Loading...
HomeMy WebLinkAboutCOM 0760.000 1996-1998Stephen K. Yamashiro Mayor March 4, 1998 ( auu#g of'Pttfuxii 25 Aupuni Street, Room 215 • Hilo, Hawaii 967204252 • (808) 961-8211 • Fax (808) 961-6553 KONA: 75-5706 Kuakini Highway, Suite 103 • Kailua-Kona, Hawaii 96740 (808)329-5226 • Fax(808)326-5663 Honorable James Y. Arakaki, Chairman and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chairman Arakaki and Members: Planning Director Initiated Charter Amendment of the Hawaii County Charter (1991), Relating to the Planning Director. Planning Commission and Board of Appeals William G. Davis Managing Director Henry Cho Deputy Managing Director As required by Chapter 4, Sec. 5-4.3(C), Hawaii County Charter, transmitted herewith for the County Council's consideration and action is the Planning Commission's letter and enclosures regarding the above -referenced matter. Sincerely, Ophen K. a ashtro Mayor LChart0l.MAY Enclosures cc: Planning Department us. 760 Imle Me. C NA Hef. To: PC— _ �1999� R.e10 { 1',ate_ MA�._ Stephen K Yamashiro Mayor duunfV of �tt£utcii PLANNING COMMISSION 25 Aupuni Street, Room 109 • Hilo, Hawaii %720+1252 (808) %1.8288 • Fax (808) %1-9615 Honorable James Y. Arakaki, Chairman and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chairman Arakaki and Members: Planning Director Initiated Charter Amendment of the Hawaii County Charter (1991), Relating to the Planning Director. Planning Commission and Board of Appeals The Planning Commission at its meeting of February 20, 1998, voted to recommend the approval of the proposed bill to initiate a charter amendment of the Hawaii County Charter (199 1) relating to the Planning Director (Section 5-4.2), Planning Commission (Section 5-4.3) and Board of Appeals (Section 5-6.3). The purpose of the proposed bill is to provide for a more effective appeals system to reduce duplication and conflicts with state law, and to eliminate the existing conflict of the duties of the Planning Commission and the Board of Appeals. The proposed bill would also place the Board of Appeals, for administrative purposes, in the Office of the Corporation Counsel instead of the Planning Department. The Commission requested that the Council give consideration to alternative methods of solving the problem of having attorneys from the Corporation Counsel's Office representing the Planning Director/Chief Engineer, Planning Commission and Board of Appeals. The Commission felt the Board of Appeals needed to have outside counsel to make it completely independent of the County. Honorable James Y. Arakaki, Chairman and Members of the County Council Page 2 For your favorable consideration, a proposed bill to initiate the charter amendment is enclosed. We have also enclosed the staff Background Report and a copy of the hearing transcript for your information. Sincerely, Kevin M. Balog, Chairman Planning Commission Lchart0l.pc Enclosures BChart01.agk-2/1/98 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND REPORT PLANNING DIRECTOR INITIATED PROPOSED BILL TO AMEND THE CHARTER OF THE COUNTY OF HAWAII RELATING TO THE PLANNING DIRECTOR, PLANNING COMMISSION AND BOARD OF APPEALS The current structure of appeals to agency actions in the County of Hawaii is duplicative and conflicting. With the proposed amendments, a more effective appeals system can be established while preserving the right to appeal and a hearing, which is in accordance with Chapter 91, Hawaii Revised Statutes, Administrative Procedures. The amendments will eliminate the existing conflict between Section 5-4.3 of the County Charter relating to the Planning Commission and Section 5-6.3 relating to the Board of Appeals which states in part "The board shall hear and determine appeals from the actions of the planning director and planning commission." The amendments to the Charter would accomplish the following substantive changes: 1. The Planning Commission is eliminated from the variance and special exception appeals process. Because variances are, by Charter, a discretionary function decided by the Planning Director, the appeal should be made to the Board of Appeals, where an agency hearing could then be held. 2. The Board of Appeals is eliminated as the appellate body for quasi-judicial decisions made by the Planning Commission. The Charter and the County Code intend that the Planning Commission should be the final decision-making agency for certain actions. In accordance with this legislative intent, agency hearings should be held by the Planning Commission and appeals be made directly to the judicial courts. 3. In order to clearly separate the functions of the decision-making body and the appellate body, the Board of Appeals is placed for administrative purposes in the Office of the Corporation Counsel instead of the Planning Department. ATTACHYPNT TO C-7160/Bill 211 In addition, the bill makes less significant changes to clarify and reinforce the following existing practices and mandates: 1. Includes duties of the Planning Commission as those assigned by state statute. 2. Reinforces that the Planning Commission will hold public hearings on any matter upon which they must act. 3. Clarifies the kinds of matters which would be appealable from the administrative decisions of the Planning Director and the Chief Engineer. 4. Underscores the preference for Board of Appeals members to have planning and construction expertise. -2- PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT February 20, 1998 A regularly advertised public hearing on the CHARTER AMENDMENT INITIATED BY THE PLANNING DIRECTOR was called to order at 10:20 a.m. in the Kona Surf Hotel, Kamehameha Ballroom, 78-128 Ehukai Street, Keauhou, North Kona, Hawaii, with Chairman Kevin M. Balog presiding. PRESENT: Kevin M. Balog Richard Baker, Jr. Geraldine Giffin Mary Katayama Lin McIntosh Mildred Mosher James Souza Leonard Tanaka Virginia Goldstein, Planning Director Alice Kawaha, Staff Planner Royden Yamasato, Staff Planner Fred Giannini, Deputy Corporation Counsel Glenn Ahuna representing Ex -officio Member Milton Pavao Tom Pack representing Ex -officio Member Donna Kiyosaki And approximately 6 people from the public in attendance CHAIRMAN: The next item on our agenda is Planning Director initiated proposed bill to initiate a charter amendment of the Hawaii County Charter (1991), relating to the Planning Director, Planning Commission and Board of Appeals. The purpose of the proposed bill is to provide for a more effective appeals system to reduce duplication and conflicts with state law, and to eliminate the existing conflict of the duties of the Planning Commission and the Board of Appeals. The proposed bill would also place the Board of Appeals, for administrative purposes, in the Office of the Corporation Counsel instead of the Planning Department. Alice. KAWAHA: Thank you, Mr. Chairman. The proposed bill has been distributed to you and the Planning Director has recommended that a favorable consideration be given and sent to the County Council. Maybe I can go over some of the changes. The first change that we're making is under, on page 3, changes under the Planning Director section, which would be 5-4.2 (b). We just included "and other plans and amendments thereof," cause it's not, it wasn't clear that the Planning Director or the Department prepared other master plans or regional community plans. This particular one is answering, or talks about only general plan amendments so include those other plans. Going down to letter (h), we didn't make, it's just, "Be charged with the approval of variances as provided by law," and deleting the remaining portion of that sentence. And going on to page 5, and this would be under the Section 5-4.3 Planning Commission, letter (e), we're replacing that whole sentence to state, "Perform such duties ac art authorized by state statute," And letter (f) deleting the specific applications such as "any rezoning request, variance," etc., deleting that portion and replacing that "any matter upon which the Commissi n is required by law to act." Under Section 5-6.5 Board of Appeals, we have included that "The board of anneals shall establish its rules of procedure," since that wasn't stated in the charter, the present charter. I'm going to letter (a), this clarifies that the appeals, that "The board shall hear and determine appeals from final decisions of the planning director and planning commission as provided by lam. MCINTOSH: Either I have a mistake or we have an incomplete sentence in W in that after your deletion you start out with a small "I" that says, "thgchief engineer relating to al2l2roval or enforcement," I don't know what that belongs with. GOLDSTEIN: Actually, there is something missing here, too, because it should read, "au provided," "appeals from final decisions of the planning director and planning commission U provided by law, and -." MCINTOSH: And? GOLDSTEIN: "the chief engineer relating" to approvals, "to approval or enforcement procedures under ordinances and laws within their respgg.Liyre jurisdiction," So there should be -. MCINTOSH: So the period after "law" should be changed to a comma, and the word "and" should be inserted before "the chief engineer"? GOLDSTEIN: Yeah, yeah. MCINTOSH: And I'm also confused Alice, in the previous one you said you're adding the language "The board of appeals shall establish its rules of procedure" because it was in the existing Charter. So why is it underlined? KAWAHA: It is not in it. -2- z GOLDSTEIN: Not. KAWAHA: It's not in the existing Charter. And the Board has been, they didn't come up with their rules of procedures. So I just think it, what's said about Board of Appeals-. And Planning Commission, Planning Commission is a, on the Planning Commission there is a provision that the Commission shall establish its rules of procedure. And so this is just consistent -. MCINTOSH: Okay. KAWAHA: And then letter (W, we're replacing the first portion with "The board shall conduct hearings in accordance with the State Administrative Procedures Act." Under letter W, we're deleting the portion ", although such background or expertise is not a prerequisite for membership." MCINTOSH: Why? KAWAHA: Planning, Planning Director? GIANNINI: For clarification purposes, could someone read the entirety of paragraph (a) in Section 4, the change in 5-6.3, so that it will be on the record as exactly what paragraph, how exactly paragraph W should read. KAWAHA: Okay. So under Section 5-6.3, Board of Appeals, letter (aL it should read "The board shall hear and determine appeals from final decisions of the planning director and planning commission as provided by law and the chief engineer relating to approval or enforcement procedures under ordinances and laws within their respective Jurisdiction " GOLDSTEIN: Then with respect to your question, Commissioner McIntosh, it's just that the wording as it is, "Whenever possible, persons with a background or expertise in broad areas of planning and construction shall be given preference" for the "for appointment to the board," I think that's enough to say that, you know, it's only a preference, but not necessarily a mandate. MCINTOSH: The language must be there for a reason. I'm just wondering if the reason it was added was because someone was challenged at some point because -. GIFFIN: They didn't have it. MCINTOSH: They didn't have that background. GOLDSTEIN: Pardon me? -3- MCINTOSH: Oh, we should have only one meeting going on at a time now. No, I said the language is there for a reason. I'm wondering if the language that they have broad expertise in planning and construction, if someone doesn't have that if they were challenged at some point in the past and that's the reason the exemption that it's not a requirement was put in. I mean having served on the Board of Appeals, I would almost prefer that it was a mandate. But I'm just questioning why it's being, was it ever not there before, I guess, is my question. GOLDSTEIN: No, it's not been the case, so it's never not MCINTOSH: Always been there? GOLDSTEIN: It has been there, yeah. I mean, if you feel, you don't feel comfortable about deleting that portion, you know, I wouldn't have problems. TANAKA: Mr. Chairman, I've got a question also regarding that. Is this statement or is this requirement also a requirement of the Planning Commission, I mean, Planning Director? GOLDSTEIN: No. TANAKA: Any reason why you would insert something -? GOLDSTEIN- - Well, there's, there's, the Planning Director, there is a provision that he must have at least five years experience in planning so that it's clear with the Director. But with the Commission, no. The Commission in that sense represents the broad spectrum of "the community and/or society." But in this case with the Board of Appeals, much of the appeals come in the form of technical appeals like, for example, the Building Code; and there we feel that some expertise would help, at least understand what the appeal is all about. TANAKA- I just thought that with the issues we're all facing it's good to have a diverse group from all walks of industry in life, some background in those areas would be good, too. BALOG: No other changes, Alice? GOLDSTEIN: Wait, wait. So then, excuse me, Commissioner Tanaka, then you would prefer to leaving this, the other statement that says "although such background or expertise is not a prerequisite?" You would prefer that? TANAKA: The Board of Appeals, I think as you said, you know, whenever possible. And I thought, I realize that, you know, we are volunteers so you try and get the people with that kind of background onto the Board, it's not always possible. Maybe by having it a prerequisite, I don't know. You know, speaking for a contractor, you know, everybody asks me, what five years? You know, I was just meeting with some contractors this morning, the reason why I was lie late. So I think it would be hard to mandate that. But I just question why something wasn't inserted for the Planning Commission, but that's a whole different matter. GOLDSTEIN: Okay. BALOG: Commissioner Souza. SOUZA: Getting away from the discussion, I'd like to have a better explanation under Section 2, subsection (h). It says, "Be charged with the approval of variances as provided by law [, but if any objections are made in writing to the director, the director's actions shall be subject to review by the planning commission according to law. If the said request is denied by the director, the applicant may appeal such denial to the planning commission]." And the proposal as I understand it is to eliminate that. Why is that? GOLDSTEIN: Because then the appeal of the Director would go, on variances, would go directly to the Board of Appeals. See, right now any appeal first goes to the Commission but, and then it can also, the Commission's action is appealable to the Board of Appeals. So if we just eliminate the Commission's role in this it goes directly to the Board. GIANNINI: I think that the purpose behind it is just streamlining to make things more reasonable. Like I think it was assumed that it doesn't really make a lot of sense to have some, some places, to have some decisions have an appeal process that goes from the Director to the Planning Commission to the Board of Appeals up to Court and some go like say Planning Commission, then some go maybe just directly to Board of Appeals and then to Court or something; and so they wanted to have it a more streamlined and consistent structure. SOUZA: Thank you. And I, now with that explanation I agree with that. One other question while I have the microphone, it says here that the recommendation is that the administrative, the Board shall be part of the Office of Corporation Counsel for administrative purposes. Is this agreed on? I mean have we got, are we in agreement between the Planning Commission and the Corporation Counsel's office that this is the right track to do? GOLDSTEN: We had discussions both with the Department of Public Works as well as Corporation Counsel because the Board, you know, is involved not only with planning matters but public works' matters right now and they are in agreement. SOUZA: Thank you. BALOG: Commissioner McIntosh. MCINTOSH: Alice isn't finished yet. BALOG: Alice. -5- KAWAHA: If there's, I have a couple more amendments to make; and that would be on the first and second pages, just for clarification on some of these. The first page, Section 1, we're changing the wording "government requirements" to "agency action." So it would read, "The current structure of appeals to agency action in the County of Hawaii is duplicative and conflicting." Going down on the fifth line where it begins "The amendments shall eliminate," we're just adding the word "and", which would read, "and" after the words, "County Charter." So that sentence would read, ""The amendments will eliminate the existing conflict with Section 5-6.3 of the County Charter -." GOLDSTEIN: And. MCINTOSH: And? BALOG: Okay, so what are we supposed to do with that sentence? KAWAHA: Oh, I'm sorry. It's supposed to read, okay, "The amendments will eliminate the existing conflict with Section 5-4.3 and Section 5-6.3 of the County Charter relating to the Planning Commission and Board of Appeals," and then, "which states in part," etc. It's just to make it clear that the proposed amendments would be referring to both to the Planning Commission and Board of Appeals. And going down further to number "1," the second sentence, "Because variances are, by Charter, a discretion -." GIANNINI: Discretionary function. KAWAHA: Discretionary action. MOSHER: Action? GIANNINI: Function. KAWAHA: Okay, we're deleting the words, "a discretionary function," and replacing it with the words "a discretion action decided by the Planning Director." MCINTOSH: Discretionary action. BALOG: Discretionary, huh? GOLDSTEIN: Discretionary action. 0 KAWAHA: "Decided by the Planning Director, the appeal should be made to the Board of Appeals, where an agency hearing could then be held." And on page 2, the sentence reading, "In accordance," we're inserting couple of words in that sentence. So it would read, "In accordance with this legislative intent, agency hearings pursuant to Chapter 91 should be held by the Planning Commission and appeals be made directly to the judicial courts." MOSHER: Chapter 91? KAWAHA: Chapter 91. GIANNINI: Wait, wait, wait. BALOG: Try again, try read it again. KAWAHA: "In accordance with this legislative intent, agency hearings pursuant to Chapter 91 should be held by the Planning Commission and appeals be made directly to the judicial courts." BALOG: Okay. MCINTOSH: Try one more time. Read it one more time. I just found something. KAWAHA: "In accordance with this legislative intent, agency hearings pursuant to Chapter 91 should be held by the Planning Commission and appeals be made directly to the judicial courts." MCINTOSH: Are agency hearings, excuse me, are agency hearings held, should be agency hearings held pursuant to Chapter 91? Are the, is it agency hearings that are held pursuant to Chapter 91 or should be held by the Planning Commission pursuant to Chapter 91? I mean Chapter 91 just sets out the rules under which hearings, the process will be conducted. So they, they don't require that public hearings be held do they or they do? GOLDSTEIN: They do. GIANNINL I think what they, I think what this is meant to say is that these have to comply with Chapter 91 so that the Planning Commission hearings will be contested case hearings and therefore appealable to court. It just wants to clarify that. That's why it's saying it has to be held pursuant to Chapter 91, MCINTOSH: Oh, so, maybe I put held "pursuant to Chapter 91" in the wrong place. It should be, "In accordance with this legislative intent, agency hearings should be held by the -7- Planning Commission pursuant to Chapter 91 "? Or is it "In accordance with this legislative intent, agency hearings held pursuant to Chapter 91 should be held by the Planning Commission?" GOLDSTEIN: It doesn't matter to me. MCINTOSH: Is it the same? GIANNINI: I really don't know if it matters that much -. MCINTOSH: Okay. GIANNINI: Where the placement of the phrase is. We just want to make sure that the hearing that's held by the Planning Commission will be pursuant to 91 so that there will not be a defect when it's appealed to court. BALOG: Okay. KAWAHA: And one more, just enter on page 7 to add the "Date of 3rd Reading." which requires three readings with the Council. BALOG: Commissioner McIntosh? MCINTOSH: I can understand the Director wanting to get the paper out of her office but I'm not sure I agree with the solution. Frankly, I don't think the solution for the Board of Appeals lies within the County. I have often felt, and I did while I was serving on the Board of Appeals, that the Board of the Appeals is the one body that needs totally independent counsel. I was always uncomfortable with the fact that I had Corporation Counsel representing the Planning Department, and Corporation Counsel representing the Department of Public Works, and the Corporation Counsel representing the Board of Appeals. And I know there's such things as Chinese fire walls, etc. etc., but I really feel that there needs to be another solution at least talked about. Because in many instances even people on the Board of Appeals for the first year or so are unfamiliar with the process and rely heavily on their legal advice. And they're, the whole office of the Corporation Counsel by definition represents the County of Hawaii so, in effect, the Planning Director, represents the County of Hawaii, so does the Director of Public Works; and so all three of those bodies represent the County. And the Department of Public, the Board of Appeals is suppose to represent the people, so to speak. They're the final, the court of final appeal, so to speak. And I really feel that they need totally independent counsel, whether it's on a contract basis, on an annual basis, or for several years or whatever. I just think there needs to be a lot more independence. GOLDSTEIN: Where would you house the Board of Appeals to give them that kind of independence? Because I think part of the problem here is that it wasn't so much to get rid of paper but rather that we also sometimes feel in a conflicting position where the appeals are on 9:2 actions that the Planning Director makes and yet the body is, that's hearing the appeals is also in the same department. I have to spilt staff in the same way I think that Corporation Counsel would need to split their staff so that it's clear who represents essentially the Board and who represents the Director and/or the Commission. So we talked about Corporation Counsel as perhaps as neutral a body could be the agency which would house the Board of Appeals. Now although the Corporation Counsel Wurdeman has agreed to this, I know that there has been internal discussion on that the same kind of conflict though will arise within the Department. So the question is so where do we house the Board then? MCINTOSH: I would take it out of the County Building totally. GOLDSTEIN: No, no, but that's -. MCINTOSH: I would take the whole process out of the County Building and then hire independent counsel to process the paper if that's what it takes and to be totally independent. Because whenever an action of the Board of Appeals goes to court, you have one member of the Corporation Counsel arguing in favor of the Board of Appeals, and then you have Fred Giannini arguing for the Planning Commission, and then you may have someone else representing the Department of Public Works arguing yet another standpoint. So here you have, and we have a situation like that right now where the Board of Appeals overturned an action of the Planning Commission, it has been appealed to the court, and so now we have the County in effect suing itself. GOLDSTEIN: That's right. MCINTOSH: And so I think that the resolution of this issue is not going to be solved by moving the paper from, or the function. I mean you and I have talked about this for years that it really, some serious consideration needs to be given to maybe taking it out of the County Building totally so that the Board of Appeals has its own independent counsel, and maybe that independent counsel then processes the paper. I think this issue needs a lot more discussion before I'm comfortable making a recommendation to the County Council. And I also want to clarify that the issues that you talked about quasi-judicial, you're talking about special permits, for instance, that we issue, and the interpretation has been that those can be appealed to the Board of Appeals and then to Third Circuit Court. You're clarifying that so that the Board of Appeals is taken out of those processes -. GIANNINI: Right. MCINTOSH: Totally and it goes directly to Third Circuit Court. GIANNINI: So which means that any, that will get to the situation of any of the permits, by quasi-judicial action we mean like special management area permits, use permits, special permits under 15 acres, shoreline setback variances and any of those would no longer, 510 n right now only, I guess, SMAs, shoreline setbacks and special permits go directly to court. The rest, use permits, I guess use permits are the only ones that go to the Board of Appeals. But now everything, all of those permits would go to, would go directly to court, which would mean now that we would be holding contested case hearings on use permits in addition to special permits, shoreline setback variances and SMAS. MCINTOSH: Okay. Then you have to balance that with the cost of going to court as opposed of going to the Board of Appeals. It does clean up the process and I don't disagree with it. But I also want to clarify that when you say variance and special exception appeals process, that means if you grant a variance and someone wants to appeal it, it goes directly to the Board of Appeals. It doesn't come to the Planning Commission first. Now the streamlining process I agree with, having served on the Board of Appeals for a couple of years. But I really think we need to look at an alternative solution for the legal counsel situation. GIANNINI: Okay. That would be, that would be something that could be brought up to the Council when this goes up. And, also, well, and another reminder is that as you were saying of having the whole thing taken out of the County government I would just, just as a warning, that would involve both privatization and procurement questions which I don't want to get into. MCINTOSH: We're going to get that walk out, we're going to get that walk out. TANAKA: Mr. Chairman, along those lines of discussion, what would it take to have all the appeals whether it's, from the Planning Commission which can be eliminated, majority of, or the Planning Director, go straight to a judicial body, all of them? So it would be eliminating the body in its entirety. And as far as the cost that Commissioner McIntosh, I mean, the attorneys appear in court anyway, right? So what do we do, reduce some of that? GIANNINI: Well, the problem of, with eliminating the Board of Appeals, what it would mean is that in order for something to go to the court it would mean that every single decision made by the Planning Director would have to be done in the opportunity for a full contested case, and then appealed. GOLDSTEIN: And then the items that could be appealed, the items that goes to the Chief Engineer and the Planning Director, those kinds of actions sometimes involve real specific Code provisions that it would be far easier for a citizen to go and appeal before the Board of Appeals, rather than to go directly to court over a matter that we maybe, yeah, would be better served, the public would be better served, I think. SOUZA: Mr. Chairman? BALOG: Commissioner Souza. SOUZA: While what Commissioner McIntosh suggests may be the ideal situation, you know, then we're not thinking about cost. That's another thing. And how do you, what do we have to do to take it out of the government and make it separate, like County Charter or -? To me, what we're doing today, while might not be the perfect solution, I think it's a step in the right direction. That's improvement. And we, my recommendation is that we go ahead and, witl this recommendation and see how it works. And I agree that the perfect, the perfect solution is what Commissioner McIntosh speaks; but to do it now I think is not the right timing. And I would certainly like to see it go under the Corporation Counsel Office and see what kind of, how that thing works over there. BALOG: Thank you. Is there anyone in the public who'd like to testify on this agenda item? TANAKA: Move to close. BAKER: Second. BALOG: There's a motion by Commissioner Tanaka and a second by Commissioner Baker to close the public hearing. All those in favor? COMMISSIONERS: Aye. BALOG: Oppose? Motion carries. Commissioner Tanaka. TANAKA: Mr. Chairman, I would make a motion that we send a favorable recommendation to the County Council in accepting the proposal by the Planning Director to amend the Charter of the County of Hawaii relating to Planning Director, Planning Commission and Board of Appeals as proposed and also with a recommendation that the County Council review the possibilities of further improving the system. BAKER: I second. BALOG: There's motion by Commissioner Tanaka and a second by Commissioner Baker to send a favorable recommendation on the proposed bill to amend the Charter of the County of Hawaii relating to Planning Director, Planning Commission and Board of Appeals with the changes proposed by staff and the recommendation by Commissioner Tanaka that the County Council further look at improving the system and giving the Board of Appeals more independence. Discussion. Commissioner Souza? SOUZA: I disagree with the last statement of giving the Council, that's open ended statement. They can take that whatever, they can twist that statement any way they want; and, to me, I feel that we should send a solid recommendation. If, and I agree that if like Commissioner McIntosh said and Commissioner Tanaka said there's room for improvements then let's work on -11- that room for improvements, discuss that, and send a solid recommendation to the County Council instead of leaving and sending a recommendation with an open ended statement. TANAKA: I can agree somewhat to that statement, Commissioner Souza. But as you know with all recommendations that go up to the County Council, they'll have their own discussions anyway, they'll have three readings on this. They might still twist and turn this thing regardless of our recommendation. My only intent in that is to follow along the lines with Commissioner McIntosh's feeling in that we don't know what the exact solution is at this time, and I think you stated this is a step in the right direction, that it needs some further fine tuning. But the fine tuning right now I think we wouldn't be able to do it. I don't think we would be able to reach a consensus today. So my only recommendation is that they look into that. I'm sure that when this proposal or recommendation goes up to the full Council they'll have the minutes of the meeting, they will see our concerns, and with the three readings they have to go through they will have a little more time than we have to, hopefully, improve it. GOLDSTEIN: May I make one more comment on this. This is a bill which proposes an amendment to the Charter and so that ultimately this is a question that will be decided by the, all voters. It needs to go to and be placed on the ballot for confirmation or whatever. So I think it's a good time to start the discussion for some of these changes that are necessary. MCINTOSH: Mr. Chairman, then I'd ask Commissioner Tanaka to be more specific when you ask them to, in your recommendation to look at further streamlining because since this is a Charter amendment it is going to have to go out on the ballot any way. If we think there's a better way to solve the problem, I would ask that we include that solution in our recommendation and then take the argument to the Council. This issue went to the Council two years ago, last year? GOLDSTEIN: Last year. MCINTOSH: Yeah, and didn't get passed the Council because there were concerns. But it didn't include leaving it to Corp. Counsel did it or didn't -? GOLDSTEIN: It did. MCINTOSH: Is the same, this is the same -? GOLDSTEIN: It's the same bill. This is the same bill. MCINTOSH: Okay. So it didn't get past the Council a year ago because it was, they wanted the people's court, so to speak. I think if we retained the people's court and give, offer a solution that also give the people's court more independence, and, yes, we can take that argument to the Council and I think we should. I would just ask you to be a little bit more specific in your motion as to what you mean by more independence. So whatever you said. spa TANAKA: Okay. Perhaps Commissioner McIntosh I was just referring to some of the suggestions that you had. In taking part of that out of the County it would mean privatization so forth. MCINTOSH: Okay. TANAKA- So I mean if I can use your wording that you had used in your earlier discussions. MCINTOSH: Okay, thank you. TANAKA- So I would give the floor or defer to you if you have any comments regarding that because I didn't take any notes but I was leaning along those lines. MCINTOSH: Well, I would just suggest when, what was the language Kevin? You usually write these things down because you repeat them when you make the motion, and you actually added something that said -. BALOG: I didn't this time because he left out the specific on the -. MCINTOSH: You added a specific when you repeated the motion. I just think if we're going to say we're going to send a favorable recommendation with the request from the Planning Commission that the Council give consideration to alternative methods of solving the problem such as offering private counsel to the Board of Appeals to make it completely independent of the County. GIANNINI: Instead, could I just make a correction. Instead of saying private counsel say outside counsel. GOLDSTEIN: Outside. MCINTOSH: That's fine. Did you get it that time? BALOG: I didn't write it down. Is there a second to that? SOUZA: I second that motion, Mr. Chairman. I agree that we should be specific. I'm not against the -. BALOG: There's a motion. GIANNINI: There's already a motion. KATAYAMA: There's a motion on the floor. Is that an amendment? -13- BALOG: That's an amendment -. TANAKA: That's an amendment to the motion. BALOG: That was already agreed to. So we need a, who seconded the motion originally? TANAKA: The original motion? BAKER: I did. GOLDSTEIN: Baker. Baker did. BALOG: So you accept that amendment, too? BAKER: Yes, I do. BAKER: That's part of your second, okay. Any other discussion? Roll call. KAWAHA: Commissioner Tanaka? TANAKA: Aye. KAWAHA: Commissioner Baker? BAKER: Aye. KAWAHA: Commissioner Giffin? GIFFIN: Aye. KAWAHA: Commissioner Katayama? KATAYAMA: Aye. KAWAHA: Commissioner McIntosh? MCINTOSH: Aye. KAWAHA: Commissioner Mosher? MOSHER: Aye. -14- KAWAHA: Commissioner Souza? SOUZA: Aye. KAWAHA: Chairman Balog? BALOG: Aye. KAWAHA: Chairman, eight ayes, motion carries. The discussion ended at 10:57 a.m. -15- Respectfully submitted, Sharon M. Nomura, Secretary I .. 1 1 COUNTY OF HAWAJ .. ;STATE ORDINANCE NO. gS 83 OF HAWAII BILL NO. 211 (Draft 6) AN ORDINANCE TO INITIATE A CHARTER AMENDMENT OF THE HAWAII COUNTY CHARTER (1991), RELATING TO THE PLANNING DIRECTOR, PLANNING COMMISSION AND BOARD OF APPEALS. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Intent and Purpose. The current structure of appeals to agency actions in the County of Hawaii is duplicative and conflicting. The proposed amendments will establish a more effective appeals system while preserving the right to appeal and a hearing under Chapter 91, Hawaii Revised Statutes, Administrative Procedures. These amendments will eliminate the existing conflict with Section 5-4.3 and Section 5-6.3 of the County Charter relating to the Planning Commission and the Board of Appeals. The amendments to the Charter would accomplish the following substantive changes: 1. The Planning Commission is eliminated from the appeals process. 2. The Planning Commission membership will be representative of each council district. 3. The Board of Appeals will hear and determine appeals from final decisions of the Planning director and the chief engineer regarding matters within their respective jurisdictions. No appeals from the Planning Commission will be heard by the Board of Appeals. In addition, the bill makes less significant changes to clarify and reinforce the following existing practices and mandates: 1. Includes duties of the Planning Commission as those assigned pursuant to law. 2. Reinforces that the Planning Commission will hold public hearings on any matter upon which it must act. 3. Clarifies the kinds of matters which would be appealable from the administrative decisions of the Planning Director and the Chief Engineer. 4. Conforms and simplifies the language to make it consistent with other sections of the charter. SECTION 2. Section 5-4.2 of the Hawaii County Charter (1991), relating to the Planning Director, is amended to read as follows: "Section 54.2. Planning Director. The planning director shall be appointed by the mayor, confirmed by the council and may be removed by the mayor. The director shall be the chief planning officer of the county and the administrative head of the department and shall: (a) [Serve as the chief planning officer -of the county and the technical advisor to] Advise the mayor, planning commission, and council on all planning and [related] land use matters. (b) Prepare a general plan [and amendments thereto to guide the development of the county district or districts], implementation plans, and any amendments thereto in accordance with Section 3-15. (c) Prepare proposed zoning and subdivision ordinances, zoning maps and regulations and any amendments [or modifications] thereto. (d) Review the lists of proposed capital improvements contemplated by I agencies [and executive agencies] of the county and recommend the order of their priority. (e) [Be charged with the administration of] Administer the subdivision and zoning ordinances and regulations adopted thereunder. (f) [Be charged with the approval of] Render decisions on proposed subdivision plans [which are in conformity with the subdivision ordinance and regulations.] pursuant to law. (g) [Receive, process, and recommend to the planning commission appropriate action regarding] Make recommendations on rezoning applications, special exceptions, and other similar requests. (h) [Be charged with the approval of variances as provided by law, but if any objections are made in writing to the director, the director's actions shall be subject to review by the planning commission according to law. If the said request is denied by the director, the applicant may appeal such denial to the planning commission.] Render decisions on proposed variances pursuant to law, except that, if any written obiections are made to the planning director's actions under this section, said actions shall be subject to review by the Board of Appeals in accordance with Section 5-6.3, unless otherwise provided by law or this charter. (i) [Exercise all the powers and perform all the duties of the planning director and the administrator of the commission as authorized by law or ordinance and exercise such other powers and perform such other duties as shall be required or delegated by the mayor, planning commission, or council.] Perform such other related -3- duties and functions as may be necessary or required pursuant to law and this charter." SECTION 3. Section 5-4.3 of the Hawaii County Charter (1991), relating to the Planning Commission, is amended to read as follows: "Section 54.3. Planning Commission. The planning commission shall consist of nine members, one from each council district, who shall be appointed by the mayor and confirmed by the council in the manner prescribed in Section 13-4. [Commission membership shall be representative of the community and of the county geographical areas of Puna, Ka'u, Kona, Kohala, Hamakua, and Hilo.] Each member shall be a leeal resident and registered voter of the district which the member represents. In addition, the chief engineer of the county and the manager of the department of water supply,, or their designated representatives, shall serve as ex -officio members of the commission without power to vote. The commission shall establish its rules of procedure and shall: (a) Advise the mayor, council and the planning director [in matters concerning] on planning [programs] and land use matters pursuant to law and this charter. (b) Review the general plan, its amendments and other plans and modifications thereof and transmit such plans with recommendations thereon through the mayor to the council for consideration and action. [The commission shall recommend approval, in whole or in part, with or without modifications, or rejection of such plans.] (c) Review proposed subdivision and zoning ordinances and amendments -4- thereto [drafted by the director] and transmit such ordinances with recommendations thereon through the mayor to the council for consideration and action. [The commission shall recommend approval, in whole or in part, with or without modifications, or rejection of such ordinances.] [(d) Adopt rules and regulations having the force and effect of law pursuant to the subdivision and zoning ordinances. (e) Hear and determine appeals requesting variances or other exceptions from the subdivision and zoning ordinances where, due to special conditions, a literal enforcement of the provisions of the ordinances will result in unnecessary hardship and the granting of the variances or other exceptions will not be contrary to the public interest.] [(f)]Q Mold] Conduct public hearings [whenever necessary and] in every case prior to action on any [rezoning request, variance, special exception, or other related applications.] matter upon which the commission is required by law or this charter to act. Notice of the time and place of the hearing shall be published at least ten days prior to such hearing in at least two daily newspapers of general circulation in the county. Le I Perform such other related duties and functions as may be necessary or required pursuant to law and this charter." SECTION 4. Section 5-6.3 of the Hawaii County Charter (1991), relating to the Board of Appeals, is amended to read as follows: -5- It "Section 5-6.3. Board of Appeals. The board of appeals shall consist of seven members who shall be appointed by the mayor and confirmed by the council in the manner prescribed in Section 13-4. Each member shall be a legal resident and a reeistered voter of the County. [The board shall hear and determine all appeals from the actions of the planning director and planning commission. In addition, the board shall hear and determine appeals from the actions of the chief engineer or the chief engineer's staff regarding the enforcement of the building, plumbing, and electrical code and laws. All hearings shall be conducted according to the State Administrative Procedures Act. Whenever possible, persons with a background or expertise in broad areas of planning and construction shall be given preference for appointment to the board, although such background or expertise is not a prerequisite for membership. The board shall be part of the planning department for administrative purposes and the said department shall provide necessary clerical and other assistance.] Board membership shall be reRresentative of the community, and whenever possible, persons with background or expertise in broad areas of planning and construction shall be given preference although such knowledge is not a prerequisite for membership. The board of appeals shall establish its rules of procedure and shall: (a) Hear and determine appeals from final decisions of the planning director or the chief engineer regarding matters within their respective jurisdictions. Conduct hearings in accordance with Chapter 91, Hawaii Revised Statutes, and this charter. (c) Be part of the planning department.for administrative purposes. and said department shall provide necessary clerical and other assistance." -6- t SECTION 5. Members of the Board and Commission holding office at the effective date of this amendment shall continue in office until their current terms expire, except that any member who fails to qualify as a legal resident and a registered voter in accordance with this amendment shall be removed and replaced in accordance with this charter. SECTION 6. Material to be deleted is bracketed. New material is underscored. In printing this ordinance, the brackets, bracketed material, and underscoring need not be included. SECTION 7. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared to be severable. SECTION 8. Upon adoption of this ordinance, the council, by appropriate resolution, shall provide that this proposed amendment be submitted to the electors of the county for approval at the next general election. SECTION 9. The charter amendment proposed in this ordinance shall take effect 120 days after its approval by a majority of voters in the 1998 General election. Hilo, Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Date of 3rd Reading: Effective Date: May 6, 1998 June 1, 1998 June 16, 1998 July 15, 1998 March 3, 1999 INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII APPROVED AS TO FORM AND LEGALITY: CORPORATION COUNSEL DATE: -7- OFFICE OF THE COUNTY CLERK County of Hawaii Hilo—, Hawaii Introduced Bv: Bobby Jean Leithead-Todd p May 6, 1998 First Reading, June 1, 1998 - .Dr. Published: N/A REMARKS: 05/06/98 - Deferred ,Second Reading: l June 16, 1998 f To Flavor: N/A Returned: N/A Effective: N/A Published: jq/A REMARKS: HST ---- `-' C � C- -76C.5) t nParr I 1 tnuaFr a) ROLL CALL VOTE AYES NOES ABS EX Arakaki X Chung X I Leithead-Todd X Ray X Reynolds X Santangelo X Smith X Tyler X Yagong X 8 0 1—T-0 tnuaFr a) I DO HEREBY CERTIFY that the foregoing BILL was adopted by the Counrr Council and htthlished rrs indicated above. Approved/Disapproved this dar a _. i 9 COUNCIL CHAIRfAN ZZ COUa'TY CLERK t1.?;;�R ('n UN7'Y(iFN11t'.�II Bil!No.: 211 (Draft 6) Reference. C-760..02//PC-105 v� Ord. No.: 0 83 - -- ROLL CALL VOTE AYES NOES ! ABS � EX � Arakaki X I Chung x1 Leithead-Todd X I I Ray X I Reynolds X Santangelo X I Smith Tyler X I Yagon€ i X I8 01 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the Counrr Council and htthlished rrs indicated above. Approved/Disapproved this dar a _. i 9 COUNCIL CHAIRfAN ZZ COUa'TY CLERK t1.?;;�R ('n UN7'Y(iFN11t'.�II Bil!No.: 211 (Draft 6) Reference. C-760..02//PC-105 v� Ord. No.: 0 83 - -- OFFICE OF THE COUNTY CLERY County of Hawaii r, Hilo , Hawaii Introduced By: Date Introduced: First Reading: Published: REMARKS: Third Reading: July 15 1998 To Mayor: July 21, 1998 Returned: July 24 1998 Effective: March 3. 1999 Published: August 2, 1998 REMARKS: 07/01/98 - Deferred ROLL CALL VOTE AYES NOES AB EX Arakaki Chun y Leithead-Todd Ray Reynolds Santangelo Smith Tyler Ya ( DRAFT 6 ) I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. AS 7 --�- * CN COUNSC: Y C' . `i Approvd/ dribs -2_day COUNCIL CHAIRMAN Of 19 �` L I COUNTY CLERK i UN. OF HAWAII Bill No.: _ 211 (Draft 5 ) Refercnce: C-760/PC- 105 Ord. No.: __ __ ROLL CALL VOTE AYES NOES ABS EX Arakaki x Chung x Lei thead-Todd Ray Reynolds x Santangelo X Smith X I Tyler X Yagong X 7 0 2 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. AS 7 --�- * CN COUNSC: Y C' . `i Approvd/ dribs -2_day COUNCIL CHAIRMAN Of 19 �` L I COUNTY CLERK i UN. OF HAWAII Bill No.: _ 211 (Draft 5 ) Refercnce: C-760/PC- 105 Ord. No.: __ __