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HomeMy WebLinkAboutMIN COUNCIL 2021-06-16 2020-2022 Hawaii County Council 171h Session West Hawaii Civic Center 74-5044 Ane Keohokalole Highway, Building A Kailua-Kona, Hawaii June 16, 2021 INVOCATION: Pastor Mel Haug of Bible First Mission Church gave the morning's invocation. CALL TO The regular meeting of the Hawaii County Council was called to order at ORDER: 9:01 a.m., in the Council Chambers, Kailua-Kona, by Ms. Maile Medeiros David, Chair. ROLL CALL: Present: Ms. Maile Medeiros David, Chair Mr. Aaron S. Y. Chung, Vice Chair(via videoconference from Hilo) Mr. Holeka Goro Inaba, Member Mr. Matt Kaneali`i-Kleinfelder, Member (via videoconference from Hilo) Ms. Ashley L. Kierkiewicz, Member Ms. Heather L. Kimball, Member Ms. Susan L. K. Lee Loy, Member (via videoconference from Hilo) Mr. Herbert M. "Tim" Richards, III, Member(came in later) Ms. Rebecca Villegas, Member PLEDGE OF The Chair directed the Council to the next order of business, Pledge of ALLEGIANCE: Allegiance. (At this time, Ms. Kierkiewicz led the Council in the Pledge of Allegiance.) PETITIONS, The Chair directed the Council to proceed to the next order of business, Petitions, MEMORIALS, Memorials, Certificates of Merit, and Expressions of Condolence. CERTIFICATES OF MERIT, AND (There were none.) EXPRESSIONS OF CONDOLENCE: STATEMENTS The Chair directed the Council to proceed to the next order of business, FROM THE Statements from the Public on Agenda Items. PUBLIC ON AGENDA ITEMS: The following individuals registered to speak and came forward when called by the Chair: Hawaii County Council-17 June 16,2021 Leslie Nugent: Res. 147-21 (Comm. 289); and (representing North Kohala Res. 148-21 (Comm. 290), in support. Community Resource Center) Jay West: Res. 149-21 (Comm. 291), in support. (representing Waimea Arts Council) Chuck Flaherty: Res. 135-21 (Comm. 269), in support. (See Comm. 269.3) APPROVAL The Chair directed the Council to proceed to the next order of business, Approval OF MINUTES: of Minutes. Vote on Approval Mr. Inaba moved to approve the Minutes of May 19 and of Minutes: May 20, 2021. Seconded by Ms. Kierkiewicz and carried (Approved) by the following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Villegas, and Chair David—8. Noes: None. Absent: Council Member Richards — 1. Excused: None. COMMUNI- The Chair directed the Council to proceed to the next order of business, CATIONS: Communications. Comm. 288: NOMINATION OF DALE K. TOKUUKE TO THE REAL PROPERTY TAX BOARD OF REVIEW From Mayor Mitchell D. Roth, dated June 3, 2021, requesting the Council's review and confirmation. Waived: FC Requires Council Confirmation by: July 18, 2021 (Section 134(k), Hawaii County Charter) Motion to Approve: Ms. Lee Loy moved to confirm the appointment of Mr. Dale K. Tokuuke to the Real Property Tax Board of Review. Seconded by Mr. Inaba. (Note: At this time, Executive Assistant to the Mayor Pomaika`i Bartolome and Nominee Dale K. Tokuuke came forward to address the members of the Council, via videoconferencing, with Ms. Bartolome attending from Hilo.) Page 2 Hawaii County Council-17 June 16,2021 Vote on The motion to confirm the appointment of Mr. Dale K. Comm. 288: Tokuuke to the Real Property Tax Board of Review was (Approved) carried by the following roll call vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair David—9. Noes: None. Absent: None. Excused: None. (Council Member Lee Loy spoke in favor of the appointment and Chair David thanked Mr. Tokuuke for his willingness to serve.) CHR. DAVID: Thank you very much, Mr. Tokuuke. MR. TOKUUKE: Thank you. ORDER OF The Chair directed the Council to proceed to the next order of business, Order of RESOLUTIONS: Resolutions. Res. 130-21: RECOGNIZES THE CENTENNIAL CELEBRATION OF THE HAWAIIAN HOMES COMMISSION ACT OF 1920, AS AMENDED Reference: Comm. 262 Intr. by: Ms. Lee Loy Approve: GOREDC-12 Motion to Approve: Ms. Lee Loy moved to adopt Res. 130-21 and Governmental Operations, Relations and Economic Development Committee Report No. 12. Seconded by Mr. Richards. CHR. DAVID: Ms. Lee Loy. MS. LEE LOY: Thank you, Chair. I just ask for your continued support. 2021 is really turning out to be a very interesting year,just to reflect back on history. And it really is my honor to move this resolution forward and really appreciate the rest of my colleagues' support on this recognition. I yield. CHR. DAVID: Mahalo, Ms. Lee Loy. Anyone else has any comments? Seeing none, all those in favor of approving Resolution 130-21, please say "aye." Page 3 Hawaii County Council-17 June 16,2021 Vote on Res. 130-21: The motion to adopt Res. 130-21 and Governmental (Adopted) Operations, Relations and Economic Development Committee Report No. 12 was carried by the following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair David—9. Noes: None. Absent: None. Excused: None. Res. 134-21: AUTHORIZES THE ACCEPTANCE OF A DONATION OF A BRONZE STATUE OF A MYTHOLOGICAL FISHERMAN TO THE COUNTY OF HAWAII The statue, valued at$10,000, was donated by Henry Bianchini, and will be located at the recreational area commonly known as "Isles." Reference: Comm. 268 Intr. by: Mr. Kaneali`i-Kleinfelder(B/R) Approve: FC-44 Motion to Approve: Mr. Kaneali`i-Kleinfelder moved to adopt Res. 134-21 and Finance Committee Report No. 44. Seconded by Ms. Kierkiewicz. CHR. DAVID: Go ahead, Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Mahalo, Chair, and good morning. CHR. DAVID: Good morning. MR. KANEALI`I-KLEINFELDER: We did have a fairly substantial conversation. It was very positive in our Committee, and I do think that the Council seemed positive on moving forward with this resolution. And I do appreciate Parks and Recreation taking the time to redraft and work with us and the community on finding a good home for this statue. I yield. CHR. DAVID: Thank you very much. Any other discussion? Seeing none, all those in favor of approving Resolution 134-21,please say "aye." Page 4 Hawaii County Council-17 June 16,2021 Vote on Res. 134-21: The motion to adopt Res. 134-21 and Finance Committee (Adopted) Report No. 44 was carried by the following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair David—9. Noes: None. Absent: None. Excused: None. Res. 135-21: RECOGNIZES JUNE AS LESBIAN, GAY, BISEXUAL, TRANSGENDER, QUEER, INTERSEX, AND ASEXUAL PRIDE MONTH IN THE COUNTY OF HAWAII Reference: Comm. 269 Intr. by: Ms. Kierkiewicz Approve: GOREDC-13 Motion to Approve: Ms. Kierkiewicz moved to adopt Res. 135-21 and Governmental Operations, Relations and Economic Development Committee Report No. 13. Seconded by Ms. Villegas. CHR. DAVID: Go ahead, Ms. Kierkiewicz. MS. KIERKIEWICZ: Thank you, Chair. I just, again, want to recognize and mahalo my Legislative Aide Jake Sykes for his beautiful work on this resolution, done in collaboration with the pride chapter here in our island. Just really appreciate the comments from this body, members of the public, and how we have this tool available to us to send to community to let them know "We aloha you. We see you." And we are just sending this message of positivity and inclusion. So, it really means a lot to me and to folks. So, thank you. Just looking for everyone's continued support. I yield. CHR. DAVID: Mahalo, Ms. Kierkiewicz. Anyone else? Corporation Counsel? MR. KANEALI`I-KLEINFELDER: Chair? CHR. DAVID: Wait, hang on a second. We have Corp. (Corporation) Counsel here approaching. Hang on. (Note: At this time, Corporation Counsel Elizabeth Strance came forward to address the members of the Council.) Page 5 Hawaii County Council-17 June 16,2021 CHR. DAVID: Good morning, Ms. Strance. You can go ahead whenever you're ready. MS. STRANCE: Good morning. Elizabeth Strance, Corporation Counsel. When this resolution passed out of Committee, a question rose about the raising of the flag, and I wanted to be able to respond to you. So, the resolution, as written, encourages the Mayor to raise the flag. So, it is not a mandatory requirement. The Mayor's office is in a process as part of its onboarding, coming up with its procedures on when and how a request to raise flags will be made. So, I think the language in the resolution is fine because it is one of encouragement, and it's one that the Mayor's expressed support of. Having said that, there needs to be a process, you know, from small things like looking at improving the flag, size of flags, length of time it's being raised, if there are other requests that are being made. And so, I just wanted to clarify that. I said we'd get back if you can't do it. The answer to the question is you can, but there's going to be a process and that will be applicable to any request for raising of flags. So, not a sentiment in opposition to the resolution but just an acknowledgement that there is process and procedure. CHR. DAVID: Thank you very much, Ms. Strance. Ms. Kierkiewicz, go ahead. MS. KIERKIEWICZ: Thank you, Chair. Thank you, Corporation Counsel. Just a quick follow up. Do you think we're going to have all these bureaucratic processes in place before the end of the month? I know that the Pride Hawaii Island Chapter is going to be hosting something at Aupuni Center on June 26. And so,just looking for a timeframe in which we can expect the flag to be raised. It's an important symbol, I think, that people are really looking forward to. And I know that many of us, we have seen the really beautiful rainbow flag display in our County atrium. So, it's there and I've actually gotten photos of the rainbow flag being flown here in Kona. So,just curious for a timeframe for when it is officially acceptable to raise the flag. MS. STRANCE: I'll have to get back to you on that. I will communicate the urgency and importance of it. I have noticed since I live in Kona and drive to the Civic Center that the flag is raised and has been raised here. I will follow up with the Mayor and find out about that, particularly in light of the timing and kind of the lead up. It's not that we didn't know that this request was being made. MS. KIERKIEWICZ: Thank you, Judge Strance. Really appreciate that. Yeah, the rainbow flag is flying quite proudly here in Kona. Thank you, Chair. I yield. CHR. DAVID: Thank you, Ms. Kierkiewicz, and thank you, Ms. Strance. Mr. Richards, go ahead. Page 6 Hawaii County Council-17 June 16,2021 MR. RICHARDS: Thank you, Chair. Thanks, Ms. Kierkiewicz. It's all about including everybody, so I really appreciate that. I fully support it. Thank you. CHR. DAVID: Mahalo, Mr. Richards. In Hilo, any comments? MR. KANEALI`I-KLEINFELDER: Chair, if I could? CHR. DAVID: Go ahead, Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Thank you, Madam. My question was answered by our Corporation Counsel, but I do appreciate this resolution. I just need to say I think we should just raise the flag already. I think that's about as nice as I can put that. But mahalo, Ms. Kierkiewicz, for putting this forward. I appreciate your push for this, so mahalo. And I also wanted to mahalo Mr. Chuck Flaherty for his testimony and for sharing what he shared with us. It takes a lot to do that. So, mahalo for the testimony this morning from Mr. Flaherty. CHR. DAVID: Thank you, Mr. Kaneali`i-Kleinfelder. Anyone else in Hilo? Seeing none, all those in favor of approving Resolution 135-21, please say "aye." Vote on Res. 135-21: The motion to adopt Res. 135-21 and Governmental (Adopted) Operations, Relations and Economic Development Committee Report No. 13 was carried by the following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair David—9. Noes: None. Absent: None. Excused: None. Res. 146-21: CREATES FOUR NEW VEHICLE REGISTRATION AND LICENSING CLERK POSITIONS FOR THE DEPARTMENT OF FINANCE Reference: Comm. 287 Intr. by: Mr. Kaneali`i-Kleinfelder(B/R) Waived: FC Motion to Approve: Mr. Kaneali`i-Kleinfelder moved to adopt Res. 146-21. Seconded by Mr. Inaba. CHR. DAVID: Go ahead, Mr. Kaneali`i-Kleinfelder. Page 7 Hawaii County Council-17 June 16,2021 MR. KANEALI`I-KLEINFELDER: We have Ms. Deanna Sako here today if there's any questions. But this resolution was waived to Council due to the time restrictions required within our budget cycle. This will create four new positions for Vehicle Registration and Licensing—two in Hilo and two in Kona. Those positions can be used to also fill in to Pahoa and Waimea. I did work with Ms. Sako and our Vehicle Licensing Registration folks as well as the Mayor's office to ensure that these positions are doable within our budget, as we saw during the cycle, but also just trying to fulfill a need that I think the County of Hawaii itself has for increased positions in this area. I do ask for everyone's support on this. I think this is crucial to maintaining service in our County and just appreciate the positive experience in creating these positions. So, mahalo for your time. I yield. CHR. DAVID: Thank you, Mr. Kaneali`i-Kleinfelder. Anyone else? Seeing none, I just want to thank you, Mr. Kaneali`i-Kleinfelder and Director Sako, for making this happen. This is such an important position that we need so desperately on both sides of the island. So, mahalo. All those in favor of approving Resolution 146-21, please say "aye." Vote on Res. 146-21: The motion to adopt Res. 146-21 was carried by the (Adopted) following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair David–9. Noes: None. Absent: None. Excused: None. Res. 147-21: TRANSFERS/APPROPRIATES AN APPROPRIATION OUT AND FROM A DESIGNATED FUND ACCOUNT AND CREDITS SAME TO A DESIGNATED FUND ACCOUNT TO PROVIDE A GRANT TO NORTH KOHALA COMMUNITY RESOURCE CENTER FOR REIMBURSEMENT OF EXPENSES RELATING TO ITS ANNUAL PROGRAM ORGANIZER TRAINING WORKSHOP Transfers $1,500 from the Clerk-Council Services –Contingency Relief account (Council District 9); and credits to the Department of Liquor Control, Public Programs account. Reference: Comm. 289 Intr. by: Mr. Richards Motion to Approve: Mr. Richards moved to adopt Res. 147-21. Seconded by Ms. Kierkiewicz. Page 8 Hawaii County Council-17 June 16,2021 CHR. DAVID: Go ahead, Mr. Richards. MR. RICHARDS: Thank you so much, Chair. I have several resolutions coming forth, as you can see. This first one is kind of a"train the trainer"reimbursement, and it's the North Kohala resource center helps the community by developing the staff so they can be more effective and more efficient in grant writing, etcetera. So, sort of a"train the trainer," and I ask for your support. CHR. DAVID: Mahalo. Anyone else? Seeing none, all those in favor of approving Resolution 147-21, please say "aye." Vote on Res. 147-21: The motion to adopt Res. 147-21 was carried by the (Adopted) following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair David—9. Noes: None. Absent: None. Excused: None. Res. 148-21: TRANSFERS/APPROPRIATES AN APPROPRIATION OUT AND FROM A DESIGNATED FUND ACCOUNT AND CREDITS SAME TO A DESIGNATED FUND ACCOUNT TO PROVIDE A GRANT TO NORTH KOHALA COMMUNITY RESOURCE CENTER FOR A REIMBURSEMENT OF EXPENSES RELATING TO ITS FEED KOHALA PROGRAM Transfers $3,385.84 from the Clerk-Council Services —Contingency Relief account(Council District 9); and credits to the Department of Liquor Control, Public Programs account. Reference: Comm. 290 Intr. by: Mr. Richards Motion to Approve: Mr. Richards moved to adopt Res. 148-21. Seconded by Ms. Villegas. CHR. DAVID: Go ahead, Mr. Richards. MR. RICHARDS: Now, this is kind of a"feed the trainer." A little bit more than that, it is for the community and this is a little bit of a spillover from the last year and a half of pandemic. So, again,just the feeding programs in Kohala, and the North Kohala resource center has been very instrumental in administrating some of that. I ask for your support. Page 9 Hawaii County Council-17 June 16,2021 CHR. DAVID: Mahalo. Any discussion? Seeing none, all those in favor of approving Resolution 148-21, please say "aye." Vote on Res. 148-21: The motion to adopt Res. 148-21 was carried by the (Adopted) following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair David—9. Noes: None. Absent: None. Excused: None. Res. 149-21: TRANSFERS/APPROPRIATES AN APPROPRIATION OUT AND FROM A DESIGNATED FUND ACCOUNT AND CREDITS SAME TO A DESIGNATED FUND ACCOUNT TO PROVIDE A GRANT TO WAIMEA ARTS COUNCIL FOR ITS LANDSCAPE MAINTENANCE EXPENSES Transfers $2,500 from the Clerk-Council Services —Contingency Relief account (Council District 9); and credits to the Department of Liquor Control, Public Programs account. Reference: Comm. 291 Intr. by: Mr. Richards Motion to Approve: Mr. Richards moved to adopt Res. 149-21. Seconded by Ms. Villegas. CHR. DAVID: Go ahead, Mr. Richards. MR. RICHARDS: This is another interesting one. And, Chair David, you will probably remember when the old firehouse art was actually the firehouse, like I remember it. And this is to help them out through the pandemic. They're a volunteer organization. They had no income and they needed to keep their lights on, literally. So, this is just to help them cover some of the pandemic expenses. And coming forward, again I ask my colleagues' support. CHR. DAVID: Thank you very much for that, Mr. Richards. Anyone else? Seeing none, all those in favor of approving Resolution 149-21, please say "aye." Page 10 Hawaii County Council-17 June 16,2021 Vote on Res. 149-21: The motion to adopt Res. 149-21 was carried by the (Adopted) following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair David—9. Noes: None. Absent: None. Excused: None. Res. 150-21: TRANSFERS/APPROPRIATES AN APPROPRIATION OUT AND FROM A DESIGNATED FUND ACCOUNT AND CREDITS SAME TO A DESIGNATED FUND ACCOUNT FOR IMPROVEMENTS AT EXISTING PARKS, GYMS, POOLS, PLAYGROUNDS, AND THE DEVELOPMENT OF NEW PARK FACILITIES IN COUNCIL DISTRICT 9 Transfers $10,000 from the Clerk-Council Services —Contingency Relief account (Council District 9); and credits to the Department of Parks and Recreation, Transfer to Capital Projects Fund-General account. Reference: Comm. 292 Intr. by: Mr. Richards Motion to Approve: Mr. Richards moved to adopt Res. 150-21. Seconded by Ms. Villegas. CHR. DAVID: Go ahead, Mr. Richards. MR. RICHARDS: Where do we begin with Parks and Rec. (Recreation) and maintenance and repair? It is a huge need and all of us, as Council Members, direct funds to them. We could easily tack on a zero and make that a hundred thousand and still wouldn't cover enough. But it's just, again, trying to go after the big things right now and help support our Parks and Recreation as we go forward. I ask for my colleagues' support. CHR. DAVID: Thank you. Any other discussion? Seeing none, all those in favor of approving Resolution 150-21, please say "aye." Page 11 Hawaii County Council-17 June 16,2021 Vote on Res. 150-21: The motion to adopt Res. 150-21 was carried by the (Adopted) following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair David—9. Noes: None. Absent: None. Excused: None. Res. 151-21: TRANSFERS/APPROPRIATES AN APPROPRIATION OUT AND FROM A DESIGNATED FUND ACCOUNT AND CREDITS SAME TO A DESIGNATED FUND ACCOUNT FOR PARK MAINTENANCE AND/OR IMPROVEMENT PROJECTS AT VARIOUS FACILITIES IN COUNCIL DISTRICT 5 Transfers $13,313 from the Clerk-Council Services —Contingency Relief account (Council District 5); and credits to the Department of Parks and Recreation, Transfer to Capital Projects Fund-General account. Reference: Comm. 293 Intr. by: Mr. Kaneali`i-Kleinfelder Motion to Approve: Mr. Kaneali`i-Kleinfelder moved to adopt Res. 151-21. Seconded by Mr. Richards. CHR. DAVID: Go ahead, Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: We have a huge need in District 5, as well as across the island as you saw with Mr. Richards' contingency relief. We give to better our parks and recreation facilities. And I talked with Mo and some of the different staff from around the island on what we need. And like Mr. Richards said, this isn't enough but at least it's something. Parks and Rec. is core to our community, and I just look for everyone's support on this resolution. CHR. DAVID: Thank you. Any other comments? Seeing none, all those in favor of approving Resolution 151-21, please say "aye." Page 12 Hawaii County Council-17 June 16,2021 Vote on Res. 151-21: The motion to adopt Res. 151-21 was carried by the (Adopted) following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair David—9. Noes: None. Absent: None. Excused: None. CHR. DAVID: Mr. Richards, go ahead. Vote on Motion to Mr. Richards moved to suspend Council Rule 15 to waive Suspend Council the 5-day hold for reconsideration of Resolution Rules on Resolution Nos. 146-21, 147-21, 148-21, 149-21, 150-21, and 151-21. Nos. 146-21, 147-21, Seconded by Mr. Kaneali`i-Kleinfelder and carried by the 148-21, 149-21, following voice vote: 150-21, and 151-21: (Approved) Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair David—9. Noes: None. Absent: None. Excused: None. BILLS FOR The Chair directed the Council to proceed to the next order of business, Bills for ORDINANCES Ordinances (First Reading). (FIRST READING): (There were none.) ORDER OF The Chair directed the Council to proceed to the next order of business, Order of THE DAY the Day (Second or Final Reading). (SECOND OR FINAL READING): Page 13 Hawaii County Council-17 June 16,2021 Bill 34: AMENDS SECTION 25-8-33 (CITY OF HILO ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED), BY CHANGING THE DISTRICT CLASSIFICATION FROM OPEN TO INDUSTRIAL—COMMERCIAL MIXED —20,000 SQUARE FEET (MCX-20) AT PIOPIO, WAIAKEA, HAWAII, COVERED BY TAX MAP KEYS: 2-2-001:008, 017, 018, 019, 024, 030, AND 034 (Applicants: M. Anderson and N. Pi`ianaia Trusts; and Kapoho Properties, LLC) (Area: 3.29 acres) The Windward Planning Commission forwards its favorable recommendation and concurs with the Planning Director's request to approve the removal of the affordable housing condition (J). The applicants are proposing to consolidate and subdivide the existing seven separate parcels into four separate parcels. The property is located at Old Hilo Iron Works property located at 1280 Kamehameha Avenue. Reference: Comm. 233 Intr. by: Ms. Kierkiewicz (B/R) First Reading: June 2, 2021 (Note: Comm. 233.3, from Council Member Matt Kaneali`i-Kleinfelder dated June 15, 2021, transmitting proposed amendments to Bill 34, was circulated.) Motion to Approve: Ms. Kierkiewicz moved to pass Bill 34 on second and final reading. Seconded by Mr. Richards. CHR. DAVID: Ms. Kierkiewicz, go ahead. MS. KIERKIEWICZ: Thank you, Chair. We've had robust conversations about this particular request, which is a simple housekeeping measure. I know that an amendment has been transmitted to this body for review. I do want to note that we have the applicant, Mr. Garth Yamanaka, present in the Hilo chambers. And I believe Planning Director Zendo Kern is available on Zoom to answer any questions. We look forward to subsequent discussion. Thank you. CHR. DAVID: Thank you, Ms. Kierkiewicz. Any other comments, Council Members? Hilo? MR. KANEALI`I-KLEINFELDER: Chair? CHR. DAVID: Go ahead, Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: I'd like just to make a note, Mr. Kern is actually here in our Hilo chambers this morning. CHR. DAVID: Thank you. Page 14 Hawaii County Council-17 June 16,2021 Motion to Amend: Mr. Kaneali`i-Kleinfelder moved to amend Bill 34 with the contents of Comm. 233.3. Seconded by Ms. Kimball. CHR. DAVID: Go ahead, Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Mahalo, Chair. I listened closely to what was said during our previous Council meetings, and Heather and I worked with Mr. Yamanaka. And I think at the end of the day what it came down to for myself, and I don't want to speak for Mrs. Kimball, but I do think that she and I are on the same page, that we wanted to maintain shoreline access along that stretch of the property. And this is an interesting parcel. And, Chair, I did appreciate your comments regarding not doing piecemeal zoning changes, but in this case, we have a very interesting property in front of us with a lot of history. And I do want to make a note that this building does have a very old presence in Hilo. I'm making that note because I appreciate Mr. Yamanaka working with us. We're also understanding the importance of this area and what this means to the community. But going a little bit further is just making sure that we think down the line as far as a zoning change. So, what you have in front of you with 233.3 is requiring a 20-foot shoreline setback from the high-water mark for any of the parcels in the rezoning ordinance which directly abut the Wailoa River estuary area. Any structures that exist— because xistbecause it became clear that there are structures that do come almost all the way down to the water—can be left alone, basically grandfathered in, unless there was a natural disaster, as we talked about, or a tsunami or something that adjusted the coastline or the buildings themselves, or if there is a demolition or substantial renovation work to any of those same structures. There wasn't a lot of material to build this on, so we developed the wording and I look forward to any comments today. But again, there's both State law and there's a County need, and I think the County has incentive to maintain a setback for gathering rights, for shoreline access. And you've got to think 20, 30, 40, 50 years down the line. And so, I look forward to any comments today. I know this has been a moving target as far as how to make these changes and not to step on anyone's toes, yet to make sure that we, as a body, do what I find as our duty to make sure that we preserve the rights that are afforded to everyone in the County. So, interested in the discussion. I yield for now, Chair. Thank you. CHR. DAVID: Thank you, Mr. Kaneali`i-Kleinfelder. Ms. Kimball, go ahead. MS. KIMBALL: Thank you, Chair, and thank you, Matt, for working with me on this. And thank you, Mr. Yamanaka, for continuing to have discussions with us about what might work based on our interests. And Matt summarized well what I think, that the thinking is long-term about a very unusual and rare area in our Page 15 Hawaii County Council-17 June 16,2021 County. Do definitely appreciate the feedback we got from our colleagues about some of the other suggestions last time, and understand the logic and reasoning behind those. But for this particular proposed amendment, I'm really looking at Section 25-2-44 of the Code, which allows us to the Council—impose any conditions that are necessary to prevent circumstances which may be adverse to public health, safety, and welfare or reasonably conceived to fulfill needs directly emanating from the land use proposed with respect to protection of public from potentially deleterious effects of the proposed use or fulfillment in the need for public service demands created by the proposed use. So, the current use or zoning of this property is open. And my thinking, initially, was that there was a need to honor the reasoning and the logic behind designating it as open when we considered changing it to this,what is it, MCX-20 zoning. And in the event that it remains zoned as open, if the existing structures were to disappear for whatever reason, whether it's a natural disaster or by design from the owners, the land would remain open. And so, there was an understanding with that zoning as open that this is an area within the tsunami zone. It's along a river. Matt and I learned a lot about zoning and setbacks and easements, and we were looking for various creative ways to make this a win-win for everybody. So, look forward to further discussions. This may not be the perfect solution but continued discussions maybe necessary. But just want to make it clear that our intention is really considering this as a unique riparian area that deserves some level of protection, both for public health, safety, and welfare and environmental health, safety, and welfare as well. Thank you, Chair, I yield. CHR. DAVID: Thank you, Ms. Kimball. Anyone else in Hilo before Ino? All right, Kona. MR. CHUNG: Well, Madam Chairman? CHR. DAVID: Oh, go ahead. Go ahead, Mr. Chung. MR. CHUNG: Yeah, I'd like to hear from the applicant first. I mean, there's a lot of references made to the applicant. We just got this this morning, so I'd just like to see what he has to say. CHR. DAVID: Thank you. Good point. (Note: At this time, Garth Yamanaka, applicant's representative, came forward to address the members of the Council, via videoconferencing from Hilo.) Page 16 Hawaii County Council-17 June 16,2021 CHR. DAVID: Mr. Yamanaka, welcome and thank you for being here this morning. You can go ahead. MR. YAMANAKA: Good morning. Thank you for having me here, Chair David and Council Members. I received this last night about 10:48 p.m.; didn't see it until this morning. I forwarded it to the owners, and two of the owners responded so far that they still believe this is a taking. And we still haven't heard any opinion on this type of conditions being put in, and they are very curious to hear what Corp. Counsel does have to say about this. With that being said, reading through the document, there are some things that are a little confusion, which I can, I guess, depending on what Corp. Counsel says, we can discuss that further. But I really appreciated the comments that Chair David did say at the last meeting about piecemeal legislation. It's really—and I hate to repeat myself, but that's one of the biggest problems with doing business in Hawaii; it just creates so much uncertainty when things like this pop up. We're at the last meeting here, and these are big things being put into a rezoning process that's just completely different from what we were talking about. And it just makes things uncertain. I can't see how developers will want to come here and do things when this kind of stuff is done. It just really, I think, sets a bad precedent. And I know Council Member Villegas said people want to move here, but they want to move here to live. And a place like the Iron Works, it creates opportunities for businesses. It creates jobs. When the owners bought this property, it was really rundown. They invested a lot of money in this property and was able to bring back opportunities for businesses to be there and jobs to be there. And it's why the laws for commercial and industrial are different from residential. One is an economic thing that is needed, and I think it's things like this that really make it difficult. We're really interested to hear what Corp. Counsel has to say, and I guess we can discuss further. CHR. DAVID: Thank you, Mr. Yamanaka. Mr. Chung, do you yield or will you want to call Corp. Counsel? MR. CHUNG: Yeah, let me try to talk this one through with Mr. Yamanaka. CHR. DAVID: Okay. MR. CHUNG: I just want to understand. I mean, I understand that you and your partners believe that this is a taking and it might be. But just conceptually, what do you think of the idea of creating or having a 20-foot shoreline setback where you cannot build within 20 feet? I mean, do you want to build within 20 feet? Page 17 Hawaii County Council-17 June 16,2021 MR. YAMANAKA: Well, setting aside whether doing it like this is the right way or the right process to do it, for one we're not a shoreline. It's not a shoreline. MR. CHUNG: That's true. MR. YAMANAKA: So, we're not considered shoreline. So, that part is confusing. MR. CHUNG: Well, let's say it was a river line. Do you have any intention of building within that 20 feet? MR. YAMANAKA: For me, if I owned the property and someone wanted to take something that I'm able to do away, but even if I didn't want to do it, who am I to say that maybe a future person wants to do it? And so, there's a value to that in being able to do it. And so from my perspective, even if I don't want to do it, I don't want to take away the value of it by taking that away from future owners of the property. MR. CHUNG: Okay. Let me make my comment on this. I'm going to be voting against this. For me, conceptually, it's not as offensive as what was proposed the last time, okay. The last time, it put the onus on the landowners to, I think, create a public access, if I'm not mistaken, or something to that effect, okay. But the maintenance responsibility based on something that was created by an ordinance of the County, that could not happen. This one, again, I believe is piecemeal. If you had said that you had worked it out with the Council Members and this is something that you guys could go with, then I'd support it, okay. But it looks like there wasn't a meeting of the minds here. What I'm concerned about here—and this is the first time I've spoken about this matter all during the times we've been in Committee, when at first reading, and now today. This project is in my district, this rezoning, okay. And yeah, there are greater principles involved here, right. You want to have, maybe, access or have setbacks like shorelines, you know, beach shorelines or river shorelines, whatever the case may be. But I don't know how, legally, an applicant can create a 20-foot shoreline setback. These setbacks normally are creatures of statute or ordinance, whether it be building setbacks or things like that. How does an applicant or any person other than a governmental entity create a setback? I don't know. I just think it's impossible. What do you do? Create an easement? That's not what's being asked for here. And anybody who's looked at that area knows that that's not suitable for public access. Page 18 Hawaii County Council-17 June 16,2021 If the Council, in its wisdom, at some point wants to create a blanket ordinance relating to things and grandfathering projects or properties that already have encroachments into the area that they would like to see protected, that's one thing. But I agree this is piecemeal legislation. I wouldn't mind it if you had agreed to it, but I have to vote against this thing. Thank you. CHR. DAVID: Thank you, Mr. Chung. Any other comments in Hilo before I come back to Kona? Seeing none, anyone here? Mr. Inaba, do you have your light on? MR. INABA: Yes, thank you. Do we have anyone from Planning in Hilo? (Note: At this time, Planning Director Zendo Kern came forward to address the members of the Council, via videoconferencing from Hilo.) MR. INABA: Good morning, Director Kern. Thank you for being here. Could you share a little bit about what, if any, setback rule or Code exists regarding this topic? MR. KERN: Yeah, good morning, Madam Chair, members of the County Council_ Zendo Kern, Planning Director. Yeah, so, the setbacks would be under Chapter 25, Section 25-5-136, for minimum yards. And the minimum yards for the MCX zoning in this case would be front yard would be 20, and side and rear yards are none. There is no setback required by Code for this zoning on the side or rear yards. Does that answer your question? MR. INABA: I don't think so, sorry, because I don't think I understand the yard terminology as it would apply to their property. MR. KERN: I'll explain yards then. So, yards would be the setbacksfront, side, rear—on a property that would be generally where open space would be required or certain allowable projections. So, for example, on like a 10,000-square foot residential lot, you might have a 10-foot side yard setback. So, when we think about yards, that's what we're looking at. So, in this case, it would be similar to like, I'd say, a shoreline setback as well when you're dealing with a property that's located on the shoreline. And so, it's prescribed in Chapter 25 in Code what those setbacks would be. For example, on an agriculture parcel, it would be 30 front and rear and 20 on the sides if it was over an acre. So, in this case, it's as for the MXC zoning what the front yard is and then what the side and rear yards are. And so, the requirement for an MCX property on the rear yard or rear setback would be zero. MR. INABA: And we have nothing in our Code that changes that if there's a body of water there? If there's no Page 19 Hawaii County Council-17 June 16,2021 MR. KERN: Well, when there's that's where, I think, we probably want to have Corporation Counsel opine on that because if there's an ocean there, then you're dealing with a shoreline setback. This is a unique situation, and I think that Corporation Counsel would be best to opine on how we'd handle the situation. MR. INABA: Thank you. Corporation Counsel, can you please come to the table? (Note: At this time, Corporation Counsel Elizabeth Strance came forward to address the members of the Council.) MR. INABA: So, in following up on some of the concerns that were expressed by the applicant considering this amendment, if it was to pass, it would be a taking. Can you share your mana`o on that? MS. STRANCE: Elizabeth Strance, Corporation Counsel. Okay, where to start. The proposals that have been made do present very serious constitutional issues and challenges. One of the seminal United States Supreme Court decisions on regulatory taking had to do with a case where a homeowner wanted to expand the footprint of his or her home, and the commission decided, as a condition of being permitted to do that, they would have to create an access easement to the ocean. And the United States Supreme Court found that that was a classic regulatory taking situation. So, this situation is very much like that. There are a couple of layers of concerns that I would have. Let me just start with put taking aside for a minute. If the purpose of the amendment is to change the Zoning Code for everybody, the existing Zoning Code requires that that be done by a separate bill. In addition, the Hawaii County Charter requires that any piece of legislation deal with one issue. And so, if you're starting to add things that are outside the scope of the application, then there are concerns about that. In looking through the Code, I did not see the type of amendment that had been discussed as being part of that chapter. So, when you start to add something else, there would be concerns about process. Beyond that in this particular situation, there's not a change in use of the property. There's a request to conform the zoning to the use that has been in existence for decades. And so, you have a process where an applicant came to the County to try to conform what was on the land with what the Zoning Code says. So, that was the purpose of it. There's a lot of discussion at the Planning Commission level. In reading through the attached reports to the bill, Planning Commission addressed what's going to happen if someone wants to develop this property. They included in that discussion that, depending on the type of development, there may have to be exaction fees or impact fees that would be subject to some sort of uniformity in application that would be used with all properties. Page 20 Hawaii County Council-17 June 16,2021 It talks about, depending upon the uses, what would have to be done with shoreline. Because even though it's not on the ocean shoreline, it's still within an area that is subject to that kind of review. So, the fear that I think is expressed here is premature. And it's trying to anticipate, like, the most intense development and then either approve or disapprove or amend according to that. But once that application came here and after all of those discussions were held about impacts and those sorts of things, the applicant actually loses control over the process. There's not a process for the applicant to withdraw his application and say, "You know what? I'll keep the nonconforming use because this is just way too expensive." And I think that that's one of the reasons that, for due process consideration, an applicant should know ahead of time what he or she or it might face down the road. So, to get to the goal line and then have these type of impositions placed on it without really an opportunity to back out raises real due process concerns. And the analogy that I was thinking about was you go to a restaurant, you park your car in the parking lot, you order, you eat your dinner, and you get your bill and you get a bill for parking. There's no sign out in the parking lot that says what the charge for parking is going to be. You've already eaten your dinner, and you have the owner of the restaurant saying, "Well, it's important. We've got to pay for our parking lot." And I don't think anybody would agree that that would be a fair thing for the restaurant to do. And in some ways, that's what this process is doing. It's inviting an applicant to come to government, providing an avenue,providing a forum to have discussions, having discussions, reading the report. All of the issues that you folks have been talking about were discussed, and the conclusion was made that there wasn't an impact at this time but there could be later. And if there is later, then the Planning Department will impose, you know, with the requirements, if the density is increased, there's discussion about traffic studies and existing impact on traffic. There's discussion about sewage connection. There's discussion about the relationship to the river. There's also discussion in that report about the pedestrian and bike plan applicable to that area and how this property and the amendments affect that and it doesn't. Because, all the paths go around it. And there is another area adjacent to the park adjacent to the property where the government has a shared access and use of that river. And so, the County has set up an elaborate system of planning and how to change plans and general plans and committees and those sorts of things. All of those were discussed at the commission's level, and they reached their conclusion. And so, the due process concerns about an applicant then coming to County Council and Council Members kind of having a feeling or desire about the importance of an area without it having been vetted and gone through an elaborate planning Page 21 Hawaii County Council-17 June 16,2021 process, which involves the community, involves a lot of different interests, is contrary to the planning process that you folks have set up. And it creates process concerns for the applicant. MR. INABA: Can Igo ahead. MS. STRANCE: So, let me get to the setback and taking issue that has been raised by the applicant. The Fifth Amendment of the (United States) Constitution ensures property rights. And that's the starting point of all land use regulations, that a person should be able to do what they want with their property, subject to reasonable governmental regulations. And those are set out. In Hawaii, they're set out in our State Constitution. They're set out in our State statute. They're set out in our County Charter and in our County Code. The County Council is a policy-making and legislative body. It's not a parry to a bilateral contract. It's a legislative policy-making body. And when it's looking at these types of concerns, it needs to be looking at them from this general and broader policy issue. Once it starts exacting one thing from one property owner and something else from another property owner, then you have equal protection issues, you have due process issues, and you have spot-zoning issues, which I know has been raised as a concern in other contexts by this body. And so, the primary process that this body has for orderly development is through the legislative process that it has set out and within certain forums that it has set up. And so, in this circumstance, there are a number of legal and constitutional issues that jump out, some much more clearly than others. But from a legal standpoint, I can't support these amendments because I do think that they have real and significant legal ramifications. And the last thing I would like to see is another piece of property held up in mitigation for five, ten, fifteen, twenty years over these constitutional issues. This one's pretty clear, though, I think. MR. INABA: Okay, thank you, Corporation Counsel. And thank you, Mr. Kaneali`i-Kleinfelder and Mrs. Kimball. Like I said in the previous meetings, I support the intention behind this. But as we've had these conversations go on, some of what Corporation Counsel is saying is a little concerning to me. Can I just clarify again, Director Kern? So, there's nothing at either the State or County level that would put a setback on a body of water, whether it's connected to the ocean or not? MR. KERN: Correct. As far as the County has operated, there is no additional setbacks from a river or stream, in which this case would be generally rivers and streams are connected to the ocean. So, in this case, the setback would be zero. MR. INABA: Okay, thank you. And regarding one of Corporation Counsel's comments, at such time that an applicant does come before this body, is it not something that couldI'm not—this is a process question. So, could somebody Page 22 Hawaii County Council-17 June 16,2021 not withdraw an application if it was before this Council and things were not going right? Because, I just kind of wanted to track on what Judge Strance said. Does anybody have an answer to that? Or any of my colleagues who might know because we withdraw motions sometimes? But I just want to make sure I know, moving forward, that if something comes forward like this and it's not working for an applicant. Obviously, I think we're always trying to do what's right here as a body. But if it was at that point, could an applicant not withdraw their application? CHR. DAVID: I see Mr. Richards' light. Do you want to respond? MR. RICHARDS: I'm just turning it back on (inaudible). I don't know about this. CHR. DAVID: Okay, all right. I'm not sure, Mr. Inaba. MR. INABA: Okay, thank you. Generally, I appreciate the process that we do have—department to commission to Council. I see all that. We do play an important role in this process, not to the extent maybe that things could be considered taking but I do support this process. But I also support, maybe, us getting something on the books moving forward to address flood areas and areas that will be affected by sea-level rise. So, I won't be supporting this piece before us today. Thank you for sharing your mana`o on this topic, Judge Strance. Chair, I yield. CHR. DAVID: Thank you, Mr. Inaba. Mr. Richards, go ahead. MR. RICHARDS: Thank you, Chair. And thank you, Judge. When I first heard in our previous conversations, I thought about the Fifth Amendment as well, but you very eloquently articulated the concerns and the case law behind it. I had a question for Director Kern. Director, the application is to go from open. This application, if nothing was to be done, does it change any operation? Or is this more of a housekeeping for our County to make things better for us? MR. KERN: It's a housekeeping item, generally. I think it makes things better for the County as well as for the applicant. The current use of the building as a commercial is grandfathered in, so they could maintain the nonconforming status of the operation. But as the applicant expressed earlier on, in the process it makes for many a different challenges. So, having the use and the zoning conform together makes sense all the way around. MR. RICHARDS: And then on the history of the zoning, I know it wasI think was post-tsunami, it changed to open. Is that '63? Which tsunami (inaudible) history of those? Page 23 Hawaii County Council-17 June 16,2021 MR. CHUNG: Madam Chair, is this germane to the motion? CHR. DAVID: Thank you, Mr. Richards. The motion is on the amendment. Mr. Chung is making a point of order. MR. RICHARDS: I take Mr. Chung's point, and I would say yes because I agree. I don't think the amendment is appropriate. I'm just trying to understand going forward. So, a little latitude, Chair? Very little latitude, I promise. CHR. DAVID: Okay, very little. MR. RICHARDS: Just on the history of that because, again on the amendment, we had this conversation previously, and I understand the intent of what Ms. Kimball and Mr. Kaneali`i-Kleinfelder are trying to accomplish. But by the same token, this has been something that's been going on a long time. And I do not support the amendment because I believe it is a taking, and I believe there's other ways to manage this. And as the judge has pointed out, there are venues around this and ways to access around this. And if this is truly important for our County, a causeway could be built or something like that. But I don't think that it's appropriate to tack on something and a condition when we're actually trying to do something. And I was just trying to understand a little bit history on that. So, I take Mr. Chung's point. And that's why I was just asking that question. I don't have to ask the question further. CHR. DAVID: Thank you, Mr. Richards. I assume you're yielding? MR. RICHARDS: I'm sorry, Chair? CHR. DAVID: Are you yielding? MR. RICHARDS: Yes. CHR. DAVID: Thank you very much. All right,whose light was on first over here? Ms. Kimball or Ms. Kierkiewicz? MS. KIMBALL: I've already spoken. CHR. DAVID: Ms. Kierkiewicz, go ahead. MS. KIERKIEWICZ: Thank you, Chair. And thank you, Judge Strance, for those clarifying remarks. It was quite enlightening. I'm not going to be supporting this amendment today. I don't think it's the venue for broad-sweeping change that I think my colleagues are going after. I appreciate it but I just don't think it's the vehicle. Page 24 Hawaii County Council-17 June 16,2021 And to some of the comments Judge Strance made about the process, it needs to be clearly defined for members of the public. They can't expect to be going on a jog and you put them through a marathon that's what's coming to my mind. And so, I want to make sure that, going forward, we respect the process that we have in front of us so that there's trust in the system and applicants aren't feeling overburdened by what I think is a very simple request in the matter before us. So, again, I appreciate the effort but I can't be supporting these amendments today. Thank you, I yield. CHR. DAVID: Thank you, Ms. Kierkiewicz. Ms. Kimball, go ahead. MS. KIMBALL: Thank you, Chair, and thank you, Judge Strance, for all your input on this. First, to just respond to the germaneness of Council Member Richards' question and the idea, the concept of taking, it is relevant as to why it was initially rezoned as open because that is part of the reason I don't necessarily view this as taking because it's currently open. If the buildings were to go, it couldn't be redeveloped and that's why there's a logic behind keeping a buffer there. Because of that, honoring that led me to the zoning of open. I want to talk about process a little bit because I think while we agree at some levels, I actually disagree at another level, which is this is a bill and we as a body, the Council, have a right to amend bills. That if it was not an option for us to make amendments, it wouldn't be presented to us as a bill. That is how our body works. Furthermore, it is within the Code, like I mentioned, Section 25-2-44, conditions for change of zoning. It is clear that we do have, as a body, the capacity to add conditions based on certain criteria, which I presented earlier. So, while I do agree that there is a robust process in place with well-informed, probably more so than us around planning issues, there is this process in place. The process through which it goes through our body is also in place and clearly defined by Code and by Robert's Rules, as a body that has the ability to amend items that come before it, whether this rezoning ordinance should come in this format, if we should have a chance to comment and discuss them. I mean, I suppose that's for further discussion. But my interpretation, based on Section 25-2-44, is that we do have this ability. It is a bill. We have the ability to amend it. I will speak to, also, Council Member Chung's objection, which is legitimate. We had this conversation after the first reading in Committee and then we had the first reading. And there were the initial proposed amendments, and there were certainly significant problems with that. And we did make an effort to communicate and discuss with Mr. Yamanaka a variety of options—setbacks, easements, PONC (Public Access, Open Space, and Natural Resources Preservation Commission)purchase—and we haven't quite gotten there yet it sounds like. I think that there is still opportunity to converse and work together in good faith and potentially come to an agreement. I hope that's the case. Page 25 Hawaii County Council-17 June 16,2021 It's clear that we don't have the support for this amendment, but as we take the vote on that and move forward, I would like the body to consider giving us a little more time to continue to work with the applicant. But since this is a housekeeping measure, there is no rush and I think we should take our time and explore it a little bit further if possible. Thank you, Chair. I yield. CHR. DAVID: Thank you, Ms. Kimball. Anyone else? Hilo, if you have any comments,just shout out. If not, okay. MS. LEE LOY: Chair? CHR. DAVID: Oh, go ahead, Ms. Lee Loy. MS. LEE LOY: Thank you. I'm sitting back here and listening very carefully and, for me, we have a duty. And I think Ms. Kimball actually so eloquently pointed it out, what this body's duty is. I think my challenge, as it is to this amendment, is we've been advised by Corporation Counsel the language of this amendment has some serious constitutional challenges. There is a due-process issue, regulatory taking, and leads to contractual or spot zoning. I take my job very seriously here, and I cannot support this amendment for the plain and simple fact that, from what I've heard from Corporation Counsel, it is invalid and has some legal challenges. And for that simple reason alone, I will not be supporting this amendment. Chair, I yield. CHR. DAVID: Thank you, Ms. Lee Loy. MR. CHUNG: Yeah, Chair? CHR. DAVID: Go ahead, Mr. Chung. MR. CHUNG: Very briefly, I wanted to address Ms. Kimball's point about our ability to impose conditions or add amendments. That's actually understood; we all know we can do that. But it's not an unfettered right. We are constrained by various things, and right now one of the most important things I've heard is that this may run afoul of constitutional issues. We cannot do anything that's unconstitutional. But my objections—she referenced my objections although I'm not real clear as to what she said. But all I said was I don't know how an applicant can be required to create a setback because that is a creature of statute or ordinance. That's all I said. And short of any kind of agreement, I will not be supporting it. It just doesn't make any sense. I know the intent but the mechanism doesn't make any sense. Thank you. Page 26 Hawaii County Council-17 June 16,2021 CHR. DAVID: Thank you, Mr. Chung. Going back to Kona; Mr. Inaba, go ahead. MR. INABA: Yeah,just real quick. I do want to reaffirm my support of the intention of this because we need to do something. So, maybe we can work on this after this amendment because this is concerning, that we had to come to this place today with talks about things being unconstitutional when there should be things in the Code or in the statutes that don't make us have to have these conversations here. So, thank you again for this attempt. CHR. DAVID: Mahalo, Mr. Inaba. All right, on the MR. KANEALI`I-KLEINFELDER: Chair? CHR. DAVID: Oh, go ahead, Mr. Kaneali`i-Kleinfelder, and then we'll close the discussion on the amendment. MR. KANEALI`I-KLEINFELDER: Thank you very much, ma'am. I'm going to need a little bit of latitude here. Ms. Strance, can you come back up? CHR. DAVID: She's at the table. MR. KANEALI`I-KLEINFELDER: Okay, beautiful. Thank you very much for your opinion, and we did talk about this briefly yesterday. I looked for your email, but I didn't see it this morning. As far as the withdrawal process discussed by Mr. Inaba, when can an applicant withdraw a motion? Because, I know that Council can withdraw a motion whenever we so choose. MS. STRANCE: The concern that I expressed is that the applicant isn't making a motion before the County Council. A member of the County Council brings forward the bill. At that point, the applicant is no longer the sponsor of his/her/its application. It's within the hands of the presenter of the bill. So, that's the concern that I'm expressing. The applicant's participation in the process is not clear. The Charter allows there are some processes for the Council to send back amended bills for further consideration. Depending upon how that process goes, then there might be a possibility there. But I think just the logistics of it is the bill is introduced by a Council Member. MR. KANEALI`I-KLEINFELDER: True but I've seen it in my short tenure of many withdrawals by applicants at a certain point in the process due to many different circumstances. So, I guess I'm gently rebutting your claim that they cannot withdraw the application. And given today's show of negative and positive votes for the amendment, I mean, at any time I think they could work with any Council Member to have their motion withdrawn. Would you agree with that? Page 27 Hawaii County Council-17 June 16,2021 MS. STRANCE: I think a Council Member who presents a bill appears to have the authority to withdraw that bill. And the point is that the applicant is at the mercy of the presenter of the bill. MR. KANEALI`I-KLEINFELDER: Okay, fair enough. So, I watched this with great interest because at the heart of everything that I've learned is we have a very unique law set in the State of Hawaii in the County of Hawaii, which both protects our natural resources and recognizes the importance of our natural resources, but also balances that with making sure that development can happen in parallel to protecting our resources. And I'm leading with that because I have some questions for you. In this case, who has jurisdiction of the waterways? MS. STRANCE: The State is the owner of the waterways in the State of Hawaii. MR. KANEALI`I-KLEINFELDER: Okay. So, DLNR (Department of Land and Natural Resources) would have control of the waterways. Correct? Or the State in general? Must be with the State. Okay, we'll leave it with the State. Okay. MS. STRANCE: The question that I understood that you were asking yesterday was about where's the boundary. And in this case, the boundary shown on the maps is the "bank of the waterway" I think is what the property description says. MR. KANEALI`I-KLEINFELDER: Understood. CHR. DAVID: Mr. I'm sorry. MR. KANEALI`I-KLEINFELDER: This really is a good question for me, though, because any shoreline that abuts the ocean requires a 40-foot setback. That's State law. But in this case, we have what I would very cautiously call a river because it is not quite a river. If I was to call it anything, I would call it an estuary, but it's definitely connected to the ocean and directly across from the property is a boat harbor. Past uses of this shoreline—if anyone does a search, you can find uses that show docks and boats, or boats being docked or at least moored along this section of the coast where the rezoning is being proposed to take place. So, we have past use and we have shoreline access. We have what the State does in the SMA (Special Management Area)process, which is require a 40-foot setback for a shoreline. And in this case, we have a very interesting blend of being a river, a river mouth, or an ocean. So, I found this a very interesting and very unique parcel. And so, my question for you yesterday was who has jurisdiction over the land that abuts a waterway. And I would be very cautious here because this waterway, although it's been called a river or a stream, I would cautiously use that. And there must be, somewhere, a definition of what a river or a stream would be, but Page 28 Hawaii County Council-17 June 16,2021 in this case, knowing the area, I would wonder what that definition would be. So, the question stands, who has jurisdiction over the land along this section of the coast? MS. STRANCE: What I would do is refer your attention to page 6 of the report where there's a discussion on Chapter 205A. MR. KANEALI`I-KLEINFELDER: Correct. MS. STRANCE: And that's as much as I can respond to your question. MR. KANEALI`I-KLEINFELDER: Okay. But jurisdiction would lie to County or to State for the property in question? It's a good question but I need your help on this one, ma'am. MS. STRANCE: Thanks a lot. MR. KANEALI`I-KLEINFELDER: It's what I asked you yesterday. MS. STRANCE: You were asking about where the boundary was and so I looked up the boundary. So MR. KANEALI`I-KLEINFELDER: What would that boundary with your given boundary, then, you're saying that the County has jurisdiction over that property because the State's boundary is the waterway or the shore. MS. STRANCE: That is my understanding. If Mr. Kern has a different understanding of the planner, then I would hear from him. MR. KERN: Zendo Kern here. I would concur. Once it hits the water, it's State; and once it's solid land, it would be the applicant or the County would have jurisdiction over that side of it. MR. KANEALI`I-KLEINFELDER: Okay. And again, touching back on what you said earlier, there is no setback required for a river for a rear-facing yard for commercial property. Correct? Or commercial zoning. MR. KERN: For the MCX zoning, correct. MR. KANEALI`I-KLEINFELDER: Okay, which I understand as well. So, I'm watching all this with interest because everything I know and in my gut is to protect shoreline access. That's what I was taught. That's what we've seen again and again in different developments across the County. But in this case, we have a very questionable set of shoreline where we can call it a river, we can call it an Page 29 Hawaii County Council-17 June 16,2021 ocean. And I feel that, in my role as a County Council Member, it is my duty to protect the rights of the citizens of the County and, as we've been told, to balance that with development. And so, I'm listening today with great interest because, in this case, this body is hesitant to protect what we're calling a shoreline access setback even though we do have complete jurisdiction over this land as is being defined today. And I believe this raises some very interesting questions going forward. And I am thinking about different things for our future, but for our immediate future for this amendment today, we need to be very aware of what we're doing. And this is no small change. This is a change from open to commercial. This is huge. And purely—I'll leave that aside. Judge, can you define what a taking is? Or Ms. CHR. DAVID: Mr. Kaneali`i-Kleinfelder, your five-minute bell went off. Maybe if this is your—can you please make this your last question? MR. KANEALI`I-KLEINFELDER: Yes, Chair. Nah, you know what, I'll leave it. Thank you. No, I'd like to know. What iscan you define "taking,"please, for me, Ms. Strance. MS. STRANCE: Taking? MR. KANEALI`I-KLEINFELDER: Yup. MS. STRANCE: Taking, as a general statement, is either of government acquisition physically taking of property—or imposing regulations on property to such an extent that it lacks reasonable use by the owner. MR. KANEALI`I-KLEINFELDER: I am interested to know why requiring a setback from a shoreline for shoreline access would be considered a taking. That would be my final question, Chair. CHR. DAVID: Thank you. I think Corporation Counsel responded to that question. And that being said, are you done, Ms. Strance? MS. STRANCE: I mean, I would be repeating myself CHR. DAVID: Yes. MS. STRANCE: That it would deprive the owner of the use of that area of his/her/its property. And it's not an existing type of regulation that is already in effect on the property. So, it would be imposing an additional regulation on the property. Page 30 Hawaii County Council-17 June 16,2021 CHR. DAVID: Thank you, Judge Strance. Mr. Kaneali`i-Kleinfelder, are you yielding? MR. KANEALI`I-KLEINFELDER: I respectfully yield. Thank you, Chair. CHR. DAVID: Mahalo. Seeing that there's no other lights here and I assume in Hilo, I'm going to close this up with some final comments. One question for Director Kern. Mr. Kern, is this property located within the Coastal Zone Management area and the SMA area? MR. KERN: Yes. CHR. DAVID: Okay. So, here we go. We're talking about processes. And I understand the questions and concerns raised by Ms. Kimball and Mr. Kaneali`i- Kleinfelder regarding making sure that we do everything to protect our citizens and their rights to have access to public places, specifically to our ocean shoreline resources, and protect them from climate change and the water rising and that sort of thing. The reason I asked Director Kern that question is because anything, in my opinion, anything that is to happen with this property from here forward, because it's in the CZM (Coastal Zone Management) area and the SMA area, there are very strict, stringent State law on what you can and cannot do. And at the time this applicant decides on their own volition to move forward with anything having to do with this property, they are required to fulfill the regulations that protect these things that you're talking about. So, for me, the reason why I'm saying this is piecemeal, everything that you folks are trying to accomplish, if we move forward in this manner, every single application that comes forward—and there's the piecemealI know we have the authority to do that, but our authority first and foremost is to follow the laws not only in our Charter but more so in our State statutes and our Constitution because when we tread on those areas, we set a precedent that I am not willing to set one today. And so, for me, I appreciate your efforts but I really believe that this applicant, because even though there's no setback that you referred to, Mr. Kaneali`i- Kleinfelder, they will be required to conform to the SMA rules of the State and the Coastal Zone Management area because it's a higher jurisdiction than we, as County, can impose. They have a huge responsibility to the people of this State. And I say that because in one of—in a personal experience, if you intend to bring even a piece of equipment bigger than a little lawnmower into the coastal zone area or the SMA area, you need a permit. So, to me, there are processes and procedures that are in place to ensure everything that you have raised as a concern for the community. And I, for one, am a staunch supporter of the right to public access, whether it's shoreline, mountain, or anywhere on this island. Page 31 Hawaii County Council-17 June 16,2021 So, given that, I'm hoping that my position and explanation will give you some sort of comfort that, moving forward, this applicant and anything he decides or she decides to do will be closely scrutinized under State laws as well as County processes. So, given that, I respectfully cannot support this amendment. So, on the amendment, Council Members. Mr. Clerk, roll call, please. Vote on Motion to The motion to amend Bill 34 with the contents of Amend: Comm. 233.3 failed by the following roll call vote: Failed Ayes: Council Members Kaneali`i-Kleinfelder and Kimball —2. Noes: Council Members Chung, Inaba, Kierkiewicz, Lee Loy, Richards, Villegas, and Chair David—7. Absent: None. Excused: None. (Note: Ms. Villegas voted "kanalua"then "no.") CHR. DAVID: Thank you very much. Back to the thank you, everyone, for your contributions and discussions on this proposed amendment. Back to the main motion. Any further discussion? All right, roll call vote on the main motion, if no further discussion. MS. KIMBALL: Madam Chair? CHR. DAVID: Oh, go ahead. I'm sorry. Ms. Kimball. MS. KIMBALL: Yeah, thank you, Madam Chair. As I said before, we did have some discussions with Mr. Yamanaka. It was a challenge. I've used up three owners that he's responsible to represent. There were lots of emails going back and forth trying to work something out. I would like to propose a motion to postpone decision-making on this until our next Council hearing,just to give us two more weeks to try to work something out. I hope that the applicant would consider to continue working with us in good faith. CHR. DAVID: Is that a motion? Are you making a motion? Page 32 Hawaii County Council-17 June 16,2021 Vote on Motion to Ms. Kimball moved to postpone Bill 34 to July 7, 2021. Postpone: Seconded by Ms. Villegas and carried by the following roll (Approved) call vote: Ayes: Council Members Inaba, Kaneali`i-Kleinfelder, Kimball, Villegas, and Chair David–5. Noes: Council Members Chung, Kierkiewicz, Lee Loy, and Richards –4. Absent: None. Excused: None. CHR. DAVID: Thank you. So, on that note, on the postponement, Ms. Kimball, I just want to make sure that when it—please try toI'm not sure what you're going to work out, but at the next meeting if the applicant is not in any position to entertain any more proposed, you know, I think we have actually talked about this too much at this point in time. I'm not sure what else, but I wanted to give you an opportunity to reach out. And I'm saying that the next time we see this, it will probably be just for a vote. Okay? MS. KIMBALL: Understood, Chair. CHR. DAVID: Thank you. All right. Bill 35: AMENDS ORDINANCE NO. 09-138 WHICH RECLASSIFIED LANDS FROM (Draft 2) SINGLE FAMILY RESIDENTIAL– 10,000 SQUARE FEET (RS-10) TO INDUSTRIAL-COMMERCIAL MIXED –20,000 SQUARE FEET (MCX-20) AT WAIAKEA HOUSELOTS, WAIAKEA, SOUTH HILO, HAWAII, COVERED BY TAX MAP KEY: 2-2-035:034 (Applicant: JP Automotive, LLC) (Area: 22,300 square feet) The Windward Planning Commission forwards its favorable recommendation to approve this amendment, which would allow a five-year time extension to Condition D (Time to Complete Construction). The property is located at 513 Kalanikoa Street, Waiakea Houselots. Reference: Comm. 234.3 Intr. by: Ms. Kierkiewicz (B/R) First Reading: June 2, 2021 Motion to Approve: Mr. Richards moved to pass Bill 35, Draft 2, on second and final reading. Seconded by Mr. Inaba. CHR. DAVID: Ms. Kierkiewicz stepped out for a few minutes, but any more discussion on this final reading matter? Seeing none, all those in favor of approving Bill 35, Draft 2, at second and final reading, please say "aye." Page 33 Hawaii County Council-17 June 16,2021 Vote on Bill 35: The motion to pass Bill 35, Draft 2, on second and final Draft 2 reading was carried by the following voice vote: (Adopted) Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kimball, Lee Loy, Richards, and Chair David–7. Noes: None. Absent: Council Members Kierkiewicz and Villegas –2. Excused: None. CHR. DAVID: Thank you. Move on. Bill 36: AMENDS ORDINANCE NO. 723 WHICH RECLASSIFIED LANDS FROM SINGLE FAMILY RESIDENTIAL(RS-10) TO NEIGHBORHOOD COMMERCIAL (CN-10) AT WAIAKEA, SOUTH HILO, HAWAII, COVERED BY TAX MAP KEY: 2-2-041:PORTION OF 75 (Applicant: Kelly Ka ig moto) (Area: 9,425 square feet) The Windward Planning Commission forwards its favorable recommendation to approve this amendment, which would repeal all conditions of approval while retaining the Neighborhood Commercial district classification to allow for the development of a retail building. The property is located at 2169 Kino`ole Street, Waiakea Homestead Lots. Reference: Comm. 235 Intr. by: Ms. Kierkiewicz (B/R) First Reading: June 2, 2021 Motion to Approve: Ms. Kierkiewicz moved to pass Bill 36 on second and final reading. Seconded by Mr. Richards. CHR. DAVID: Any further ? MS. KIERKIEWICZ: I just wanted to mahalo the applicant—Ms. Kagimoto. I know her planning consultant—Darren Arai—had been patiently waiting in the Hilo chambers, videoconferencing this. And we've had robust discussion in Committee and at first reading. So,just looking for continued support from my colleagues. Thank you, I yield. CHR. DAVID: Thank you very much. Any further discussion? Seeing none, all those in favor of approving Bill 36 at second and final reading,please say "aye." Page 34 Hawaii County Council-17 June 16,2021 Vote on Bill 36: The motion to pass Bill 36 on second and final reading was (Adopted) carried by the following voice vote: Ayes: Council Members Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, and Chair David—7. Noes: None. Absent: Council Members Chung and Villegas —2. Excused: None. Bill 41: AMENDS ORDINANCE NO. 20-45, AS AMENDED, THE OPERATING BUDGET FOR THE COUNTY OF HAWAII FOR THE FISCAL YEAR ENDING JUNE 30, 2021 Appropriates revenues in the Federal Grants —2020 Emergency Management Performance Grant Program COVID-19 Supplemental account($50,000); and appropriates the same to the 2020 Emergency Management Performance Grant Program COVID-19 Supplemental account. Funds would be used to develop an emergency food plan for Hawaii Island. Reference: Comm. 273 Intr. by: Mr. Kaneali`i-Kleinfelder(B/R) First Reading: June 2, 2021 Motion to Approve: Mr. Kaneali`i-Kleinfelder moved to pass Bill 41 on second and final reading. Seconded by Mr. Richards. CHR. DAVID: Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: I have no comment, ma'am. Ready to move on. CHR. DAVID: Thank you. All right, seeing none, all those in favor of approving Bill 41 at second and final reading, please say "aye." Vote on Bill 41: The motion to pass Bill 41 on second and final reading was (Adopted) carried by the following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, and Chair David—8. Noes: None. Absent: Council Member Villegas — 1. Excused: None. Page 35 Hawaii County Council-17 June 16,2021 Bill 42: AMENDS ORDINANCE NO. 20-45, AS AMENDED, THE OPERATING BUDGET FOR THE COUNTY OF HAWAII FOR THE FISCAL YEAR ENDING JUNE 30, 2021 Appropriates revenues in the Federal —Emergency Rent Assistance 2 COVID-19 account($12,000,000); and appropriates the same to the Emergency Rent Assistance 2 COVID-19 account($10,500,000) and the Emergency Rent Assistance 2 Administration COVID-19 account($1,500,000). Funds would be used for rent, utilities, and other housing expenses in relation to the COVID-19 pandemic. Reference: Comm. 274 Intr. by: Mr. Kaneali`i-Kleinfelder(B/R) First Reading: June 2, 2021 Vote on Bill 42: Mr. Kaneali`i-Kleinfelder moved to pass Bill 42 on second (Adopted) and final reading. Seconded by Mr. Inaba and carried by the following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, and Chair David—8. Noes: None. Absent: Council Member Villegas — 1. Excused: None. CHR. DAVID: Thank you, Mr. Clerk. Bill 43: AMENDS ORDINANCE NO. 20-45, AS AMENDED, THE OPERATING BUDGET FOR THE COUNTY OF HAWAII FOR THE FISCAL YEAR ENDING JUNE 30, 2021 Appropriates revenues in the Federal Grants —Coronavirus State and Local Fiscal Recovery Funds account($19,570,769); and appropriates the same to the Coronavirus State and Local Fiscal Recovery Funds account. Funds would be used to provide resources to support response efforts, address economic fallout, and assist with recovery in relation to the COVID-19 pandemic. Reference: Comm. 275 Intr. by: Mr. Kaneali`i-Kleinfelder(B/R) First Reading: June 2, 2021 Motion to Approve: Mr. Kaneali`i-Kleinfelder moved to pass Bill 43 on second and final reading. Seconded by Mr. Richards. CHR. DAVID: Any comments, Mr. Kaneali`i-Kleinfelder? Page 36 Hawaii County Council-17 June 16,2021 MR. KANEALI`I-KLEINFELDER: I'm just very happy to see these funds coming in to our County. They're much needed. Mahalo, Chair. CHR. DAVID: Thank you. Anyone else? Seeing none, all those in favor of approving Bill 43 at second and final reading, please say "aye." Vote on Bill 43: The motion to pass Bill 43 on second and final reading was (Adopted) carried by the following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, and Chair David—8. Noes: None. Absent: Council Member Villegas — 1. Excused: None. CHR. DAVID: Before we go, Mr. Kaneali`i-Kleinfelder, I believe the five-day hold request was made on Bills 41, 42, and 43. MR. KANEALI`I-KLEINFELDER: Yes, thank you. Vote on Motion to Mr. Kaneali`i-Kleinfelder moved to suspend Council Suspend Council Rule 15 to waive the 5-day hold for reconsideration of Bill Rules on Bills 41, Nos. 41, 42, and 43. Seconded by Mr. Richards and carried 42, and 43: by the following voice vote: (Approved) Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair David—9. Noes: None. Absent: None. Excused: None. REPORTS: The Chair directed the Council to proceed to the next order of business, Reports. (There were none.) REFERRALS FOR The Chair directed the Council to proceed to the next order of business, Referrals EXECUTIVE for Executive Session. SESSION: (There were none.) OTHER The Chair directed the Council to proceed to the next order of business, Other BUSINESS: Business. Page 37 Hawai`i County Council-17 June 16,2021 (There were none.) ANNOUNCE- The Chair directed the Council to proceed to the next order of business, MENTS: Announcements. (There were none.) CHR. DAVID: 1 believe that takes us to the end of our ADJOURN- There being no further business. at 10:51 a.m., Ms. Lee Loy moved to adjourn the MENT: meeting. Seconded by Mr. Inaba and carried by the following voice vote: Ayes: Council Members Chung, Inaba, Kaneali`i-Kleinfelder. Kierkiewicz, Kimball, Lee Loy. Richards. Villegas. and Chair David— 9. Noes: None. Absent: None. Excused: None. CHR. DAVID: I want to thank everyone for their attendance and their discussions today. Thank you very much. Aloha. Council Approval: JUL 2 1 2021 COUNTY CLERK JH/dg Page 38