We are so sorry to have to say that almost every single statement in the rebuttal, which came from the developer, was either dreadfully misinformed or an attempt to mislead the reader. So, we are obliged, yet again,
to correct the record, below.
However, the biggest issue of all remains: Do we really want to allow this dangerous precedent to be set that would open the floodgates to commercial development on ag land? And do we really want to accelerate the disappearance of Kauai’s famous rural character?
Mahalo for taking the time to understand the facts. Residents can differ on this project if they so choose, but let's at least stick to the facts. Please come voice your concerns -- Tuesday, April 12th, Planning Commission public hearing, 8:15am.
Note: Our responses below are in blue. Original is in black. Developer's comments were in red.
"Should One Developer Be Allowed to Determine the Future of Kauai?"
A DANGEROUS PRECEDENT
HAWAII STATE LAW currently protects agricultural land from commercial development. However, that may be about to change—if the developer of the Anaina Hou-Kilauea Pavilion gets his way. He has applied for a Special Use Permit, which would enable him to build a commercial amusement complex
--This is not an "amusement complex," as repeatedly coined by the opposition. The Kilauea Pavilion is characterized as a community center with uses created specifically to address community events, uses, and requests, including theater, dance and music shows, potential community college satellite classes, a place for forums and meetings, community fundraisers, and endless other uses, mostly to support community ancillary services. It has never tried to be an amusement theme park or complex.--
Regardless of how the developer characterizes his own project to the community, the legal definition is “Amusement Commercial Facility.” We did not “coin” this term. The Kauai Comprehensive Zoning Ordinance (CZO Section 8-1.5, Definition #70) defines the indoor cinema as “Indoor Amusement, Commercial.” The CZO (Section 8-1.5, Definition #96) defines the outdoor amphitheater and the miniature golf course as “Outdoor Amusement, Commercial.” The CZO defines the entire project as a
“Commercial Facility.” Therefore, we are taking the language directly from the governing ordinance when we call the facility an “Amusement Commercial Facility.”
on land zoned as “Agricultural” by the State. The County has not before granted a Special Use Permit for commercial development on State-designated agricultural land.
-- An outright misstatement. Numerous Special Permits have been granted before in the State Agriculture District for uses determined to be "unusual but reasonable" and which support community uses and businesses, including many very beneficial things on the North Shore such as the Kaua`i Christian Academy, Banana Joe’s Fruit Stand, Church of the Pacific, and the old Guava Kai center, amongst others. Special Permits can be utilized for good projects wanted by the community. --
Though the County has granted the Special Use Permits that the developer lists above, these projects have all qualified because their use is defined as either agricultural or as a place of worship. Special Use Permits can also legally be granted for a category defined as “outdoor recreation,” such as a soccer field (not to be confused with “outdoor amusement,” which is what this development would be). The County of Kauai has never before granted a Special Use Permit for commercial development on State - designated agricultural land. This project would set a very dangerous precedent, endangering all State ag lands on our island.
Once this precedent is set, agricultural lands across Kauai would be fair game for commercial developers. All they would need is a Special Use Permit. The most obvious danger to such a precedent would be that it would open the door to a more rapid transformation of agricultural lands into commercial developments across the island. No more open spaces. No more country. But there is another grave concern: the availability of agricultural land for commercial exploitation will drive up real estate costs. Farmers would have to compete with developers for land that should be covered with food, not shopping malls. Goodbye, sustainability; Hello, skyrocketing land prices.
-- This is not a shopping mall. Part of the purpose of the downzone of this land last year was to prevent future shopping malls. This land was in the County Industrial and State Urban District up until last year. It was never utilized for the growth of crops, and if anything, the owners of the project are one of the few large ag-land owners on the north shore doing real, viable and long-term agriculture that feeds Kaua`i, with nothing exported off island. All previous owners of this property had planned for industrial parks, all with much greater footprints and much more intensive uses than the proposed Kilauea Pavilion, which again, was created to meet needs of the community. --
This is missing the point. The point is not that simply a shopping mall is being built, although commercial construction is proposed here. Furthermore, the downzoning was determined by prior conditions on this land, not primarily by the current owners. The point is that this could be a precedent that would be set if this Special Use Permit is granted. If this first Special Use Permit is granted to build commercially on ag land, it could open the floodgates for subsequent developers to build commercially on ag land. And yes, shopping malls on ag land could follow.
As for the developer’s agriculture, it is far from sustainable, and none of those agricultural uses would be located on this site. Have you ever seen a hydroponics factory? They are large warehouses crowded with plants dangling from plastic or wire support systems, their roots suspended in plastic troughs filled with an inert medium such as silica or vermiculite. Through these troughs flows a constant stream of commercial fertilizers dissolved in water. This chemical soup provides the crop roots with nutrients that promote rapid growth. Computers automate, monitor and control the entire process. Hydroponics is often mistaken as “organic” simply because no pesticides are used.
However, it is neither organic nor sustainable. All those man-made chemicals must be shipped in – if the Matson barge stops coming, no more food, if you’re relying on hydroponics. Because of all the chemical input, hydroponically grown food contains almost double the amount of nitrate residue than organically raised crops. In fact, hydroponic fruits and vegetables often show even higher chemical nitrate residues than those from chemically treated industrial-agriculture fields and orchards. This is according to the Center for Food Safety in Washington, DC.
As for the issue of zoning, the current zoning designation by the state is “Agricultural”, and by the county as “Open.” For several years, beginning in the 80s, the classification was “Light Industrial,” changed by the previous developer whose intentions were to build an industrial park. At that time, the county imposed a condition that the property must revert back to its original zoning as State Agricultural after two years if the industrial park was never built. As we know, no industrial park was ever built. But it wasn’t until January 2010 that the County realized they were years overdue in reverting the classification back to Agricultural and Open. Presently, the site is back to its original zoning as an ag lot, and commercial development is prohibited, according to Chapter 205 in the State Land Use provisions.
WHAT IS THE KILAUEA PAVILION?
The Kilauea Pavilion is part of the Anaina Hou development, proposed to be built on agricultural land behind Kauai Mini Golf. It would consist of a movie theater, conference rooms, --just one conference room-- and an outdoor amphitheater. Over the years, the developer’s aggressive public relations campaign has buried the most urgent issue at hand—the precedent of commercial development on agricultural land. –Again, "over the years,” this land was never “ag land.” It was industrial until last year.
This particular land historically was zoned ag land. Under the prior owner this land was zoned light industrial, and under those prior conditions it was to be downzoned back to ag land, as it is now. What we originally referred to was that the most important issue at hand of precedent has not been adequately mentioned until now, and that the developer's PR campaign to the contrary has been years in the making and relentless.
All Special Permits undergo review on a case-by-case basis.
The concept of case-by-case is unrelated to the concept of precedent. Yes, the permits are reviewed case-by-case. And if a precedent is to be set to build commercially on ag land, then the door would be opened for every other developer who wants to build commercially on ag land to be granted a Special Permit, regardless on the case-by-case basis. Case-by-case has nothing to do with the harmful, irreversible consequences of setting this precedent.
The decision is made based on the application's specific facts, including project uses, history, and community support, amongst others. The intent of this process is to ensure that nothing is precedent-setting. In the next column, we debunk six dubious claims of how “great” the project will be for Kauai.
SIX MYTHS ABOUT THE KILAUEA PAVILION
Myth No. 1 The Kilauea Pavilion will be great for the community.
The Kilauea Town Plan of 2006 designated this specific Open site to be zoned for agriculture or, if it is to be at all developed, as residential housing.
--Not true. As already confirmed by many who participated in the Kilauea Town Plan planning process, the Kilauea Neighborhood Association, and the text of the Town Plan itself, the Anaina Hou property was never slated for housing. Page 6-3 specifically states that it is the property across from Anaina Hou, the Kilauea Plateau, that had portions of land slated for housing. The opponents have repeatedly made this false claim but have never been able to support it with citations, because it is not true.--
The property across the highway from the Mini Golf where the proposed bypass road will someday be located is zoned Agricultural and has always been zoned Agricultural. Here is the requested citation, from Page 6-3 from the Kilauea Town Plan, from the last part of the paragraph with the subhead reading “Emphasize the town commercial core and prevent highway strip commercial development”:
“The land use plan also calls for the two undeveloped parcels along the highway frontage that are presently zoned for commercial and light-industrial use to be re-zoned for residential and agricultural use, respectively.”
With so many young people forced to move away from their island home due to the high cost of housing, are we to believe that a theater complex will better serve the community than residential housing? The only people that would be served by the Pavilion are North Shore residents who don’t like to drive to Lihue for commercial entertainment.
--This is a large group of people, actually, who miss the old movies on the North Shore , but most of all, are not able to participate in many cultural events and important meetings that are always held far away. The North Shore possesses a large percentage of the island’s population, yet hardly provides any services or facilities for them. Venues for community events, gatherings, and meetings are crucial to the health and well-being of any community.--
The only thing offered by the developer for which there is a real need is the movie theater. However, an outdoor amphitheater breaks zoning laws, and we don’t need it. The indoor theater breaks the zoning laws, too.
We need to think of the more pressing needs of the community at large.
Myth No. 2 The Kilauea Pavilion will give people jobs.
Yes, Anaina Hou did give jobs to people—people from off-island. During a Planning Commission hearing for Kauai Mini Golf, the developer promised that it would be built by a local company. Once its plan was approved, however, the work was instead given to a New Jersey contractor and his crew.
–Another outright lie. There were numerous local jobs provided during the construction of the mini golf course, which is why many construction workers, landscapers and tradesmen have come out to testify in favor of it. The New Jersey crew was only 6 people from Harris Miniature Golf who came specifically to build the miniature golf course ONLY. Everyone else of the 50+ crew was from the local work force. Shioi Construction from Lihu`e was the general contractor, who then hired local carpenters, plumbers, electricians, painters, etc, including James Nakagawa Paint from Waimea, H. Tanaka Plumbing out of Kapa`a, Rutan Refigeration from Lawai, and Raynor Kaua`i Overhead Door Company, to name a few. B&G Pacific, Inc. of Kilauea performed all the site work, including the highway improvements. Lawai Foliage and Landscaping did all the irrigation and course lights. The Fence Company in Kilauea installed the fence. Many local nurseries provided the plants for the botanical gardens. The list goes on and all the workers can testify that they worked on this.
This was an error on our part. We thought we had thoroughly fact-checked our material on this point, but more recently came to learn that the gift shop was in fact built by Shioi and other local workers. We had researched only the miniature golf course which was built by Joe Pez and his New Jersey crew. We apologize, and had no intention of conveying only a partial truth.
The Kilauea Pavilion plans to continue to hire the local work force, which will involve many more people and will be built to the environmentally-LEED certified standards.—
Preserving land zoned Open Agriculture is far more sustainable than commercial construction on ag land, even by "environmentally-LEED" certified standards. For the reader, LEED is the acronym for Leadership in Energy Efficient Design, regarding the energy use of the buildings.
When the job was pau, they were gone. And as for the 35 jobs currently held by local people at Kauai Mini Golf, few of them are allowed to work over 22 hours per week. By not paying a living wage, the developer/owner is able to avoid providing full benefits.
--Kaua`i Mini Golf currently has 19 employees. 6 of them are full-time with benefits. Of the remaining 13, 6 are high school students and a few are college students, whose whose hours are dictated by school schedules (not to mention State Labor Laws for teenage employees). The "35 jobs" that the ad references must be also referring to the owner's other agricultural businesses across the adjacent diversified plantation, which are all full-time jobs except for 2, and provides full medical, vision and prescription benefits at no charge to the employees.
Our information was obtained by three young employees of Kauai Mini Golf who expressed disappointment in the limitations of hours they were allowed to work. Perhaps these workers were confused about the employee count of the golf course alone (as opposed to the developer’s total employees) when they said 35 workers. We will investigate this issue further.
Myth No. 3 The Kilauea Pavilion will be great for sustainability.
Anaina Hou claims to be all about sustainability, yet its site plan sounds a likely death knell for nearby Puu Kumu Stream. The only space available for a sewage wastewater treatment system is too small to handle 16 toilets and too close to the waterway to prevent contamination.
--The engineers, who are the experts in wastewater systems, have never expressed an issue with the space available, which is ample.
It is likely that the expert engineers were unaware that the previous industrial park’s wastewater system was denied by the Health Department due to its proximity to the Puu Kumu Stream. So far, no design has been completed or submitted for any wastewater system. Not only that, but the wastewater system must comply with Chapter 57 of the State Department of Health regulations. But with no design, how can the developer comply with the Department of Health? And how can the Planning Commission approve this project, with no wastewater system design?
Furthermore, because the Pavilion will be built to LEED standards, it will utilize a constructed wetland wastewater system, which is far more environmentally-friend than a standard septic system and outputs R-3 effluent, which is suitable and clean enough to be used for landscaping irrigation. This sustainable system is encouraged by the State Dept. of Health.
Without having any flow calculation of how much sewage is to be discharged from the facility, the design and size of the wastewater system is yet to be determined. The Planning Commission cannot justifiably approve a project when the wastewater system design has not even been completed, let alone approved by the Health Department.
Then, to add insult to injury, the spillway for all the oil and chemical run-off from the parking lot will be placed within the flood plain that slopes into the stream. If the raw sewage doesn’t kill the stream, the oil and chemicals from the parking lot will.
--These are simply sensationalist claims. Any systems utilized by the Pavilion will, like all other systems, be required to adhere to the Dept of Health codes and there will be no "raw sewage" floating around.
Again, it would be unconscionable for the Planning Commission to approve a system that has not yet been sited or designed, let alone approved by the Health Department, especially when this a part of one of the five requirements to be met for a Special Use Permit.
As stated above, the Pavilion is taking the extra step to be even cleaner and more environmentally-friendly than required.
Myth No. 4 The Kilauea Pavilion will have no adverse effect on surrounding neighbors.
There are 55 homes within the legally significant 1000-yard radius of the proposed Kilauea Pavilion. Neighbors living close to the proposed outdoor amphitheater are worried about the noise, traffic and lights that come with night-time crowds and concerts. The developer has promised to keep sound levels no louder than 55 decibels at the boundary line—below the volume of normal conversation. Is he joking? Clamorous concertgoers in the amphitheater’s lawn seating will be only a few hundred feet from neighbors. The developer’s promises to keep noise levels at 55 decibels are entirely unenforceable.
--This is contrary to the sound studies conducted by the acoustical engineers, who have determined that 55 dba is indeed possible at the property lines with the proper mitigation designs, and the applicant has committed to this sound level, as outlined in the settlement conditions that the Pavilion has agreed to. Additionally, the Pavilion will not have live music outdoors beyond 10:00pm.
Yes, you can turn down a knob on the PA system, but how do you keep down the noise of hundreds of revelers? This is totally unenforceable, and, moreover, downright un-neighborly.
Myth No. 5 The Kilauea Pavilion will not hurt the endangered Newell Shearwaters.
The Kilauea Pavilion is in a migratory path of the Shearwaters. The bright lights of the outdoor amphitheater will attract the keiki birds until they exhaust themselves in confused flight before dropping to the ground. This can happen even with the downward-facing lights that are supposedly “Shearwater-safe.” For this reason, Anaina Hou has applied for an “Incidental Take Permit” with the U.S. Fish and Wildlife Service. An Incidental Take Permit implies the expectation that Newell Shearwaters will be killed, or “taken.”
-- The Incidental Take Permit is part of the Habitat Conservation Plan that Anaina Hou voluntarily chose to participate in to proactively help reestablishment more habitat for shearwaters. It is part of taking action and participating in a program that encourages preventative action and education rather than waiting for "takes" to occur and then addressing issues.
This is embarrassingly duplicitous. Actually, in order to qualify for an Incidental Take Permit, one is required to participate in the Habitat Conservation Plan, which entails paying large sums of money to various projects. It’s sort of like carbon trading; if you want to spew toxins into the air, you have to donate to some sort of clean-air project. It’s a way that development can get away with destroying the natural environment.
All lights at the Pavilion will adhere to the Department of Fish and Wildlife's requirements for outdoor lighting in a bird fly zone, and most of the outdoor lights for the outdoor theater will be under the roof. Kaua`i Mini Golf already has night time lights, and in fact, the public response has been that, "they're too dark!" These lights are indicative of the applicant's desire to minimize any effects on shearwaters.
“Minimize” still implies the expectation of unnatural "takings" of Shearwaters.
Myth No. 6 The Kilauea Pavilion conforms to all County and State ordinances.
Actually, the proposed Kilauea Pavilion is not in conformance to numerous County and States ordinances. Below is a summary of them:
1. Hawaii Revised Statutes (HRS) 205-2, 205-4.5, 205-5, and 205-6 prohibit the building of any commercial structure containing a movie theater, business convention center, commercial kitchen and outdoor amphitheater with amplified music within State Agricultural Zoned lands. Following is a description of how the Kauai County Code (KCC) defines “Commercial uses.” Kauai County Code (KCC) 8-1.5(70) defines the Kilauea Pavilion’s movie theater as “Indoor Amusement, Commercial.” KCC 8-1.5(96) defines the outdoor amphitheater as “Outdoor Amusement, Commercial.
-- The Special Permit process allows for uses other than those directly allowed under the State Agriculture District to be permitted and allowed, providing that it is determined to be an "unusual yet reasonable" use and that it meets the criteria for a Special Permit. As such, Special Permits are often granted for unique uses on these lands, so it is not a black and white exclusion in State Agriculture Districts, but rather, subject to a process of applying for such a Special Permit.
One of the Planning Commission’s guidelines in determining if a use is “unusual yet reasonable,” thereby qualifying for a Special Permit, is if “the desired use would not adversely affect surrounding property.” But the amphitheater will have obvious adverse effects on surrounding similarly zoned property. There are no less than 55 homes within close proximity of the property. How can anyone believe that the crowd noise and traffic from an amphitheater will not adversely affect neighbors? The developer’s campaign to diminish these people and their legal rights is shameful.
2. KCC 8-8.2 and 8-8.3 prohibit commercially promoted party space for luaus,weddings, and other celebrations on land zoned by the County as “Open.” None of the proposed uses of the Kilauea Pavilion are allowed within the County of Kauai ’s Open-zoned lands.
-- Directly quoted from the KCC 8-8, the purpose of the Open District is "to preserve, maintain or improve the essential characteristics of land and water areas that are of significant value to the public as scenic or recreational resources; important to the overall structure and organization of urban areas
and which provide accessible and usable areas for recreational and aesthetic purposes," amongst others. Further, some of the uses under Open that are allowed include "(8) Outdoor recreation concessions, (12) religious facilities, and (14) any other use or structure which the Planning Director
finds to be similar in nature to those listed in this Section and appropriate to the District," which, in case this, both the previous and current Planning Director has.
The developer has confused the County’s definition of “amusement” with “recreational.” There are no facilities in the proposed development that fall into the County’s definition of “recreational.” The County defines the miniature golf course, and the indoor and outdoor theaters as “amusement.” Therefore, the County ordinances cited as applying to “recreational” here do not apply.
The developer neglected to cite the next section of the ordinance, which states that the purpose of the Open zone policy is “necessary to insulate or buffer the public and places of residence from undesirable environmental factors caused by, or related to, particular uses such as noise, dust, and visually offensive elements.” (KCC 8-8.1 Purpose (a)(3)).
This is an explicit description of why the amphitheater would be in gross violation of the law. Many families would be disturbed by noise if the Open space that should buffer and insulate their neighborhoods becomes an outdoor amphitheater.
And although former Planning Director Ian Costa deemed the proposed development to be similar in nature to an “outdoor recreation concession” and/or a religious facility, and would therefore qualify for a Special Use Permit, he was incorrect. It is not a similar use, by the County’s own definitions. There is no outdoor recreation – only outdoor amusement, and there is no place of
worship.
3. KCC, Section 8-20.5(a),[a] states that a “Use Permit may be granted only if the Planning Commission finds that the establishment, maintenance, or operation of the construction, development, activity or use in the particular case is a compatible use and is not detrimental to health, safety, peace, morals, comfort and neighborhood of the proposed use, and will not be inconsistent with the intent of this Chapter and the General Plan.” Over 50 homes are in close proximity of the outdoor amphitheater that will bring noise, increased traffic and stadium lights at night. What peace? What comfort?
-- There are no stadium lights -- another gross exaggeration. But more importantly, the intent of this referenced Chapter is to provide for good communities and neighborhoods, which, again, community spaces encourage and promote. Community spaces like the Kilauea Pavilion promote, not reduce, health, safety, morals, and comfort of neighborhoods.
Regardless of whether you are for or against this project, our community has not been more divided in at least two decades, because of the social mayhem wrought by this agenda that deviates from established County and State general planning documents, ordinances, and statutes.
4. HRS, Section 205 and Chapter 13 of the Rules of Practice and Procedures of the Planning Commission allow a developer to be granted a Special Use Permit for an “unusual but reasonable use” of land situated within the Agricultural or Rural District. One requirement of “unusual but reasonable use” is that “the desired use would not adversely affect surrounding property.” Because the proposed uses would very much adversely affect surrounding property owners with the noise from the outdoor amphitheater and the increased traffic problems, this project does not qualify for a Special Use Permit.
Noise, as stated above, as been addressed by committing to low levels of sound at the property lines and being able to meet them, not to mention the 10:00pm cut off time for outdoor amplified music. Traffic was addressed by proper improvements on the highway, which were completed to accommodate for the Pavilion. Further, most traffic that would come to the Pavilion is likely traffic that would occur on the highway in that area regardless, from people driving to these same events that would then be located in Kapa`a or Lihu`e if the Pavilion were not there. The Pavilion could potentially reduce traffic by allowing residents to travel less distance or even encouraging nearby residents who would otherwise drive to events to walk or bike over.
Where are the crosswalks and pedestrian improvements for people to safely walk?
In the settlement conditions, the Pavilion has also committed to traffic control plans that will be utilized in the event of larger events.
Again, you cannot enforce a sound limit on crowd noise, let alone for a full theater, with concertgoers on the sloping lawn that abuts the property of neighbors. Who are you trying to kid? These sorts of promises to mitigate unenforceable nuisances ring very hollow.
5. Kauai General Plan and the Kilauea Town Plan designated this specific site to be used for only agricultural or residential uses.
-- Already addressed above, see under Myth #1. This is not true and is simply a misinterpretation of the Plans. The Kilauea Town Plan does not designate this land for residential uses, but rather, parts of the property across from Anaina Hou, the Kilauea Plateau (page 6-3 of Town Plan). The Plan also designated this property to rezone to agriculture, which it did.
Again, here is the citation from the Kilauea Town Plan, from Page 6-3, from the last part of the paragraph with the subhead reading “Emphasize the town commercial core and prevent highway strip commercial development”:
“The land use plan also calls for the two undeveloped parcels along the highway frontage that are presently zoned for commercial and light-industrial use to be re-zoned for residential and
agricultural use, respectively.”
6.
Kauai Comprehensive Zoning Ordinance, Section 8-8.4 states “Where a parcel is adjacent to, or within 1,000 yards of, a use district or districts other than Open District, no use permit shall be issued for uses and structures on parcelswhich are not generally permitted, or permitted under a Use Permit, in alladjacent or proximate districts.” This means that as long as any of thesurrounding properties are ineligibale for the same Special Use Permit, theproposed project is also ineligible. So, because the surrounding residentialproperties would never qualify for a Special Use Permit to build a commercial
amusement center, the proposed project does not qualify, either.
--Actually, the surrounding properties could qualify for similar uses with the proper Use Permits.
No can. Those properties are Residential/Agricultural. Commercial is strictly prohibited.
The County use districts within 1,000 yards of the Kilauea Pavilion are Agriculture or Industrial,
Only the parcel on which the mini golf course is sited is zoned Industrial.
and uses similar to the Kilauea Pavilion's uses actually can be allowed in these districts, if they were granted Use Permits, which the ordinance allows.
No, the ordinance does not allow Special Use permits to build commercially on ag land.
In fact, there are many similar uses to the Pavilion, such as religious facilities, wherein large buildings have multi-functional uses, including congregation halls that resemble indoor theaters, kitchens, bathrooms, meeting rooms, and classrooms, that currently are allowed and granted in County Agriculture Zone.
Yes, but those facilities are not defined as “commercial.” The concept of “similar use” is immaterial to the fact that the law prohibits commercial development, with or without a Use Permit, on County Open District lands or on State-designated Agricultural lands.
Both the Agriculture and Industrial districts, which are the districts that surround the Pavilion, are less restrictive in terms of allowable uses and allow for even more lot coverage.
Only Industrial-zoned land, not Agriculture land, has less restrictions. And the only parcel in the area that is zoned Industrial is the one on which Kauai Mini Golf is located.
See also:
Ea O Ka Aina: Kilauea Development on Agland 4/7/11
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