greenhouse perhaps can
be -- electricity can be brought to it; water can be brought
to it from a fire sprinkler system, but we wouldn't be too
concerned about public life and issues like that. So I
think you're going to have to, perhaps, review really what
your intents are or rules and regulations if you decide
to -- and I think, deservedly so, that you do need to go
back and look at the rules and regulations and how to
interpret it.
But some of the things, again, that has been
stated in the past I think really are moot as to our
conversation here. The illegal dwelling issue, again,
that's an enforcement issue that's handled by DSA or
planning. It should not be a water department issue. As
well as recognizing the fact that a second structure versus
a dwelling is two different things.
And by the rules that you read, it basically, you
know, allowed a second dwelling. And by interpretation, it
has been taken on that any other thing that's built, other
than a second dwelling, needs to be reviewed for water or
fire flow requirements or fire safety requirements. So
that's the issue, I think, that the board is going to have
to look at or somebody is going to have to look at in a
separate case, separate issue.
But we would like to hear a motion, obviously, to
be allowed that this second structure, which is being
rebuilt, be allowed to happen. It has actually already been
rebuilt. Again, mistake of the client, but he did rebuild
this structure exactly the way it was in the first
go-around, and he's trying to get it permitted and
legalized.
CHAIRMAN VICTORINO: Okay.
MS. PARSONS: I don't see anybody signing off on
this. Have they signed off on your plans on here?
MR. CONWAY: We have the architectural designer,
Rafael Escobar, here, who was involved in the --
MR. ESCOBAR: I'd like the opportunity to speak on
the subject.
CHAIRMAN VICTORINO: Please state your name.
MR. ESCOBAR: My name is Rafael Escobar from
Valley Isle Design here in Kahului. All of the departments,
other than the water department, has signed off on this
project.
MS. PARSONS: Do you have that --do you have that
updated version?
MR. CHANG: No.
MR. ESCOBAR: You can clearly see -- it's on the
Internet and of course on the records. The client,
unfortunately, was kind of in a desperate state and felt
like he had to reconstruct the structure so his family could
live on the property. He has applied for a permit for the
garage that's there now. It's already built and that was
built with a plan waiver procedure.
But when it came down to getting the water
department to sign off, they considered that the second
dwelling was a third structure. And that's where we stand
now.
CHAIRMAN VICTORINO: I think we talked enough
about it. The only thing that comes to my mind, and this is
the only difference I see between Mr. Judson's one and your
situation, this is a replacement of an existing dwelling
that was there. It's a replacement. I'm not trying to
skate the rule, but there is a difference when you're
talking about something that's been burned down and you
replace it, so as long as you follow all ordinances and all
that.
Okay, go ahead.
VICE-CHAIR OKAMURA: Could you repeat the last
thing about the garage structure, there was a plan waiver?
Can you explain that? I don't understand that.
MR. ESCOBAR: Okay. What happened was, two weeks
after the structure burned down, Mr. Fleck's son arrived
ready to move into that very structure.
VICE-CHAIR OKAMURA: That was unit 1, yeah?
MR. ESCOBAR: That was unit 1. That burned down.
He had a container full of furniture, all kinds of other
stuff that he needed a place to put. So we put in for a
permit under a plan waiver submittal. That is that they can
go ahead with putting the garage up, provided that
ultimately all departments would sign off on this.
VICE-CHAIR OKAMURA: You're talking about this
garage structure in the picture here or a separate garage
adjoining the unit 1, the new rebuilt unit 1? Are you
talking about the garage structure that --
MR. ESCOBAR: That's that garage structure.
VICE-CHAIR OKAMURA: So this was built with a plan
waiver or whatever, so that he could store his --
MR. ESCOBAR: Yes. It's not a dwelling, and it's
not supposed to be a dwelling. They have no plans to live
in it or have anybody live in it. Not even a cat for that
matter.
MS. PARSONS: What size is it?
MR. ESCOBAR: Again?
MS. PARSONS: What size is it?
CHAIRMAN VICTORINO: What size is the garage?
MR. ESCOBAR: It's a two-car garage.
CHAIRMAN VICTORINO: Two car?
MS. PARSONS: Two car.
CHAIRMAN VICTORINO: Maybe like --
MS. PARSONS: 400 square feet.
MR. ESCOBAR: 25-by-20, or something like that.
CHAIRMAN VICTORINO: 25-by-20 is --
MR. ESCOBAR: Yeah.
VICE-CHAIR OKAMURA: Then you're saying you got
all the approvals after the fact, from all the departments
for this --
MR. ESCOBAR: For this permit right now, the only
permit that has not signed off is the water department.
VICE-CHAIR OKAMURA: The permit is to -- for a
building --
MR. ESCOBAR: For the replacement of the existing
structure.
VICE-CHAIR OKAMURA: Thank you.
CHAIRMAN VICTORINO: Any questions for Mr. Conrad
(sic) -- or Conway?
MS. RAISBECK: Mr. Chair, the thing that -- well,
if we, you know, if we decide to help out the owner of this
property, the thing that's different is that in the previous
time we sort of -- we allowed that connector to turn the two
structures into one, basically. That connector would turn
the original house and the greenhouse into one structure,
and then the proposed new one could -- now, this one isn't
that way because obviously it's -- there's no way to connect
that garage structure with unit No. 1. That wouldn't make
sense, period.
So in this case, it seems to me it's also an
exceptional case because the house burned down and th 