HomeMy WebLinkAbout2017-04-10 Joint Meeting Exh A (Amend Commission Rules)
JOINT LEEWARD AND WINDWARD PLANNING COMMISSION
COUNTY OF HAWAI‘I
HEARING TRANSCRIPT
April 10, 2017
A regularly advertised hearing on the REVIEW AND ACTION OF PROPOSED
AMENDMENTS TO THE COUNTY OF HAWAI‘I PLANNING COMMISSIONS’
RULES OF PRACTICE AND PROCEDURE was called to order at 10:43 a.m. in the West
Hawai‘i Civic Center, Community Center, Building G, 74-5044 Ane Keohokālole Highway,
Kailua-Kona, Hawai‘i, with Chairman Keith F. Unger presiding.
LEEWARD PLANNING COMMISSIONERS PRESENT: Keith F. Unger, Nancy Carr Smith
(until 3:32 p.m.), Scott Church (until 12:37 p.m.), Collin Kaholo, Perry Kealoha,
Barbara Nobriga and Sonny Shimaoka
WINDWARD PLANNING COMMISSIONERS PRESENT: Greg Henkel, Joseph Clarkson and
Donald Ikeda
ABSENT AND EXCUSED: Donn Dela Cruz and Myles Miyasato
ALSO PRESENT: Malia Ho (Counsel for the Commission), Michael Yee (Planning Director),
Daryn Arai (Deputy Planning Director), Jeff Darrow (Planning Program Manager),
Maija Jackson (Planner), Shancy Watanabe (Planner), Sarah Hata-Finley (Windward Planning
Commission Secretary) and Noriko Sauer (Leeward Planning Commission Secretary)
And approximately 20 people from the public in attendance.
Review and action of proposed amendments to the County of Hawai‘i’s Planning
Commissions’ Rules of Practice and Procedure related to adoption of new Planned Unit
Development (PUD) Rule 16, amending application processing and action timelines, appeal
language, and revocation language for various permits and approvals, and amendments to
Rule 4 for Contested Case Procedures.
UNGER: We have one agenda item this morning: Review and action of proposed amendments
to the County of Hawaii Planning Commission’s Rule of Practice and Procedure related to the
adoption of new Plan Unit Development, P.U.D. Rule 16, amending application processing and
action timelines, appeal language, and revocation language for various permits and approvals,
and amendments to Rule 4 for the contested case procedures. Ms. Maija, would you like to make
your presentation?
JACKSON: Yes, thank you very much, Chair Unger. Before I start, what I would like to do is,
my presentation just hit specific rules that were proposing the major amendments for, but at any
time as I’m going through the presentation please stop me and ask questions as we go, don’t save
your questions until the end, and then that way we can work out revisions if they’re needed as we
go. Okay? And then if there’s any changes that the Commission would like to do to any of the
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rules that aren’t on the presentation slide, that you’ve seen from reviewing the rules, let me know
at the very end and we can work through those as well.
All right, so with that I’ll go ahead and start. The first major change that we’re proposing is to
change Rule 3, which is the rule for Declaratory Rulings. We’re proposing to decrease the filing
fee from 500 dollars to 200 dollars. And the purpose of the reduction in fee is that declaratory
rulings are initiated to request that the Commission clarify conditions of a permit or application
of law. This benefits both applicant and the Planning Department. Historically applicants have
declined requesting declaratory rulings due in part because of the high filing fee. So we’re just
requesting to reduce that filing fee to make it easier for the applicant to get clarity on some of the
conditions of their permits. Are there any questions on that before I move forward? Okay.
The next rule relates to contested case procedure, that’s Rule 4, and before I show you the
changes, I want to just generally go through what a contested case procedure is through the entire
abbreviated process. So typically what happens is when an applicant applies for a permit, let’s
use a Use Permit as an example, they submit an application to Planning, and we place that
application on your agenda. And the applicant’s required to send notification to surrounding
property owners of the application and of the hearing date, and then the Planning Department is
required to publish notice of the meeting, of the first hearing, in the newspaper. And so those are
two ways that the public gets notified. The hearing is then held, and sometimes, not all the
times, but sometimes you’ll have somebody who wants to intervene and file a petition for
standing in a contested case. Those people that want to intervene need to file a 200-dollar filing
fee, and those are usually people who have some interests in the application, or they feel that
they will be harmed in some way if the application is approved beyond concerns of just the
general public. This can also be a person who has some actual interest in the land, financial
interest in the land. So at that first meeting, the commission determines whether to grant
standing to that person who’s applied for intervention, or to deny the petition for standing. If the
petition is denied, the hearing continues as a normal hearing like your application for Mr. In
earlier today for the Leeward Commission. If standing is granted, then the hearing goes into
what’s called a contested case procedure, and typically the hearing is continued to allow time for
the parties to have a pre-hearing conference to work out what their specific concerns are, to
provide evidence, to work out witnesses and witness statements, and it becomes like a
quasi-judicial proceeding. The applicant and the other parties can ask questions of one another.
And currently, the way our rule is written now, the public is allowed to testify during these
contested case proceedings. We have had contested case proceedings in the past where
sometimes this public testimony can take a whole day before the intervenor and the parties are
actually able to state what their concerns are in the case, and that is helpful to have the public
testimony, but it also takes time from the intervenor who paid their 200-dollar filing fee and who
wants to state their case. It also adds to the cost of the transcripts, and just to the time of hiring
the hearings officer so it becomes an additional burden for the tax payers, because it’s the county
that pays those costs. So what would then happen, typically, is the hearings officer will hear the
case and then they’ll make a recommendation report to the commission. They bring that report
back to the commission at a hearing, and that hearing is always noticed in the paper; the Planning
Department notices that hearing, and currently the rule says that the applicant again has to notify
all of their surrounding property owners of that decision hearing before the Planning
Commission. So that is generally the current process.
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The proposed changes we have before you are to remove the requirement to notify persons other
than the parties of the contested case hearing, and also to remove the requirement to provide
notice to the general public through a publication in the newspaper of the contested case hearing.
Also, another change is to remove the requirement for the applicant to serve notice of the
contested case hearing on surrounding property owners and lessees of record, and to remove the
provision for public testimony during a contested case proceeding. And I just want to make it
clear that none of these proposed changes are meant to prevent public testimony on the
application. As it shows there, it’s meant to limit public testimony during just the contested case
proceeding. The public still has the opportunity at the first hearing and at the last hearing before
the commission to provide public testimony. And I kind of already stated the purpose, but I’ll
just go through that again, it’s to clarify that the purpose of a contested case proceeding is for the
parties, rather than the general public, to state their case. And that’s why I just said a few
minutes ago this only applies to the contested case proceeding. The applicant will still be
required to notify surrounding property owners and lessees of the Commission’s first meeting on
the application as stated in other rules for the various applications, and notice to the general
public through publication in the newspaper of the commission’s first meeting will occur. Are
there any questions on that before we move on in the contested case rule? Nancy?
CARR SMITH: Yeah, I’m just trying to understand. So it seems like in the Proposed Changes
it’s not clear what the purpose is; you clarify down in the Purpose area, but up in the Changes it’s
not that clear to me.
JACKSON: Okay. Well, the main purpose is so that those folks who are notified of the
contested case hearing are actually the people who are a party to the contested case hearing,
which is the applicant, the intervenor, and the Planning Department.
CARR SMITH: Okay, but then you’re saying at the bottom that the applicants still required to
notify the surrounding owners, but up above you remove that requirement?
JACKSON: Right, so the applicant would still be required to notify the surrounding property
owners of the first hearing at the Planning Commission. So the example I used today, if you had
a Use Permit before you today, that first hearing would have been notified in the paper, would
have been noticed in the paper, and the applicant would have sent out notice to surrounding
property owners. And then if you had granted standing for intervention in a contested case in a
hearing today, then the contested case portion is the portion that’s not noticed.
CARR SMITH: I understand. So we’re talking about a Planning Commission meeting versus a
contested case hearing.
JACKSON: Correct. That’s correct.
CHURCH: I just want to make a comment, and don’t misconstrue my comments as to whether I
am for or against an applicant notifying surrounding owners. However, in any situation where a
contested case can arise, or any situation where a Special Permit is issued and an amendment is
requested to the Commission and notification has to be made to surrounding owners, depending
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upon the density of the situation, myself having gone through this, this can easily cost thousands
of dollars each time you do it. So it’s not an immaterial thing like an application for just one
person. It may be impactful for just an individual. Again, don’t misconstrue my comments, but
for those who don’t know, it can easily cost thousands of dollars.
JACKSON: It can be expensive, and I’d just like to add, Mr. Church, that the distances set for
notification of surrounding property owners are not created by the Planning Commission or the
Department; they’re actually adopted by the County Council.
UNGER: The second item under Proposed Changes, “Remove requirement to provide notice of
the general public through publication in the newspapers”; right now, there is a requirement to
notify the general public. And is that, is that a publication of the agenda of the public meeting,
or is it actually more involved with the transcript? Can you clarify that?
JACKSON: I believe it’s just the publication of the agenda.
UNGER: It’s just the agenda? Okay.
CARR SMITH: So again to clarify, for the Planning Commission meeting, the agenda will be
publicized so people will have notice about‒‒
JACKSON: Absolutely.
CARR SMITH: Yeah, okay, just not on the contested case.
JACKSON: Correct. Are there any more questions on this portion before I move on? Okay.
Other changes to the contested case procedure being proposed are to add a provision for, to allow
for multiple intervenors, opposition to intervention, and mediation by the parties prior to a
contested case proceeding. So the provision we’re adding for mediation would actually require
all the parties to go into mediation before the contested case proceeding, and we’re hoping this
will, will allow for issues to be resolved ahead of time so that a contested case proceeding is not
needed. We’re also‒‒
HENKEL: Excuse me, Maija.
JACKSON: Yes.
HENKEL: Isn’t there already a provision for multiple intervenors if they pay their 200 dollars?
JACKSON: You know, I think there is, but we’re proposing to change some of the language.
Let’s see, so on page 4-4, this is the section that Chair Henkel’s referring to, we’re proposing to
add a section that says, “Multiple Intervenors. If more than one intervenor is admitted to a
contested case proceeding, the hearing officer and/or Commission may require intervenors to
assign responsibilities between themselves for the examination and cross-examination of
witnesses. The hearing officer or Commission shall have the right to impose reasonable subject
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matter, as well as time limitations on examination and cross-examination of witnesses, whether
or not parties are represented by counsel.” And I believe, and Malia can correct me if I’m
wrong, I believe that this language came about because we had a contested case with several
intervenors and they all had different issues, and so we were attempting to consolidate their
concerns and issues and it became difficult. So I think this language is just to kind of help clarify
that. Is that correct, Malia?
HO: Yeah, that’s correct, and it’s also used in other commissions like the Public Utilities
Commission, which has, the last hearing had, I think, 30-something – I don’t know the exact
number – intervenors and it just becomes kind of unmanageable unless you put these kind of like
clarifications and restrictions and give the hearing officers the power to like, you know, kind of
just hone it in so that everything can get solved in a proper amount of time without undue delay.
JACKSON: Did that answer your question, Chair Henkel, or Commissioner —
HENKEL: Yeah.
JACKSON: Okay. All right, the next provision, the next change would be to add a provision to
clarify the purpose of a pre-hearing conference with the presiding officer. And ‒‒
CLARKSON: Oh wait. Wait.
JACKSON: Yes.
CLARKSON: Can we go back briefly?
JACKSON: Yes.
CLARKSON: I have a question about 4-6(a), which is the Prehearing Procedure. I’m confused.
It says any person, “Any other person seeking to intervene as a party shall file a written request
on a form,” this is where you pay your 200-dollar filing fee, “no later than seven calendar days,
prior to the Commission’s first meeting on the matter.” Okay, so this means before, does this
mean that before the Commission meets to consider an application, all intervenors have to pay
their 200 dollars and apply to become an intervenor seven days before the first meeting on that
matter?
JACKSON: Yeah, I think I know where you’re going with this, Commissioner Clarkson. It
seems like this section should be further up in the rule, like earlier on in the rule, because the,
any party who wants to intervene needs to do it seven days prior to the first hearing held by the
Planning Commission.
CLARKSON: So the Planning Commission publishes its agenda how many days prior to the
meeting?
JACKSON: We’re required to at least ten days prior.
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CLARKSON: So the Planning Commission publishes its agenda, and three days later anybody
that decides that they might want to become an intervenor has to pay their filing fee and
application to intervene.
JACKSON: Yes, but I think I may have misspoke. If you could just give me one minute.
CLARKSON: Surely. Well, let me just say that I’m confused about how anybody could know
what the application was even all about until the application was presented to the Commission,
and so how can you know you’re going to want to intervene prior to learning what it’s all about?
ARAI: No, I understand your concern. What’s imbedded in the rules currently is basically
what’s prescribed by state law. State law basically requires publication of a hearing, I think a
minimum of six days, prior to the conduct of a hearing, which is what the County Council
follows. However, because of the obligation of publishing in the newspaper, the timing of such
publications in the newspaper, the Department has practiced and has done everything it can to
provide at least somewhere in the neighbor of 20 days’ notice ahead of your meetings. We’ve
done it consistently, and I know it’s somewhat relying on the Department to have that, to provide
that courtesy up and beyond the minimum requirements in your rule, but we’re simply, the rule is
simply aligning itself with the requirements of state law. But as a matter of practice, we
generally provide about close to 20 days’ notice. So that gives, you know, we’re talking 13, two
weeks, roughly, lead time heading into our hearing, or your hearing I should say.
JACKSON: If I can just add to that, too, there’s also other ways that the public is notified, as
well as the surrounding property owners; so when the application is first accepted by the
Department, the surrounding property owners are notified within ten days of acceptance, and a
sign is posted on the property by the applicant, so people who drive by or are just in the area will
see that. And those are usually posted and provided to the neighbors within, like I said, ten days
after accepting the application, which is typically two and a half months before your first
hearing. So there are other methods of notification.
CLARKSON: And then anybody that wants to could come in and actually get the application —
JACKSON: Yes.
CLARKSON: — read what it’s all about and decide whether they want to intervene?
JACKSON: Yes.
CHURCH: And it happens.
HO: Also just to add, it’s usually the surrounding property owners that actually have interest and
are the ones that usually intervene, so yeah, they get notified first, like she said, about two
months out. So they get, you know, proper notice in that situation.
JACKSON: So Commissioner Clarkson, did you still have concern with where this language
was situated in Rule 4? Or does the —
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CLARKSON: No, that’s coming later.
JACKSON: Okay. All right.
CLARKSON: I do have one more question. I’m sorry to be so nit-picky, but 4-6(b)(5), “Persons
who are descendants of native Hawaiians who inhabited the Hawaiian islands prior to 1778,” that
language is repeated many times in the rules, and of course, those people would not likely be
surrounding property owners. So just clarify for me one more time; there is, there is, with every
application, there’s a publication of the application and a journal of public interest where
non-property owners would learn about an application.
JACKSON: Yes, there’s a publication in the newspapers.
CLARKSON: Okay. And that’s many months before the ‒‒
JACKSON: That is, like Daryn said, we try to do it at least 20 days prior to the hearing.
CLARKSON: Oh, that’s the 20 days prior.
JACKSON: Yes.
CLARKSON: Okay. Also in the same, 4-6(b)(5), sometimes, and in this case, it’s “Hawaiians
who inhabited the Hawaiian islands prior to 1778, who practiced those rights which were
customarily and traditionally exercised for subsistence, cultural or religious purposes.” I’m
confused by who is practicing. The Hawaiians who inhabited prior to 1778? Because there’s a
“d,” “practiced.” Or is it who practice, who are descendants who are continuing to practice those
subsistence rights? Who is practicing in this clause here?
JACKSON: Good question. Malia, do you happen to know ‒‒
CLARKSON: Well, I would ‒‒
HO: Yeah, it’s, it’s Hawaiian, native Hawaiians that practice religious ‒‒
CLARKSON: Now.
JACKSON: Currently practice.
CLARKSON: Now.
HO: Yeah, now. Yeah.
CLARKSON: Okay, well, I ‒‒
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HO: Because, I mean, that’s the only thing you can actually prove; you can’t prove whether
their ancestors did or not, I mean, that would be very difficult for them to prove, but they can
prove whether they practice now, today.
CLARKSON: Well, at the very least the “d” should be removed, and to make it more consistent
with language that appears later, I would remove everything after the 1778 and just refer to
native Hawaiians, descendants of Native Hawaiians, because this practicing part is —
HO: Well, see, it’s —
CLARKSON: — sometimes it’s included and sometimes it isn’t.
HO: Sorry. Yeah, there should be uniformity, I agree with that. But this is more in relation to
granting rights, like, just like native Hawaiians can go into Volcano National Park, for example,
if they are practicing, they’re collecting for their hula hālau or something like that. But it’s
linked to that practice, not just because they’re Hawaiian, but linked to the fact that they are
practicing their cultural or religious or, you know, subsistence things. Not just free for all, like
you can just go onto the land because of that, but it actually has to be connected to a purpose.
CLARKSON: Then let’s leave it in and see where else it might need to be included.
JACKSON: Okay. All right. The next change we’re proposing is to clarify that the
Commission does not have to incorporate its decision, in its decision, a ruling upon each of the
parties’ proposed findings and facts. So, what this is referring to is typically the parties will each
provide proposed findings of facts at the end of the contested case hearing to the hearings officer,
and this is just – I’m sorry, not to the hearings officer, to the Commission, once it comes back to
the Commission. This is just saying that the Commission does not have address every point of
fact when they create their findings; they can just address essentially the findings that they agree
with. Is that correct, Malia? Yeah.
HO: Yeah, this is, you basically adopt what you guys want to adopt and leave the rest behind.
You have that authority to do that, and that way you don’t have to, you know, justify every
single piece; if you don’t want to, if you don’t like that piece, you can just leave it behind and
continue on.
CARR SMITH: So this is a scenario where the Planning Commission opts to not be the —
HO: The hearings officer ‒‒
CARR SMITH: Right —
HO: Yeah, so this is where you ‒‒
CARR SMITH: — for the contested case, and then it comes back. But wouldn’t the contested
case —
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HO: Actually, either —
CARR SMITH: — hearings officer have incorporated the findings of fact?
HO: Yeah, so it can actually happen in either case, where either, because sometimes you guys
could select the committee of, of, or you guys could hear the case yourselves. So, either way, I
mean in that sense you guys would be developing your own findings of fact, so I guess then it
would be null and void. But, yeah, when it goes to the hearing officer, they would get their
proposed from each party, and then they would have their own, you know, findings of fact and
conclusions of law. And so, but you guys would be able to see all. So you could see from the
parties and the hearings officer, but this just kind of says that you don’t have to go through every
single one and explain them all what your justifications are and such.
CARR SMITH: Thank you.
JACKSON: Commissioner Clarkson, did you have a question on that? Okay. All right, so
moving on to Rule 2, or moving back to Rule 2, and to Rule, I think that says Rule 10. Those are
related to the petition for adoption, amendment, and repeal of your rules, which we’re doing right
now, and the geothermal asset fund. So for those two rules, they currently both state under the
appeal language that any appeal should be made to the County Board of Appeals. We’re
suggesting changing that appeal language to clarify that appeals should be made to the Third
Circuit Court. And the reason for that is all decisions of the Commission are appealable to Third
Circuit Court and decisions of the Director are appealable to the Board of Appeals. So this
change would make Rule 2 and 12 consistent with all other Planning Commission rules in
regards to appeals. I think those were old references to the Board of Appeals. Are there any
questions on that? Okay.
And then we also have additional changes to various rules. And again going back to the appeals,
I’ll just show you, if you can turn to Rule 6-10 on Page 6-5. So Section 6-10 on Page 6-5, that
shows the new appeal language that we’re proposing. Currently most of the rules say the
Commission’s decision is appealable to the Third Circuit Court, and we’re wanting to just add a
little bit more language there to say, “Any decision of the Commission so made within the
context of this article shall be appealable to the Third Circuit Court. The notice of appeal shall
be filed in a Third Circuit Court within 30 days after the person desiring to appeal is notified of
the decision or order, or of the action taken in a manner provided by statute.” And, the reason
we’re proposing to do that is because since the rule currently doesn’t specifically say a timeline
that they have to appeal, a lot of folks call the Department and ask if they can appeal the
decision. And, by the time they do that, they’re coming right up against that 30-day appeal
timeline, so we just want to put it in writing so that they are aware well in advance of how long
that they have to appeal.
And, then, other language we’re proposing is to add language to allow for the Commission to
revoke Special Permits, Shoreline Setback Variances, and Planned Unit Development Permits,
and to change existing revocation language for Use Permits and SMA Permits to be consistent
with the language in other permits. And if you again look on Page 6-5, right below the appeal
language, we have the proposed revocation language. It basically says, “A Special Permit may
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be revoked by the Commission in the event that any property owner who holds the permit sought
to be revoked or at the request of any other person with the property owner’s consent, submits a
written statement to the Commission verifying that the development approved under the permit
issued has either not been established or has been abandoned.” So I think both Commissions
have, has seen a few revocation requests for the property owner just doesn’t want to do that use
anymore. So, that would be one instance that would allow the Commission to revoke. Another
one would be if you look at Number (2), it says the Director, if the Director requests the
revocation if there has been noncompliance with the conditions of the permit or the use
authorized under the permit is creating a threat to the health or safety of the community. And
then Number (3) basically says that the Department, of course, would have to notify any property
owner if, if we’re taking their permit back to the Commission to be revoked. Are there any
questions on the new revocation language?
Okay. And then lastly — Commissioner, did you have a question?
CLARKSON: Yeah, I do about this. Is there no way that a landowner who gets a permit, a
Special Permit, can simply have the permit be voided by contacting the Planning Department and
say I want this permit voided? Why do they have to come back to the Commission to get our
permission to revoke a permit that they don’t want? Is there some reason they have to do this?
JACKSON: Because the Commission issued the permit. So, if you want to give that authority to
the Department to do that, that’s certainly something that you could do. We can change the
language.
CLARKSON: Well, I just, it seems to me an awful lot of bother for someone who wants to do a
voluntary revocation of a permit to have to go to the Planning Commission to get permission to
relinquish their permit. Why can’t they just say here’s an affidavit, I don’t want the permit –
Boom, it’s gone – to the Director or somebody? I mean, I’m new, so I saw my first revocation
not long ago, and I’m going, well, why do they have to ask us?
JACKSON: Yeah, I understand. It is another process that they have to go through. So, if, if you
want to suggest amending that to give the authority to the Planning Director to revoke those
permits when they’re requested by the property owner, you could do that.
CLARKSON: I mean, is there plenty of time to modify this language before it gets acted on or is
it going to be all acted on today right here?
JACKSON: That was the hope since, since we don’t have joint meetings very often. That was
the hope, which is why, you know, as I said, we can work through these and maybe take a few
breaks and come up with some amended language and, and hopefully act on any changes that the
Commission would like today.
CLARKSON: Well, before we hear from Daryn, I would recommend substituting Planning
Director for Commission.
JACKSON: Okay, thank you.
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ARAI: And, maybe this is a question for the Deputy Corporation Counsel. Could
Commissioner Clarkson’s concerns be addressed by maybe imbedding within a particular permit,
whether it be a Use Permit, Special Permit, a particular provision that says, you know, should an
owner wish to revocate the permit that the Department has the ability to do so?
HO: I think I’d have to research that a little bit more during break because the Planning
Commission is given the authority. I don’t see why they couldn’t delegate that authority back,
but I think, yeah, I think I would like to just read into it a little bit more. Maybe look at the Code
or the Charter, I’m sorry, just to make sure that we’re following proper channels. But, it, I mean,
it, to me, it makes, it makes total sense to, you know, cut out that. And, also, there’s a lot of
costs involved with both the County and the applicant then has to republish, and so it’d save
both, both sides money and taxpayer money, so, yeah, okay.
JACKSON: So, maybe we can table that and then at a break, Malia, research it?
HO: Mm-hmm.
JACKSON: All right, so the next proposed change would be for timings for hearings and this
change would allow for all permits and approvals issued by the Commission, we would change
the timing of the hearings and the Commission’s decision to be consistent so that all of the
permits that the Planning Commissions issued, the Department would take it to the public
hearing at the Commission within 90 days after acceptance of an application, and the
Commission’s decision is made within 60 days after the close of the public hearing, unless a
longer time is agreed to by the applicant. These same timelines would be applied to processing
permit amendments. So, the reason we’re proposing this, this change is that currently, the way
your rules read, certain amendments have to go before the hearing within 45 days. I think that’s
for SMA permits. You have other permits where the rule is silent on how long the Commission
has to make a decision, and then you have other rules where it’s very specific and it says within
60 days or 90 days. So we’re just trying to bring all of your permits that you approve in line as
far as the timelines go. Are there any questions on that change? Commissioner Clarkson.
CLARKSON: Yes. So, that a public hearing is held, does that mean initiated or completed?
JACKSON: That’s initiated. The first public hearing has to be held within 90 days of
acceptance of an application.
CLARKSON: Can we make that crystal clear that, because I can imagine lots of hearings,
especially with contested cases extending for quite a long time, so it’s just that the start of a
public hearing has to, it has to start within 90 days, not be completed.
JACKSON: Yeah, so, let me refer you to Page 6-3. This is again for Special Permits. Under 6,
Section 6-6, Public Hearing, Letter (a), it says, “The Commission shall conduct a public hearing
within a period of ninety days from the date of acceptance of a complete application, or within a
longer time period as agreed to by the applicant.” Do you, do you feel that that is adequate, or
do you want that to be clarified that it’s, it’s the first hearing held? And, just to note, this is the
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first public hearing at the Planning Commission. Contested case proceedings are, are different.
This is just referring to your first Planning Commission hearing. And the reason for the rule,
obviously, is so that the Department doesn’t just let an application linger for months and months
and months; we’re required to take it to hearing so that the Commission can consider it in a
timely manner.
CLARKSON: Well, then, I would suggest substituting the word, “initiate” for “conduct” or
“start.”
JACKSON: Okay. How about, “The Commission shall conduct its first public hearing within a
period of 90 days?” Would that, would that work? Because I think it’s important we say
“conduct”; it’s actually held. “The Commission shall conduct its first public hearing?”
CLARKSON: That’s fine.
JACKSON: Okay.
CARR SMITH: Isn’t that what it says?
JACKSON: It just says “a public hearing.”
CARR SMITH: Just adding the word, “first?”
JACKSON: Yeah. Yeah, actually Jeff just pointed out to me that your rules are a little different
with the language. So if you look at Page 7-3, Section 7-5, this is for Use Permits, so Page 7-3,
Section 7-5, under Public Hearings, this one says, “Upon acceptance of a use permit application,
the Commission, through the Department, shall fix a date for the public hearing. The public
hearing shall commence no later than ninety days after the acceptance of a use permit application
by the Director, or within a longer time period as agreed to by the applicant.” And, if you like
that language more, we can just apply it to all of the permits.
CLARKSON: I do. Thank you.
JACKSON: Okay. Okay, all right, are there any other questions on timing for hearings?
Timing for hearings? The timelines?
CLARKSON: Just, please go back to 4 before we’re finished.
JACKSON: Yes.
CLARKSON: Don’t let me forget.
JACKSON: Okay. All right, so the Department is also proposing to add a new rule. This rule is
Rule 16 for Planned Unit Developments, and this rule is being added to guide the Commission’s
decision making for Planned Unit Developments, or P.U.D.s as we like to refer to them. The
reason we’re adding the new rule is that in 2015, the County Council amended the Zoning Code
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so that P.U.D. permits are issued by the Planning Commissions instead of the Planning Director.
The change was made to provide the public an opportunity to testify or request a contested case
hearing on a P.U.D. application.
The P.U.D. rule was developed by adapting Zoning Code language and adding appropriate
sections to help clarify and direct the P.U.D. process for applicants, the Planning Department,
and the Planning Commission. The requirements and process closely follow the Planning
Department process prior to the 2015 Code change.
So, what, what staff did is we received the ordinance from the Council back in 2015 that
basically said, okay, now, Commissions, you’re going to have the authority to issue P.U.D.
permits. And, so, we took that language from the zoning ordinance, and we looked at our old
P.U.D. rule for when the Planning Director approved P.U.D. permits, and we tried to see just,
just to help staff process them and to give clarity to the Commission when you have to approve
them. We looked at what, what additional information do we need to add to this rule to make it
really clear for everybody? And, so, I’ll go through some of the information that’s required for a
Planned Unit Development application, and the purpose of what a P.U.D. is.
So a P.U.D. is a land use planning and decision process intended to encourage comprehensive
site planning, be compatible with the surrounding community, adapt a design of development to
the land, and diversify the relationships of various uses, buildings, structures, open spaces and
yards, building heights, and lot sizes, and planned building groups.
P.U.D. requests generally include a set of requested deviations or exceptions from both the
Zoning and the Subdivision Codes. Some of the more common deviations and exceptions that
are applied for in a P.U.D. are the minimum lot size requirements and setback requirements –
these are building setback requirements – building height requirements, and subdivision roadway
standards, as well as roadway improvements, such as curb, gutter, and sidewalk.
And, just to outline the P.U.D. process, so, the applicant submits an application form and
500-dollar processing fee along with a descriptive narrative of the entire project, how it complies
with the criteria for approval, a list of the requested deviations and exceptions from the Zoning
and Subdivision Codes, the development timeline, and conformance with our General Plan and
Community Development Plan and guideline, design guidelines, if there are any for that area.
We also request a comprehensive site plan, which shows all the buildings, uses, roadways,
easements, proposed subdivisions, parking, public areas and uses, and landscaping and open
space, as well as architectural drawings, which would show the, help us to determine what design
of the buildings will look like, and a visual depiction of all requested deviations from the Zoning
and Subdivision Code. So, for example, if, if the applicant is requesting a different roadway
standard, and they’re requesting deviations from the Subdivision requirements for roads, we
would request a visual depiction of that by a cross section, so you see how wide or narrow the
proposed road would be and what drainage or pedestrian features it may have. And, then the
Commission shall conduct a public hearing within 90 days of an accepted application.
Following the close of hearing, the Commission will either deny or approve the permit, with
conditions. If the Commission fails to render a decision within the 60-day period, the application
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shall be considered as being approved without conditions. So, that’s very important to note that
it’s important that the Commission make a decision one way or another, to approve or deny.
Some of the criteria for approval of the P.U.D., you need to consider whether the project can
commence and be completed within a reasonable period of time. You need to consider how the
proposal conforms to the General Plan, the CDP, any master plan, or design guidelines for the
area, and how well the deviations and exceptions from Code create a more harmonious
development with the surrounding community.
And, then, there are specific criteria for residential, agricultural, commercial, and industrial
P.U.D.’s, and my understanding from talking to staff who used to process P.U.D. permits in the
Department, is that the majority of these applications are for residential or agricultural
developments; we do not get many for commercial or industrial development. So, for residential
and agricultural P.U.D.s, you would want to consider whether the proposal is harmonious with
the character of the surrounding area, and ensure that it does not increase density, and maintains
open space standards. For commercial P.U.D.’s, it needs to be an attractive development which
does not adversely impact surrounding properties or developments, avoids excessive traffic
congestion, provides for proper access, internal traffic and parking. And, for industrial P.U.D.s,
you would need to make sure that they provide an efficient, well-organized development that
provides for adequate freight service and storage and no inverse, no adverse impacts on the
surrounding properties or developments. And, then, it’s also important to note that the
Commission does not have to approve all of the requested uses or plans or Code deviation
requests; you can, you can pick and choose which ones you agree with or disagree with as long
as you explain why you disagree with them.
And, let’s see, the new rule also has some language for the special design districts. We have a
special design district in Pāhoa and in Kailua Village, and so any P.U.D.s in these areas have to
go through an additional review against the design guidelines by a design committee. And, that
review process is typically handled by the Department before the application actually gets to you
at the public hearing. So, you’ll have those design committee comments as part of your P.U.D.
application package when you see it at the, at the Commission hearing.
And, let’s see, another important thing to note is that the, the P.U.D.s cannot condition off-site
alterations or improvements. So if, if a use is already allowed within the zoning district, and that
use would generate a significant amount of traffic, that’s already permitted outright regardless of
whether or not the applicant applied for a P.U.D. to seek exceptions from the Code. And then
it’s important to note that if, if that use does generate significant traffic, and let’s say a left-turn
pocket is needed on the, on the adjacent street, the Commission doesn’t have the authority to
condition off-site improvements because that use is entitled to be established on that property
and generate that traffic without a P.U.D. permit. Does that make sense? Okay.
Let’s see, also important to note that no separate or additional Use Permit or Plan Approval is
required but it’s considered approved under the P.U.D. permit. So, typically for like your
Special Permits that, that you issue, we always include a condition that says, you know, the
applicant has to secure, has to complete construction within five years of approval of the permit,
and you have to come in and get Plan Approval prior to beginning construction. So, when the
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EXHIBIT A
applicant’s ready to submit Building Permit plans, just prior to that, they come into Planning
again, they submit a plan that shows all of their proposed uses that were approved under the
Special Permit, where the buildings are situated, where parking, landscaping is situated on the
plan. And then the Planning Department approves that, and then the applicant can submit for
their Building Permits. So, what, what this is saying, what the County Code language says is
that once you approve a P.U.D. permit, the applicant does not have to do a follow-up Plan
Approval. So, we’ve, we’ve added additional application requirements where we’re requesting a
lot of the information that we would normally request when we review a Plan Approval
application. We’re requesting that the applicant submit that as part of the P.U.D. application so
everything is done essentially at one time. Are there any questions on that before I move on?
Okay. And, let’s see, we added sections on notice of filing and action on a P.U.D., as well as
sign postings, and those sections are consistent with your other permits that you review.
And then the process of a continued hearing. Also, we added another section in there for that
just to make it consistent with your other applications that you approve. Basically to say that if
the applicant requests to continue a hearing, there’s an additional 250-dollar filing fee, and that’s
standard for all of your applications.
And, then, we included the same appeals language as the other permits that I read to you earlier
today, as well as the same revocation language that was read to you earlier today.
Okay, wow, I think we’re done. So —
CLARKSON: I’d like to go back to Rule 4, please.
JACKSON: Rule 4, okay.
CLARKSON: I’d like to recommend that Part 2, which is items 4-27 – you have not suggested
any changes to these except for numbering, but it seems to me to be very much out of place –
4-27 through 4-31 to me should go between 4-20 and 4-21. In other words, after the close of the
hearing, then you would have post-hearing procedures. And then after the post-hearing
procedures, you go back to examination of evidence by the Commission. I wouldn’t be
recommending any language changes but just numbering changes.
JACKSON: Okay. I apologize, but could you just briefly explain to me again where you want
to move things around to? You said —
CLARKSON: Part 2. Part 2, which consists of Sections 4-27 —
HO: Okay, wait, can I interject one second? You’re, you’re move the, okay, so, I think the
confusion is that it says examination of evidence by the Commission. I think we should
probably just take out “by the Commission” because that’s actually referencing the hearing
officer. Correct?
JACKSON: Okay.
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HO: So, this is actually before it goes to you guys. This is actually done by the hearing officer.
And I think the only mistake actually is that it says by the Commission, because there are times
where you guys could actually hear it, if you wanted to be the hearings officer. You could just
hear the contested case hearing, but in most cases, the Commission usually choses to hire a
hearings officer. So, it actually is in the proper order that it would go in. It’s just with the wrong
wording in that one rule.
CLARKSON: Well, 4-26 is appeal of the Commission’s decision.
HO: Yeah, that, I think that needs to be moved to the end, but everything else is, is talking about
the hearings officers, so it does need to be probably reworded.
JACKSON: Let’s see —
CLARKSON: Okay, so you’re saying that 4-21 is actually referring to the contested case
hearing officer, which could be the Commission?
HO: I could be wrong, though, but I will yield that one to Maija.
JACKSON: Actually, if we could take a break?
HO: Okay.
JACKSON: And, then that would give the Department and Corp. Counsel an opportunity to see
where we could reorganize the rule. How does that sound? Chair Unger?
UNGER: I guess we can go ahead and take a ten-minute break, and when we come back, then,
we’ll open it up for public testimony.
HO: Sounds good.
RECESSED The Chair called a recess at 11:42 a.m.
RECONVENED: The meeting reconvened at 11:56 a.m.
UNGER: The meeting is called back to order. Before we open up the meeting to public
testimony, Ms. Jackson, would you like, do you have something to say?
JACKSON: I do. I have discussed it with Corp. Counsel and Mr. Clarkson. We think that —
UNGER: Ms. Jackson, can you hold on one minute? We’re missing one Commissioner.
JACKSON: Okay.
UNGER: We’re here. You can continue. Thank you.
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JACKSON: Okay, thank you. So, Commissioner Clarkson, I think the best place to move Part 2
to is right after Section 4-20 on Page 4-9; so Section 4-20 says, “Close of Hearing,” and then we
could put Part 2 there, which is, “Post Hearing Procedure for Contested Case Hearing by Hearing
Officer.” We can renumber those. And then right before what was Section 4-21, which is
“Examination of Evidence by Commission,” we want to put a new heading called, “Part 3.
Commission Decision.” And, so that clarifies that you have a post-hearing procedure with the
hearings officer, I’m sorry, a pre-hearing procedure, a post-hearing procedure, and then it comes
back to the Commission for the Commission’s decision.
And then I just want to also point out some public testimony that we received this morning. You
should have an email from Shannon Rudolph, an email from April Lee, an email from Cory
Harden, an email from Erway Marjorie, Marjorie Erway, and an email from Avi Okin, email
from Megan Lamson, and an email from – I’m not going to say this correctly – I think it’s Tlaloc
Tokuda, as well as a letter from Surfrider Foundation.
And that concludes my presentation.
UNGER: Thank you. At this time we’d like to open up the meeting to public testimony. We
have twelve people signed up to testify. If everybody who is here to testify, if you would please
raise your right hand. Do you swear or affirm to tell the truth in front of the Planning
Commission?
TESTIFIERS \[from audience\]: Yes. I do.
UNGER: Thank you. So, I will call – we have two seats up here – I will call testifiers two by
two. If you come up, state your name and your residence, your place of residence, and if you
could speak into the mike. The mike is for hearing purposes but also for minutes. Joel Gimpel
and Arlene Kimata. Please state your name and your area of residence.
GIMPEL: Joel Gimpel. I live in Kailua-Kona at the Pualani Estates. Good morning and aloha.
I will be brief. In the past, I’ve testified often before the Planning Committee and the Leeward
Planning Commission on behalf of the Kona Traffic Safety Committee, with respect to proposed
rezonings and their effects on traffic safety. I’ve also served as Chair on several County boards
and commissions including the Cost of Government Commission and the Board of Appeals.
Currently, I am on the West Hawai‘i Regional Board of the Hawai‘i Health Systems
Corporation, and I’m the newly elected president of the Pualani Estates Homeowners’
Association.
I strongly object to the proposed changes to Rule 4 concerning contested case procedures
because they will: (1) greatly diminish the public’s awareness of the Planning Commission
hearings regarding contested cases, and thereby go against the very basic principles of our
democracy. The people have a right to know of these proceedings; and, (2) they needlessly
prevent, by banning the general public from testifying in contested cases, the Planning
Commissions from hearing potentially important information such as the effect on traffic, noise,
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and other issues of concern to the County’s residents that might not be noted by the parties to the
contested case.
Certainly, you have the authority to limit the length of testimony by each testifier, which
authority you usually exercise. What more authority do you really need, and why do you want to
close your eyes and your ears to potentially valuable information by preventing the public from
exercising its right to present important information in contested cases, to say nothing of its right
to know that such a case is being heard?
I’ve not yet heard a really satisfactory answer to those questions, and I urge you to vote to
protect our rights and against the proposed amendments to Rule 4. If it ain’t broke, please don’t
fix it. Mahalo for your attention.
KIMATA: My name is Arlene Kimata, and I’m from Hilo. I drove all the way because it was
that important to me to speak to you about this issue again about the contested case changes that
are being proposed.
I am none of the things that Mr. Gimpel in terms of his, his background and his currently
obligations to government. I have none of those things. I’m just a private citizen, and I wanted
to say that if you think that it’s really better for your neighbor, your grandma, your children, to
stay silent through any of these processes that are before this Commission, you’re in the wrong
job. It’s really important at whatever level, that this Commission is looking at issues, that the
ordinary person from the public, not a lobbyist, not an attorney, is able to come in and state their
ideas, because I know from personal experience that there are a lot of barriers that come forth for
any private citizen without an attorney, without a lobbyist, without all of that training that you all
in this room have to come before and state your opinion. It’s really hard. You have to give up
time to research. You have to give up time to figure out where on the agenda – and by the way,
it’s really hard to find your agendas on your website, on the County website. At the meeting it’s
really intimidating to come forward into a room of insiders that seem to be a lot smarter about
how to do things and what to say.
And so, I understand corporate, Corporation Counsel and the rest, you know, other people here
may think that it’s more important to save money and time in proceedings that seem to not
require public input, but I have to say that as far as the individual citizen in this community,
things get in the way of coming forth at the right time when you want them to come forth. For
example, there may be a job, illness, travel, you know, whatever else, you may not be able to
come forth at the time you are called. And, so whatever point the public citizen can come forth,
whether it’s inconvenient for you or for other intervenors, I think it’s important that you allow
that input to be made.
Thank you very much. Please, don’t make it harder for individuals to come forth and give you
their thoughts about what you are considering.
UNGER: Thank you. You may be seated. Michael Matsukawa and Mac McInnis.
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MATSUKAWA: Thank you, Members of the Commission. My name is Michael Matsukawa.
I’ve participated in numerous contested cases in the past, so I prepared written testimony for you
earlier.
UNGER: Please state your area of residence, please.
MATSUKAWA: Oh, I live in Ka‘awaloa, South Kona.
UNGER: Thank you.
MATSUKAWA: I think you’ve already felt the gist of the public’s view on Rule 4, which is
why most of them are here. Essentially, when the board acts in a quasi-judicial manner doing
these trial-type cases, the board is not really a full judicial body like a court, but it has some
features of a court proceeding – cross-examination, findings of fact, rights of appeal. But, it also
has a level of informality because you are closest to the people. And, so the agencies throughout
the State each have their unique style and practice. Our practice has been in place for quite a
while in terms of Rule 4. When you look at the Public Utilities Commission, they are more
formal, they are very specific, they are economic, economic decisions are made, and so they
have a very strict process, which has all public testimony up front, but they allow written
testimony along the way.
Kauai has the same process that you have, the Kauai Planning Commission. They publish
notice. They also break to have public testimony during the trial-type hearings. And, when you
think about it, there’s a certain logic to it because a case evolves. The prior testifier said, yes,
sometimes a case is filed, an application is made, but some people don’t know about it. As it
evolves to the more formal process, they learn about it. They want to come forward and provide
their input. I think you should allow them to do so.
In closing, you know, there was a very well-known Supreme Court Justice, Edward Nakamura.
He had a big case to deal with in Hawai‘i Kai, and the issue was whether the public had a right to
say anything about a rezoning, and there was a question about what the Charter said and what the
Charter didn’t say. And he reminded the people that when you take something away from the
people, you need to have a good explanation. So far, we haven’t heard one, nor did the staff
present something ahead of time so people could thoroughly understand if the policy reason
advanced for the change is valid. Until that’s done, I think you should just keep things as they
are. Thank you.
MCINNIS: My name is Mac McInnis. I reside here in Kona, in Kona Orchards Subdivision.
I’m here to speak against the deletion of Section 4.5 Notice of Contested Case Hearing, against
Section 4-20 Public Testimony, and the modification of Section 4-24 Issuance of Decisions and
Orders, which has been modified by deleting findings of fact.
Councilwoman Karen Eoff Bill 281 was introduced in September 2014. Section 1, Findings and
Purpose references, and I quote, “public involvement, and procedural guidelines for approval
must be implemented in the decision-making process.” Emphasis is placed on public
involvement.
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The Windward Planning Commission was held in December 2014. The hearing transcript from
Planning Director Duane Kanuha’s testimony, and I quote, “You know, they wanted some, some
mechanism where the public had an opportunity to testify and comment such as they did this
morning.” Further into his testimony, he said, “in working with several of the Council people,
they wanted to see more transparency in the process, you know, that is why we’re supporting this
amendment to move it up to the Planning Commission. It provides the kind of opportunities for
public input ….”
The West Hawai‘i Planning staff quoted that the County handles just three or four P.U.D.s a
year. Back east, the municipalities that I dealt with, the planning departments held, processed
20-plus a month. Every month of the year. My comment is not to compare a large metropolitan
area to Kona because you can’t do that; my point is that a large metropolitan area can process
20-plus a month and get it to the planning commission to be heard. We can do three or four a
year. Just as the young lady prior to me said that if you don’t have the time, you’re in the wrong
job.
Thank you for your time. Thank you for allowing me to speak. Aloha.
UNGER: Aloha, thank you. You may be seated. Councilperson Eoff, Allan Wondra.
EOFF: Aloha, Mr. Chair and Members of both Leeward and Windward Planning Commissions.
UNGER: Aloha.
EOFF: My name is Karen Eoff, and I live in North Kona. So, yes, I am currently the
Councilperson for District 8, North Kona, but prior to being elected and starting from the early
eighties, I have been an advocate for citizens’ participation in government and especially in the
land use planning and land use process, decision-making process. I have participated in many
public hearings, as well as contested case hearings in the past. But, I thank you for the
opportunity to submit testimony or provide testimony on these proposed rule changes to Rule 4,
Contested Case Procedure.
A contested case hearing offers an opportunity for a more in-depth hearing process when the
impacts of a proposed development cannot be fully addressed or mitigated during the normal
public hearing process. It is never easy to contest a permit for development, but encouraging
public participation in the hearing process should be our goal. We should make it as easy as
possible for those who desire to be participatory who seek to protect their communities, to
protect natural and cultural resources, and who demonstrate a quest for justice. The proposal to
eliminate the provisions for public notice and public participation contained in Rule 4-5(b) and
4-20 is contrary to open government and to the practice of good citizenship and responsible
intervention. I do not believe that these provisions should be eliminated from the Planning
Commission’s rules.
And, just, kind of ironically, today you’re also discussing the change, or to include the Planned
Unit Development rules into your rules, which, I did introduce that bill, and I did it to make that
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process more transparent. And I think it was unanimously supported by the Commissions, as
well as the County Council. And it had been something that was attempted several terms before
but had gotten kind of convoluted and too confusing; the suggested bills had failed in the past.
But before I did introduce the bill, I worked with the Director and attorneys from both sides of
the issues on P.U.D.s, and we found that this would be a good bill. And I’m very grateful that
you are adopting the rules today for the Planned Unit Development. Thank you very much.
UNGER: Thank you.
WONDRA: Chairperson, my name is Allan Wondra, and I live in Pualani Estates here in
Kailua-Kona. Can we ask questions?
UNGER: Why don’t we go, why don’t we go ahead and testify right now? And you can ask a
question, and then we can bring it up at a discussion period later.
WONDRA: Well, the reason I ask is the presenter said one of their justifications for reducing
the public input was costs, reductions in costs for the, I was wondering what those costs are.
How many contested cases are there, and how many times does the public actually go into
excessive time to justify this change in procedure. Because it seems to me that the Sunshine rule
should —
UNGER: Yeah, I think that information is available. Ms. Jackson, do you want to comment on
that?
JACKSON: I will, yes.
HO: I will make one quick comment, though. The Sunshine Law does not apply —
WONDRA: I’m sorry —
HO: — the Sunshine Law doesn’t apply to contested case hearings, but —
WONDRA: Sure, but public input —
HO: Yeah.
WONDRA: — I should have said. I should have clarified myself.
JACKSON: We typically get about two on average contested case hearings per year, and if the
Commission decides not to hear the case, and they hire a hearings officer, the hearings officer
charges $150 an hour, and some of the most recent contested case hearings we’ve had range
anywhere from $20,000 up to $35,000 per hearing, and a lot of those costs is again the attorneys’
fees as well as the transcript fees, and the transcripts are all, you know, the recordation of all the
testimony and all the cross-examination by the parties.
WONDRA: Thank you.
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UNGER: Thank you.
WONDRA: Just one last comment. As brought out earlier, sometimes you don’t realize that you
got an issue with a situation until after some sort of public hearing has taken place. So, any time
you can get public input, I think it’s to the benefit of everybody. Thank you.
UNGER: Thank you. Councilperson David, Nicholas Rudd.
DAVID: Aloha, Chair Unger and Members of the Planning Commission. My name is Maile
David. I live in South Kona, and I’m here to make comment against the, in opposition to the
proposed changes for the contested case, Rule 4.
The testifiers before me basically expressed my sentiments, so I need, listening to the
explanation of why we are considering this change seems to be convenience and the cost. I
thought that might have been the reason when I first came. So for me, I don’t, because we are
government, because we serve the people, I don’t believe two contested case hearings a year
justify a change that will have huge impacts to a person’s right to participate in government. I
think we’ve come a long way in expressing how government needs to be transparent and how
government needs to receive every possible information they can. We sit before an agency, your
Commission. The Council is no different. We put a lot of weight on people who come in to give
us information. Not all useful sometimes, but, sometimes, there’s some information that we need
to be educated about, and that’s why I really value the public’s right to testify in any
governmental process. So, the cost of eliminating that right can have some really, really
profound effects, and take us back to a place where I don’t believe I would like government to
go. And, for me, what Councilmember Eoff has spoken about participating in government, I
have been a participant and intervenor in two contested case hearings before I became a
Councilmember, and one of them, very important, if, if we’re talking about Native rights, Native
issues; had I not listened to the Planning Commission’s deliberations on a proposed development
that would have impacted Keolonāhihi and Keakealaniwahine sacred complex, I would not have
known that what was going on, and I was granted standing as a lineal descendant intervenor.
So, to not inform or to not allow people to listen to your body, receive all the information that
you possibly can take from the public, I think is a disservice, and I think the people have lots of
information that we should acknowledge and receive. So I don’t have many, much more to say
except I really believe that we should leave well enough alone and the rights of the public.
Thank you.
RUDD: Thank you, Mr. Chairman, Planning Commission. Appreciate the opportunity. My
name is Nicholas Rudd, and I live on Hoomama Street in Kailua-Kona, and I’m here as an
individual. I am a retired California State construction inspector. I, too, have a problem with
Rule 4 on the contested cases. And I, it’s my understanding that the public is notified of the
application in the newspaper initially, and that then their objections and it becomes a contested
case. And due to public testimony, my understanding of the role, the rule amendment is that the
public are not notified again, not even in the newspapers, so that we can observe the continuing
process. Generally, an environmental impact has to be provided regarding water, noise, traffic,
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etcetera, even for a Special Permit. It’s my understanding. The public should be involved and
be advised a continuation.
I’ve been to this office several times; sometimes the meetings have been held and sometimes
they’ve been cancelled. I don’t mind coming each time there’s a possibility, and I appreciate the
input from the Planning Commission. I just hope that you will just leave things as they are. Do
not change Rule 4, contested cases. And thank you for the opportunity this day. Thank you.
UNGER: Thank you. Janice Palma-Glennie, Sharon Willeford.
PALMA-GLENNIE: Aloha, Members of the Commission, and mahalo for the opportunity to
speak today on behalf of the Surfrider Foundation’s Kona Kai Ea Chapter. My name is Janice
Palma-Glennie, and I reside in Kailua-Kona.
Democracy’s benefits don’t come easily nor without cost. In these days of threatened and
realized loss of liberties created by a Federal government thumbing its nose at environmental,
cultural, and other health and quality of life related protections, Hawai‘i has taken the auspicious
role of human rights champion. In light of that, the plan to thwart government transparency and
public inclusion in our local land use planning process is troubling, inconsistent, untimely, and
unwarranted.
Posting meetings and allowing public comments and participation seems a small price to pay
towards achieving democracy’s end goal of creating open, informed public-centric land use
decisions. Public servants are charged with making decisions that can positively or severely and
adversely affect the person, the public’s quality of life, and/or integrity of public trust resources.
Wouldn’t they want as complete and bulletproof information as possible to make the best
decisions on their community’s behalf? Decisions that will have long term consequences.
Contested case hearings offer opportunity for a more in-depth hearing process, as others have
said, and allow impacts of proposed development to be fully addressed and mitigated during, that
aren’t fully addressed and mitigated during the normal public hearing process. Participation in
that process already puts financial stress on some individuals and community groups who want
to participate in protecting their neighborhoods, lands, and culture, not just because legal counsel
is usually necessary and expensive, but even application costs are high.
This Commission is meant to serve the public’s best interests. The proposal to eliminate the
provisions by public notice and public participation contained in Rule 4-5 and Rule 4-20 is
contrary to open government, the practice of good citizenship, and responsible participation, and
can even mean that decision-makers miss important information by the public as stated before
me. Those provisions should be eliminated from the Planning Commission’s rules despite the
minor hardships or costs they may require.
We ask, again, that you please throw out any proposed provisions of contested case rules that
limit the public’s ability to take part in issues that affect their lives now and far into the future,
and we also support the P.U.D. rule addition, the changes for the P.U.D. for the same reasons
that public participation openness is the most important thing democracy can provide.
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And, just a last note, I’d like to say that these meetings that are east-west should be
video-conferenced. The poor woman who had to drive all the way from Hilo to speak for three
minutes, I mean, what a citizen she is. But there are a lot of other people who would like to be
here, and it’s true that being here in person is different speaking to you than sending a piece of
paper.
And, then the other thing I’d like to mention is as much as I appreciate you guys in being
volunteers and all of that, these decisions are so complex and so long reaching that it seems like
maybe people should consider them being made by elected officials rather than appointed ones.
Thank you very much for your attention and time.
WILLEFORD: Aloha, Commission. My name is Sharon Willeford. I’ve been a, I’m a retired
teacher. I taught third grade on the Island for 35 years. I’m speaking on behalf of the children
and their future.
This is the last island that we have left. This is the last island standing. All of the other islands –
I have friends on every island – got congested, overdeveloped, having problems with water and
traffic. I’ve seen many permits over the years being given that should not have been given, and I
don’t understand if payoffs are being done or who’s getting – What is happening? How are these
permits allowed with huge structures on Ali‘i Drive? And there’s no sewers on a section of Ali‘i
Drive, and all of the sewage is going into the ocean. Who is allowing this?
My son is a diver, and he just confided in me – he didn’t want me to know – but the reef in that
section is dead, and there are no fish. Do we care about this community? Do we want our
children to have something to look forward to? I ask you those questions in a – I have
participated and observed contested case hearings. In the pre-trial hearings, the lawyers,
developers, and commissioners get to communicate, they get paid big bucks, they talk all the
time, and the individuals who might have good standing have to do it on their own. There ha-
you know, sometimes the people in the Planning Commission do help and that’s so wonderful.
But it’s a very difficult thing. And if we’re not allowed to participate and educate each other, the
community, then you’re taking away our rights.
For instance, I have a section of the SMA statutes, HRS 205, that, Number 8 says for this
particular thing, the reason for public participation is to stimulate public awareness, education,
and participation. In this case, it’s on coastal management, and that, that is the objective I’m
looking at. Also, notifying persons other than the contested case participants that live in the area
after the case, they might like to know right away what’s going on in their neighborhood. I
would.
And – let’s see, what else – I think other people have done a fantastic job of expressing their
desire for freedom and preserving our precious island. Let’s not over-develop. Let’s not just
pass out permits like it’s candy for you. I don’t know what the reason for foreign developers and
off-island developers. Let’s let our people have a chance to establish themselves here in their
community. The Hawaiians, so many are homeless right now. Do you have any idea how many
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homeless Hawaiians there are? That’s their land that you’re permitting other people to build on.
I don’t understand.
All right. Aloha. Thank you very much.
UNGER: Thank you. Ken Melrose, Tom Madson.
MELROSE: Aloha Members of the Commission. My name is Ken Melrose. I live in
Kealakekua. I would like to offer some thoughts on Rule 15 and Rule 16. There are two parts,
parts that are the same in each, in 15-4 and 16-6. These are the public notice, sending of the
formal letters of notice. So, my experience in this in the past has always revolved around doing
it to property owners, and when you develop those lists, you generally do it from the records of
the Real Property Tax Office. So, the inclusion of lessees of record, I think, sets up a different
standard for notification that could be problematic. So, I haven’t seen, and would ask that you
either define the term, “lessees of record,” or have it be specifically those of record that are on,
like property owners at the Real Property Tax Office. You would have memorandum of lease
for an actual recorded lease in those situations. Otherwise, I think you would probably have to
almost go as far as title search to find out who else to notify.
So, the other is in 15-7 you eliminate, the proposal is to eliminate the 90-day period for the
Commission to hold a hearing. It seemed to me that this is, Rule 15 is Project District, so I
would think that it would be consistent across all zoning districts so that there should be a time or
a definition of reasonableness in terms of how long before the hearing needs to be held.
And, then, the last is on 16-10 of the Project District. This allows a Project District to have up
to, to take a variance from the height requirements of a zoning district and go up to 75 feet.
There are only, to my knowledge, the resort areas in Hilo and along the coast that allow higher
than a 3-story, 45-foot height limit, so I think that there should be some caveats for the reasons
for, that make it important to look at going to 75-foot height. And if the Commission is going to,
the Department has seen and is going to, and the Commission is going to see P.U.D.s now, staff
has said the most of them are on residential or on Ag land so that a 75-foot height limit would
probably be inappropriate in those districts, and I would ask that you consider that.
MADSON: Good afternoon. I’m Tom Madson, and I have been the president of Hualālai
Colony Homeowners’ Association for the last eight years.
As far as Rule 4 goes, I think enough has been said, and I agree with all the testifiers that, that
the input should definitely be made.
The other problem I have is notification to adjoining property owners. In one specific case, like
we have near us in Hualālai Road, all the adjoining property owners are the people that are doing
the development; they are notifying themselves. So, that’s why we need I think more input with
Rule 4.
As far as traffic and safety, not approving P.U.D. because of traffic and safety, why let the
process go all the way up the line to the City \[sic\] Council and then they disapprove it, because
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Hualālai Road is an unsafe road, it’s substandard, does not meet one single guideline for safety
standards, Federal or County. You’ve got telephone poles that are six inches off the road, no
curbs, no gutters, no sidewalks. People jogging, riding bikes, skateboards, you name it. And so,
that’s why I think that we ought to, you ought to be able to deny a P.U.D. because of safety
issues. Why let it continue and go on and on and on.
The other problem is the 14.9-acre development for a P.U.D. We have a perfect example of Lots
40 through 43 on Hualālai Road. It was 59 acres; they divided into four 14.9-acre parcels so they
could make it a P.U.D. Obviously, it’s not a 14.9-acre development; it’s a 60-acre development.
One was approved six or seven years ago, and since they said there’s no coordination between
them, why hasn’t that one – that’s Parcel Number 42 – why hasn’t that one ever started one stick
of construction, since they’re not coordinated? They obviously are coordinated, and they only
divided the 60 acres up into four parcels to circumvent the law.
Thank you very much.
UNGER: Thank you. Are there any other members of the public here to testify? We’re going to
go ahead, I will be asking for a motion to close public hearing portion of this hearing so what
we’re, and after we close public hearing, we’re going to break for lunch, we’re going to take
about a half an hour break. And the discussion right now, subject to us all agreeing, is when we
come back, you heard that the Planning Department, because it is difficult to get Leeward and
Windward together, we are going to try to formulate a motion that encompasses everything that
we can agree on. If we can’t agree on it, we won’t be coming up with a motion; but if we can,
we would like to accommodate the Planning Department and try to come up with a motion that
we can all agree on.
So, the process will be we may go Chapter by Chapter 1 through 16. We’ll all have a discussion
to, we’ll all have an opportunity to discuss Chapter 1 through 16. And what I’ll be proposing to
the Planning Department, because most of you are here in regards to Chapter 4, we’ll start at
Chapter 4 and at least if you, and to encourage you to stay, stay for the half an hour, if you can,
we’ll, we’ll discuss Chapter 4 first, and after the conclusion, we’ll go back to 1 through 16.
I would like a motion to adjourn for lunch.
NOBRIGA: I make the motion.
SHIMAOKA: I second.
UNGER: We have a motion by Commissioner Nobriga, second by Commissioner Shimaoka.
All in favor?
COMMISSIONERS: Aye.
UNGER: All opposed? \[None.\] Meeting is adjourned.
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\[The Chair adjourned the meeting for lunch at 12:37 p.m. Commissioner Church left the
meeting at this time. The meeting reconvened at 1:16 p.m.\]
UNGER: Normally, at this time after public testimony motions are requested from the
Commissioners; a motion is made, seconded, and then we open it up for discussion. We are
going to vary from that process, and we are going to ask Ms. Jackson from Planning staff to lead
us in a discussion on each Chapter. Chapter 4 is the most important one and most controversial,
so we are going to start there. We’ll have a discussion on Chapter 4, we’ll make a motion for
Chapter 4, we’ll make a motion after the discussion, and we’ll get a second, we’ll discuss it, and
we’ll finalize the motion for Chapter 4. After that, we’ll go back to Chapters 1 through 16 and
proceed item by item to the completion. Rather than motion per Chapter, we’ll take that as a
group, Chapters 1 through 16, incorporate all our discussions in that second motion, and end our
meeting with the motion on the second motion. So with that, I’d like to turn it over to
Ms. Jackson to continue.
JACKSON: Thank you, Chair Unger. Okay, so I’m just going to kind of go through an
overview of some of the changes that I heard suggested by the Commission, and then open it up
for discussion of how the Commission feels about the public testimony, if there are any other
concerns about Rule 4.
All right. So on Page 4-3 Commissioner Clarkson recommended removing the “d” in the word
“practiced” on Section 4-6(b)(5). And then the other —
CARR SMITH: Excuse me?
JACKSON: Yes.
CARR SMITH: If you remove that “d,” I believe you need to change “were” to “are.”
JACKSON: Which “are?” Okay.
CARR SMITH: “who practice those rights which ‘are’ customarily and traditionally exercised.”
JACKSON: Okay, thank you, we’ll make that change. Okay, and then moving on to Part 2,
which is Page 4-11.
IKEDA: Ms. Jackson, can we go back to 4-6(a)?
JACKSON: Yes, 4-16?
IKEDA: Four-six.
JACKSON: Four-six, okay.
IKEDA: I have a problem with the sentence about the seven calendar days prior to the
Commission’s first meeting on the matter.
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HO: Sorry, does he have a mike? Do you have a microphone?
IKEDA: No, I don’t. I’ll borrow his. Okay, I have a problem on the statement that “no later
than seven calendar days, prior to the Commission’s first meeting on the matter.” When I first
read this, I misread it and I thought it was on the seven days before the contested case hearing,
because we were talking about contested case hearing and not the formal, the first initial hearing.
So when Joe was talking about it and he said how do you know if you are going to, you know,
you are going to be an intervenor, if you don’t know if you are going to win or lose, because you
usually contest when you lose, or you think you are going to lose, most people go in there not
thinking they are going to lose. So is there any way it could be seven days prior to the contested
case hearing? And that’s my feelings. Because you are going to pay 200 dollars at that time.
That’s the problem I have.
HO: I can address that question. So that is to intervene and to create a contested case. So there
won’t be a contested case until somebody intervenes. So we can’t notify anybody seven days
prior to the contested case because there isn’t one yet. So if you guys want to increase that
timeline, I guess that’s something that’s possible. But the whole point is it doesn’t, it’s not going
to be created until it’s created, I guess, I don’t really know how to explain it better than that, but.
IKEDA: I think you understand what I’m saying, because you don’t, you don’t necessarily go
into something, thinking you are going to lose; you are going there because you want to get
something. Even when I go for permit, I don’t think I’m going to lose, even if I lose, but I think
I’m going to win. So somehow the language doesn’t seem correct, because if I think I’m going
to lose, I don’t, thinking of the votes then I would like to have a, you know, to go into a
contested case hearing.
SHIMAOKA: I had a thought that, would it be up to the Commission at that point when we
discover that it is going to be, go into a contested case, that the Commission whoever is
responsible, whether it’s Leeward or Windward, would determine the amount of day, so that you
don’t have, because it seems like whether it’s seven or, you know, what’s the amount of
notification time after they discover —
IKEDA: Yeah, that —
SHIMAOKA: — they find out they are going to have a contested case hearing?
IKEDA: Yeah —
HO: Well, okay, wait, let me just interject real quick, sorry. So contested cases are not created
for the applicant; the applicant puts their application in front of the Commission, and whether
you win or lose, your way to contest that is to go to the Third Circuit. That’s how you get your
appeal rights. A contested case is created when an intervenor doesn’t want the applicant to win.
That’s when they come in. When they don’t want the applicant to go forward because they think
it’s going to affect their interest or their property rights or whatever it may be, that’s when the
contested case is created. So for the applicant, it doesn’t matter for them, if we, if we allow the
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contested case to happen for just the applicant, it would, it would create a weird situation where
they would be against the Department. But the Director is just recommending; he is just making
a recommendation. So there is no decision being made, there is no action being made, so to then
appeal that to the court would be improper, you know, until action is taken. Then, you know,
then action can actually be appealed, but until then a contested case would be improper at that
time.
CLARKSON: Okay, I’d like to support Commissioner Ikeda’s concern. When I, and I think I
said this before, when I saw that, I thought, well, how can anybody know they are going to want
to be an intervenor before they see anything happen except a notice in the paper and they get a
chance to go down to the Planning Department and get the application and read it. I personally
would prefer that a person would be able to apply to be an intervenor, go through this 200-dollar
fee, any time before the Commission takes final action on the matter; so they would actually be
able to sit through the initial hearing, hear public testimony, see how things were going, see
whether their concerns were going to be addressed by the Commission or by other people in
County government, and then if they are still unhappy, they say, no, I want to intervene, and then
the Commission would have to adjourn and go through the contested case process.
HO: I hear what you are saying, but what that does is, if you don’t create a time limit for people
to state their interest, then that creates, basically they can just delay the process for the applicant
as many times as they want; they can just, or one intervenor can come in at this time and say, no,
I don’t want it, and then, you know, then another intervenor can wait and stuff, and it just, it kind
of just delays the whole process. You are trying to make it fair for both parties, for the applicant
and the intervenor. So just like in everything in life, you’ve been in court cases, right, there is a,
you have 30 days to appeal to the court, and if you don’t appeal within that time, you know, you
have to have a, just sort of to keep order. And so I hear what you are saying, but like we said
before, the majority of these cases happen to be surrounding landowners that have an interest and
they get notified way before the actual hearing. But if you want to, let’s say, put notification out
further in that way to give people more time, we can possibly do that. But I think that taking it
away all together would basically just increase contested cases for one, and kind of just stall the
whole system in place, because people can just continually file and intervene without an end.
CLARKSON: No, I don’t think people should be able to sequentially intervene, but I just think
that, I mean this procedure has it so that you have to intervene before the first hearing, seven
days before the first hearing, and then that it says that intervention, then they will, they will
reschedule the hearing to the next subsequent rescheduled hearing date. I just think that before
the Commission takes, or I don’t know maybe you could say before the end of the first hearing.
Even that would be a good deadline, you know, but not seven days before anybody’s heard any
testimony.
UNGER: To clarify, this is not a change, right? This is the way it has been.
HO: Yes.
UNGER: Okay.
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CLARKSON: I think we want to change it because —
JACKSON: Can I just kind of play this through in an example? So, Commissioner Clarkson,
you are suggesting we hold the first public hearing, and people who may have an interest and
may want to intervene, listen to the public hearing, and if the Commission doesn’t know that
they may be interested in intervening, the Commission may deliberate and make a motion and
act to approve something before they are even aware that someone sitting in the audience may
want to intervene. And so I guess that would require that the Commission never make a decision
on an application on their first hearing.
CLARKSON: No, it would mean that when the time comes for a motion, the Chair would say
we are about to hear a motion for action on this matter, is there anyone in the audience who
wishes to initiate a contested case procedure and is willing to file as an intervenor, if so now is
the time. And if they walk up with their 200 dollars and their application, they are an inter-, they
get to go through the vetting process for intervenors, and the Commission adjourns the meeting
and sees whether there is going to be a contested case or not.
KEALOHA: There is a level of vetting required to determine whether or not they have standing,
correct?
JACKSON: Yes.
KEALOHA: So how could you do it on the spot in the middle of a meeting, vet a person to
determine standing? I think that’s what the seven days allow for, is vetting, the vetting process.
HO: Yeah, there still needs to be a hearing on the petition itself, so when you hear the
application, you are also going to hear the petition for standing, and grant that, grant or deny the
petition for standing. So when somebody does it seven days prior, then you guys will get that in
your packet and you would hear. So as it stands now, it’s, you know, they have to have a
distinguishable interest than just the general public, and such like an descendant of native
Hawaiians, and such. So you guys would have to go through that, too, before a contested case
would even be initiated. So both things would have to be before the Commission, both the
standing and the application.
IKEDA: I remember going through the contested case hearing, and the standing was that they
had a personal interest. And I guess our committee determined that they had a personal interest
because they owned property and so forth in there. And somehow I’m getting confused because
something that’s scripted in here wasn’t followed, or I thought it wasn’t followed. I could be
wrong. But, and that’s the reason why I’m having questions. At first I had no questions; I
thought everything was hunky dory, but now I’m seeing something different.
HO: Well, I’ll also make a suggestion that if you guys feel strongly about it, we can table that
portion of it just for now, leave it as is, and then we can revisit it, if you want to like we can think
about it more. We can actually look at the process more and see what would be the fairest for
both procedural state with the Commission and also for the public and, yeah, for the rights of the
applicant and the intervenor to all be addressed.
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SHIMAOKA: Well, I have a question. As the rule stands now, have we ever had an incident
where this affected somebody from being able to contest a case?
JACKSON: We’ve had situations where somebody files a petition to intervene, and then at the
first hearing somebody else in the audience says, I also want to intervene. And I, correct me if
I’m wrong, Daryn, but I think the Commission has always been very liberal and allowed this,
allowed folks to intervene regardless of what the rule says just because they want to be fair and
open.
SHIMAOKA: So the second question, to quote one of the testifiers, if it ain’t broke, why are we
trying to fix it?
CLARKSON: Well, this is already broke. I think, and the Commissions have been fixing it ad
hoc by letting people intervene, even though they didn’t file seven days before the first hearing.
And I think that should be the way it is. I don’t want to get hung up on this; there’s bigger
issues. But Section (b) on the same Prehearing Procedure, or Article (b), “Upon receipt of a
written request to intervene, the Commission, at the first meeting on the matter, shall hold a
hearing on the written request”: I don’t see why that hearing can’t happen at the same meeting in
which somebody applied to intervene. I mean, you ask for public testimony, you ask if people
want to intervene, and if they have the proper application, you know, fee and application form,
you just go ahead and hold the hearing on whether they should have standing right then.
HO: I think the other thing, too, though, is that there’s proper channels for it to go through the
Department so that you guys are briefed ahead of time, so that you can make an educated
decision. I mean I’m not saying that you can’t just do it on the fly, but I think reading
somebody’s background and exactly what their interests are and stuff like that prior to it, would
be beneficial for everybody. But again, if you guys, I guess I would suggest then you can just
add in something that says, “or to the discretion of the Commission, if applicant provides an
adequate reason for why they didn’t apply it before seven days,” you know. I think we have that
kind of language in other stuff, like Board of Appeals. I think there is other language and
possibly that would give that, kind of leave that window open for them.
JACKSON: I don’t know if this helps or not, but we also have a copy of Kaua‘i County rules
here, and they, their language ask that petitions to intervene shall be in writing and provided
within at least seven days prior to the agency hearing. So their rules match ours. If the
Commission is considering changing that, I think it would be a good idea to somehow still put
out notice to the public that there is the petition they have to fill out at the hearing and the filing
fee, just so that they are aware of the filing requirements ahead of the first hearing.
UNGER: Let’s table this issue for now and try and see if we can get through some of the other
issues in Chapter 4, and maybe, like Ms. Ho said, circle back and have another discussion on
that.
JACKSON: Okay, the only other thing I have to add was, Commissioner Clarkson, you wanted
to move Part 2, and so we are going to move Part 2, Section 4-27, 4-28 and 4-29, and put the
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heading in those three sections right after Section 4-20, which says, “Close of Hearing,” and then
add a new Part 3 after that, that is titled “Commission Decision,” have that section start with, on
Page 4-12, Section 4-30, 4-31, and then 4-21, 4-22, 4-23, 4-25, 26, and end the rule with “Appeal
from the Commission’s Decision.”
CARR SMITH: I think you said that Part 2 would go to 29. What about 30 and 31? Do they go
with it?
JACKSON: Part 2 Section 27, 28 and 29 would move to just after Section 4-20.
CARR SMITH: And what about items 30 and 31?
JACKSON: Thirty and 31 would move to between what is now Section 21 and 22; so we would
insert those between “Examination of Evidence by Commission” and “Time Limit for Decision.”
Just sequentially that’s kind of how the process flows. That’s all I have for Rule 4 other than the
suggested revisions that we have double-underlined in the Rule or crossed out.
UNGER: So if that’s it from the Planning Department, then, Commissioners, the floor is open
for suggested changes also.
CLARKSON: Okay, I’m new to the Windward Planning Commission, and I’d like to ask
Corporation Counsel just for my own information and the people watching our proceedings,
what is the reason why contested case hearings exist to separate the parties, the intervenors and
the applicant, what is the reason that they exist to separate them from the interest of the general
public? Where does that come from? Does that come from state law?
HO: It does come from state law, yeah. If you go into HRS 91-1 Definitions, “‘Contested case’
means a proceeding in which the legal rights, duties, or privileges of specific parties are required
by law to be determined after an opportunity for agency hearing.” So basically, in simpler terms
it’s a quasi-judicial function to aid you guys, actually, in making your decision. They put on the
contested case so that both sides can present evidence and, so that you guys can get all of that in
the end and can make the most well-informed decision. So that’s exactly where they get put on
actually, so that all parties get heard, and then you guys get, and it aids you.
CLARKSON: But is there anything that would be different about a contested case evidence
from just evidence presented by testimony before the Commission? What’s the difference —
HO: Yes —
CLARKSON: Okay.
HO: — because it’s specific to the parties, not the general public. So it’s, it’s one, the
intervenor comes and says that this application should not be approved because either my
property value is going to go down or whatever it may be. And so that is specific to those
individual parties, and that will also, so, but that is also something that you guys should consider.
So the hearings officer determines whether, you know, will it really affect their property? And
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one person comes in and says, here is all my evidence that it’s going to do this to my property
value, and then the applicant presents their side, and if the Department has something to add, the
Department is also a party to the contested case and participates in it as well. But, yeah, like I
said, the function basically is not only to determine the legality and the privileges of each party
but also just to aid you guys into making the proper decision on whether to approve or deny an
application.
UNGER: I have a proposal for Chapter 4. I’d like to propose 4-5 Notice of Contested Case
Hearing, (b), the notice in time, place, nature, etcetera be placed back in to the, our rule, as well
as Chapter 4-20 Public Testimony, that that be reinstated. And I’d like to open that up for
discussion. I’m, in particular, too, back to Chapter 4-5 on Page 4-2, Notice of Contested Case
Hearing, (c), I think I’m okay with that. An additional notice to surrounding property owners
through the contested case hearing, I think that if an additional notice is posted for a contested
case hearing, public testimony is allowed, unless other Commissioners had a major objection to
not having the applicant serve notice to the surrounding property owners, because this will be the
third time, first time at the hearing, the second time at the contested case hearing, the third time
at the final hearing for the Commission. I think at this point if the first notice is given, those
surrounding property owners are on notice and they will be here in force and they will find out
about the contested case hearing, or they will know about the contested case hearing. So if
anything, I’m okay with that being deleted, but based on public testimony and just general
discussion, I do believe that item (b) and public testimony, 4-02 \[sic\], is important to reinstate
into the rule.
CARR SMITH: I agree with you, Chair Unger. I have a couple other thoughts about it as well.
Perhaps since I spent five years on the Board of Appeals, I have a little familiar sense with the
contested cases. And I’m not sure, I’ve only been here for almost a year, and I’m not sure how
often contested cases come up as an option to the Commission, but I think that I would
encourage the Commission to consider more strongly taking on these contested cases, which
would likely save the County some of the money that was talked about earlier. The cost they
said was one of the biggest reasons, and I think that if we take that on, which, we are talking
about it enough I think it’s our kuleana to do this; we don’t have to automatically pass it off to a
hearings officer, and then have it removed from our discussion. So I feel strongly about that.
And I also think I agree with you that the public testimony should remain as well as the notice.
HENKEL: Excuse me?
UNGER: Yeah.
HENKEL: I agree with Ms. Carr Smith. The Windward Commission actually were the hearings
officers in one contested case hearing in 2016, and it wasn’t, it was, we, it went okay. I mean I
was participating in it and I think we reached a good outcome for kind of a compromise for the
applicant and the intervenors. I’ve just got to say that, you know, from the public testimony and
the submitted testimony, though, that I’m against limiting any public testimony and eliminating
any public notice, too. So I agree with you guys on that. And, don’t be intimidated by taking on
a contested case hearing, I mean, there’s only a couple a year or so.
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UNGER: To clarify, that option is always front and foremost at all the meeting where a
contested case hearing, where an intervenor is accepted; our first choice is, does the Chair or do
any Commission members, or a group of three Commission members, want to take this on. So
that’s always the option. And we can defer it to a hearings commission \[sic\] or we can take it on
ourselves.
SHIMAOKA: Just for my understanding, is that a separate meeting? For the contested case,
they’re totally separate from our normal Commission meetings?
UNGER: Yeah, the actual contested case hearing? Yes, yes. It sounds like we are pretty much
all in agreement with the suggestions that were presented except for the first item that was
brought up in regards to the seven-day notice, or the notice and then the intervenor has the
opportunity to come in within seven days prior to the hearing to fill out his application and state
his case. So I think that’s still on the table. Hearing both sides and listening to corporate counsel
I really do, do like the idea of a set time where an intervenor can come in and intervene. I don’t,
I’m not a fan of it happening at the meeting; I’d rather have a time frame where they are notified
that if they do want to intervene and if they, and yes, the burden would be on them to get us
much information together as possible. But for the most part, to qualify as an intervenor you do
need to show certain cause. If anything, I would, I would like to have a discussion more on a 20,
a mandatory 20-day notice, and then within seven days, like Daryn said, I think it was kind of a
floating date out there where we usually give 20 days, or normally we give 20 days; perhaps,
instead of actually moving the seven-day deadline to the actual day of the hearing, perhaps move
the notification back 20 days so that interested parties could look at the situation, and then that
seven days is more of a reasonable time frame versus three days.
CARR SMITH: I agree that if the notice is still given to the public, that they should have that
opportunity, and especially if we keep the notification to surrounding property owners, then that
should be sufficient time for intervenors.
UNGER: How would that work then, Ms. Jackson, is there, or Daryn, is there a way where you
can, we can modify this rule to, what is the time frame right now? Can you clarify that? When
does the notice actually get published in the paper for —
ARAI: Yeah, we do try to provide at least 20 days notice, but, again, knowing that we are only
obligated to a minimum of a six days by law, if I remember correctly. The only time when there
is an additional requirement is for Special Management Area Use Permits and shoreline setback
variances, State Statute requires 20-day notice for those type of permits. So to make it easier for
us as the Department we just try to hit the 20-day publication schedule for all applications.
UNGER: So in order to change it 20 days we’d actually have to change the law.
ARAI: Well, no, because by your Rules of Practice and Procedure I think you can specify
something greater than what is specified by law. So I think you can imbed it. It’s just that there
are times when given venue, given the type of application we are trying to schedule, sometimes
we are not able to hit the 20-day; sometimes we end up publishing 19 days. Say, if there is a
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EXHIBIT A
hearing, we don’t want just that one day miss to invalidate our ability to conduct the proceeding,
so —
UNGER: No, I understand that and I do know there is a lot of logistics that go into planning a
meeting, so.
IKEDA: Can I add something?
UNGER: Yeah.
IKEDA: You know, I can support that. But I think that there should be a notice that, to let the
public know, that if they want to file a contested case hearing, they need seven days to file.
UNGER: In the public notice.
IKEDA: That’s right.
UNGER: Is that in the public notice now?
JACKSON: Yes.
UNGER: It is. Okay.
HENKEL: And all being said, in the past intervenors have been admitted as a party late, right?
So how does that fit in?
JACKSON: At the discretion of the Commission, yes, they have.
HENKEL: Okay.
UNGER: At the discretion of who?
JACKSON: Of the Commission.
UNGER: Okay. Okay. That said, I guess we are back to language as proposed?
KEALOHA: Based on the staff’s statements, what about a 17-day requirement? Something
along that nature as opposed to fix 20 or, you know, no deal. Is there any number that would be
more reasonable to the public yet meets staff’s need?
UNGER: Greater than ten, less than 20?
KEALOHA: Correct.
ARAI: Okay, so the constant is that the filing of the contested case petition is seven days. So
what is the reasonable amount of time one would expect to be given notice in the newspaper in
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EXHIBIT A
order to make a decision to file a contested case petition? I’m thinking a good place to start is a
week; you see it in the paper, it gives you a full week to decide whether or not to submit a
request for intervention. And that would, so if we say publication is minimum of 14 days, for
example, from the actual date of the hearing, it would give you a seven-day window by which to
file a request for intervention. I just throw it out there as a good place to start. But anything
moving upwards of that, puts more and more pressure on the Department because, again, the
newspapers alone requires at least seven days lead-time just to get it into the newspapers before
they even publish, so we are also being kind of squeezed.
UNGER: So right now, to clarify, there is three days, I mean it’s ten days and then the
intervenor has —
ARAI: Seven days, I mean seven days prior.
UNGER: Three days to come in, so this is, right, so we are bumping it up by four —
ARAI: Right.
UNGER: — five days a week.
ARAI: Reasonable, I hope.
UNGER: I’m okay with that. Commissioners? Okay, so we have a consensus by nodding
heads.
JACKSON: Was the consensus on 14 days or 17 days?
UNGER: It was, it was 14 days.
JACKSON: Fourteen days.
UNGER: I think that summarizes the changes that we would like to finalize for Chapter 4. So
the discussion will be now to move to a motion to incorporate both the Planning Department
proposals, as well as our agreements that we just came to.
JACKSON: We just found another date. So we are, I think we are all talking about Section 4,
letter (b), correct? Four-five(b).
UNGER: Yes.
JACKSON: Currently, it says that the Department has to notify the public that an application
was filed with the Department in the paper within ten days after the application is filed. So I
forgot to mention that we do a public notice in the paper with a list of all of our applications that
have been filed, not just Planning Commission applications but Department applications, too. So
that’s actually the first notice that goes out to the general public. And then —
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EXHIBIT A
HO: And that’s usually like 60 days prior to —
JACKSON: Yeah, that’s within —
HO: — hearing, right?
JACKSON: — that’s within ten days of when an application was filed with the Department, so
that’s, that’s very quick. That’s about the same time that the sign is posted on the property and
all the neighbors get notified. Then later on in that paragraph it says a second notice not less
than ten days prior to the hearing, so that’s the one that the Commission wants to change to not
less than 14 days.
UNGER: Right.
JACKSON: Okay. So the public will actually get two notifications in the newspaper, when an
application is filed and prior to the hearing.
UNGER: Right.
CARR SMITH: Commissioners, is that reasonable that they should have to notice the public
when they get an application? And, is prior to a meeting not sufficient? Just a thought.
HO: That’s already, like, that’s practice now, though. That’s what you guys already do, right?
CARR SMITH: That’s what they are suggesting —
JACKSON: That’s already practice, yeah.
CARR SMITH: — we cross out, right?
HO: No, that’s already what you do?
JACKSON: Yes, that’s what we currently practice.
HO: Oh, okay, it’s already —
JACKSON: With all of our applications.
HO: Yeah, yeah.
CARR SMITH: It seems like a lot of —
CLARKSON: When does the, when does a member of the public get to see the
recommendations of the Planning Department?
JACKSON: Just after we release it to the Planning Commission, so once —
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CLARKSON: So that would be available —
JACKSON: — the email goes out to all of you, anyone from the public can request the
recommendation.
CLARKSON: And that’s what – say again?
JACKSON: So as soon as we email the Commission with the recommendation, anybody from
the public can request the recommendation.
CLARKSON: Is there a date before the hearing that requires that information to be sent to us?
JACKSON: No, which is why sometimes you’ll get reports a month in advance and sometimes
unfortunately the week prior.
CLARKSON: So I’m just pointing out that potential intervenors don’t get to see the findings of
the Department; they won’t necessarily see what the Department is going to recommend 14 days
before the hearing. I just personally think that at the very least the recommendations of the
Department, the stuff that we get to review before we come to our Commission meeting should
be available to potential intervenors on that 14-day window so they get at least a few days to
look at it before they have the seven-day deadline before the meeting to decide to intervene.
KEALOHA: Wouldn’t the intervening process be against the project? So you would know if
you oppose the project based on the application. Why would you need to know the
recommendation to determine whether or not you’re opposed to the project or not?
CLARKSON: Well, you would need to know what the recommendation was because if it’s a
very strong recommendation for denial with lots of really solid evidence, you may not want to
pay 200 bucks just to hedge your bets. I mean that’s the position you are putting a potential
intervenor in as they, they’ve got to make up their mind without seeing anything except the
application itself. No response from the Department, no public testimony, nothing, they’ve got
to go, okay, do I have to plunk down 200 dollars. And they can’t, where was it that, they only
get their money back if they withdraw their application before the commencement of the hearing.
UNGER: A possible change would be to refund their money at the end of the hearing or when
they pull out at the hearing, because I do know that we are going to then get back into time
frames. But, Daryn, if you want to comment on that as well. I guess I agree with Commissioner
Kealoha; as a surrounding property owner, you are going to know whether you are going to
petition against or not regardless of the Planning Department. So you’ll spend your 200 dollars,
you apply, and if I knew I could get, if I could change my mind at the end of the hearing and pull
out anytime during the hearing, get my refund based on what’s happening at the hearing, then I
would be okay with that.
ARAI: And the Commission has provided those courtesies in the past, if an applicant decides to
withdraw at the last minute. You know, I understand 200 dollars is 200 dollars, given the
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EXHIBIT A
potential issue, you know, again, a lot of times the fees are imbedded within our process simply
to provide some level of compensation upon the cost of publishing in the newspaper. The
smallest of ads can run several hundreds of dollars at a time. We did check some of the other
county rules and they do provide for fees as well. But another option I can throw out there is that
if the costs of filing for intervention remain such an issue, especially if you want a due process,
then consider getting rid of it, and then putting the weight on determining standing as to whether
or not you proceed. It’s just a thought. It’s either that, or you are going to have to make the hard
decision that every proceeding that comes before this Commission be held as a contested case
proceeding. And that’s the distinction when you conduct, contested case is evidentiary, is to
provide evidence, provide for due process, so if you want to protect the interest of an intervenor
or surrounding property owner, it means cross-examining every witness, every piece of evidence
that’s introduced into the record. So, you know, it’s hard to have it both ways. You can provide
that accommodation but understanding that the process would be much more intense, much more
in-depth, and much more lengthy.
HENKEL: I think reducing or eliminating the fee is an interesting proposal because, if it can be
done, because the fee is just another way of limiting public testimony in my opinion.
ARAI: And there comes a point in time where you have to weigh the cost of the filing for
intervention against the cost we provide in securing the services of a hearings officer that also
includes transcription services. I mean we are running to tens of thousands of dollars already.
So I’m just throwing it out there because I would hate to see this effort stall over a couple of
hundred dollars.
CLARKSON: Okay, but then what’s going to happen, I’m confident, is that anybody who
objects to any application is going to intervene, and that means that the Commission the very
first thing they’ll have to do is hold a hearing on the status of the intervenors and, no, you are
out, you are just members of the general public, no, you are out; I mean it’s going to mean, what
do they call it, a hearing on a written request for practically every meeting. I personally think
there should be a substantial fee to basically make sure people are serious when they do want to
intervene, but I also want to be fair to those people so that if they put up that substantial fee, they
are doing it with full knowledge of what’s ahead of them.
UNGER: So back to a refund at the end of the hearing and up to the end of the hearing where if
an intervenor applicant chooses to withdraw his petition, he gets his money back. Is that
something that you could work into it?
ARAI: As long as we are not running afar of any fair process – and I’m looking at our Deputy
Corporation Counsel. But if we go down that road, then I guess the first thing that comes to my
head trying to be as fair as possible is, what about those intervenors who are denied standing.
UNGER: No refund, which is how it is now, I mean by letter of the law.
ARAI: Yeah.
UNGER: So no change.
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CARR SMITH: I support keeping the 200-dollar fee and not mudding the waters with any, it
gives them some buy-in —
UNGER: With the withdraw component? No?
CARR SMITH: It seems like that just brings in too many variables and open for interpretation.
UNGER: It does, yeah, yeah. So back to the 14 days, bumping it up to 14 days, and then the
same seven-day deadline to petition. I think we’ve talked that one up pretty good. We could,
Daryn, how do you propose we move from here as far as structuring a motion to incorporate this
discussion? Is it something that staff can help us with or is it something that the Commissioners
have to break and formulate?
ARAI: If you give us just a moment, I think we can try to provide some guiding language.
UNGER: Would you recommend a five-minute break?
ARAI: Sure.
UNGER: Okay, a five-minute break, and we’ll reconvene in five minutes.
RECESSED The Chair called a short recess at 2:07 p.m.
RECONVENED The meeting reconvened at 2:13 p.m.
UNGER: We are back in session. Ms. Jackson, would you like to summarize where we are at
now?
JACKSON: Yes, thank you. So based on the public testimony, and I think a lot of the concerns
of the Commission, it’s pretty clear that we need to rework Rule 4. So what I would suggest is,
if the Commission wants to make, you know, some changes that everyone can easily agree on,
we can do that. Otherwise, I would suggest tabling these areas that we are having difficulties on.
We hope to do another joint meeting by the end of the year, and then we can, what we’d like to
do is take the Commissioners’ suggestions and concerns, and then try to rework Rule 4 in order
to address everybody’s concerns.
UNGER: So to backtrack, the goal today was to try and get the, this joint committee to either
modify or approve the changes. Based on the previous discussions we’ve been having, then we
are going to take a step back, we are going to, I suggest we do another, I’ll just open up the
discussion with the Commissioners to maybe have a final discussion or comment. I think the
common denominators are specifically to get public testimony back into the contested case
hearing, to have public notice; I think there’s no discussion or argument amongst the
Commissioners. I think we did get a, had a more in-depth and detailed discussion on some
timings and time frames. And so I think that, and I think we are real clear with that in regards to
the Commissioners having a discussion. So that should give you plenty of information to go
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back, and now essentially rewrite Chapter 4 for another presentation in front of the joint
commissions. So if that’s an accurate summary of where we are at, perhaps we can open it up to
the Commissioners to have one last say based on where we are going from here. One last say, if
you have a point that hasn’t been discussed previously, or if you would like to clarify or
emphasize a point, perhaps we can open up the discussion to that right now, with the thought
being the Planning Department will regroup with these considerations and suggestions and
redraft Chapter 4.
HENKEL: I like that. I have a question, though: Could the next joint conference be
video-enhanced for logistics?
JACKSON: Yeah, we can look into trying to accommodate that. As far as I know, the only
venue to do that right now is the Council Chambers, and so we’ll have to check with them to see
if that’s something we can do.
HENKEL: Not that I mind coming over here, but the Kona people might not want to come to
Hilo.
SHIMAOKA: We’ve got a videoconference over here.
CLARKSON: I’d just like to point out, kind of in support of the public testimony aspect of it,
that 4-20, which was to be stricken, still allows the Presiding Officer to limit testimony —
UNGER: Right, right.
CLARKSON: — if anybody is not actually relevant or material or is being unduly repetitive.
And so I think that the testimony can certainly be accommodated and limited to really relevant
testimony at the same time.
UNGER: That’s a good point. And that stipulation is still in there. And so it is incumbent upon
either the Chair or the hearings officer to take charge of that meeting, and he is well within his
rights to limit or somehow take control of the testimony. So, yes, it’s important that the
testimony is there, but on the other hand there is a check and balance already built in.
SHIMAOKA: So I wonder if, if we are agreeing now that maybe at the next joint Commission
meeting that we actually need to discuss some of the issues that we cannot agree with, or we
cannot come to consensus right here now.
UNGER: I think the Planning Department will try address that in their proposal and, similar to
this proposal, they will come up with their suggested changes. That’s going to be the basis of
our discussion.
JACKSON: So I think with that, is everyone in agreement to table the notification portion of
Rule 4 and move on to these other provisions that we’ve tried to add into Rule 4 regarding
mediation, the prehearing conference procedure —
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EXHIBIT A
UNGER: I think so, yes. Do you suggest we make a motion to close this section of the
discussion or shall we just continue on?
HO: I think you can just have a motion for action, if you guys want to, since none of you guys
really discussed, I mean you didn’t have any objections to those other motions like creating
mediation, which other jurisdictions do and it’s allowed in the State Statute and stuff like that, if
you guys want to just motion to approve those amendments separate from the ones already
mentioned.
UNGER: I think we are talking about, are we talking about just Chapter 4 rewriting or are you
talking about taking back all these ideas and rewriting?
JACKSON: I think we will rewrite Chapter 4 to include an allowance for public testimony and
reformat it so that it’s really clear what portions relate to the Planning Commission hearing and
which portions relate to the contested case proceeding. But it would be good if the Commission
agrees with adding these provisions, it would be good if we can do that now because it would be
helpful to get mediation into our Rules as soon as possible.
UNGER: Let’s continue the discussion then.
CARR SMITH: I’d like to make a motion for action.
UNGER: Continue.
CARR SMITH: I move that the amendments to the County of Hawai‘i Planning Commission
Rules of Practice and Procedure Rule 4 be approved as submitted, with the exception of Rule
4-5(b) should remain, on line four of 4-5(b) “ten days” should be changed to “14 days,” 4-5(c)
should remain, 4-6 \[(a)\] line five “no later than seven calendar days” should be changed to “no
later than 14 calendar days” —
HO: Oh, no, not that one, that’s for —
CARR SMITH: Oh, that one remains the same? Sorry, sorry, that one stays as “seven days.”
Four-six(b)(5) line two we are omitting the “d” from “practiced” and we are changing “were” to
“are,” A-R-E, and 4-20 shall remain in the rule, and also the other changes that were noted
regarding the addition of Part 3 and the moving of Part 2. Is that too long of a motion?
KEALOHA: I’ll second.
UNGER: We have a motion by Commissioner Carr Smith, second by Kealoha, Commissioner
Kealoha. The floor is open to discussion.
CLARKSON: I’m in favor of the motion except that I think there is some confusion about
4-5(b); this is not the notice of the application and the Planning Commission hearing. Correct
me, if I’m wrong, but isn’t this the notice of the contested case hearing? Oh, it’s not? Why does
4-5 say “Notice of Contested Case Hearing?”
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UNGER: Yeah, 4-5(b) is, does —
CLARKSON: Huh? That’s incorrect?
DARROW: This is why we were asking that this be delayed for a period of time, because as we
are looking through this, we are noticing that this process that’s been put in is actually the
process for the application. That’s why when you look at it, and you were referring to it, it was
referring to the process that we go through when an application is filed with the Planning
Department. So if you read it with that in mind, then it makes sense.
CLARKSON: But it’s in the wrong —
DARROW: It’s in the wrong place, correct.
KEALOHA: Wrong title, wrong title.
DARROW: Wrong title. So that’s why we are asking to pull this back so we can clean it up and
take care of that. Thank you.
UNGER: So question then is this motion still, Jeff, is this motion still applicable, including that
language?
DARROW: Well, the question —
HO: It wouldn’t really change much. Sorry, go ahead, Jeff.
DARROW: Yeah, the change to the 14 days would be only a change in this, but we still have in
other sections of the code referencing ten days. So now we’ll have a conflict.
UNGER: Do you recommend we hold that for further, that —
DARROW: Correct.
UNGER: — particular part of the motion for further discussion —
DARROW: Thank you.
UNGER: — for you to take back?
DARROW: Yes. Thank you.
UNGER: Okay, so let’s remodify the motion to include everything you said and strike the
change to 4-5 Notice of Contested Case Hearing, (b), and let’s discuss the motion without that,
with the caveat that we recommend back to the Planning Department to reword that so it is
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EXHIBIT A
consistent with their other time frames. So that’s the motion on the table. And the floor is open
for discussion on that.
CLARKSON: So this is a mental summary for myself —
UNGER: Right.
CLARKSON: — we are changing, we are putting the reordering of Part 2 in between Part 1 and
proposed Part 3; we are keeping public testimony, 4-20; we are keeping all of the insertions
having to do with mediation; and, basically all other deletions are being ignored until we are
presented with new text by the Planning Department. Is that —
CARR SMITH: What’s being ignored?
CLARKSON: All deletions except for 4-20, well, except for 4-20, and —
HO: No.
CLARKSON: — we are accepting all additions.
UNGER: We are focusing on Chapter 4, and the motion on the table, so, has nothing to do with
mediation. I think we are going to be talking about that in our next discussion.
CLARKSON: Oh.
HO: No, that’s part of this one.
UNGER: Oh, it is part of this one?
HO: Yeah, it’s, because it’s mediation, it’s a requirement of mediation to be before, but that’s an
addition. So I guess you could word it that way that basically the deletions are not occurring, I
mean, well, you are not, we are not deleting 4-5(b), and we are not deleting 4-20; we are keeping
those all in. And so everything else is staying. All the other amendments are going to be as is,
as you have in here.
CARR SMITH: My motion did say (c) as well.
HO: Yes, (c), sorry, my mistake.
UNGER: Okay —
SHIMAOKA: Are we in discussion?
UNGER: What’s that?
SHIMAOKA: Are we in discussion?
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UNGER: Yes.
SHIMAOKA: I kind of like what the staff wants to do, is clean it up. Give us an opportunity to
see that before we have a joint meeting again, I mean, we can meet Leeward and Windward
separately. We know what we are looking for, so if we find anything after they cleaned it up, we
have an opportunity to further clarify so that both of the Commissions can get on the same page.
I think it’ll be a lot better to see everything just cleaned up instead of us trying to pick and
choose right now, and then we have to come back together and haggle over the stuff again.
UNGER: Go ahead.
CARR SMITH: I respectfully disagree just in that you asked, you put this before us and you
asked us to decide, and we spent several hours on it and this is what we came up with. I think
they can still clean it up and bring it back to us again. But it seems like we should be able to
document our work, too. So, I don’t know.
UNGER: I think they did, I mean, this was presented to us last week, so I’m assuming that the
Planning Department will clean this up and get out copies to all the Commissioners. We’ll have
a chance to review it prior to the meeting. We can certainly formulate your ideas and ask your
questions at that time. But I think that it is important we all get back together again to do this
process again.
So back to Rule, so back to Rule 4, I think we do have a motion on the table, which encompasses
all of Chapter 4, with the motion as described by Commissioner Carr Smith, seconded by
Kealoha, and if there is no more discussion, we can ask for a roll call. If this gets approved, then
we move on to the other Chapters in the proposed modifications outside the Chapter 4.
CLARKSON: Can somebody repeat the motion just one more time for me, please?
JACKSON: I’ll try that. I think the motion is to keep everything as is, meaning do not delete
Section 4-5(b) or (c), and do not delete Section 4-20 regarding public testimony, but to make the
correction to Section 4-6(b)(5) regarding cultural practices, to add all of the language on Page
4-4 regarding multiple intervenors, opposition to intervention, and mediation, as well as
clarifying procedures for the prehearing conference on Page 4 and 5, and then, Commissioner
Clarkson, as you had pointed out, kind of reordering Part 2 and moving that, Section 4-27
through 4-29, move that after 4-20, and then create a new Part 3 for Commission decision, which
would contain Section 4-21, 4-30, 4-31, 4-22 through 4-26. Is that correct?
SHIMAOKA: I’ve got just one: On your 4-5(b) you didn’t say 14 days instead of, deleting ten
and adding 14.
JACKSON: Okay, thank you very much. And so that was Commissioners Carr Smith and
Kealoha, that was changing to 14 days, let’s see, on the “not less than ten days prior to the
hearing,” change that to “not less than 14 days,” was your, was that your motion?
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UNGER: Yeah, that is the one. Four dash —
CARR SMITH: I thought that’s the one you asked us to leave alone for now.
JACKSON: Okay, yes, that’s the one we asked you to leave at ten.
CARR SMITH: So we are keeping that one at ten days, yeah? We are not changing any time
frames in this motion.
JACKSON: Are you okay with that, Commissioner Shimaoka?
SHIMAOKA: I’m okay, absolutely.
JACKSON: All right.
UNGER: I think that’s it. Roll call.
JACKSON: All right. Commissioner Carr Smith?
CARR SMITH: Aye.
JACKSON: Commissioner Kealoha?
KEALOHA: Aye.
JACKSON: Commissioner Kaholo?
KAHOLO: Aye.
JACKSON: Commissioner Nobriga?
NOBRIGA: Aye.
JACKSON: Commissioner Shimaoka?
SHIMAOKA: Aye.
JACKSON: Commissioner Clarkson?
CLARKSON: Aye.
JACKSON: Commissioner Ikeda?
IKEDA: Aye.
JACKSON: Commissioner Henkel?
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HENKEL: Aye.
JACKSON: And Chair Unger?
UNGER: Aye.
JACKSON: Okay, thank you.
UNGER: Chapter 4 is done. We have 13 more. Ms. Jackson, do you want to go ahead and lead
us through the other changes? And I guess we can comment. Why don’t you go, start at Chapter
1, and we go through the changes, and if any Commissioner objects or wants to have a
discussion on it, any of the proposed changes, we can do so at the time. And hopefully,
somebody can keep track of these changes for a, with the goal of making a motion at the end of
process.
JACKSON: Okay, so the Department is not proposing any changes to Rule 1. And, oh, sorry,
we are proposing a change at the very top of the page, under Authority, just changing the
reference to the version of the Code, and also on Page 1-2, Section 1-3(p), another change to the
reference of Code.
CLARKSON: So is the floor open for proposals for change to Rule 1?
UNGER: Why don’t we go Chapter by Chapter and as proposals come up? Yes, we’ll open the
floor to those suggestions or changes.
CLARKSON: I have a couple. I don’t think that Board of Appeals is relevant anymore to the
Rules of Practice and Procedure; that could be stricken from the Definitions. A much more
important one is that there should be a definition of joint commission. The Rules, the definition
of Commission, and it’s used throughout the Rules, means “either the Leeward Planning
Commission or the Windward Planning Commission”; so apparently, either Commission can
change the Rules. And so I think there should be a joint commission and the joint commission
should be identified when a joint commission is required to change the Rules.
Rule 1-5 Meetings, it states that “Regular Meetings shall be held \[at least\] once a month”; my
question is what if there are no applicants. I’ve known of lots of meetings that have been
cancelled. But apparently our Rule say we meet once a month regardless.
HO: “Unless otherwise specified by law.”
CLARKSON: And I have some just questions. I don’t really know the, I don’t understand the
definition of Party; “‘Party’ means any person or agency named or admitted,” — who names and
admits them? — “as a party or properly seeking and entitled as of right to be admitted as a party
in a proceeding” — how do they property seek? If somebody could clarify that for me. And
that’s all I have.
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HO: That’s a definition from the State Statutes. So if you want to, I mean, I can tell you what it
means, but if you want to change the definition, you might want to go all the way up to the State
Legi, because that’s what’s in the Statutes.
UNGER: Thank you. If there is, uh, any more comments on Chapter 1? Chapter 2?
JACKSON: Okay, I believe the only change to Chapter 2 was a reference to Board of Appeals
that we want to remove, and that is in Section 2-1(d); the very last sentence says, “Petitioner may
seek review of the denial through the Board,” and so we would want to change that to “review of
the denial through the Third Circuit Court.” And that’s because every action, every final action
of the Commission is appealable to Third Circuit Court rather than the Board of Appeals. And
that’s the only change the Department has for Rule 2.
CLARKSON: My suggestion for this one is to replace the word “Commission” with “Joint
Commission” throughout.
UNGER: Is that accurate, Malia? Should, is that, anytime there is a rule change proposal, it is a
joint commission?
HO: I believe so, that any rule change needs to be done at a joint meeting.
UNGER: Okay, very good. Any other comments on Chapter 2?
CLARKSON: There is one minor one; there is a Notice of Public Hearing, it’s 30 days, and then
there is an Emergency Rulemaking, which is allowed upon “repeal of a rule upon less than
twenty days notice.” I don’t know whether those need to be rationalized or not, but if a normal
notice is 30 days, you would think that an emergency would be anything less than 30 days.
SHIMAOKA: I’ve got a question on, going back to 1-1 —
UNGER: Wait one, I think we are still, are you still discussing the question before?
SHIMAOKA: This has to do with that.
UNGER: Oh, it does. Okay, sorry.
SHIMAOKA: On the definition of Commission, is it “and/or?” So that you, because if we are
changing to Joint Commission, as far as the definition, that Chair \[sic\] Clarkson wants to change
to Joint Commission. That’s, that’s, I’m just asking the question here. Would Commission in
the general definitions now be “and/or?”
UNGER: I think the suggestion was to create a new definition with Joint Commission.
SHIMAOKA: Correct.
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UNGER: So we leave the Commission definition as is, and create a new definition for Joint
Commission.
CLARKSON: That was my intention that there are some things that only the joint Commission
can do —
SHIMAOKA: Correct.
CLARKSON: — and other things that either Commission can do.
SHIMAOKA: Okay.
JACKSON: Okay, so to address Commissioner Clarkson’s comment on Rule 2-5, the change
was proposed to go to less than, less than 30 days. I would think that would work, I mean, there
are minimum publication requirements, but as long as we meet those minimums, that should
work.
UNGER: Okay.
JACKSON: Shall I go on to Rule 3?
UNGER: Okay.
JACKSON: Okay. Okay, so Rule 3, the change that the Department is proposing is the fee
change from 500 dollars down to 200 dollars, and that’s in Section 3-1(b)(1). And that’s the
only change that staff is proposing.
HO: Sorry, not to backtrack, but just to go off of the last point, in the State Statutes as well it
just says less than 30 days, if there is like eminent health, public safety, that kind of stuff, so
emergency. So that’s what it says in the Statutes, so if you want to just change 20 to 30, then.
JACKSON: Great.
UNGER: Chapter 5?
JACKSON: Yes. So, Rule 3 was good. And then Rule 4, we’ve covered. Rule 5, there is no
changes proposed to Rule 5. That’s regarding General Plan amendments. Rule 6 for Special
Permits, minor typo changes to Section 6-1, and then the main changes are in Section 6-6 related
to just adding, “The commission shall conduct a \[public\] hearing within \[a period of\] ninety days
\[from the date\] of acceptance of a \[complete\] application, or within a longer time period as
agreed to by the applicant.” So we just want to add that language.
Oh, I’m sorry, Commissioner Clarkson, I think you had suggested saying, actually we were
going to use other language for that section here – let me go find it. Okay, we were going to use
the language found in 7-5(a) in all permit rules regarding the Public Hearing. So, change Section
6-6(a) to say, “Upon acceptance of a Special Permit application, the Commission, through the
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Department, shall fix a date for the public hearing. The public hearing shall commence no later
than ninety days after the acceptance of a Special Permit application by the Director, or within a
longer time period as agreed to by the applicant.”
And then, let’s see, under Section 6-8 we want to change the language from “Within thirty days
after the close of the hearing” to “Within sixty days after the close of the hearing, or within a
longer time period as agreed to by the applicant,” and then “the Commission shall” and then
those are the options for the Commission’s decision. So that’s just changing from 30 to 60 days
to be consistent with the other permit time period.
Oh, and then also changing the heading of 6-8 from “Action” to “Decision.” That’s also to be
consistent with other sections of rule.
And then for permit amendments, Section 6-9(e), just to state, to delete where it says, “provided
further that the Commission shall conduct a hearing within a period of ninety days from the date
of receipt of a properly filed request, or within a longer period as may be agreed to by the
Commission.” And that’s just being deleted because it’s redundant. We are adding in that same
section, “The hearing and notice procedures and action shall be the same as under Sections 6-5,
6-6 and 6-8 of this rule.” Basically, what that is saying is we want the permit amendments to be
processed the same way that a permit application would be processed – the same timelines, the
same notification requirements.
And then in Section 6-10, changing the appeal language, as I had mentioned before, and Section
6-11 also adding revocation language. And then for that Commissioner Clarkson had suggested
giving authority to the Department to revoke a permit upon request of the applicant. So what we
can do is we have some suggested language and I’ll read that off to you now. That would go into
Section 6-11(a)(1). It would say, okay, well, we have to reword that a little, let’s me just read
what we first came up with: “A special permit may be revoked by the Planning Director upon
written request of the applicant, its successors or assigns, and at the Director’s sole discretion.
Otherwise, such revocation request shall be processed as provided by Section 6-9 of this rule.”
Wait, that’s not correct; it would actually be 6-11(2).
HENKEL: Excuse me, under 6-11(2)(A) it says, “The Director requests the revocation if there
has been noncompliance with the conditions of the permit,” or at the request of the applicant?
Wouldn’t that be enough?
JACKSON: Well, that’s the Director requesting the revocation from the Commission, so it
would still be the Commission.
HENKEL: Still, okay —
JACKSON: Yeah.
HENKEL: — sorry.
JACKSON: We could just do a new, okay, we can do a section, oh, do you want to try?
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EXHIBIT A
CLARKSON: I want to try.
JACKSON: Go for it.
CLARKSON: Revocation, 6-11(a) A Special Permit may be revoked by the Director in the
event that: (1) Any property owner who holds the permit sought to be revoked or at the request
of any other person, with the property owner’s consent, submits a written statement to the
Director verifying that the development approved under the permit has either not been
established or has been abandoned. Section (b) A Special Permit may be revoked by the
Commission in the event that: (1) The Director requests the revocation if — and go thereafter.
JACKSON: Perfect. I like it. Okay. Okay, so those are the only changes to Rule 6 that staff is
suggesting. Any other suggestions?
CARR SMITH: Just a comment. I assume that there is a reason that it’s been this way that the
Commission approves the Special Permits and the Commission may revoke the Special Permit.
Is there a reason that you, that the Department thinks that that should be changed?
JACKSON: Not necessarily. It actually, if it’s requested by the landowner or the applicant, it
actually would be a lot simpler because then they wouldn’t have to go through, doing notification
to surrounding property owners and publishing, you know, all of the regular process just to
revoke a permit that they are not going to do anymore. So this actually is a good change. We
haven’t done it that way in the past because the Director didn’t have the authority to, so that’s
why we always forwarded those requests to the Commission for action.
UNGER: Very good.
JACKSON: Okay? All right, moving on to Rule 7 Use Permits. Okay, again, just a correction
to the Code edition on Section 7-1, and Section 7-4(c). And then Section 7-5 for Public Hearing,
we want to change that date, that the first public hearing needs to be held from 60 to 90 days
after acceptance of a Use Permit application, or within a longer time period as agreed to by the
applicant. And then on Page 7-5, Section 7-7 Decision, we want to change that from 90 days to
60 days so that it says, “Within sixty days following the close of the public hearing(s), or within
a longer time period as agreed to by the applicant, the Commission shall either deny or approve
the application.” And then Section 7-9(e), again, this is for amendments, this is just changing the
language so that amendments follow the same process for notification and time period of public
hearings and Commission action so that it’s the same as a normal new Use Permit application.
And then again adding the same appeal language that we’ve added to all of the other permits.
Okay, and then under the Revocation section, we can add that same language that Commissioner
Clarkson came up with so that for Section 11, 7-11(a), could read, a Special Permit may, I’m
sorry, a Use Permit may be revoked by the Director in the event that any property owner who
holds the permit submits a written request – that same language. And then Section 7-11(b)
would say a Use Permit may be revoked by the Commission in the event that, and go on to (1),
(2), (3) and — does that make sense?
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UNGER: Yeah.
JACKSON: Okay. Are there any revisions on Rule 7? Okay, Rule 8. This is for shoreline
setback variances. Let’s see, on Page 8-4 there is a minor revision to the reference for the
County Code section, and then in Section 8-8 on Page 8-5 for Public Hearing, we just want to
add “or within a longer time period as agreed to by the applicant.” Page 8-6, Section 8-9
Decision, “Within sixty days following the close of the public hearing(s), or within a longer time
period as agreed to by the applicant, the Commission shall render a decision to approve or deny
the application.” These are just minor changes to make language consistent throughout your
rules. And then again for amendments on Page 8-9, Section 8-12(e), this is to, this change is so
that amendments are processed the same way as a new shoreline setback variance application as
far as the timelines, the public notice. And then the new appeal language added in Section 8-14.
And new revocation language in 8-15, and we can modify that to be consistent with the language
that Commissioner Clarkson came up with. Are there any other changes for Rule 8?
CLARKSON: I don’t have any changes, but I see continuously in all these rules reference to
Planning Commission Rule 4-26, it’s at the end of every one, and it just says, “in the manner set
forth in Section 91-14.” Does the Deputy Corporation Counsel, can she, I, just so I understand
what this really means.
HO: Okay, so, contested cases have a different appeal process. You can actually appeal a
contested case final decision or preliminary ruling directly to the Supreme Court, which is all
laid out, it’s brand new, in 91-14. So we figure we just reference that instead of trying to
recreate different language and then messing it up, because it is a brand new thing and it hasn’t
really been, let’s say, tested or anything. So that’s basically just, that’s the only reason why we
keep it, and at any time there is a contested case their way of appealing changes. Of course, they
can still appeal to Third Circuit, if they wanted to, but most people will skip up to Supreme
Court, if they can.
CLARKSON: Thank you.
JACKSON: Okay, Rule 9, we are proposing a change on Page 9-14, for Hearings, letter (d),
“Within ninety days after acceptance of an SMA permit application or within a longer time
period as agreed to by the applicant, the Commission shall conduct a public hearing(s).” Now,
that reads a little different than the other language, so we can go ahead and make that consistent
with —
CARR SMITH: Sorry, where are you?
JACKSON: Page 9-14, under Hearings.
HO: The same language from like 7-5(a)?
JACKSON: Yeah. So that would read, “the Commission shall conduct a public hearing within a
period of ninety days,” no, wait, I’m sorry, that’s the wrong one, “Upon acceptance of an SMA
Permit application, the Commission, through the Department, shall fix a date for the public
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EXHIBIT A
hearing. The public hearing shall commence no later than ninety days after the acceptance of a
Special Permit \[sic\] application by the Director, or within a longer time period as agreed to by
the applicant.” And then deleting the reference further on on Page 9-15; that’s just kind of says
the same thing, just different wording. And then Page 9-16 under (f) Decision and Order,
“Within sixty days following the close of the public hearing(s), or a longer time period as agreed
to by the applicant, the Commission shall either deny or approve the application,” and that’s
actually changing the language; the previous language gave you a window, it looks like, not to
exceed 30 days or within 45 days of the receipt of the hearings officer’s report. So we are just
changing that language, again, to be consistent with your other decisions. And then on Page
9-17, this is just adding the same appeal language that we’ve added to the other permits.
HO: Although I will say now that we are renumbering, we are probably going to have to
renumber this, because I think 4-26 got, or 4-27 was moved before, so this is probably going to
put it three back.
JACKSON: It’s going to be all the way at the end now.
HO: Yeah.
JACKSON: Yeah, so we’ll have to change all those references to 4-26. Thank you. Okay, Page
9-18 under Section 9-11(2) Notice and Hearing. Okay, this is for the amendment, no, yes, it is,
it’s for SMA Permit amendments, again, just following the same processing hearing, decision,
and notification timelines and requirements as a new SMA Permit. And then the revocation
language is on Page 9-20, Section 9-16, and then we can adjust that again to allow the Director to
revoke permits requested by an applicant or successor, and the Commission to revoke the permit,
if it’s for non-compliance or health and safety issues, consistent with the other language. And
those are all the changes for Rule 9. Are there any other suggestions?
Okay, Rule 10, this is for your zoning amendments. Rule 10 just has some real minor changes
regarding reference to Code in Section 10-1, 10-2(b), and on Page 10-4, the first paragraph. Any
suggestions for Rule 10? Okay?
Rule 11 has no changes.
Rule 12. Rule 12 has some change to the appeal language on Page 12-6, Section 12-13; again,
this is a section that referred appeals to the Board of Appeals, so we are correcting that and using
our standard appeal language so that appeals go to Third Circuit Court. And that’s the only
change for Rule 12. Are there any other suggestions? Okay.
Rule 13 —
SHIMAOKA: I’m sorry, I’ve just got one question.
JACKSON: Sure.
SHIMAOKA: Where is that stated, to Third Circuit Court?
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JACKSON: Okay, let’s see, Section 12-13 in the first paragraph it says, “Any decision of the
Commission so made within the context of the rule shall be appealable to the Third Circuit
Court.”
Rule 13, we have a minor Code reference change on Page 13-2, and then on Page 13-3, Section
13-6(b)(1), “Within ninety days after acceptance of a State Land Use Boundary Amendment
application or a longer time period as agreed to by the applicant, the Commission shall conduct a
public hearing(s) on the application”; that’s changing the time period from 60 days to 90 days,
and we can also make that language consistent with the other public hearing language in Section
7-5(a). That’s the only change to Rule 13.
Rule 14, I believe the only change to Rule 14 is on Page 14-4, that is for amendments also
making the amendments consistent with the time frames, notice requirements and conducting a
public hearing for any amendments to an Agricultural Project District Permit. And, any other
changes to Rule 14?
Okay, Rule 15. Again the only change is to the amendment language on Page 15-3, Section (2),
so this makes the processing of amendments the same procedure as processing of a new Project
District application. Are there any other changes to Rule 15?
CLARKSON: Yes, I remember Mr. Melrose objecting to the serving notice on lessees of record
and how that was not in his mind crystal clear what lessees of record meant and where you
would find them.
JACKSON: Okay, that language for notification to landowners and lessees of record actually
comes from the County Code, and it applies to all of your permits. So if we change the language
for this one, we should change it for everything. Generally, it isn’t very clear what lessees of
record means, so typically when an applicant asks staff, who do I notify, we ask them to look at
the Real Property Tax records and determine if there is any lessees of record on their website.
CLARKSON: So you are saying it’s not hard to find that.
JACKSON: No, it’s, it’s not hard, if you are looking on the Real Property Tax website. That
isn’t a comprehensive list of lessees, but it’s one that we’ve always accepted as being sufficient.
DARROW: A good example of this, Commissioner Clarkson, would be lands owned by
Kamehameha Schools; so they own a number of properties and they lease their properties to
lessees of record. So what will happen is the lessees will come in, or a particular lessee may
come in and do an application and they have to notify surrounding property owners, if you just
notify the owner, it would be all Kamehameha Schools, but they notify all the lessees of record,
including Kamehameha Schools. Unfortunately, there are times where a surrounding property
owner would consist of numerous lessees of record; normally, we just ask that it be the ones
identified with an address because a majority of them won’t actually have an address, it’ll just be
one or two that are there for notification purposes. But that’s the main reason I believe is that
because these larger property owners lease out the properties. Okay? Thank you.
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JACKSON: So, Commissioner Clarkson, would you like to clarify that in the rule?
CLARKSON: No, no, that’s clear enough. I, now that I understand, I’m perfectly willing to let
it stay there.
JACKSON: Okay. All right, let’s go into the new Planned Unit Development rule, Rule 16. So
the entire rule is new. Are there any suggested changes to Rule 16?
UNGER: This process already exist with a developer wanting to develop a P.U.D.; they apply to
the Planning Department. And so what this proposal is instead of applying to the Planning
Director they essentially apply to the Commission. So are there any, I mean, is this basically the
same process or changes made to that process? Maybe you could highlight here because, you are
right, this is all new.
JACKSON: Yeah, it essentially is the same process. There is one big difference, and that is
Section – sorry about that – Section 6\[sic\]-5, this is “P.U.D. permit application and processing
requirements located within special districts with design guidelines and/or standards.” So when
the Department was responsible for reviewing and approving P.U.D. permits, we didn’t have this
special design review requirement, and when the P.U.D. rule shifted over to the Planning
Commission around the same time the County Council adopted a special design district for
Pāhoa Village and incorporated that into the P.U.D. application so that applications in Kailua
Village or Pāhoa need to go through the design review. So that’s the biggest difference.
KEALOHA: And then 6\[sic\]-10 that can also refer to the 75-foot height restriction, which is not
normal-. Where does that come from and why is that what it is?
JACKSON: I don’t know where it originally came from because this has been in the Code for a
long time for P.U.D. Permits. So this is not something new that the Council just recently
changed.
HO: I would just suggest the revocation language be consistent.
JACKSON: Yes, thank you. We can change Section 16-5\[sic\].
HO: I think, with the 75 feet, though, I think it’s, they would want you to come and rezone so
that you’d be, if they are in the Resort zoning or something, I know that they are trying to keep
buildings below a certain height depending on, they don’t want you to just be able to go Ag and
build huge structures, I think that’s more what it is.
NOBRIGA: Don’t we already have a four-story limit in place?
HO: Yeah, but if we want to edit this rule, we’d have to change the Code first, and, because the
Code beats our rules. So it’s like Charter, Code. So if we want, we can send something up, you
can do an initiator and send it up to the Council to change this rule in the Code, and then we can
change our rule after that.
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JACKSON: Are there any other changes to Rule 16? No? Okay —
CARR SMITH: I do have a quick question, sorry.
JACKSON: Yeah.
CARR SMITH: On the design review committees you have a list of those throughout the island?
Or how does a community know whether there is one in their community or not?
JACKSON: There are actually only two right now, just Pāhoa Village and Kailua Village.
Those are the only two communities that have set up a design review committee and that have
actual design guidelines that have been adopted.
CARR SMITH: Daryn, you know where I’m going with this.
ARAI: I’m not sure. Go ahead.
CARR SMITH: Waimea? Waimea has a design review committee that is often thought that
they are forgotten, and perhaps that’s accurate. Maybe they are not on the list, so maybe that’s a
conversation for another day, but I just wanted to bring up.
JACKSON: Yeah, so this 16-5(a) refers to “any special district established under article 7” of
the Code, so I think Waimea would actually have to go through that adoption process to get you
design guidelines adopted by the Council.
CARR SMITH: They did a long time ago.
JACKSON: Okay, are the current design guidelines, the most current one has been adopted by
Council?
CARR SMITH: I’m not sure.
JACKSON: Okay.
CARR SMITH: I’ll check into it.
JACKSON: Do you have a question?
CLARKSON: Yeah, I just have a question about State Historic Districts. Are they always
considered in these development applications?
JACKSON: Yes, State Historic Districts that are on the national or state register?
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CLARKSON: Well, I know there are certainly buildings that are registered as Historic
Buildings, but there are also districts that are Historic Districts, and the requirements of those
districts are always accommodated in Planned Unit Development approvals.
ARAI: It’s not specified within the rule, but as a matter of practice, no different than your
Change of Zone, your Use Permit applications, Special Permit applications, we’ve actually made
an effort to plot out the boundaries of the Historic Districts where it wasn’t plotted out before in
our GIS system; so what that does is it prompts us staff to then circulate the applications to like
the Historic Preservation Division for review and comment, because we know where these
districts are situated. So it’s a matter of practice that we notify SHPD for review and comment.
Does that adequately address your concerns or?
CLARKSON: Yes.
ARAI: Okay, thanks.
UNGER: Back to 16-10 Height exemptions \[sic\] authorized, (a), can you clarify if a P.U.D.
developer comes in and says they want to build a 75-foot building, this doesn’t say that we have
to approve it by law; this just says that we may consider it as an exemption to the height
restrictions in a zone property?
JACKSON: Yes, that’s correct.
UNGER: Thank you.
CARR SMITH: And, Malia, you were saying that we can’t just omit that because it’s in the
Code as well?
HO: Yeah, I think, I think I would just, I would have to go check the Code and see — I wish,
actually, I should have brought that, too, I brought the Charter and the State Statutes, but I forgot
the Code to just make sure that we aren’t running a fall of the Code, but I can definitely have that
ready by the next meeting.
JACKSON: Malia, the exact language is in the Code.
HO: Okay.
JACKSON: Yeah. So we have to amend Code first, correct?
HO: Yeah.
JACKSON: What does the Commission’s —
CLARKSON: That’s the 75-foot aspect of it?
JACKSON: Yeah, so —
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CLARKSON: But I mean we could say that they have to, the reason for allowing buildings to
exceed the height limit in the zoning district is because there may be a good reason to
consolidate and go up?
ARAI: The real purpose for that Section is basically to say that since the purpose about P.U.D.
is to afford certain exceptions to the law, provided you do comprehensive site planning. The
Code is just saying you can do the exceptions but we are going to limit you to no more than 75
feet. So that’s all the provision is saying. You still have to provide the necessary justifications
on why you feel compelled to allow something to go beyond the standard 35 or 45 feet height
limit provided by any particular zone district.
CLARKSON: Thank you.
HO: But yet Chair Unger’s point is a good point, though; like they said earlier in the
presentation, you guys can get to pick and choose, you know, basically line item by line item and
you can deny what you want to deny and approve what you want to approve.
UNGER: Right, right. That’s Chapter 1through 3, 5 through 16, mostly minor discussions and
didn’t look like anything controversial. I think the challenge will be formulating a motion to
capture our discussion. So I open up the floor to a motion. I will start, but I’m going to need
help.
I move that the amendments to the County of Hawai‘i Planning Commission Rules of Practice
and Procedure, Chapters 1 through 3 and Chapters 5 through 16 be approved and adopted subject
to the following changes.
SHIMAOKA: And that’s it?
HO: I think basically it’s just making the revocation language consistent, and I guess you guys
can repeat me on this one: Creating consistent language with revocation, and everything else is
pretty much the same as what Maija said was the small changes of amendment, quoting the right
amended Code, and stuff like that.
UNGER: Commissioner Clarkson suggested some definition changes and additions as well.
Chapter 1(c) out, Chapter 1-5, new definition “Joint Commission Meeting.”
CLARKSON: Indeed, and that also would have, the Joint Commission definition there would be
some effect on Chapters 2, or Rule 2 Initiation of Rulemaking Procedures \[sic\] where
“Commission” has to be replaced with “Joint Commission,” —
UNGER: Delete —
CLARKSON: — and that would be the only, I think that’s the only rule where “Commission”
would have to be replaced with “Joint Commission,” just changing the rules.
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UNGER: One-three General Definitions, delete (c), I think that was appropriate; “Board” means
the Board of Appeals. One-five(a) Regular Meetings, “Regular meetings shall be held at least
once a month.” Maybe you could reword that to say that if there is agenda or otherwise
cancelled.
JACKSON: Okay, “Regular meeting shall be held -.” What about the “unless otherwise
specified by law?” Does that cover if we don’t have items for the agenda?
CLARKSON: Well, that’s why I brought it up. Does, “otherwise specified by law,” does the
law allow us to cancel meetings?
HO: Yeah, if there is nothing on the agenda, we, yeah, all the other agencies do it as well.
CLARKSON: Thank you. Then I, no change to that.
UNGER: And I think that was where the change is.
HO: Oh, and then making the language 7-5(a) consistent throughout as well.
UNGER: Right.
JACKSON: Okay.
UNGER: So —
CARR SMITH: I second the motion.
UNGER: We have a motion on the table. Open for discussion.
CARR SMITH: May I go first? I’m sorry I have to leave. I have an appointment in Hāmākua.
My, I support everything, but I have one concern and that is that we just, as a blanket move,
revoked our own authority to revoke Special Permits, variances, Shoreline Setbacks and SMAs.
I just want to make sure we know we did that just very quickly and easily. We didn’t talk about
doing that with the P.U.D.s, so I guess that remains with us. So just a comment. And I just want
to make sure that that’s a good thing that we did that.
UNGER: To clarify, I thought it was more specific, if a permittee wanted to voluntarily give up
his permit, he did not have to come to the Commission; he could go directly to the Director and
the Director now has the authority to revoke that permit. Any other case they still have to come
to the Planning Commission and we still have the authority to revoke a permission on our
authority. So it’s only very specific to streamline the process where a permittee with the permit
doesn’t want to do the permit any more, wants to give it up, he can just petition to the Director.
CARR SMITH: Okay, thank you.
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CLARKSON: And it was also my understanding that somebody thought to reconcile the P.U.D.
revocation, too; if somebody has a permit for Planned Unit Development and they want to give it
up, they don’t have to come and ask the Commission, they can just give it up by telling the
Director they want to give it up.
UNGER: Roll call.
JACKSON: Okay. Commissioner Carr Smith, you seconded the motion, so I think you have to
vote. \[Commissioner Carr Smith was about to leave the room.\] Okay, Chair Unger?
UNGER: Aye.
JACKSON: Commissioner Carr Smith?
CARR SMITH: Aye.
\[Commissioner Carr Smith left the meeting at 3:32 p.m.\]
JACKSON: And, Commissioner Kaholo?
KAHOLO: Aye.
JACKSON: Commissioner Kealoha?
KEALOHA: Aye.
JACKSON: Commissioner Nobriga?
NOBRIGA: Aye.
JACKSON: Commissioner Shimaoka?
SHIMAOKA: Aye.
JACKSON: Commissioner Clarkson?
CLARKSON: Aye.
JACKSON: Commissioner Ikeda?
IKEDA: Aye.
JACKSON: And Commissioner Henkel?
HENKEL: Aye.
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JACKSON: Okay, thank you very much.
UNGER: Thank you, County of Hawai‘i Department of Planning. Huge effort. I know you all
really worked hard to put this together, and took full advantage of the opportunity to change
some rules. We did rely a lot on your experience in issues that have come up in your day-to-day
business. So thank you for this effort. And we’ll continue to work through this process. We
look forward to Draft 2. And it’s our understanding that another joint Commission meeting will
be called, and we’ll basically start the process over reviewing Draft 2, and basically going
through the same format. So, thank you.
The discussion ended at 3:34 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
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