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HomeMy WebLinkAbout2014-12-04 Hearing Transcript-Council Initiated Bill 281 _PUD_ WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT DECEMBER 4, 2014 County Council Initiated Bill 281 (Planned A regularly advertised hearing on the matter of Unit Development) was called to order at 10:31 a.m. in the County of Hawai‘i Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i with Chairman Myles Miyasato presiding. COMMISSIONERS PRESENT: Myles Miyasato, Charles Heaukulani, Gregory Henkel, Donald Ikeda, Raylene Moses, and Stephen Ono. ALSO PRESENT: Duane Kanuha (Planning Director), Danny Patel (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Staff Planner), Sarah Hata-Finley (Commission Secretary) and Melissa Dacayanan (Planning Commission Support Technician). And approximately 1 member from the public in attendance. INITIATOR: COUNTY COUNCIL (Bill No. 281) County Council Bill No. 281 amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawai‛i County Code 1983 (2005 Edition, as amended) relating to Planned Unit Development (PUD). The purpose of these proposed amendments is to require review and approval of a PUD by that Planning Commission that holds jurisdiction over that area containing the property for which the application is sought. MIYASATO: Item 3 on the agenda. Bill No. 281. DARROW: Okay, our last-- MIYASATO: Hold on one second yeah— DARROW: --application— MIYASATO: --just for the record yeah, Sarah, there was no public testimony for the previous item, application. HATA-FINLEY: Yes. MIYASATO: Yeah. DARROW: If I can direct your attention to our last presentation this morning, as mentioned, this is a County Council initiated bill. This is an amendment to Chapter 25, the Zoning Code, Article 6, Division 1, and also Article 5 of the Zoning Code relating to Planned Unit Developments or PUD’s. 1 EXHIBIT C The purpose of this bill is to seek to amend that portion of the Zoning Code relating to Planned Unit Developments. More specifically, the purpose of the proposed amendments is to require review and approval of a PUD by the Planning Commission that holds jurisdiction over that area containing the property for which the application is sought. Bill No. 281 was introduced based on a finding by the Council that the PUD as a form of development, of a development permit, should be subject to a review process that allows opportunities for public involvement with procedural guidelines and approval implemented as part of the decision-making process. This is difficult to see. I might want to ask you to refer to Page 3 of your Background and Recommendation. The main purpose of this is to identify the differences in the current process versus the proposed process. There are similar aspects of the process that remain the same, but there are a number of aspects that have changed. Number one, the approving authority will change from the Planning Director to the Planning Commission. The minimum land area for a PUD remains the same at two acres. There is public notification requirements. The requirements before were in relation to the notice of a Director’s decision. Now, they will have to comply with the requirements of the Planning Commission hearing for notice. There is no change to the contents required in a PUD application. There were, originally there was no public hearing for a PUD application. Now there will be a public hearing before the Planning Commissions. Previously, there was no option for a contested case hearing. Now, proposed, there will be the opportunity for a contested case hearing. Criteria for approval will, currently it doesn’t, really it’s kind of silent about complying with, consistency with current CDP’s or community development plans. This will require compliance with the current applicable community development plans. Processing time changes. Originally, it was 60 days with the Director’s decision. In this proposed process, it will be 90 days for the first hearing, with the decision coming from the Commission 60 days after close of hearing. Failure to process in a timely manner. Originally it was deemed to be a denial if it wasn’t completed within a--timely processed. Now, it will be deemed approved unless there is written objection to the PUD received. Option for a partial PUD approval. Originally, there was this option. The proposed will not allow a partial PUD approval. Time extensions previously would, currently would go before the Planning Director. Proposed would come before the Planning Commission. And lastly, the appeal process, currently it goes before the Board of Appeals based upon Director decision. Now, it would go to Third Circuit Court because it would be a Planning Commission decision. Information requirements. Bill No. 281 does not introduce a significant change to the information submittals required with a PUD application or to the standards or criteria for approval of a PUD other than to substantially conform to any applicable community development plans. 2 EXHIBIT C These are the reservations that the Planning Director has regarding this bill. The Zoning Code specifies that the purpose of a PUD is to encourage comprehensive site planning that adapts the design of development to the land, by allowing diversification in the relationship of various uses, buildings, structures, open spaces and yards, building heights, and lot sizes in planned building groups, while still ensuring that the intent of this chapter is observed. Emphasis added. A PUD alone cannot introduce a use that is not permitted within a particular zoning district nor shall its approval compromise the intent and purpose of the Zoning Code. A PUD exists to encourage comprehensive site planning, when the other option is to design a project in compliance with the standard requirements of both the Zoning and Subdivision Codes. Just to kind of summarize that--if a PUD comes in, in a residential zoning, you can’t add aspects of commercial in that. They would have to come in for a change of zone to introduce commercial. Additionally, if you have RS-10 zoning, and you have a 100,000 square feet, you’re allowed ten residential structures, or ten lots, or ten buildings per each 10,000 square feet. This particular planning tool allows to be able to change that concept, so instead of having a building site that has to be at least 10,000, it can be minimized to 7,500 square feet and allowing one larger excess lot to do other, like a park or something like that. Just, it gives, it’s a planning tool. And the next reservation is that there is a concern that transferring approval authority for a PUD from the Planning Director onto the Planning Commission may complicate a process that does not, or does have favorable attributes, such as encouraging developments that seek a better fit into the surrounding environment. Zoning controls overall, zoning controls overall land use. PUD, PUD’s then manage these permitted land use to the best complement the area in which the project is situated. There is a perception that a PUD is the master land use or development permit. It is not. If a PUD is denied by the Planning Commission, the landowner is still able to development its property in accordance with the standard requirements of the Zoning Code and the Subdivision Code. A denial of a PUD does not make a project necessarily go away since it is the zoning of an area that dictates what gets developed and how the land is utilized. So, it’s again, a planning tool. The Planning Director’s recommendation for reasons detailed above, the Planning Director recommends that the Planning Commission send a favorable recommendation with reservations, to the County Council regarding Bill No. 281, relating to Planned Unit Developments. That concludes our presentation. Thank you. MIYASATO: Commissioners, any questions for staff? IKEDA: Yes, I do. MIYASATO: Commission Ikeda. 3 EXHIBIT C IKEDA: Mr. Darrow, I have two questions. It says, I’m reading the bill, an analysis of the relationship of the proposed development to the General Plan and any applicable community development plan. So, what if there’s a difference in the CDP and the General Plan? Which one takes precedence? DARROW: In the General Plan, it specifically states that if there is a conflict between the General Plan and specific community development plans, the General Plan is the authority. IKEDA: Okay, then we better tell the public that, because when I was on the Council, they used to challenge us all the time when there was a conflict between the General Plan and the CDP. DARROW: Which, I mean, not to say that everything, we live in a perfect world, but when a CDP is created, if it does conflict in certain areas with the General Plan, it’s good to bring those into compliance-- IKEDA: Right— DARROW: --as part of the process. IKEDA: No, so I kind of agree with a statement like the last one we went through. The CDP, the Hilo CDP is what 25 years old, it’s out of date— DARROW: --yeah— IKEDA: --so it doesn’t comply. The second one I have that I’m really against is that, if we fail to give any kind of a, a motion or how shall—it says, I have it written down. If the Commission fails to render a decision within a prescribed 60-day period, the application should be considered as being approved, provided that no written objections to the PUD permit application is received by Commission. I really object to that. I would think that it should be like it is now; it should be denied. I would, you know, favor being a little more cautious than, you know, being—I think it’s being kind of over optimistic or generous by just approving something if the Commission didn’t make a decision. And that’s my gripes. KANUHA: Mr. Chairman, perhaps I can respond to that and— MIYASATO: --yeah— KANUHA: --and maybe add some history. With regard to the two concerns by Commission Ikeda, the difficulty, the difficulty between—well, not the difficulty, but the reason there’s language in there that when a PUD is being considered that if taken account, both the General Plan and the community development plan says, is actually becoming more complicated ever since the community development plans have recently been adopted by ordinance. Okay, previously, they were adopted by resolution, which made it clear that the General Plan, because it was adopted by ordinance and Charter, was the prevailing document. Now that we have both documents approved by law, that, the General Plan still prevails but it does complicate things a bit, which is, which is why there was that inclusion for the CDP’s. 4 EXHIBIT C Also, in relation to that is that over the years, they’ve been several appeals on PUD approvals, and you know, these have been administrative, that’s why it doesn’t come to the Commission. It’s just done by the Department. But, on those appeals, and more recently, those appeals were based on non-compliance with the CDP’s because they were ordinances. So, this bill is an attempt to try and at least put that all in the, you know, the same compartment. What was your second question again, Don? IKEDA: Well, my concern was that if no decision was made, it was considered approved, and I have problem with that. KANUHA: Throughout our Codes, we have differing languages, you know, some in, in some areas if no action is taken within the certain period of time, then the application is deemed to be denied. In other areas, if no action is taken within a certain period of time, then the—the application is deemed to be approved. However, the legislature passed an amendment to Chapter 91 in 2007, I believe, which basically requires that if any administrative permit is not approved within a certain time period, then it’s to be deemed approved, so we’ve got really no choice in that. The difficulty we have is that our Codes haven’t, we haven’t been able to revise our Codes to keep up with changes in the State statute. I think we all have reservations about that, but you know, that’s, that’s the way the statute reads at the current time. The other thing that I wanted to add--again, this is from a historical perspective--is that when the Zoning Code was first adopted and being implemented, the PUD, the Planning Unit Development component, was always in the Zoning Code. But, at that time, based on the County Charter, the Planning Commission made—heard and made decisions on variances, variances from the Zoning Code. And because the PUD is most considered a form of a variance, back in the day, the Planning Commission at that point in time used to be the ones that issued PUD’s. There was a charter amendment—I forget when it was, probably in 1990 or so—which basically took variances away from the Planning Commission and gave it to the Planning Department. So, that’s why PUD’s went over to the Planning Department as well. But, again, fast forwarding to where we are now, it’s becoming, it’s becoming a vehicle that’s becoming contentious because of, you know again in my opinion, a real lack of understanding of what it is. You know, people think that, that landowners and developers are using the PUD as a rezoning process when actually it’s not. The public believes even though the statutes are pretty clear, that there’s no density increase through a PUD, but they still think there is, you know, there’s some kind of density increase. And you know, and—and, because of those situations, the Council had actually tried to initiate several bills to bring this process all the way back to the Council instead. You know, they wanted some, some mechanism where the public had an opportunity to testify and comment such as they did this morning. Whereas, the process now is just written notification, publication, and so many times, you know, they’re not aware of it until the action is, you know, is, is either passed and then those have tended to go to the Board of 5 EXHIBIT C Appeals. The Board of Appeals has either sustained the decision, most—most cases it’s sustained the decision. Then, the Board of Appeals decision has been further appealed to the courts, and the courts have reversed you see, so that’s why as a compromise position in working with several of the Council people that wanted to see more transparency in the process, you know, that is why we’re, we’re supporting this, this amendment to move it up to the Planning Commission. It provides the kind of opportunities for public input, you know, that you folks had this morning. It puts more work on your agenda, but what it does, is it, it hopefully provides a better forum for decision-making and hopefully, you know, less appeals, once the process become more transparent, is basically what it attempts to do. Thank you. MIYASATO: Commissioners— ONO: Yeah— MIYASATO: --Commissioner Ono— ONO: --further question, Duane. On the same issue regarding the deemed approved on this written, etc., etc., if this, if this recommendation doesn’t go through, does that mean that you also must changed yours as approved? KANUHA: (Nodding affirmatively.) ONO: Okay, that’s question number one. KANUHA: Yes, our rules that, that reflect whatever the, the statute or the County Code shows— ONO: --Okay— KANUHA: -- they all have to be approved to be in compliance. ONO: The other that I have a concern, concern about is the appeal, the last bar. How is it that it goes directly to court? KANUHA: All of the decisions of the Planning Commission go to court— ONO: Oh, I thought it goes to the Board of Appeals or the Council— KANUHA: Only the administrative, the administrative components go to the Board of Appeals. ONO: So, these individuals that face us, if, if they don’t agree with the—I always felt that this was a recommendation to the Council that we, that they decide this, you know, the way we, we rule. So there was an appeal process with the Council. KANUHA: It depends on what you’re talking about. If you’re speaking about the example we had this morning, which is an SMA permit— 6 EXHIBIT C ONO: --yeah— KANUHA: Okay, in that case, the Planning Commission is the final decision-maker. So whatever decision they make goes to the court. ONO: --I see, okay. The other question I have regarding this. Yeah, basically, we’re going be doing the same thing—the staff will be doing all of the Background and then it’ll come to us, okay. I guess my concern is that a—as a commissioner, the expertise is not there. So sometimes you’re talking above my head, you know, the presentation. So, to add this to the Commission’s decision-making, that’s a heavy burden. I kind of sense that it’s a heavy burden, and I—I’m very uncomfortable with the recommendation only because I would have difficulty understanding all the legalities and all the you know whatever else. I guess we could turn to counsel for that, but anyway, I am concerned that this is above me in terms of the process. KANUHA: You know, that’s why I wanted to provide some historical perspective that it used to be the Planning Commission’s permit, you know, back in the day. And when the Charter was amended, it went back to the Department, so it’s you know, coming back. This, you’re right, it’s another, it’s another permit that comes before the Commission for their consideration. It’s, it’s no different than Special Permits or Use Permits and, in this case, you know SMA you know type permits. ONO: Thank you. MIYASATO: Commissioners, any further questions? I have one. You know, Director, you just mentioned about the Charter. That this was placed back, the PUD’s was placed back several years back for the decision of the Planning Department. Does this bill, does this bill against, going against the Charter at this point? KANUHA: You know, that’s a good question, and that’s one of the components that was considered when it was being put forth, so if you, you know, take a look at the bill itself, and I’ll give you a specific reference. If you look at Page 2 of the bill itself, Item 25-6-3(2)(C), you’re gonna see that the amendment there it says, “A list of all requested deviations” and variances have been struck. So, basically, what you’re gonna find in this bill is that any place it talks about variances, is being struck. That way, it separates the PUD from a variance. A PUD not being a variance, and that’s why it’s, that’s why our, our comments are designed to make sure that they’re considered more as a planning tool rather than a variance from something, a deviation from something. MIYASATO: Okay, thank you. Commissioners, any further questions or discussion. If not, I’ll accept a motion. HENKEL: Mr. Chair, I’d like to move that a favorable recommendation be forwarded to the County Council on the application of Change of Zone Docket No. REZ 14-180 pursuant to the Planning Director’s recommendation and conditions. 7 EXHIBIT C MIYASATO: Do I have a second? MOSES: That’s with reservations, correct? To the County Council? MIYASATO: Commissioner Henkel? HENKEL: I’m sorry, Bill No. 281. MIYASATO: Okay. MOSES: With reservations to the County Council. MIYASATO: With reservations? HENKEL: With reservations to the County Council. MOSES: Second. MIYASATO: Motion by Commissioner Henkel and seconded by Commissioner Moses. Any discussion on the motion? Call the roll. DARROW: Thank you, Mr. Chairman. With that, we’ll take the roll call. Commissioner Henkel? HENKEL: Aye. DARROW: Commissioner Moses? MOSES: Aye. DARROW: Commissioner Heaukulani? HEAUKULANI: Aye. DARROW: Commissioner Ikeda? IKEDA: No. DARROW: Commissioner Ono? ONO: No. DARROW: And Mr. Chairman. MIYASATO: No. 8 EXHIBIT C DARROW: The motion does not pass. Oh--yep, does not pass three to three. MIYASATO: Commissioners, any motion? ONO: Before we proceed, can I ask the counsel, what does this mean? That it was denied. That it’s going to go through anyway? I mean, if it’s by law? The recommendation by the Director is to have it recommended approval. I’m not going to ask for a discussion. I mean, I’m not going to ask for a change in motion. I just wanted clarification. PATEL: Yes, so the motion was to afford a favorable recommendation if I understand correctly. So, so the favorable recommendation, the motion did not carry. There could be a motion to forward an unfavorable recommendation. ONO: I see, I see-- PATEL: Either way, a decision should probably be made. ONO: Okay, thank you. PATEL: So, another motion could potentially be brought. MIYASATO: Commissioners, any further discussion on this matter or would anyone like to put forward another motion? IKEDA: Unfavorable, yeah. I move that an unfavorable recommendation be forwarded to the County Council on Council, Council Bill No. 281, yeah, based on the certain concerns and reservations on the part of the Commission. MIYASATO: Do I have a second? ONO: Second. MIYASATO: A motion made by Commissioner Ikeda and seconded by Commissioner Ono. Any discussion on the motion? Call the roll. DARROW: The motion before us is to send an unfavorable recommendation regarding this County Council initiated bill. With that, we’ll take the roll call. Commissioner Ikeda? IKEDA: Aye. DARROW: Commissioner Ono? ONO: Aye. DARROW: Commissioner Heaukulani? 9 EXHIBIT C HEAUKULANI: No. DARROW: Commissioner Henkel? HENKEL: No. DARROW: Commissioner Moses? MOSES: No. DARROW: And Mr. Chairman. MIYASATO: Aye. DARROW: The motion does not pass. MIYASATO: Any discussion, Commissioners? If not, would anyone like to make a motion for an executive session? ONO: I move for an executive session, please. MIYASATO: To—reasons? ONO: For the sake of clarification regarding the legality of this-- PATEL: --related to the Commission’s powers, duties, privileges, immunities, and liabilities pursuant to HRS 92-4 and -5? ONO: Sounds good. MIYASATO: Do I have a second? IKEDA: Second. MIYASATO: All in favor? COMMISSIONERS: Aye. MIYASATO: Any opposed? We’ll go into executive session. At 11:00 a.m., it was moved by Commissioner Ono and seconded by Commissioner Ikeda that the Commission go into executive session to consult with its attorney regarding questions and issues pertaining to the Commission’s powers, duties, privileges, immunities, and liabilities, pursuant to Hawai‘i Revised Statutes Sections 92-4 and 92-5. A voice vote was taken of all Commissioners present, and motion carried with six aye votes. 10 EXHIBIT C At 11:01 a.m., the Commission went into executive session. At 11:10 a.m., it was moved by Commissioner Moses and seconded by Commissioner Ikeda that the Commission go out of executive session. A voice vote was taken of all Commissioners present, and motion carried with six aye votes. The hearing reconvened for regular session at 11:10 a.m. MIYASATO: Okay, call the meeting back to order. Commissioners, back on Agenda Item No. 3, Bill 281. Do I have any discussion? If not, I’ll accept a motion. MOSES: I’d like to make a motion to send a favorable recommendation with reservations to the County Council regarding Bill No. 281, relating to the Planned Unit Development, PUD Permit, along with reservations of Commissioners. ONO: Point of order? Don’t we have to ask for a motion to reconsider first? No? Okay. MIYASATO: Do I have a second? HENKEL: Second. MIYASATO: Motion by Commissioner Moses, seconded by Commissioner Henkel. Any discussion on the motion? Call the roll. DARROW: Thank you, Mr. Chair. With that, we’ll take the roll. Commissioner Moses? MOSES: Aye. DARROW: Commissioner Henkel? HENKEL: Aye. DARROW: Commissioner Heaukulani? HEAUKULANI: Aye. DARROW: Commissioner Ikeda? IKEDA: No. DARROW: Commissioner Ono? ONO: Aye. DARROW: And Mr. Chairman. MIYASATO: No. 11 EXHIBIT C DARROW: The motion passes four to two. The discussion ended at 11:12 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 12 EXHIBIT C