2006-12-18_Planning_Department_Reply_Brief_re_Calvert

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0 0 Section 23-18,Hawaii County Code("Subdivision Code"),which provides in pertinent part as follows: The director shall,within sixty days after the filing of a proper application or within a longer period as may be agreed to by the applicant,deny the application or approve it subject to conditions. The conditions imposed by the director shall bear a reasonable relationship to the variance granted. All actions shall contain a statement of the factual findings supporting the decision. If the director fails to act within the prescribed period,the application shall be considered as having been denied. (Emphasis added) § 23-18,Hawaii County Code. The passage of that section of the Hawaii County Code preceded the passage of HRS § 91-13.5, so it was"otherwise provided by law" (i.e., § 23-18,Hawaii County Code). In addition, Section 6-4.2 of the Hawaii County Charter requires the Planning Director to administer the subdivision ordinances passed by the Council. This means that the rules adopted by the Planning Department must implement the Subdivision Code. When the Board voted to reverse the Director's decision to deny the water variance because the Director's decision was not rendered within sixty days and was therefore automatically approved pursuant to HRS, Section 91-13.5,the Board essentially made a decision to completely disregard Section 23-18,Hawaii County Code as adopted by the Council. (ROA at 453.) Moreover,based on the Board's decision,the Board is essentially ordering the Director to violate Section 23-18, Hawaii County Code when making similar decisions in the future. In other words, if it takes the Director longer than sixty(60) days to deny or approve any variance applications in the future, the Director will have to approve the application in violation of Section 23-18,Hawaii County Code which requires that the application be deemed denied; otherwise,his decision will be 7