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HomeMy WebLinkAboutCOM 0898.011 2020-2022 ®J�gVfOF Lee L.Lord Managing Director Mitchell D.Roth Mayor •._ Robert H.Command ;j•. °• t Deputy Managing Director TE OF H►� oun o abut"t (offirr of f r apr 25 Aupuni Street,Suite 2603 • Hilo,Hawai'i 96720 • (808)961-8211 Fax(808)961-6553 KONA: 74-5044 Ane Keohokalole Hwy.,Bldg C • Kailua-Kona,Hawai'i 96740 (808)323-4444 Fax(808)323-4440 November 7, 2022 Maile David, Council Chair and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HZ 96720 Dear Chair David and Members: SUBJECT: County Council Initiated (Bill No. 194) (PL-CCI-2022-000002) Amendment to Chapter 25, Article 2, Division 4, Section 25-2-44, of the Hawaii County Code 1983 (2016 Edition, as Amended), Relating to Conditions on Change of Zone Actions As required by Chapter 7, Sec. 6-7.5 (a)(3), Hawai'i County Charter, transmitted herewith for the County Council's consideration and action are the Windward and Leeward Planning Commissions' letters and enclosures regarding the above-referenced request. Sincerely, MITCHELL D. ROTH Mayor TCouncilInitiatedBill l 94 Enclosures cc: Planning Department Comm. N . ` Ref. TO: I � County of Hawaii is an Equal Opportunity Provider and Employer. Ref' Date--- E 1 4 202 2 �,q YIOF k,® Mitchell D.Roth c� '�, Dennis Lin,Chair Mayor ` ==T 1�6e; Michelle Galimba,Vice-Chair Lee E.Lord Gilbert Aguinaldo Managing Director �, .� Lauren$clog John C.Cross �r�^®�•NP.d Louis Daniele III Wayne De Luz County of Hawaii WINDWARD PLANNING COMMISSION Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawaii 96720 Phone(808)961-8288 • Fax(808)961-8742 November 01, 2022 Maile David, Council Chair and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chair David and Council Members: SUBJECT: County Council Initiated (Bili No. 194) (PL-CCI-2022-000002) Amendment to Chapter 25,Article 2, Division 4, Section 25-2-44, of the Ilawai`i County Code 1983 (2016 Edition, as Amended), Relating to Conditions on Change of Zone Actions The Windward Planning Commission, at its duly held public hearing on October 8, 2022, considered County Council Initiated Bill No. 194, amending Chapter 25, Article 2, Division 4, of the Hawaii County Code 1983 (2016 Edition, as Amended) relating to conditions on change of zone actions. The Commission voted to forward a favorable recommendation of Bill No 194 to the County Council as recommended by the Planning Director. We are enclosing copies of the Planning Department's Background and Recommendation reports, PowerPoint presentation and the draft transcript of the Commission hearing. Sincerely, Dennis Lin, Chairman Windward Planning Commission 1CouncillnititedPL-CC I-2022-002wpc Hawaii County is an Equal Opportunity provider and Employer Maile David, Council Chair and Members of the County Council County of Hawaii November 01, 2022 Page 2 Enclosure: Planning Department Background Report and Recommendation PowerPoint Presentation Draft Windward Commission October 6, 2022 Hearing Transcript 'i i i i i �".k x� � �s, �� ��"�s �'�s���y�'�..�x �t 3 � 't.�'#�' ,�� ��"a�`"�y��*����rk"�t x'4 a-t s �3�'� n-K{-s-� §^h �. �. a� � � ? +u- .arc a#.,x .���.�ti r �'�#.�_:,,r d o z 0 C/) ---j r� ---i m 0 m r rn 0 7' X M > mm —u G� 0 0 z 0O D > m _ ® �' - !a m - rn 0 z n= m nz z n0 = z M -� ® 90 °° 0 Z r r z n r _ t„ m 0 C v "' O C cn -� -� z 0 z TJ C4 p 0 �-� p n O m n rn r r= N n 0 '� > 0 = m -n C Co z > n,, G m GJ z r to —� "...," = Q O n I D n N 0 0 0 Q Uz = z m .'?'. n Z Q rn rn 0 . rn N O D n 0 � � z 0 z n r Q° Z czr, m � = 0 D N 0 rn Z Q � Q n D m Z C? < O n n D c" z j 0 0 Oz = z n z m > i i • i n rn A = n n n A c O y m Z Z = = C/) m A A A = M N zi IT Z Z a rn O c m® cC/)n m m m m rn A Z m rn a C OmO-� Om NN wO Otin C) N � O rnO O D m Oo Z n yZ ri En > p Z m m = M z r .p A A cn m =V) m O 0 m � n � w � n m D n l7 0 O � cn � � ® z z = n v Z m OC A A z -b D = = n z z z -< tO A -� O (�} �= m rn Q rn O n w A A cn O r- -� 0 crnn r = A = y m D z z p m N70 r- bn n O M = � x o ° _ MO � O � rn rn rn - n p -< - z = O -i m m m O D �„ 0 = Z 0cu rn rn rn CP = m �_, O O A cn rOn co O A Q z rn �' -i A = N = z _ O �' O "' O tri O -„ rnN) n m rn Z m = rn C/-) N n z O � � A D n = Q m -r-i -i -7 rn O O SA m - C Z it7 O -a Z n A 3: rn o O Z m n z m Z r m D m M O z m m -� z � A z n N �... xD A rn "' r i - Z Z -mG rn Ca't O z n O rn Z rn 0 O n - Z Z O cr, 70 Z Q O � � O Q tz„ Orn � � m Q D 0 au A O n =i r Z A _{ O m N Z O O m -< z 0 A O �, = rn O n rn p m „ O > = O 0CID Z A (D z z < m 0 • m • • D C/) O0 O `o to rn Fn rn 70 Z m m � m n a O d O m rn O Z Z O z N O z O ®-n Z rn N � D O Z to � -n p ® D Z v-o -n rn m -I� D � (� O Z � �' m rn ® � �11-4 rn C� z n O >z -r, � 7 rn ® z z . . r- _ rn Orn O C C N O r 700 Z rn O C = rn -o t„ D D Oz O 0 Z z > :p. 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COMMISSIONERS IN ATTENDANCE: Dennis Lin, Gilbert Aguinaldo, Lauren Balog, and Louis Daniele III. COMMISSIONERS ABSENT AND EXCUSED: John C. Cross, Wayne De Luz, and Michelle Galimba. ALSO IN ATTENDANCE: Malia Kekai Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department),Zendo Kern(Planning Director), Jessica Andrews (Planner), Clinton Mercado (Planner), Tracie-Lee Camero (Zoom Host), Maija Jackson (Planning Program Manager), and Melissa Dacayanan-Salvador(Windward Planning Commission Secretary) And 2 members from the public in attendance. INITIATOR: COUNTY COUNCIL (BILL NO. 194) (PL-CCI-2022-000002) An Ordinance amending Chapter 25, Article 2, Division 4, of the Hawaii County Code 1983 (2016 Edition, as amended),relating to conditions on change of zone actions. The purpose of this amendment is to clarify that the Planning Director may not extend the time allowed to satisfy conditions within a change of zone ordinance unless specifically authorized by the County Council. Secretary's Note; "—" indicates that there were technical andlor internet difficulties, which made the conversation''inaudible. LIN: We will move on to agenda Item No. 2. Initiator: County Council (Bill No. 194) application or PL-CCI-2022-000002. An ordinance amending Chapter 25, Article 2, Division 4, of the Hawaii County Code 1983 (2016 Edition, as amended), relating to conditions on change of actions. The purpose of this amendment is to clarify that the Planning Director may not extend the time allowed to satisfy conditions within a change of zone ordinance unless specifically authorized by the County Council. At this time, staff are there any testifiers for this agenda item. MERCADO: Yes, we do have one (1) testifier Chair, Ms. Cory Harden. 1 EXHIBIT B(DRAFT) LIN: Okay. So, the first testifier I have is Cory Harden. If you could please come to the table here and I will need to swear you in. HARDEN: Walked up to the testifier table. LIN: If you could please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Windward Planning Commission? HARDEN: Yes. LIN: Thank you. You'll have three(3)minutes and go ahead. HARDEN: Okay, so, good morning, Commissioners and thank you for your volunteered service. I'm Cory Harden for the Sierra Club, Hawaii Island Group. We are in support of this bill. I'm a little confused on the Planning Department is saying that the bill does not change the Planning Department's current practice and I guess Councilmember Inaba is here, and I guess he will more fully explain what the changes are. I'm also disappointed that the Planning Department is not saying anything about the impacts on rezoning extensions that go on and on and I hope that you'll weigh in on that today. It's kind of a definite silence on the actual impacts of this rezoning the way it's been going for past several decades. As you know there's many impacts. Conditions can change drastically over the decades'. There might be more neighbors, more traffic, there might be similar development that got done and reduced the demand for the original type of project, and species may become endangered. You know there are birds that are going extinct in our lifetimes. Climate change is changing shorelines and flood zones, and a lot of other things. With better review the public can weigh in and the Council can take an updated look at what the community needs and what the requirements should be for the developer. It seems like some developers keep doing extensions until there's a Planning Commission or Council or Mayor that will go along with it and then they put in new conditions. I often see things like eliminating bike paths or dispensing those traffic studies and we're building less affordable housing. And some developers also seem to get rezoning for the sole purpose of selling the property at a profit and buyers know they are going to have time to work on development plans since extensions are fairly easy to get. It's a system that treats land as a commodity that works against people developing connections with the land and caring for the land. There's a tortured history for many developments. There was a recent housing scandal, there's a lot of stuff going on that probably should not be going on. So, I hope this bill will help by requiring developers to be more realistic with their proposals and again looking forward to seeing exactly what will change under this bill and discussing the impacts of current practices. Thank you. LIN: Thank you Ms. Harden. Are there any other in-person testifiers? MERCADO: Chair, she's the only one. Thank you. 2 EXHIBIT B(DRAFT) LIN: Seeing none. Tracie are there any Zoom testifiers? CAMERO: There are currently no Zoom testifiers Chair. LIN: Okay, thank you. Seeing that there is no other public testimony, can I please ask for a motion to close? AGUINALDO: I make a motion to close public testimony at this time. LIN: Thank you Commissioner Aguinaldo. Is there a second? DANIELE: I'll second that. LIN: Okay, it was moved by Commissioner Aguinaldo and seconded by Commissioner Daniele to close public testimony. Any discussion on the testimony? If not, all in favor to close public testimony please say aye. COMMISSIONERS PRESENT: Aye. LIN: Any opposed? [None] Okay, public testimony for this agenda item is now closed. Okay, is there a staff presentation? Yes, okay. Go ahead Jessica. ANDREWS: Yes, I'll go ahead with the staff presentation now for this County Council Initiated Bill, Bill 194 relating to conditions on Change of Zone actions. The request and purpose is the Hawai`i:County Council has introduced Bill No. 194, which seeks to amend Chapter 25 of the Zoning Code, Article 2, Division 4, of the Hawaii County Code 1983, 2016 Edition, as amended, relating to conditions on Change of Zone actions. The purpose of this bill is to clarify that the Planning Director may not extend the time allowed to satisfy conditions within a Change of Zone ordinance unless specifically authorized by the County Council. Now, I'll go through the proposed amendments, item by item. So, Section 25-2-44(b) it's summarized by,so, the changes proposed for this section include modifying language to clarify that requests to change or alter conditions of any Change of Zone ordinance shall be processed in the same manner as a new zone change. Furthermore, new proposed language indicates that unless specifically authorized by the County Council, extensions of time to satisfy conditions of a Change of Zone ordinance may not be allowed by the Planning Director. And below you'll see the actual changes that are proposed for this Section 25-2-44(b) so it would be removing the first phrase there(Changes or alterations of) and adding language that is underlined is added language that is crossed out is deleted just to clarify. So, added would be Request to chane or alter the and then conditions of any Change of Zone ordinance shall be processed in the same manner as a zone change, unless the Council authorizes the changes or alterations to be made by the Director. That language is existing and then following is language that's added unless specifically authorized by the Council extensions of time to satisfy 3 EXHIBIT B(DRAFT) conditions ma_y not be allowed by the Director. And the remaining existing part of this section is deleted and actually added as a section on its own. Which you'll see as follows. So, this section is 25-2-44(c) and changes proposed for this section include the deletion of all current language on failure to fulfill Change of Zone conditions within specific time limitations and the addition of submittal instructions for a Change of Zone amendment, which is currently found in the previous section, in section(b). So, essentially this section is deleted. All of this former language deleted out and here you'll see the new proposal for 25-2-44(c) which was existing language from section(b) and is just now made into section(c). Having to do with the process of applying for an amendment. Okay, the next Section 25-2-44 (d) is summarized by the draft bill proposes to add this new section to clarify that if the applicant fails to fulfill any conditions of the Change of Zone ordinance within the specified time limitations. The Planning Director or County Council may initiate the process for enactment of an ordinance reverting the affected property back to its original zoning designation or a more appropriate zoning designation in accordance with Section 25-2-43. So, the exact language is as follows: If the applicant fails to fulfill any conditions of the zone change within the specified time limitations, the Director or Council may initiate the process for enactment of an ordinance reverting the affected property back to its original zoning designation or a more appropriate zoning designation in accordance with Section 25-2-43. And with that said, the Director's recommendation is that the Planning Director recommends that the Planning Commission send a favorable recommendation of Bill 194 to the County Council. And with that my presentation is over and I'll hand it back to the Chair. LIN: Thank you staff. Commissioners do have any questions for staff at this time? If not, Councilmember Inaba, would you be willing to come up and give a brief background and discussion on this bill? COUNCILMEMBER INABA FROM AUDIENCE: Made his way to the testifier table. INABA: Yes. LIN: Yes, I'll need to swear you in. Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Windward Planning Commission? INABA: I do. LIN: Thank you, go ahead. INABA: Chair Lin, members of the Windward Planning Commission, good morning. I'm Councilmember Holeka Inaba, I represent North Kona, District 8 on the Hawaii County Council. And I think to get us started I stayed an extra day in Hilo because the language in the bill, the Director forwarded a favorable recommendation and we have had discussion both the 4 EXHIBIT B(DRAFT) Director and Maija but the language I think still is in the process of being worked out. And with that I wanted to make sure that you folks knew the intention and that the Director, we are all in the same space. If they should choose to revoke a positive recommendation based on the intention, they can do that. But basically, what we are seeing here is within different rezoning ordinances the Planning Department inserts language that grants and the authority to grant the applicant an administrative, we will call it an administrative extension. Usually, its towards the end of a rezoning bill. So, what I'm trying to do here is to remove that authority, or to remove that ability of the Department to insert that language. So, typically right now, if it's a simple rezoning they're saying five(5) years with the potential of another additional 5 years granted by the Planning Director with certain conditions needed to be met. What I would like to see however, is if we know that a rezoning process is going to take more than 5 years, let's give the applicant more than 5 years but upon expiration of that rezoning ordinance there is no ability of the Planning Department to grant an administrative extension outside the process. This process here before the Commissions and at the Council. So, really, it's a matter of transparency and ensuring that applicants will agree to complete conditions within a specific amount of time. So, it's 5 years right now, they are going get it done in those 5 years and they can't for a lack of a better words, offline just with the Department get an additional 5 years. So, with that I think that's why I really needed to be here because that's the intent of the bill and whether the language before truly represents that intent. Currently, I think that perhaps why the positive recommendation has come because I'm not sure that the Planning Department would actually support the intent of the bill but, the language needs to perhaps they'll be worked out. I have some recommendations for that but, that's truly the intention of the bill. It really is transparency and I do always want to go back to the expertise and professional experience of our Planning Department. ; So, if we know that things are taking longer now, let's give people more time to get that done. But, when we look back at a document as a Council and as, yeah, when we look back at the public record, and it says that an ordinance expires 5 years from today. We should be able to know that 5 years from today its done and we don't have to try and go to the Planning Department to see if someone got an extension for another 5 years. I do also want to state that anyone for example who got a rezoning ordinance passed yesterday at Council with that language inserted would still be entitled to that administrative extension. So, this would only be for rezoning ordinances that comes before the Council and you folks moving forward. But not for anyone who had that language and were granted that entitlement in the past. And I'm so happy to answer any questions that you folks might have. LIN: Thank you Councilman Inaba. Any questions or comments Commissioners? Director Kern? KERN: Thank you. Good morning. Good morning, Councilmember, good to see you. 5 EXHIBIT B (DRAFT) INABA: Good morning. KERN: So,just to kind of talk about this. I'm actually happy that this conversations come up because I think it'll eliminate some of the misperceptions that are out there and hopefully drill down into a practice that works for everybody in a transparent way. I know that the language still gives the Council flexibility which I do think is important in the County Council perspective. With this going forward, with I know what your intention is so, if it's a 5 year, say with a 5-year administrative time extension and we think it's going to be ten (10) years. We say this is a 10 year you know, and then it expires at that time there is no administrative time extension for that. So, we just work on trying to get the best time frames in general for that condition. Which is then as you say it's known if it was 5 years, or 10 years or if it was twenty (20) years that is what it is. Right! And so, I don't have, we don't have a problem with that, and we are happy to work with you on that. I do think though the language still gives the Council some flexibility on that which is the Council's ability. Right,which I think is a good thing. I do want to state though for the record. That from the Planning Department we do, as a director, we do not issue time extensions beyond what was allowed within the ordinance which was approved by Council. There is a misperception out there that time extensions are handed out over and over and over again and there's no diligence in what's being done. So, what we see are time extensions once that administrative time extension is done then they have to go through the entire process again. They'll submit an application for a time extension to the Department. We look at it holistically in all ways. So, if they needed a new TIAR, we have them do a new TZAR. If there is an environmental impact that's changed, we look at that impact that's changed. Sometimes conditions are changed based on the new findings that are there. So, I just really want it for the record that we do comprehensively look at that coming through and I feel that's important for everybody to know because we all just trying to work here and be diligent on maintaining and creating a home that we love. So, I'm happy that the conversation has come up, happy to work with you on that again,we still support that, and I do support the intention of hey, let's name it for what it is and if its 10 years, it's 10. As you were saying, if its 10 years its 10 years, right. So,overall, I'm supportive of this and we are happy to work with you guys. INABA: Thank you. Chair if I may. LIN: Sure, go ahead. INABA: I just want to add in this is not a bill, this is a bill that is in response to a lot of community outreach, especially in West Hawaii. But it's that language being inserted into the rezoning bills as the Director states in his recommendation has been a long-standing practice, longer than I've been alive. You too Dennis. [giggling] And for us and for the people that I represent it's about ensuring that what is stated on the record is going to be on the record and for one Planning Department to perhaps say well we won't include the language anymore one administration and then four (4) years from now we might a new administration who chooses to insert that language again. That's the reason for putting it in the Code, so that its specifically b EXHIBIT B (DRAFT) does not allow Director or Planning Department to insert that language for an administrative extensions and that's the only way we can ensure that that practice doesn't happen even if this Planning Director and this Planning staff right now would be nice enough not to include that. But it's a not struggle and I think that Council or you folks should have to face every time we see a rezoning bill, but I have to make the motion to remove Condition V which grants that, it shouldn't have to be like that. If we can be on the same page and the applicant knows what time and again going back the experience and the direction of the Department. If the Department knows that it's going take 10 years, let's kokua the applicant and make sure that they have an understanding of what it is going to take and how long things may take. So, I'm happy to answer any questions you folks may have. l LIN: Okay, any comments/questions, yeah. AGUINALDO: Mr. Chair, I get one, oh— LIN: Go ahead Commissioner Aguinaldo. i AGUINALDO: I get one for Director Kern. What if um',you know like say the discussion right now we are having, yeah. What if that we grant say one applicant, now what if the applicant passed away or is selling the parcel. Would that change the dynamics of the extension you think? KERN: No. So,the conditions— AGUINALDO: Yeah.» KERN: —run with land and not the owner. So, if somebody sells it, they passed away, conditions change those conditions are maintained all the way through, or whatever the timing would be or whatever other conditions would have to be adhered to period. AGUINALDO: And is that going to be, is that in language right now? Like even in the bill. KERN: Yeah,the applicants, their successors or— AGUINALDO: Okay.` KERN: —assigned, that's always language in there. Yes. AGUINALDO: Okay. Okay, we good. LIN: I actually would like to ask the Planning Department or Director Kern a question. In regard to when an applicant comes in for an extension, what does the Planning Department confirm or verify? 7 EXHIBIT B(DRAFT) KERN: Sure. So, when the applicant comes in for a time extension and it's typically, they had 5 years to do something, and they had a 5-year administrative time extension and that administrative time extension either not granted or it expired. That application comes in, and we look at like a new application. We look at top to bottom, have conditions changed, has traffic changed, has environment changed, has the settlement pattern changed, has the General Plan changed, has the Community Development Plan changed, has anything changed? And then we look at amending conditions or possibly changing the recommendation. They could come in and say, things have changed so much that we do not recommend the time extension, and this should no longer be valid. So, we look at just like how we look a new one that comes through. We look at every single component of it and then adjust conditions or request them to do additional. Such as, typically it's like a Traffic Impact Analysis Report and other cases we've seen a EA come up. So, we really look at it complete. LIN: Thank you Director Kern and my second question would be on the lines of what Commissioner Aguinaldo had asked. So, say if I was a developer and I got the ordinance approved by County Council to develop a 200-unit development and I decide to sell that parcel to another developer, and they decide to hold off on that project because they do not have funding or what not for another 10 years. What happens to that ordinance if they decide to suddenly say, oh well, we have money now we now want to start up this development again. KERN: Sure, so, we see that and so if that were the case and the ordinance were expired unless let's just assume it's expired. Then they would have to come into the Department submit an application for a time extension and then we would go through the entire review of that. It would come through the appropriate Commission; it would go to County Council and the County Council would make the final decision to approve that or not. But, again, we still look at holistically all the way through top to bottom again. LIN: So, I think that's the I guess the contention point with the community is. We have those situations that there is somebody who gets an approval for a development, but they decide to sell it, or something changes,and the new owner decide not to build it for another 10-15 years. So, at that time,they would come back to the Planning Department request for the time extension and then would comae back to Commission. KERN: Correct and when we are looking at it, we would say, yeah, you know 15 years ago you did a traffic impact analysis report but, currently you need one now. So then, they would have to hire an engineer, they would give us a new TIAR (Traffic Impact Analysis Report). Those conditions would then be potentially adjusted depending on the level of service. So, it's not just come back through, and it's just timed, it's really, we factor, and things change, the General Plan change. LIN: So, I guess my thought would be wouldn't it be more fair to have them come again and apply because it's a new owner and maybe they don't have the same idea of what the previous owner development was. So, maybe like Ms. harden said, maybe they don't want bike 8 EXHIBIT B(DRAFT) paths, maybe they want something else. But wouldn't it be more I guess; my term would be fair to have them come in again as a new application because the ordinance is now expired. KERN: It's kind of the same thing whether they are coming back through and it's, I guess, it's just a difference of semantics in the way, right? They have to come back in, and they have to submit in a fresh application, they have to submit what they're requesting, are there any other deviations from that existing zoning, is there any supporting elements that will help with that. Sometimes it comes in and its light meaning that it doesn't have the information we need so then staff would request that. So, the challenge we that we run into is that it's not just a simple open and shut case. Where, let's say you have rezoning that went from Ag 1 to RS-10. So, Agricultural-1 acre to Residential-10,000 square feet. When the zoning ordinance expires, or that condition expires. The zoning doesn't just automatically revert back. The zoning is actually in the state of limbo. Where it's zoned Ag-10, excuse me, zoned RS-10 but they can't actually do anything with it. They can't subdivide it; they can't do anything because the conditions haven't been met so the ordinance is what we call stale. They also can't go in and use it for Ag-1 because that's no longer the zoning that it has. So, you actually get into a state where the property is not usable. And so, at that point in time, they have to come in and say, I want to revert it back to its original zoning or I want to get an extension of time, I want to bring it back up to its current zoning or I want to do something completely different. If it's completely different they have to submit a completely fresh new application. If it's just for the same the thing and they want to do say, extend the time, then that would be time extension request. In this case, the ordinance based on the intention of where this is going, I want to say it's 10 years, that 10 years have expired, that zoning ordinance basically is expired but the property still in limbo. LIN: Mr. Inaba? INABA Thank you. Director, in terms of this administrative extension. When we look at the language it says that we insert into the bills currently. It says, "An initial extension of time for the performance of conditions within the ordinance maybe granted by the Planning Director upon the following circumstances". And it goes into what Director Kern already covered. If someone is granted 5 years, and they come to you six(6)years later. So, technically its expired are they able to get an administrative extension since technically the rezoning ordinance has expired? But would you retroactively, technically you could give 5 years, but would you give 5 years from the day the ordinance expired, or would you not give an extension at all since the rezoning ordinance is not expired? KERN: I don't believe I have had to deal with that personally. Maija, could you maybe explain previous practice. JACKSON: Yes. So, if the ordinance say you have 5 years to construct and there's an administrative time extension condition if the person comes in at year 6, we would grant the administrative time extension because they're within that 10-year period. Provided that conditions haven't changed right, like infrastructure or the plans for the area and then once they hit year eleven(11) let's say and they come in and say, "Well, we have a project now, we want 9 EXHIBIT B(DRAFT) to move forward" and we say, "No, you have to go back to Council,because you are way beyond the administrative time extension frame". KERN: So, in that case if it were 5 year and they came in at 6 and it's granted its only for the 5 from the date of the expiration and it's not for 5 from that date. JACKSON: Correct. KERN: So, they're not picking up an extra year, it still no longer than was originally granted. AGUINALDO: Within that 10, yeah. KERN: Correct. Correct. INABA: So, with that, I mean I think it kind of shows where things can get a little wonky sometimes you know, because if see on documents is the only official record that if everything is supposed to be completed within 5 years and in the year 6, they come back to the Department. None of us will ever see it and I think that's kind of the point in 6 years a lot of things can change. Again, in 10 years a lot of things can change but if we're going to say 10 then we know in 10 years they are granted all of the entitlements within this rezoning bill for 10 years and at 10 years they will come back and there will be no further extension outside of the Commission and Council process. LIN: Commissioners, any other comments or discussion points? I guess, oh, Commission Balog? BALOG: Um', so, it says that extensions of time will be authorized by the Council? INABA: So, Commissioner, what section are you referring to? BALOG: Um' Section (b). KEKAI: B as in boy? BALOG: Yes. KEKAL Okay. BALOG: So, I was wondering how that process would work. INABA: And you're saying unless specifically authorized by the Council? BALOG: Ices. 10 EXHIBIT B(DRAFT) INABA: Okay and I think that's kind of the wording that is messing up that intention versus the language. Because technically right now and I spoke with Maija right before we got started. Language is being inserted into the bills that does grant the Director the ability to give these administrative extensions so, one of the recommendations on language change on this bill before us would be to remove that word. Unless, specifically authorized by the Council because currently if the Department puts in that language and we approve it as is the Council is authorizing the Director to grant an administrative extensions later. So, if we were to remove that language that you referred to it would just say"extensions of time to satisfy conditions may not be allowed by the Director". That may be problematic too however, because now we're saying the Director may never grant extensions. So, that you know, the language is still being worked or another version would just be removing what's in condition(b) or Section(b) sorry, and just say language granting extensions of time by the Planning Director shall not be included in any Change of Zone ordinance. So, it's specific to what we are prohibiting. But again, I think the language has to be worked out and whether we want to hash it out here. I think the main thing is that you folks know the intention of what's before us and loved to hear from Corporation Counsel. KEKAI: Yeah, I was just going suggest an effective date. So, even though you left extensions of time to satisfy, um' may not be allowed for ordinances granted from this date forward. So that he still has the authority for what has already been granted, yeah. So, something like that basically just putting in an effective date so that we know when, we can clearly look at an ordinance and know whether the Director has administrative extension powers or not. INABA: And that's for Section 4 of Bill 194,right? KEKAI: Yep.,, INABA: Okay. Yes,I'll agree. LIN: Commissioners, any other comments, questions? If not, is there a motion for action? AGUINALDO: Mr. Chair,just to clarify again. LIN: Sure. AGUINALDO: Like what Ms. Balog indicated, on Section 1 (b), unless specifically authorized by the Council, extensions of time to satisfy conditions may not allowed by the Director. So, in the Planning standpoint what I see here is, is County Council have the authority to you know, go above our Planning Director for time extensions. Am I interpreting it correctly, its unless specifically authorized by the Council. Saying the Council is authorizing, you know, that means it's empowering our Planning Director that County Council can kind of what they got to do. How's that? Am I interpreting it correctly or wrong? 11 EXHIBIT B(DRAFT) KEKAI: Um', yeah, so, this is rezone applications right in ordinances.— AGUINALDO: Yeah. KEKAI: — so the Council is the ultimate authority like you pass recommendations— AGUINALDO: Yes, yes. KEKAI: —the Director passes recommendations. AGUINALDO: Yes. KEKAI: — So, initially yeah, the Director does not have the authority to just pass a zone change on his own. It has to go through Council— AGUINALDO: Oh, so, okay. KEKAI: So, this as, Holeka pointed out this already occurs actually with language, you know, the Council does approve time,technically administrative time extensionswhen it's included in an ordinance, right. So, the Council does have the authority to do that. AGUINALDO: Oh, so they don't work with Director Kern on that? KEKAI: I wouldn't say they don't work with the Directors; I think that there is a full discussion at Council, and it is fully vetted out and but at the end of the day the Council has the ultimate authority whether to approve the recommended conditions or not. AGUINALDO: Oh, okay. KEKAI: Yep. AGUINALDO: Okay. Thank you. LIN: Go ahead Councilman. INABA: One more thing,just on the language. I know you the represent the Commission but I'm not sure what the appropriate action is. Whether to like have the proposed changes to this language now or advance it with the understood intention? KEKAI: Um' I think either way, I mean this is basically the Commission would be a recommendation right, so they could say we recommend the following language. So, it's really up to the Commission on how they want to do it, if they want to pass it through here with the record and just say, you've heard what we had to say or not. Yep. So, depended on the motion made. LIN: So, go back to is there a motion? [giggling] 12 EXHIBIT B (DRAFT) AGUINALDO: Okay. I make a motion for County Council Bill No. 194, PL-CCI-2022- 000002, a favorable recommendation. I move that a favorable recommendation be forwarded to County Council on Bill No. 194,based on the Planning Director's recommendation, which shall be adopted. DANIELE: I'll second that. LIN: Okay, so it was moved by Commissioner Aguinaldo and seconded by Commissioner Daniele to send a favorable recommendation for this agenda item. So, now discussion? Is there a specific language that we want to add into this proposal right here? I like Mafia's idea of putting an exact time, you know, effective date. Saying that your application will expire on this date or is effective from here to here anything after that you'll have to come in and reapply or go through the process again. I welcome anybody's feedback regarding that. INABA: Chair if I may. LIN: Yeah, go ahead. INABA: Sorry, I just want to clarify to make sure that we are all on the same page. What Corporation Counsel referred to I believe was Section 4 of Bill 194 as to the effective date of Bill 194 if passed. So, were clear as to moving forward and somebody or somebody yesterday who get their rezoning bill passed, they still have the administrative extension that was approved in— AGUINALDO: Um' moving forward, right? INABA: Yes, only moving forward. So, somebody yesterday came in, they got their rezoning with the 5-year admin extension language in, they still have rights to that 5-year admin extension. So, if someone comes in 2 weeks from now or sorry after Bill 194 is passed, if it passes, they will not be entitled, there will be no language allowed and they would not be able to have a 5-year admin extension. KERN: Right, so, what we would do is we would look at the application, we would look at the general overall time, and in this case if it's a 5 and 5 we would look at it as 10 and we would just put 10 years. There is no language of administrative time extensions in there, it's just 10 years and at the time 10 years is up and if it hasn't been complied with then it goes back to the process. Back to the Department, back to the Commission and back to Council for reapproval essentially. LIN: Okay, got it. INABA: And just on the language as intended. If we look at condition, sorry, I'm getting mixed up, conditions and sections here. Um' within Bill 194, Section(b) that last part the additional language"Unless specifically authorized by the council, extensions of time to satisfy conditions may not be allowed by the director". I'll just state on the record if want to remove that language and replace it with the language that is truly intended, I could read that language to 13 EXHIBIT B(DRAFT) you folks and that would be"language granting extensions of time by the Planning Director shall not be included in any Change of Zone ordinance". So, it's very clear as to the intention. KERN: If I may add to that. Um' to me that is almost more of a Council directive because you guys as Council as a former Councilmember have that authority to do that. And so when a rezoning is approved or not approved like that's your guys found decision. So, to me that's limiting the Council's ability not so much limiting the Director's ability if its, obviously, it has an impact on it for sure, but there's no latitude left at Council at that time would be my read of that. INABA: With that I still don't think that we should be including language that grants the authority again, the time is the time. So, if the Department says 10 years and you folks forward a favorable recommendation to us for 10 years, it's 10 years and I don't think at the last stage of the game a Councilmember should say oh no, but let's put language in that says the Director can give another 10 years. Then, you folks didn't have the opportunity to vet that language and of course, we can do things at the last stage of the game of course but, that runs contrary again to the intention. So, I do understand what Director Kern is saying though, but I don't want even the Council to be putting in language like that at the end. LIN: So, I think based on what I've heard from our fellow Commissioners and Director Kern. The understanding of this Planning'Commission is, we agree with what you have to say regarding that language and I think maybe having it hashed out a little bit more at the Council level to make sure that your Corporation Counsel understands that it's not limiting or your power for that specific section. INABA: And I will add that I'didn't have the opportunity to send language to you folks prior to today and we don't do like that right. It just goes through and the language that was in the Bill is what is in the Bill before, and it will remain the same. I'll have the same conversation with the Leeward Planning Commission,but I just want to make sure that when it comes back to the Council to make a decision on Bill 194, were not stuck up on the idea that you folks passed it with the current language and knowing the intention but didn't correct the language. You put us in kind of a fanky place and of course everyone could look back at the record, which is provided to us when it comes back, but yeah. Just food for thought. LIN: So, any other discussion? Okay, if not, staff roll call vote. ANDREWS: So, at this time the motion is a favorable recommendation to County Council with the Director's recommendation. KEKAL Yep. ANDREWS: Okay, Commissioner Aguinaldo? AGUINALDO: Aye. ANDREWS: Commissioner Daniele? 14 EXHIBIT B(DRAFT) DANIELE: Aye. ANDREWS: Commissioner Balog? BALOG: Aye. ANDREWS: Chair Lin? LIN: Aye. ANDREWS: The motion passes four votes aye, three votes excused. LIN: Okay, thank you Councilmember Inaba. INABA: Chair and Commissioners thank you so much for service to our County and happy your folks are pan early today. Mahalo. LIN: Thank you. The item ended at 10:36 a.m. Respectfully submitted, Melissa Dacayanan-Salvador, Secretary Windward Planning Commission 15 EXHIBIT B (DRAFT) 3Kg•YmOf...4 Mitchell D.Roth Michael Vitousek Chair Mavor , ` Barbara DeFranco,Vice Chair Michael Dela Cruz Lee E.Lord — Clement"0"Kanuha III Managing 17irector +r�r�"`'"O",�*�� E'of'N� Zaheva Knowles Mahina Paishon-Duarte �--1 TT���TT r. Faith"Faye"Yates l 01111t.7 O 11dWdl 1 LEEWARD PLANNING COMMISSION Aupuni Center o 101 Pauahi Street,Suite 3 o Hilo,Hawaii 96720 Phone(808)961-8288 o Fax(808)961-8742 November 4, 2022 Maile David, Council Chair and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chair David and Council Members: SUBJECT: County Council Initiated (Bill No. 194) (PL-CCI-2022-000002) Amendment to Chapter 25,Article 2, Division 4, of the Hawaii County Code 1983 (2016 Edition, as Amended), Relating to Conditions on Change of Zone Actions The Leeward Planning Commission, at its duly held public hearing on October 20, 2022, considered County Council Initiated Bill No. 194, amending Chapter 25, Article 2, Division 4, of the Hawaii County Code 1983 (2016 Edition, as Amended) relating to conditions on change of zone actions. The Commission voted to forward a favorable recommendation of Bill No. 194 to the County Council, as originally received by the Planning Department on August 17, 2022, and as recommended by the Planning Director. We are enclosing copies of the Planning Department Background and Recommendation report and PowerPoint presentation. Draft transcripts of the hearing and public testimony will be provided under separate cover. 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The purpose of this amendment is to clarify that the Planning Director may not extend the time allowed to satisfy conditions within a change of zone ordinance unless specifically authorized by the County Council. PURPOSE OF BILL 194 1. The Hawaii County Council has introduced Bill No. 194, (Planning Department Exhibit 1), which seeks to amend Chapter 25 (Zoning Code), Article 2, Division 4, of the Hawaii County Code 1983 (2016 Edition, as amended), relating to conditions on change of zone actions. 2. The purpose of this bill is to clarify that the Planning Director may not extend the time allowed to satisfy conditions within a change of zone ordinance unless specifically authorized by the County Council. PROPOSED AMENDMENTS TO HCC CHAPTER 25 (ZONING) 3. Bill 194 seeks to amend Article 2. Division 4. of Chapter 25, Conditions on change of zone as follows: ■ Section 25-2-44(b): Changes proposed for this section include modifying language to clarify that requests to change or alter conditions of any change of zone ordinance shall be processed in the same manner as a new zone change. Furthermore, new proposed language indicates that unless specifically authorized by the County Council, extensions of time to satisfy conditions of a change of zone ordinance may not be allowed by the Planning Director. ■ Section 25-2-44(c): Changes proposed for this section include the deletion of all current language on failure to fulfill change of zone conditions within -1- specified time limitations and the addition of submittal instructions for a change of zone amendment, which is currently found in section 25-2-44(b). ■ Section 25-2-44(d): The draft bill proposes to add this new section to clarify that if the applicant fails to fulfill any conditions of the change of zone ordinance within the specified time limitations, the Planning Director or County Council may initiate the process for enactment of an ordinance reverting the affected property back to its original zoning designation or a more appropriate zoning designation in accordance with section 25-2-43. AGENCY COMMENTS 4. Fire Department: (Planning Department Exhibit 2 —September 8,2022 Memo) AGENCIES —NO COMMENTS/CONCERNS 5. Department of Public Works-Engineering Division, Department of Water Supply AGENCIES- NO RESPONSE PROVIDED 6. Department of Public Works-Building Division, Department of Public Works- Traffic Division, Department of Water Supply, Department of Environmental Management, Police Department, Office of Housing and Community Development PUBLIC COMMENTS 7. Testimony from Mark Van Pernis: (Planning Department Exhibit 3 —August 24, 2022 Email) PLANNING ANALYSIS OF THE IMPACTS OF BILL 194 Since the late 1980's, Planning Directors have historically added the current standard"administrative time extension" condition to change of zone ordinance recommendations that provides the Planning Director the authority to grant a one-time, administrative time extension provided that the applicant, successor, or assigns is able to justify the need for the additional time by providing a request, in writing, that meets the following criteria: 1. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence. -2- 2. Granting of the time extension would not be contrary to the General Plan or Zoning Code. 3. Granting of the time extension would not be contrary to the original reasons for the granting of the change of zone. 4. The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year). 5. If the applicant should require an additional extension of time, the Planning Director shall submit the applicants' request to the County Council for appropriate action. Currently, following an applicant's written request for an administrative time extension, Planning Department staff conducts a thorough review to verify compliance with conditions of the original ordinance and confirms that the request meets the criteria for granting an administrative time extension listed above. When necessary, the Planning Department has requested more specific justification for how the request meets criterion number one (1) or to require completion of conditions of approval such as payment of water commitment fees, etc. If the applicant has exceeded the timeframe allowed for requesting an administrative time extension, the Planning Department forwards the request to the Planning Commission and County Council. Finally, if the request is deemed complete and all criteria are satisfied, the Planning Director does not have the authority to approve an administrative time extension beyond the amount of time originally granted, in accordance with criteria number five (5) and any further extension of time would require approval of the County Council. As with any other proposed condition of approval,the County Council, as the decision-making body, currently has the ability to modify or remove this administrative time extension condition and require that the applicant present any request for a time extension directly to the County Council through the Planning Commissions. PLANNING DIRECTOR'S RECOMMENDATION The County Council has always had the authority to add or remove conditions of rezones that are recommended by the Planning Director and Planning Commissions. For -3- 40+years this standard administrative time extension condition has been recommended to be included in rezone ordinances by the Planning Directors and Planning Commissions and has been consistently adopted by the County Council. Unless there is a compelling reason to change this current practice,the current Planning Director will continue to recommend this condition be included in rezone ordinances and the County Council can continue to exercise their authority to remove the condition if they choose to. The Planning Director appreciates the time and effort the County Council has taken to draft the legislation, and as it does not change the Planning Department's current practice, the Planning Director recommends that the Planning Commissions send a favorable recommendation of Bill No. 194 to the County Council. The Planning Commissions may approve the Director's recommendation. The Commissions may also offer revisions to the bill. The Windward and Leeward Planning Commission's recommendations will be forwarded separately, but at the same time, to the County Council for their consideration and decision. -4- A.shkv Lehua Kierkiewic° Phone: (6081) 961-3625 Council District 4 �`� Fxv: (08) 961-8912 Puna Aklk ri �a l'rataai casltl�l �tctki�uac.y cilr 4 raecc rrrtl�,.gay, I-I WAVI COUNTY COUNCIL (7ounty r 'llur ear'`i flavvai'i Count Buildin. 25 4uplini&, Hilo, lla„tai'i, 961-20 DATE: August 17, 2022 TO: Zendo Kern, Plarming Director Windward Planning Commission Leeward Planning Commission FROM: Ashley L. Kierkiewicz, Chair, Planning Committee Chair SUBJECT: Deferral of Bill 194, An Ordinance amending Chapter 25 Article 2, Division 4, Section 25-2-44, ofthe Hawaii County Code 1983 (20116 Edition, As Amended), related to conditions on change of zone. Pursuant to Section 25-2-43(b)of the I4awai`1 County Code, I am submitting Bill 194 for your comment and recommendation. I also request that you forward this to the Leeward and Windward Planning Commissions for their comments and recommendations, as required, Section 25-2-43(b)(4) requires that the commrrents/recommendations be returned within 120 days. At its meeting of August 16, the Committee on Planning voted. 7 "ayes" and 2 "excused" to approve the referral to your department and the commissions. After your and the Commissions' review, please return all comments and recommendations to the Council Chair for proper referral to committee. Thank you for your attention to this matter. AK/js Attached: Bill 194 €ning int= s. 1f 1 Serving the Interests of the People of Our Island Huwai`i County Is an Equal Qpportunio� Provider And Emnplc?ver Dr. Holeka Goro Inabet C?�fice, C8 �) 323-4280 C"owicil Hember, District 8, k KonaErx�ail.hc�l�kcr.irrala hmiwiicorrrxty.gcw �e y* HA'ATAI`t COUNTY COUNCIL C tenly of Yawai"i r, 6t-'zit Haivai'i Civic Center, Bldg.A ,4-504 One Keoho'kalole Hvw Kazlua-Mona, Hawaii 9 740 LATE: Tull• 20, 2022 TO: Maile Medeiros David, Council Chair and Members of the Ila-vvai`i County Council FROM: Dr. Holeltia Goro Inaba, Council Member Council District 8 SUBJECT: Alii ORDINANCE Al-1ENDINO CHAPTER 2S,ARTICLE 2, DIVISION 4, SECTION 25-2-44, OF THE HA API COUNTY CODE 1983 (2016 EDITIONI , AS AMENDED , RELATED TO CONDITIONS ON CHANGE OF ZONF. Please find attached a,bill for an ordinance amending chapter 25, article 2, division 4, section 25- 2-44 of the Hawaii County Cock 1983 (2016 edition, as amended), related to conditions on change of zone. We are requesting that this bill be placed on the next available Committee Meeting agenda. Thank you. HGI/wpb Att. Comm.No. Ref.To: =C Ref. Date l ! L2 Hawaii County Ts au Equal Opportunity Provider and Employer COUNTY OF HAWAL141 STATE OF HAWAN .......... . Zt BILL NO. 194 ORDINANCE NO. AN ORDINANCE AME NDING CHANTER 25,ARTICLE 2,DIVISION 4,SECTION 25- 244, OF THE I-I.ANVAI4l COUNTY CODE 1983(2016 EDITION,AS AMENDED), RELATED TO CONDITIONS ON CHANGE OF ZONE. E IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAVI: SECTION 1. Chapter 25, article 2, division 4, section 25-2-44, of the l mVai'i County Code 1983 (2016 Edition, as amended), is amended to read as follows: "Section 25-2-44. Conditions on change of zone. (a) Within any ordinance for a change of zone, the council may impose conditions on the applicant's use of the property subject to the change of zone provided that the council finds that the conditions are: (1) Necessary to prevent circumstances which may be adverse to the public health, safety and welfare, or (2) Reasonably conceived to fulfill needs directly emanating from the land use proposed with respect to: (A) Protection of the public from the potentially deleterious effects of the proposed use, or (B) Fulfillment of the need for public service demands created by the proposed use. (b) C A r €-al tin € Requests to change or alter the conditions of any change of zone ordinance shall be processed in the same manner as a zone change,unless the council authorizes the changes or alterations to be made by the director. Unless syecifically authorized by the council extensions of time to sat -conditions may not be allowed by the director. Uc A request for any change or alteration of conditions shalt be subirlitted in writing to the director, in lieu of the application required for an applicant-initiated change of zone. The request shall be accompanied by a filing fee of$250. Llire-c., �l'tcu� �3 cucTF ircicrrnt��i�-tli �v r lnt. .a F , ,j b U AUF 11U G�FZZ�.r 4IZ3�nZ�Z`�Z�&�'j jan � 4 A Li t€3- �d8 slg &tH1�1�@fit ��I.�fth�app]icant fails to fulfill any conditions of the zone:c:.hane itl�.in the st�ecified time limitations the director or council rna, initiate the process for enactment of an of dinar ce revertin the affected ro ert back to its ori incl tonin deli nation or a more aDDronriate zoning designation in accordance with section 25-2-43 " SECTION 2. Material to be repealed is bracketed and stricken. New material is underscored. In printing this ordinance, the brackets, bracketed and stricken material, and underscorinv need not be included. C`I"IC}N 8. Severability, If any provision of this ordinance, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affe'L other previsions or applications of the ordinance that can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable, SECTION 4. This ordinance shall take effect upon.approval, INTRODUCED Y. A�K4 a9tr- COUNCIL MEMBER,R, COUNTY OF FLAW-APT Hawai`i Date of Introduction,- Date ntroduction'Date of l st Reading: Date of 2nd Reading: Effective Date: REFERENCE Comm. 898 2 HAWAII FIRE DEPARTMENT . COUNTY OF HAWAII . HILO, HAWAII 96720 DATE September 8, 2022 Memorandum TO PLANNING DEPARTMENT, COH FROM CAPTAIN CLINTON BAYBAYAN, FIRE PREVENTION BRANCH SUBJECT: COUNCIL BILL 194 COMMENTS In regards to the above mentioned Bill,Fire Department Access and Water Supply shall comply with Chapter 18 of the 2018 Hawaii State Fire Code and Chapter 26 of the Hawaii County Code. For any questions please email Clinton.Baybavan&,,hawaiicounty.gov or call 808-323-4761. Respectfully Submitted, Clinton Baybayan Fire Prevention Captain Fire Prevention Branch Hawaii Fire Department Planning r Etn mr ? __... Mori, Ashley From: test <mvpvv@hawaii.rr.com> Sent: Wednesday, August 24, 2022 1:03 PM To: LPCtestimony;WPCtestimony Cc: Van Pernis,Alexandra Subject: BILL 194 WHY THE HAWAII COUNTY LEEWARD PLANNING COMMISSION (LPC)AND THE WINDWARD PLANNING COMMISSION SHOULD SUPPRT COUNCIL BILL 194 PLACING AUTHORITY TO AMEND REZONING/SUBDIVISION ORDINANCES WITH THE MAKER OF THE ORDINANCES, THE.COUNTY COUNCIL., (CC). 1. Only the County Council (CC) has the authority to make ordinances, such as rezoning ordinances, and only the CC has the authority to modify or extend or delay an ordinance's effective dates. 2.There is no authority,statute or rule authorizing the County's Planning Director(PD)to grant or allow any extensions or delays for completion of ordinance conditions or requirements, or to"resurrect"an expired ordinance,for any reason. However, a provision for such extensions, unauthorized by the CC and not reviewed by the public, is often put in ordinances DRAFTED BY THE PD,which purports to give him or her such unauthorized CC power,without notice to the CC or the public. Thus in serving major developers, the PD usurps CC authority AND violates its own requirements„ while ignoring the public's need or additional conditions/infrastructure/affordable housing. The PD and Commissions by rule are not supposed to act to facilitate a real estate sale. 3.The PD also puts in these ordinances for such extensions, a requirement that the PD will grant such extensions only if necessitated `BY CONDITIONS BEYOND THE CONTROL OF THE APPLICANT". "Beyond the control" is legally snd practically defined as such things as floods and labor strikes, etc. The PD admits that it has no rules on "beyond the control"and requires no proof of that, and does not investigate that. Instead,the PD accepts and grants requests for extensions of time without any"beyond the control"circumstances, without CC or public input,and without consideration of the need for more conditions/infrastructure/affordable housing arising during the delays. The applicant/developer often wants delay just to find and facilitate a buyer for the approved project, or because delay brings a better profit, or the applicant didn't have the money or financing to develop when application was made.THIS INVITES LITIGATION! 4.Applicant/Developers often apply for up-zoniing and subdivision with NO INTENTION to develop, and no financial capability ability to do so. They apply only so that their conditions and contributions will be set on that early date. They applicant developer may imply or misrepresents it's going to develop in the proposed ordinance's time frame (e.g.5 years). 5 to 15 year free extensions/delays are later obtained from the PD, privately without CC or public input. There are 10 thousand+ residential units thus approved but not built. Their conditions,/infrastructur/affordable housing also missing to the County and the public's damage. 5. Requiring the ordinance maker, here the CC,to consider and act on any amendments or extensions of an ordinance, is modern land planning,from New York City to San Luis Obispo. 6. Public confidence in land planning would be greatly increased if the present broken system,which is tipped in the developer's favor, is replaced with this modern and responsive system. 7.The possibilities of corruption would be reduced or eliminated. 8.A huge number of matters coming before the LPC are requests for lengthy delays, without any further impositions arising from the lengthy delays. Very often, the delays are just to find a buyer and facilitate a real estate sale. The Bill Planning Exhibit_k3� would eliminate these matters, unclogging LPC agendas, and allowing the Commissions toconcentrate onmatters over which they Johave authority. 10. Even PD and the Assistant PD are not against this Bill.They have testified that they are"neutral". They may say � they don't always hand out free de|ays,' but this author has found norecord ofthat. And also found norecord ofany true "beyond the control~" reasons for de|ay1 Below are some examples where the PD first handed out 5 to 15 year exzbtentions and then the LPC was asked for for further extensions. The total delays most often went for 15too 25years, and som,eeven longer. The author would 6e happy toelaborate and/or give further examples. � � A. Big condo project in Keauhou,off of AM Drive and Kam III Road.,first approved about 20.years,then got extensions from the PD, and then came before the LPC asking for further extensions to 2025,with no new impositions. PD recommended approval. SOLD after initial approval, Likely tobeSOLD again with that buyer toseek further delays. Though requested, not even acontemporary traffic study was agreed to. B. Palamanui, a huge commercial and residential project in North Kona,which is the darling of many County officials. It was supposed to build a bypass road from Mamalahoa Highway to Queen Kaahumanu Highway, intersecting with streets � | along the way, 6y2OO5. |tobtained fnee3extensions toZO25 and has now sold toNan Inc. The result: big trafMnjams on Mamalahoa and Palani all the way into Kailua Kona town, with plenty accidents, including fatalities. ExpectNaqn |nc toask for further free delays with only 2ODSimpositions. C. Diamond Resorts an SMA,time share condo project on AM Drive makai, south of the hotel and tennis courts,first approved about 1998. After completing only a parking garage cement monstrosity,blighing Kailua town,the project was abandoned and SOLD. After the PD's delays, a further request for delay to 2025 was requested without impositions other than those ofl998bytheir representative Mr. Fuke. The PDrecommended approval. Anupdated traffic study was requested o[Mr. Fuke, but herefused. Thankfully, o "sunset"clause was part o[the approval, with which the applicant has not complied, D. LI-Cs controlled by well known developers for a big commercial and residential condo project onQueen Kaohumanu | i andKuakini Highways near LakoStreet. This iswhere Kona'sworst traffic jams are concentrated, onQueen Koahumamufrom LakoStreet north into town and south toKoina|iu The jams started around 200G. This project would have dumped about a thousand more cars into the jams, particularly during rush hours. The ordinance for this project EXPIRED in 2005, although representative Mr. Fuke claimed he extended it thru the PD to 2015. |n2O2Othe ordinance was"resurrected" and a request for an extension to 2025 made along with a reduction of the prior impositions. Mr. Fuke adressed the traffic problems by presenting a traffic study that ignored the biggest traffic generator in the area, Henry Street mauka and makai, and argued that congestion cold betaken care ofbythe State widening Queen Kaahumanuand/or completing the A|iiDrive relocation. For these and amyriad ofother reasons,the"resurrected" project received a negative recommendation from then PD Yee,and a UNANIMOUS LPC. But then, in what in the undersigned's opinion is a stunning show of disrespect for the PD and the LPC,the negative recommendation was turned to positive under the leadership of East Hawaii Council person Ms. Kierkewitz!Thjen the projrct was promptly | SOLD toBig Springs Development LLC. Expect them toask for further delays. � | � The Big Island, and particularly West Hawaii,wants quality development, infrastructure and affordable housing on a measurable and definite scale and schedule. The Big Island,and particularly West Hawaii,will always attract developers. Needs must benet contemporaneously. I's avery taxpayer expensive I5years behind because ofthis archaic system,which badly damages the PEOPLE WHOM YOU REPRESENT. Please suppo1rtBill 194. 2 Mark Van Pernis 4.Applicant/developers often apply for up-zoning and subdivision wth no intention whatsoever to develop, and no financial capability to do so. They apply so that the conditions and contributions other proposed development will get set, ONLY BASED AT THE TIME APPLICATION IS MADE! The applicant/developer implies or misrepresents it's going to develop in the time the ordinance will state(e.g. 5 years). But that can be knowing misrepresentation. Five to fifteen year extensions/delays are then obtained from the PD, and then further extensions and delays are sought fromthe •LPC. All these delays are obtained without public review and upgrading of the conditions/infrastructure/affordable housing. There are ten to twenty thousand approved residential units unbuilt, many with affordable housing components. 5. Requiring the ordinance maker, here the CC,to consider and act on any amendments or extension of an ordinance, is modern land planning,from New York City to San Luis Obispo. 6. Public confidence in land planning would be greatly increased if the present broken system,which is tipped in the applicant's developer's favor, is replaced with this modern and responsive system. 7.The possibilities of corruption would be reduced or eliminated. 8.A huge number of matters coming before the LPC are requests for time extensions,without any additional conditions/infrastructure/affordab and housing arising because of the lengthy delays. Very often,the delays are just for, more time to find a buyer for the approved project and to facilitate a sale.The Commissions Bill 3 194 would eliminate these matters which clog the LPC agenda, and allow the Commissions to concentrate on the matters for which they do have authority. 9. Certainty as to conditions, infrastructure and affordable housing for the County, developers, and the public would come into being. Who would be against this bill,and why•? Even the PD and Assistant PD are not against the bill,and have testified that they are. "neutral-". They may say they don't alway hand out free delays, but this author has found no record of that. And also found no record of any"beyond the control" reasons for delay. Below are some recent examples. The author would be happy to elaborate and/or give more examples. A. Keauhou condo B. Palamanui delay after giving earlier extensions, all without examination contemporar4y of many County officials. It was supposed to build a bypass street from Mamalaoa Highway to Queen Kaahumanu Highway, interconnecting with streets on the way, by 2005,to alleviate traffic on Mamalahoa and traffic to its huge residential and commercial project. Palamanui obtained delays and extensions to 2025. The result: huge trafficjams and accidents, including fatalities,on Mamalahoa and Palani Road to Hina Lani and into town. Palamanui at the last hyering for further delay, promised that they would build it out. But instead they SOLD to NAN, Inc. Expect Nan, Inc.to ask for further delay C. Diamond Resorts, an SMA. A time share condo project, makai side of Alii Drive past the hotel and tennis courts. It was approved about 1998, based on conditions then.After completing only the parking garage cement monstrosity on the ground there, which blights the area,the project was SOLD. The buyer asked for a delay to 2025,with its representative, Mr. Fuke, refusing any new infrastructure, not even a new traffic study on Alii Drive,which he said was all that was required.The delay was recommended, but thankfully a "sunset" clause was added. D. _________________________________This commercial and residential project was to be located off of Kuakini Highway and Queen Kaahumanu near Lako Street. Its ordinance expired in 2005, although its representative argued expiration in 2015. The ordinance was ""resurrected", and an extension until 2025 sought. Then project would have dumped about a thousand vehicles onto Queen K into the worst traffic jams in Kona,from Lako north and south. Representative Fuke misrepresented, in the author's opinion,that the land would revert to inappropriate ag.zoning if the project was not approved. He also presented a traffic study,which did not at all mention Henry Street, mauka and makai, the biggest by far traffic generators into the trafficjams on Queen K, arguing that traffic would not be a problem. It also represented that any traffic problem would be taken care of by the State adding a lane to Queen K and/or building out the Alii Drive realignment by 2025. The project received a negative recommendation by then PD Yee and a unanimous LPC. Later, in what this author thinks was a shocking display of disrespect for PD Yee and the LPC, under the guidance of council person Kierkewitz, the negative reccomendation was changed to positive! Thereafter the project was promptly SOLD to BIG Springs Development LLC. Expect them to ask for further delays. West Hawaii wants quality development, infrastructure and affordable housing on a measurable and definite scale and schedule. It's a very taxpayer expensive 25 years behind because of the developer friendly archaic system, which badly damages the people of West Hawaii,whopm you represent. Please support Bill 194.. Mark Van Pernis 4