REP PC 082 04/08/2008 2006-2008 - Laserfiche WebLink

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Communication 998 Bill 237 Page 5 of 6 original property owner was granted its rezoning with conditions which it accepted and was to have their Final Subdivision Approval within five years or get an extension, none of which was done. She also noted that when applicant purchased the property, it had three years left of the five-year period and there are even letters on file from Consultant Fuke acknowledging awareness of the deadline. Not only did they not come in within the first five years, but also the next five years, and thus, for 10 years nothing happened. Applicant has also failed to submit annual reports on time and so this disregard of responsibility continued. Ms. Self stated that this situation is far different from a proposal discussed earlier today because that applicant didn't wait 10 years before taking action to pursue his subdivision, and was actually working on the project and made efforts to comply, unlike this applicant. Ms. Self concluded that this is a legislative act which this body has full authority and whether or not the proposal constitutes a "taking" is something a court must decide. Councilmember Ikeda expressed concern that on a prior rezoning in his district he asked for a downzoning and was advised by Director Yuen it could not be done because that would constitute a "taking." Now, Mr. Ikeda said he finds the Director's proposed downzoning is not a "taking" and felt that the Director was saying one thing and doing another. Director Yuen stated that if a subdivision already received a tentative subdivision approval, it reached a point in the process wherein the project was vested and therefore decisions regarding downzoning really depends on the facts of the situation as to whether the project is at a point where it's entitlements cannot change because the project is already vested. Mr. Yuen stated that the project before the Council is clearly not vested, because it needs a time extension from the Council to go ahead, and doesn't even have a "tentative" much less a "final" subdivision approval. Mr. Ikeda noted his non-support because he felt the Director was not consistent in his advice regarding the "taking" issue. Councilmember Yoshimoto stated that after review of the documents, his perspective is that there's obviously differing opinions, and requested for a legal opinion to address concerns raised by Mr. Lim and Mr. Yuen to get a better sense of certainty as to what the law is or a likely outcome, which would really help with his decision-making process. Councilmember Higa's concern was whether the period for the applicant to request an extension had expired and Director Yuen confirmed it had expired. Director Yuen further explained that the Ordinance passed in June 1997 and the applicant had five years, or until June 2002 for a potential administrative time extension to June 2007, but actually never requested it, and that ran out too. Mr. Yuen stated that applicant's bill requesting a time extension is still at the Planning Commission by its own decision to keep it there, and that the rezoning ordinance would not automatically revert to the original zoning when the request period for an extension ran out. Mr. Higa stated that he felt a cleaner way to handle this situation was to come forward with a time extension instead of involving the Council in a "takings' issue. Councilmember Jacobson expressed his dislike about rewarding an applicant who hasn't done its due diligence, and that investors should take a look at their management group and go after the people who didn't do their job. He said he is in full support of this incredibly sensitive area and that it was the duty of the Council to protect the environment and its people. PC Report No. 82'