COM 0762.059 2004-2006 - Laserfiche WebLink

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modications: 1. Presumably In an effort to reduce the Planning Department's workload, Director Yuen's amendments revise the preliminary subdivision approval process to be more like the Issuance of a building or plumbing permit, than the approval of an application Involving judgments and determinations. The Hawaii Supreme Court Is not likely to sanction the Director's revisions as presently drafted. Final subdivision review is a relatively ministerial process in that the primary objective is to determine compliance with the conditions set forth in the preliminary subdivision approval. In contrast, at the prelilminary approval stage, the Department must ascertain what standards are applicable and under what conditions the Developer will have complied with those conditions. Consistent with these amendments, Director Yuen stated in the Department's March 2006 Informational handout Hawaii Land Use Regulatory System that "The main issues at subdivision are the adequacy of the roads, water supply, and drainage." That description reduces to a minimum the scope of subdivision review. The Director's proposed revision of 23-62(b) is consistent with this reduced scope of the subdivision review criteria. However the Courts have recently rejected that approach to the approval process for subdivisions and other types of developments. Prior to final subdivision approval the Department must make determinations and judgments relating to compliance with the County's General Plan and other statutory and regulatory requirements, including zoning ordinance and land use conditions. County Code #23-23 and Leslie v Board of Appeals Conclusions of Law # 6 to 9. The Court in Leslie expressly rejected Director Yuen's position that since this approach had been in play for over 30 years, the Department should no longer be required to insist on submission of the omitted information. As was pointed out in Hokulia " the information and proposals available at the time of subdivision approval are the only relevant evidence of the legality of what uses are going to be made of the land." Conclusion of Law #6. In Hokulia the Court made the point that after the subdivision approval process is over, enforcement of conditions, such as zoning conditions, become impracitical. Conclusion of Law #21. Case law precedent also establishes that the Planning Department can approve or deny a subdivision application, but that a conditionally accepted application, may, under certain circumstances, be the legal equivalent of a complete approval. 2. Public Input benefits the Department and should be encouraged not curtailed at the time of preliminary subdivision review : At the intial stage of preliminary subdivision review, the Department must require information in sufficient detail to assess application of the provisions of the County General Code and the pertinent statutory and regulatory requirements. See County Code Sections 23-23 and 23-73. As the Court in Sierra Club v Office of Planning and Leslie v. Board of Appeals underscored, public input should be solicitied at the early stage of review when it can be utilized in the Department's decision making process. At this stage of the application process, judgments are made regarding what criteria apply and what performance standards are appropriate. In contrast, at the final approval stage, the subdivision process assesses compliance with the performance conditions outlined in the preliminary plan approval. In Leslie v. Board of Appeals, the Court specifically rejected the Board of Appeals and Director Yuen's arguments that requiring additional information at the preliminary approval stage "would be an unncessary waste of effort" and would produce "an absurd and unjust result". The Court's rejection of that position was primarily based on Director Yuen's own testimony confirming that public input can help the Department make better decisions, and that generally if the public had more information, it could provide better information to the Department. The Leslie Count also concluded consideration of relevant statutory and