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HomeMy WebLinkAboutMIN CHC 1989-12-14 tr Minutresv: of Regular Meeting 11 of the HAWAII COJNTY CHARTER COMMISSION December 14 , 1989 I . CALL TO ORDER: Chairman Bethea called the meeting to order at approximately 1 : 35 p.m. at the Parker Ranch Restaurant , Waimea, Hawaii . II. ROLL CALL: Members Robert E. Bethea, Chairman Present: Sherwood Greenwell , Vice Chairman Pamela F. Cushnie Francine Duncan David Fuertes James O. Juvik H. Peter L'Orange Aileen Lum Steven T. Nishikawa Akira T. Omonaka Attorney: Christopher Yuen Secretary:R. Marie Jacobs Member Patricia M. .Poppe. Absent : III. APPROVE MINUTES OF 11/30/89 : Upon motion made by Mr. Greenwell and seconded by Ms . Cushnie, approval of the minutes was deferred until the next meeting. IV. AGENDA ITEM NO. 4 : 1990-91 Budget Upon authorization of the commission, Chairman Bethea estimated that $70 , 000 would be necessary. V. GENERAL: Chairman Bethea noted that a 12/13/89 letter from Gary Mizuno of the Planning Commission was passed out . To enable commission members to review the letter , the item will be placed on the next agenda (Exhibit A) . VI. PUBLIC TESTIMONY OFFERED: None. 700 VII . AGENDA ITEM NO. 5: General Plan, Sec. 3-16: A. Introduction. Chairman Bethea summarized the previous meeting' s discussions : Decided to expand on the reference to "air Pollution" and change the words to "environmental quality. " But the commission did not agree on how to handle the rest of the general plan section. B. Discussion: Taka Domingo, Councilperson (Exhibit B ) and Bill Moore, Planning Department , were present and addressed the issue. Discussion took place. L'Orange: Questioned whether Mr. Moore agreed with Mr. Domingo ' s Exhibit B. Moore: Reminded commission of his 03/17/89 letter (Exhibit C; also pages 421-425 of previous minutes) , page 3 , which requested no changes to this section (Tape 1 : 1 : 39) . Juvik: Said interest was expressed in mandating community or regional development plans within the Charter. These plans are prepared by the Planning Department for selected areas; some are already developed, some are in progress of developing. Questioned whether the Charter should mandate the creation of these plans and/or periodic review of regional plans to strengthen the position of the Planning Department to enable it to have the necessary resources to proceed with these documents . Moore: Unsure whether that ' s the answer. Development plans (environment , historical) work with geographical areas ; also have functional plans (parks) ; both set priorities . Flexi- bility of general plan allows Planning Department to deal with target areas . Domingo: Also have urban plans. All plans support/compliment the general plan, made possibile by flexibility. Cushnie: Directed a question to either Mr. Domingo or Mr Moore on whether or not they were able to keep up with a mandatory review every four years. Domingo: No. Cushnie: Questioned whether Planning plays a catch-up game with the general plan (i . e. handling critical items) . Moore: Every five years , they review map portion/land use of general plan; every ten years , review various documents. So the 10-year process took 7 years to implement. Cushnie: Some were concerned with long duration of time during which zoning changes were requested (Tape 1: 1: 30) . Moore: Is concerned with working on compre- hensive amendment process and working on piecemeal 701 amendments at the same time. Did fall behind with the amendments. Cushnie: Could Charter change allow you to catch up? Moore: There are sufficient provisions in the general plan to address that now. Planning Director right now can defer consideration of general amendments . Cushnie: Questioned whether general plan should be above political process . Moore: The land use policy is partly a political process and needs to be dealt with care- fully. Both state constitution and Charter provide for a careful review. Direction changes with people in office. Cushnie: Doesn' t feel the general plan review should be spread out over ten years . Moore: Need to better handle the item administratively. Have better focus , have resources available, and don' t drag things out. Cushnie: Questioned whether Council should be reviewing general plan progress every four years . Domingo: Administration and Council personnel changes cause different philosophies to come into play. Have learned a lesson; plan to insure that certain changes are made within the ordinance (Tape 1 : 1 : 25)--remove some of the kinks that caused delay. Land use change requests require a lot of review time. Moore: General Plan allows reviews on a policy basis. Zoning allows very specific review areas . L'Orange: Previous Planning Director rewrote/reviewed plan continuously; could not delegate review. Cushnie: Questioned whether Planning took into consideration property taxes when zoning. Moore: Don' t consider property taxes but , the service or cost of revenue implications. Juvik: Questioned administration' s power over rezoning and its connection with political campaigns. Domingo: That is a concern; can only rely on the honesty and integrity of the Planning Commission members. Greenwell : General Plan is becoming more comprehensive rather than becoming more general in detail . Questioned whether Mr. Moore felt change needed to be made re "air pollution" and environment . Moore: Felt it unnecessary. Domingo: Inserting word "environment" in the instance spoken of here has not been brought up before by those addressing general plan issues . C. Motion: Mr . Greenwell made a motion to accept Section 3-16 of the General Plan as is; the motion was seconded by Mr. Omonaka. Chairman Bethea said this motion should also be subject to changing the wording 702 from"air pollution" to "environmental quality" which was unanimously approved previously. D. Further Discussion: Greenwell : Mr. Moore felt the change in wording was not needed. Duncan: Would rather wording change not be ignored. Bethea: Wording can be included in a "housekeeping" list . Juvik: Questioned whether Chairman Bethea charged the Mr. Yuen with redrafting the language in the sentence above. Bethea: Chris Yuen prepared a letter re the wording change, which secretary had not received yet . L'Orange: Wants to vote on the motion on the floor to see if the commission generally concurs . Juvik: Wants to see revised description of wording before voting on motion. Omonaka: If concerned with small items like wording, voters will be overwhelmed with items to vote on (Tape 1 : 2: 45) . Duncan: Feels wording is important. Yuen: Reworded the sentence to read: " . . .with respect to: " and "air pollution" was changed to "air and water pollution and environmental quality. " Bethea: Asked whether a vote can be taken on the verbal changes noted by Mr. Yuen. E. Count on Motion: Chairman Bethea asked for all those in favor of motion, which is to retain wording exactly as it is : In Favor: S. Greenwell Opposed: R. Bethea P. L'Orange P. Cushnie S. Nishikawa F. Duncan A. Omonaka D. Fuertes J. Juvik A. Lum • The motion made by Mr. Greenwell did not pass. F. Motion: L'Orange: Made a motion that the Charter Commission accept in principal the proposed wording changes suggested by Mr. Yuen. The motion was seconded by Dr. Juvik. L'Orange: Moves to preface this motion with the words , "As a housekeeping measure, " . Dr. Juvik seconded the second portion of the motion. Discussion: Bethea: If this is approved, it should be listed as a housekeeping item for voters. L'Orange: Amended motion to state same. Cushnie/Omonaka: Would like to see the wording changes in writing before approving a motion. Bethea: Wants secretary to begin a 703 housekeeping list of smaller items to be presented to voters. Juvik: Can review lists later. Count on Motion: Nine were in favor; Mr. Omonaka was opposed to the motion. Motion carried. Further Discussion: Juvik: Questioned whether the original motion needed to be re-stated. Bethea: Explained that the votes were nine in favor of accept- ing Sec. 3-16 as is with the exception of the changes in wording suggested by Mr. Yuen. VIII . AGENDA ITEM NO. 6: DEPUTY/SECRETARY POSITIONS A. Discussion: Bethea: Art. IV, Sec. 4-5 and 4-5 (a) . Mayor has power to appoint; unless Council funds it , the appointment will not take place (Tape 1 : 2 : 36) . Mr. Greenwell said previously that agency head should be able to appoint deputy. Asked whether any other portion of the Charter needed to be changed to insure that Council would mandate the funding. If commission agrees with him, then last sentence of (a) should be deleted. Second item: put a period after "private secretary" and eliminate the rest of the sentence. L'Orange: Feels that if deputy positions are to be created, that it should be so stated under each department in the Charter as well as in Sec. 4-5. Bethea: Would include all agencies except Corporation Counsel ' s office. Said if you want to make it effective, that it be mandated to be funded. Suggested wording say that each executive agency have the power to appoint a deputy and require in this section that the Council fund the position(s) . Yuen: Do not need clause that says position(s) must be funded. Bethea: Feels funding should be mentioned (Tape 1: 2: 31) . Suggested language: " (a) Appoint and remove a deputy or assistant or private secretary, which positions shall be appropriately funded by the Council . " Omonaka: Suggested Council should have some checks and balances so deputies aren' t brought in when they aren' t needed. Greenwell: Executive branch should be able to improve its efficiency by appointing deputy. Executive branch is controlled by Council . Omonaka: Finance doesn' t have deputy. Greenwell : He should have. Omonaka: But if you include provision under every department , you will dislodge the checks and balances . Juvik: Question of whether deputy is awarded to particular department should be left to discretion of 704 administration and Council . Greenwell : Deputies should be appointed by the administration. B. Motion: Mr. Greenwell made a motion to alter the wording of Sec. 4-5 (a) : "Appoint and remove a deputy or assistant and a private secretary, and such positions shall be exempt from civil service laws and classifica- tions , unless specifically stated in the Charter. " C. Further Discussion: Greenwell: It ' s automatically funded if the second sentence is deleted. Bethea: Mr. Yuen suggested that the administrative head have the power to appoint and the Council fund. Mr . Yuen should prepare language for us next meeting to specifically vote on accomplishing this . D. Count on Motion: There was no second to the motion; the motion failed. E. Further Discussion: Cushnie: Discussed memo of 12/8/89 from secretary (Exhibit D ) . Yuen: Mr. Luke is merely addressing technical issue stating these employees are exempt , where they in reality are not exempt . Bethea: Motion has been made to leave Sec. 4-5 (a) as it is with respect to Council approving the position(s) and appropriating money. F. Further Count on Motion: Mr. Fuertes seconded the motion. G. Further Discussion: Greenwell : No one approved of a deputy for Finance Director before because no one liked the Finance Director . Juvik: Nothing precludes from including under each department , specific positions. L'Orange: If can handle the wording under each department separately, then has no objection to the motion. Should include Deputy Managing Director in the Charter. Feels necessary for Finance Director to have deputy. Bethea: Feels Finance deputy should be mandated. Juvik: Not unreasonable to have mandated Parks deputy, and such other staff as shall be mandated by the Council (Tape 1 : 2 : 14) . Bethea: The motion on the floor is to leave this section exactly as is , to put period after "secretary" and delete rest . Juvik: Said to leave it all as is. Bethea: Objects because wouldn' t agree with State law. Omonaka: Whatever is not in accordance with state laws in the Charter should be deleted. L 'Orange: After we review 705 Charter, Mr. Yuen should lastly review changes to make sure all conforms with state law. H. Further Count on Motion: Mr. Bethea requested all those in favor of the motion to raise their hands. All were in favor except Dr. Juvik and Mr. Bethea who opposed motion; motion passed. IX. GENERAL ITEM: Procedure A. Motion: L'Orange: Makes a motion that Mr. Yuen be instructed to review all approved changes by the Charter Commission and insure that they conform to state law and remove those sections that do not. This is a housekeeping measure. Mr. Omonaka seconded the motion. B. Count on Motion: All were in favor of the motion and the motion carried. X. AGENDA ITEM NO. 7: Police Commission A. Bethea: Committee was appointed to review items . Lum: Committee defers discussion of this until the next meeting. XI . AGENDA ITEM NO. 8 : Council A. Motion: L'Orange: Motion to defer this item to the next agenda; seconded by Dr. Juvik. B. Discussion: Omonaka: Questioned why the item was deferred. Cushnie: Questioned whether any part of this item could be discussed. L'Orange: Said discussed part of item previously and commission did not have majority of six votes. C. Count on Motion: All were in favor of the motion with the exception of Mr. Omonaka, who opposed. Motion passed. XII . SET NEXT MEETING: Next meeting will be set for January 5 , 1990 at 3 p.m. , in the Waimea area. XIII . ADJOURNMENT: Chairman Bethea adjourned the meeting at approximately 3 : 28 p.m. Respectfully submitted, R. Marie Ja obs Secretary-Assistant 706 1 • Bernard K.Akana ; j- •Aa% Planning Commission Mayor •• r 25 Aupuni Street,Rm.109•Hilo,Hawaii 96720• (801ri) 961-8288 %N'"61 /• Hp4' December 13, 1989 Robert Bethea, Esq. Chairman Hawaii County Charter Commission Hilo Lagoon Centre 101 Aupuni Street, Suite 235 Hilo, Hawaii 96720 Dear Chairman Bethea: I am writing to you on behalf of the Hawaii County Planning Commission to seek your assistance in clarifying a procedural problem in voting and to also voice our opinion concerning our duties . The background for this request concerns interpretations of the current charter by the corporation counsel ' s office. As you may be aware, the planning commission serves two functions, as an advisory body making recommendations of approval or rejection for subdivision or zoning ordinance changes . The commission has final authority for such other matters as appeals from the director, special use permits, and variances . We have always been guided by Hawaii County Charter, section 13-4 ( i) , which states : The affirmative vote of a majority of the entire membership shall be necessary to make any action of a board or commission valid; provided, that in the case of ( an) advisory board or commission, the affirmative vote of a majority of those present shall be sufficient to make any action valid. Prior to last year, the commission had worked under the premise that where a recommendation was being made, then the commission was only advisory and a majority of those members present was needed to sustain an action. Conversely, when a final action was to be taken, then a majority of the full commission would be needed to approve any action. EXHIBIT A 707 (14 pgs . ) • Robert Bethea, Esq. Page 2 December 13, 1989 However, the corporation counsel ' s opinion rendered subsequently indicates that the planning commission is not an "advisory board or commission" within the meaning of § l3-4 (i ) and 4-4 of the charter , since the planning commission does have some final authority in several areas in sometimes acting in an addition to advisory capacity. Therefore, the corporation counsel ' s opinion is that all of the planning commission' s votes shall be by a majority of five, since it is entitled to nine members. We ask that the charter commission clarify the present language to state explicitly what our votes must be in the different situations . Furthermore, we wish to clarify the wording "majority of the entire membership, " the corporation counsel has stated this means the total membership to which the commission is entitled, i .e. , nine people . At some points in time, we have fewer than nine members actually appointed and would like to know if these vacancies should also be counted toward total membership. I 'm sure your clarification of that point would be greatly appreciated not only by this commission, but others as well. I have enclosed the three opinions of the corporation counsel which have raised these issues for your review. Finally, the commission wishes to express that it feels that its current duties and responsibilities are proper and would like to see that those duties and responsibilities remain with the commission. I hope that this input is timely and that the Charter Commission will be able to consider our requests . I or other members of the commission would be more than happy to appear before the commission should you feel it necessary. Sincerely yours, GAW4IZUND, A0Trirman GT:hc Planning Commission Enclosures cc : Mayor Corporation Counsel Planning Director 708 December 11, 1972 Mr. Raymond Suefuji Planning Director County of Hawaii Hilo, Hawaii 96720 Dear Mr. Suefuji : Re : Planning Commission Voting. Article XIII, Section 13-4 (i) , Charter, County of Hawaii, provides : "The affirmative vote of a majority of the entire membership shall be necessary to make any action of a board or commission valid: provided, that in the case of advisory board or commission the affirmative vote of a majority of those present shall be sufficient to make any action valid. " Thus, when one desires to determine the number of votes necessary for a particular vote, a determination must first be made as to whether the commission is acting in an advisory capacity or in a policy-making capacity. In_.;tho_se_ instances.__ where the commission is acting._ in_an._ad_vis.ory_ ca�?acity_,_an _ affirmative vote of the members present_is. all.__that is-._.needed. In the case of the Planning Commission in such an instance, such a number would mean at least a majority of a quorum or in other words, three votes--assuming that the Commission consisted of nine members. However, when the_ Planning.,Ccmmission is acting in_. other than an advisory capacity,_,__suc h as in_ acting- upon_.a varance_request-or .uses permit., an, of frmative vote o_f a majority; of the entire membership is necessary. Thus, in the case of a Planning Commission consisting of nine members, five votes would be necessary to allow for a variance or use permit. 709 Mr. Raymond Suefuji -2- December 11, 1972 If a request for a use permit or variance is brought up before the Commission for a vote and it fails to gain the support of five members of the Commission, the request dies. If a request for a variance or use permit is denied, i.e. , it fails to receive five affirmative votes, no new application for the same relief covering all or any portion of the property involved in the original application will be received by the Planning Commission for a period of two (2) years from the effective date of the final denial of the original application. (See Subsection B, Section 35, Ordinance 63) This office is cognizant of the fact that only seven of the nine positions on the Planning Commission have been filled at this time. We have been informed that this has caused a continuing difficulty in gaining a sufficient number of persons to conduct the business of the Commission. It should be noted that the comments above were applied to a Commission consisting of nine members. The fact that the Charter requires the "affirmative vote of a majority of the entire membership" (emphasis added) creates the necessity of an opinion as to what "of the entire membership" means. We believe that an affirmative vote of the majority of the entire membership means an affirmative vote of a majority of the members actually appointed to the Commission. Thus, despite the fact that the law provides for a commission of nine persons, if the Planning Commission actually has only seven appointed members, the number of votes needed to act in a non-advisory capacity would be a majority of seven, or four members. To hold that "an affirmative vote of a majority of the entire membership" is five of nine regardless of the number of members actually appointed to the Commission may lead to an absurdity. If, for instance, it was only possible to appoint four members to the Commission, the Planning Commission could never take any affirmative action on an application for a variance. Section 1-15, .Hawaii Revised Statutes, provides that every construction which leads to an absurdity shall be rejected. We follow Section 1-15, HRS, in making our inter- pretation. r Addressing our attention to the problem presented by Quality Sheet Metal Co. , Ltd. ' s variance request on December 22, 1971, we make the following comments: 710 Mr. Raymond Suefuji -3- December 11, 1972 Since the Commission consisted of nine appointed members at the time the variance was considered, five affirmative votes of the Commission were needed to approve the request. Failing to get five affirmative votes, the appli- cation died and Quality Sheet Metal Co. , Ltd. , must make application in compliance with Subsection B, Section 35, Ordinance No. 63. As stated above, the effect of failing to receive five affirmative votes is that the variance application is defeated. As to the similar question created by a variance request by Economy Motors, the above reasoning should be followed. It would appear from the information submitted with your request that the variance request of Economy Motors was defeated regardless of whether or not seven or nine members were actually appointed to the Commission at the time the request was considered. We wish to call to your attention an inconsistency between Section 13-4 (i) of the County Charter and Rule I (D and E) , Rules for the Transaction of Business , Planning Commission, concerning voting procedures. Under Section 13-4 (i) , a vote of the majority (of the members appointed) is necessary to transact business, whereas, under Rule I (D and E) , Robert' s Rules of Order prevails requiring a vote of the majority (of the members appointed) present at the hearing to transact business. It is our recommendation that your staff discuss and decide which procedure is most advantageous for the conduct of your business and amendments to the Charter or your Rules be enacted accordingly. Until such time that a decision is made, Section 13-4 (i) of the Charter must be followed. That is, in order to approve 711 • Mr. Raymond Suefuji -4- December 11, 1972 a variance or special use, an affirmative vote of a majority of all the members appointed is necessary; an affirmative vote of a mere majority of the appointed members present is not sufficient. Thus, if your Commission consists of seven members, four affirmative votes will be required. Very truly yours, STEPHEN G. BESS Deputy Corporation Counsel SGB :ds cc: Mayor APPROVED: CLIFFORD H. F. LUM Corporation Counsel 712 I 'oo••---4;'0;---7,''..... . • . / DANTE K. CARPENTER LT�' .�: MAYOR •• '.` '- `l.:• r :• 3 y�-_� : CORPORATION COUNSEL .'+r°. M':Mow�.` TELEPHONE NO. (808) 961-8251 P ,rE_OF HF'��� ' COPY COUNTY OF HAWAII y,�;� OFFICE OF THE CORPORATION COUNSEL HILO LAGOON CENTER 101 AUPUNI STREET,SUITE 325 HILO. HI 96720 January 12, 1988 Mr. Thomas A. Krieger Chairman, Planning Commission County of Hawaii . 25 Aupuni Street Hilo, Hawaii 96720 • Dear Mr . Krieger : • Re : Voting by Planning Commission Members This is in response to your request for comments on the following topics. 1 . Voting procedures when voting on zoning and general plan amendments. The planning commission ' s role as established by the county chatter on both zoning and general plan amendments is to make a recommendation to the county council on the proposed amendment. The language regarding the procedures is similar . For zonings, §5-4 . 3 (c) states as follows: "Review subdivision ana zoning ordinances and amendments thereto drafted by the director and transmit such ordinances with recommendations thereon through the mayor to the council for consideration and action. The commission shall recommend approval, in whole or in part, with or without modifications, or rejection of such ordinances. " For general plan amendments , §5-4 . 3 (b) states as follows: 713 1 Mr . Thomas A. Krieger Page 2 January 12, 1988 "Review the general plan, its amendments and other plans and modifications thereof and transmit such plans with recommendations thereon through the mayor to the council for consideration and action. The commission shall recommend approval , in whole or in part, with or without modifications, or rejection of such plans. " According to these charter sections, the commission is required to (1) recommend approval with or without amendments , or (2) recommend rejection. .No alternatives are presented. In relevant part, section 13-4 (c) describes the vote necessary to make the required recommendation as follows: "The affirmative vote of a majority of the entire membership shall be necessary to make any action of a board or commission valid; . . . . " A valid vote of the planning commission requires five votes. This five-vote requirement is based on the assumption that commission members will satisfy their commission duties by attending meetings regularly. Since it may be difficult to get five votes on an issue, if only a majority of planning commission members attend, members who have accepted the responsibility of service on the commission should make every effort to attend each meeting of the commission. If the commission has to re-vote on issues because of a lack of a majority, it is inconvenient and results in unnecessary time delays on these important issues. Commission members should attend all meetings unless excused by the chair . As lack of attendance presents a problem, the commission should consider amending its rules of procedure to make unexcused absences a cause for the commission to recommend removal of the offending member to the mayor . I am available to assist you in drafting such a rule. • 2. Propriety of a member abstaining from votira. Another obstacle to obtaining the necessary five-vote majority is presented when members who have participated in the 714 Nir . Thomas A. Krieger Page 3 January 12, 1988 hearings and who are present abstain from voting . Of course, if there are ethical considerations , such as a conflict of interest, which prevent a commission member from participating , the member should declare the problem and abstain from participation in the hearing as well as from voting . If, however , no ethical problem presents itself , each member should realize that a chief duty and responsibility of commission membership is voting on these issues. In the absence of a conflict of interest, failure to vote on a matter that is pending before the commission is a failure to perform the sworn duties of a planning commissioner and is therefore improper . Very truly yours, „-;-/ iiTHN AWAGNERrporation Counsel l i PKO:h • 715 • . ..... . VI ••4oJM`�of�'';' COPY BERNARD K. AKANA : .; , :. RICHARD I. MIYAMOTO MAYOR • /• CORPORATION COUNSEL TELEPHONE NO. (808)961-8251 COUNTY OF HAWAII • OFFICE OF THE CORPORATION COUNSEL HILO LAGOON CENTRE 101 AUPUNI STREET,SUITE 325 HILO,HI 96720 • March 20, 1989 Mr . Gary Mizuno, Chairman Planning Commission County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Dear Mr . Mizuno : Re: Votes needed by the Planning Commission to take action when there are vacancies This is in response to your letter of March 13, 1989 , in which you requested that our office review the voting procedures with respect to the number of votes necessary for the Planning Commission to take action on a matter before it . This office has advised the commission that five votes, a majority of all the seats of the nine-member commission are necessary if the commission is to take action. The commission has experienced difficulty in obtaining the needed five votes partly because there are two vacancies on the commission and partly because not all of the members attend all of the meetings . Section 13-4 (i) of the Hawaii County Charter states : "The affirmative vote of the majority of the entire membership shall be necessary to make any action of a board or commission valid; provided, that in the case of advisory board or commission the affirmative vote of a majority of those present shall be sufficient to make any action valid. " At present, the Planning Commission, which consists of nine positions, has two vacancies .' An opinion given by the Office of Corporation Counsel to then Planning Director Raymond Suefuji on December 11, 1972, interpreted the term 716 Mr. Gary Mizuno Page 2 March 20, 1989 "a majority of the entire membership" to mean "a majority of the members actually appointed to the Commission. " [See Exhibit A] . Under that interpretation, if only seven members of the Commission are actually serving as members, and there are two vacancies, an affirmative vote of four members would be sufficient to "make any action. . .valid. " Recently, however, the Planning Commission was verbally advised, at a meeting, that "a majority of the entire membership" meant a majority of the total number of seats on the board or commission, regardless of the number actually filled. Under this interpretation, even if there are two vacancies on a nine-member commission, an affirmative vote of five members is still required to "make any action. . .valid. " After researching this issue, it is the opinion of this office that five affirmative votes are necessary to validate an action of the Planning Commission. Under the common law, a majority of a body such as a board or commission constituted a quorum, and the vote of a majority of those present was sufficient for valid action by the body. Mann v . Key, 345 So . 2d 293 (Ala . 1977) ; Annot . 63 A.L.R. 3d 1072, 1077 . This has changed: "The applicability of such common-law rule has , however, been very generally limited, in more recent times, by statutes which establish specific bases upon which to calculate and determine the requisite majority. " 63 A.L.R. 3d 1072 , 1077 . Hawaii is one of the jurisdictions in which statutory law has changed the old rule. Section 92-15 of the Hawaii Revised Statutes provides as follows : "Boards and commissions ; guorum; number of votes • necessary to validate acts . Whenever the number of members necessary to validate any act, of. any board or commission of the state or of any political subdivision thereof, is not specified in the law or ordinance creating the same or in any other law or ordinance, a majority of all the members to which the board, or commission is entitled shall constitute a quorum to do business, and the concurrence of a majority of all the members to which a board or commission is entitled shall be necessary to make any action of the board or commission valid; . . . . HRS X92-15, as amended . [Emphasis supplied] . 717 1 Mr. Gary Mizuno Page 3 March 20, 1989 The state statute thus provides that a majority of the members to which a commission is entitled (five out of nine in the case of the planning commission) is necessary to validate the action, unless an ordinance or other law provides otherwise. It therefore becomes necessary to determine whether charter section 13-4 (i) provides differently from HRS §92-15 . Charter provisions and statutes are to be reconciled and not regarded as superseding each other where there is no irreconcilable conflict between them. 6 McQuillin, Municipal Corporations, §21 . 31. Therefore, if there is authority supporting an interpretation of Hawaii County Charter §13-4 (i) which makes it consistent with HRS §92-15, then that consistent position should be adopted. Although there is authority supporting the opinion of December 11, 1972 [see Ram Development Co. v. Shaw, 244 N.W.2d 110 (Minn. 1976) ; City of 'Alamo Heights v. Gerety, 264 S.W.2d 778 (Tex. Civ. App. 1954) ] , the greater number of cases supports the position that the term "entire membership" means the same as "all the members to which a board or commission is entitled, " thus making the charter section consistent with the state statute. A recent case dealing with this issue is found in Braddy v. Zych, 702 S.W. 2d 491 (Mo . App. 1985) which dealt with the required number of votes to pass an ordinance by the St . Louis Board of Alderman. Ordinances had been passed by the board and then vetoed by the Mayor. The city charter required that a two-thirds vote of the board was required to overturn a veto. The board consisted of twenty-nine members, with a president elected at large and twenty-eight alderman elected from wards within the city. In Braddy, the board voted on overturning the veto, which resulted in 19 votes in favor, 6 against, 3 absent, and 1 vacancy. The president of the board ruled that the veto had been overridden, because two thirds of the actual membership of the board voted • favorably, with the number of alderman reduced by the single vacancy. The court disagreed with this interpretation and ruled that the term "all the members" means all of the members to which the board is entitled: "Treating the language ' all the members ' as referring to the entire Board as defined in the Charter creates a predictability and definiteness in the requirements for the enaction of laws . It also gives substance to the charter scheme that representatives of sufficient wards to adequately represent the residents of the city support an enactment before it becomes binding on 718 Mr. Gary Mizuno Page 4 March 20, 1989 the city as a whole. Interpreting ' all the members ' to be less than the full board established by the Charter creates the possibility that legislation may be enacted which has support in less than the required number of wards ." 702 S.W. 2d at 493-494 . This reasoning has significance for the Hawaii County Charter, because the Planning Commission has members appointed geographically. Hawaii County Charter §5-4 . 3 . To allow the interpretation that the commission could take action with less than a majority of all the positions to which the commission is entitled would be to allow action without insuring the widest possible geographical input . It would also remove an incentive for the mayor to appoint commission members as quickly as possible. It could lead to .a situation in which a mayor, who is politically compatible with seven remaining commissioners and unable to find two additional politically compatible, geographically qualified appointees, simply decides to keep the commission operating with seven members, despite the fact that the charter requires nine. The difficulties caused by the requirement that five affirmative votes be obtained in order to take action act as the incentive to keepeach seat Son the commission occupied. A number of other jurisdictions come to the same conclusion as Missouri . In Steiner Inc. v. Town Plan and Zoning Commission of the Town of Fairfield, 175 A. 2d 559 (Conn. 1961) , the Connecticut Supreme Court ruled that statutes requiring a vote of two-thirds of "all the members" for action meant that five affirmative votes were necessary from the seven position' commission even where an unfilled vacancy reduced the actual membership to six. In Rocklands Woods , Inc . v. Suffern, 40 App. Div. 2d 385, 340 N.Y.S.2d 513 (1973) , the court held that where a vacancy reduced a five member village board of trustees to four members, a vote of two affirmative, one negative, and one abstention was insufficient to amend the village' s zoning ordinance. In State ex. rel . Roberts v. Gruber, 373 P.2d 657 (Or. 1962) , the specific term "entire membership" was held to mean all of the positions to which a council was entitled. • The state of New Jersey also concurs. In Country Club Towers Tenants Association v. Country Club Towers I and II, 195 N.J. Super 110, 478 A. 2d 420 (N.J.. Super 1984) , the town municipal council, which had seven positions, and two unfilled vacancies, 719 Mr. Gary Mizuno Page 5 March 20, 1989 voted 3-2 to reverse a prior ordinance. The court ruled that the vote was a nullity, because the law required action by a majority of "allthe members, " and that meant four out of seven. See also South Hamilton Association v_.. Mayor of Morristown, 99 N.J. 437, 493 A.2d 523 (1985) . Therefore, this office concludes that the meaning of "entire membership" as it is used in §13-4 (i) of the Hawaii County Charter means the same as "all the members to which the board or commission is entitled" as stated in HRS §92-15 . Even though there are two current vacancies on the Planning Commission, five affirmative votes are necessary to take action. Please contact this office if there are any questions . Very truly yours, RICHARD I . MIYAMOTO Corporation Counsel ` By 7 i/ FREDERICK GIANNINI Deputy Corporation Counsel FG:mo 720 ...... F Nqh'',' TAKASHI DOMINGO X,,9' Councilman COUNTY COUNCIL COUNTY OF HAWAII HAWAII COUNTY BUILDING 25 AUPUNI STREET HILO, HAWAII 96720 TESTIMONY ' HAWAII CHARTER COMMISSION DECEMBER 14 , 1989 COUNCILMAN TAKASHI DOMINGO CHAIRMAN BETHEA, CO-CHAIRMAN GREENWELL AND MEMBERS OF THE HAWAII CHARTER COMMISSION, MY NAME IS TAKASHI DOMINGO. I AM THE CHAIRMAN OF THE PLANNING COMMITTEE OF THE HAWAII COUNTY COUNCIL. I WOULD LIKE TO THANK YOU FOR GIVING ME THIS OPPORTUNITY TO ADDRESS THE COMMISSION AND TO SHARE WITH YOU MY THOUGHTS ON ARTICLE III, SECTION 3-16 OF THE COUNTY CHARTER, RELATING TO THE COUNTY GENERAL PLAN. THE FIRST THOUGHT THAT CAME TO MY MIND WHEN I SAT DOWN TO DRAFT THIS TESTIMONY IS THAT THERE IS REALLY NOTHING WRONG WITH THIS PROVISION OF THE CHARTER, AND THIS IS THE MESSAGE THAT I WOULD LIKE TO CONVEY TO THE COMMISSION TODAY. WE HAVE A VERY GOOD GENERAL PLAN. AS ALL OF YOU KNOW, REVISIONS TO THE GENERAL PLAN WERE ONLY RECENTLY APPROVED AFTER MANY MONTHS OF MEETINGS, WORKSHOPS AND PUBLIC HEARINGS. ANYONE WHO IS AWARE OF WHAT THE PUBLIC, PLANNING COMMISSION, PLANNING DEPARTMENT AND COUNTY COUNCIL WENT THROUGH TO REVISE THE GENERAL PLAN WILL AGREE THAT THE PROCEDURE FOR AMENDING THE GENERAL PLAN DURING THE 10-YEAR REVIEW EXHIBIT B I 721 COUNTY COUNCIL County of Hawaii • Hawaii County Building Hilo, Hawaii 96720 PERIOD MUST BE SIMPLIFIED. MANY WILL ALSO CLAIM THAT OTHER PROVISIONS OF THE GENERAL PLAN SHOULD ALSO BE REVISED. WHILE THESE CLAIMS MAY BE TRUE, THERE ARE FLAWS ASSOCIATED WITH THE GENERAL PLAN DOCUMENT ITSELF AND NOT THE COUNTY CHARTER. AS I STATED EARLIER, I BELIEVE THAT SECTION 3-16 OF THE CHARTER SHOULD NOT UNDERGO ANY FORM OF REVISION. THE CHARTER SIMPLY STATES THAT THE COUNTY SHALL ADOPT A GENERAL PLAN AND GOES ON TO EXPLAIN IN DETAIL THE VARIOUS PLANNING ISSUES WHICH THE DOCUMENT SHOULD COVER. THIS IS HOW IT SHOULD BE. THE CHARTER PROVISION RELATING TO THE GENERAL PLAN SHOULD REMAIN BROAD IN SCOPE. IT SHOULD NOT CONTAIN DETAILED REQUIREMENTS WHICH MAY NOT BE RELEVANT A FEW YEARS FROM TODAY. DETAILED ISSUES SHOULD BE ADOPTED AND AMENDED, WHEN NECESSARY, BY ORDINANCE. ORDINANCES ARE SIMPLE TO AMEND, THE CHARTER IS NOT. AND, IT SHOULD BE NOTED THAT ORDINANCES ARE ADOPTED BY THE COUNTY COUNCIL, AFTER TWO HEARINGS, IN OPEN MEETINGS, THEREBY INSURING PUBLIC INPUT. AGAIN; I WOULD LIKE TO THANK YOU FOR GIVING ME THIS OPPORTUNITY TO ADDRESS THIS BODY. I WOULD ALSO LIKE TO COMMEND ALL OF YOU FOR YOUR WILLINGNESS TO SERVE ON THIS VERY IMPORTANT COMMISSION. 722 Bernard K. Akana Mayor Duane Kanuha Director pM;'..OF • " !+-`• William L. Moore .1*.- '\ Planning Department Deputy Director :: ••. 25 Aupuni Street, Rm. 109 • Hilo,Hawaii 96720 • (808) 961-8288 March 17, 1989 TO : Mr . Robert E . Bethea, Chairman /- and Members o the Charter Commission � 1��� / �' ` l �L , k--?,----k--?,----� FROM : Duane Ka-uha, Planning Director SUBJECT : COUNTY OF HAWAII PLANNING DEPARTMENT The Planning Department provides technical advice to the Mayor , Planning Commission, and the County Council on all planning and land use related matters . The Department is charged with the preparation and administration of the County General Plan, along with subdivision and zoning ordinances and attendant regulations which implement the General Plan. We also provide administrative and technical support to four ( 4 ) commissions and boards that are attached to the Department for administrative purposes : the Planning Commission, Board of Appeals, Kailua Village Design Commission, and the Arborist Advisory Council . The Planning Commission consists of nine ( 9 ) lay members appointed by the Mayor and confirmed by the County Council . Membership reflects representation of the geographic areas of Puna , Hilo , Ka ' u , Kohala , Hamakua and three ( 3 ) members sitting at-large . The Board of Appeals consists of seven ( 7 ) members who are appointed by the Mayos' and confirmed by the County Council . This hoard is administratively attached to the Department although it EXHIBIT C 723 hears and determines all appeals from the actions of the Chief Engineer on matters related to the building, plumbing , and electrical codes in addition to appeals of decisions by the Planning Director and Planning Commission. • There are currently twenty-six ( 26 ) permanent civil service employees , including seventeen ( 17 ) professional planners . In addition, there are three appointed positions consisting of the Director , Deputy Director, and Private Secretary. The Department has three major divisions, Kona services section and an Administrative Services Section. These divisions are Planning, Land Use Controls, and Special Projects . The • Department ' s operating budget for fiscal year 1988-89 is $974, 055 of which $141 , 500 is funded through the State of Hawaii to administer the State Coastal Zone Management (CZM) program . The Planning Division provides staff support to the Planning Commission, conducts long-range planning and plan implementation, and is responsible for resource management in the areas of historic sites review, environmental impact statement ( EIS ) assessment, and administration of the Coastal Zone Management ( CZM) program. This division is also responsible for the maintenance of the planning information systems including the computerized land use inventory and permit tracking system . The Land Use Control Division administers the subdivision control code , plan approval and project review, zoning enforcement , and other permit-related functions such as ohana zoning permits , administrative variances , grading permits , and special agreements . 724 Special Projects is responsible for coordinating the County ' s capital improvement program and consistency review of other State or governmental programs and projects . As required, this division implements code amendment's necessary to comply with newly adopted legislation . Staff support of the Arborist Advisory Council is also provided by this division. The Kona Services Section is currently staffed by two ( 2 ) planners . This office provides the full range of land use consultation, plan approval services, and assists in inspection and code enforcement, in addition to coordinating the activities of the Kailua Village Design Commission. Finally, the Administrative service section provides administrative support functions for all divisions in the form of clerical , accounting, and drafting activities . The sections of the Charter directly impacting the Department include Article III , Section 3-16 relating to General Plan, Article V, Chapter 4 relating to Planning Department , and Chapter 5 relating to Planning Commission and Section 5-6 . 3 relating to Board of Appeals . We concur the current language in Article III , Section 3-16 , relating to the General Plan and Article V, Chapter 4 relating to the Planning Department and do not recommend any amendments thereto . With respect to Section 5-4 . 3 relating to the Planning Commission , we ask that you consider the following amendments : 1 . Amend Section 5-4 . 3 ( e ) by deleting it in its entirety . Under the State Land Use Commission regulations , the Planning Director , as opposed to the Planning 725 • Commission, is a party in state land use boundary proceedings . Consequently, the responsibility of the .Planning Commission to review such changes is not consistent with current requirements . 2 . Amend Section 5-4 . 3 ( f ) by deleting it in its entirety . The Director no longer has the authority to deny change of zone requests , consequently, there is nothing to appeal to the Commission . Other actions of the Planning Director are directly appealable to the Board of Appeals . 3 . Amend Section 5-4 . 3 ( h) as follows : Hold public hearings whenever necessary and in every case prior to [ the grantingof ] action on anyrezoning request, variance, special exception, or other related applications . Notice of the time and place of the hearing shall be published at least ten days prior to such hearing in a daily newspaper of general circulation in the county. The Planning Commission does not have the authority to "grant" rezoning request . It is advisory to the County Council on these matters . However , on other permits , they are the decision-making authority. To accommodate the different types of duties, we are suggesting wording whereby a public hearing is required prior to any action by the Commission . 726 With respect to Chapter 6 , Section 5-6 . 3 relating to Board of Appeal , we ask that you consider the following : The Board of Appeals is administratively attached to the Planning Department . , However, one of its primary responsibilities is to review the actions of the Planning Department . In these cases , we are generally in an adversarial relationship with the appellant, with the Board serving as the adjudicator . Through our administrative responsibility, we provide clerical and other assistance to the Board . These two roles may raise a potential conflict or at least the appearance of a conflict in that we both service the Board and appear before it at the same time . Consequently, we ask that you consider assigning the administrative responsibilities of the Board to another agency such as the Corporation Counsel . Finally, we also ask that you take a careful review of Section 13-4 relating to Boards and Commissions and Section 13-11 relating to Penalties . Several concerns have been raised by the Planning Commissioners with respect to the ability to reappoint a Commissioner who has served a partial term, the quorum requirements and voting procedures . With respect to Section 13-11 , we ask that you consider extending the penalties section to provide for civil fines as penalty for violation of ordinance and regulation in addition to the criminal penalties . Thank you for the opportunity to provide you with our thoughts on the review of the Charter . We will be happy to answer any questions you may have . 727 File misc. file after H A W A. C O U N T Y' you review j,.J �y OF1H; , CHARTER COMM• .. ISS ION . �'?�, !;�\\�� ; 101 Aupuni Street,Suite 235 '.''•G• f Hilo Lagoon Centre W1-7T". s,s�,�: -_ '��f Hilo, Hawaii 96720 ,f 6i."� (808) 961-0177 • RobertE.Bethea, MEMO TO: Commission Members . Chairperson Sherwood Creenwell FROM: Marie Jacobs Co-Chairperson DATE: December 8 , 1989 Members: Pamela F.Cushnie RE: Art . IV, Sec . 4-5 (a) Francine Duncan • David Fuertes JamesO.Juvik I took it upon myself to speak with Dave Luke re the H.PeterL'Orange above, and offer the following: Aileen Lum Steven T.Nishikawa Akira T.Omonaka 1. Mr . Luke prefers, the above article to read : Patricia M.Poppe Executive Secretary: "Appoint and remove a deputy or assistant and a private secre- R.Marie Jacobs tary whose status shall be in accordance with Civil Service laws. No such appointment shall be made unless the positions have been created and appropriations therefor have been made by the council." 2. At the 11/30 meeting,, Chris suggested cutting off the sentence, with a period after "secretary . " Mr . Luke said that would have the same effect of technically changing the Charter to conform with state law. • 3 . Mr . Bethea questioned whether Art . III , Sec. 3-,14 , "Adoption of Pay Plan" would/could affect Sec. 4-5 (a) , if Sec . 4-5 (a) were altered . Mr . Luke said that it would not. 4. Mr . Luke reiterated that the changes he suggested in Art . IV, Sec. 4-5 (a) and Sec. 5-1.4 (b) are only technical changes to conform the Charter with state law and that salaries of appointees are affected in no way. r Concurred with : ( ,: - il d • EXHIBIT D 728