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Home My WebLink About2019-06-20 Leeward Exh B (Amend Kona CDP) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JUNE 20, 2019 A regularly advertised hearing on the PLANNING DIRECTOR INITIATED AMENDMENTS TO THE KONA COMMUNITY DEVELOPMENT PLAN was called to order at 11:01 a.m. in the West Hawai‘i Civic Center, Community Center, Building G, 74-5044 Ane Keohokālole Highway, Kailua-Kona, Hawai‘i, with Chairman Keith F. Unger presiding. COMMISSIONERS PRESENT: Keith F. Unger, Nancy Carr Smith, Scott Church, Perry Kealoha, Michael Vitousek and Sonny Shimaoka (until 12:33 p.m.) ABSENT AND EXCUSED: Faith “Faye” Yates ALSO PRESENT: Malia Hall, Esq. (Counsel for the Commission), Duane Kanuha (Deputy Planning Director), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), Christian Kay (Planner) and Noriko Sauer (Commission Secretary) And approximately 20 people from the public in attendance. PLANNING DIRECTOR INITIATED AMENDMENTS TO THE KONA COMMUNITY DEVELOPMENT PLAN Ordinance amending the Kona Community Development Plan, as adopted by Ordinance No. 08-131 relating to language that has hindered development in specific locations, and language that commits the County to actions or performances beyond the authority or scope of the Plan. These amendments arise from the Missler Case (No. CAAP-13-0002347) and its findings about the Plan’s mandatory language. UNGER: Agenda Item No. 3, “Planning Director initiated amendments to the Kona Community Development Plan, ordinance amending the Kona Community Development Plan, as adopted by Ordinance No. 08-131 relating to language that has hindered development in specific locations, and language that commits the County to actions or performances beyond the authority or scope of the Plan. These amendments arise from the Missler Case, No. CAAP-13-0002347, and its findings about the Plan’s mandatory language.” We have additional Planning Department staff that I’d like to introduce, to help us with this presentation: Bethany Morrison, Kamuela Plunkett and Heather Bartlett, also assisting them will be Deputy Corporate Counselor Robert \[Ronald\] Kim. You can begin your presentation. PLUNKETT: Uh \[checking his microphone\]— UNGER: Okay, continue, please. 1 EXHIBIT B PLUNKETT: Aloha and good morning, Commission. My name is Kamuela Plunkett, and sitting to my left is Ron Kim who is corp. counsel for Planning. To begin, I’d also like to thank our Action Committee, the Action Committee of the Kona Community Development Plan, and they are here at a number meeting quorum. And, so, we have agendized this as a meeting for them to be here, to be in compliance with Sunshine Law. And I’d just like to read their names, if that’s all right. UNGER: Great, thank you. And, pardon me, I know you wanted me to mention that, so, good, continue. PLUNKETT: So in attendance from the Kona CDP Action Committee is Shirley David, Shane Akoni Palacat-Nelsen, Hiram Rivera, David Huerta, Franz Weber and Janice Palma-Glennie. And for— UNGER: Great, welcome. PLUNKETT: Yes, and for the record it has been agendized and they have had proper notice, as well as the public, so. With that being said, I’m going to run through the presentation, which gives you folks a brief overview of the whole process and the reason for this amendment package. So, “Background and Process for Amending the Kona Community Development Plan.” Just to give you an overview, this presentation will contain a quick background, how the amendments were initiated, our plan of scope that the Planning Department developed after the first initial amendments happen, some of the challenges and the processes that we went through to create this package. We’ll give you a quick example of some of the amendments, and we’ll review some of the steps to get Action Committee and other approvals along the way. And we will end with a timeline, estimated timeline, for en route to the adoption. So, with that, let’s begin. So, as you heard in the introduction, these amendments were, are needed per issues that arose in the Missler case and the determination from the Intermediate Court of Appeals that upheld that the Director needed to enforce this document as, as a rule of law. In doing so some of the policies, being that they were inconsistent with County Code or Administrative Rules, create legal liabilities for the County. And then, also, some of the concurrency issues dealing with concurrent infrastructure put a high financial demand on developers, which in essence has stalled the implementation of the Plan in certain areas. So that’s just a quick background of the major reasons why these amendments were initiated. Post Missler case, the first round of amendments came in from the Mayor’s Office, and as you can see, that was a communication in 2017. Most of these amendments dealt with the “shall”s and the “should”s, so, talking about the language that was read in the introduction. One way to alleviate the legality in this first round of editing was to address the “shall”s and determine if some of them should be changed to “should.” So, after the Mayor’s, representative from the Mayor’s Office produced the first draft amendment, the Action Committee picked that up and reviewed it, and 2 EXHIBIT B also made their recommended edits to it, and that was in Communication No. 2018-15. So from there, the Planning Department, specifically the Long Range Division of the Planning Department, picked up those edits, reviewed them as one package. And after reviewing, reviewing those previous edits, the Planning Department made some determinations, which was that other amendments were needed for the Plan in order to resolve concurrency issues, account for due diligence for resource impact mitigation for road corridors, to address Actions that attempted to amend Hawai‘i County Codes, to address policies that were inconsistent with Hawai‘i County Codes or attempts to innovate codes, and to address policy amendments that are interrelated to policies in other sections. That last part, in other words, was making sure that we weren’t changing “shall”s and “should”s in isolation of other sections of the CDP. So what we did see is that just changing “shall”s to “should”s didn’t work in the overall scheme of the Plan itself. So, after, after our review we created a new scope of work, and the new scope of work was to review the “shall”s and the “should”s to make sure we were okay with them, and just to note that some of the “should”s, we reverted back to “shall.” Two, “Edit narratives where required”: This was important because sometimes the narrative before the actual policy set up the policy, so if you change – and just to go back, the first editions of the amendments, we were only looking at “shall”s and “should”s – if you didn’t change the narrative prior to that, you could again run into inconsistencies. The other part of the scope was to ensure that amendments structurally worked with inter-related policies; checking policies against Hawai‘i County Codes, and sometimes we had to go a little bit further and check with Hawai‘i Revised Statutes. The other part of the first edition of the drafts before we got it, the draft edits, was that it didn’t address the Actions, and so some of the Actions actually says that this policy, the Action, automatically amends the Code; so, that wasn’t addressed and we had to address that as well. And the last part was to adjust statements that tried to innovate; so, again, not totally, when we say “innovate,” mostly coming down to process where you see they are trying to create new processes in terms of permitting. To the left is an example. So, we took every Policy along with their Action, so to the left the illustration there is just to show that every Policy was broken down in this manner. The next column to the right of the Policy is tracking who made amendments, and then, because this is crossing many people’s desk, showing who’s recommending the change and if the change is approved or not. And I know that’s a little bit more detail, but we wanted to show this because every Policy and every Action was vetted. Also, when we got comments in from other agencies, we did the same thing; we vetted each one. So, some of the challenges to this process was that we were working, we started off with multiple drafts, and multiple drafts come with multiple perspectives and inputs, but we took them all in. The other big challenge was that for us to determine how much change was necessary, and especially because from the beginning of this process, the Department determined that this was not going to be a comprehensive review. In other words, this wasn’t going to be the point in time where we are going to update the entire CDP; this was meant to address issues arising from the Missler case. So, we are looking to make the least amount of changes as possible and, again, not intended it to be a comprehensive review. We initiated, we also did this in consultation with other 3 EXHIBIT B agencies. So from within the Planning Division, or Planning Department, we reached out to Planning Division, Administrative Permits Division, also we talked to the Kona Division, which is a division of their own – sorry – and then we also passed the amendments through the Planning Director and Deputy; so all of these people got to comment on it. We also asked for comments from other departments, so, from Public Works, Office of Housing, Corporation Counsel. And after we got close to finish draft, we passed that back to the Mayor’s Office, so those people that started with the original draft could take a look and comment again. So this whole slide is just to say we didn’t do this amendment package in a vacuum; we went out of our own division, even out of our own department, and we wanted to make sure that the scope of our work was going to be carried out, and that we were looking for consistency. So here is an example. So, here is a Policy, if we look at the top highlight, “This map shall designate the functional class\[ification\] of the roadway”; if you look at the edited example below, it says, “This map shall recommend ….” So, again, if you are just changing “shall”s to “should,” there are some scenarios where it actually doesn’t work out and you’ve got to look a little bit deeper, not deeper but just realize that the sentence structure isn’t always straightforward of the change from a “shall” to a “should.” Another example in this passage is an edit that we receive, so it says, “As applicable, permit approvals (example \[e.g.\], rezonings, subdivisions, planned unit developments, plan approvals) shall commit the rights-of-way ….” The issue with this one is that Plan Approval is not a permit in and of itself; it’s a process. And so, if you look on the edited version below, we take that out. And I’m just going over this because it’s really, when you are going for consistency, it’s really detail. Next line, “The extent of reservation and/or improvements shall be proportionate to the project’s impact as determined by the project’s approved TIAR.” If you look at how we edited that below, it says, “When a permitted action occurring along proposed roads depicted on the Official Transportation Network Map requires a TIAR”; again, this is saying that not all of those permitted applications require a TIAR. I know this is a little nitty-gritty, but, again, just addressing the “shall”s and “should”s was not enough and we had to go through this process. So, anyway, we went through the process, we consulted, we shared the draft to other divisions and departments, and then we brought this to the Action Committee to vote on. I want to backtrack a little bit; so, after the Mayor’s Office produced the first draft, the Action Committee actually formed a subcommittee. They formed the subcommittee, ran through it, made their, made their proposed amendments, and then passed it off to us. So we brought this draft back to them just to honor their work and to get their approval. So we met on May 14 of this year, and Action Committee voted to approve the amendment package, with much discussion. So, that whole process brings us to what you have, what was then brought to you guys, which is the amendment package. Again, this is a Director’s initiation for amending, in your packet, yeah, background, which also provides the purpose and the process. We also provided you with the amendment package that we are asking to be adopted as ordinance to amend. You also have the minutes from the Action Committee meeting, which shows the approval from the Action Committee for this package, and you have a draft ordinance in there. After we submitted this to Planning Commission staff, they solicited more comments, so we got comments from the County Department of Water Supply, from DPW and Office of Housing. 4 EXHIBIT B Office of Housing had no comments. Department of Water Supply and Department of Public Works had some comments. From the State we had DOT commenting and also Office of Planning. So we had a little time before this meeting, and we reviewed all of those, all of those statements, but we really felt the ones that had something that we could work with to put amendments to and propose that it be accepted as part of the amendment package, are especially coming from Department of Public Works and Department of Water Supply. So the letter with the scan number, our intake number, listed there also has the policies and suggested amendments per the comments. So just to let you folks know we are asking that the comments, the amendments made in this transaction as approved by the Director, we are also asking that you guys count this as the amendment package, should it move from here en route to the Council, that we would include those amendments. UNGER: Commissioners, do you have this, you see the letter he’s talking about? Okay. PLUNKETT: So, timeline, again, we had Mayor’s Office, Action Committee edits, Planning Department review, which wrapped up in August, we got advice from Corp. Counsel on the entire th draft, Action Committee approving it on May 14, and we are here today. With that, again, I’d just like to thank the Action Committee, everybody that was involved in the process, all the input that was given, and even testimony from the community that sometimes is a dissenting voice from the amendment package. I just want to also say one last thing is that this process, again, was meant for consistency and helping the Plan to be implemented. And, for every, the planning process in general usually allows – and I’m not saying for the County, I’m saying in general – you create something, you try to implement it, and then you learn what is implementable and what is not, and the real planner takes that input and refines the process. And if you read the ordinance that created this Plan, it says it allows for future amendments. And I just want to say that because this process is not personal; this is just something that needed to happen. With that \[handing the microphone to Mr. Kim\]. KIM: I have very little to add just to clarify based on some of the comments that I’ve seen. You know, not every “shall” in the CDP did get changed to a “should.” We did go through it multiple times, we tried to be very careful, and keep the “shall”s in where there were already legal requirements. So if there was an environmental law requirement or a cultural resource requirement, we tried to leave that as a “shall,” or a road dedication because that’s already required by law, so we didn’t need to change that to a “should.” That was the only clarifying comment I wanted to make. Thank you. UNGER: Thank you. I even saw one “shall” crossed out and a “shall” added after it, so. Thank you for the presentation, very articulate, and I think we have a really good understanding of how well this has been vetted before it even came here. So, mahalo to you all and to the Action Committee and members of the public who have participated. I’d like to open it up to questions now for the Commissioners. Commissioner Carr Smith. th CARR SMITH: Hi. I see that the letters from Department of Public Works are dated June 12 thth and DOT is June 18 and Office of Planning is June 18. So, did these go back to the CDP Action Committee? 5 EXHIBIT B PLUNKETT: No. No, they didn’t make it the agenda. So these came in after our submission and the time frame was really too short. We tried to address it in a letter form, but, no. To answer your question, no. CARR SMITH: Okay. So, is it the Department’s position that everything that’s, all the recommended changes and these letters are all part of the amendment? You guys agree with everything here? PLUNKETT: No— CARR SMITH: Oh. PLUNKETT: —so if you read the letter that the, it was dated June 17, 2019, and this is coming from the Department, so if you look at the second page— CARR SMITH: Oh, I see. PLUNKETT: So what we saw in all of the agencies’ comments was that – and I just want to point to the bottom of this slide – so in that letter from us, which is the one I just pointed you to, saying that we have some additional amendments, and, so the comments adopted or deferred to the comprehensive review is based on the scope of work; so we, we received these kind of the last minute prior to this, but we vetted, or we evaluated which ones we saw that we could implement, implement in with the package we had already created and those that could be viewed and considered during the actual comprehensive review. So for all of the comments that came in after submission, the dividing line of whether we try to adjust them to incorporate now or to leave for the comprehensive review was if the concerns match the scope of work. And so what you have right here is things that we saw we could actually implement. Some of the comments from the other agencies were mostly concerns but no direct relation to actual policies, and so it’s not so much that we didn’t see it as important but we saw it as something that could be reviewed during the comprehensive review of the Plan. VITOUSEK: Sure, I have a question, and, you know, maybe for our counsel, I don’t know if we have to do executive session for it, but I was just wondering if we could have some background information on the Missler case that kind of brought this all forward, why, why we are here, you know. KIM: I can speak to it a bit. Deputy Corporation Counsel Ron Kim. I wasn’t directly involved in the Missler case, but I have read the opinion. And, basically, there became an issue as to whether or not the CDP would have force of law and requiring certain owners to have to take certain actions, whether that should have been included with their, I think it was a permit approval. And the County’s position was that, you know, the CDP was a great document, very instructive, but at that time we were not looking it as legally binding; however, the Intermediate Court of Appeals did rule that it was legally binding. So then after that case when we had to look at the CDP a different way as being mandatory and binding, you know, then we had to review it and see what 6 EXHIBIT B language could be adjusted and we did our best, I believe, to try to honor the vision and intent of the original CDP but to also, you know, make it workable. VITOUSEK: So it was a challenge to a development— KIM: Yes. VITOUSEK: —that the development didn’t necessarily meet the conditions of the CDP to the T? Is that where it came from? PLUNKETT: Yeah, I believe it was, and I could be, between one and two but I believe it was a PUD permit. It was a PUD permit and the Misslers were I believe neighbors to this property, and they were saying that, so at that time – I forget what year, it was a different director, but – the Department approved the permit, and the case of the Misslers’ was if you read the Kona CDP, it’s saying that you didn’t process the permit according to the value, or the protections, of land use in the area. But that, and which brought up the case of the legality, the rule of law, that the CDP carries. And so even though that was only one issue, the whole document now had to be re-evaluated for language that would put the County in conflict with itself. VITOUSEK: I understand that. And then, is it something that can be added to the document itself, indicating that, you know, this is for guideline purposes so that it serves the intent of what it was created without having to go through and revise piece by piece on what should be a “should” and what should be a “shall?” Is there blanket language that can be added instead of that? KIM: Not, when you look at the original CDP, it wouldn’t read well, if you, well, given the court’s ruling, we’d have to change the language basically, because just putting that statement in as a blanket, it wouldn’t really cover us, because some of the language that we changed was when you read it, it sounds very compelling and very mandatory actually. UNGER: To clarify, the amendment we are looking at here incorporates this letter or does not incorporate the suggestions in this letter? It does not— KIM: Does not. UNGER: Okay, this isn’t a side document, okay. So, it’s important, we may have to break for executive session to figure out how to make a motion to agree or not agree to incorporate this letter into, into the proposal today. So, okay, Commissioners, any other questions? VITOUSEK: I reserve questions for after public testimony. UNGER: Okay. CARR SMITH: Just on this document, though, are we to assume that, on the Planning Department letter, so I see that the red responses are to each of the concerns, and then there’s a couple that are bolded and say “Policy.” So, are those the ones that the Department suggests to be added? 7 EXHIBIT B PLUNKETT: Yes, if, so if you read, for some of them, especially on the second page, where the red, so all red is our response, and we are just stating that why we see that – so let me just read it, “Suggestion for DOT verification deemed appropriate ….” So, “appropriate” but per the scope we see that we want to do it for the comprehensive review, whereas in the, for the bullets that have two responses, the top response is kind of just like our reasoning and the second one, the reason why it’s bolded is because in the CDP the policies are in bold and then the language of the Policy follows later, so we’re just trying to match the format of the Policy and make the amendment in the red so that it can be adopted straight into the original, or Exhibit A, the amendment package. CARR SMITH: Right, okay, so those are the ones that you suggest. PLUNKETT: Correct. CARR SMITH: Can I just ask one more question on this document? It was a little bit hard to understand it at times because, as you just said, some of it is bolded. I assume that the actual changes are either crossed out or underlined, but yet some of the bolded areas at the end that state who made the suggestion, you know, PR, PD, are those new or, new comments or are those old comments where it has the department at the end of the bolded statement? PLUNKETT: So those are, you find those at the end of Actions, Action statements, and those acronyms of agencies or non-profit organizations who are suggested initiators— CARR SMITH: Right— PLUNKETT: —of— CARR SMITH: —I get that. PLUNKETT: —the Policy. CARR SMITH: But, that’s from before— PLUNKETT: No. CARR SMITH: —when it was first created? PLUNKETT: Oh, yeah, yeah, yes, it’s from the original. CARR SMITH: So if it’s not underlined, it’s not new. Is that a— PLUNKETT: Correct. CARR SMITH: —general, that’s totally true. PLUNKETT: Yeah. 8 EXHIBIT B CARR SMITH: Okay, just checking. UNGER: Any other comments from Planning or Commissioners? Very good. You may be seated. Let’s go ahead and open up the hearing to public testimony: Mike Matsukawa, Shirley David, Clare Loprinzi, Shannon Rudolph representing herself, as well as Chuck Flaherty, and Janice Palma-Glennie. Please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? TESTIFIERS: I do \[and inaudible affirmation\]. UNGER: Please state your, please state your name and area of residence. MATSUKAWA: My name is Michael Matsukawa. I live in Ka‘awaloa, South Kona. I think I live near Commissioner Vitousek. And in answer to his question, I was their attorney involved in the Missler case, so I can meet with you privately, if you want to talk about it further. I presented some written testimony earlier to the Action Committee and then this morning to this Commission. I won’t repeat myself. But I think it’s really important that this be made a matter of public record. If you read the CDP – and it’s like the Mueller report, yeah, how many have actually read it, you know? Eight hundred participants from Kona met over a period of almost two and a half years, there were 350 who participated in workshops, there were eleven working groups on various subjects – I was on the Government section – there were two charrettes; a substantial amount of time and money was invested to generate what is before you this morning. I wish at the time the Planning Department staff that testified to you today had been participants at these workshops and meeting. They were not found at these meetings – I think Mr. Shimaoka realizes that. The Deputy Director, the Planning Director was present, but none of the real nitty-gritty stuff, you know, about “shall,” “should,” “section 3-8 \[inaudible\].” So the ordinance itself anticipated that there would have to be efforts to fine-tune the inconsistencies where the code didn’t quite bump up against the County Charter. All of that was put into a matrix. In 2008 the Commission voted unanimously to go through with this idea and to include the matrix that we would work over a period of time because it was an experimental ordinance, and it had to be fine- tuned with them. Two major provisions were the financing plan and the network connectivity plan. That had to be addressed and brought up to the County Council for further improvements, further enactments to make it all work. Well, nothing happened. I hate to say this but county officials were heard to say, “The ordinance is not legal, so we are not going to do anything about it.” When the Missler case started, County Planning Director, County attorney took the position that it’s not legal, we’re not going to do anything about it. So in this environment, you know, when the code was, when the Plan was enacted, the Great Recession was on, so we had a lot of time, because there was no development going on, to work out the details. That never happened. So I’m glad that at least the subject matter has been brought back to the Commission for this kind of review. But my comment is that you shouldn’t just pass it on; if you believe the work of the community was valuable and remains valuable, and if you have some reservations about passing an amendment that wholesale goes through an ordinance, I would reflect on it and say maybe we 9 EXHIBIT B need to break out our own working groups at the Commission level to look at ways we can refine what we were supposed to do back in 2008 and make it work. I just have one comment on the proposed amendment. I have it in my written testimony. There are provisions where no reference was made to the County Charter 13-29. In 2010 the voters of the county voted this provision, 13-29. It’s our version of the County obligation to protect certain historical and very valuable resources. The voters said we shall do it. Now, you need to examine the proposed amendment against the County Charter; to what degree are these amendments being proposed consistent with the County Charter 13-29? If you don’t address it, there will be another lawsuit. So, that’s why I recommend maybe the Commission should have its own working group, study this discreet issues, especially the planning for the financial plan and for the infrastructure development. Thank you. DAVID: Hi, I’m Shirley David. I’m the Vice Chair of the CDP Action Committee. I was on the sub-committee when we went through the amendments and we took many, many months in order to do that. Oh, and also I live in Kailua-Kona. So, and I was a member – we had just moved here to Kona at the time when the charrettes began, they began soon after we lived there, here, so I was involved in those at those meetings as well – so, and I was a member of the sub-committee that looked at these amendments, and I just want to tell you that there were public members, public members on our sub-committee and we, as Kamuela said, we passed the amendments that we made at one of our meetings, and then it went to the Planning Department and came back with us with these other amendments and we just, that was also a public meeting and there were members of the public there. One of the things that I had issues grappling with the “shall”s and “should”s is when it was appropriate to tell who what to do. And there were some places, especially in Transportation, where it was telling the State what to do when you put, when it said you should do that, and so that was why we changed those to “shall”s because the County cannot tell the State what to do. So I know that’s why some of those changes were made. Others were that it was just so impractical to be able to make some of these things as part of the law; that’s why some of these things were changed. We all, we always don’t agree on everything that the changes were made but we felt at the time of our meeting on a, in May that we wanted to move this ahead to you for you to look at one more time, and we would like to see it move up and actually get County Council approvals. So some of these changes that need to be made can be made so we can move ahead with our, with the Action Plan. Thank you. RUDOLPH: Aloha. My name is Shannon Rudolph and I’ll be testifying for myself and also for Chuck Flaherty who’s caring for his mom and lives in Kealakekua. So his testimony is: “There are” – can you hear me? “There are other issues in the proposed change of the language, the most important of which involves changing the way the environmental reviews occur. I have not had time to determine the real effect of those changes, so I’m focusing on the biggest problem, which is getting rid of ‘shall.’ If you are one of the hundreds of Kona community volunteers who participated in and donated their time to the Kona Community Development Plan process from 2005 to 2008, you should be concerned. If you are a county resident, you should be concerned. “These amendments are being proposed because of a lawsuit, Missler v. County of Hawai‘i, filed against the County for approving a development that neighbors believed violated several laws. 10 EXHIBIT B And, indeed, the court ruled the County had violated the Hawai‘i County Code, the County General Plan, the Kona Community Development Plan, and the County’s affirmative duty to protect the public trust. “The Planning Director has submitted a statement to the Leeward Planning Commission that says in part, ‘The County had not previously interpreted the language in the KCDP as being mandatory’; in other words, the County openly admits it did not understand the word ‘shall’ is defined as an order, a promise, a requirement, or an obligation. “The court ruling specifically referred to Section 4.0 of the KCDP, which states ‘Policies \[, that\] prescribe how each objective will be achieved. The policies that use the word “shall” are mandatory directives legally binding on County agencies. Among the most significant legally binding policies are those presented in Section 4.2 Land Use.’ The court found the County did not follow the ‘shall’ mandatory policy directives. “The County Planning Director is proposing to change each occurrence of the word ‘shall’ in the KCDP to ‘may.’ This means if the proposed amendments are approved, the mandatory policy directives of the Kona community development \[sic\] developed after hundreds of meetings and thousands of hours of community volunteer time would become toothless and meaningless. “Rather than follow the County and State law, the County is proposing amendments changing law to undermine the protections our community worked so hard to create and manifest. “The solution to the County’s legal problem is not to change the KCDP, but to begin to follow the plan the Kona community worked so hard to create and have approved over ten years ago. “Please vote ‘no’ on the proposed KCDP amendments. Mahalo nui loa.” Okay. Aloha, my name is Shannon Rudolph. I live in Hōlualoa. I only heard about this meeting last night. It was poorly advertised, and a lot more people would be here, if they knew. Some of the amendments might be good, but there’s no trust with these actions seemingly being formed in a vacuum and a lack of public information. Nearly 30 years ago I remember sitting at a Kona community meeting of residents who wanted to formulate a regional plan for their district. As I recall, Virginia Isbell pretty much said it was a waste of time because residents had already been trying to make a plan for the past ten to 15 years only to do the work and then have the plan get watered down and die sitting on a shelf at the County repeatedly. Fast-forward to the mid-2000’s with residents around the island enthusiastic revival of a community development plans for their areas. Hundreds of people put in thousands of hours to complete these plans only to have them hijacked in a myriad of ways from letting member applications sit on county desk for months and months to replacing members and appointing people to be decision-makers and gutting whole sections. I have heard angry horror stories from residents in every district over the years about what happened to their plans to make them go sideways and making the people throw up their hands in despair. 11 EXHIBIT B And here we are once again. Since Kona was one of the first areas complete their plans and had the most public participation, it has been the strongest plan. If many Kona residents who put this plan together said “shall,” you can bet they meant it, with hours of discussion. I can assure you they did not mean “maybe” or “may”; they knew exactly what they were doing. So, thanks to the warning from Virginia Isbell. How prophetic your words sound now 30 years on. “Shall” means “shall,” “may” means “maybe.” I should quit cursing but it doesn’t mean I will. Words have meaning. Please vote no on any amendment that will weaken our community plan and don’t spit on the faces of those who have done the work. Thank you. LOPRINZI: Aloha. Aloha. UNGER: Aloha. LOPRINZI: Mahalo. \[Inaudible\] aloha, huh? This is Kona, right? You want to show respect. ‘O Clare ko‘u inoa. Noho au i ka Honokōhau mauka. Hea pale ke ku‘u ua hana i ka hana o ua hana i ka papa honua ‘ike wai ‘ike kai \[phonetic\]. I am a longtime cultural practitioner, I come from, I can go eight generations, and a traditional midwife. And, part of our work is to help protect environment because there are piko-s— UNGER: Excuse me, please state your name and area of residence. LOPRINZI: Oh, I did. You should have, you should have someone that knows how to ‘ōlelo Hawai‘i because that’s your legal right. So I already did. You all know me. I can tell you again later. But it’s there. Yeah, and that’s, that’s— UNGER: Okay, I just didn’t see it on the— LOPRINZI: Yeah, and, well, it’s there. But it’s also your kuleana to make sure that you understand ‘ōlelo Hawai‘i. So I cut it short because that’s a legal thing— UNGER: ‘Ōlelo wau i ka ‘ōlelo Hawai‘i. Hiki i‘au ke maopopo kou ‘ōlelo Hawai‘i— LOPRINZI: Okay, okay, bravo. UNGER: Mai ho‘opa‘apa‘a a ka ‘a‘ole ‘ike wau ko inoa ‘ike i palapala— LOPRINZI: Okay. UNGER: —hewa no wau. So, please continue— LOPRINZI: Okay, mahalo nui. UNGER: —I just didn’t see your name here, your Hawaiian name here. 12 EXHIBIT B LOPRINZI: Okay, well, I don’t have my Hawaiian name. I have my Sicilian name. So – let me think, you know, when you, when you speak as a cultural practitioner and someone interrupts you, you just kind of do the, the train, the thoughts go, so let me go back – so as a practitioner and as, as anybody of us, we all have accountability and kuleana. I was part of the first group in 2005. And I remember there was someone from Italy that came. And we worked and we worked, we devoted all of our Saturdays. And, in fact, it’s not like, we were not, it’s not a paid job. Just remember that. This is, this is our kuleana and we take it seriously because we are not going away, because we care. Now, I can tell you that my other half, he was on the housing committee. I asked him this morning. He works in recovery work like an alcoholism, he’s a physician; he couldn’t get here. And he said, you know, he was on housing, he said they got it so bad that we even held on to this, this whole thing, just for cultural and environmental, but the housing, and I just like to think of that how many, why don’t you care about especially the indigenous population here that don’t have homes. So, how can you do more, how can you bring in a lawyer? This was sad honestly, no, no, no \[inaudible\] against you, with all aloha, but, to sit here and to see, mm-hmm, a lawyer shaking his head, mm-hmm, mm-hmm, mm-hmm, and then you just kind of reading off these papers, and I’m like going where is the heart and soul? Have we forgotten about those things? Have we forgotten about how important it is to protect our land, protect our water? And when you look at all the development that’s been happening, private wells going in and all of our resources—. Oh, I was at the \[inaudible\] commission meeting about a week and a half ago. Lucky I made two of the days because I had two babies those days, but I got there. That’s how hard we work. I may work all night long, but I’m still going to make meetings. And to hear how many boats are out there, the violations, and to see this, and it’s laws already. So I just really ask all of you to really look inside at what’s happening here, what’s happening to the people, the land, the cultural sites, their past. No, they are violated, and that was very clear at the marathon – ten million dollars business Kona is making now on the oceans right there. People don’t care? So, this “shall” meant “shall,” and we had already had to cut and cut and cut and cut and cut and work and work and work. And how come we weren’t asked? How come all these faces are up here? Where were you guys? Because you didn’t get paid that day? Because you work harder than we do? It’s not true. And, when you come to Kona, we don’t do that, either \[speaking of the sign Ms. Hall was holding up, indicating the time left for testimony\]; you don’t signs, put signs that says— UNGER: Please keep your testimony to the Commission, and we would appreciate it if you wrap up your— LOPRINZI: Well, she just signed the— UNGER: I understand that, please wrap up your testimony. There are other neighbors here that would also like to testify and also have given up their time to be here. Thank you. LOPRINZI: We have our rights and these meetings are our rights. And so I would go not back to the beginning, but you should call us back in here, and, and, no, you can’t change it any more. Change the legal structure that give these guys so much time to be able to do what they do, and give us the rights. 13 EXHIBIT B UNGER: Mahalo. PALMA-GLENNIE: Aloha and mahalo, Commissioners. My name is Janice Palma-Glennie. I’m from Kailua-Kona. Though I’ve, I’ve been involved in the CDP process since its inception and I’m currently a member of the Action Committee, I’m speaking only for myself today. As an Action Committee member, I was the only one to vote kānalua on the amendment package due to reservations I have regarding some, but not all, of the amended language. As I said, my history with the CDP is long and my commitment to the Plan’s success is strong, as is true for many who have taken part in this long and actually really great process. The original comprehensive goal of the CDP in its thousands participants was to create a legally binding, regionally driven, regionally responsible smart-growth planning document that would help protect the quality life of South and North Kona residents through judicious protection of our region’s natural and cultural resources – resources that were quickly being subjugated for necessary, as well as unnecessary, mostly unplanned growth. I feel that the ground-up nature of this, from-the-ground-up nature of this document with the intention to stay regionally-based is the most important concept for Commissioners, the Planning Department, the community and other stakeholders to remember and remain committed to as we move forward together. As you’ve heard from planners and Action Committee members, some of the amendments before you are necessary to achieve implementation of the Plan, and some may change or weaken its original intent. But I hope and trust that as long as we keep the original concept and commitment to community-driven regional planning foremost in our minds, this Plan can be a great success in moving our region forward towards less car-centric sprawled and damaging growth that we’ve seen until this point. I appreciate the hard sincere work done by planners to help move this process forward. I ask the Commissioners take the time to think through this process from the perspective of strongly supporting community-based planning, and any decisions you make regarding the Kona CDP and all proposed amendments. Mahalo. UNGER: Mahalo. You all may be seated. Thank you. Ken Melrose, Christy Logan, Franz Weber. Is there anybody else here that would like to testify at this time? \[None.\] Please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? TESTIFIERS: I do. UNGER: Thank you. Before you start your testimony, please state your name and your area of residence. MELROSE: Good morning, Commissioners. My name is Ken Melrose. I reside in Kealakekua, South Kona. I served on the Steering Committee in 2005 to 2008 as its Chair, and then the Action Committee as its Chair for its first term, and I’ve remained active as a community member since. 14 EXHIBIT B The CDP was based on the vision and guiding principles that were formulated by the community. Those remain unchanged in the amendments before you. The vision was for a more sustainable Kona characterized by deep respect for the culture and the environment and residents that responsibly, and responsibly, accommodate change through an active and collaborative community. That intent remains true in this, I believe. I served on a sub-committee that reviewed these with the Action Committee, and I believe that the intent is consistent here. The CDP approved the proposals were a paradigm shift for Kona in land use focusing future growth within the urban area of the General Plan. A form-base code was proposed to guide that urbanization. It is that aspiration that has run into the conflicts and stymie forward-progress toward our vision. On reflection I realize that the last time I testified before the Leeward Planning Conference, I mean Leeward Planning Commission, was in 2008, asking for your approval for the CDP. Today I ask for your approval, favorable recommendation of the package of amendments that go a long way toward helping unlock the conflicts with the code that have held a progress. Some further wordsmithing might help as this goes forward in the legislative process. You know, I would particularly like to thank the administration and Nancy Pisicchio and Roy Takemoto for bringing the initial package forward. They were the staff members for the Steering Committee and they on coming back in the administration under Harry Kim’s second term saw the need to help make these amendments. And the Planning Department, I wish to also appreciate for reaching out to the other agencies. I mirror Mike Matsukawa’s comments in that the initial review of the CDP was not broadly circulated and input received from other agencies. And I think that’s part of where we also find many of the conflicts that are trying to be amended here with this package. So, and I appreciate the, the work of the Action Committee who continues in the hinterlands of, of public recognition to make these, this Plan continue to work. Thank you. LOGAN: Good morning. My name is Christy Logan and I live in Kailua-Kona. And I’m here representing myself. I think something interesting that Mr. Matsukawa said earlier was that this document was an experimental one. And for the impact that it’s had, there have been a lot of unintended consequences that have come from it. And I think everybody can agree that we want smart planning in our communities and where we live, but I don’t think we intended for it to stop us in our tracks from growing smart; I think what it did basically was create moratorium without calling it one. And so, I support these amendment changes and I urge you to also support them. We still have to grow smart and put things in their proper places, and some of the unintended consequences have caused people to go outside of the Urban Core and created something that we were trying to stop or not have happened. I’ve also seen personally families, you know, that have a certain size of land and they want to be able to rezone it and subdivide it so they can give it to their kids. They are not, they are not a massive developer that’s coming in to put in a hundred houses or, you know, thousands of units, and the CDP has impacted their ability to do that greatly; they can’t get entitled to another portion of their property because of the way the language reads. For something that’s been an experimental document to have that type of impact on our local families seems a little absurd to me. And so, this idea that, that we can’t change it and it’s in stone just doesn’t seem to be what our democracy and how our system is supposed to work. I hear what these people are saying about we committed hundreds of thousands of hours of our time, and I even recall participating in a few of those meetings. I never thought that the document that we 15 EXHIBIT B were creating was anything but a guideline and putting out on paper what we wanted to see happen in our community. And that to hear some of the horror stories that what people can’t do or what we have to wait for to be able to have happened just is mindboggling to me. Some parts of it require certain roads that are the responsibility maybe of the County, and we don’t have the funding or the financing to ever maybe be able to complete some of these things, and to sit and have to wait for that sort of stuff just seems really unintended. I don’t think that was the concept. Maybe for some people it was, but certainly not for me and a lot of people that I know. So, again, I urge you to, I urge you to support these amendments. I support these amendments. And I think that there needs to be common sense and some enlightening of the impact that this document has for all of us. Thank you very much. WEBER: Aloha. My name is Franz Weber. I’m a member of the CDP Action Committee, but, of course, I’m only speaking for myself. I live in Kona. And first of all, kudos to Kamuela and the Planning Department with the help from the corporate counsel and other groups to get all this paperwork together to look through all the, trying to get all the input from all the departments – that was not very rewarding work but very necessary – and also, sub-committee then who looked at it and everything. It’s unfortunate that, at the time this Plan was made, that it wasn’t realized that it’s not just a guideline or recommendation but that it has legal implication. If that would have been known at that time, maybe some of the work would have been done differently. What I notice with all the changes that were done because, to make sure they comply with the laws, there was no recommendation to change any of the other County rules to make them comply with the CDP plan. So it was kind of one-sided, and maybe there’s some areas where the CDP wording was better and other area should have been changed or considered to be changed. Also, what I think is important is although all these changes are necessary for liability and legal reasons, and I think there is no way around it, it should be thought about what the initial purpose was of the Plan, so maybe it is necessary to revise the CDP and look at it and see what was the purpose, what was the goal to be done and what should be changed and everything that affects these plans. Thank you. UNGER: Mahalo. Thank you. You may be seated. I think one of the – or is there any other people here that we missed for public testimony? Seeing, no, oh, kala mai. PALACAT-NELSEN: Mahalo, Chair. UNGER: Aloha. PALACAT-NELSEN: Aloha. My name is Shane Palacat-Nelsen. I sit on— UNGER: Please— PALACAT-NELSEN: Oh, kala mai. UNGER: —raise your right hand. Do you— PALACAT-NELSEN: Yeah, it’s my right hand. 16 EXHIBIT B UNGER: —swear or affirm to tell the truth before the Planning Commission? PALACAT-NELSEN: ‘Ae hiki nō. UNGER: Mahalo. PALACAT-NELSEN: And, mahalo for speaking Hawaiian. I think you are in shock, everybody over here, about that. Thank you. UNGER: Hau‘oli wau e lohe mai i ka ‘ōlelo Hawai‘i ka lehulehu. PALACAT-NELSEN: Mai hopohopo, I will choose to speak English so everyone can understand in this room. UNGER: ‘O wau pū maopopo. PALACAT-NELSEN: ‘Ae, okay. So, Shane Palacat-Nelsen, born and raised Kealakekua Bay, and I sit on the Kona CDP \[Action Committee\] as well. And I’m here to speak on my personal behalf. I just want to mention that I did chair the sub-committee on this amendments, and I did want to mention that the reason why I chaired it: Number one, I wanted to be educated on this process; number two, I wanted to make sure that we had the most appropriate conversations possible, not just looking at “shall”s and “should”s but the entire document. So I would encourage the entire Leeward Commission, because I think Chair, Commissioner Vitousek had made a good point about taking a look at different portions of this and how it affects the entire document. Very important, take your time, that’s all I can say, because it’s a very important document to our community. And I agree that, sometimes we deal with staggering development, but I also feel that we’ve got to encourage smart development. And, what does that look like? I think the community should come up with solutions. Hopefully, the testimonies will guide that process here and at the next level. But more importantly, I ask that this Leeward Commission take the time. And so even though a motion may be coming to the floor, I would strongly suggest that you take the time reviewing this document. Mahalo. UNGER: Mahalo. Seeing no more public testimony, I need a motion from the Commission to close public testimony. SHIMAOKA: I move that we close public testimony. VITOUSEK: Second. UNGER: Motion by Commissioner Shimaoka, second by Commissioner Vitousek. All in favor? COMMISSIONERS: Aye. UNGER: Motion carries unanimously. Commissioner Vitousek, would you like the applicant to come back up? Because I know you wanted to ask some questions after testimony or— 17 EXHIBIT B VITOUSEK: Sure— UNGER: —maybe we can all benefit from that? VITOUSEK: Sure, that’ll be great. UNGER: Yeah, if you would please come back up. VITOUSEK: Sure, I guess my, my first question is trying to understand the intended life of the Community Development Plan. Was it, you know, is there, intended to cover a certain number of years out? Was there a time, when it was conceived, it would be obsolete and need to be revised? Is that something that was thought of at its creation? PLUNKETT: Yes, Commissioner, I believe ten years is the recommended comprehensive review of every community development plan. VITOUSEK: So that would have happened last year, right? If, but it hasn’t happened yet? So, are we at the point now where we are capable of doing a more comprehensive review of the CDP instead of kind of an ad hoc look at “should” and “shall?” PLUNKETT: Yes, so, with all the things going on in the Planning Department, I’ll just give you preview that the General Plan, which is the umbrella plan of all the CDPs, is currently in its amendment and comprehensive review process right now, with an estimation to wrap up in May of 2020. The Department, along with the Director, has made a determination that the CDPs will be moved upon, once the General Plan is done with its comprehensive review. And, if I can just continue on this line of questioning, all the comments that didn’t make it in to – and when I say “all,” I’m talking about comments we had at the Action Committee meetings and also from the other departments – based on the scope of work, not all of them made it in, but they are all recorded for consideration in the General Plan, I mean in the, when the comprehensive review comes up; in other words, we’ve got a lot of material gathered through this process to kick off the comprehensive review of the Kona CDP. VITOUSEK: So, what happens if, we are doing these amendments where we are changing “shall” to “should” and vice versa, and then you come back for a comprehensive review and it says, hey, they need to go back in? Is that something that’s a possibility? PLUNKETT: It is a possibility, and we are going to have to talk about, we haven’t talked yet as staff in terms of what the comprehensive review will do in terms of, do we start from scratch, do we just get comments and change, take temperature of the community and then just change what’s in there now? That part hasn’t been worked out yet. So it’s hard for me to say where the starting point is going to be. But, like I said, we have actually got a lot of information that already informs us how to approach. And, part of the, part of the lesson from this is that we do have to go back out into the community. Ten years ago when the, when the real estate, it was, it was a different time, and that’s amazing to think that from now to only one decade ago it was different. So, I can’t give you an exact answer, but I think one of the lessons is that we have to go back into the community to even ask about how they want it to be updated. 18 EXHIBIT B VITOUSEK: So there are no like guidelines, codes or anything like that dictate how the CDP is updated after its ten-year period, is that right? PLUNKETT: Bethany Morrison from Long Range, Planning Department. MORRISON: Good afternoon, Commission. Bethany Morrison from the Planning Department. So, the context for the CDP is really coming from the 2005 General Plan that laid out what they would be and how they would function and operate. So that’s the only guidance that we have for moving them along, and it just mentions so they should be comprehensively reviewed but it doesn’t mention a structural process. And so part of our General Plan comprehensive review is looking at our planning structure, and the lessons that we’ve learned in the past ten years since we had CDPs and how they function with the General Plan, and part of that really was part of this Missler conversation and recognizing their proper authority. VITOUSEK: So while the review of the General Plan is happening now, is that something that’s going to be built into that on providing guidelines for how to review the CDPs— MORRISON: Yes. VITOUSEK: —and will we be reviewing that as well? MORRISON: Absolutely. So the General Plan comprehensive review is outlining the planning structure just as it did in 2005, but again, with more detail from the lessons that we’ve learned through these past ten years. So, that will be part of the General Plan that comes before you, obviously before we would move, forward to County Council for adoption. VITOUSEK: Okay, I guess, for me, going into the kind of specifics of “should”s and “shall”s in the, in the document and how that kind of relates to South Kona where I live. Number, what I’m looking at is on Page 10, “To the extent practicable, pedestrian improvements and/or bicycle accommodations” – “shall” is removed – “should be added to existing public streets when repaving or doing other repair or maintenance work ….” And along the same lines, you know, “Every public elementary school in Kona” – “shall” crossed out – “\[should\] have a Safe Routes to School program.” You know, I feel like, as we are looking through these and prioritizing what is important to the community, I feel like the public safety issues of being able to safely walk to school and having, being able to safely walk along the street is something that we don’t have in South Kona. You know, I wouldn’t let my children go anywhere near the roads, you know, I think about the, Ulu Kaaloa, the girl who was killed walking home from school in Hōnaunau because the crosswalk went from the school to off of a cliff and there was no place for them to walk. And I feel like if we are picking and choosing what’s important to our communities, then that’s something that is of the most important to the South Kona community of being able to walk safely along the streets. And I understand that there are restrains versus, State versus County roadways, but, you know, it already says, “To the extent practicable,” and, you know, if the State is requiring County permits for doing roadway improvements on any form, then that would be the opportunity to, for the County to assert itself and uphold these requirements of the CDP. 19 EXHIBIT B So, moving on, Page 29, the “Rezoning Outside of Urban and Rural TODs …,” so we’ve kept the “shall not” in there when I feel like if the intent is to allow for the document to be changed and interpreted, then we have to realize that we don’t understand the benefits of potential future projects to the community, and then categorically eliminating them doesn’t make sense to me, either. PLUNKETT: Sorry, what number? VITOUSEK: Page 28, “Rezoning Outside of Urban and Rural TODs ….” UNGER: Twenty-nine. VITOUSEK: Oh, 29, I’m sorry. So, again, to me, if we are, if we don’t, if we are trying to go through this document and we are trying to figure out if this can be fluid and we can adopt it, then I don’t understand why we would be categorically eliminating any rezonings that, projects we don’t even know whether it could be a valuable asset to the community, we don’t know what benefits we could have, and so I don’t think that categorically eliminating something based on that when in other instances we are replacing it with “should” and giving these guidelines so that it can be interpreted. Let’s see, on Page 31, so in the, so “Historic sites” midway through, “The State Historic Preservation Division is required to develop an inventory of historic properties (any structure or site over fifty years old) and burial sites,” so, I get that we can’t require the State Historic Preservation Division to do anything; what I would try to figure out is that if the County can maintain its own list of historic sites and burial sites that can be used for its own land use planning purposes. Page 44, the Policy CR-2.2 says, “The County should examine interrelated responsibilities identify weaknesses in the current programs, and make recommendations for improving programs relating \[regulating\] and protecting cultural resources and historic sites.” So, to me, this is purely a County responsibility; it’s not anyone else doing anything other than the County looking at its own system to figure out how the County can improve its treatment of historic resources. And to me, that’s something that should be left as a “shall” because it’s something the County can do. And that’s, that’s all of my concerns on this document and I’d love to hear from the rest of the Commission. UNGER: Thank you. CARR SMITH: I’m yielding to the people from Kona. KEALOHA: I guess I had a small concerning question relative to the letter from County Planning recognizing the various departments, specifically Page 4 on PUB-4.3a, the Water Department, and the change, “Develop policies and plans to provide water for agricultural use, subject to DWS approval.” When you read the DWS response upfront, they clearly identify a water use hierarchy of domestic and commercial consumption as being the highest and best use; and when you review 20 EXHIBIT B the CDP, they intentionally wanted to elevate the importance of agriculture. So, I think that’s an example of what we’ve heard where perhaps other ordinances or rules should be amended to reflect the spirit of the CDP versus vice versa, because we hear a lot of talk from federal, state, local governments about supporting agriculture, but yet the policies directly contradict that position. So I, just things like that to maintain the spirit of the document would be a concern to me. CHURCH: Okay, let me give you a comment here in a broad-brush way. So, painfully as I was I read most of this document this morning, and it shows not only what document is but also what you propose it to be, so what does that mean to me? The Missler case only kind of shows the extent to which this document has become irrelevant, and I’m sure it was only one of many, many instances where the County was making approvals that were inconsistent with what this document said should be done or will be done or whatever specifics. And so, I think that’s the problem with such a document, and I like to see things that are very hard and fast so that you know what to expect, if you make applications or you ask for things. The world is changing, as been said, ten years ago it was a very different situation. And a document that is so rigid becomes increasingly irrelevant. I think this document provides a lot more discretion in a way decisions are made, be it the Planning Director, the Planning Department, the administrators and so forth. I think that to the extent that from my standpoint I like to see things are more rigid. I think that the document lives and breathes far better in its amended form than it does in its current form. And so I’m very supportive of the generality of what you did. And I think it’s tremendous; how the Planning Department people can deal with the State, the Land Use, and the General Plan and the various development plans, and find a way through this morass of detail to solutions on actions, which come before them. It’s really astonishing. It’s a phenomenal amount of material they try to absorb, understand how to get through. So I applaud this effort and I think we should go forward with it, and I’ll certainly recommend approval, if such a motion comes up. UNGER: Any other comments from the Commission? Mahalo – oh, go ahead. PLUNKETT: If it’s okay, I would like to respond to some earlier comments. UNGER: Yes, please do. PLUNKETT: And just in general. So, I just thank all the community and their concerns about the, especially, cultural natural resources. It’s something that is close to my heart. That’s my background. And I just want to show how we’ve tried to put that out front. And it hasn’t been pointed out in some of the comments that we were given. So, if the Commission wouldn’t mind looking at Page 1 and looking at Bullet No. 6, so I’m just going to read, “Policies that” – and I’m going to read how it was written and then what we put in – “Policies that prescribe how each objective will be achieved. The policies that use the word ‘shall’ are mandatory directives legally binding on County agencies.” So what we added – and why I need to point this out is because the land use maps later on in this section, they call themselves “official” and also “mandatory,” there were road corridors proposed that are mandatory and there wasn’t this language in it – so let me read, “The policies that use the word ‘shall’ are mandatory directives,” and we change it to say, “to County agencies provided that in the case of any conflict with \[existing\],” law, so, “United States or Hawai‘i State and/or County \[laws\], rules, or regulations particularly \[any\] such laws, 21 EXHIBIT B rules or regulations related to the protection, conservation, maintenance, restoration, and/or preservation of cultural and/or natural resources ….” So, one of the biggest concerns with the “shall”s in regard to protecting our cultural, natural resources was this clause that, because what it would happen is the County would have been bounded to enforce developers to build those alignments without – so let’s say when the mitigation studies come about and then you find stuff, now you have this conflict between this mandatory map and resources that are on the ground. We thought carefully about this. What if there is an endangered loulu palm and that road alignment is going through? And now the County is in a jam. We put in this language – and I just want to say this to the community that it wasn’t, these amendments are definitely not meant to take away protections; we put it out front and we embedded it in the language. I want to reiterate this on Page 12. So this talks to the Official Concurrency Map. Concurrency – so, previously, the Policy was stating out these road alignments again, and then the language we put in, “Concurrency requirements shall be determined by Code \[HCC §25-2-46\] and be generally consistent with the,” so, again, “the Official Concurrency Map,” – we put in this language “generally consistent” – “and be informed by the Traffic \[a TIAR when applicable\].” But, here we go, “Note: while the Concurrency Map is ‘Official,’ the proposed road alignments that have not yet been built, are only conceptual as the topography, or possible environmental and cultural resource mitigation measures may require these alignments to be adjusted.” I just want the community to know that we are not trying to blanket this thing over. We care. Yeah, I’ll stop there. CHURCH: I’m sorry, beside comment I did have one question. I found Mr. Matsukawa’s comment about the County Charter and the Kona Community Development Plan that if it had, if the consistency between these two documents had not been examined, then it should be – I want just to have your comment on that. PLUNKETT: So, between the Charter and the? CHURCH: County Charter and the Kona Community Development Plan. PLUNKETT: Yeah, again, ten years ago – and it’s true I wasn’t part of that – but, so I don’t know if there was that type of check. And I believe that that part of the Charter is— KIM: So, actually, I would say the provision of the Charter is really in line with these amendments because the public trust is these types of natural and cultural resources that we are trying to say deserve protection even if the CDP would potentially override or conflict with those types of protections. CHURCH: Okay, I appreciate that. I just wonder why it came out in the first place then. Thanks. KANUHA: Mr. Chairman? And I think I might add that that Charter provision, the initiative for that was largely lost because of the Missler decision, right, because the component of the Missler decision spoke towards the public trust. And so that language for the public trust, which came in as an amendment to the County Code after, you know, the Missler decision, kind of reinforces 22 EXHIBIT B what Kamuela has been saying about merging the two together and giving the priority to the preservation of the public trust as it relates to cultural resources, etcetera. UNGER: Any other questions? Comments? CARR SMITH: Chairman, I’d like to move— UNGER: Let me, let me – thank you, you may be seated. CARR SMITH: I move that the Commission enter into executive session to consult with its attorney regarding questions and issues pertaining to the Commission’s powers, duties, privileges, immunities, and liabilities pursuant to HRS 92-5. SHIMAOKA: I second. UNGER: Motion by Commissioner Carr Smith, second by Commissioner Shimaoka. All in favor? COMMISSIONERS: Aye. UNGER: Opposed? \[None.\] Motion moves unanimously. We are in executive session. If we could ask the members of the public to leave the room. And we will reconvene shortly. Thank you. Chairman Unger called a short recess at 12:30 p.m. and the room was cleared. The Commission went into executive session at 12:33 p.m. for the purpose of consulting with its counsel regarding questions and issues pertaining to the Commission’s powers, duties, privileges, immunities, and liabilities, pursuant to Hawai‘i Revised Statutes 92-5. Commissioner Shimaoka left the meeting at this time. At 12:41 p.m. it was moved by Commissioner Church and seconded by Commissioner Vitousek that the Commission go out of executive session. Upon a voice vote, the motion carried unanimously. The meeting was reconvened at 12:43 p.m. UNGER: The hearing is back in order. Commissioners, I need a motion on the agenda item. VITOUSEK: Prior to making a motion, will it be possible to ask a follow-up question— UNGER: Sure. VITOUSEK: —for the Planning staff? I’m just curious about, you know, I made a couple of recommendations today, how that could be included in what goes forward to the County Council. UNGER: I would say, and I can take a, I can make a suggestion; you can, if you want to make a motion, you make it part of the motion. 23 EXHIBIT B VITOUSEK: Sure. And I just was kind of wondering how that would be with the County Planning staff, you know, we always try to check with the applicants to see if the conditions that we are asking for work with them, and— UNGER: So you made – you want to come back up and maybe address the two issues that Commissioner Vitousek brought up? Commissioner Vitousek, I’m thinking that it was those two specific items that you— VITOUSEK: Yeah, the three specific items— UNGER: The three specific items? VITOUSEK: Or four, I guess, I put two together. UNGER: Commissioner Vitousek, maybe you could, you could help with— VITOUSEK: Sure, come back with them, the first one being eliminating the, well, turning it from “shall” to “should” for pedestrian improvements during ongoing roadway projects – sorry, Page 10, “Policy TRAN-3.4: Retrofit of Existing Streets.” PLUNKETT: So, “To the extent practicable, pedestrian improvements and/or bicycle accommodations should be,” or shall be, “added to existing public streets when repaying or doing other repair or maintenance work, especially on those streets identifies for such multi-modal purposes in the Official Transportation Network Map ….” So, according to corp. counsel, he does not see anything to conflict with that. I just want to put this consideration out for you folks: When there’s policies that commits the County to monies – as you know, the CIP and operating budgets are, go up to two tiers above the agencies, and once recommendations leave agencies, it’s really those, those next-level tiers of deciding that allocates money from the budget per what they see happening at that point in time. So part of the language in our scope of work when we say, “beyond the authority of the CDP,” you, things to consider when there is a commitment of money is that you actually bind the hands of the upper level, and, in other words, it creates another potential venue for conflict. If something says “shall,” somebody says we have another priority, and then you have another instance where the “shall” is not being fulfilled. So, and just to talk on a heart level, totally agree with you and, about safe streets. We also have that issue up in Hōlualoa. Again, this is not because it’s a lack of care; it’s because the bigger structure of how money moves in the County. The CDP, it is my opinion that you cannot handcuff the monies not because it shouldn’t be done; it’s just the structure and the limitations of the funds. So when we have mandating language that money has got to be approved to this and there is none, what happens? KANUHA: Mr. Chairman? UNGER: Go ahead. KANUHA: Maybe I might embellish that a little bit. That’s consideration, I believe that’s consideration that the team looked at when they reviewed these policies; however, my thought is 24 EXHIBIT B because this Policy leads in with the language “To the extent practicable,” you know, it’s not a mandatory you-shall-do-this-no-matter-what-happens-every-time. So, I think that that provides the County enough, you know, leeway both physically and fiscally to accommodate this, this proposed amendment. VITOUSEK: Thank you. Yeah. Next one being Page 29, and, you know, for our purposes, so, “Policy LU-3.8: Rezoning Outside of Urban and Rural TODs …,” you know, in looking at this kind of in a vacuum not understanding what the urban and rural TODs are and all that without having the maps in our packages and all that stuff, and I understand the purpose isn’t to, you know, re-do the CDP and all that at this point, but at the same time, if the purpose is to give leeway on certain things, then understanding that having the word “shall” not be allowed in there, is kind of categorically eliminating future projects that may serve a community need, and we don’t know what they are yet. KIM: So, would the proposed amendment need to change that “shall” to a “should?” VITOUSEK: Yes. KIM: Okay, thank you. Just to clarify. MORRISON: If I may, Commissioner, just to address that a little bit. In listening to some of the public testimony, it’s probably pretty clear that there is a lot of smart-growth strategies as part of this Plan. And smart-growth is really about having more urban higher density areas and then kind of preserving open space in between those and limiting where urban growth would happen. And so I would just maybe caution, you know, that when we did this review, we were very careful to keep the intent of the smart-growth strategy and try not to make changes where they weren’t necessary, and so I would caution us about trying to change this one because there might be unintended consequences to their growth strategies. VITOUSEK: So, I mean it seems to me like that’s the same argument that they are all making about the entire scope of these revisions. So, to me, it’s, if we are realizing that this is, you know, not something set in stone, then we have to wholesale appreciate the fact that this isn’t nitpicking, you know, figure out what, what we can do to leave possibilities open for interpretation for future projects, and the fact that we are still having a “should” and we are using this as a guideline as in all the other cases is a tool for the planners to work with in the planning process and entitlement process and all that and trying to make sure things adhere to it. So, to me, it follows with the same purposes. It just doesn’t under rule of law eliminate something that we don’t even know whether it has a benefit or not. PLUNKETT: Yeah, not arguing with your point, I just want to provide a little bit more clarity. So, when it talks about the TODs, part of the attempt of this, the land use designation and identifying where TODs would be that you wouldn’t get too much sprawl in agricultural areas, and that the TODs actually help inform where more favorably; so some applicant trying to get some type of permit or rezone within the TOD is encouraging growth in the area while trying to make sure not to lose the rural aspects of certain places. So, just wanted to let you know what the intent. 25 EXHIBIT B VITOUSEK: Definitely, definitely get the intent, I think the intent is good. It’s just that along the same lines, we just don’t know, it could be a project that would be super beneficial to the community in terms of rezoning that could help for some reason, and we don’t know about it. And so I just don’t see the need to eliminate it, if we don’t, if, if the purpose of this document is to allow for more discretion on the part of the planners and the community, then I think we want to avoid categorically eliminating things. PLUNKETT: So— HALL: Sorry, Kamuela, let me just step in for one moment just for clarification. When you guys are referencing TOD, you guys are meaning Transit Oriented Development, correct? PLUNKETT: \[Inaudible affirmation.\] HALL: Okay, thank you, just wanted that for the record. PLUNKETT: So, you are recommending a “shall not” to a “should not.” VITOUSEK: Correct. PLUNKETT: And so, as it would read is, “shall not be allowed, except …,” so I just want to clarify that; I guess the exceptions that are listed here that would allow? VITOUSEK: I mean, to me, it’s the same thing, it’s, you know, like you are saying, this is providing a guideline for your internal purposes for Planning; it’s not categorically eliminating it by law. It’s still giving you the same things to consider in the review of a project. It’s just not saying it’s impossible. UNGER: I would recommend at this point that we move on only because I think, I think we all understand your description about the fiscal versus the intent, and this is more of an intent issue versus fiscal. \[At this time, 12:55 p.m., Commissioner Church was excused to step out of the room for a moment.\] So as a recommending body, the Commission can recommend anything we want, and, so I think moving forward under that – we certainly could go back and forth to say what absolutely you can rule out, what absolutely you can’t, or as close to as possible as beneficial – but I understand that that particular item, and it’s up to individual Commissioners or the Commission as a whole to make the determination based on an upcoming motion. So, Commissioner Vitousek, you want to continue with your items? VITOUSEK: Sure, thank you— HALL: Sorry, I would, can we wait until Commissioner Church comes back, please, before we move on? I’d like him to hear all the discussion then. Thank you. 26 EXHIBIT B MORRISON: Commissioner, I can offer, I do have the, my copy of the Kona CDP, if you guys want to peruse it during this time to see where those Transit Oriented Development nodes are located on the map. You can, if you— VITOUSEK: I’d love to. MORRISON: Sure. \[Ms. Morrison brought out a copy of the Kona Community Development Plan, and referred Commissioner Vitousek to the relevant page. Commissioner Church returned to his seat at this time, 12:58 p.m.\] UNGER: If you’d like to continue, Commissioner Vitousek, on your third item. VITOUSEK: Continuing with Page 31, the “Historic sites,” Item 2, “The State Historic Preservation Division is required to develop an inventory ….” Now, in this Plan, is this something that – obviously, we can’t mandate SHPD to do – is just purely descriptive saying that that’s something that they do independently? \[Inaudible affirmation from Mr. Kim.\] Okay, yeah, yeah, yeah. KIM: That’s what they are supposed to do, yes. VITOUSEK: Correct, yeah. Is there language that we can put in here about County doing that as well? KIM: I think there could be language put in potentially, but I also would think that would come with more part of a comprehensive review. VITOUSEK: Okay, fair enough. KIM: Yeah, thank you. VITOUSEK: Moving on, the last one is Page 44, removing “shall” from the “Policy CR-2.2: Regulatory System,” you know, and leaving that as “shall.” Basically, it’s something that the County can do independently without anyone else, that, you know, in here time and time again we are seeing issues with the historic preservation review process where projects aren’t able to move forward because of prolonged reviews from State office, and the County can take a look at its own responsibilities under the review process and figure out what it can do to make the process better. KIM: I will respond. The understanding that I have is that this was an amendment proposed by the Action Committee, not by County staff. With that said, changing it to a “shall,” I think, would be, would not be objectionable and would be in line with what we are talking about of maybe trying to set up a County process, you know, through the— VITOUSEK: Yes. 27 EXHIBIT B KIM: —comprehensive editing review. VITOUSEK: And then on my last question, since we are here with the Action Committee, my question would be to the Action Committee if they are okay with the changes that have been submitted as a result of consultation with other agencies that occurred after their meetings, and with the recommendations that came today without having to go back and be reviewed. UNGER: If there is a member of the Action Committee that would like to represent the Action Committee just to answer these questions? VITOUSEK: Basically just to see if the Action Committee would want to have this back at their level to review it prior to it moving forward, that’s the question. PALACAT-NELSEN: Aloha, Chair, so – Shane Nelsen – and so I was not prepared to speak on behalf of the Action Committee, but I’m sure that we would be open to reviewing the work as long as that, yeah, I mean I see why not, I think that we are looking for forward movement in the process, but, yeah, I think there are some things that we would probably just want to review. I don’t know if we would make like substantive changes, but— VITOUSEK: Sure, it’s just more of your preference, and if you are comfortable moving forward with what we have here, that’s fine; if there is something that you guys are not comfortable with and you want to have it back, then we want to give you that chance, at least I do. But it’s really, you know, I’d love to know what your thoughts are on it. PALACAT-NELSEN: So, yeah, I think, just to be fair, I guess the recommendation back to the CDP \[Action Committee\] would be great, but I do know that we understand that the next process is also another community, we are more concerned that community input would be, would be there, so when it gets to the legislative process, there is going to be more community input as well. But, yeah, I mean if that’s your recommendation to send it back, sure, I don’t think we would deny that. Thanks, Commissioner Vitousek, for the recommendation. UNGER: Thank you. Any other questions, comments from the Commissioners? KANUHA: Actually, Mr. Chairman, Commissioner Vitousek, can I revisit your comment on the historic sites inventory? VITOUSEK: Yeah, the inventory? KANUHA: Right, okay— VITOUSEK: Yeah. KANUHA: —and, so the way I understood your concern and your suggestion was to also include the County Planning Department as doing the inventory, is that it? 28 EXHIBIT B VITOUSEK: I think that would be a great long-term thing, but as counsel suggested, that could be something that’s issued, that’s addressed in the overall site plan, so I would yield to that. KANUHA: Okay, yeah, because the intro to that provision talks about legally mandated inventory, so I don’t, as far as I know, I don’t think, I don’t know if our department, the County has a legal mandate to do the inventory whereas Nā Ala Hele and SHPD are legally mandated to it. So that’s, that was just my comment. VITOUSEK: Correct, yeah, yeah, and that’s why I said I think that, you know, I think the County having an inventory is an excellent thing, it’s an excellent tool for planning purposes, and I think that that could be included in the future revisions of the General Plan. KANUHA: Yeah, got it. UNGER: Thank you, you may be seated. The floor is open for a motion. VITOUSEK: Well, I would, I’d like to make a motion that the proposed amendments to the Kona Community Development Plan be reviewed by the Kona Community – Is it Action Committee? – and then they provide their recommendation based on the most current suggested revisions at a future Planning Commission. And I just add that I make that motion because I understand the importance of this issue and the amount of work that went into it, and I feel like us having the opportunity to review it this time around and giving the opportunity back to the Action Committee to review the changes that have come out of this is something that is only going to benefit the overall plan and any, any alterations that come from that. UNGER: We need a second. I’ll remind Commissioners second doesn’t mean approving; it just means we can talk about it. KEALOHA: I’ll go ahead and second. UNGER: We have a motion by Commissioner Vitousek, second by Commissioner Kealoha. The floor is open for discussion. CHURCH: I don’t favor that. I think we need to move this whole process forward, and we’re talking small items. These people have an awful lot to do as it is, as they look forward. I think we should move this thing forward. So I will not be supporting that motion. KEALOHA: Listening through this I know the Action Committee put a lot work into it early on where we are at now, and I view these amendments as being a stopgap until the comprehensive review is completed and move forward. So I think moving it forward would assist the process. I’m not entirely confident the comprehensive review will be done in a timely manner, and that’s my biggest reservation. But, in light of that and the work of the Action Committee, I would be favorable to moving it forward as a stopgap so we can conduct business in the county. CARR SMITH: I echo Perry’s thoughts. 29 EXHIBIT B UNGER: I also agree. I think I would agree to move the process forward. So I think everybody has given their opinion. Roll call. JACKSON: Commissioner Vitousek? VITOUSEK: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Nay. JACKSON: Commissioner Carr Smith? CARR SMITH: No. JACKSON: Commissioner Church? CHURCH: Nay. JACKSON: And Chair Unger? UNGER: Nay. JACKSON: Okay, the motion fails, four to one. UNGER: The floor is back open for a motion. CHURCH: I move that a favorable recommendation be forwarded to the County Council on the Ordinance amending the Kona Community Development Plan, Ordinance No. 08-131, based on the Planning Director’s recommendation, which shall be adopted. UNGER: I need a second. CARR SMITH: Are we including— UNGER: Let’s go ahead and second the motion as it stands— CARR SMITH: We didn’t even reference the letter. UNGER: —and then we can have our discussion about, discussion of— CARR SMITH: Second. UNGER: Okay, so, motion by Commissioner Church, second by Commissioner Carr Smith. The floor is open for discussion. So, Carr Smith, you did have a question. 30 EXHIBIT B CARR SMITH: Yeah, I think the letter needs to be referenced in the motion, with the amendments, and then— HALL: I guess my question would be to staff if the letter is being included in the recommendation from the Director or not, if, or if it’s separate. JACKSON: The third paragraph of the letter says, “With this review the Planning Department request that the Leeward Planning Commission accept these amendments as part of the Kona CDP Amendment Package to be integrated prior to being presented to the Hawai‘i County Council.” HALL: Okay, so it’s, it’s all together and one, yeah. UNGER: Can I ask Commissioner Church to amend his motion, if he would like to? Or do we have to vote on this? HALL: Amend it about, for what? UNGER: To include the, as amended— HALL: Oh, no, no, no, it’s, my point was is that the letter is— UNGER: The motion incorporates this— HALL: —yeah— UNGER: Okay, so we are incorporated, okay. HALL: —incorporates this. It’s already, yeah, it’s all one package. UNGER: Further discussion? CARR SMITH: What about the changes that Mr. Vitousek recommended that the Department seem to agree to, a couple of them. UNGER: Yeah, that is not part of the motion, so Commissioner Church could amend his motion or not, and we can call roll call. So the motion stands as is unless Commissioner Church would like to amend based on Commissioner Vitousek’s comments or concerns. CHURCH: How specifically would that be amended? Simply reference his comments? HALL: Basically, I think, stating the page numbers, or the actual numbers; there’s numbers for each, for each amendment, so it was – I don’t have them in front of me right now, but, yeah. UNGER: So, there we can, we can go – are you open to, I mean this is your motion. CHURCH: Do you want me to withdraw the motion then and remake, or just amend it? 31 EXHIBIT B HALL: You can just amend it. UNGER: You can amend it. CHURCH: Okay. HALL: I mean it’s totally your decision, so if you would like to withdraw and remake, you can, but— CHURCH: That’s fine, I have no objection for the consideration \[inaudible\] I simply moved that the process go forward. UNGER: Right. Sure, so Page 10— CHURCH: Okay, so my motion would be— VITOUSEK: I can, I can – oh, sorry, one second – I can write them down for you so you can read it off the— CHURCH: Well, how about if I say it’ll be amended per Commissioner Vitousek’s input at this time. VITOUSEK: Fine with me, if that works for them. UNGER: That’s probably going to be too, that’s going to be too general because I think there are four requests, and— HALL: Yeah – oh, sorry, go ahead. UNGER: —and, three we are okay, one probably not. CHURCH: Okay, my motion is amended per Commissioner Vitousek’s proposed changes. These are— VITOUSEK: Yeah, that’s the \[inaudible\] TRAN-3.4, 3.5. CHURCH: Okay, the first one is Page 10, Paragraph 3.4 and 3.5 – changing what to what? JACKSON: Changing “should” back to “shall” for the two street policies related to safe routes to school and retrofitting existing streets. CHURCH: That’s okay, you know, I’m not going to amend my motion, I’m sorry. I’ll withdraw, I’ll leave the motion as it stands. UNGER: We have a motion on the table. Open to discussion. 32 EXHIBIT B CARR SMITH: So, the motion is to approve what’s been presented to us along with – but you guys are saying the letter is included. I don’t see why we wouldn’t reference it, but, okay, and that’s it, right? HALL: The letter itself references that it’s part of the package. CARR SMITH: Okay. HALL: Yeah. But if you want to reference it, you can. CARR SMITH: No, no, just checking. UNGER: Further discussion? KEALOHA: I think I just want to reiterate earlier comments about – I don’t discount Commissioner Vitousek’s recommendations in any way; however, I do believe that this does need to be addressed in the, you know, future comprehensive changes, and should be expedited, hopefully. But short of that I’m still willing to move forward as is on the amendment. CARR SMITH: I agree. I respect Mr. Vitousek’s comments. My feeling about the 3.4 was that, well, maybe the “To the extent practicable” provides some flexibility, but that’s definitely a fiscal concern there. And same with the “Safe Routes to Schools,” I mean it’s, obviously that’s what everybody wants, but I’m not sure whether it’s fiscally reasonable to expect that that “shall” be done automatically. And the other one on Page 29, I don’t believe we came to a conclusion on. I think Chair asked us to move on from that one, so I didn’t get a conclusion as to what the Department felt about that one. And I don’t know whether Mr. Vitousek after seeing the map felt any different. VITOUSEK: I would say I feel strongly about it that we shouldn’t be trying to limit ourselves based on things that we can’t foresee, and that I believe that’s the intended purpose of these revisions. CARR SMITH: And then the County’s list, I think that’s a great idea; it’s a long-term goal that I would support. But I think I support moving forward. UNGER: Roll call – or, excuse me, any other comments? \[None.\] Roll call. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. 33 EXHIBIT B JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Vitousek? VITOUSEK: Nay. And, you know, as a dissenting voice, I’ll give my reasoning. It’s not to slow progress, it’s not to impair the County’s ability to do anything; it’s just to take a closer look at some things that we think can make a difference in our community. And that’s why I feel that we are here as Planning Commissioners is to try to be the voice for the community, to identify community needs, and how we can bring that to the table in representing our community in this Plan that’s going to have consequences for how the community is developed. So, hopefully, that will be considered. And thank you for your time. JACKSON: Chair Unger? UNGER: Aye. JACKSON: Okay, the motion carries, four-one. UNGER: Thank you. Will we be providing a letter to the Planning Department? HALL: To the Council. UNGER: Oh, to the Council. So we will be providing a written letter with the result to the County Council. Thank you all. The hearing ended at 1:17 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 34 EXHIBIT B