Loading...
HomeMy WebLinkAboutMIN PCPLUD 2023/01/05 (2022-2024) Policy Committee on Planning, Land Use, and Development l't Session Hawaii County Building 25 Aupuni Street Hilo, Hawaii January 5, 2023 CALL TO The regular meeting of the Policy Committee on Planning, Land Use, and ORDER: Development was called to order at 9:00 a.m., in the Council Chambers, Hilo, by Ms. Ashley L. Kierkiewicz, Chair. ROLL CALL: Present: Ms. Ashley L. Kierkiewicz, Chair Mr. Holeka Goro Inaba, Vice Chair Ms. Cindy Evans, Member Ms. Michelle M. Galimba, Member Ms. Jenn Kagiwada, Member Mr. Matt Kaneali`i-Kleinfelder, Member Ms. Heather L. Kimball, Member Ms. Susan L. K. Lee Loy, Member Ms. Rebecca Villegas, Member STATEMENTS The Chair directed the Committee to proceed to the next order of business, FROM THE Statements from the Public on Agenda Items. PUBLIC ON AGENDA ITEMS: The following individual registered to speak and came forward when called by the Chair: Cory Harden: Bill 194 (Comm. 898), in support. (representing Sierra Club Hawaii Island Group) CHR KIERKIEWICZ: Mr. Clerk, if we could please move on to Bills for Ordinances. Let's start with Bill 194. BILLS FOR The Chair directed the Committee to proceed to the next order of business, ORDINANCES: Bills for Ordinances. PCPLUD-1 January 5,2023 Bill 194: AMENDS CHAPTER 25 ARTICLE 2, DIVISION 4, SECTION 25-2-44, OF (2020-2022) THE HAWAI I COUNTY CODE 1983 (2016 EDITION, AS AMENDED), RELATED TO CONDITIONS ON CHANGE OF ZONE Clarifies 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. Reference: Comm. 898 Intr. by: Mr. Inaba Referred to Planning Director and Planning Commissions: August 16, 2022 (Note: There is a motion by Mr. Inaba, seconded by Ms. David, to recommend passage of Bill 194 on first reading.) ; and Comm. 898.11: From Mayor Mitchell D. Roth, dated November 7, 2022, transmitting for Council's consideration and action, the Windward and Leeward Planning Commissions' letters and enclosures. ; and Comm. 898.12: From Planning Director Zendo Kern, dated November 14, 2022, transmitting the transcripts from the Leeward Planning Commission's October 20, 2022, meeting. (Note: Communication 898.13, from Council Member Holeka Goro Inaba dated January 4, 2023, transmitting a proposed amendment to Bill 194, was circulated.) CHR KIERKIEWICZ: Thank you, Mr. Clerk. Before we launch into discussion, I did want to ask Council Member Galimba to provide a quick disclosure before we get the discussion going. Council Member? MS. GALIMBA: I just wanted to disclose that I believe I was on the Windward Planning Commission when this item came up. However, I was absent from the meeting when it happened. So, I did not vote or discuss it, and given that, I believe I can make a decision that is objective at this time. CHR KIERKIEWICZ: Thank you, Council Member. Vice Chair Inaba, this is your bill, please lead the discussion. MR. INABA: Thank you, Chair. Good morning colleagues. Bill 194 is something that came out of feedback and thoughts by community regarding rezonings that happened in our County, specifically as it relates to the timeframe that we allot. So typically, we see whether it be a small project that is given five years or a longer project, that could be you know, 20 years, like a Palamanui type of project. Page 2 PCPLUD-1 January 5,2023 Within each of these rezoning ordinances, it's been the traditional practice for the department to add in language that grants the department or the director specifically the authority to give an initial extension of time which is equal to the initial period. So, if they were given five years initially in the rezoning ordinance, they could potentially get another five outside of this public purview, the process that goes either through Windward or Leeward Planning Commissions, and ultimately to us. So what this bill does is really bring the power and bring the transparency back to the County Council so that we have the authority to review. You know, what things might have changed since the ordinance initially passed, since that time period has essentially expired. We had this bill go through our Planning Committee last term and then it was referred on October 6h to the Windward Planning Commission, and then October 20'h at the Leeward Planning Commission. Each of these commissions forwarded a positive recommendation on this bill, and we have both the Planning Director and Deputy Director here today to answer questions. I do have an amendment, which was just provided, to clarify language, as there was a little bit of confusion going through the process as to what the language means, and ultimately, when we say five years, we want the rezoning and all conditions to be met in the five years. This is what property owners are agreeing to. And if we do allow the current practice to continue, we aren't really clear when we look back at rezoning ordinances, whether the department has granted an extension and for what reason. So, with this, if developers or property owners intend to have a rezoning done, we want them to complete the conditions like they say they're going to, within the timeframe that they say they're going to. But,perhaps we can hear from the Planning Director and Deputy Director at this time, if they'd like to chime in before we take up the amendment. Good morning, Director Kern. (Note: At this time, Planning Director Zendo Kern and Deputy Director Jeff Darrow came forward to address the members of the Committee.) MR. KERN: Good morning. Happy New Year. Alright. Madam Chair and members of the Committee, it's a pleasure to be here. Zendo Kern, Planning Director. So, we reviewed the draft amendment, you got that one squared. No worries. So, you know, thank you for the opportunity to opine here and talk about this communication and amended language to Chapter 25. Page 3 PCPLUD-1 January 5,2023 So right now, the purview in control over whether those conditions are put into the ordinance or not is your purview. It is your choice. It is your responsibility to do that. There has been a standard practice of kind of having that standard condition within the ordinance that's transmitted to the planning commissions, and then ultimately to the County Council. Those conditions are sometimes dynamic. Sometimes it's not five and five, sometimes it's longer based on a larger project. Sometimes there is no administrative time extension. Sometimes it takes five years and then in five years it's not done. They come back, sometimes it's ten. With land use, each project each element will kind of be somewhat unique. So, the way that the draft was sent to us, and we reviewed it, we gave it a positive recommendation; felt that it was still consistent with the practice that has been now, that the directors do not give an administrative time extension unless it's explicitly authorized by the County Council. The Council explicitly authorizes that by way of the condition in the ordinance. In no time in my knowledge, and Jeff has much more history here than I do, has the director ever given an administrative time extension that was not consistent with the ordinance. There are administrative matters, but when it comes to rezoning, State Land Use Boundary amendment, to my knowledge, there hasn't. Jeff can speak to that, more of a past practice on that? So, when time comes up, that time comes up. If it's been expired past it, then it has to come back through. If there is a window for an administrative time extension, the department looks at it, looks at the reasons why; grants it or doesn't grant it. So, as the ordinance currently is proposed, I don't have any problem with it. It still keeps you guys have the control to make dynamic conditions; to set those and explicitly allow the director to make those administrative time extensions where deemed reasonable. Are we to speak to the—not to the amendment yet, right? So, as it stands right now, we have no issues. Jeff, do you want to add anything to that? MR. DARROW: Good morning, Council Members. Happy New Year. I agree with what Zendo said. I mean, it's been a practice that's been occurring over several decades. We looked back at some old ordinances in the 70's and 80's, and you can see kind of an evolution of conditions that were in a sense being tested and not working. So, what we have today is a much better set of conditions that are placed on ordinances that addresses almost every aspect of development. Page 4 PCPLUD-1 January 5,2023 As we go, sometimes we'll find a new condition that we'll add, but this particular condition has allowed a check and balance in between what we consider in between if they were granted that administrative. And as Zendo mentioned, we don't always grant that. We take a really hard look at the development after five years. If they have not completed construction or completed subdivision or plan approval by that particular time, we take a good look based on the criteria of the administrative time extension, which says that, you know, the delay was not a result of the applicant's own actions, but it was a result of unforeseen actions. So, they usually will submit the reasons why they could not complete it within a time that the request is consistent with the original reasons for approval, which is basically the whole gamma of what it was approved by in the first place, as well as there has not been significant changes to the Zoning Code or the General Plan. If it doesn't meet those criteria, we send them back, and it doesn't happen very often, but it does happen. I know of one particular instance where the developer came back to the Planning Department and said, "I'm redoing my whole project. My project isn't the same. I'm going to do this." And we said, "Well, at this point, we're not going to grant an administrative time extension, you've got to go back." And he decided he wasn't going to do the new plan, he was going to stick with the old plan. So, I mean again, it doesn't happen often, but it is a good time for us to be able to take a good hard look at the project and where it's at. You know, we've had discussions in the past with Council as well as the commissions regarding the whole issue of time extensions and looking at possible solutions. It was eye opening to see that when we went before the commissions, there was a complete opposite view of how each commission looked at it. Windward Planning Commission, back at that time, felt that timing conditions on rezonings was really not appropriate. If the actual request met the criteria to change the zoning, why place time conditions on it? It meets the criteria for changing the zoning, which we have a number of areas around the island that are their original zoning. I mean, and they have no conditions on them. Developers purchase them and they build, and they don't have all these time conditions or other conditions. Whereas the other commission felt, we need to be vey strict. We need to have very strict timelines. They were not supportive of the administrative time extension. So again, it was unique to see that perspective. There were some unique options that were presented, and you know, what was eye-opening was the reasons for bringing this up. Page 5 PCPLUD-1 January 5,2023 In fact, I think Sue brought up that maybe we should consider that the time start when they actually receive their building permits. Because that delay itself could take a number of years, depending on what's going on and what type of permits. So, that was a good suggestion, you know, once they got the permits they're ready to build. It gives them that five-year or ten-year timeline to be able to go and build. So, you know, we agree that the way it's worded now without the new amendment that has come out, still gives the authority to the Council if they feel appropriate to include the administrative time extension, but it doesn't take that authority away. Whereas the new amendment appears to take that option away from the Council. But anyway, thank you. MR. INABA: Thank you, Deputy Director. So, before us today, we have Communication 898.13. So, I'd like to make a motion to amend Bill 194 with the contents of Communication 898.13 Motion to Amend: Mr. Inaba moved to amend Bill 194 with the contents of Comm. 898.13. Seconded by Mr. Kaneali`i-Kleinfelder. MR. INABA: So, within 898.13-1 want to mahalo the Clerk's Office for helping clarifying and really simplifying the language. Simply it's saying, that, "A condition granting an administrative extension of time by the director shall not be included in any change of zone ordinance." Very clear, meaning that, if there is a time frame, let's say five years,put in a rezoning bill, it means five years. At the end of those five years, that ordinance is then stale if they haven't completed the conditions. No administrative extension could be granted by the department outside the purview of the process through the commissions and this Council. Deputy Director spoke to checks and balances. The ultimate checks and balances is through the public forum, through the commissions and through us. There have been cases where, let's say a rezoning ordinance had a five-year time period, and we've seen administrative extensions granted after the five years, say in year seven. Again, with no reporting or no explanation to the public or to this Council for what reason the extension was granted; or for what reason the conditions weren't met in the timeframe that the applicant agreed to at the beginning. So, this amendment here really clarifies what the intention of the bill is in the most simple way. So, I'd like to open it up to my colleagues if anyone has questions. Again, both commissions did review this bill, and perhaps a little bit of a switch compared to the first round years ago that Deputy Director spoke to. Page 6 PCPLUD-1 January 5,2023 It was almost a swap, when Windward Planning Commission this time perhaps more like, yes, five years is five years. And Leeward Planning Commission was a little bit more on the end of,perhaps there's room for time extensions by the department. I just want to be transparent in that manner. Within our file today, we do have the transcripts from each of these commission hearings. But, yes, would like my colleagues' support, especially on this amendment to clarify the intention of the language in this bill. Mahalo. CHR KIERKIEWICZ: Thank you, Council Member Inaba. Any questions or comments from my colleagues? Council Member Kagiwada. MS. KAGIWADA: Thank you, Chair. I'm just wondering, so will the commissions be looking at this amendment? MR. INABA: They will not. Per the Clerk's Office, we're just required to submit it through one time, and they have their review. They would both submitted positive recommendations. I did share where the intention versus the language could have been confused, and so they did know what the intention of the bill was. I even provided the Leeward Planning Commission with potential language. However, it wasn't adopted and it wasn't set. That's why this amendment is here before us today. MS. KAGIWADA: Okay, thank you. CHR KIERKIEWICZ: Council Member Evans. MS. EVANS: Thank you. I mean, I'm a little confused, and I'm thinking people in the public that are watching this may be too, in terms of what we're doing. So, I have to give a scenario. So we had COVID, and so for two years people couldn't work, which meant the contractors or whatever couldn't hire anybody to build anything or do anything. So, that's automatically two years off, right? So, they may be coming, saying, "I just lost two years. I need an extension. You need to give me back the two years I lost." Can you give us the scenario? If this passed the way it's written now with the amendment, what would happen? MR. KERN: Sure. Thank you for the question. So, when a condition is—let's just use a standard kind of timing condition. You have, you know, five years to get to a CO (Certificate of Occupancy) Subdivision approval or whatever that trigger is. Then, the condition will generally say, "an administrative time extension may be granted for an additional five years if these factors exists." So, if that were to come in, let's say the first five years. Let's say that was the approval that scenario had gotten with that condition. And the five years comes up, and they're at COVID. Let's say they're in that debacle. They would submit a letter to the Planning Department to the Planning Director, saying, Page 7 PCPLUD-1 January 5,2023 "I'm requesting my administrative time extension only for that additional five years,"based on these reasons. Then we would look at it and say those reasons are justifiable, reasonable and grant that administrative time extension. That would only be for that five-year and five-year, that's the ten-year mark. So, if there were issues that ran over that, there's no way to gain that time back. The administrative time extension is only granted for the original time that was given. That administrative time extension is explicit in the condition that you folks would be approving or amending or adjusting. We've seen cases where, say the five years is up; it's year-six or year-seven, and they come in and say, "I need an administrative time extension" for whatever reason. If again, the criteria makes sense, the department or director has generally granted that administrative time extension. But let's say, we're at year-seven, the administrative time extension would only be for the additional three years. It's not an additional five years. Depending on when they come back, it's still confined within that five-year and five-year. It would be similar if it was a ten-year timeframe with a ten-year administrative time extension. It doesn't go pass the 20. Just like it doesn't go pass the ten. Does that make sense? MS. EVANS: It does, but I think the concern is things really change after a decade, and so, there's no way to go back and there's conditions? If you go ten and ten, that's 20, but usually in a decade, things can change. With environmental, the State Legislature passes new laws. MR. KERN: Absolutely. So, there's a few things that go along with that, and that's why, you know, typically it's kind of been a five and a five. I think each area and each project has its uniqueness. There's a lot of commonality around certain areas and projects. There's also uniqueness. You might have a larger scale report project that's you're going to find in this area that we know it's a 20-year. We know conditions aren't changing very much in that area. We might have something that's a little bit more on the fringe, that we're like, hey in five years right now, that can go to the project. But you know what, maybe we don't want an administrative time extension. Maybe have them come back in at that five-year mark. So, the condition and the timing factors can be and are dynamic. They can be adjusted on a per-project basis. That's my concern with the amended language is that it has an affect on the Planning Director and the Planning Department, but it has the bigger effect on the County Council. This essentially ties your folks hands to not ever grant a dynamic condition that would allow for an administrative time extension. I don't understand why you'd want to limit your own ability to do that, because you folks right now, as rezonings come in, you could say, "No administrative time extension on that one. That's a five-year one, that's a ten-year one, that's a 15." Page 8 PCPLUD-1 January 5,2023 Whatever feels right or whatever seems right, based on the criteria. In addition, there are conditions within there that say that the project has to follow all applicable State, County, and Federal laws. So, if a State law changes in-between time, and there's further requirements for environmental, they have to meet those. Like let's say it went from a cesspool to septic system type of situation, they would have to do the septic system in there. It doesn't give them carte blanche for whatever that was. And this again, this condition is really around the time extensions. Does that make sense, does that help clarify? MS. EVANS: It does, and I think it's really important to point out that if the laws change, when you do the extension, they're going to be subject to whatever the new laws are. I think that's been obviously a sore point with some people concerned that they didn't have to meet new environmental regulations, but they will, and I think that's important to point out. Thank you. MR. KERN: That's usually like Condition two or three, you know to meet all applicable laws. MS. EVANS: Thank you. CHR KIERKIEWICZ: Okay, thank you, Council Member Evans. Council Member Villegas. MS. VILLEGAS: Yeah, first off, I want to thank Vice Chair Goro Inaba for picking up this piece of legislation that has been talked about since I first got into office and has been a challenge for me in District 7, particularly. I really appreciated the testimony by Cory Harden in pointing out some of the ironies and perception of people and seeing the discrepancies in how things may be written, about how they're often executed and the public's mistrust of what happens there. To me, I find it's no surprise that there's a difference between the Windward Planning Commission and the Leeward Planning Commission's current reflections, being that the Leeward side of the island is being inundated by development and project opportunities and tends to be the seat of the tax base for the island. But we have to live with our overly stressed infrastructure systems, and which I empathetically recognize the Windward side has even less infrastructure in many places. But I can see the difference in that, and I also want to recognize as Ms. Harden said. You know, being a member—or the Mayor and getting to nominate members for the planning commissions is a very powerful position to be in. Whomever you place on those planning commissions, their perspectives, their biases, their line of work prior, come into play. Historically, there have been a lot of people with strong union ties and strong development or construction ties in those areas which Page 9 PCPLUD-1 January 5,2023 has its relevance based on experience with construction, building and what not. But I am grateful that there are those that sit on those commissions who are experts in the fields of culture and environment and broader planning sensitivities. I will be supporting this amendment, and I will be supporting this bill today. In District 7, we currently have a project underway on Alii Drive that was approved and given a time extension and whatnot for years and years. When all of a sudden they started bulldozing, my phones blowing up; the newspaper's calling me. What is going on here? It had been so long that it had passed out of people's minds what that was going to be. All of these townhomes essentially were sold before being built, close to a million dollars a piece. Then, being built there is adding to the strains of our infrastructure on Alii Drive where we currently don't have tsunami evacuation routes that could adequately allow for people to leave. Another project that's currently coming back for more time extensions after more than 20 years after never fulfilling their affordable housing requirement is now asking for a ten-year extension. I don't agree with that. It's prospecting. We're past that. I don't know if you guys watch Yellowstone, but I've been enjoying the new season. I've been enjoying some of the comments by the new Governor. I think for me, you know, it had a good lengthy talk with our Mayor and Kona is at capacity. Our roads cannot endure more time extensions for projects that were designed 10, 20, 30 years ago that don't take into consideration that our roads and our sewer systems can't even cope with what we're experiencing now. Our schools are far, far overcrowded, and the teachers don't have the resources they need. The traffic around these schools is constant, chaotic, and dangerous. So, I understand the GP (General Plan), and the CDP (Community Development Plan), and all those things are great. But without infrastructure improvements and without projects being authentically focused on workforce housing and affordable housing, we're at capacity. Exceptions being made for prospecting on, you know, large tracks of property that were bought in the 70's and 80's at pennies on the dollar is unacceptable; also, I'd like to point out taking into consideration, the flood corridors in Kona, they are flowing. CHR KIERKIEWICZ: Council Member, I'm so sorry to interrupt, but if we could just stick to the amendment that's before us? MS. VILLEGAS: Sure, I'll be finished in one second. So, those are things to take into consideration when we're looking at zoning extensions. The time extension there with climate change, we're seeing waterflows that far exceed anything in our lifetime and it's dangerous. So, for that, I support this because I Page 10 PCPLUD-1 January 5,2023 think that any and all attempts to create more foresight, and oversight, or public trust is important here, and I also don't think that we could never pull it back. Thank you. CHR KIERKIEWICZ: Thank you. We're going to be in recess for two minutes. Thank you. Recess: At 9:32 a.m., the Chair called for a recess. Reconvene: The meeting reconvened at 9:34 a.m. CHR KIERKIEWICZ: Council Member Galimba. MS. GALIMBA: Can I give it to Director Kern, and then I'll take it back up? I believe he had something to say. MR. KERN: Yeah, thank you. So,part ofI feel like my job and my goal as director is to communicate as clearly and as effectively as I can based on the subject matter. I just wanted to respond briefly to Council Member Villegas. There's two issues regarding time extensions. There's one, an administrative time extension that's baked into the ordinance that does give the director the ability to grant that administrative time extension, as I just explained, and that's what we're on right now. There's another conversation around time extensions that come up, that when a rezoning ordinance is approved, let's just say it goes from like Ag to Residential, and they don't do anything. Let's say the zoning ordinance expires, let's say it's a five and five in this case, and it goes past the ten-year mark, and we're at the 11-year mark. That property now no longer is able to get any type of administrative time extension. That's off the table in its entirety. The zoning is still zoned Residential but it's in limbo now. There's really nothing that can happen because it's not Ag. It's Residential, but you can't really effectuate anything because the ordinance is considered stale. And what happens is, the applicant then comes in to make a request for a time extension, and that time extension request goes through the entire process. It's submitted to the Planning Department. We review it in its entirety like a new one. Look at the GP, CDP, all of those factors; update any conditions, etcetera. Send it through the proper planning commission then back to Council. And so, there are two conversations around time extensions. Both have varying degrees of feelings from various people around here. I just wanted to share that. Page 11 PCPLUD-1 January 5,2023 Point of Order: MS. KIMBALL: Point of order, Chair. To your previous point with Council Member Villegas, I do think we are on the motion of the amendment, and I think ideally, we're talking about a process here that pertains to the entire bill. I would suggest we keep on topic of the amendment, and then we can have this broader discussion about the bill. Thank you. MR KERN: I know it's a very confusing subject matter, and I want to just say that there are two separate conversations that both relate to rezonings. Thank you. CHR KIERKIEWICZ: Thank you, Director. Council Member Galimba. MS. GALIMBA: Yes, it is very confusing, but I guess for me talking about the amendment, and I understand and respect the set of circumstances that are inspiring the desire to change this. But I guess I don't see how taking away from the Council's own ability to grant extensions or not grant extensions really addresses that some of the concerns that have been brought forward with previous projects, because I think we have to look at what's on the paper and what going forward we could do. I mean, there certainly are cases based on previous zone changes and the conditions that were given those ordinances that probably we would disagree with at this time. However, I think we have to just look at what we have and what end goal going forward and what would work best. I think, I just worry about some of the unforeseen consequences of tying our own hands with this amendment. So, for myself, I don't support the amendment. CHR KIERKIEWICZ: Thank you, Council Member. Any other questions or comments? Chair Kimball. MS. KIMBALL: Pertaining to the amendment, you know, I'd like us to get back to the discussion about the bill at large, and I would just like to ask the Director of the amendment and Council Member Inaba, if in terms of your intent of what you wanted to put forward. This is primarily from your perspective, a clarification amendment rather than a substantive change of what you intended the original bill to be. So, I will support the amendment if it was what you intended as far as the original bill, so that we can have a discussion about that. MR. INABA: Council Member Kimball, yes. In response, this is really to clarify the intent and to make very clear in the most simple way possible, what we are not wanting to allow anymore. MR. DARROW: Chair. CHR KIERKIEWICZ: Thank you. Hold on a second. Chair Kimball, any other comments, remarks. Page 12 PCPLUD-1 January 5,2023 MS. KIMBALL: I will yield to the Deputy Director and then I'd like to Call for the Question. CHR KIERKIEWICZ: Okay, thank you. Deputy? MR. DARROW: Thank you. So, as we look at this amendment, we have to consider the ramifications of what this may bring to us in the future. If I was an applicant and I realize that there was going to be no more time extensions granted by the Planning Director for a particular development, my thought would be, "Well, I'm going to be asking for ten years or 20 years instead of five years." So, keep in mind that going forward, as I mentioned before about the checks and balances, having the five years with the check and balance at five years to allow an additional five years provides us that ability to look at the project halfway or at that end point and see if it's on track and can go forward. Otherwise, what may end up happening is, we might be seeing requests now for double the time. So, just if we can keep that in mind? Thank you. CHR KIERKIEWICZ: Thank you for those comments. Council Member Lee Loy. MS. LEE LOY: Thank you. You know,just real point blankly to the Director and Deputy Director, do you support the amendment? MR. KERN: I do not support the Council tying it's hands. MS. LEE LOY: Thank you. Chair, I yield. CHR KIERKIEWICZ: Thank you. Anyone else? Council Member Kagiwada. MS. KAGIWADA: Tell me if I am off-subject on the amendment on this. But, just trying to understand, has it been the practice of the Council to kind of automatically give these extensions in the past? Is that one of the issues? CHR KIERKIEWICZ: So, Council Member, as the legislative body, we are provided a bill for ordinance, which specifies different conditions of approval. One of the conditions of approval, standard practice, has been to allow for administrative extensions by the Planning Director. We have had the ability every single time. There was a bill before us to remove that condition. Nothing ever precludes us from doing so. We had made the decision to keep that in there. There have been situations though, in my time here on the Planning Committee, chairing it, where I have seen that the Planning Director has not granted the administrative extension. Because we believe there is enough time. Yes, it has Page 13 PCPLUD-1 January 5,2023 been standard practice, and this would essentially in some format codify not having an administrative extension. MS. KAGIWADA: I see, okay. CHR KIERKIEWICZ: Is that helpful? MS. KAGIWADA: Yes, I yield. CHR KIERKIEWICZ: Did you have any final remarks, if not, I wanted to just kind of weigh in on this amendment. MR. INABA: Go ahead then. CHR KIERKIEWICZ: Okay, hold on. Council Member Villegas. MS. VILLEGAS: I was hoping to ask Corp. Counsel about whether or not this ties our hands. CHR KIERKIEWICZ: Corporation Counsel, Judge Strance, did you want to weigh in on the question? You may not want to, but we need you to. (Note: At this time, Corporation Counsel Elizabeth Strance came forward to address the members of the Committee.) MS. STRANCE: Good morning, Elizabeth Strance, Corporation Counsel. What do mean by tying your hands? MS. VILLEGAS: It was a comment made by the Planning Director about this amendment, potentially being—I don't know if you'd call it a threat, but essentially blocking the Council's perhaps you could explain what that concern was. MR. KERN: By no means, never a threat. That's not my position or my job. MS. VILLEGAS: No, no, no, not you threatening, but this amendment would be a threat. MR. KERN: Very good for the explanation. So, the way that I read that is that I mean let's read it in really plain language, "A condition granting an administrative extension of time by the director shall not be included in any change of zone ordinance." That means that if the Council wanted to put that in, it wouldn't be possible to do, because it's in law that you can't do it. That's the way I read it. Page 14 PCPLUD-1 January 5,2023 MS. STRANCE: So, if you're talking about, at the time of the original ordinance coming before the Council, as I read that Subsection (b), "the Council be prohibited from including any type of extension of time in the original ordinance, and that a subsequent request would need to fall under, request to change or alter conditions." Then that would need to come in to Subsection (c) and(d). So, I think it's a little confusing because I think you're trying to discuss specifically time extensions. By using the word change or alter conditions, that's a broader term. The short answer to your question is, as the amendment is written, extensions of time cannot be built into ordinances. MS. VILLEGAS: So, does that concur with it tying the Council's hands completely with that reflection? MS. STRANCE: At the time of the original ordinance, I think the answer is, yes. The next question is, can any developer come in at a subsequent time and ask for more time? Is that treated as a change or alteration in condition, in which they would need to come in under the provisions set forth in Subsection (c)? It gets a little confusing with Subsection (d) because it states that, "If an 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." So, it might be helpful to flush out a little bit, but I think the answer at the original enactment, yes. Subsequently, it's a little murky but I think an argument can be made that an extension of time is treated as a request for a change or alternation in the condition and it's submitted pursuant to Subsection (c). MS. VILLEGAS: So, clear as mud. MS. STRANCE: Let's just say murky. MS. VILLEGAS: Okay, well thank you for that, even though it didn't necessarily clear it up completely, I suppose in my mind, there's a bit of irony in something that could be perceived as something that would tie your hands or remove power then. You're pointing out the potential for it then,to tie our hands. So, I would then turn back to the author of this legislation and hope to move forward in a way that we get to where we need to go without any accidental or unforeseen complications. So, thank you for that, I appreciate you answering those questions and walking us through that. Thank you, I yield. CHR KIERKIEWICZ: Thank you. Vice Chair Inaba. MR. INABA: Thank you, real quick. I think we just got to get real here. Whose hands are doing the deed right now? It's the department by putting in the language. Page 15 PCPLUD-1 January 5,2023 So, if we pass this amendment, whose hands is it tying? The department? Could it technically be tying our own hands? Perhaps. But the point here is that when we have an applicant come in for a certain amount of time, that's what they're agreeing to. They should be completing all conditions of the rezoning within that time. If they choose not to,perhaps in incidences like the pandemic, and it is going to be difficult, and there was two years that they lost. At the same time, the department now is saying, "people might come in and ask for ten years." Well, I'd rather somebody come and ask for ten years, and the department, with their expertise, tell them, "no, you can do it in seven." We're not going to allow speculation here, and get it done in that timeframe. So, when we look back at a rezoning ordinance; when we see it's expired, it's expired. We don't have to guess where the project stands. So, whose hands are being tied? I'd say, not necessarily ours, because we're not the ones including the language in all of these rezoning bills, as to the administrative extension. Thank you. CHR KIERKIEWICZ: Council Member Kaneali`i-Kleinfelder. Motion to MR. KANEALI`I-KLEINFELDER: Call for the vote. Seconded by Call for the Council Member Inaba. Question: CHR KIERKIEWICZ: Okay, there is a request, a motion for Call for the Question. Mr. Clerk, I believe we just have to see if there are six votes. Roll call vote, please? Vote on Motion to Mr. Kaneali`i-Kleinfelder moved to call for the question. Call for the Question: Seconded by Mr. Inaba and carried out by the following Failed roll call vote: Ayes: Committee Members Inaba, Kaneali`i-Kleinfelder, and Villegas —3. Noes: Committee Members Evans, Galimba, Kagiwada, Kimball, Lee Loy, and Chair Kierkiewicz—6. Absent: None. Excused: None. MR. BROWN: The motion fails. CHR KIERKIEWICZ: Thank you. We will continue discussion on the amendment. Council Member Lee Loy. Page 16 PCPLUD-1 January 5,2023 MS. LEE LOY: Thank you. You know, this question is for our Deputy Director, just because you have a lot more historical institutional knowledge in this area. You touched upon something that triggered me a little bit, which is, this moves in; this becomes effective, but we have change of zone ordinances out there that span decades. Give me that scenario. I have a change of zone, I have a bill, I have an ordinance that says I'm allowed a time extension, but this moves in. Which is, I think, what Judge Strance was kind of overlaying there just now. Give me that scenario. How does the department react? MR. DARROW: Because that was an approved ordinance, we would grant that administrative time extension. I believe this bill is limiting new bills from coming forward to have that condition. I would like to mention that, you know, again I like to kind of walk things through so I can see. So, given a typical rezoning process, the request comes in to the Planning Director; the Director prepares a recommendation to the planning commissions, and places in proposed conditions. Now, given this scenario that we just spoke about, what if the Director does not include an administrative time extension, but the planning commission requests to put it in, or the Council decides, we want to put in an administrative time extension. So, the Director did not put one in. But does the Council—and I think that was the question that Council Member Villegas was trying to get an answer to. Does the Council still have the ability to put in an administrative time extension if it comes up and it's not from Planning Director? I think that's a question that we need to see if that's a possibility. MS. LEE LOY: Thank you, Deputy. I'm going to really hone in on the intent, which is what the author of this bill is seeking clarity, right? Where it's not being done with the director and the applicant. Having done a little bit of this myself, there's annual progress reports that have to be filed, annually. So, some of the misleading information out there is that there is no public kind of preview as to what's going on when that's simply inaccurate. It's on the applicant to provide an annual progress report. All of that is public. They can make a request to know how this project is moving along. So, to the author, I'm trying to word-smith with you. Like, I get what we're trying to do, because at the end of the day, what I'm hearing is, we get these change of zones to create infrastructure, infrastructure improvements, build capacity. But for whatever reasons they're not getting done. At the heart of all of this is managing that expectation so that the community is getting what they want by way of infrastructure, parks, housing improvements, commercial. Page 17 PCPLUD-1 January 5,2023 I want real property tax, so I can pay for all of that. But there seems to be this complex process, and to the author, Mr. Inaba, maybe not so much asking you to withdraw, or maybe I am? Maybe looking at word-smithing it a little bit better, because throughout the process as the Deputy described, the Director can make it's recommendations, but there's a few more steps where it could get altered, right? Share with me your thoughts, Mr. Inaba. CHR KIERKIEWICZ: Mr. Inaba. MR. INABA: Very clear here, it's not who adds the language? It's that the language doesn't be added. It doesn't matter who. Not us, not the commission, not the department can add language that says an administrative extension can be granted. That is what this amendment is saying. And again, it goes back to, yah, we do want to manage expectations. If we know that projects that typically used to take five years to get done needs eight years, whose advice are we going on? The Planning Department. So, we best be seeing an ordinance that's requesting eight years when it comes to us. Not five years knowing that that's not adequate to get a job done. So again, I think it comes back to—it's really about transparency. I don't know how much more clear or transparent I can be about this bill, in the fact that, you come in for a reason to get your property rezoned. You're going to ask for eight years. Get it done in eight years like you say. Not eight assuming you're going to get another eight and you have sixteen years worth. In the meantime, none of us, and I don't necessarily agree that it's—could we request information about the standing of a project and whether it got an administrative extension? Sure. But shouldn't it be more clear that when we look at a rezoning ordinance and it's past the expiration date, it's expired. Our official public record is the ordinance. That is what ties the applicant to the conditions of the rezoning. That is what ties the applicant to the conditions of the rezoning. So, when we look back, that's what we need to essentially be committing ourselves as the applicant and as the County. MS. LEE LOY: Thank you for that, and I'm going to ask this question back to the Director. These time limits have been frankly arbitrary. Five years, ten years. There has never been an assessment as to how long does a 100-lot subdivision take to get through its process when a CLOMR (Conditional Letter of Map Revision) is needed. I mean, right, we don't have a recipe of those timing elements. CHR KIERKIEWICZ: Council Member, I love where this discussion is going, but I just want to stay on this amendment. Thank you. MS. LEE LOY: Yes. Quick answer. Page 18 PCPLUD-1 January 5,2023 CHR KIERKIEWICZ: Tie it back to the amendment. MR. KERN: Yeah, oftentimes, the applicant is trying to do their best to represent on what they think they can get done, and then they go into the gauntlet of the process, and that can take years. Sometimes it's stuck at SHPD (State Historic Preservation Division) for a couple years; sometimes it could be at DPW (Department of Public Works); a CLOMR, a LOMR (Letter of Map Revision). It could take multiple years. Yeah, so there isn't an exact science. It's like the best that we can do. I'll leave it at that. Thanks. MS. LEE LOY: On the amendment, right now, I'm not going to support it. I think there's something better we can do, but we need more information, and I think when we get to the larger part of the bill, a lot of that can filter in. Because there's something else here relating to a filing fee. Let's make it worth our while, guys. Not just$250, but that's a whole other discussion. So, on the amendment, I'm not going to support it at this time, but I think there's stuff here that we could tease out and make work for what we're trying to achieve. CHR KIERKIEWICZ: Thank you, Council Member. Chair Kimball. MS. KIMBALL: Thank you. Recognizing that it previously called for the question, Corporation Counsel Strance made something occur to me here. I'm just going to make the recommendation to Council Member Inaba, with respect to the amendment, the wording unless the Council authorizes changes or alterations to be made by the director, since this part of the code applies to all conditions that might exist within the rezoning ordinance. The reason that I think that there is a potentialI can't think of an exact scenario, but I'm sure that there is a scenario where we might, in advance, be aware that there might be something that would come up that would cause the need for a little flexibility with the Director's decision about something completely different. Let's say it's about cesspools. It's a condition about cesspools, and we know there's a law, a change coming, and we want to give the director the ability to change that condition in the ordinance outside of a whole Council process. You know, there is something to be said here in the larger picture about us being more diligent about rezoning and examining the conditions, and then making sure they're appropriate and making sure that we're anticipating all potential changes. But believe it or not, we can be wrong sometimes, and we can predict incorrectly; the director can predict incorrectly. So what I'm going to suggest to you is rather than striking the language, "unless the Council authorizes changes or alterations to be made by the director." Leave that in, and then add your new language, "a condition granting an administrative extension of time by the director shall not be included in any change of zone Page 19 PCPLUD-1 January 5,2023 ordinance." With that amendment to the language in this amendment, we are expressly only excluding the ability to put the flexibility around time extensions in and not some flexibility around other types of conditions. That would be my recommendation. I'm not sure if we can change that on the floor, because it's substantive or we'd need a new communication, but that's my recommendation. I yield. MR. BROWN: We would greatly prefer that whatever, you know, a change like that would be put on paper so everybody could see it and really interpret it; also, the public would have a chance to review it as well. CHR KIERKIEWICZ: Thank you, Mr. Clerk. MS. KIMBALL: If the introducer of the amendment is amenable to that, my suggestion might be a motion to withdraw and then, we could either table this for later. Anyway, that's my thoughts. Thank you. CHR KIERKIEWICZ: Thank you. Council Member Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Thank you, Chair. I'm thinking about what Ms. Kimball just said. Mr. Kern, thank you for being here today. Happy New Year. How often do you, as Director, because it's director-specific in this amendment, how often do you include an extension of time, administratively? MR. KERN: Typically, the conditions are coming in somewhat standard, where it's usually in most cases, it's a five-year with a five-year administrative time extension. In cases where it's like an additional request of time that comes through the Council, the administrative time extension is usually withdrawn from that, and it's not. It's just sad, like you came back through for a time extension that goes again through the whole process, and that's taken out. Now, that's been the standard practice, but that again is very dynamic. If the Council said, "hey, we don't really want to see that condition,"then we just change that. We could do that, so it's delivered to you folks in a format that's more collectively wanted by this Council versus,just no. MR. KANEALI`I-KLEINFELDER: How often? MR. KERN: Most times. MR. KANEALI`I-KLEINFELDER: So, what? Would you say, every change of zone ordinance is drafted by you? Because in my opinion, they're not. They're being drafted. Page 20 PCPLUD-1 January 5,2023 MR. KERN: They're being drafted by staff. We're working collaboratively with staff. You know, using the General Plan, CDP's, etcetera. In certain cases, there has been longer periods of time. In certain cases, we've said you know, no administrative time extension in that case. Going to have to look at each one uniquely. And then, I also think there's a larger conversation as well. As in certain cases, is a time extension even necessary? Should it just be, that's the zoning, because it's good today, it's going to be good tomorrow; it should be good in 20 years. It doesn't mean you have different conditions that relate to, let's look at traffic impacts; let's look at other things when they come in for administerial approval. So again, it's just land use, it's very dynamic. MR. KANEALI`I-KLEINFELDER: I'm just thinking about this amendment and what is it doing? There's been a lot of discussion today, and little bit murky in the way that they tie together, but I feel this to me is fairly clear. I can see the intention behind this. I think Ms. Kimball had some good points. But regardless, I believe those could be addressed later. This is in Committees, and I would be okay with moving this forward today. I can see the intention, and while there may be a possibility of adjusting a little bit, that could be adjusted on the fly on the next one, or this could be held in Committees until the maker of the bill decides that he's comfortable with the language, and it is his intention, and the Council feels the same way. Given your answer, I'm still a little bit—this is, "a condition granting an administrative extension of time by the director shall not be included in any change of zone ordinance." That language is fairly clear to me on what is trying to be accomplished. And your answer was, there's a collaborate effort. MR. KERN: To speak to that language, specifically, if this were to pass, when we put together the background report, recommendation and appropriate conditions for the application, there would not be any type of administrative time extension language within that condition. When it goes to the planning commission, they would not be allowed to put any time extensions in there. Actually even better, the director could include that language in there. The planning commission could include that language together. Once it got to you folks, you folks would not be allowed to keep that language in there. You folks would be required to remove that language because there is a law prohibiting the Council, because the Council makes the decision on this. This is not a director decision. This is Council prohibiting the County Council from putting that language in there. MR. KANEALI`I-KLEINFELDER: I'm going to walk back on that. So, you're saying that with a law saying that you can't do it, you're going to do it. Give it to Page 21 PCPLUD-1 January 5,2023 planning commission who would do it, which doesn't say they can't do it. And then you're going to give it back to us and say that we can't remove it? MR. KERN: You know, with this direction, I think it would be MR. KANEALI`I-KLEINFELDER: I think I understand what you were trying to say, but I don't know that I agree with your statement. MR. KERN: So, the Planning Department and the Planning Director doesn't make the law. We're not passing a law. We're preparing the application to be reviewed and voted on by the commission and by the Council. So, I think if the director—let's say that this were to be approved and the director put that in there, I think the County Council wouldn't be happy with the director. But there's no recourse. Then, let's say the commission came up and said, "we believe that the administrative time extension is valid as well." Once it got to the Council, again the Council wouldn't be allowed to do it. Whether or not the director puts that in or not. I'm just using that as kind of an extreme example, if it went all the way through, you would have to take it out. In the other case, let's just say, if this were to go through, the department does not put any language in there for administrative time extensions. The planning commission doesn't speak to it, and it gets to County Council and you have folks from the neighborhood or whatever, or something unique happens, and they say, "we'd really want a shorter timeframe with an administrative time extension, that would be really good for us." The County Council would not be allowed to do that. At the end of the day, the County Council approves the conditions. At the end of the day, the County Council approves the rezoning ordinances or not. That's what this one speaks to. This would give the Planning Department direction. This ties the hands of the County Council to allow any type of language within that. MR. KANEALI`I-KLEINFELDER: I'm not quite following that. You know, given the language in front of me, I'm trying to, and I'm not looking at the whole—are you looking at the ordinance as a whole or just the section? MR. KERN: I'm looking at the language. I'm speaking to the amendment. MR. KANEALI`I-KLEINFELDER: Just to the amendment, yeah? MR. KERN: "A condition granting an administrative extension by the director shall not be included in any rezone ordinance." So, therefore, any type of time Page 22 PCPLUD-1 January 5,2023 extension language through the director "shall"that's explicit not be included in the ordinance. So, if it came to you folks, who is the final decision maker for approving the ordinance or denying the ordinance, no language like that would be able to be approved. That's why to me, this amendment in the bill is much less around the Planning Department. It gives direction, but this is really around the County Council. This is you folks. MR. KANEALI`I-KLEINFELDER: So, in my reading, this is saying that we or you will not include any administrative time extension to a zoning ordinance, and I feel like we're saying the same thing, but you're getting a different conclusion than I am right now. MR. KERN: I'm saying, it wouldn't be allowed. Like there's no way. Like, even if you folks all, let's say all nine of you said, "you know, this would be a really good one for an administrative time extension. This would be the prime one." If this is approved, that cannot happen. MR. KANEALI`I-KLEINFELDER: So, if it was changed to say, "written by the director." That would be specific to the Director of Planning. MR. KERN: Well, the language in the bill that was proposed, not the amendment, makes it very clear that unless explicitly authorized by the County Council, the director cannot and shall not issue any time extension. That explicit authorization is the condition within the ordinance, and you folks as a Council and lawmaking body can include or not include however you want to. So, that's very explicit that the director cannot do it unless it's in the ordinance, and the department has to follow what's in the ordinance. That's law. MR. KANEALI`I-KLEINFELDER: Okay, what precludes the Council from adding that in with this language? MR. KERN: Because of this law you'd be breaking the law. Once it becomes a law it becomes an ordinance. You would not be in violation of a law that you folks approved. MR. KANEALI`I-KLEINFELDER: Okay, if I was to read it like that then, we couldn't put a condition in; the Council could not put a condition in that had an administrative extension. But we could include our own. We could say that within the ordinance, there is an extension of time built in, correct? MR. KERN: I would say, no. I would say, is the County Council allowed to break laws? Page 23 PCPLUD-1 January 5,2023 MR. KANEALI`I-KLEINFELDER: Well, okay I look at this, then extension of time by the director, that's very specific. That's not saying extension of time. That's an extension of time by the director. So, to me that's clear too, so we would not pass a law. So, we couldn't put a condition into the bill, saying that the administrator can do an extension of time. But we could put our own extension of time in to that ordinance as a condition as a Council, correct? MR. KERN: Sure. So, could you give me an example of who would be granting that time extension? MR. KANEALI`I-KLEINFELDER: Anyone on this body could, right? An extension of time into an ordinance if we chose to amend it, if it didn't come to us with one. MR. KERN: I don't read it that way, and that's why I think that Corporation Counsel, and I believe Council Member Inaba—it's the intention that there's never an administrative time extension put into an ordinance by the director proposing it, a commission proposing it, or the County Council body proposing it. MR. KANEALI`I-KLEINFELDER: Chair, I'm going to yield, but I think I got to whereI was feeling a little stuck on this. CHR KIERKIEWICZ: Okay, are you unstuck? Almost? MR. KANEALI`I-KLEINFELDER: I'm almost there. I'm getting there. It takes me a minute, but I'll get there eventually. Okay, I yield Chair. Thank you. CHR KIERKIEWICZ: It's a little bit complex. Director,just my recollection of, you know, the standard conditions of approval. Sometimes it does include the administrative piece where the Planning Director can grant, but if memory serves me, there are also conditions where the time has lapsed for that particular ordinance. It automatically has to revert going through the process, and then it goes back to Council. MR. KERN: That's right. Once, whatever that condition CHR KIERKIEWICZ: So, the language that Council Member Kaneali`i- Kleinfelder was speaking to is already included as part of standard practice? MR. KERN: I'm a little bit foggy on exactly where we're going with this. I think we're closer than we were, but I think there's still some confusion, and I couldn't specifically say, yes, that's the way that it is. But whatever that is within the ordinance, once that time is up, it's gone. It has to go back through the entire process. To answer the last part of your question. Page 24 PCPLUD-1 January 5,2023 CHR KIERKIEWICZ: Okay, thank you. Alright, Council Member Evans, and then I'll go to Chair Kimball, and then Vice Chair Inaba. MS. EVANS: Thank you. I understand, I believe what the author is trying to do. I'm concerned about the amendment language and would like us to go back to the main bill and maybe flush it out. But in terms of the amendment, my biggest concern is unintended consequence. Because if this were to go through as is, what it's trying to say to the Planning Department is, give them 20 years or give them 10 years or to the best of your ability, knowing that there could be cesspool and could be you're going to do the General Plan; you're not done with it. You know, all this stuff is coming down the pike. If you already can see it, like in process, but don't know when it's going to you're going to give these people 10, 15, 20, maybe 25 years to do it, because we have held your hand to doing any extensions. I believe the beauty of the extensions is to come back, and I think what we have to look at is, how do we change conditions, and how do we add more things if they ask for an extension, making sure things like infrastructure and roads, and the General Plan that gets passed; and the new cesspool. You know, maybe we need to go back to the main language and figure out if in fact, there is an extension. What do we have to do to address all the things that Council Member Villegas put in. You know, maybe that's where we need to go with this. I'm just really concerned that this has unintended that you're going to end up giving them 20 years to do subdivisions. Thank you. CHR KIERKIEWICZ: Thank you, Council Member. Chair Kimball. MS. KIMBALL: Thank you, Chair. Just to go back on the amendment to what Council Member Kaneali`i-Kleinfelder was saying, and this is where I respectfully disagree, Director, about the particular intention and wording of this amendment. The prohibition is on the Council or the ordinances having an amendment or having a condition that allows for an administrative time extension by the director, specifically. And you're correct, that is there was an ordinance brought before us that had language that allowed for an administrative time extension by the director, that ordinance would be unlawful if this were to pass. However, it does not preclude us from having an applicant go through the rezoning process, which is what it's reverted to when there's a change requested that would come before the Council and go through that whole process. So, what to me, this amendment and I think this is the intention of Council Member Inaba anyway, is to say, "we're just not going to give the director the authority to do the time extension. We're going to require that they go through the entire process again." In which case, the Council would review it again; in which case the planning commissions would review it again. Page 25 PCPLUD-1 January 5,2023 I think it's that transparency and review of the current circumstances, that Council Member Inaba is trying to get to with saying that we're just not going to allow the extensions by the director alone. MR. KERN: Right. Yeah, by no means would this prohibit the person from asking for a time extension and going through an eight to 12-month process to get to that place. That is definitelyI definitely still see that, and that's why I was kind of at the beginning saying there's kind of two distinct ones. One say, time has gone past it, then they have to go through the entire process versus having the ability to do a mid-term check as an administrative time extension. But, my point was this would prohibit the Council from allowing that. MS. KIMBALL: That's correct, yeah. MR. KERN: So, we're on the same page. CHR KIERKIEWICZ: Council Member Inaba. MR. INABA: Thank you. I am preparing another amendment, specifically addressing Chair Kimball's recommendation as to the first part that was struck in this current amendment. Just so we know, there's something coming in. I do also see a potential for a middle ground here in the sense of perhaps an initial time extension could be granted as the bill was approved, but it would be approved by the Council, and we don't or maybe have the right to edit conditions. We only can grant an extension of time. That way there is the opportunity for public input. Again, it comes back to the body who ultimately first passed the ordinance. I hear what everyone's saying and having a little bit of leeway, I just think it's in the public's best interest and in our best interest as a Council, for transparency for accountability, that anything that is approved here would have to come back here to be approved again if an extension of time is needed. So again, it has been the common practice that the director has that authority. I don't agree with that and that's what the intention of this bill is. So, I want to probably hear from Chair Kierkiewicz since we've all had the chance to kind of talk awhile, but just wanted to throw that out there just so there is greater trust and greater accountability in land use decision and planning here. Thank you. CHR KIERKIEWICZ: Thank you, Council Member. Anybody else? What a great way to kick off the New Year. Such a robust, and intense, and important conversation. Welcome new Council Members. Page 26 PCPLUD-1 January 5,2023 Thank you so much for putting this forward. This was something that I was like totally grappling with when I was coming onboard as a Council Member. I think my first term we saw over 30 requests for time extensions, and I thought, what is happening here? How come there isn't enough time for folks to be completing their projects, so it's good that we're having this conversation. You know, the short end of it, I cannot support the amendment as presented. I think the original language in the bill provides that very strong signal and direction to the department around, we don't want you to include any administrative time extensions. But I like the ability, as Council Member Evans pointed out, of having that tool just in case because we don't know; we can't predict. We never predicted the pandemic, but something could happen. I just would like the ability for us to be able to exercise that tool in the event that we need to. My reading of the bill as it is right now is, Planning Department, no more administrative time extensions are to be included in any bills for ordinances going forth. Is that your interpretation, Director? MR. KERN: Yeah, based on the other part of it, and the sentiment of the discussion, then yeah, rezoning ordinance that would come forth, would not have that. We would shoot for the most reasonable time that we thought and the applicant could complete the project. You folks would look at that; we look at that time again, and in certain cases, you may want to change it. In other cases you may not. But yeah, happily would do that. CHR KIERKIEWICZ: Okay, thank you. Thanks for the clarity. I think everybody has kind of exhausted this part of the conversation. How do you want to proceed with this particular amendment? Do you want to take a vote on it, do you want to withdraw? What is your intention? MR. INABA: I'm going to withdraw the motion on the floor. Withdraw Motion Mr. Inaba withdrew his motion to amend Bill 194 to Amend: with the contents of Comm. 898.13. CHR KIERKIEWICZ: Note that the motion to amend Bill 194 with the contents of Communication 898.13, has been withdrawn. Thank you, Mr. Clerk. Back to the main motion, which is discussion on Bill 194. MR. INABA: I think there's a little bit more work based on the conversation right now, and I don't want to hold up the department today. So, I'm wandering if we can postpone to our next meeting in two weeks,just so I can prepare something solid, based on this, and we can take it up in Kona. So, with that, I'll make a motion to postpone Bill 194 to the January 24h Committee meetings. Page 27 PCPLUD-1 January 5,2023 Motion to Postpone: Mr. Inaba moved to postpone Bill 194 to January 24, 2023. Seconded by Ms. Lee Loy. CHR KIERKIEWICZ: Any discussion on the postponement? MS. LEE LOY: On the postponement, Chair. CHR KIERKIEWICZ Go ahead. MS. LEE LOY: Yeah, support the postponement. I want to walk back to maybe even some other refinements, I think I hinted to making it worth everybody's while as far as fees, and flush that out to the director. But, I'll make sure I coordinate that with you, Mr. Inaba. MR. INABA: Perfect. MS. LEE LOY: Thank you. CHR KIERKIEWICZ: Thank you, Council Member Lee Loy. Any other comments on the postponement? MR. INABA: Just real quick, Chair. I want to thank everyone for their input, and I think the intention comes from a good place for our community, and thank you for your feedback, and I'll work to bring something for us in two weeks. Mahalo. CHR KIERKIEWICZ: Perfect. Thank you. There's a motion on the floor to postpone, all in favor please say "aye." Vote on Motion The motion to postpone Bill 194 to January 24, 2023, to Postpone: was carried by the following voice vote: (Approved) Ayes: Committee Members Evans, Galimba, Inaba, Kagiwada, Kaneali`i-Kleinfelder, Kimball, Lee Loy, Villegas, and Chair Kierkiewicz—9. Noes: None. Absent: None. Excused: None. CHR KIERKIEWICZ: Motion carries. Bill 194 is postponed to the January 24h committee meeting. Director? Page 28 PCPLUD-1 January 5,2023 MR. KERN: Thank you for your time today. Appreciate the robust discussion. Happy New Year and have a great day. Aloha. CHR KIERKIEWICZ: Thank you for joining us. Mr. Clerk, when you're ready, if we could proceed with the next item on the agenda, Bill 9. Bill 9: AMENDS CHAPTER 11, ARTICLE 1, SECTION 11-19, OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED), RELATING TO AFFORDABLE HOUSING Requires that all affordable housing agreements be submitted to the Council by the Housing Administrator within 30 calendar days following the date of execution, and quarterly activity reports beginning on March 1, 2023. Reference: Comm. 30 Intr. by: Mr. Inaba and Ms. Kimball Motion to Approve: Mr. Inaba moved to recommend passage of Bill 9 on first reading. Seconded by Ms. Galimba. CHR KIERKIEWICZ: Mr. Inaba, would you like to kick off the discussion? MR. INABA: Sure. So, here in Bill 9 we have an amendment to Section 11-19. Specifically, speaking to affordable housing development in our County. Currently, the language says that, "The Housing Administrator may provide timely periodic reports to the Council of significant actions taken under authority of Chapter of 11." What we're doing here is putting down a schedule and being specific as to the types of activities that we want reported to this Council. Last year, we had some troubles as a County related to affordable housing, and what this does is allow us to have just a quarterly reporting for a for-sale housing that was developed and sold; finished housing lots that were constructed and sold; rental units constructed; developable land conveyed; infrastructure conveyed; affordable housing units that were resold, and any density bonuses that were granted. Also, Number(1) under Section (b) speaks to affordable housing credits. So we will have an accounting of who has affordable housing credits out there. Whose earned them, whose transferred them, whose redeemed them to satisfy affordable housing requirements. Really, affordable housing credits are kind of a commodity right now, and it is to the benefit of not just the County, but to other developers as well to know who has affordable housing credits out there that they could potentially go and purchase if they do need to meet an affordable housing requirement through the use of affordable housing credits. Page 29 PCPLUD-1 January 5,2023 But, Administrator Kunz is here from the Office of Housing and Community Development, as well as our County Auditor if either of them have perhaps Administrator Kunz, if you'd like to chime in? She did have opportunity to work on this with Chair Kimball and me. So, Administrator Kunz. (Note: At this time, Housing Administrator Susan Kunz came forward to address the members of the Committee.) MS. KUNZ: Good morning, Chair Kierkiewicz and members of the Committee. My name is Susan Kunz, I'm the Housing Administrator for the Office of Housing. Happy New Year. I am very pleased with this bill; worked very closely with Council Member Inaba on this, and I think it's very appropriate that the Office of Housing have a regular schedule of reporting these activities. I don't have any problem with any of the data or the timing of this reporting. Thank you. MR. INABA: Thank you, Administrator Kunz. Just going back to when this would start. So, our first report would be submitted to Council March 1st this year and would cover the period October through December 2022. And after that, we'd be seeing it quarterly within two months of the end of each quarter. So, happy to have worked on it with Chair Kimball, and I want to pass it over to her for her thoughts. CHR KIERKIEWICZ: Thank you, Council Member. Chair Kimball. MS. KIMBALL: Thank you. And thank you, Administrator Kunz for being here. And appreciate you collaborating with us on making this workable for everybody. You know, it is fairly straightforward, we're changing a"may"to a"shall." We're actually specifying the sorts of things that we would like to see. I think, it's otherwise, it's pretty straightforward. It's things we've talked about with respect to our interest in addressing the affordable housing crisis in our County. I want to just tie in to one specific word that Council Member Inaba said with respect to the credits, which is they are a commodity, and you know, we are careful to monitor our budget and the other commodities and assets in the County. I think this falls in line with that. Just making sure that we know for certain what is out there; what is available; how it's been moved; how it's been transferred. It's critical to our understanding as to whether or not the credit program actually is working the way it's intended. So, I think this is important data for us to have in making those decisions. I do want to invite the County Auditor. I don't know if you have anything to add in addition. Page 30 PCPLUD-1 January 5,2023 As you folks know, there is a current audit underway, so I'm sure he has some things that he cannot talk about, but I don't know, in your work if there's additional comments you'd like to make with respect to this reporting. (Note: At this time, County Auditor Tyler Benner came forward to address the members of the Committee.) MR. BENNER: I was really just here as an observer today, but we did pass Resolution 467-22. I'm sorry, my name is Tyler Benner with the Office of the County Auditor. Happy New Year. Which had our office engage the Office of Housing and Community Development in an audit specifically focusing on elements of 11-5, 11-15, and 11-19. So, this is part of the scope of work, which may or may not offer recommendations, which may or may not be complimentary to what you guys are talking about today. In which case, we have completed field work; we have provided and gone through draft one with the department. It is our hope to issue draft two to the department for their final review, which would start a ten-day countdown, and then after that we would publish the report. So, if a recommendation is made with regards to 11-19, this may have an impact on that. So,just so this body is aware. MS. KIMBALL: Alright, thank you. And just a quick follow-up question to that. Will your review take into consideration, this particular bill if it should pass, or is that not going to work in the timeframe? MR. BENNER: I don't think that it needs to. MS. KIMBALL: Okay, great. Thank you for your time, appreciate it, and with that I'll yield, Chair. CHR KIERKIEWICZ: Thank you. Council Member Evans. MS. EVANS: Just a technicality. You see a list of developers and possession of credits. Can the County be a developer and have credits? MS. KUNZ: No, not based on the language in Chapter 11. MS. EVANS: Okay. Thank you. CHR KIERKIEWICZ: Thank you, Council Member. Council Member Galimba. MS. GALIMBA: So, you know, I'm new. So, you may have gone over all of this previously and it probably is part of your report or what you're working on as auditor, but this seems to be the point of this part of it is to make the County Council part of the internal controls of the Housing Department? Page 31 PCPLUD-1 January 5,2023 MS. KUNZ: Administration? Chapter 11, maybe, yeah. MS. GALIMBA: Right. So, are there other internal controls that you are proposing, and I'm not sure what the protocol is here, with an audit, I don't know. But if you could discuss as you could, I would like to hear that. MR. BENNER: I would just say from our perspective, we would have to be very reserved in anything that we could say prior to publishing our report, and I would focus on that. I was here primarily for 11-19. I would just say, understanding and having gained understanding, that at one point in time reports to this body were compulsory, and language at one point in time then was softened and changed to "shall" and periodic. So, this would just be restoring a prior version in some sense and then adding some specific data points to reinforce that. MS. GALIMBA: Thank you. I yield. CHR KIERKIEWICZ: Thank you. Council Member Villegas. MS. VILLEGAS: Sure. For starters I wanted to thank Chair Kimball and Vice Chair Goro Inaba for the time and attention, I know, that they have been working on this for quite a while and the collaborative work that happened both with the Office of Housing and then taking into consideration. Thank you for clarifying that this is actually going back to a more specific requirement. And thank you, Administrator Kunz for your willingness to provide this information. It is concerning that, you know, housing credits are so commodified, and we have ended up with so few actual units of affordable housing because something like this became so commodified. But I will be supporting this today and look forward to continuing to educate myself about what's out there; what's available, what's in the pike, and what we can look forward to because the creation and building of authentic workforce housing is, as we've all talked about, top of the list of things that we need here on island. So, thank you, I will be supporting this today. I yield. CHR KIERKIEWICZ: Thank you. Anyone else? Council Member Lee Loy. MS. LEE LOY: Good morning. I was just listening to the conversation, and Council Member Evans asked the question about the County being a developer. Not under this. DHHL (Department of Hawaiian Home Lands) has any thought been given around the Department of Hawaiian Home Lands because they do, they ask developers to build their housing, you know, at affordable rates. Does this bill contemplate that? Page 32 PCPLUD-1 January 5,2023 MS. KLJNZ: Yes. There is a State law that authorizes, right, DHHL projects to earn credits, which the County has to recognize. I believe there's a sunset date, but an automatic extension of some kind going on. So, it is something that we're digging into as we are working with our consultant and with the County Auditor on this, but definitely, these credits that are earned through the DHHL process has to be considered, yes. MS. LEE LOY: Yes. Thank you, in support. Thank you for bringing this forward. Getting our arms around this very important issue. I yield. CHR KIERKIEWICZ: Thank you. Anyone else on the bill before us? Alright. Thank you both so much for your work on this measure. You know, as Council Member Villegas alluded to the very troubling and unfortunate activities that were happening in housing relating to their credits, so appreciate there being some level of public reporting and transparency as it relates to that. So, absolutely going to be supporting this. Appreciate the reporting coming forward, and Administrator, you're confirming that the office does have the bandwidth and capacity to produce these data sets, which I think are very important for us as a body when we're making fiscal and policy decisions on how we can build up housing for our local residents. So, I will be supporting this. Curious if the introducers would be open to a friendly amendment around including reporting for 201H application filings. There was a resolution that I had put forth a couple of terms ago and bless the heart of your staff, they continue to provide us with that information, but I would love for that information to also be publicly available, if possible. We all receive it, but I think folks want to know what kind of 201H projects are being proposed. MS. KUNZ: Yes. So, if I may. In our conversation and coordination of drafting this, we wanted to make sure that the timing of the reporting on this item was going to coincide with the 201H reports that we do. So, they will merge. CHR KIERKIEWICZ: Perfect. But it's not explicitly stated here that they'd be publicly available, that information. MS. KUNZ: True. It's not in these revisions, but my intention was to be able to report on both at the same time. CHR KIERKIEWICZ: Okay. MS. KUNZ: So, I don't know if you feel like you need to add that language in. Actually, 201H is not a part of Chapter 11, so I don't know if it would be appropriate or not, but my intention would be to report both at the same time. Page 33 PCPLUD-1 January 5,2023 CHR KIERKIEWICZ: Okay, I guess we could just file a copy of that publicly as a communication so folks are aware of what's been filed with Office of Housing. I think it's just important for all of us to have the most accurate pulse on what is happening with affordable housing development, so that we can be equipped to make good decisions and see what kind of resources we might need to secure or partnerships we may need to be cultivating. MS. KUNZ: So,just for clarification, I'm thinking that I would submit two separate reports, but I would submit them at the same time. Because one is responding to a previous resolution, and then to create a report to respond to this one. So, two separate reports, but getting submitted at the same time. CHR KIERKIEWICZ: To the Council. MS. KUNZ: Yes. CHR KIERKIEWICZ: Yes, for the public record. MS. KUNZ: Yeah. CHR KIERKIEWICZ: Okay, thank you, Administrator. Any other questions or comments? CHR KIERKIEWICZ: Okay, there is a motion on the floor to forward Bill 9 to the Council with a favorable recommendation. All in favor please say "aye. Vote on Bill 9: The motion to recommend passage of Bill 9 on first (Approved) reading was carried by the following voice vote: Ayes: Committee Members Evans, Galimba, Inaba, Kagiwada, Kaneali`i-Kleinfelder, Kimball, Lee Loy, Villegas, and Chair Kierkiewicz—9. Noes: None. Absent: None. Excused: None. CHR KIERKIEWICZ: Bill 9 is forwarded to Council with a positive recommendation. That takes us to the end of our agenda. Thank you, Administrator Kunz and Auditor Benner for being here. We are at the end of our agenda, may I have a motion to adjourn? Page 34 PCPLUD-1 January 5,2023 ADJOURN- There being no further business, at 10:39 a.m., Ms. Lee Loy moved to MENT: adjourn the meeting. Seconded by Ms. Galimba and carried by the following voice vote: Ayes: Committee Members Evans, Galimba, Inaba, Kagiwada, Kaneali`i-Kleinfelder, Kimball, Lee Loy, Villegas, and Chair Kierkiewicz—9. Noes: None. Absent: None. Excused: None. CHR. KIERKIEWICZ: The Policy Committee on Planning, Land Use, and Development is adjourned at 10:39 a.m. Thank you. Approved: 10 Ms. shley L. Kierkiewicz, Chair (Date) Policy Committee on Planning, Land Use, and Development AK/dt Page 35