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HomeMy WebLinkAbout2006-03-09 Tplanning_director PLANNING COMMISSION COUNTY OF HAWAI€I HEARING TRANSCRIPT MARCH 9, 2006 A regularly advertised hearing on the amendments to Chapter 23 (Subdivision Code) was called to order at 10:20 a.m. in the County Building, Councilroom - Room 201, 25 Aupuni Street, Hilo, Hawai€i, with Chairman C. Kimo Alameda presiding. PRESENT:C. Kimo AlamedaABSENT & EXCUSED: Fred Galdones Bill GrahamRodney Watanabe Andrew Iwashita Jeffrey McCall Allen Salavea Rene Siracusa (left at 1:30 p.m.) HannahSpringer IvanTorigoe,DeputyCorporationCounsel Christopher J. Yuen, Planning Director Norman Hayashi, Planning Program Manager (left at 3:00 p.m.) Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 2 people from the public in attendance. INITIATOR: PLANNING DIRECTOR Continuation of a hearing on amendments to certain sections of Chapter 23 (Subdivision Code), Hawaii County Code 1983 (2005 edition) regarding the subdivision review and approval process, including but not limited to information required for the submittal of an initial subdivision application, revision to certain time requirements, grades and curves of streets, and ‚housekeepingƒ changes to the languages within various sections of the code. ALAMEDA:All right, next on the agenda is the Planning Director, whos the initiator who will be seating up front. After the Planning Director shares a little about the agenda item, I believe we do have testimony for this particular agenda item. Sharon, we do? NOMURA:Yes. ALAMEDA:Okay, Mr. Frankel. So well be proceeding as such. YUEN:This is a set of recommended changes to the Subdivision Code, mostly technical in nature. We had a hearing on this on the Kona side where I went through them one by one. I think the best thing to do would be to -. That it was late in the day and I know that the Commissioners were tired, I think the best thing for us to do would, I dont want to go through the changes one by one again. We wanted to have a hearing on this on both sides of the island. EXHIBIT D Just as a matter of where were trying to go with this, the Charter does call for the Planning Commission to makea recommendation on changes to the subdivision ordinances to the Council. So it has to be taken to the Planning Commission. We do hope that the Planning Commission will make a favorable recommendation today. The court case that came up created a lot of issues within the Department over the status of pending subdivision applications. The specific court case involved a subdivision that had been given what we call tentative approval. And just to give a little bit of background here, there are two big stages in subdivision approvals. The first stage is called tentative approval. Tentative approval basically gives you the layout, says that the layout of your subdivision is okay, where youre planning to put the roads, where the lots are laid out. And it sets out a series of conditions that you have to meet, for example, constructa20-footwidepavedroadwithcurbs,guttersandsidewalks.Thatwouldbeatypical condition of a tentative subdivision approval. Then final approval comes after the subdivider has either made all the improvements required or has bonded the improvements. So tentative approval is important because after tentative approval if you want you can take your construction plans to the Department of Public Works, get them approved, and then you can start building your streets. The significance of final approval is that after final approval you can sell your lots. Final approval is really the last stage; and after final approval youre really out the door. So what happened in the court case is that the court said that tentative approval was improperly granted to this subdivision because when the application came in all of the information thats supposed to be shown on the proposed subdivision map was not there. If truth be told, there are probably several hundred subdivisions that have received tentative approval of which the same criticism can be made. For the most part, these are, the problems with the tentative map are fixed before there is any action because what will happen is that if there was a problem with a map as submitted, the tentative approval letter will say fix this, this and this before final; and it means that it requires that you have to do that. So just to take a very small example, if they omitted, the Subdivision Code says youre supposed to put the northpoint arrow on the map. If they forgot that, we might say on the tentative letter put your northpoint arrow on the map. But under the court case that tentative approval is at risk because the northpoint arrow wasnt on the map when the application was originally submitted. Subdivisions are one of the major functions of the Department. We had about 230 applications last year. This, to make all the subdivisions comply with some of these technical requirements is a huge amount of work and a great deal of it is not necessary. So most of the Code amendments address this kind of issue. And Id be happy to discuss the specific Code amendments if you have any questions about them. One last thing on the bigger picture we have a project to make an overall change to the Subdivision Code. We still have that project. Many of the things that should be improved in the Subdivision Code we intend to do that in that process. In this amendment though were just intending to fix the current process so that we can handle subdivisions without this being an issue and a problem. ALAMEDA:Questions? Commissioner Siracusa? 2EXHIBIT D SIRACUSA:Yes. I receivedtwo copies of the ordinance, one in white, the pink cover sheet, and one in yellow. I only had timeto read the yellow one. Are they the same? YUEN:Theyre practically the same. There are some slight changes in between the two. SIRACUSA:Could you outline those for me, please. YUEN:On Section 23-63(1), thats on page 6 of your yellow, and this is a change from, okay, this actually is a mistake in what we just did. Right now it says, ‚Proposed name of the subdivision which shall not duplicate nor resemble the name of any other subdivision in the County. The proposed name shall be subject to approval by the Director.ƒ After we circulated the first set of amendments, we got a comment from one of our staff members that said we often, a lot of subdivisions that we have, say, a two-lot subdivision, they dont have a proposed name. Sowhatwewantedtodowaschangeitsoitdidntrequireaname.Sothisshouldactuallysay ‚Name of the subdivision, if proposed, which shall not duplicate.ƒ As far as what the Code currently says, because it calls for a name of the subdivision, if somebody submitted a subdivision that didnt have a name on it, again, thats a technical mistake; and its technically wrong to have approved a subdivision without a name. Thats one change. So we would ask that this be changed so that that language, that ‚if proposedƒ clause comes in so its not mandatory that there be a name of a subdivision. ALAMEDA:Very good. Other changes, if any? YUEN:And in Section 23-65(3) on page 7, ‚Lots, showing approximate dimensions,ƒ and weve changed the word ‚minimumƒ to ‚proposed lot size.ƒ And the Code now, see, typically the subdivision will show a, say its a residential subdivision and theyll show a lot and theyll say the lot is 10,700 square feet, and the Department will check back to make sure that that conforms with the minimum lot size. For instance, if its an RS-10 zone, thats okay. But if its an RS-15 zone, thats not okay. But we want them to show the actual lot size rather than the minimum lot size because we have that in the zoning information. So thats why we changed that from ‚minimumƒ to ‚proposed.ƒ And then we took out ‚proposed lot numbers,ƒ we took out ‚block numbers,ƒ many subdivisions dont have block numbers, and then put in if any, and thats just to say if any -. Okay? On page 11, its just a, this is a very, the word ‚thereforƒ becomes ‚thereof.ƒ Thats a change from the previous draft. Those are the changes between the draft that you saw in Kona and the draft in yellow that you have today. ALAMEDA:Commissioner Siracusa? SIRACUSA:So basically, for clarification -? ALAMEDA:Sure. SIRACUSA:The yellow draft is the more recent one, yes? 3EXHIBIT D ALAMEDA:Clarification? SIRACUSA:Thats the one I read. ALAMEDA:Okay. Clarification, Mr. Director, the yellow one is the most recent? YUEN:Yes, the yellow one is the one were asking for a favorable recommendation on today. ALAMEDA:Other questions for our Director? Seeing none, we do have testimony. Please come forward. Kimo. FRANKEL:Thank you. ALAMEDA:I dont need to swear you in, we did that already. FRANKEL:Great. ALAMEDA:You may proceed. FRANKEL:Thanks. I am the attorney who brought the case that is prompting this revision to the Subdivision Code. So Id like to talk quite a bit about my concerns and actually ask you at the end of this to make a motion to ask the Planning Director to come back with another draft that addresses the four concerns Im going to outline to you. Chris and I have different interpretations of the law. Im happy to say that my interpretation prevailed in the Leslie versus Board of Appeals case. My interpretation may not be as pragmatic but it was correct. And Im hoping that you will agree with me that theres a number of concerns that need to be addressed in the Subdivision Code revisions. First of all, our Charter was amended a couple of years ago to include the Department of Environmental Management. Since that time, however, the Subdivision Code has not been revised. And so you have applications being forwarded to Public Works informally, well, the Solid Waste Division and Wastewater Division used to be in Public Works but is now in the Department of Environmental Management, a separate Department. So the Subdivision Code needs to be revised to reflect that. Its a minor issue but I think since youre amending the Code, that should be done. Secondly, and I think far more importantly, the Subdivision Code should specifically require that the Department investigate and protect all native Hawaiian traditional and customary practices. This is one of the issues in the Leslie case that the Supreme Court did not need to address because it addressed the other issues and disposed of the appeal. However, it is quite clear to me that the Constitution and the Hawaii Supreme court cases interpreting the Constitution provide that the Planning Director must investigate and protect native Hawaiian rights before any subdivision approval is granted. You can do nothing, as the Planning Department has suggested regarding this issue and leave it murky and wait for us to litigate the issue as will occur. However, I think thats both foolish in terms of the law and foolish as a policy. I think you need to, as a body, say native Hawaiian rights are important and we want our Planning Director to 4EXHIBIT D investigate and protect them before any subdivision approval that is granted. There are three major subdivision projects right now in Kau. I can tell you native Hawaiian rights will be affected by these projects. Already in the Planning Department files there are letters, or at least one letter, by folks whose rights are going to be impacted. You need to make it clear to the Planning Director and to the Council that you believe the Subdivision Code should have a specific explicit requirement that native Hawaiian rights shall be investigated and protected. More specifically, the developer must submit information when they submit their plan on native Hawaiian rights that are exercised in the area that is proposed to be subdivided or, and discussion of how those rights may be impacted. Second or third issue, so the Department of Environmental Management should be explicitly referenced. Native Hawaiian rights should be investigated and protected. Thirdly is the issue of agricultural lands. Chris and I and Ivan have a completely different interpretation of the State Land Use Law, which to me is quite frustrating. But, to me, the legislativehistoryandthelanguagearequiteclear,thatthelanduselawprohibitsnonagricultural uses of agricultural lands. That includes residential housing construction. Thats what Judge Ibarra ruled. And, you know, I can go through a litany of the law and show you where it is in the law and where it is in the legislative history. The County has turned a blind eye to the problem regarding residential construction on Ag land. Its a very, very difficult issue to address after subdivision approval has been granted. Its not hard to do beforehand. And what Id like to ask you to do is ask the Planning Director to come up with language that requires the Planning Director to insure that any subdivision of agricultural land is commercially viable. If as, for example, was proposed at Keopuka which is adjacent to Kelakekua Bay, and much of it is covered in lava, I think most would concede that it would be very difficult to have commercially viable agriculture there. If someone comes in with an application to subdivide it and they cannot demonstrate that it is economically viable to have agriculture there, then it may not be subdivided. This gets to a major premise of the land use law, that was land thats in agricultural district is not there just there for agriculture, its there as a growth control measure. Land that is premature to be subdivided to be developed is put in the Ag district. That is clearly established in the land use law. So if someone comes in with a project say at Keopuka and it is not agricultural, then it may not be subdivided. End of story. What the applicant needs to do is apply to reclassify the land before the Land Use Commission and come to the Council, rather than avoiding oversight by the County Council, the Land Use Commission, and the Planning Commission. What is happening now is projects in the agricultural district are being subdivided without any oversight by the County Council or this Commission. Youre being circumvented; and this has to stop. And the way to make it stop is to have explicit language in the Subdivision Code that says that any subdivision of agricultural land shall include a farm plan to demonstrate that the subdivision is a genuine agricultural subdivision. The fourth major issue I want to deal with is essentially found, and I dont have the latest version of the bill, of the amendments to the Subdivision Code but its found, in my draft, at least, on . page 6And thats paragraph (e) to Section 23-62. What this provision said, let me read it to you, ‚The directors deferral of a subdivision for further review under subsection (a) constitutes an acceptance of the contents of the preliminary plat as submitted, and the directors issuance of a tentative and final subdivision approval is valid despite the failure of the preliminary plat to include all the information specified in sections,ƒ basically, ‚23-63 to 23-66.ƒ If you read this language properly, what it does is it changes all the mandatory informational requirements in the subdivision application to discretionary. That is very troubling. What it means is a developer 5EXHIBIT D can submit an application with no information, no member of the public has any idea whats going on, the Planning Director grants his approval or her approval, we have no basis to appeal, we have no basis to challenge it, we know nothing and the developer gets vested rights. This is extremely troubling. Chris will not be the Planning Director forever. Whether his terms ends in December with a new mayor or two Decembers from now, there will be a new planning director. And to put such unfettered discretion to allow a developer to not say at all how drainage is going tobe dealt with, how sewage is going to be dealt with at an early stage, so that the public can meaningfully participate is not in the public interest. The reason why so much of this information is important, although it has been ignored for years is so that the public can protect those resources that are important to them. For example, if youre concerned about burials on the site but you dont know if an underground injection well is going to be built near it, if you dont know how the sewage is going to be disposed of and therefore you dont know what impact it will have, it impairs your ability to successfully not just challengeaprojectbutimproveaprojecttomakesurethataprojectdoesnthavetheseimpacts. Thats why this information needs to be submitted. Now I dont have a problem with the change on my draft page 8, subsection 7 that says that improve -, the existing language in the law says, requires the developer to submit information on improvements to be made by the developer and the approximate times such improvements are to be completed. It seems to me that it makes sense, in attempting to deal with the ramifications of the Leslie decision that this amendment makes sense. I dont agree with the change to subsection 3 which now requires the developer to provide information regarding the approximate location within the subdivision of existing sewers and waterlines, culverts and drain pipes, etc. etc. That kind of information needs to be there so the public can meaningfully participate before tentative approval. So with the exception of, with the recognition that the change to the informational requirements in paragraph 7 makes sense, the wholesale granting of unfettered discretion on the Director to not allow any information to be submitted is not in the public interest. Id like to point out that, two other things. One is it is really unfair for the suggestions to be made that unless you do this all these subdivision approvals that have been granted previously are jeopardized. I dont think thats fair or reasonable to characterize it as has been suggested in the, well, by the Planning Director in the Section l in the bill. Its not fair to suggest that because theres a 30-day window within which to appeal a tentative approval. And so all those tentative approvals that were granted without having the informational requirements, it is too late to challenge them. But once the Leslie decision came out, and Im hoping the Planning Department conforms to it, they could not have granted any approvals for applications that didnt have the requirements. So, anyway, its not fair to expect that previously granted approvals are jeopardized. Finally, I just want to leave you with this thought that this bill gives a whole lot of flexibility to applicants. Were essentially removing the word ‚shallƒ from the Subdivision Code. When members of the public attempt to request a contested case hearing and the contested case hearing has a set deadline, if members of the public miss that deadline ‚shallƒ means ‚shallƒ and they cant get their contested case. So why, it just seems to me a little unfair that were holding members of the public who are not represented by attorneys often, who are not represented by professional engineers, who are not represented by professional consultants, were holding them to a strict standard, but were not going to do so for developers. I just dont think thats fair. Thank you. 6EXHIBIT D ALAMEDA:Thank you very much, Mr. Frankel. Questions? We have Commissioner McCall. MCCALL:Yeah, maybe, just a quick question. I know youre referencing all your subdivision stuff for large developers, but let me give you, when you talk about Ag subdivisions, let me give you a -. Okay, Ive got a 90-acre parcel out in Kau. It has a carrying capacity of 15 cows. Its not, you know, its not a productive thing. If I want to split it up and give half of it to my sons, according to you I cant do it, even though its zoned Ag-20 and Ive got 90 acres. I cant do it because I cannot make an Ag plan that will show that its a, you know, its a viable enterprise. Its not a viable enterprise now. FRANKEL:I think you have a number of options, I think you have a number of options. First of all, if you wanted to develop it, I dont think the proper course in the Ag district is to subdivide it. The proper course is to come for a rezoning. If you wanted to give it to your sons,Idontthinkitisaproblemtocreateatrustwhereyouleavethiskindofstuff.However, what you have to recognize is while the law recognizes, and I think we all offer, provisions are made and sympathy is, I mean, we all understand and sympathize with the case of the parents wanting to leave their children their land. However, what has happened is because of this concern we have this, the Planning Departments on all the islands, except for Maui these days, have turned a blind eye to all the massive, massive development projects that take this agricultural land and turn it into subdivisions, residential subdivisions. And the reason the land use law was constructed the way it was, was to say we want to concentrate growth in urban areas, whether that urban area is Hilo, or Waimea, or Kailua-Kona, or what have you. The whole idea of the land use law was to concentrate growth there and saying that areas that are designated Ag no can. You can put up one farm dwelling there in your large 90 acres; but to subdivide it into small parcels, none of which are going to be doing Ag, you said youd divide it up into, I dont know, 12 parcels or, you know, depending what the zoning is, thats not okay. Thats not okay. Youve got to wait. Youve got to wait to go to the Land Use Commission to reclassify so you can deal with all the infrastructure issues, natural resource issues. Because the subdivision process, currently they are not taking care of the natural resources issues, theyre not taking care of native Hawaiian rights, theyre not taking care of infrastructure issues like police, fire. And so what youre getting are scattered subdivisions without adequate government services. ALAMEDA:Commissioner McCall, follow-up? MCCALL:Yeah. But, so what youre saying is that if you had it your way, I would not be able to subdivide my property to give it to my sons? FRANKEL:Correct. You can give it to your sons through other legal means. MCCALL:I could not subdivide it to give it to my sons. Thank you. ALAMEDA:Commissioner Siracusa? SIRACUSA:Yes. Thank you for coming before us with these. I know that I have had occasion on many times to you read your book on land use and found it very helpful. I can see where, including the Department of Environmental Management now that they are in existence, it would be a good housekeeping measure to include in this; and I would like to see us do that. 7EXHIBIT D The question of protecting the native Hawaiian rights, I had actually inserted something when I was scribbling around on my copy and I had it in Section 7, Chapter 3, Article 5, excuse me, Section 23-69 as an Item (F), which seemed to me to be a logical place to put it in, to insert that. But that would be, were talking about for the final plat, unless you had it in mind to put it in earlier for the tentative. FRANKEL:Yes. SIRACUSA:So then the wording that you had suggested might be an added (F)? FRANKEL:I would put it in, you know, either 23-65 -. SIRACUSA:Sixty-nine was what I was looking at, information required on final plat. FRANKEL:Yeah,Ithinkthatstoolate.Ithinkyouneedtodoitbeforethe preliminary, so 23-65, or 66 or, yeah, one of those. One of those is where youd want to put it. SIRACUSA:There were other, some other things that I had -. FRANKEL:Sixty four? SIRACUSA:Made note of here. Lets see, on page 2 near the bottom which is ‚The proposed amendments are intended to legitimate past applications received by the department when the department has reviewed the applications and sent them on to other public agencies for review.ƒ And then it says ‚They validate past tentative and final subdivision approvals which may be based upon applications and preliminary and final plats that are not in full technical conformance.ƒ And I was very disturbed by that because I felt that we were being asked to reward noncompliance. And Im wondering whether that means that we are actually losing out on income from fines and penalties and that sort of thing. ALAMEDA:Mr. Director? YUEN:Can I answer that. You know, going back to at least the 1970s, the subdivision processing was done differently than strictly spelled out in the ordinance. So I dont cast any blame on anybody, really. They had a system that worked. But as far as noncompliance, the subdivisions, the subdivider submitted what they come to regard as, that will work. You know, theres a group of people probably a dozen who do almost all the subdivisions, a dozen to twenty surveyors. And if the Department will accept the application without some of this information, then they will accept it. Now the big one, the most important one as far as the amount of information was this section that said, ‚improvements planned by the subdivider with sufficient information to check against Code requirements.ƒ That was not done because you dont know what, when the subdivision is being looked at for the first time, you dont know that the layout is going to be approved a certain way, that the roads are going to be approved a certain way. So its premature to do the engineering. It doesnt mean that you end up with non- engineered roads or bad roads in the subdivision. It just means that the level is deferred to a later stage in the subdivision. So this is, you know, there was a way of doing this that evolved; and it essentially worked. Not that there is never a problem in the subdivision, but there are problems no matter how you write a Code, and it was not a practical way of making it work. So all this is 8EXHIBIT D trying to do is, and in that one, and Inoticed that Mr. Frankel has no problem with taking that out, that one is something that we would take out. But if you go back and look at all of these subdivisions, the preliminary plat will not contain a list of improvements proposed by the developer and information sufficient to check against various kinds of Codes. So we need to have that fixed. SIRACUSA:I, can I continue? ALAMEDA:Let me ask real quick. Im just getting a little bit concerned about our young man back there. He might get a little fidgety. If you have any questions for Mr. Frankel directly, I would appreciate that now. And then we can turn it over to, if you have questions for the Director later -. Commissioner Siracusa? SIRACUSA:Okay. I wanted to point out to Mr. Frankel that the Item No. 7 on page 8 thathereferredtohasbeendeletedinthenewestversion;andIbelievethatsoneoftheitems that he was supporting. There were quite a few things that he -. FRANKEL:I dont mind that being eliminated from the Code, that Section 7, the improvements. I mean I can understand Chris point, that Im saying -. But the other stuff really bothers me. SIRACUSA:Okay, there was a whole lot of discretionary stuff by the Director that bothered me also, not because Chris is the Director now but remembering who some of the previous Directors were; and that would be on the top of page 6 that you quoted, ‚(e) the directors deferralƒ and also the bottom of 7, ‚Unless waived or deferred by the director, the preliminary plat shall includeƒ blah, blah. My total feeling is that I would wish that you had come before us, David, with your own Ramsayered version to say what you would like to see and where you would like to, you know, put in those changes so that we could compare one with the other and then have something to discuss. And I would be really be happy to ask the rest of the Commission if they would consider allowing you to do that and holding off on everything so that we could then look at the, at all the issues on both sides of these issues and see how they play out, and have something more tangible to discuss thats actually on paper. ALAMEDA:Is there a motion for continuance? Is that what Im hearing? SIRACUSA:Yeah. ALAMEDA:Mr. Director, any comment or -? YUEN:Well, I do want to say this is an extreme problem within the Department that we would like to see solved. And, you know, this question of the top of 6, the top of the page is actually one of the very key parts of this amendment. That is something that legitimates the existing applications. Where they do not have certain information in them, and we can go through this, we can go through this point by point as to what would the consequences be if it was missing; and if its something thats caught later, its something that will be fixed later. The idea that you can, Mr. Frankel began his discussion with something that you can submit a completely, like a blank application and have it approved. That wont work because you cant have a blank subdivision. You cant have a subdivision like blank page and the Director waive 9EXHIBIT D everything and approve the subdivision, because you dont have anything. You have to have a subdivision laid out in order to have a meaningful subdivision approval. So you cant, and if you approve a layout as far as a tentative subdivision with 55 lots, you cant do a final subdivision with 69 lots, to just give you an example. You have to, the final subdivision has to conform to the tentative subdivision. So the idea that youre going to get a completely, that youre going to get an enormous change between the preliminary application, the tentative, and the final is just not in the process. So, I mean, Im happy to go through any specific issues that people may have with the changes that are being asked for here. But I would like if its possible for the Commission to act on this. SIRACUSA:Id like to respond. ALAMEDA:Commissioner Siracusa? SIRACUSA:Yeah,IdliketorespondthattherehavebeentimessinceIvebeenonthe Commission when I saw applications come before us to subdivide and they didnt give us all the information, there were whole areas that we were not told what was happening. And I felt, and stated that I felt at the time that I felt very uncomfortable with approving those things not knowing what the total picture was. And -. YUEN:Youve never seen an application for a -. Let me think about that. SIRACUSA:Yeah, there was -. YUEN:I believe youve never seen an application for a subdivision. You will, the subdivisions never come to the Commission. The only reason I halted for that, before I said that, was that if you have an SMA permit, you may have a subdivision that needs an SMA permit SIRACUSA:No, there was one that was up mauka. YUEN:But youll never see a subdivision. SIRACUSA:There was one that was more up mauka in Hilo and there was a stream or the Alenaio Project running along one side, one whole area we were told, we werent being told what was, nothing was planned yet, yet. YUEN:You may have seen, you see applications for rezonings that will lead to subdivisions. But the subdivision is a discrete stage of approval. A subdivision, there was a statement about the Planning Commission or the Council being circumvented. By ordinance the subdivision is an administrative process. Under the rules of the County the subdivision itself never comes to the Planning Commission. If it needs an SMA Permit, it may come to, this SMA Permit to permit the subdivision will come to the Planning Commission. The subdivision itself will never come to the Planning Commission, so youve never seen one. SIRACUSA:Youre right, its a rezoning thats prior to the subdivision. But then, you know, like some of the issues that Mr. Frankel raised, for example, just recently we had the family guy who wanted to subdivide for his family who, hes the only one living here right now and when they retire maybe, would sell off three lots to raise -. We had a whole discussion about 10EXHIBIT D the fair share and how that would play out with the lots. And he was saying that none of them would be interested in farming those lots. It was an Ag zoned parcel, you know, but he would do the farming on their lots. And thats the sort of thing that, you know, the concern that Mr. Frankel was raising there about the Ag land thing. I think this needs more work. I dont feel comfortable with it right now. ALAMEDA:Other thoughts? Commissioner Springer? SPRINGER:Im wondering if the Director can indicate to us if he agrees where the additions regarding the Department of Environmental Management might be made, where the insertions on Hawaiian rights might be made. Perhaps under 65, under 3 would be an appropriate place for the Hawaiian rights, and with regard to the farm plan, if theres an appropriate place to insert that? YUEN:Well,letme,theaspectoftheDepartmentofEnvironmentalManagement, we already handle that administratively in that if its near a County sewer system it gets referred to the Department of Environmental Management. They determine whether they can connect the sewer to it. Wastewater is handled by, the normal requirement is that it goes to the Department of Health. If the Department of Health says okay, you can do an individual wastewater system which will be a septic or a cesspool. If it needs to be sewered, then the Department of Health requires a sewer and we connect it to the County sewer system. So theres no need as far changing the Department of Environmental Management. Both the, the suggestions for Hawaiian rights and the suggestion for agricultural use and a farm plan are major legislative decisions. They are not, especially the agricultural use is a huge legislative decision. And what Mr. Frankel wants me to do, and weve had this discussion, is to give Commissioner McCalls example, you have a piece of property thats zoned, thats say 90- acres and its zoned Ag-20, and under the current, under my understanding of the way the process works, and the way it has worked for 40 years here, and the way every other County does it, you can make the number of lots allowed by the zoning. Now you have to follow the Subdivision Code that calls for roads, water and drainage. All right? But you dont have to prove, pre-approve agricultural, productive agricultural viability on each of the subdivided lots. Thats what he wants me to do. Now I disagree that you can do that as, that I as a Planning Director can sit there and say, oh, now, folks, this is a requirement, that I just discovered this in Chapter 205, Hawaii Revised Statutes, because its not anywhere in the, clearly not anywhere in the Subdivision Code or the Zoning Code that says you have to do this. And I can give a little more detail about this later. But, so how people want to handle agricultural land, thats a debate in itself. And, you know, people, we can have that debate and discussion, the Council can introduce a bill to do that if they want to introduce that into the Code. In the process of trying to fix this problem with the way we do the subdivision that we get in the Planning Department every day I dont want to deal with it. Its a huge issue that is not commensurate with what were trying to do right here. All right? On Hawaiian rights, I think its probably best to describe what we in fact do. We had a discussion, historic sites, okay, archaeological sites. Theres a section of Hawaii Revised Statutes that says that 60-42, and it says that when a subdivision or other project comes in that may affect historic sites that SHPD shall be given an opportunity for review and comment. We discussed this with them. They did not want to look at 200 subdivisions a year. So we 11EXHIBIT D selectively send them subdivisions that we think may involve Hawaiian rights, typically coastal undisturbed areas. Not, say, mountain view, sugar cane, former sugar cane land and mountain view, we dont send it to them, or pasture land in Waiakea Uka. I cant say that we always hit them but we have, I think youll see that the major coastal subdivisions are going through the review process. So we do that. If the subdivision has an SMA trigger, it happens on the SMA level. Very often there has been a zoning trigger previously for the subdivision, so that kind of review has already happened. As far as having a generic PASH, Ka Pa€akaitype requirement, again, I think of that as a separate issue. Thats an issue that we should take up as a stand-alone action. Im not that convinced that what we do -. We started implementing those requirements on County zoning actions. They were not done before the current administration. If you go back and look at rezonings from the time of the PASH decision till 2001 you will not typically see the kind of analysis that we have. On the other hand, what you typically see from the applicant is a fairly cursorystatementthatthereisntanythinggoingon.AndImnotsurethatwewouldget something much more than that in a typical subdivision application. Im willing to look at that but, again, Id rather not do it in the course of this vehicle. ALAMEDA:Commissioner Springer, follow-up? SPRINGER:No, thank you. ALAMEDA:Commissioner Graham? GRAHAM:Chris, could you just give us a sense, you know, if were trying to decide whether we want to continue it for one more meeting, whats the real time pressure feeling that makes you really want to have us deal with it today? YUEN:Well, we have subdivisions going to final approval, all right? We, what we have to do now is we have to go back, when its ready to final, we have to go back and look at the preliminary plat and see what information was missing on the preliminary plat. And then we list that information and we take it to the Department of Public Works and the Department of Water Supply and say if you had had this information when you looked at the preliminary plat the first time would your recommendation be different? And they typically say no. And then we go ahead and finalize the subdivision. But theres this on-going kind of, theres this on-going back and forth that has to happen because of the decision that was made. The second thing is that, not so much from the standpoint of the Department but from people out there, if they dont list the improvements, etc., etc., with their preliminary application, we have to bounce it because it doesnt conform. So the people are holding off on applying because they dont want to do the engineering for the subdivision before putting in the preliminary plat. Then we have people who are amending, in order to get their subdivisions moving, theyre amending their preliminary plats, so were getting stacks of amended preliminary plat maps in all the time. So theres quite a bit going on. GRAHAM:So, in summary, excuse me, in summary its just a sort of on-going uncomfortableness with the process as it is now that youd like to get fixed as soon as possible? Its not that theres any particular deadline coming up or anything like that? 12EXHIBIT D YUEN:Well, there are subdivisions that are coming ready for final approval all the time, and there are a bunch of, theres a lot of additional work that has to happen because the Code hasnt been fixed. It is an on-going every day workload issue that adds to the workload of the Department, along with this feeling of unease about a lot of tentative approvals that have been given in the past. GRAHAM:Thank you. YUEN:I wanted to say one more thing about that. There was a statement made that there is a 30-day window to appeal. What will happen is that if somebody wants to fight a subdivision, they will say they had no notice of it happening. And that is correct because there is not a public notice printed of the tentative approval of a subdivision. So its a very, its quite possible that the 30-day appeal window would not be, the Court would not enforce that for somebodythatdidnthavenoticeofthesubdivision. ALAMEDA:IdliketointerjectrealquickcauseIknowat1:30CommissionerSiracusa will be leaving us. And there was on the table a kind of matter fact working motion, if I could phrase it that way, that kind of got seconded real quick. And I wanted to just ask Mr. Torigoe, cause we didnt really, you know, it was all kind of in the mix, so I wanted to see kind of where we might be at with that and how to proceed. TORIGOE:Well, you had a motion to continue it. ALAMEDA:Correct. Thats correct. TORIGOE:And there was a second? ALAMEDA:Thats correct. TORIGOE:So thats on the floor. And it should be dealt with one way or another. ALAMEDA:Okay. Now what if the maker of the motion has to leave us? Is that, whats the procedures around that? TORIGOE:I think you can still go ahead and vote on it. ALAMEDA:And their vote would be absent? TORIGOE:If they leave, yeah. ALAMEDA:Okay. Continue, Commissioner McCall? MCCALL:Maybe just first comment on that and then -. I believe on a motion to continue if no motions are made it would be continued to the next meeting anyway. Is that correct? Or would we need a motion to continue? I mean if -? 13EXHIBIT D TORIGOE:Well, if nobody is able to make any kind of motion that anybody would support, then by default, I guess, you would have to continue it. Theres no specific rules on the Subdivision Code Amendments in your rules. But, and so wed just kind of fall back on general procedure. ALAMEDA:What if the motion to continue, they dont get the majority vote? TORIGOE:Well, then -. ALAMEDA:Then we just continue proceeding? TORIGOE:You continue discussing until you come to a point where you feel that, okay, we cant get anywhere so lets, you know, agree to continue it, or somebody makes some kind of motion that you can take action on. ALAMEDA:All right. Go ahead, Commissioner McCall. MCCALL:Yeah. Maybe Im just showing my ignorance, but -. Two questions I have,Iguess,forthePlanningDirector.Numberone,asfarasIunderstandthis,theordinance as we have it is pretty much trying to legitimize the status quo, I mean, what has been done for the last 20, 30 years? YUEN:Yes. MCCALL:Okay. As far as public input and notification, the public has, is not specifically notified but the public has information when somebody comes in for subdivision application. But is that the last that the public really is told anything about it? ALAMEDA:Director? YUEN:Under the recent amendment, there is a posting of the property. MCCALL:Those are the only two specific, I mean, I think they can go to the Planning Department and get a listing of subdivision applications for certain areas or whatever, right? YUEN:Right. You can get that. MCCALL:Okay. ALAMEDA:Commissioner McCall, any follow-up? Nothing? MCCALL:No, thats it. ALAMEDA:Okay. Commissioner Springer. 14EXHIBIT D SPRINGER:I wonder if the Director can answer the comments that Mr. Frankel made regarding those changes on the top of page 6 and the bottom of page 7 regarding public participation -. TORIGOE:In the mike. SPRINGER:Regarding public participation thats referred to in the recommended amendments at the top of page 6 and the bottom of page 7. YUEN:Well, if the public say responds to, sees the notice posted and they want to see what is the subdivision, they will be able to come into the Department and see the preliminary plat. And it will show the layout of the lots, they will have the lot sizes, it will have, it will really have all the information that you can have at that point. What kind of wastewater system is really determined by the Department of Health. And, the information, you know, what youneedtoknowaboutthesubdivisionisthere,itsthereintheplat.Sowhatthissaysisthat once its, once the subdivision has been sent out for -. What happens is that the preliminary plat comes in, its like an application. All right? It is an application, but mostly its a map. There may be pages that are appended to it but mostly its a map. All right? The staff of the Planning Department looks at it and says does this basically conforms and do they have, is it signed by the right people, does it have the right filing fee, and it conformed to-. There are some basic things that are done at the initial stages, if it conforms to the zoning and so forth. Once thats done, its then typically deferred and sent on to the agencies like the Department of Public Works, Department of Water Supply. All that this says is that once its deferred then the application is accepted as complete. And then you cannot, neither the Department nor a member of the public can come back and say oh you should not have sent it on because it did not have the northpoint, or they did not put lot numbers on the application, or something like that, something was missed. And that is the gist of this application. So it can still go through the process and be approved. But as far as the public seeing it, the public can look at it and see, you see everything thats really germane within the application. Its there. ALAMEDA:Commissioner Springer? SPRINGER:So nothing in those changes removes public participation? YUEN:No. ALAMEDA:Commissioner Springer? SPRINGER:On the motion before us, I think that the Director has gone through at least the high points of Mr. Frankels testimony, and Im not sure what continuing it would accomplish. By his comments here I dont see where there would be further amendment to the Code. ALAMEDA:Okay. Let me suggest this then. It seems like we have several options - To go ahead and vote on the motion on the table for continuance; if we dont have the majority vote then maybe a second motion could be made either way to approve or to deny, and then we could go forward with that as well. So, how does that sound, Fellow Commissioners? Should 15EXHIBIT D we go ahead on this? Motion was made by Commissioner Siracusa, seconded by Commissioner Iwashita. Any further discussion before we -? Go ahead, Commissioner Iwashita. IWASHITA:Thank you, Mr. Chair. You know, I guess my, Im trying to get a full appreciation of how the process works and apply it to the changes being proposed. And I guess my, and my concern is that the breadth of the language thats being proposed seems to be subject to interpretation, you know, more than whats trying to being accomplished can be done. And specifically when you look at the language, and maybe its just my lack of understanding, but, and the reason why I would support a continuance and further refinement of this language, is so that it addresses the problem that the Director is raising, and not more. Because I dont think its the intent that we, you know, we do more than basically legitimize the current process and how it works. Because if you look at specifically, and I was going through the existing language, under certain things, in my mind and I guess in practice, thats always there in a preliminary plat that are set out in Section 23-63, 23-64, 23-65; and, you know, most of those things are there. You know,iftheres.littletechnicalthingsthatlikesortofgetomittedandareofconcern,youknow, like I guess in 23-63, putting ‚unless deferred by the Directorƒ in those sections would address those issues. Rather than giving a broadbrush, you know, which is the language at the top of page 6, subsection (e) of the proposed changes to 23-62, I would prefer a more precise excision of, and addressing the specific kind of technical problems that the Director has raised and not do it in a broadbrush which in the wrong hands, you know, can be abused. ALAMEDA:Mr. Director? YUEN:Well, thats what I tried to do; and I dont know a better way to do it. Let me read ‚(e) the directors deferral of a subdivision for further review under subsection (a) constitutes an acceptance of the contents of the preliminary plat as submitted, and the directors issuance of tentative and final subdivision approval is valid despite the failure of the preliminary plat to include all of the information specified in sections 23-63 to 23-66.ƒ It just means that its valid despite not having all of the information. That means that theyve gone through the process and theyve issued the tentative or the final approval, despite the fact that the preliminary plat, that is the map that was submitted with the application, does not have all of the information. It does not, for example, say that you can get the subdivision final approval if you dont build the road or you dont bond the road. For example, it does not say that you can get final subdivision approvals if your lots are smaller than the minimum lot size. It just says that you can, that if the preliminary plat does not have all the information thats not grounds for invalidating the subdivision later. Okay? Then the next sentence is to handle the common situation where maybe the person who intaked the subdivision and, well, it handles the situation where maybe some of the information is missing, you still want to send it on and not be, say, Mickey Mouse and bounce it around, bounce it back because they didnt put the northpoint on it, and you can require them to submit supplementary information prior to tentative or final approval. And it says ‚The director may require the subdivider to submit supplementary information prior to tentative or final approval and may condition tentative or final approval on the submission of such information.ƒ Now you can mess things up no matter what you put in the Code. Thats true. And maybe people have said some complimentary things about me -. We, I make mistakes, everybody makes mistakes. You cant write a Code that prevents people from making mistakes. All this 16EXHIBIT D does is it says that a mistake made on, say, allowing the processing of an application does not, when the initial application comes through, does not doom it later. An example, you know, we have zoning applications and youre supposed to have, say, the owner signs the zoning -. And maybe the staff didnt notice that there was another owner who didnt who didnt sign it, all right; and they start the processing. And then by the time it gets to you here, it has been, we got the signature. Well, thats fine. What the decision, the Ki€ilae decision says is you didnt have it at the beginning so its no good. And thats the kind of thing were trying to fix here. So I honestly, you know, I wrote this to try to handle the problem and not to open the door to subdivisions, truly subdivisions being approved that shouldnt be because of things like them not building the roads or theyre connecting to a sewer when the sewer was nearby. And those kinds of mistakes can still happen. But this language in the Subdivision Code thats proposed does not open the door to those kinds of mistakes. ALAMEDA:Fellow Commissioners? Commissioner Springer and then Commissioner Iwashita. SPRINGER:Sinceourrulesdontcoversubdivisiondevelopment,codeapproval,ifwe continue this and the Director doesnt have any changes of substance to make, what happens next? ALAMEDA:At what point does it get pumped up or put away? TORIGOE:I dont have a quick answer for you cause as I said theres no specific rules that I know of that deals with that. However, if it lingers on for too long I suppose that the Commission can take things into its own hands and send up a recommendation with the language that, you know, that you drafted that you feel is to your liking, or you could give the Director directions to try and tweak things in a certain direction. So, you know, thats basically -. You have to kind of start doing things from, taking initiative from your end, I guess. At this point, it sounds like the Director has made his best good faith effort to address the Ki€ilae problem as simply and as straightforwardly as he knows how. And it seems that the, ultimately if there is any approval, and I dont if the Director can correct this, but even if the initial preliminary plat is deemed approved by deferral, still in order for the subdivision to actually occur it would have to have all of the required information in order to get out the door. Is that correct? ALAMEDA:Is that correct, Director Yuen? YUEN:Right. ALAMEDA:Fellow Commissioners, we still have that motion dangling in front of us and we cannot kind of move forward until we address that, I think. I have a feeling, I kind of would like to take a vote on that and kind of see where that ends up. But if you guys need more information in order to take a vote on that, then Id like to entertain, this is the time for that. So Commissioner Graham? GRAHAM:I kind of am feeling a bit like Commissioner Springer in the sense that we are putting attention to it today, the next meeting we have we may be busy and tired and all like 17EXHIBIT D that and not even be able to pay this much attention. But I have a few sort of major little things that are kind of hanging over my head that I need to get cleared out before I can feel like going head with it. One of them was just the last thing that Mr. Torigoe said. He said like, you know, if theres preliminary problems in the preliminary, then that can be addressed and handled in the final. But then when I, I dont see anybody else talk about this. But every time I read it, I see on page 12 on the yellow copy down, you know, just in 23-73, the underline says, you know, the last half of the underlined sentence near the end of 23-73, ‚the directors issuance of final subdivision approval shall be valid despite the absence of technical information as required by section 23- 69and 70.ƒ So thats not preliminary. Thats final. And 23-69 and 70 have a lot of stuff in it. So that seems to run contrary to what you just said a minute ago. And the other part of my issue, just as long as were on that, is it feels like if in some way were sayingthePlanningDirectormayproceedtoevaluateanapplicationeventhoughsomethingis missing, that feels okay to me. But it feels like some of this wording. which maybe was Commissioner Iwashitas concern about trying to be more finally honed, it sounds like the wording like ‚The directors issuance of final subdivision approval shall be valid,ƒ its kind of like inoculating it against court challenge or something. I dont want to inoculate it against court challenge. If the guy didnt hand in this set and the other thing, hes colluding with some director in the future, I dont want to inoculate him against court challenge. But if all Im doing is allowing the Director to proceed with his best efforts cause of something technically missing, Im okay with that. But Im, I dont know -. ALAMEDA:Yeah. Well, Mr. Director? YUEN:It says ‚shall be valid despite the absence of information contained in sections 23-69 and 23-70.ƒ Let me go down one by one through that information and tell you, you want to go -? I mean we can do that. GRAHAM:Prior to that? YUEN:Pardon me? GRAHAM:Commissioner Graham, go ahead. GRAHAM:Can I, prior to details, Chris, can I ask is this effectively inoculating from court challenge or is this effectively allowing you to proceed to process the application? ALAMEDA:Mr. Director? YUEN:It inoculates it from court challenge for the lack of the information in 23- 69 or 23-70, for lack of that information, yes. It does not inoculate it from court challenge for all causes, strictly the information in 23-69 and 23-70. ALAMEDA:Commissioner Graham, follow-up? GRAHAM:And thats on final subdivision approval, not preliminary, right? 18EXHIBIT D YUEN:Right, right. And I can go through, you know, I can go through it one by one. ALAMEDA:Commissioner Graham. YUEN:And this is existing. You know, I think youre having this vision of the subdivider didnt build the road and, you know, -. GRAHAM:Im not, Im not hitting that. YUEN:Okay, and thats why I have a comfort level with saying that, like I can go through this 23-69 information required on the final plat, ‚(1) Date, northpoint and scale of drawing.ƒ All right? I mean if they did not have that on there the court decision indicates that thesubdivisioncanbeinvalidated.Youknow,‚(2)Legaldescriptionofthetrackboundaries,ƒ ‚(3) Names and addresses of owners, subdivider, and engineer, or surveyor who prepared the plat,ƒ those are all -. I mean, we can just go through these. ALAMEDA:Commissioner Graham, do you need the Director to continue? GRAHAM:I dont think so. ALAMEDA:Okay, thank you, Mr. Director. Commissioner Iwashita. IWASHITA:For the record, I want to say I really appreciate the Directors initiative, you know, in working on resolving this so that the operations of the Department, you know, can efficiently move forward; and, you know, I wholely support that. Although, you know, the point now raised specifically by Commissioner Graham about the language on page 12 at the bottom of the proposed amendment to 23-73, I, you know, I guess my sense is that, or my understanding is that the problem in the Leslie case was the deficiencies on preliminary plat submission and the approval of the inadequate preliminary plat. Im not, and I guess that obviously would transfer that, continue transfer onto final approval, right? But, you know, again, assuming, without definitely knowing that the Supreme Courts decision relied on the inadequacies of the preliminary plat and having that, you know, that information, it doesnt transfer over to me to say that we should change the, or add this language in a final approval plat, because I would want to have all of this information in the final approval plat. And I dont see how requiring it would, you know, I mean thats, like you say, this is a dozen to 20 professionals that know this thing inside out, supposed to, you know, for substantial developments. And so I dont see why going down the check list and making, you know, spending an hour for them to do that, and an hour for the Department to make sure that each of these things are done, are in there before the final approval is granted, you know, is that much of a burden. And for things like -. My concern is this - for things like easements stuff, this is a lawyer thing, right, specific designation where the easements are and so forth, that needs to be there. And to say that if its not there, you know, that the subdivision cannot be challenged because it was inadvertently left out or whatever, thats not acceptable as I see it because thats substantial legal rights that youre messing with; and it should be done correctly. ALAMEDA:Let me ask -? 19EXHIBIT D MCCALL:Mr. Chairman? YUEN:Well, -. ALAMEDA:Hold on, please. Commissioner McCall? MCCALL:I can be very quick, let me just say one thing. As far as I understand these are changes to portions of the ordinance, this is not the entire subdivision ordinance. And were not saying that these things are not going to be in the final approval; were just saying its not going to be in the preliminary. Is that correct? ALAMEDA:Mr. Director? YUEN:Astotheinformationonthefinalplat,thereasonwemadethosechanges are that there are final plats that are also subject to being challenged because of the same technical lack of information. There are things in this list of things on 23-69 that are not typically done. Many of them involve technical surveying terms that are not commonly used. Its not a point of, and Id like to, you know, I mean, if were serious about, I have to -. The Commission does not deal with subdivisions, the Department deals with subdivisions. If you want I can go through this. But to say that you want to have this stuff on the final plat and that it should be subject to being invalidated later if its not on it is, I would like to, you know, if you say that, then I have go through it point by point and say really do you want to invalidate a final subdivision plat because it does not, do you want to have it open to being invalidated later by, say, a third party who may be the neighbor of the subdivision because it does not have this information? That is what is at stake here. Its not a question of whether the roads get put in or whether the subdivision happens or not. Its really a question of what stage can it be challenged by an outside party? TORIGOE:Can I ask -? ALAMEDA:Mr. Torigoe? TORIGOE:Yeah. Im just wondering, with respect to that section that Commissioner , Graham is talking about on 23-73, that last‚Thedirectors submission of the final plat to other , reviewers constitutes acceptance of the contents is that meaning to be a grandfathering thing or is that meant to be a prospective thing also? YUEN:Well, it is a grandfathering because of the -. There is a clause here, the Section 10 says ‚This ordinance shall take effect upon its approval, and shall apply to all subdivision applications, tentative subdivision approvals, and final subdivision approvals before and after its effective date.ƒ And you have to understand the significance „ final subdivision approval is the last stage. And after final subdivision approval, people can go out and sell the lots. There isnt any handle after final subdivision approval. So, yes, it is meant to, it is, that last sentence 10 makes it apply to existing applications and the final approvals that have been given which may technically be at some risk because of the court decision. 20EXHIBIT D TORIGOE:But it sounds like the concern is that if it applies on a prospective forward looking basis that a less scrupulous planning director could use that to, you know, just pass it on to other reviewers and have that deemed to be a legitimization of a subdivision proposal that is really lacking some very substantial information. YUEN:Well, thats why we need to go through the list of -. I mean if that is a concern, then what we need to do is do what I did in preparing this, is go through the list of things that are there, like 23-69, and show that youre not opening door to the planning director to approve a subdivision that should not be approved by putting these, by saying that the lack of this information on the final plat does not invalidate the subdivision. Now, as a practical matter, if you, if somebody wants to completely, you know, make an erroneous subdivision, if they want to allow 10,000 square foot lots in a 15,000 square foot lot zone and somehow that goes through all the process, its not insulated by these amendments. ALAMEDA:Perhaps for the comfort of the Commission, I know were not asking for it,butIthinkwearekindofunderneath,itmightbeagoodideatogothroughthelist,unless theres any objections. All right, Mr. Director. YUEN:Okay, 23-69, this is the information on final plat. This is what can be, if its missing from the final plat and its approved despite the fact that its missing, the final plat will be approved anyway. I mean somebody cannot go to court and say throw out the subdivision afterwards. And its a date, northpoint and scale of drawing; legal description of track boundaries; names and addresses of the owner, subdivider and engineer, or surveyor who prepared the plat. We took out, the only thing were completely taking out and you dont have to put this on, approved street names on dedicable streets. And the street naming process often takes place later. Thats just a matter of procedure now. So thats why were not requiring it on the final plat anymore. Reference points of existing surveys identified, related to the plat by distances and azimuths, and reference to a field book or map as follows. Then it goes through a series of surveying requirements. GRAHAM:Could I ask a question. YUEN:Sure. ALAMEDA:We might stop you as you go. So go ahead, Commissioner Graham. GRAHAM:What are you trying to do? Are you trying to go through these things one at a time and at each point kind of inquire of us whether we think that might be lacking or this might be sufficient reason that the subdivision not go forward? Or are you just sort of going to read along and wait and see if we make that claim? YUEN:No. GRAHAM:Or what are you trying to do? YUEN:Actually its that if the Department happened to approve a subdivision, not that, all of this stuff is still required. 21EXHIBIT D GRAHAM:Right. Well, -. YUEN:All right, all this stuff is required in the Code. What this says is that you cannot invalidate a subdivision later for the fact that it has been approved without this stuff happening. ALAMEDA:Without some of this. YUEN:Okay. ALAMEDA:Commissioner Graham. GRAHAM:So then required in the Code is, what is required in the Code means youre goingtoaskforitandpresumablyyouwantit,butitmeansthatifyoudontgetityourenot obligated to get it. ALAMEDA:Mr. Director? YUEN:Well, I mean, thats like saying that you, theres a question of what youre supposed to do administratively versus what are the consequences to the person who has received the permit if those administrative things have not happened. And what is the implication of the Ki€ilae decision on, is, say the date, northpoint and scale are missing, all right? Now I agree that the subdivision application should have the date, northpoint and scale or the final subdivision should have the date, northpoint and scale. What would happen, what is the consequence if the Planning Department staff misses it, all right, and they finalize the subdivision? Can the subdivision be thrown out later by court action because its a ‚shallƒ item thats not in there? Thats the point of the new language to 23-73, that it cannot be. ALAMEDA:Commissioner Graham? GRAHAM:I feel like youre trivializing what are real concerns. Obviously, were not concerned about the northpoint so, you keep bringing up the northpoint. But we are concerned about some of these other more substantive things in here. So -. YUEN:Well, thats why we need to go through it and see if theres -. You know, if we have to do that, or maybe you can look at it and you can say, okay, what -. You know, heres the thing. You want to have a Code that says youre supposed to do certain things, because you want to have a good application, you want to have it in there. What you want though is that if theres a technical error in approving something without this, you dont want it to be thrown out because it wasnt in there. And thats the concern here. So you still are requiring it but youre saying that if there is a mistake in approving something without some of this information then the approval is still valid. ALAMEDA:Commissioner Graham? GRAHAM:Follow-up please? 22EXHIBIT D ALAMEDA:Thank you. GRAHAM:There are several people here better lawyers than me. But my sense of the court is the court will overturn the transaction or something if theres a substantive fault. So maybe this particular case leads you to believe something else. But what I would like to see in your language is that the Planning Director has the discretion if some things are missing and he wants to go forward, but he has to realize that if these are substantive things that are missing, hes risking having the whole thing thrown out by the court. And I dont want to take away the courts opportunity to throw something out where there has been collusion or something that leads to substantive things being missing. And you keep saying trivial things like the northpoint. I dont think the court is going to overturn something because of the northpoint. And I also feel like I dont mind putting in the Code that you at your discretion can go forward and move it forward even though something that you feel is trivial is missing. But I dont want to take the court out of it and say, well, the court has no chance to overturn it because of that. Anyway, so I feellikeImnotgoingtovoteto,basedonwherewereattodayandhowmuchtimeweputin, Im not going to vote to pass it forward. So if Commissioner Iwashita and I both feel that way, its not going to happen today. ALAMEDA:Commissioner Iwashita? IWASHITA:Thank you. I, again, you know, the Department, as far as I can tell does a commendable job processing and working on the subdivisions. In the end though, its the administrative agency thats taking what is being submitted by the landowner, the developer, subdivider, whatever you want to call them; and the law says that it is the developer, landowner, subdivider thats obligated to meet these requirements, not the Department. The guy doesnt come to the Department and say we have this idea, help us make this thing, help us draw this up and so forth. The Departments responsibility is to look at the Subdivision Ordinance, see what the requirements are and process it accordingly, and then give its final approval. The final approval, if theres a mess-up and final approval on final plat, that is the owners, the subdividers, as far as Im concerned, the developers responsibility. You know, again, these are a dozen or more professionals, you know, surveyors that have worked with this under the old way for a long time. None of them are here today, right? They probably know better or they do know better, right, as far as how this is going to go forward. But, in the end, because in my mind, what the subdivision, the subdivider is doing it to get a benefit, to get an entitlement, right? You know more money for more lots. And so it behooves the subdivider to have a professional surveyor do it right. Its not, I mean, Im looking at this, its not that complicated in terms of what the requirements are. And if they submit an erroneous plat, final plat, and the Department misses it and it gets approved on their plat therefore it is subject to court challenge that is, in the end, the owners, the developers problem. The developer created the problem, not the Department. And so I, you know, frankly, this language at the end of 23-73 I would delete that, everything from ‚andƒ towards the end of the sentence, that last phrase, as far as insulating or inoculating the validity of the subdivision if the requirements arent met. Because in my mind in the end it is the owners responsibility. And the fact that the Department misses it should not, you know, the Department as far as Im concerned does a good job on how it, you know, reviews these things, Im sure it enforces these things and, you know -. But it ultimately is the owners responsibility to meet the requirements of the law. And if the owner doesnt do it, then the owner suffers the consequence, not the Department. 23EXHIBIT D YUEN:You know, can I just -? ALAMEDA:Director. YUEN:I think Ive been failing to really concretely explain what the problem is here. Let me give you a different, let me give you an example say from the building permit side. Lets say for example that the Building Code says that dimensions of doorway shall be shown on the building maps. All right? And lets say that for whatever reason the building permit gets approved without the dimensions of the doorway being shown. And lets say your neighbor sees your house going up and doesnt like it; and then the neighbor goes down and look at your building map thats at the Department of Public Works and finds that the building permit, the dimensions of the door on your house were not shown. Okay? And then your neighbor says ‚Notice that it says shall be shown on the building plans, therefore your building permit is no good;ƒ and then they take it to, and this is the Ki€ilae decision . The information, it was not there,allright,ontheinitialapplication.Right?Andsothecourtsays,oh,it‚shall-.ƒAndyou say, ‚But wait, my doors actually meet Code.ƒ All right? Actually, they are the same. So the court says, ‚No, it says shall be on the building permit application, so go submit your building permit application again.ƒ Thats exactly what were talking about here. And what this says is that no, you dont have to submit your building permit application again. Thats all it says. ALAMEDA:Commissioner Iwashita? IWASHITA:I understand the example. You know, in the building permit example, the owner would go back to the Building Department, the Building Department may or may not charge a second fee or a double fee; and it will be taken care of for a 30-inch door. What were talking about are requirements for easement descriptions, legal title, all of these things which are not 30-inch doors and which the Director is suggesting that thats okay, if thats left out thats okay; and its still legal. It is not okay, not on final plat, not when the developer stands to make whatever amount of money the developer stands to make, you know, in taking care of these things. Like its the developers responsibility. Its not the Departments responsibility to meet those requirements. And if the developer messes up a plan or hires a surveyor that is negligent in messing up the plan, let him deal with the surveyor, let him deal with his professional. But its not, as far as public policy is concerned the requirement is a requirement, and failure to meet the requirement should not, you know, should not validate it in any way. To me its not a real technical thing. Its conveying a right to transfer title to, you know, different lots in the subdivision. Its a substantial right; and these requirements are not over burdensome as they stand right now in the final plat. I have no problems really with the preliminary, the language on the preliminary plat approval and taking care of that part of it. I do have some, you know, when we get there, I do have some suggestions on how to change that. But on the final approval, on the final plat, I dont think there should be any inoculation, none at all. ALAMEDA:Commissioner McCall? MCALL:Yeah. Let me see if I, Im going to try bring something a little closer to where -. Okay, we have a subdivision, the surveyor screwed up and didnt put some line in or something on it; and so when the house is built it is built within the setbacks. Its supposed to be a 20-foot setback and its put 15 feet from the setback. Im not sure if this is, you know -. And somebody goes back and looks and says, okay, this is -. You know, when the surveyor finds out 24EXHIBIT D he finds out that this is why it is. Legally, that house still needs to be within the correct setback. That house might need to be moved or they get a variance or something for it. But I think what, if I understand what Chris is saying is that the entire subdivision is not invalidated because of this one line being put wrong. Is this something in the right vein? ALAMEDA:Director? MCCALL:You know, the thing would have to be corrected, but it doesnt invalidate the entire subdivision? YUEN:Well, it wouldnt invalidate the entire subdivision. Under the current Code or under this provision, there may be something that has to be fixed in that situation. I mean, if there is a difference between, if the pins are improperly set, for example, thats just a problem that has to be fixed. Typically, the subdivision will work on paper but it will not work ontheground.Thatsmorelikelytohappen.Liketheexamplethatyougaveofhowyouwould wind up mislocating the house, it would be mislocated against the pins versus mislocated against the lot line. ALAMEDA:Commissioner Iwashita, Im just thinking out loud as I hear you speak, too. I wonder if it would be, sounds like the 23-73, that whole amendment, if we, it seems like we want the Director to kind of revisit that and maybe craft a more satisfying kind of language. Im wondering if, Mr. Torigoe, maybe you can help me out. Like what if, this is just another option, what if say we move it to Council, could the Director kind of craft it there as well at the Council? TORIGOE:I think what you could do is if youre basically comfortable with what the Director is proposing regarding preliminary approval but youre not comfortable with whats going on up at the final under 23-73, one option would be to basically send this up to the Council but telling them youre not comfortable with the 23-73 and that you, you know, basically what I said, that you think it is appropriate to allow for the omission of certain information at the preliminary stage but that you think that the elimination or the allowance of omission of some information at the final stage needs to be look at much more closely, and so youre not including the recommendation at the end of 23-73 and recommending that the Council would look at that, you know, very closely, and see if -. The Director could propose some more precise or different approaches to that perhaps at Council. But it does seem to be a problem that needs to be acted on with some dispatch. ALAMEDA:Right. Thats kind of what Im feeling. So I was wondering if Commissioner Iwashita, and maybe Commissioner Graham, how you guys feel about something like that? Commissioner Iwashita? IWASHITA:Im trying to just be more precise in how Im thinking about this and on the specific language, so -. ALAMEDA:Okay. IWASHITA:Thats where Im at. 25EXHIBIT D ALAMEDA:Okay, why dont we take a five-minute recess. Any objections to that? No? IWASHITA:No. ALAMEDA:Five-minutes, please. RECESSEDThe Chair called a short recess at 2:17 p.m. RECONVENEDThe meeting reconvened at 2:29 p.m. ALAMEDA:Let us continue our kukakuka, talk story. SALAVEA:Thank you for the interpretation. ALAMEDA:Hawaiian word for today. All right. So we left off with the possibility of revisiting the 23-71. YUEN:Three. ALAMEDA:Seventy three. YUEN:Seventy three. ALAMEDA:Okay. YUEN:My specific suggestion would be to put the word, on 23-73, to put the word ‚technicalƒ in the last line so that ‚The directors issuance of final subdivision approval shall be valid despite the absence of technical information required in sections 23-69 and 70.ƒ The difference between the term, ‚technicalƒ I would distinguish from the term ‚substantive.ƒ Substantivewouldmeanaffectingtherightsofotherpeople.Technicalwouldbethingslikethe northpoint. ALAMEDA:Director promises not to use that example again, yeah, Commissioner Graham?Allright. MCCALL:Justnotingthat-. ALAMEDA:Commissioner McCall. MCCALL:Oh, sorry. Just noting that the title of Section 23-73 is technical review. I mean it supposedly, as opposed to -. ALAMEDA:Okay. Okay, Commissioner Iwashita? IWASHITA:Thank you, Mr. Chair. After reviewing the proposed ordinance amending the Subdivision Code further and taking into account all that weve discussed up till now, I would amend, and then if amended I would support forwarding to the Council, as follows: On 26EXHIBIT D page 12, the last sentence in Section 23-73, technical review, add the word ‚andƒ after the, on the second line of the last sentence after the words ‚final platƒ and before the word ‚provided,ƒ and then further on in the sentence placing a period after the words ‚request supplementary information,ƒ and then deleting the remainder of the language. And that would take care of the concern that I have as far as inoculating a defective subdivision from court challenge. I understand the Directors concerns about, I guess, what the actual practice is in terms of meeting the requirements of 23-69; however, in looking at 23-69 the requirements are for basically, you know, proper legal boundaries and surveys that locate the boundaries according to monuments, same things for easements, identifying lots, minimum setbacks and various certifications. All of those things, you know, if somebody is going to end up buying a subdivided lot, I would, you know, and for title companies that do properly handle title issues regarding subdivided lands, I think those should be met. And, therefore, I think that the approval of the final plat should reflect all of those requirements. ALAMEDA:Thankyou,CommissionerIwashita.CommissionerGrahamor Commissioners Springer, Salavea, Commissioner McCall, any response to that? Commissioner Graham. GRAHAM:Excuse me. Are you just recommending that the final clause be omitted entirely on that one? IWASHITA:In that, on page 12, yes -. GRAHAM:Yes. IWASHITA:That last sentence, yes. GRAHAM:So starting with the word ‚and?ƒ IWASHITA:Right. GRAHAM:So, ‚and the Directors issuance,ƒ you just want to omit that and just rewrite so that the previous makes a complete sentence, is that correct? IWASHITA:Yes. ALAMEDA:Commissioner Salavea? SALAVEA:I guess Im going to be the devils advocate in this instance and mention maybe something that kind of came to mind as we were on the break, for myself. I understand the concerns that my Fellow Commissioners have regarding, I guess, kind of like unfettered approval ability by the Director and having it solely, it seemed to be with the current language seemingly giving the Director sole discretion to give final approval for a subdivision. However, I think one thing that weve got to think about is if we change this and we do open it up, we dont inoculate the subdivisions that get approved, you know, we might be opening the door for something where 20 years, you know, an approved subdivision now gets built today, you know, in two years, bought by individual homeowners, occupied for 15-20 years and for some crazy reason somebody comes along and brings suit against that. Im just thinking, you know, as an 27EXHIBIT D individual homeowner, wow, my subdivision, my house, my everything, my world is getting turned upside down by a third party over some, and Im not going to trivialize it by saying small detail, but something that happened 20 years ago. And to me that, you know, I know Commissioner Iwashita has said that it is the developers responsibility; but at that point the developer is long gone. And if Im in a position of having everything I worked for, you know, turned upside down and taken away from me, Im going to sue somebody and the only person still around is the County. So Im aiming my gun right at the County and saying you shouldnt have approved it in the first place and now Im stuck with, you know, having to figure everything out and pick up the pieces. And I think thats where, the part of where the Director is saying we need to inoculate; and thats where I see it. I mean, Im on a fence Ive got to tell you the truth; and I see both sides of the picture, and Im just thinking as a homeowner. And Id hate to see something that will come up later on and be able to reopen after Ive been established in my home after so long. So its just a comment on my part. ALAMEDA:Thank you. Okay. Im wondering from that if a question could arise somethingalongthelinesthatifthereareprotectionsthenforyouinthatparticularexample. Will there be protections, Mr. Director? YUEN:The reason I put this in is that Im very jumpy now about the finality of decisions that are made. The Hokulia case showed that things that people thought were totally final are at risk by court action. I would have thought that in Mr. Salaveas case I would say no, no need worry you have final subdivision approval. The Hokulia development had final subdivision approval. So thats the reason for trying to put a finality clause in here. As far as fixing something, as far as being able to get, I need to point out something that I really should have pointed out before. As far as fixing something that the developer has done wrong if its discovered later, we still have Section 23-74(c),okay, and thats on page 13. And it says that ‚The approval for recordation of the final plat by the director shall not relieve the subdivider of the responsibility for any error in the dimensions or other discrepancies. Such errors or discrepancies shall be shall be revised or corrected, upon request, to the satisfaction of the director.ƒ And that means that if a planning director discovers an error or discrepancy that they can require the subdivider to fix it even after final subdivision approval. It does not open the door though, what the end of 23-73 clause is its meant to create a finality for third parties. And, again, to the extent that there is this concern over substantive aspects of a subdivision, like you approved a subdivision with a wrong lot size or the wrong road right-of-way which, or without drainage or something like that, the word ‚technicalƒ, I think, deals with that. ALAMEDA:Commissioner Salavea, follow-up? SALAVEA:No, thank you. ALAMEDA:Commissioner Iwashita? IWASHITA:Thank you, Mr. Chair. You know, in terms of the finality of subdivision approvals, those get, in my mind, commercially validated, or in my experience, commercially validated. When the properties are sold and they get financed, commercial title companies get involved and research all of this and issue title policies, which guarantee the value of whatever 28EXHIBIT D its sold for to the buyer. And then if this approval, you know, challenges the validity of the legal title to the property, which is what it is, subdivisions creates legal title to property, you know, then you have the title company in place, answer your question, to cover what the cost of fixing it. And if youve actually built out and occupied it and it has really, you know, been that way, youre not going to, well, actually if Hokulia had been all built out and all those guys had their multi-million dollar houses in place, it would be a different case. Its not the same case, you know. So as a practical matter and, you know, Im trying to look at it as a practical matter; and I think that my suggested amendment, you know, addresses that sufficiently to deal with the case that were handling. I appreciate the Directors concern about extending the ruling, if you were, of the Leslie decision to another circumstance at final approval but to me thats what it is. You know youre trying to extrapolate now and take it out into a different area of the Subdivision Ordinance which was not addressed in the Leslie case as far as I understand. I may be wrong. But Im more comfortable limiting it, you know, to the suggested language changes in the preliminary approval stages; and then it will take care of, as I see, what needs to be taken careof. ALAMEDA:CommissionerGrahamandthenCommissionSalavea. GRAHAM:Yeah,Imnotreallyhappywith‚technicalƒbecause‚technicalƒjust sounds like a lot more litigation hassling before some Judge on what does that word mean. So I feel like the Directors options are not bad. I mean, we can, I think, if the other Commissioners, Commissioners Iwashita and I were both comfortable with taking out that piece of language, going forward with this and it moves to the Council. And the Planning Director certainly has the opportunity to present the same language to the Council and say for the same reason hed like to have included. Its just that we didnt recommend it ourselves; and we can move forward that way. If you dont want to do that, you know, we can continue it to another hearing. But, you know, that feels like thats what I need for my comfortableness to vote positively on it; and I know I just have a few minutes left cause Ive got to get on the move. ALAMEDA:Okay, okay, very well. YUEN:Can I suggest a motion then? You know, just to bring this up. ALAMEDA:Okay. YUEN:I would suggest that the Commission forward a favorable recommendation, that you take a separate vote on 23-73. If one formulation, technical, or the other formulation, deleted, has five votes, that will be reported as the Commissions recommendation. If theres a split among the Commission Members on it, then we forward that up to the Council with that as a report of what happened in the Commission, that there was a split in the Commission on how that section should be handled, but otherwise so its a favorable recommendation. And thats to avoid us coming to a deadlock here on this particular language which, you know, of us not being, of two things: One, of us not being able to get five votes on the particular language on either and continuing it, or my having to say, which I dont want to that, oh, go ahead and take it out so that we can have the five votes and kick this up to the Council. I dont like being put in that position. So that would be my suggestion on how to handle this. 29EXHIBIT D ALAMEDA:Commissioner Salavea. SALAVEA:Just a point of order, Mr. Chair. We still have the motion to continue on the table, so whatever we do weve still got to deal with that first. ALAMEDA:Okay. Im under the impression its going to happen all at once pretty soon. Commissioner Iwashita. IWASHITA:Shall we vote on the motion to continue? ALAMEDA:Okay. Theres a motion made by Commissioner Siracusa, seconded by Commissioner Iwashita. Seeing that theres no further discussion, can we ask staff to do a roll call? HAYASHI:Ibelievethemotionwastocontinuethehearing,movedbyCommissioner Siracusa and seconded by Commissioner Iwashita. Commissioner Iwashita? IWASHITA:Nay. HAYASHI:Commissioner McCall? MCCALL:No. HAYASHI:Commissioner Salavea? SALAVEA:No. HAYASHI:Commissioner Springer? SPRINGER:No. HAYASHI:Commissioner Graham? GRAHAM:No. HAYASHI:Chair Alameda? ALAMEDA:No. HAYASHI:Motion does not carry. ALAMEDA:Follow-up, Commissioner Iwashita. IWASHITA:Thank you. Mr. Chair, I move that Item 2 on our agenda today, that the Planning Commission forward a favorable recommendation to the County Council to approve the proposed ordinance amending the Subdivision Code, Chapter 23, Hawaii County Code 1983, : 2005 edition as amended, as presented to us in Draft 2 with the following amendmentsOn page 12, Section 23-73, the inclusion of the word ‚andƒ after the word ‚final platƒ in the second line 30EXHIBIT D of the last sentence and before the word ‚provided.ƒ And then the insertion of a period on the third line of that last sentence after the words ‚supplementary informationƒ and the deletion of the words ‚and the directors issuance of final subdivision shall be valid despite the absence of information required in sections 23-69 and 70.ƒ ALAMEDA:Motion made by Commissioner Iwashita with the following recommendations -. GRAHAM:Second. ALAMEDA:Seconded by Commissioner Graham. Discussion? Commissioner McCall. MCCALL:Okay. Just making sure if I understand this amendment as we have it here, shallIsay,accordingtothePlanningDirectorwouldnotaccomplishwhatheistryingto accomplish? ALAMEDA:Mr. Director? YUEN:Im concerned it leaves open the possibility of invalidating subdivisions for failing to have small technical information on the final plat. ALAMEDA:Discussion? IWASHITA:Mr. Chair? ALAMEDA:Commissioner Iwashita. IWASHITA:Thank you, Mr. Chair. I just wanted to make it clear on the record that I rely on all that weve, Ive presented previously. ALAMEDA:Okay, very well. Again, motion is on the floor, seconded by Commissioner Graham. Seeing that theres no further discussion, Ms. Fujimoto. FUJIMOTO:Commissioner Iwashita? IWASHITA:Aye. FUJIMOTO:Commissioner Graham? GRAHAM:Aye. FUJIMOTO:Commissioner McCall? MCCALL:No. FUJIMOTO:Commissioner Salavea? 31EXHIBIT D SALAVEA:No. FUJIMOTO:Commissioner Springer? SPRINGER:No. FUJIMOTO:Mr. Chairman? ALAMEDA:Aye. FUJIMOTO:Mr. Chair, there are three ayes and three noes. ALAMEDA:So even Steven. Mr. Torigoe? TORIGOE:Youwanttotryforanothermotion?Isthereanotherproposalonthe floor? ALAMEDA:Who would like to try another proposal? Commissioner Salavea? SALAVEA:Id like to entertain a motion. I move that in the item initiated by the Planning Director, hearing amendments to Sections of Chapter 23, Subdivision Code, Hawaii County Code 1983, 2005 be forwarded with a favorable recommendation and we take, Im not sure how to do this part, and we take a separate vote as recommended by Planning Director on Sections 23-73. ALAMEDA:Its a motion made by Commissioner Salavea. Is there a second? MCCALL:Second. ALAMEDA:Seconded by Commissioner McCall. Discussion? Seeing none, staff? FUJIMOTO:Commissioner Salavea? SALAVEA:Aye. FUJIMOTO:Commissioner McCall? MCCALL:Aye. FUJIMOTO:Commissioner Iwashita? IWASHITA:No. FUJIMOTO:Commissioner Graham? GRAHAM:No. FUJIMOTO:Commissioner Springer? 32EXHIBIT D SPRINGER:Yes. FUJIMOTO:Mr. Chair? ALAMEDA:Aye. FUJIMOTO:Mr. Chair, there are four ayes and two noes. ALAMEDA:Well, Fellow Commissioners, Mr. Torigoe, Mr. Director, any comments? YUEN:Can I ask what you want, what do you want to do? What do you want to do? ALAMEDA:CommissionerIwashita? IWASHITA:Imademymotion,thats-. YUEN:Yeah.So,inotherwords,youwanttoforcemetoaccedetosendingthis up to the Council or choose between a deferral today? That is what you want to do? ALAMEDA:Commissioner Iwashita, is that your pleasure? IWASHITA:Im not going to venture to even suggest what the Director should do. You know, were, on the substance of what has been presented, I think with the amendment it fully addresses the concerns raised by the Leslie decision, and addresses those. I appreciate the Directors concerns about how it might impact final subdivision plat requirements or not. But I cannot agree to, you know, take that additional step to try and speculate or take care of that area when its not really the problem that we are presented with. ALAMEDA:Director? YUEN:Mr. Salaveas motion was simply to take a separate vote on this item so that this matter could go up to the Council. My anticipation from hearing the votes that were taken is that we cannot get five votes on a particular formulation of Section 23-73. I would like to see this matter go to the Council. If it goes to the Council with an indication that the Commission was split on Section 23-73, where there was a vote taken on a motion to delete the last clause that you presented and there was a three to three vote on that motion and -. I would ask that there be a motion taken on Section 23-73 with the word ‚technicalƒ in there. If that, as both you and Mr. Graham have indicated that you would vote again that -. And I dont know what the other Commissioners would have to say on that. If that also does not get five votes, then what my suggestion is and what I thought was Mr. Salaveas motion is that then this matter will go up to the Council with a favorable recommendation on the entire package but with a statement as to the votes taken on the last part of Section 23-73. I would request that the Commission do that in order to prevent this further delay which is causing some significant problems within the Planning Department. 33EXHIBIT D ALAMEDA:Thank you, Mr. Director. Further comments? Let me ask, Commissioner Graham? GRAHAM:Well, I think Mr. Salavea accurately made a motion in line with what the Planning Director wanted but I dont feel the process is proper. I feel like this is like any other ordinance that a developer or anybody puts before us. If it doesnt get five votes, it gets continued. Weve been through this thing a number of times over the last few years. If it gets continued it has to stay in the Commission. So I offered and I believed that Commissioner Iwashita offered an amendment that we could give our votes to get the five so it could go forward; and so we did that, it didnt get the five. So unless theres a motion that gets five votes it seems to me that it sticks in the Planning Commission, unless were changing our rules and procedures of what we do for everybody else. ALAMEDA:Fellow Commissioners? YUEN:Its not a change in the rules or procedures. And if thats your stand, then IwouldsimplyaskthatyoureconsiderthevoteonMr.Iwashitasmotion,yousendituptothe Council with the language change in Section 23-73. But what youre doing is youre forcing us, youre forcing me to accede to this by the fact that we have only six members here on the vote, where the bulk of this ordinance which is extremely important to the Department and a lot of people, we would like to see it move up to the Council so that this problem can be solved. ALAMEDA:Theres a recommendation on the floor to reconsider Commissioner Iwashitas motion. Any discussion? Commissioner McCall. MCCALL:I really dont want to reconsider his motion, Andrews motion. I mean, I apologize. But I dont, I think youre holding a gun to the rest of us; and I dont think its fair. I think the fairest thing is that we show what our votes are. I mean were just six people of the public here. We are not the people, you know -. I dont think its fair. ALAMEDA:Other thoughts? TORIGOE:Can I ask a question? ALAMEDA:Lets let Commissioner Iwashita and then -. Mr. Torigoe? TORIGOE:No, I was just going to ask if there was any possibility of refining the Directors suggestion, including ‚technical information?ƒ You know, perhaps saying ‚technical information if that information does not affect the rights of any person other than the subdividerƒ or something like that. ALAMEDA:Any thoughts on that? Commissioner Graham? GRAHAM:Perhaps if we said ‚technical, but not substantive,ƒ which is the Planning Directors words when he first proposed it to us so thats clear. ALAMEDA:So ‚technical, but not substantive.ƒ Mr. Director? 34EXHIBIT D YUEN:Im fine with that. IWASHITA:Well -. ALAMEDA:Commissioner Iwashita? IWASHITA:Thank you, Mr. Chair. You know, words are a funny thing. And trying to define something by stating the opposite to me doesnt really make it any better. I would be fine with referencing noncompliance with, I believe its 2 and 3, that if theres noncompliance with 23-69 (2) and (3) that, to me, clearly are technical kinds of things that shouldnt invalidate. All those others though, if you read them, are, in my mind, clearly substantive, substantive, and should not, there shouldnt be any question about having to comply with those requirements. I apologize if I am, and my wife always tells me I do this so it must be true, if Im giving an impression that Im trying to hold anybody hostage or trying to impose my view on the body withoutregardforwhatisperceivedtobethebenefitofthepublic.TheLesliedecisionisthe law. And what were talking about is trying to fashion a, thinking of the right word here, for lack of a better word, technical amendment of the Subdivision Code to meet the practice, which I have no problem with. But what I do have a problem with is that this proposed ordinance, that specific language that Im objecting to, goes far beyond what is purported to being done, and that is to make technical changes to meet the problems created by the Leslie decision which invalidates the process that has been actually in practice in the Department. And so that is my sole intent. I dont intend to offend anybody or hold anybody hostage. But I think with the change that I suggest, my concerns are addressed, I think the Leslie decision is addressed, and it would legislatively override the Supreme Courts decision in Leslie, under the facts of Leslie, and it would validate the Departments practices. ALAMEDA:Commissioner McCall and then Commissioner Springer. MCCALL:Yeah, I dont want -. My point is simply that, you know, you have an opinion, I have an opinion, and thats great; and I dont want to influence your opinion, I dont want you to influence my opinion. What I think, you know, the Planning Director has said that he would like to get this expedited. I want to try and expedite this. Id like to get this up to the Council as soon as possible. I think the fairest way to everybody is that we send this up to the Council, we tell them what we agree on, we tell them what we dont agree on. To me, the fairest way to do that is with Commissioner Salaveas proposal, or actually through the Planning Director where we can tell them, theyll have the benefit of the testimony, theyll have the benefit of our votes. But that, you know, that wont work if we just keep on voting like a jury until we can get 100 percent, cause thats not going to happen, I think. So I think our, to me if someone is going to hold out for I want, you know, I want 100 percent or zero, then were not going to make a decision. So -. ALAMEDA:Mr. Torigoe, is there any process or protocol that will allow us to bump it up without having the five? TORIGOE:I hear, you know, I hear that there are procedural objections that were voiced by Mr. Graham, for instance, about that type of vote. What you could do is if your discussion is clear enough or your votes have shown, you know, what your opinions are, then you could actually frame a motion that says we send a favorable recommendation but with these 35EXHIBIT D reservations, and just spell them out, you know, that however many of you feel that the amendments to 23-73 should not include any, what is it that youre concerned about, that it should not allow future Planning Directors to allow subdivisions to be invalidated, you know, omitting information thats required under the Code, and at the same time that youre concerned that subdivisions that have been approved and have had lots sold should not be subject to invalidation for minor omissions of information thats required under the Code. ALAMEDA:Commissioner Springer? SPRINGER:No, thank you. ALAMEDA:Commissioner Salavea? SALAVEA:Id like to entertain another motion, including the language that Commissioner,Imnotsurewhomadetherecommendation,butitincludedthelanguagetostate to some effect ‚technical but notƒ subnative (sic), thats a difficult word, ‚substantive changes.ƒ So should I go through the whole, making the recommendation and all the -? ALAMEDA:Sure. YUEN:I think thats clear. SALAVEA:Okay. So in the item initiated by Planning Director hearing on amendments to certain sections of Chapter 23, Subdivision Code, Hawaii County Code 1983, 2005 edition, we send up a favorable recommendation to the County Council with amendments to Section 23-73, line 1, Im sorry -. Can somebody give me a reference on the line that were -. IWASHITA:The last sentence. SALAVEA:The last sentence. YUEN:Thatll be the last line. SALAVEA:The last line of ‚technical information but not substantive required in sections 23-69 and 70.ƒ ALAMEDA:Motion made by Commissioner Salavea. Is there a second? MCCALL:Second. ALAMEDA:Seconded by Commissioner McCall. Discussion? Commissioner Graham. GRAHAM:Id just like to ask Mr. Torigoe, I believe that satisfies the thrust of my concern; and even though its not to Mr. Iwashitas particular liking, it probably satisfies the thrust of his -. But I want to check that with you, Mr. Torigoe. Do you feel like that properly addresses what our concern is? 36EXHIBIT D TORIGOE:Well, it arguably does. You could try to refine it by adding something like what Commissioner Iwashita was saying, perhaps ‚technical information such asƒ in sub 2 and 3, or you could try and refine by saying ‚technical but not substantive,ƒ again, ‚which does not affect the substantive property rights of other persons.ƒ You know, or you could just go with ‚technicalƒ and see how that flies. IWASHITA:Mr. Chair? ALAMEDA:Commissioner Iwashita. IWASHITA:Id like to offer an amendment to the motion. Has it been seconded? ALAMEDA:It has been seconded. IWASHITA:Yeah,okay.Iofferanamendmenttothemotionsothatthelastphrasein the final sentence of section 23-73 reads, ‚and the directors issuance of final subdivision approval shall be validƒ despite the absence of, excuse me, ‚despite the failure to comply with subparagraphs (1) and (3)ƒ of this section, ‚of section 23-69, or the absence of similar technical but not substantive information otherwise required in sections 23-69 and 70.ƒ ALAMEDA:Fellow Commissioners, did you all get that? If so, you would like to comment? Commissioner Salavea? IWASHITA:It requires a second. ALAMEDA:I was just trying to see if you guys got that first. GRAHAM:I didnt get it clear and Im not sure that it improves it to me. Im okay with how Commissioner Salavea put it forth. ALAMEDA:Okay. We have, again going back to the motion made by Commissioner Salavea, seconded by Commissioner McCall, there was a suggestion for a friendly amendment to that. IWASHITA:Can I clarify my -? ALAMEDA:Go ahead. IWASHITA:Thank you, Mr. Chair. And that is I believe its best to start the legal interpretation, if it ever comes up, the legal interpretation of this ordinance, the specification of two sections which clearly, you know, which will be clear. Obviously, if those are met, those are the objectionable omissions, you know, its going to be clear. And then adding on to that, that alternative language, or supplementary language that says ‚or similar technical or not substantive requirements,ƒ that provides a parameter for the court to interpret what is meant by the word ‚technical,ƒ what is meant by the words ‚not substantive.ƒ To leave it out, otherwise, you know, to leave it out, then youll have volumes and volumes of statutory interpretation that both sides can cite, you know, and this is an attempt to provide some help to a court if it ever comes to that. 37EXHIBIT D ALAMEDA:Could I ask Mr. Director if he could, does Commissioner Iwashitas amendment, does that, just curious, does that take from the amendment that Commissioner Salavea, the motion that Commissioner Salavea has made? YUEN:I think thats okay. ALAMEDA:Motion made by Commissioner Salavea, seconded by Commissioner McCall, we want to also include the recommendations made by Commissioner Iwashita in terms of the language. Commissioner Salavea, is that okay to include the language made by Commissioner Iwashita as a friendly amendment to your motion? SALAVEA:Could I hear it? TORIGOE:Yeah, Im trying to put it together right now. SALAVEA:Yeah, thanks. ALAMEDA:Okay, Ill ask Mr. Torigoe, as you put it together, maybe you could practiceandshareitwithus,andgetclarificationfromCommissionerIwashita. TORIGOE:Okay.LetsseeifthisiswhatCommissionerIwashitawasshootingfor. Basically, the last line should say, ‚shall be valid despite the absence of technical information as required by section 23-69 (1) and (3), or the absence of similar technical but not substantive information required by sections 23-69 and 70.ƒ ALAMEDA:Commissioner Iwashita? IWASHITA:Id be happy to pay an additional retainer for that fine crafting, counsel. ALAMEDA:Good job. Commissioner Salavea, do you accept the friendly amendment clarified by Mr. Torigoe? SALAVEA:Id like to get Director Yuens opinion. ALAMEDA:Okay. YUEN:Thats okay. SALAVEA:With that, I accept the friendly amendment from Commissioner Iwashita. ALAMEDA:Commissioner McCall? MCCALL:I, too. ALAMEDA:Seeing that a solid motion has been put on the floor, any discussion? Seeing none, staff. FUJIMOTO:Commissioner Salavea? 38EXHIBIT D SALAVEA:Aye. FUJIMOTO:Commissioner McCall? MCCALL:Aye. FUJIMOTO:Commissioner Springer? SPRINGER:Yes. FUJIMOTO:Commissioner Graham? GRAHAM:Aye. FUJIMOTO:Commissioner Iwashita? IWASHITA:Aye with reservations. FUJIMOTO:Mr. Chair? ALAMEDA:Aye. FUJIMOTO:Mr. Chair, there are six ayes. ALAMEDA:Thank you. Very well, that concludes that agenda item today. The discussion ended at 3:10 p.m. Respectfully submitted, Sharon M. Nomura East Hawai€i Secretary 39EXHIBIT D