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HomeMy WebLinkAboutCOM 0017.001 2020-2022Harry Kim Mayor Roy Takemoto Managing Director West Hawaii Office 74-5044 Ane Keohokalole Hwy Kailua-Kona, Hawaii 96740 Phone (808) 323-4770 Fax (808) 327-3563 December 1, 2020 County of Hawai` i PLANNING DEPARTMENT Aaron S.Y. Chung, Council Chair And Members of the County Council County of Hawai `i 25 Aupuni Street Hilo, HI 96720 Dear Chair Chung and Council Members: SUBJECT: Planning Director Initiated Michael Yee Director April Surprenant Acting Deputy Director East Hawaii Office 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Phone (808) 961-8288 Fax (80,9,961-8742 -44171 +Ait Amendment to Chapter 25 (Zoning Code), Articles 2, Division 6 of the Hawaii County Code 1983 (2016 Edition, as amended) Relating to Use Permits (Action Timing and Revocation) Regarding the Leeward Planning Commission letter dated October 26, 2020 concerning the above -reference matter, attached please find a copy of the draft transcript for the October 15, 2020 hearing for your information. Should there be any questions, please contact Jeff Darrow at 961-8158. Sincerely, lr.-. -44 MICHAEL YEE Planning Director LPDhiitiatedRelatingtoUsePermitstranscriptlpc Enclosures: Draft Transcript Comm. No. �' 1 Ref. To: Ref. Date DEC 0 a 2021 www.planning.hawaiicounty.gov Hawaii County is an Equal Opportunity Provider and Employer planning@hawaiicoun!y.gov LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT OCTOBER 15, 2020 A regularly advertised hearing on the PLANNING DIRECTOR INITIATED AMENDMENT TO CHAPTER 25 OF THE HAWAII COUNTY CODE, RELATING TO USE PERMIT was called to order at 4:04 p.m. via live -stream online meeting, with Chairperson Nancy Carr Smith presiding. COMMISSIONERS IN ATTENDANCE: Nancy Carr Smith-- Barbara DeFranco, Perry Kealoha, Max Newberg, Mark Van Pernis, Michael Vitousek and Faith" "Faye" Yates ALSO IN ATTENDANCE: J Yoshimoto, Esq. (Counsel for the Commission), Michael Yee (Planning Director), John Mukai, Esq. (Counsel for fhe Planning Dir'e(6tor), Tracie -Lee Camero (Planner), Jeff Darrow (Planning Program Manager), Alex Roy (Planner), Jessica Andrews (Planner), Rachelle Ley (Secretary to the Planning Director), Kim Tanaka (Secretary to Boards and Commissions) and Noriko Sauer. (Leeward Planning.,Comrriiyssion Secretary) INITIATOR: PLANNING DIRECTOR-_, An ordinance amending Chapter 25 (Zo' hing Cod&)-; Article 2, Division 6 of the Hawaii County Code 1983 (2016 Edition,,as_amended), toupdate` the time and`revocation requirements for the Windward Planning CoImnission_and Leeward Planning _Commissiori to act on and revoke a use permit to be consistent Iw.ith the -Planning Corn'mmission- Rules.of Practice and Procedure. Secretary shote: - - - indicates, that there were technical and/or internet difficulties, which made the conversation inaudible: °,... . CARR':SMITH: Staff? --.Tracie. CAMERO: Good afternoori: CARR SMITH:`,,Yay we get to see,youwithout the sign in front of your face. Thank you for timing though. Go 4ah ad. CAMERO: Good afternoon; Madam Chair, and members of the Planning Commission. As the Chair mentioned, this is a Planning Director initiated amendment relating to the time and revocation requirements for use permits. If you have any questions, please feel free to stop me at any time for clarification. Can you all see my screen? With this bill, the Planning Director's proposing four amendments. These amendments are simply to change the zoning code language with the language that is in our current Planning Commission rules of practices and procedures. Three of the four proposed amendments are within Section 25-2-64 of the Hawaii County Code. Amendment one will remove the requirement that the Commission shall either approve or deny a use permit application no later EXHIBIT F than 60 days after the close of public hearings or allow for a longer period as the Commission is in agreement with the applicant. To address the comments that were earlier provided in earlier testimony, this proposed amendment will ideally allow for a longer time period for the Commission to either approve or deny any application. Amendment two clarifies that the Commission can add conditions of approval that are not limited to the hours of operation in terms of the use permit, and amendment three clarifies that if the Commission fails to render decision on a use permit application in the required time, it is deemed approved unless a contested case hearing pertaining to the permit is pending before the Commission, replacing the broader written objection language in the current code. Now, I know all of you have seen some of the comments that`have come into the Planning Department in regards to the automatic approvals. The history :of the automatic approval language dates to 1998 with Act 164 which amended HRS Section 91-13.5 to read as you see on the screen. This was an effort to revitalize Hawai`i's,�,economy+ in,the late 1900s. As for the change to remove written objections and replace .h with contested`case;,the Department has always allowed for written objections to be submitted on any application: -Written objections, however, have not stopped applications from this automatic approval should.the Commission not come to a decision. Historically, a contested case has-been the"o" ply deterrent ftom the automatic r approvals as required by HRS. The fourth and last amendment:is to delete Se6tion125-2-67 and replace it with the following language. Section A now "giyes,the Director the authority to administer revocation of use permits when -requested by thepermit holder. Section B is the process in which the Commission shallrevoke a permit whei .;requested by the Director. Section C explains that written notice,shall be d6ne"by the DDirector to the permit holder, and lastly, Section D is the process to-appeaL a Director", srevocation.-These proposed amendments are again to provide consistency with the code and our current Planding Commission rules of practices and procedures. _ The Planning Directors recoramer ding tliat,the Planning Commission send a favorable recommendation to, the Hawai=`.i County code` [sic] for these amendments. After the Commission got the background and rec; comments came in from Verizon Wireless and AT&T, as well as AT&T.='The.Department is,;cuffently working to change our process on telecommunication towers in which that will addtes' s Verizon'and AT&T's comments. The Department has more fine-tuning to`&o and we will present thiscliange in the following months. With that, that concludes my presentation, and I can open the floor to any questions that you may have. CARR SMITH: Thank you;~Tracie. Mike? VITOUSEK: It, my understanding is that in the Planning Commission rules there is a provision that if the applicant requests a deferral, then they're kind of off the clock for that 60 -day time period. You think that's covered adequately in these rules? CAMERO: I would have to ask Jeff to go over that. We hadn't discussed any of the deferral language, actually. 2 EXHIBIT F CARR SMITH: Go ahead. DARROW: Commissioner Vitousek, you're referring to the automatic approval language? VITOUSEK: Yeah. DARROW: So, what happens is, if an applicant is amendable to a continuance, then this automatic approval does not apply because they're being willing to continue the hearing beyond the deadline from that point. This is a situation that has only occurred once in my career as a planner, where an applicant was not willing to defer, and the Planning Commission could not come to an agreement or a motion one way or another. There was' -clack of quorum for each vote that was brought up and the time, the maximum timeframe had'come to that point. We had additionally had received the written objection at that time,;andthe public had made a statement that, "look a written objection had been submitted, doesn't that ehange the process?" And the Council that we were getting at that time was exactly., 'What Tracie had --mentioned, is that a written objection does not defer or change the time:process. Only a contested case. So they clarified that the written objection was specificalty:to the submittal of a contested case - - -. But again, back to your question, if an applicant is amenable to a continuance, tleri the application can be continued, no problem. VITOUSEK: And you don't think tliat'that needs to be clarif ed in this language in any way? DARROW: I believe it is -vin the rule. I don't have'that hold on I"might have it with me right here. I apologize for the''delay.j ' r VITOUSEK: While"we"wait, bac'o'n' -'is cooked; }cookies are baked, discuss. [Jokingly] i i 1 _ DARROW: Yeah,,I don't `see' it=here,-unfortunately, "but maybe if we can continue with discuss ion`le„t.me .16'0k' for that;aiid then, cause there's, other issues regarding this bill that may be talked,°abo.ut. I think J's ,talking. ` CARR SMITH: Yeah, go ahead, J. YOSHIMOTO:`°Jeff, are you looking at, or looking for 6-8? DARROW: That would-be under 'special permits. This would be under 7. YOSHIMOTO: Seven. Okay' DARROW: Thank you. CARR SMITH: So, you have cookies Mike? I want a cookie. [Jokingly] Does anyone else have any comments? Max? Barbara? Nothing right now? Perry? Max, go for it. Go ahead. NEWBERG: Just wanted to make mention that as the language goes into legalese, I get a little bit lost. Maybe towards the end Mr. Vitousek has a good question there, but I guess under my 3 EXHIBIT F own admission, it's hard for me to understand exactly what we're replacing and what is better, maybe if we could get a - - -. VITOUSEK: Sure, if I could restate it. The issue that I'm raising is with the automatic approval of permits after 60 days following the public testimony. So, under the proposed regulations, in accordance with the Planning Commission rules, after public testimony's closed, there's 60 days for the Planning Commission to render a decision on that application and if you don't meet those 60 days, then that application is automatically approved. But the question is, if the applicant agrees to deferring, then we get an extension on that 60 days, so that it doesn't automatically approve after the 60 days. r CARR SMITH: Go ahead, Jeff. DARROW: So, the actual language of that extension-i`s in 91-13.5.~Jt says that there are a number of factors that could delay the hearing, one- offfiem is a lack of_quorum, and that's a result that nobodycan see and so at that oint,the -sa that that's nota you cannot automatically p Y Y �Y Y approve the permit based on lack of quorum. The"other option it gives is�unless an extension is agreed upon to by all parties, and so that's where that,.agreement. language comes from. Now, we can place that in as an addition to our, language in the bill to make it clear that-the`automatically extension will not apply as long as a`continuance or time extension is agreed upon by all parties. i, VITOUSEK: I think that would be appropriate; and,having thai language basically copying the language that's in Planning -Commission rules 9(f)(I);_where if'states, "the applicant may request the commission to defer`on theapplicatioti majority vote of the total, membership of the commission is required,; the applicant can request to, defer the "motion on the application and the event the commissionl-fails to render decision 0406r action within a prescribed time limit, the request shall be denied. That's whatAhe languageti is,,m the Planning Commission rules, and if we're, if we're- adding to the zoning rules to..make ',it'in line with the Planning Commission rules, we might as, weld carry'that through as well. . DARROVV:-...Just to be clear, "you're not requesting that there be an automatic denial? VITOUSEK--,,N6,, that's not= - A, DARROW: Oka VITOUSEK: I'm not, I'm=-notJthink that deferral just means that we, we're not having an automatic approval. DARROW: Right. So the, the, there are two different sections of law that this applies to, 205A for the Special Management Area has its own requirements in regards to denial, but again, they both apply that if there's an agreement by all parties to extend, then the automatic denial or approval is off the table. 4 EXHIBIT F VITOUSEK: Agreed, I mean, again, I just feel like since we're doing this, we're re -writing the rules, why not include it so that it's not an implied agreement but an explicit agreement stating that in the event of a deferral the clock stops. DARROW: Excellent, thank you. CARR SMITH: Director, you have any comment about that? YEE: No comment. That's acceptable. CARR SMITH: Makes sense. Thanks Mike. Yeah, it gets kitd.ofscary when it you think about automatic approvals. Anybody else have any comments, ,questions? Jeff. DARROW: Since you did make that last statement,-I'It just make mention that there is language in the HRS that allows the counties to create an ordinance to opt out, of,the automatic approval. We're discussing that direction with our Corporation Council to find"oufwhat that entails and so, at that point we may want to move towards getting -out of that automatic approval requirement. It, it's something that a lot of people have brought up and are; concerned abbut .but again, we're just trying to act upon the law at this,,time. CARR SMITH: Yeah. Okay. It's always good to make different documents j ive, so I support this. So, are we clear as to what we're adding bas&' d.on Mike's request? CAMERO: Yes, Madam:Chair: CARR SMITH: Okay: Thanks, Tracie. Go ahead ;Mike. VITOUSEK � Let- s,_see, I' it make_ a motion .that we,- forward a favorable recommendation to the f amendmentsao Chapter -,25, Zoning Code, -Article 2,,Division 6 of the Hawaii County Code g 1983, ,2006"[sic] Editibn;,as,amended. z,. CARR SMITH.:S Very good: There a second? KEALOHA: I' ll'..seoond. !I CARR SMITH: Okay; seconded`by Mr. Kealoha. Any more discussion about this? Seeing none, Tracie, could we take a ro1.Fcdl1-,'vote please? CAMERO: Thank you, Chair. With that we'll take a roll call. Commissioner Vitousek? VITOUSEK: Aye. CAMERO: Commissioner Kealoha? KEALOHA: Aye. EXHIBIT F CAMERO: Commissioner DeFranco? DEFRANCO: Aye. CAMERO: Commissioner Newberg? NEWBERG: Aye. CAMERO: Commissioner Van Pernis? VAN PERNIS: Aye. CAMERO: Commissioner Yates? YATES: Aye. CAMERO: And Chair Carr Smith? CARR SMITH: Aye. CAMERO: The motion carries 7-0. Thank you., _ s h CARR SMITH: Thank you very much. _ The hearing erided-at 4::22 p.rii: s Respectfully submitted, 4 1 Kim Tanaka Secretary to Boards and Commissions 6 EXHIBIT F