2017-11-15 KCDP Minutes Final - Laserfiche WebLink

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respective Action Committee. Then the Planning Director refers the proposed amendments to the Planning Commission for that body's comments and recommendations, to the County Council for its consideration and adoption. She explained that these proposed amendments are largely in response to the Missler lawsuit, which established the CDP documents as legally binding. An implication of this was an emergence of liability applied to the County and developers alike as they attempt to comply with the KCDP. She explained that this legal confusion has left the County and the Kona Action Committee members in a state of legal ambiguity. While all County districts were affected by this lawsuit, Kona is the most affected due to its specifically binding language. Since the Kona CDP is written in recommendatory language as well as mandatory language, understanding with absolute clarity which policies are legally binding has been important but difficult. She described the process of going through the KCDP to find where legally binding language (often signified with the word "shall") may cause unexpected consequences. As an example of the potentially excessive use of the word shall, Ms. Pisicchio provided the following quote of Policy PUB -3.4, Universal Access: "As its expression of compassion and caring, the Kona community shall take pride in having all public facilities accessible to the disabled and respectful of the accessible parking stalls." Ms. Pisicchio explained that this usage of the word "shall" has aspirational motivations and cannot reasonably be complied with. She explained that much of their work revising the KCDP was to replace such mandatory statements that were intended to be more aspirational or discretionary, with less litigious language. Mr. Takemoto explained that he and Ms. Pisicchio had been involved in the Kona CDP creation and adoption process from the beginning and hoped that their understanding of the intent behind the language drafted at the time, as well as their knowledge of the outcome of the Missler lawsuit, would provide a well-rounded view of the most appropriate revisions. He also mentioned the importance of getting input from the Action Committee. Mr. Takemoto stated that within the adoption of the Kona CDP in 2008, there were no concurrent Hawai'i County Code ("HCC" or "the Code") amendments submitted, and that this affected the legal viability of the plan from the beginning. Mr. Takemoto explained two guiding principles when amending the Code: that one should not change the meaning of the Code but instead further define or supplement the Code provisions that already exist; and that any supplements to the Code need to be regionally specific. He displayed their proposed ordinance which would amend the Kona CDP, which stated that the substance of the amendments would be in Exhibit A (Kona CDP communication number 2017-03) incorporated by attachment. He further explained that the exhibit is only an extract (or compendium) of policies within the KCDP because the Missler lawsuit established that "actions" do not have the force and effect of law. Mr. Takemoto explained that while there are opportunities for a developer to deviate from a recommendatory policy and use it only as a guideline, there should be an explanation as to why they have chosen to do that. Ms. Pisicchio added that any known deviation from the CDP needs to be acknowledged. Mr. Takemoto displayed Exhibit A: Kona CDP Amendments on a projection screen and scrolled through the document providing input on areas where they had altered the wording of the document (shown in blue.) Listed below are explanations on the specific proposed changes to the CDP. While all of the proposed policy amendments were displayed in the presentation, only those which were addressed by Mr. Takemoto are reflected in these meeting minutes. A complete view of the amendments is shown in Communication number 2017-03 CDP Proposed Amendments. www.hiplanninjdept.com kona(iihawaiicountv.Qov Page 4