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HomeMy WebLinkAboutMIN PCPLUD 2024/02/07 (2022-2024)Policy Committee on Planning, Land Use, and Development 10t" Session Hawaii County Building 25 Aupuni Street Hilo, Hawaii February 7, 2024 CALL TO The regular meeting of the Policy Committee on Planning, Land Use, and ORDER: Development was called to order at 10:39 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. Jean Kagiwada, Member Mr. Matt Kaneali`i-Kleinfelder, Member (came in later) Ms. Heather L. Kimball, Member (came in later) Ms. Susan L. K. Lee Loy, Member Ms. Rebecca Villegas, Member (came in later) Absent & Excused: Ms. Michelle M. Galimba, 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 in support of Bill 125 (Comm. 679), and came forward when called by the Chair: Randy Golden. CHR. KIERKIEWICZ: Okay, seeing as there are no other testifiers, Mr. Clerk, if we could start at the top of the agenda, Bill 125. BILLS FOR The Chair directed the Committee to proceed to the next order of business, ORDINANCES: Bills for Ordinances. PCPLUD-10 February'7, 2024 Bill 125: AMENDS CHAPTER 6 OF THE HAWAI`I COUNTY CODE 1983 (2016 EDITION, AS AMENDED), BY ADDING A NEW ARTICLE RELATING TO COMMERCIAL BICYCLE TOURS Seeks to prohibit the operation of commercial bicycle tours on a portion of Kohala Mountain Road and a portion of the Akoni Pule Highway. Reference: Comm.679 Intr. by: Ms. Evans Postponed: January 23, 2024 (Note: There is a motion by Ms. Evans, seconded by Ms. Villegas, to recommend passage of Bill 125 on first reading.) CHR. KIERKIEWICZ: Thank you, Mr. Clerk. Council Member Evans, there's already a motion on the floor related to this bill and I also see that you have a communication for an amendment. Would you like to introduce that? Motion to Amend: Ms. Evans moved to amend Bill 125 with the contents of Comm. 679.39. Seconded by Ms. Lee Loy. CHR. KIERKIEWICZ: Council Member Evans. MS. EVANS: Thank you. Since the last time we spoke about this I had a conversation with our Police Chief and asked him if he had any thoughts on policemen being able to enforce this, and they felt the language was clear enough for enforcement. And so, we talked about it, and I came up with some amendments I feel that are for clarity. I also heard loud and clear people's concerns about not affecting bicyclists on the road, and what I'm offering a little bit more clarity on commercial bicycle tours and what that means. And I believe that the amendments hopefully will make it very clear when people read it, what the intent is. And so, the biggest change is the definition of commercial bicycle tour now means "a group of persons traveling on bicycles for the purposes of pleasure, adventure, or sightseeing rather than for competitive sport or commuting, and which is operated, conducted, organized, facilitated, furnished with bicycles, or otherwise provided for by a business either as a guided bicycle tour or an unguided bicycle tour." So, I think that tightens up the definition. The other thing is just for clarity, we just said the owner —the police chief said if we were to pull someone over, a commercial bicycle tour, who actually would get the violation, who would it be that we would basically write the violation to? And so, we changed it to read, "The owner or the agent of a commercial bicycle, tour that violates any provision of this article shall be subject to: (1) A fine of $500 for the first offense; and (2) A fine of not less than $1,000 per bicycle utilized in the Page 2 PCPLUD-10 February 7, 2024 commercial bicycle tour during any subsequent offense." So, that we felt, again, offered clarity, again, working with our police chief to get that clarity. So, those are the two changes, and I ask for your favorable support. Thank you. CHR. KIERKIEWICZ: Thank you, Council Member Evans. On the amendment, Council Member Kagiwada. MS. KAGIWADA: Thank you, Chair. On the amendment, what is an unguided bicycle tour? MS. EVANS: Okay. So, the definition is in the original bill. And basically, what happens with unguided bicycle tours is the tour operator will take them, let's say to a certain location and then they drop them off, give them the bicycles, and then they drive down to the end of where they're going to pick them up. And so, there actually isn't an employee or someone that is riding with them. So, that's unguided. And a guided would be where you'd have an employee, a staff person, actually riding with them as they're going down the road. MS. KAGIWADA: And how would it be different than a bike rental? MS. EVANS: It would not be a tour. It would not be a tour that I'm aware of. And that's a good question because you could go and rent a bicycle. I know they do that where I'm at, in Waikoloa. In Mauna Lani people can rent a bike and drive around the area. This is actually a business. It's like we're regulating a business, because our law is really clear that the way that the state legislature wrote the state statute is the counties have the right to regulate a commercial bicycle tour that's a business. And so, this is really focused on the business of the tour. MS. KAGIWADA: Okay. So, I mean, a bike rental place is also a business. I'll just point that out. So I guess my concern, and I brought this up last time, is there's no definition around numbers. So, like if one person gets dropped off somewhere and rides this lane by themselves, that's still illegal. And I have concerns about that. I mean, if the issue is around the safety and-1 don't really see the difference between that and, you know, a person riding a bike, who lives here for instance. So, that was the issue I brought up before, was the number in the group maybe needing to be defined. So, I'm not sure that I can support this amendment at this time. Thank you. CHR. KIERKIEWICZ: Thank you, Council Member Kagiwada. Council Member Lee Loy. MS. LEE LOY: Thank you, Chair. I'm actually in support of something to chew on. I think Cindy has identified another area where businesses are capitalizing on government assets, and it's part of their business model. And that, for me, is the Page 3 PCPLUD-10 February 7, 2024 intent that I'm trying to strike, right, because we have taxpayers who are paying for these assets, but along comes a business and then charges more money to utilize a government asset. And so, I'm actually in support of this amendment but what I'd lime to do, and I did share this with the author, is maybe create a Permitted Interaction Group (PIG) around this because if this could become a revenue stream for Hawaii County, I would really like to see us take a deep dive in exploring that revenue stream. In addition to, I did a little bit of research since our last hearing on this and there's really just a handful of commercial tour operators in this area, and maybe there's something where we could actually just meet with those businesses and come up with some type of agreement and understanding where we could actually legislate that helps both sides of the issue, right. The prevention of incidents, accidents on the road, for people unfamiliar with our roads, and then vice versa, enhances the asset that these businesses are using. So I'm willing to support this but as we get up to the main motion, I'm going to be requesting either another pause or another opportunity for the author to identify others to do a permitted interaction group where they can actually scope this out with everybody, not only the commercial tour operators but with Public Works (DPW), with State Department of Transportation, and even how we might dovetail this into more opportunities to address complete streets or providing for those bike lanes. So, in support of this, but at the main motion I'm going to be asking to kind of head into a different direction. I yield. CHR. KIERKIEWICZ: Thank you, Council Member Lee Loy. Anyone else on the amendment? Council Member Kimball. MS. KIMBALL: Yes. Just for the sake of addressing Council Member Kagiwada's question, Corporation Counsel Judge Strance, is there a common language understanding of the word "group" in law as it applies to the County Code? Is it inherently more than one? (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. I have not seen a legal definition of the word "group." Generally, under statutory construction, if there's not a statutory definition, you defer to plain language definition. So, you'd go to what's commonly understood to be a group or go to Webster's Dictionary or some other standard dictionary. MS. KIMBALL: Yeah. Thank you for that. And that was kind of my assumption. And for me, I personally understand group to be more than one, as kind of a standard. So, while I appreciate the concern, I think that just because it Page 4 PCPLUD-10 February 7, 2024 says group specifically and it specifically calls out tours, you know, either guided or unguided, I think the scope is narrow enough in terms of this definition that I'm comfortable with the amendment and then will support it going forward. So, thank you, CHR. K.IERKIEWICZ: Anyone else? Council Member Evans, did you have anything else that you wanted to add on the amendment? MS. EVANS: No. I always appreciate insight in other people looking at it. And I do think that —I think it's interesting that the legislature carved it out and basically said that the counties can regulate this, and I think it was probably really driven by what happened in Haleakala in bicycle tours coming down, and some dangerous roads there. And so, I'm grateful that we have the opportunity to visit this because I think when we have tourists that aren't familiar with our roads, maybe from other countries and sometimes we do have these really dangerous roads, and I believe I have dangerous roads. And I think for public safety reasons I really ask for people to please consider this and vote positively. Thank you. I yield. CHR. KIERKIEWICZ: Thank you. Council Member Inaba. MR. INABA: Thank you. I'm just reading the definition a little strange. It's saying commercial bicycle tour means "a group of persons traveling on bicycles for the purpose of pleasure, adventure, or sightseeing rather than for competitive sport or commuting, and which is operated, conducted, organized, facilitated, furnished with bicycles, or otherwise provided for by a business..." The group of persons, if I'm reading it correctly, I don't know if the term "operated" fits in with defining a group of persons, that the group of persons is operated by a business. I just —I support the clean-up but I'm not sure that it's reading exactly as it should. I think it could be simplified even more if the intention is that we know either bikes are provided by a business, or a business organized the group to ride together. I think those are maybe like the two things that are trying to be addressed here. But just with the wording of operated. I don't think a business operates a group of people. So, yeah, I just support the intention, but I think the language needs to be cleaned up further. Thank you. MS. EVANS: I'm definitely open to that. I think this language was taken originally looking at the Maui Code. But I understand your concern and we could simplify it. Yes. Thank you. CHR. KIERKIEWICZ: Okay. Council Member Evans, help me to understand this a little bit, okay. Because you've now inserted language about competitive sport or commuting and so like if you're a coach, right, you're being hired to train athletes, it's a group of people that are paying someone, right? In my mind, that's a commercial, like a business interaction. That would be okay to do? And how Page 5 PCPLUD-10 February 7, 2024 will the enforcement body, the police, be able to differentiate between the two? I'm thinking about the enforcement, right. MS. EVANS: Yup, yeah. That's an interesting question. I think there was concern like, you know, because we have Iron Man, and we have a lot of people that come here during, you know, to do some competitive sports and it may be that they get dropped up there. And I think there was concern that we would enter into that world of the competitive sports that happen on our island. And so, I threw that in there to try to make clarity that it's people that come here that are sightseeing, adventure, pleasure, and is like, "Isn't that a great tour? Let's go. It sounds wonderful." And they go on this commercial bicycle tour versus maybe a bicycle tour held by a commercial that's taking these sport people that come here and maybe they take them for a ride. And so, I was trying to be a little, not be so heavy-handed. But we could, depends on the body here, we could say nobody goes up, you know, nobody can go and I kind of carved that out. CHR. KIERKIEWICZ: Thank you. MS. EVANS: Yup. CHR. KIERKIEWICZ: I, again, appreciate the spirit and intent of the amendment. I think it needs a little bit of work. My suggestion is to withdraw. I cannot support it at this time. I just think, also, overall the bill needs a touch more refinement based on other comments that are being provided today. Final comments from Council Member Inaba. MR. INABA: Thank you, Chair. Just wanting to note if we can please specify, I think Council Member Lee Loy might've mentioned, but who the enforcement authority is? I believe it's the police. MS. EVANS: Yes. MR. INABA: But there's some questions, I think from DPW whether it would be them, and they don't want it. So, I think it would be a police matter since there's movement on the highway. Thank you. MS. EVANS: Yeah, I conferred with the police chief, and he gave me recommended language and felt this could be enforceable. CHR. KIERKIEWICZ: Okay, Council Member Evans, did you want to move forward with vote or — MS. EVANS: You know, I'm not in a hurry on this and I want to do it right. So, I'm more than willing to withdraw it and do a postponement and come back with further language. Page 6 PCPLUD-10 February 7, 2024 CHR. KIERKIEWICZ: Okay. Could you officially withdraw for me? Withdraw Motion Ms. Evans withdrew her motion to amend Bill 125 with to Amend: the contents of Comm. 679.39, CHR. KIERKIEWICZ: Note for the record that the amendment to Bill 125, via Communication 679.39, has been withdrawn. We are back to the main motion, which is Bill 125. Council Member Evans. MS. EVANS: Okay. Well, we're back to the main motion and I'm going to ask to postpone it, but before that I'd like to get a little further discussion if people have any comments, I'd like to hear them. Chair, is that okay? CHR. KIERKIEWICZ: I will allow it. MS. EVANS: Okay. CHR. KIERKIEWICZ: Yes. MS. EVANS: Thank you. MS. LEE LOY: Yeah. In support of the postponement. I think there are— CHR. KIERKIEWICZ: There's no motion to postpone. MS. LEE LOY: Oh, just the bill as a whole. Yeah. Looking to work on this a little bit more. I volunteer my colleague, Jenn Kagiwada, to perhaps sit on a Permitted Interaction Group. But I do think there's more tinkering to do with it. We've heard a lot of questions. I think we do have some things that we've already kind of flushed out as a group that could actually make its way into the bill. But I do think there's a few more heads that need to be put into this bill so that we can come up with something that really does address community concerns. And I'm just largely concerned because I see it happening at our beach parks, I see the tour companies off the cruise ships, they take them, it's a hundred dollars to get on a tour bus. They go to our beach parks, they go to Liliu`okalani, they flush our toilets, they climb all over our reefs, and then they head up to the volcano. And so, there's a business element in which these individuals are charging for it while bowing out some of our government assets, and I'm trying to find a nice landing for everybody. So, those are thoughts on Bill 125. I yield. CHR. KIERKIEWICZ: Thank you, Council Member Lee Loy. Council Member Kimball. Page 7 PCPLUD-10 February 7, 2024 MS. KIMBALL: Yeah. Thank you. If I may just make a couple of recommendations is to look at really simplifying and making the language of the definitions super concise, and then having more of the legislative piece in the Code part. I think sometimes our tendency, we try to legislate within the definitions, and it would probably be more appropriate to be clearer in the Code but keep the definitions really succinct. So, I think, like the commercial bicycle tour, you could really narrow down that definition and then get more into what you're actually trying to do within the Code part. And that would just be my recommendation for further amendments. MS. EVANS: Okay. MS. KIMBALL: Thanks. CHR. KIERKIEWICZ: Thank you. Council Member Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Thank you, Chair. I like the bill. I think you did good. Interesting that the state allowed this. I was wondering how —and it is state allowed, yeah? What I found in previous legislation to be helpful is actually under your prohibitions. My suggestion would be to —I understand that these are areas you do not want them to operate the tours but to get the bill to a place where it's enacted, hopefully, I mean that's your goal, right, but to remove those while we work on just the bill itself, and then when you want to come in with areas we're going to prohibit from, going there after the Code has been enacted because that we it just makes the public interaction piece a little bit easier because it's not implementing new Code and a prohibition at the same time. It's Code, and then what the plan is with the Code, which areas you want to do. So, they're separate pieces. And I found that to be helpful. So, I'm just throwing that out there for you. On the business end. If it's a business, they're paying taxes. So, you know, they're charging them a fee, but these are businesses we need to support small businesses that are already paying taxes, and lots of them. So, I would suggest just keeping that in mind as you proceed. And then I always find that these. things can be done without having this rig amoral of a group. Just have the conversation with community, bring people in who are interested, you know, make the bill, I support this bill the way that it is or with further amendments. But I like where it stands right now. MS. EVANS: Okay. Thank you. MR. KANEALI`I-KLEINFELDER: I yield. CHR. KIERKIEWICZ: Thank you. Council Member Kagiwada. Page 9 PCPLUD-10 February 7, 2024 MS. KAGIWADA: Thank you, Chair. Yeah. So, I get the intent. I'm just trying to, in my mind, figure out how, you know, just going after these few groups really does provide safety for the area. I mean, obviously, if we had all the money in the world, we'd fix our roads and we'd make it safe so that people could ride their bikes. That's really what we should do. But we don't have that ability, so I understand the intention that there are some roads that seem quite dangerous. I guess Pm just struggling with, I understand that we've got this state allowance, but if it's unsafe for bicycles, it's unsafe for bicycles. I mean, why is it safe for a group of five friends to go riding there but not safe for a bicycle tour of two people to go riding there. I guess I'm just trying to understand the safety issues and what we're trying to legislate for and how we're fixing it. Maybe this is just a step in the right direction, and we can't do everything. But that's just kind of — I'm having a hard time figuring out how this really addresses the issue on a bigger level, which is safety for those roads with bicycles. So, yeah, thank you for working on this and happy to think about it more. CHR. KIERKIEWICZ: Thank you, Council Member. Any further comments? — MS. EVANS: So, in preparation, may I, Chair? CHR. KIERKIEWICZ: I think before you make the decision on what you're going to do, you know, I want to kako`o what Council Member Lee Loy brought forward and, you know, it was something I suggested before in the earlier committee where, let's pump the brakes on this a little bit. It's not ready prime time. I think you're trying to solve the very like community specific issue that you are facing in your district. But I think the dialogue that we've had last committee and this committee, this is an issue that's being felt island wide but a little bit differently. And I don't know if this ordinance is the right fit in this moment and time. I've mentioned to you down in Poho`iki at Isaac Hale Beach Park, commercial bike operators are meeting in a public place to do their business operations. And we don't have anything in our Code to regulate that, right. So, I think that there are a lot of nuances with the issues we're facing related to commercial bike tours, and I would like for there to be a more expansive kind of conversation and an ordinance that encompasses solving the multitude of problems. And so, I would suggest some kind of permitted interaction working group so that you can get more voices to contribute to this body of work. Just a suggestion. Council Member Villegas or Kaneali`i-Kleinfelder, your light is on? Yes, it's back to you. Thank you. I would like for her to have the opportunity to figure out what we're going to do with the bill. MR, KANEALI`I-KLEINFELDER; Thank you. I'm thinking about your comment, Ms. Kagiwada. Just food for thought. When a group of people come Page 9 PCPLUD-10 February 7, 2024 here to participate in a tour; usually not from here, don't know our roads, and maybe not bikers. We don't know, but that would be my idea. Anybody serious is going to come with their own bike. You know, Iron Man, they don't come here and rent a bike and go fart around. They know what they're getting into. So, these tour groups, probably going to be along the lines of people competent, not competent, all different ages, kids, kupuna, just enjoying something to do during their stay. In that case, not aware of traffic, not aware of our roadways, don't know the area. I do see a public safety issue with that kind of a group, and I've seen it. You know, you see them on the road versus four or five people who bike all the time. On my road, Waena Road, there's guys who come up there all the time, they ride bike four or five in a line. I'm not too worried about them. But if I saw a group of people getting out of a van to go participate in a tour group all on that road, I would be worried because there's some tight `s' turns in there, I'd guarantee somebody would get banged. So, just food for thought. Thank you. CHR. KIERKIEWICZ: Thank you. Anyone else? Council Member Inaba. Overlooked you, sorry. MR. INABA: Yeah. Just going back to the definition, just an attempt here. Based on what I think the intention is I just think that it could be amended to say that commercial bicycle tour means a group of persons, which is organized by or provided bicycles by a business so it covers those two things, either a business group of people together and are taking them or a business gave people bikes, and then that definition would cover. And it could be broader, but I can write that over to you after. MS. EVANS: Okay. MR.INABA: Thanks. MS. EVANS: Thank you. CHR. KIERKIEWICZ: Thank you. Council Member Evans. MS. EVANS: I didn't say this before, but I wanted you to know I looked at cities, states, counties, across the United States (U. S.), and it's not uncommon for them to restrict these commercial bicycle tours especially in areas that are hilly, that are tourist destinations, and I think again it's a public safety. And so, I don't think I'm doing something that's not being considered in other places. Again where we have tourist attractions and people love to bicycle. I mean, it's all over the world. We can bicycle in most countries, all of us can go on bicycle tours. But clearly restricting areas is not uncommon. So, I take to heart what everybody said. Maybe we need to make it much more general as to what we're trying to Page 10 PCPLUD-to February 7, 2024 accomplish and come back and we'll have different places around the island that will specify, and there will be other roads that will be added to the list eventually. And how we get there, yeah, I'll have to figure that out and talk to, you know, our Corporation Counsel about it. But definitely, there should be some criteria where people could possibly say, this road may be one of those, you know, and eventually that list might grow a little bit. But like I said, I've seen it across the US in different areas. So, thank you, everybody, for their comments. And I would like to offer a motion to postpone it for one month to March. CHR. KIERKIEWICZ: So, what I'm hearing is the motion is to postpone Bill 125 to the March 51h Committee meetings? MS. EVANS: Yes. CHR. KIERKIEWICZ: Okay. Vote on Motion Ms. Evans moved to postpone Bill 125 to March 5, 2024. to Postpone: Seconded by Ms. Kimball and carried by the following (Approved) voice vote: Ayes: Committee Members Evans, Kagiwada, Kaneali`i-Kleinfelder, Kimball, Lee Loy, Villegas, and Chair Kierkiewicz — 7. Noes: None. Absent: Committee Members Galimba and Inaba -- 2. Excused: None. CHR. KIERKIEWICZ: Bill 125 is postponed to the March 5'h Committee meeting. Thank you. Change Order As directed by the Chair and with no objection from the Committee Members, the of Business: following item was taken out of order: Bill 128: AMENDS CHAPTER 11, ARTICLE 1, SECTION 11-15, OF THE HAWAPI COUNTY CODE 1983 (2016 EDITION, AS AMENDED), RELATING TO TRANSFER OF EXCESS AFFORDABLE HOUSING CREDITS Requires developers of affordable housing projects to obtain approval from the Housing Administrator prior to initiating the transfer of excess of affordable housing credits and that the Housing Administrator validate any such transfer upon its completion. Reference: Comm.695 Intr. by: Mr. Inaba and Ms. Kimball Page 11 PCPLUD-10 February 7, 2024 Motion to Approve: Mr. Inaba moved to recommend passage of Bill 128 on first reading. Seconded by Ms. Kimball. CHR. KIERKIEWICZ: Mr, Inaba, why don't you lead the discussion. MR. INABA: Sure. Thank you. After our last revision to this part of the Code, we did work with and have conversations with our County Auditor Tyler Benner, who's here today. And it's really to close up what seems to be a little loophole in the recordkeeping for OHCD (Office of Housing and Community Development). So, what this bill does is lay out the process for how a transfer of access credits would occur. So, if a developer was in possession of access credits, if they wanted to transfer those credits to another entity, they would first have to come to the Office of Housing and Community Development and obtain approval from the administrator. The administrator in that step would be required to verify that the credits are in fact legitimate credits against our County's records, and then if it is within the radius that would allow for it to be used by the other entity, the approval could be granted. After that, the developer could take care of the transfer and upon completion of the transfer, the Housing Administrator' would validate that the transfer occurred and update the Housing Office's records. So, it's a come in with the request, we'll verify that everything is good, and then after the transaction happens, there would be some type of certification provided for by OHCD that verifies that the transfer had occurred, and that the new entity is in possession of those credits. So, OHCD, Deputy (Sylvia) Wan, as well as the Administrator are at the Land Use Commission today. But I spoke to Administrator (Susan) Kunz yesterday and she is in support of the measure. We do have one amendment as well today. But I'll allow Council Member Kimball to chime in anything I might have missed. MS. KIMBALL: Thank you, Vice Chair Inaba. And so, it's pretty straightforward. Actually, we were pretty surprised when we were talking with OHCD about Chapter 11 and the audit, that the housing credits to learn that when credits are out there, people can transfer them amongst themselves without actually reporting anything to the County. And for me, this is just concerning because these credits, they have value. They're worth cash money, right, and in some cases quite a bit. And so, the way I look at it, the situation we have now is people are checking the book out at the library, passing it all around, and then coming back and asking for credit for having returned that book. What we're actually just asking for right now is people check it out, they check it back into the County, they check it out to somebody else, they check back into the County. And so, really what this is Page 12 PCPLUD-10 February 7, 2024 doing is creating a paper trail, creating records for the County for us to be able to audit the use of these credits, and their satisfaction on both sides of the equation. So, hopefully, this is pretty straightforward, and the body can support this language. As Council Member Inaba said, there is a minor amendment here to add. I don't know if you want to do it first? CHR. KIERKIEWICZ: Council Member Villegas, did you want to say anything about the bill that's being put forward? Okay, go ahead. MS. VILLEGAS; Yeah. I first off want to thank the makers of this. It seems serendipitous and kind of synchronistic that today at the Land Use Commission, there's a developer that's made claims about getting affordable housing credits from another affordable housing development and based on the current system, those kinds of claims, could just be happening because there is no system of accountability. So, I am in full support of this bill and the parameters it creates for accountability in a market that unfortunately has lost a lot of trust in our County. There has been some corruption, and embezzlement, and predation upon the lack of sophistication in some of our laws surrounding affordable housing credits. When housing presented to us a number of months ago, I think the number and the value of the current affordable housing credits in inventory, which took months to even track and create a spreadsheet that showed us what's out there. It can go up to like $90 million depending on the value per credit. That's a lot of affordable housing that would not be built if people are utilizing these credits and kind of tossing them around as little chits. And I think that this really elevates the integrity requirements that are related to affordable housing and our need for it makes this a priority. Yeah. So, thank you fox —I know you guys have been working on this and how to improve the —system, and I feel like it sends a strong message to anyone and everyone out there that may think that our County is not as savvy or sophisticated, or on to this scheme, for lack of better words. I understand the reason affordable housing credits were originally created. However, I think that unfortunately that's been manipulated and has transitioned into something that is not serving the communities it was intended to. So, I am grateful for this amendment or this piece of legislation, which further defines, elevates the integrity of the program, requires accountability, and provides mechanism for tracking. I yield. CHR. KIERKIEWICZ: Thank you. Council Member Inaba, with the amendment. MR. INABA: Alright, I'm going to take up the amendment before us so we can at least dispose of that. Page 13 PCPLUD-10 February 7, 2024 Motion to Amend: Mr. Inaba moved to amend Bill 128 with the contents of Comm. 695.1. Seconded by Ms. Villegas. CHR. KIERKIEWICZ: Council Member Inaba. MR, INABA: Yes. Thank you. Being that there hasn't been a formal process governing the transfer of access credits and the fact that this bill is putting it in now, we had a discussion with Corporation Counsel yesterday to add this provision contained in the amendment that says that access credits that are transferred in violation of the contents of Bill 128 are voidable at the discretion of the County. So, we would not have to accept them until we could have them verified. But it just provides that safeguard to ensure that people are following this new provision being added in Bill 128. So, I ask for your support on this one. Thank you. CHR. KIERKIEWICZ: Thank you. Council Member Evans, on the amendment. MS. EVANS: Yes. On the amendment. Corporation Counsel, I have a question at the discretion of the County. So, discretion, is it important to have any guidelines on what that means? You know, sometimes, you know, I've seen things, language, which is discretion based on certain standards or that won't be unreasonably applied, or you know, I've seen —because discretion is such a wide word. Any comments on that? (Note: At this time, Corporation Counsel Elizabeth Strance came forward to address the members of the Committee.) MS. STRANGE: Sure. Elizabeth Strance. Corporation Counsel. The language is an attempt to balance the fact that by law excess housing credits can be earned. But so, you don't want to just void a transfer for a credit that is earned. And so, this voidable piece puts the burden on the applicant and the receiver of the credits to make sure that the I's are dotted, and the T's are crossed. And if they weren't, then it comes back before the County, the County can set it aside or not depending upon whether or not the credits are earned. So, if the credits were actually earned and somebody came in late and had all their ducks in a row, they just didn't get everything filed with the County, the County's not going to set them aside because there's something that was earned and have value. It's just that if they didn't follow the procedure, they're not going to be recognized. And part of the validation check is also to make sure that the credits are earned. And so, there are certain documents where the developer anticipates earning a certain number of excess housing credits based upon the approved development plans. But those credits aren't earned until the excess affordable housing is actually built. And so, you know, there are some examples of transfers of housing Page 14 PCPLUD-10 February 7, 2024 credits without the construction of the excess housing and so there's these benefits that were circulating around without the affordable housing even being done. So, the purpose of the bill is to put in place a procedure that requires kind of that checking in and out, as Chair Kimball described, but also puts some teeth in it that if you don't follow that process, the transfer may not be recognized. And so, this isn't like an arbitrary use of authority, it's just that if it comes in and the department could verify that everything's in order, it can update its books. But if it cannot, then the transfer won't be granted. So, I don't see this as an issue of — the concern you're raising is, is there going to be basically an abusive discretion type of situation. But it's really, if the procedure was followed, then the developer wouldn't be in this situation that it is. If it wasn't followed, then the department will have some authority not to recognize them if they can't verify. So, I don't think that there's a need to put in language about abusive discretion and those sorts of things because it's so tightly tied to the procedure that is described in the proposed — MS. EVANS. I was just curious why it just doesn't say, excess credits that are transferred in violation are voidable period. When you threw in, "at the discretion," I don't know, because then what guides you in terms of determining that? MS. STRANCE: We wanted to make sure that it wasn't interpreted as being voidable at the discretion of anyone other than the County. So, this is a County process, County implemented. And so, we didn't want to set up a system that would allow some other party to come in and say, "Oh, I'm going to void these excess housing credits." This is a County process for and by the County. MS. EVANS: Okay. It's all about the word discretion how I see it. But you think it's clear what discretion means. Now that you've explained it, it makes sense. I just want to know for people that are going to read this. County employees— CHR. KIERKIEWICZ: Council Member Evans, could you speak into the mic? Sorry, I wanted to make sure you're — MS. EVANS: I was just thinking three, four, five years ago when it didn't say "at the discretion," does it create any ambiguity. That's all. I was concerned with the word. MS. STRANCE: I understand what you're saying. And there was some thought, "Well, should they be void and then regard people to start over." And that seemed a little draconian. And so, the voidable at the discretion of the County, give the County some leeway to work with parties if the process wasn't followed. Page 15 PCPLUD-10 February 7, 2024 MS. EVANS: Okay. Alright, thank you. Thank you, Chair. I yield. CHR. KIERKIEWICZ: Council Member Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Thank you. I like the conversation because the simplicity of by the director and your explanation really sums up why, how, and then by who. So, very simple. Simple, and then yes, every type of words being important, you know, as a good example. Thank you. MS. STRANCE: I suppose you could change the word "County" to the "Housing Administrator," if you wanted to align the language. I didn't think about that. MR. KANEALI`I-KLEINFELDER: Thank you, Betsy. I yield. CHR KIERKIEWICZ: Thank you. Anyone else? MR. INABA: Just ask that we leave it as "the County." We don't want to delegate all that authority to just one person. If Corporation Counsel determines that they should be voided, then they should be voided. Thank you. CHR. KIERKIEWICZ; Okay. I just want to make sure I got this. On the amendment. We now have an inventory of our housing credits; Developer A forgets to let the County know that they've transferred some to Developer B. Developer B comes in with a project and it's going through County review, and we notice, "Oh, you've got some credits. Where did you get that?" They will let us know they got it from Developer A, and then housing can go into its inventory list to verify that these are in fact real credits, right? MS. STRANGE; Correct. CHR. KIERKIEWICZ: Okay. So long as they satisfy the requirements that are laid out in this new section? MS. STRANGE: Yes. The intention is not to arbitrarily deny developers the opportunity to utilize their housing credits, it's to address an administrative problem of the department needing to be able to track where they are. CHR. KIERKIEWICZ: Okay. So, no one's being penalized. No one's losing credits. We're just verifying that it's a legitimate credit that they're able to offer to another developer. MS. STRANGE: Correct. Page 16 PCPLUD-10 February 7, 2024 CHR, KIERKIEWICZ: Okay. Thank you. Any other questions or comments on the amendment? Seeing none, there is a motion on the floor. All those in favor, please say "aye." Vote on Motion The motion to amend Bill 128 with the contents of to Amend: Comm, 695.1 was carried by the following voice vote: (Approved) Ayes; Committee Members Evans, Inaba, Kagiwada, Kaneali`i-Kleinfelder, Kimball, Lee Loy, Villegas, and Chair Kierkiewicz — 8. Noes: None. Absent: Committee Member Galimba — 1. Excused: None, CHR. KiERKIEWICZ: Back to the main motion, Bill 128, now amended. Council Member Inaba. MR. INABA: Thank you. I just wanted to invite our County Auditor Tyler Benner forward if he did have anything to add, being that this is something that came up after the audit was completed on the affordable housing credits. (Note: At this time, County Auditor Tyler Benner came forward to address the members of the Committee.) MR. BENNER: Good morning, Council. Good to be with you today. My name is Tyler Benner. I'm with the Office of the County Auditor. And I don't have a lot to add to this. It is straightforward as I see it. Our office did publish an audit of affordable housing credits about a year ago. And on Page 23 of that audit, you know, we mentioned Sections 11-5(a) (1:7), and the first bullet in that was replacing ineffective methods with straightforward options. There are some, in our population testing, when we did that audit and we were looking and reviewing those types of contracts and situations, we did come across, you know, examples of individuals who, as the judge mentioned, were trying to divest their interest in that without having delivered the product as well as unauthorized entities selling between recipients. I would just speak —Council Member, what you've just mentioned is, one thing about this proposal is that wouldn't require just a breakdown on the person who, we forgot to let the County, but would also require a breakdown on the receiver end of things. So, there is sort of a check and balance into the months that transaction between those two parties as well. So, that should be a strong outlier and not the norm. In addition to that, as we were conducting that audit, you know, we were speaking with the employees involved in that, they were eluding to the fact that they had to conduct significant backend investigations in hunting down where those credits Page 17 PCPLUD-10 February 7, 2024 had been turned over to and where they were sitting at any given time. And so, this language just turns that into a front and verification instead of a backend investigation. And finally, there's a question too, regarding (Section) 11-19, and the reporting to Council. You folks receive a quarterly report from the administrator. And, you know, there's a question if OHCD currently were to recognize a sale that took place in the past, do they have to report that in the current period. It didn't take place in the current period of reporting. But with the verification process becoming frontend, then they realize it and recognize it during the reporting period, so it increases the chance that somebody doesn't make a subjected determination and break the reconciliation there. So, all in all, again we think this is pretty straightforward. MR. INABA: Thank you, Auditor Benner. I don't have anything further to add but happy to take questions at this time. Thank you. CHR. KIERKIEWICZ: Thank you. Council Member Lee Loy. MS. LEE LOY: Thank you. Thanks, Mr. Benner, for being here. I actually remember the audit because there was a section within that audit as it related to the Department of Hawaiian Home Lands (DHHL) and their ability to transfer credits amongst their own parcels. And I just wanted to understand from an auditing perspective and then from a legal perspective, Judge Strance, you know, where is that intersection. Are we impacting the Department of Hawaiian Home Lands to carry out their duties as far as providing housing? There's a section within HRS (Hawai`i Revised Statutes) 46-15.1, which kind of governs some of that and I'm just trying to figure out how this impacts them or not. MR. BENNER: That's a pretty specific question that I'd want to probably put in some more research and wouldn't just want to answer off the cuff. I think with the DHHL credits, one of the big components there is the award calculation for the excess and density is different. I think it's awarded on like a one-on-one basis — MS. LEE LOY: One per one compared to others, which is half. MR. BENNER: Right. And as far as the restrictions, or rescales, or transfers; that's something I'd want to research before I give you an answer to. But just that if it is available to transfer, then that can really flood the market. I would say too, with some of the other islands, I believe that Maui has a "only allowable for workforce housing" and I believe that credits can only be used up to a percentage to satisfy those obligations. So if they're set for financial obligation, they can only use credits and I want to say it's somewhere between 30 or maybe 33 percent that they can use to satisfy those projects. Page 18 PCPLUD-10 February 7, 2024 MS. LEE LOY: Yeah. You know, to the authors, absolutely in support of. I just want to make sure that, you know, the department is charged with their own mission, right. And personally, a lot of the AMI (Area Median Income) that they're building for falls within the one for one credit rather than on the higher end at the, you know, half a credit. And I understand very clearly there's provisions within their state statutes, and it's actually odd because for DHHL on certain islands, it's one way but Hawaii County is a little different. And so, I'm in support of this here at Committee but, Auditor, if you could provide a little bit of a white sheet around what that impacts, if this does impact it. I just want to continue to make sure that the department has the sovereignty that it needs when it comes to addressing that waitlist and how, you know, development for them on their lands, here in East Hawaii, you know, could be utilized for development of their lands in West Hawaii. MR. BENNER: I could do that. MS. LEE LOY: Great. Judge Strance, same question. I just don't want to create more barriers for the department, but if you could work in tandem with the Auditor. Really my question really does hover around and it was covered in your report, the audit report, under Section 46-15-lb. Great. MS. STRANCE: Will do. MS. LEE LOY: Thank you. Thank you. I yield. CHR. KIERKIEWICZ: Thank you, Council Member. Council Member Kimball. MS. KEV BALL; Yeah. Just appreciate Council Member Lee Loy's questions. I think that, just like the library example, the library doesn't really care who checks out the book as long as the records are captain. And so, I think that the legislation is fairly agnostic as to who's offering the credits and who is receiving the credits. And I'd say that probably the department is better able, let's hope, since they're a state entity that they've actually tracked their credits, and this should be fairly simple for them to just make these recordings with the County. But, yup, appreciate the question and hope that we have the answer on this. But my first feeling is that there's really not anything that would be singularly difficult for the department on this. It's just paperwork. CHR KIERKIEWICZ: Council Member Lee Loy. MS. LEE LOY: Yeah. Just as a follow up. There was a lot of nuances with that particular finding in the audit because it's been said right here, those affordable housing credits is a hot commodity. And when an agency like DHHL can develop one for one and be able to transfer to another one, who is only developing Page 19 PCPLUD-10 February 7, 2024 at half, right, it becomes very lucrative. And so, again, just wanting to explore that and make sure that we're not getting in the way of each other. I yield. CHR. KIERKIEWICZ: Thank you, Council Member. Anyone else on the amended version of this bill? Okay. Thank you, Council Members Inaba and Kimball, for putting this forward. You know, it's really unfortunate that our County had that scandal with the housing credits and that really unfortunate abuse of resources and exploitation that, again, put another bad mark on like developers. But I think with the audit and all the work to kind of strengthen the Code around this area and this new added language, it just adds that additional layer of transparency and accountability that we want so that going forward there's proper utilization of these resources and we can be realizing the housing that we so desperately need for our island. So, I do support this going forward. Thank you all for your hard work, and we look forward to both of your responses, Judge Strance, Auditor Benner, related to the DHHL question at first reading in a couple of weeks. Thank you. Okay, there's a motion on the floor to send Bill 128 to the Council with a favorable recommendation. All those in favor, please say "aye." Any opposed? Vote on Bill 128: The motion to recommend passage of Bill 128, as amended Draft 2 to Draft 2, on first reading was carried by the following LApp•oyed) voice vote: Ayes: Committee Members Evans, Inaba, Kagiwada, Kaneali`i-Kleinfelder, Kimball, Lee Loy, Villegas, and Chair Kierkiewicz — 8. Noes: None. Absent: Committee Member Galimba — 1. Excused: None. Return to Order The Chair directed the Committee to return to the order of business. of Business: Bill 127: AMENDS CHAPTER 25, ARTICLE 2, DIVISION 4, SECTION 25-2-44, OF THE HAWAI`I COUNTY CODE 1983 (2016 EDITION, AS AMENDED), RELATING TO CONDITIONS ON CHANGE OF ZONE Requires the Planning Director to include time constraints for the completion or satisfaction of conditions imposed in change of zoning district ordinances. Reference: Comm.694 Intr. by: Mr. Inaba Page 20 PCPLUD-10 February 7, 2024 Motion to Approve; Mr. Inaba moved to refer Bill 127 to the Planning Director and Planning Commissions. Seconded by Ms. Kagiwada. CHR. KIERKIEWICZ: I just want to note that we have our Planning Director here in Hilo Chambers available to answer any questions by this body. But want to turn it over to Council Member Inaba to provide some context and background for this bill. MR. INABA: Sure. Thank you, Chair Kierkiewicz. In our previous term, the Council, I believe it was in the previous term, passed Bill 194, which changed what was a longstanding process where the Planning Director could grant administrative extensions to change of zone ordinances. That practice lived in individual ordinances when approved by the Council. Bill 194 changed that to allow for initial time extensions, but that request would come to the Council in the form of a resolution and would be decided by the Council. Since the passing of Bill 194, we've had some change of zone ordinances come before this body where timeframes in which the conditions of approval need to be completed were not included. So, there was no set day, whether it be five years or ten years. And I think most of you recall me adding in certain dates to these ordinances. So, what this bill does is it requires that any change of zone ordinance that comes from the Planning Director include a timeframe in which all the conditions need to be approved. And I know there are members of this Council who believe in, you know, if it's good today, it should be good in perpetuity. We're seeing, however, certain projects like the one before the Land Use Commission today where if the approvals are granted with no timeframe in which conditions need to be completed, 30 years later a community can be heavily developed around a parcel. There can be traffic impact issues, safety issues, and what this bill does is make sure that we have a timeframe and a good understanding of when things need to be completed. And again, even if it's granting double the time that we've traditionally been granting, it gives the County an opportunity and the community an opportunity to review a project who didn't complete the conditions in time, and make sure that those conditions are up to date at the time the window of completion has expired. So, this will be going to the Planning Commissions with your favorable vote. And I'll be going to the Planning Commissions to explain it as well. But really, it's to ensure that we are getting those timeframes in the ordinances rather than the Council having to include them every time a change of zone ordinance comes before us. And I do want to invite Director Kern to come forward to share any thoughts that he has as well. Page 21 PCPLUD-10 February 7, 2024 (Note: At this time, Planning Director Zendo Keen came forward to address the members of the Committee.) MR. KERN: Good morning. Zendo Kern. Planning Director. My thoughts. We're going to have a lot of robust discussion over the next few months, I'm sure. You know, I think the change that occurred, I can see how there's a correlation from the timing conditions based on, I believe Bill 194, I wasn't sure if it was the previous admin or not. But there's actually not a lot of correlation to that in the direction we've been moving. Most other places that development actually works, they don't do timing conditions on the ordinance. They do performance conditions on mitigation. And the big issues that we generally have are mitigation; traffic, parks, road, et cetera. And so, when you have conditions that are required to mitigate, that's the most important thing. What I feel is trying to occur in general, not with anybody, is that it would like to put development in a very confined box. It should take five years; it's going to take five years. It should take ten years; it's going to take ten years. It doesn't work that way. Development just doesn't work that way. You can have the best plan you could have; you're going to move forward with it the best of intentions, and things change. Look at many, many, projects that we've seen. Look at Wailani up above Farmer's University Terrace, above Komohana. It's a large project. Lots of potential housing, lots of commercial. That came in twice already for a rezone ordinance time extension. You would think, "Hey, within 15 years that project should be no problem to build." They're going to be coming up on a time condition, constraint soon enough and have to go back through the gauntlet of the Department, of the Commissions, and to the Council. And sadly, what we see often, is the timing of when the project's actually coming together with funding and a developer that wants to do it, somehow, it's usually close to the end of the timing of the zoning ordinance, and then the bank won't fund it and then the project is stuck, and then it has to go hack through the process. So, I believe that we all have a very similar intent of having good projects for our community that actually support our community, support the needs of our community, and then mitigate the negative impacts of the development within our community. I don't necessarily think the timing element does that. I think performance conditions around those elements of mitigation do that. And so, I'm open to discussion around that to find out how do we get to a way that can work for everybody, that we have good, smart growth developments within our community that makes sense. And so, previously what we've seen is in areas that have come in that are consistent with the General Plan and consistent with the CDP (Community Development Plan), I have not put in a timing condition on those. Areas that Page 22 PCPLUD-10 February 7,2024 were on the fringe that maybe were in transition, we have put a timing condition on those because those, hey, if you're going to do it, do it within the next five years or do it within the next ten years. Other areas, we haven't done that. So, I think this is a really big discussion. I think we all are shooting for something similar with just different ways to do it. I have been boots on the ground. I have done it and I know how imperfect the process is. And then I watch this, and I see how imperfect the process is. We saw Palamanui, right. They put a lot of money into the university. They had to come back through for the rezoning ordinance again. It's still not done, it's still not moving. So, most likely, at some point, they'll probably have to come back in again. So, my feeling is that the timing conditions don't solve for what we need. The timing condition doesn't solve for Dousing. Performance conditions solve for mitigation and actually create a level of certainty for developers and landowners to go off of, and the financing that goes along with that. MR. INABA: Thank you, Director. Yes. And totally in agreement regarding performance conditions, and that's something that I'm hoping the department can be more active in providing our Planning Commissions with so that they're embedding within our change of zone ordinances. Regardless though, I still believe that the timing element is imperative. If not, we'll see longstanding transfer of property and forty -year -old projects that are before three different commissions, one at the State and two at the County, within this last year and it's just a mess. So, if we do have the timeframe and we are able to keep better record of where projects are through those performance conditions, and an overall timeframe in which they would have to come back through the whole process anything, I think, that would to the benefit of land use and planning for our County moving forward. I'm happy to hear from my colleagues before we take the vote on referral to the Commissions. Thank you. CHR. KIERKIEWICZ: Thank you, Any comments on the measure? Council Member Villegas. MS. VILLEGAS: Yeah. Thank you once again, Council Member Inaba, for the bold and courageous step to navigate in proving the current processes and remove some of the loopholes that unfortunately have been predated upon by developers. And while I can appreciate what it seems is your intention of pointing out another way to hack these things. I don't agree that removing the timelines benefits our community or holds developers accountable. You are currently the Planning Director but there will be a time that you will not be the Planning Director and it behooves our community and the long-term future and security of these processes for timing to continue to be incorporated in this. And removing it, I believe, makes us even more vulnerable. Page 23 PCPLUD-10 February 7, 2024 At the Land Use Commission right now is the case related to the Vistas and they're asking for another time extension. It's not our responsibility as a County or a body to compensate for developers and the challenges related to timing and the different variables that exist in the market. And we've suffered. We've suffered, and things have happened, and we're vulnerable to things continuing to happen. And I believe that this is a small step in the right direction to requiring more accountability and sending a message that our County is sophisticated, we do have timelines, we do have standards, and we do have expectations in order to be communicated with and abided by. And if they need to come back, then so be it, come back, and those conversations can be had. But I'll be supporting this bill. I see the vulnerability, specifically in my district, and will be supporting the means in order to close these loopholes today. So, I ask for my colleague's support in this. I don't think it's any coincidence that there are so many issues currently before so many different commissions this week that relate to decisions made in the past and the different players. And I want to ensure that we are as prepared and sophisticated as we need to be. With that, I yield. CHR. KIERKIEWICZ: Thank you. Council Member Kagiwada. MS. KAGIWADA: Thank you, Chair. Thank you, Director, for being here. Sb, can you just tell me a little bit more about these performance measures, is this something that the department could initiate or should initiate? Is it something that needs to be legislated in Code? MR. KERN: So, generally speaking, we have Code requirements that are consistent regardless of the change of zone of the zoning ordinance like, you know, Chapter 27 on erosion and flooding. There are certain conditions that would be embedded within a zoning ordinance that, you know, get put in there such as having an updated Traffic Impact Analysis Report (TIAR) prior to. There're two areas that you really hit. It's a subdivision or a plan approval. So, the rezoning ordinance gets approved and then it's usually for, if it's commercial or multi -family, a plan approval is their next step. If it's a subdivision, then it's a subdivision application. So, that's when the department sees it from a ministerial side of it and says, "Okay let's look at the ordinance, let's look at all the conditions, and did you comply with all those conditions?" If you haven't, you gotta do it, pay your fair share, do your TIAR, do your traffic mitigation. And so, often times we're fiontloading those conditions right now. Like let's just say we have a change of zone ordinance, the typical, in the past, and I will say that the projects that we're seeing issues with all have time conditions on them from the past. So their consistency has been put a time condition in there, and then add the normal has been five years with an administrative five-year time extension. So, kind of a max of ten. And upfront they frontload the traffic impact Page 24 PCPLUD-10 February 7, 2024 analysis report and we do it today. We say, "In so many years you've got to do this intersection improvement, do that intersection improvement." Okay. So, that traffic impact analysis report and that traffic mitigation should occur no matter what at whatever time it is. And that mitigation would adjust based on the timeframe that would happen. Traffic next year might be a little bit different than traffic in ten years. So, performance condition would say, you have to mitigate for traffic before you actually build your project. If that's five years, ten years, fifteen years, you have to do it. If there's a park requirement. You have to do that park requirement prior to having a certificate of occupancy or prior to having a final subdivision approval. And so, all those mitigated factors can be embedded by specific conditions within the rezoning ordinance. And then other ones will have to be complied with anyway because they are County Code. Just because it's not in the rezoning ordinance doesn't mean you get out of other County Code. There're just specific conditions that go in there. And so, in other conversations that I've had over the last, you know, couple years, that's kind of the area that we see other jurisdictions doing that, where it's not do the project in ten years, it's the rezoning makes sense today, it's going to make sense in 15 or 20 years, depending on the area that it's going to be, and prior to you actually developing it, you have to hit these performance conditions: traffic, parks, water, wastewater, all of those things. That's the concept. MS. KAGIWADA: So, you're saying other jurisdictions are doing this. You are not doing this. We are not doing this now? MR. KERN; We have both. So, we have a performance condition that you have to have the mitigation. But we also have a timing condition that goes in there and that timing condition is usually the area that we see the biggest issue with. The performance conditions, people have challenges with when it comes to something penciling, you know, inflation in cost. But often times we'll see somebody get the funding for a project. I got the funding, but the rezoning ordinance is going to go stale in a year, and they pull the funding. MS. KAGIWADA: Understood. I guess what I'm trying to get at is, are we adequately doing what you say we should be doing with the performance conditions at this time? MR. KERN: Yeah. Nobody's getting a free lunch. The only time we're seeing somebody getting some relief is when it comes to say, a 201H application and there's a specific request for, you know, not having to pay building code. So, yes, all of that we look at. That's why when we get a rezoning application, we send it out to all the agencies, Department of Environmental Management, Department of Public Works, they give us the requirements that they have, we put that in those conditions, and those mitigation factors are current and relevant to today. Page 25 PCPLUD-10 February 7, 2024 MS. KAGIWADA: So, when we get somebody coming back to us for a time extension, they should have already met all those performance conditions? MR. KERN: Ideally, they would have and if they had met all of those conditions within the timefiame of the ordinance, they wouldn't be coming back. But there's usually not so much timeframe on the —sometimes there's timeframe on the conditions, sometimes there's timeframe on the overall ordinance, and that's what we're seeing the issue with, is the actual timeframe, not you have to do it. MS. KAGIWADA: Okay. But it's sounding to me like they are not necessarily getting all those performance conditions done before they come back to ask for a time extension. MR. KERN: Generally, not when they're having to come back in because usually those conditions require massive capital expenditure, and most people are not going to have or be able to get the funding or spend that capital expenditure with uncertainty of a rezoning ordinance. MS. KAGIWADA: Okay. So, you're saying, when putting performance conditions on developers, you also do not want to put timeframes on those performance conditions? MR. KERN: The timeframe should be prior to the action, in my view. The timeframe should be prior to a subdivision approval, prior to a plan approval. So, you know what you've got to mitigate, and prior to actually moving forward with the ministerial type permit, which would be plan approval or subdivision approval, you mitigate those conditions or have in process to mitigate those conditions. MS. KAGIWADA: Okay. I mean it just, to me, sounds like our current process is not working completely well. So, that's why I think Council Member put this forward, is because it doesn't seem like we're —somewhere it's not working well. MR. KERN: Okay. So, for at least the last twenty years if not thirty years, I think the project that's at the LUC (Land Use Commission) was back in the 1983, that had a time condition on it so at least the last thirty years, there have been time conditions on just about every single ordinance that's come through. And the standard was, you've got five years with a five-year administrative time condition. Certain ones that were really large, they might've put a longer time condition in there. So, we've had the time conditions in there all of this time. MS. KAGIWADA: So, this doesn't really change the practice that's been in place. Page 26 PCPLUD-10 February 7, 2024 MR. KERN: It changes the practice that I've been doing the last twelve months where I have been not putting in a time condition in there and saying let's have the performance conditions, you've got to mitigate or it's taken out the time condition, if it's consistent with the General Plan (GP), if it's consistent with the CDP. And so, that's the practice that I've had, and then it's come forward in the Council, often times has decided to put a time condition back into it, which is fine. It's the Council's choice on it. This would basically say, every rezoning ordinance has to have a time condition in there. But I go back and say, that's what we've been doing for the last 30 years. MS. KAGIWADA: And has it worked? MR. KERN: Has it worked? I'm going to say no, it hasn't. MS. KAGIWADA: Okay. Okay. Thank you for all that. That explanation is helpful. Thanks. Thank you, Chair. CHR. KIERKIEWICZ: Thank you. Council Member Kimball. MS. KIMBALL: Yeah. Thank you. Happy to forward this today to the Commissions just to get their expertise and feedback on this. But I am one of your colleagues that believes when we make a rezoning decision, this should make sense in perpetuity, and we should be very cautious in that regard with rezoning ordinances. That said, you know, there are often circumstances that we are not aware of at a given time. What I would like to see, ultimately, is something much more nuanced, which I think speaks to what the director was just saying which is, as we look at any given project, we understand sequentially what needs to happen. You can't subdivide until you put the water in. You can't start building units on it until you've got the road in, and you've got an access. You can't do this —like I can see that we want to really nail down the sequence. You can't sell a single lot until this happens. I think that it's also possible for some of those, based on what they are, very specific, you know, "You need to put the water in by three years from now." And this maybe not the best example but I can see scenarios where we would also want to put a time condition on any given performance measure based on other things that are going on, could be funding, could be water availability, whatever. I would want to see, when this bill comes back to us, some sort of clear conditioning and the potential for some flexibility for scenarios that might actually be an exception where a time condition might not make sense. And in that case, perhaps, some boilerplate language that would go in as a substitute. And I'm thinking, okay, it doesn't happen often but, you know, in my district we've had a lot of conversations about areas that are zoned currently industrial, they're former sugar plantation areas. There's an interest in reverting those back Page 27 PCPLUD-10 February 7, 2024 to open or downzoning. You know, if we reverted to an open space, open zoning, would there be a need for a time condition? No. So, you know, I'm really interested to hear what the Planning Commissions have to say but I think that there's a lot of nuances that could be incorporated in it that would make it —to solve the problem which you're trying to solve, which I think is a problem we need to solve, which is promises unkept and clear understanding from our side about what's going to happen when. I think we have an opportunity here to really improve that process. I don't think this bill right now does that in and of itself. But I think there's a nugget here that we can explore and expand upon. Thank you, Chair. I yield. CHR. KIERKIEWICZ: Thank you. Council Member Villegas. MS. VILLEGAS: Yeah. I guess case and point. I'm a little concerned or perhaps confused because the statement you made about timing requirements having been the case for the last 35 years, and they haven't worked. I would beg to differ that the reason they haven't worked is because the bodies that they've come back to have just always given them more time extensions. We have had a history of leniency for time extensions, which has become a belief system within developers. They don't even remember when their time extensions, in my experience sitting here. We've had people come, their time extensions expired years prior, and they don't even bother coming back to meet with us until they have another plan or protocol. And whether or not it's to ensure that they keep the entitlements with the property and the zoning because then they want to sell it. So, I wouldn't say that the issue has been that the time requirements haven't worked, it's been holding people accountable to those time requirements. What Chair Kimball just said, people not keeping promises, it's kind of intuitive to me to then say, "Okay, well then you don't have to make a promise." No. It's we need to be more accountable and hold developers more accountable. Whether or not they can do it, there are changes, things happen, the market changes, financing changes, any of those things, it needs to be an authentic requirement that they be held accountable to come back within the five year, whatever the terms are for that timing, that they actually respect our County enough and come back before that expires to navigate how to move forward instead of just operating under assumptions that we're in such dire need of their development, that we're going to make any and all concessions in order to prolong the potential of it coming to fruition. So, I think it's kind of intuitive, some of the psychology that's just been presented here. And so, I'm personally trying to clarify that by saying, removing requirements does not get us closer to where we need to be. Standing beside and behind those requirements and having a great expectation of accountability to those who are getting the opportunity to participate in the economy and the Page 28 PCPLUD-10 February 7, 2024 community and develop on our precious island is where the change and the improvement needs to take place. MR. KERN: May I ask a clarifying question on that? CHR. KIERKIEWICZ: Go ahead, Director, MR. KERN: Thank you. So, is it that you want the project done in a certain period of time or is it that we need to make sure that there's proper mitigation and that the promises of, we're going to do the intersection improvements, we're going to do our affordable housing, we'll do our park dedication, we'll connect to sewer; that those are being met? MS. VILLEGAS: All of them need to be met. It's not a "Do this then you don't have to do that." It's all of them. But my concern right now, in my top of mind, is the meeting that's happening at the Land Use Commission right now, which is a development that I know you're very, very familiar with that we're 40 years out, and they're corning back for another time extension on a project that is not compatible with our community. We are over capacity in that region. It is not in alignment, and while some might say it's in alignment, to just give somebody the "yes" because —and we haven't approved the new General Plan yet. So, you know, operating on things being in alignment with something that has not been passed by this body yet, I don't think is fair to our community. And so, I want it all. I want all the requirements met because I don't want my grandson to have to live in a place that continues to be managed the way that it's been managed for decades where development happens on the back and at the cost of our kama`aina people and our maka`ainana people and development continues to happen for the benefit for external gain and for those who do not live here and are not authentically committed to participating in our community; and instead it's prospecting, it's making money, and it's moving on. And that's what my constituents in my community are asking for. Therefore, that's why I sit here and will demand that level of excellence and accountability from the policies that I get to participate in passing from this dais. CHR. KLERKIEWICZ: Any other questions or comments? Council Member Kaneati `i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Thank you. Mr. Kern, I mean Section A, pretty clear. And I liked your statement because it helps provide background on what we're discussing today. I like the bill. So, I'm trying to balance it through. I guess my first question for you would be, if this did pass, given some of the amendments and changes that have happened in the last couple of years, and with everything that we know, you know, what happens when they come to the end of Page 29 PCPLUD-10 February 7, 2024 the time, are they stuck, game over? Because we've had discussions about takings and different things. So, what happens? MR. KERN: So, what we're dealing with now is the same thing that happens when the time runs out on whether it's the condition or the overall ordinance, the ordinance goes stale. So, the classic example is, it was Ag-1 to RS-10; so Agricultural One Zoning to Residential 10 Zoning in your urban area, let's say. And at which point and time the time condition is not met, the ordinance is stale. So, it's technically still rezoned RS, residential, but you can't come in and do anything with it. If you come to the department saying, "I want to subdivide or I want to build a residential home." We'll say, "We're sorry. You can't do that; your rezoning ordinance is stale. You're going to have to go through the process of getting it current, which is going to require you to go through the entire application process and send it through our department, send it to the Commissions, and back to Council to have the County Council approve it." That's usually an eight -to -twelve-month process plus the necessary studies that would go along with that. So, they really can't use it for the original zoning, and they can't use it for what it was rezoned to. It's stale, it's stuck, it's in limbo. In certain cases, we've seen the applicant come back and request the Planning Director initiated rezoning reversion back to its original. We just dealt with that with those large parcels down in South Kona and a couple other smaller mom and pop shops. So, what we do is we create a situation where you really can't do anything on the land, you're stuck. And no matter what, you've got to go back through the entire process even if you want to get it back to its original zoning. Does that make sense? MR. KANEALI`I-KLEINFELDER: That does make sense. So, Planning Department sets the time condition or Council, right? MR. KERN: Ultimately, the Council sets the time condition. MR. KANEALI`I-KLEINFELDER: In the ordinance? MR. KERN: Yeah. We propose it. And so, in the past, the Planning Department, we propose our conditions, they go through the Planning Commission, and the past practice was kind of a five and five or a little bit longer, and then the Council makes the final decision on those. MR. KANEALI`I-KLEINFELDER: Okay. So, Planning Director —okay Planning Department, set a time that we think is applicable to the project, the rezone. The Council then approves the ordinance, the ordinance moves on. Whoever the person who owns the project has an "x" amount of time to fulfill. Project not fulfilled in this case, I'm going in the "doesn't get fulfilled," not met, goes stale. That's the actual terminology for it? Page 30 PCPLUD-10 February 7, 2024 MR. KERN: The term we use, yeah. MR. KANEALI`I-KLEINFELDER: Okay. What would be the — MR. KERN: It's called stale, it's in limbo. MR. KANEALI`I-KLEINFELDER: It's in limbo. Okay. So, stale limbo, okay. It goes back to the drawing board, basically, if they want to proceed with the project? MR. KERN: If they want to proceed, it goes back through the process. MR. KANEALI`I-KLEINFELDER: So, back to the Planning Department, back to the Planning Commission, back to the Council. MR. KERN: And if they want to take it back to what it was originally rezoned from, same process. MR. KANEALI`I-KLEINFELDER: Okay. And then I'm thinking about Council Member Kimball's kind of comment, which is I'd like to see it go to the Planning Commission for comment but I'm also liking the more nuanced approach to understanding and setting a time so we're not, you know, fifty years out on a project, Because that makes sense. But do you guys have like set perimeters that guide your time extensions? And I completely understand what you're saying because coming from where I came from, not exactly the same, but same idea, project management. You have a project you want to do, you put in your application with HELCO (Hawai`i Electric Light Company). That's step one. It could take two, three months sometimes. Then you're to step two; okay, we've got approval, we're going to go to the County now. That can take forever. With the EPIC (Electronic Processing and Information Center) system, implementation of new process, shoot, you're six months out. Your four -to -six-month job completion is now nine months just to get your permit back. Then you run into issues with supply availability, whatever it might be. You're stuck. You're at a year. Your customer's pissed off, projects not done, you passed a year, they lost their tax credit ability. So, I understand what you're saying about timeline. So, how do you folks put that together on your end? MR. KERN: Typically, we ask the applicant what timeframe you think you're going to be able to get it in. They're usually pretty optimistic and, you know, will get it done within five years. And then, okay, we'll do a five-year administrative time extension on that. And it's kind of trying to get the best indication from the applicant on what they're going to do, and then we try to put it through our filter of is this actually achievable or not. And so, typically, say ten years might do it. But even within that timeframe, it's still not necessarily working. And so, that's the challenge. It's like we've seen it over and over again and we've seen very Page 31 PCPLUD-10 February 7, 2024 few that really work when it hits those timeframes and we've seen many that don't. And I think part of the intention, kind of similar to the previous conversation that was happening with the 201H, "Hey, can you do it in five years? We want to get it done, we want to see the housing get done, let's put a time condition on it, let's make it happen." Right. That's the intention. Let's go. And even with that push, that leverage, I still don't see it necessarily working very often. So, how do we find that balance so we can have an actual project that makes sense, that's properly mitigated for our community and actually serves our community. There's no exact science on it but creating a level of certainty for folks is very helpful; certainty on both sides of it. Certainty that the landowner, developer, knows they can progress with the project and get funding and spend a lot of money on the soft costs, the studies, et cetera. But also, importantly, there's that certainty from our community that the projects are going to be properly mitigated, that it's going to be done as it was represented. The traffic is going to be taken care of. The parks are going to be taken care of. The wastewater's taken care of. For me, it's about creating certainty on both sides so you can actually have an actual effective project that if it was voted on, it should be good. But then at sometimes it might be the nuance, it nught be on the fringe, it might be a little bit different. And then I'd say, we would look at that from Planning Department standpoint and say, "This one, you know, let's really put a short timeframe on it." If they can do it right now, great. Let's make some unique novel maybe conditions on it. So, I think that there's no one size fits all but I'm seeing the issue over and over. MR. KANEALI`I-KLEINFELDER: Okay. And then, we're strictly talking about the ordinance itself for the rezone? MR. KERN: Correct. MR. KANEALI`I-KLEINFELDER: So, this isn't about them building a project because this is the zoning itself? MR. KERN: You're referring to going vertical on it, like actually building? MR. KANEALI`I-KLEINFELDER: Yes. MR. KERN: I can be. Sometimes the condition is substantial completion by ten years. Sometimes the condition is, you know, final subdivision approval within five years, which would be more of the horizontal buildout. Sometimes it could be certificate of occupancy within five years, which would be a vertical build for like multifamily or a commercial space. So, it's tied to various different factors. Page 32 PCPLUD-10 February 7, 2024 MR. KANEALI`I-KLEINFELDER: All set within the ordinance itself? MR. KERN: All set within the ordinance. MR. KANEALI`I-KLEINFELDER: So, very complex, yeah? MR. KERN: And then we have other codes that you have to follow no matter what. You know what I mean, like our drainage. Doesn't matter whether it's baked in the ordinance or not, you've got to follow that. It's State law, it's County law, you still have to follow it even if it's not specified within the ordinance. But the ordinance gives those specificities of those conditions that need to be met prior to something that we'll look at, like plan approval or subdivision approval. And I also think it articulates to the community what those are, so they have a level of understanding because not everybody gets the depths of it like we do in the department and are in the Code all the time. So, you need to traffic, you need to have wastewater, you have to have water. And I think it's important to have those spelled out in the ordinance because then the community can see it and say, "They are mitigating for those issues." MR. KANEALI`I KLEINFELDER: Okay. The last question. Do you see a middle ground between the Council kind of looking for setting a time and you understanding development process and what the projects are trying to do and balance the timeframes you're coming to us with the, this estimated time looks good. It's an estimate, so best guess. You know, we think they should be done it ten years, that makes sense for the area for this project in particular. And also, the Council trying to set some clear guidelines as far as where we want to see a project get done so the community's not taken aback twenty years down the line or ten years down the line with a project, they had no idea was happening, because that's the reality. People aren't sitting here. MR. KERN: Right. MR. KANEALI`I-KLEINFELDER: They don't see the rezone ordinance. They just see it get built and then they freak out. That's what I keep saying. MR. KERN: Yeah. And I appreciate that question. You know, I've been racking my brain around that. How do we find that balance? And what I've been coming to is again, more of a performance condition than a timing condition. That's where I've gotten to. I'll obviously think about it at a whole other level right now for the next couple of months on, is there another way to have timing and performance in a manner that would work. One of the big issues that I have is when a property just reverts to the limbo state. And it's been said in the past, "Well, then just revert it back." It's a lot of effort and a lot of work on the Planning Department's side where maybe if the rezoning Page 33 PCPLUD-10 February 7, 2024 ordinance, if there is a timing condition and it doesn't hit, maybe it just gets automatically reverted back to its original zoning so at least you have a useable project. But then I wonder, we had one come up where it was rezoned, it was in the urban core, and it was zoned to single-family residential. And the original zoning was like Ag-3 or something like that, totally within the urban core. The zoning ordinance expired, so it's in limbo. So, it's still zoning RS-7.5, RS-10. Can't do anything with it. The applicant came back and said, "Will you do a Planning Director initiated back to its original zoning of Ag-3?" Which might've gotten you ten lots. I said, "No." I won't do it because it's not consistent with our General Plan, it's not consistent with our CDP (Community Development Plan). Why don't you come back through and get that brought back up currently? And the people were like, "Well it's not penciling eight now. We don't know what to do." So, I said, "Well, we'll have to sit on that one." Because I said, in that case, I'd rather see an RS-10, RS-15 zoning to get residential density within our urban core versus Ag-3a, and we get five or six estate lots in the urban core. That's a travesty too. We see that in certain areas. So, how do we find that balance of getting actionable, smart projects that support our community? That's a hard question to really answer. MR. KANEALI`I-KLEINFELDER: Different conversation given the ordinance, given how many discussions we've had on timing extensions, zoning, I mean, it is hard. I'd love to see you folks work on some kind of spreadsheet. Stupid word, but I mean, a spreadsheet that just, you know, you get ten points for this, you get two points for this, you know, Planning Department sees this in alignment with, doesn't align here, community concerns, and each one gives them a certain score, and that score correlates to an even closer best guess timeframe for a project. I mean, that would be beautiful, ultimately. MR. KERN: We can look at that. We offered up at one point and time, even having the clock stop when it's under agency review. MR. KANEALI`I-KLEINFELDER; Yup. I remember that. MR. KERN: You know, that was for a specific project, so it didn't go anywhere. So maybe it needs to be done more universally because you go through that process of, I'm going to do my preliminary planning; that's going to be twelve months. I'm going to go through my permitting, that's going to be twelve months. Then we need a contractor. I'm going to hit the ground, that's going to actually be twelve months. I can get that done in three years. Next thing you know, you get caught up with an agency for two years, or COVID (Coronavirus Disease) hits, or 9/11 happens, or I'm just thinking about all of the uncertainty that's happened in my lifetime, which is short in the grand scheme of things. Page 34 PCPLUD-10 February 7, 2024 We've been through so much. Every ten years we get like a curveball, whether it's 9/11 or COVID or you know, the great recession. It's just hard. MR. KANEALI`I-KLEINFELDER: Okay. Thank you. MR. KERN: Thank you. CHR, KIERKIEWICZ: Council Member Lee Loy. MS. LEE LOY: Yeah. Thank you. I apologize I wasn't here when we first started the discussion, but I did listen very carefully and really landed in a place where it's complex. It's incredibly complex. And I'm with you, Director. I think there needs to be more of a performance -based accountability rather than it's this or you're done, because that performance base is more of a carrot and continues to get the community what they need in the interim. I am going to revise my request for stop the clock because listening carefully to my colleagues who wants it all, we cannot control Department of Transportation to review an intersection plan, nor do we have any type of jurisdiction to make them review it. And then in the same breath there are things within our control, like providing for transportation and bus hubs to only get shot down by the same body that's requesting, "Developer, get it done." In my time on the Council, not only here, but as a staffer, I really reflect back on when did it really work? It really worked when there wasn't any timing conditions, and that's where we wanted development to go. And then the government brought the infrastructure. They put in the water, they put in the road, they provided the rights of way for expansion for that traffic intersection to be expanded at any given time. Call it the good `ole days. That's when it really worked. But it was a partnership between government and the developer. But it also guided where we wanted things to go, hence, the State Land Use Boundary amendment and how government initiated those boundary amendments, not a private developer. We were in control. We had home rule, and this is how we wanted to see our community flourish. And now given, there's some inequities; east side, west side. It's clear. West side, there's a 30 percent premium on just development in and of itself, than there is on the east side. So, when we talk about complexities and we talk about wanting to hold people accountable, it's more than one person. But I also want to see some accountability by members of the dais because sometimes people will just vote no just to vote no. And we're really not advancing the community. I know this process has to go down to the Planning Commission, I would really rather explore that, but also even come up with a metrics of a 100-lot subdivision takes on average, you know, six years for review. If it's a subdivision with turnkey, that's Page 35 PCPLUD-10 February 7, 2024 very different than a subdivision with four lots for sale, right. So, there's nuances within that. There's commercial. There's just so much going on. And again, Director, if there are provisions as far as a time extension, definitely where government just has to say, "This is where it's going to go, this is our commitment to community, and we're going to put in the water." Water use and development plan, approved. Units for water, it's going in that direction, right, sewer capacity, all of it. I mean, if we're really going to solve this, this is what it's going to take, right. And we can't keep strapping the developers to frontload all of this because they can't do it. Those are my thoughts. I look forward to hearing the evaluation from the Planning Department. MR. KERN: Thank you. I think you make a really good point with the infrastructure. Often times it's the off -sight infrastructure that's so great, it's so hard to make it pencil. And I do support actually frontloading infrastructure in areas that we really want it for housing. That being said, all of that gets paid back from the developer back to the County. That's where I would say "yes." You know, I mean whether it's an impact fee or it's their part of the fair share to do that, but to get that critical mass going, that's what it's going to take because what we're seeing is a lot of projects as their own, it's really hard for them to pencil. If you look at it from a larger universe with infrastructure and there it can pencil because you might $20 million for a $10 million project. But that $20 million of infrastructure could support $40 million worth of projects and now it's starting to pencil, but that one off that's trying to get it doesn't work, Years back I think there was enough scale in certain cases that it did work. So, I agree. When it did work was back at that time and that's kind of what's working currently in other places. And how do we find that balance, you know what I mean, so community is informed, and mitigation is happening. And there is also continuing to build trust in government and, you know, personally, I don't want to leave this seat and have it be worse. Pm born and raised here too. I love this island very, very much. And the weight of being in this seat is really, really great. It really is. And I feel it. And so, I'm trying to make smart decisions and move in a direction that helps the next generations to come, born and raised here. Thanks. CHR. KIERKIEWICZ: Council Member Inaba. MR. INABA: Thank you. Yeah, I totally appreciate this conversation especially as it relates to phase performance, conditions. That definitely addresses, I think, concerns that community has especially in the past where there's been developments that have, you know, done their market units, or gotten their moneymaking activities done, but not the community contribution parts. I still think it's necessary to have the total, you know, timeframe in which all the conditions need to be completed though because we're imposing even these performance conditions based on what exists today. And even when we make our Page 36 PCPLUD- t 0 February 7, 2024 decisions, we're making our decisions looking at a map that has zoning, you know, all the current zoning but not necessarily all the potential buildout that comes with that zoning. So, there could be properties next to you that would allow for fifty units to be subdivided tomorrow. It says that, you know, it has that zoning on the map we look at, but we aren't seeing the impacts of the fifty that could be approved tomorrow. So, I think that's, you know, a real point of this bill. But I will definitely discus the phase performance conditions and hopefully come up with some language before I go in front of the Planning Commissions so that we can have some robust conversation there and hopefully be able to incorporate this idea of performance conditions within the bill when it gets back since the title does allow for some of that leeway. So, thank you. And I do ask for everyone's support to get it to the commissions. CHR. KIERKIEWICZ: Thank you. Council Member Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Thank you. I was talking to Tyler Benner outside and I like him. The reason I like him is he breaks down —one; you guys brought him forward. That was a great pick, by the way. CHR. KIERKIEWICZ: You're welcome. MR. KANEALI`I-KLEINFELDER: Thank you. The reason I like him though, he told me one day, he was like you know, you have a lot of people coming from the Council and they'll tell you everything. They'll tell you all about the problems, why they need more money. But he's like, "Hardly ever do you ever hear anyone say what their actual solution is." And his brain, he breaks things apart differently. The reason I'm saying that is he may be —because I think this would be beautiful, what we've discussed today, as coming together with some kind of a metric. He may be able to help graph a metric given his different kind of analysis techniques to come up with a metric that your administration or your position could implement from now on that really does help clearly layout what we really expect that timefiame to be. And that would be a great legacy to leave as this has been a lingering problem, you know, past worked good, good `ole days, going ahead, community concerns, Council wanting to do certain things, different Councils, different administrations, unknown future. But having him and you work together, and maybe different parts of the administration, to figure out what metrics truly would layout a particular timeline. And I say that because he just looks at things differently, and he's just got a different approach that I've always really respected. The two of your brains come together, your experience in development, his experience in problem solving, you might come out with a beautiful result that gives you a metric that could implemented from here on. So, just food for thought. Page 37 PCPLUD-10 February 7, 2024 MR. KERN: Yeah, I'll definitely talk story. I'm open to finding any solution that'll work good for our community. MR. KANEALI`I-KLEINFELDER: Thank you. I yield, Chair, CHR. KIERKIEWICZ: Council Member Kimball. MS. KIMBALL: Yeah. Actually, I'm not going to say great minds think alike but I was actually thinking along the same lines. I was kind of thinking along the same lines is that there's an element here where there's a need of diagnosis, I understand there is a problem. We've seen problems. But these are the things that happened like forever ago and there were definitely different mindsets back then, I don't feel like I understand well enough the sources of those problems and what actually —and I don't think the answer is, well there wasn't a date. You know, I don't think that's the simple thing. So, giving this to Tyler to maybe do an audit, maybe starting with some of these really, the ones we know are failures and we can kind of tease that apart a little bit. I think maybe if you could run that concurrent like maybe next meeting, run that concurrently with the Planning Commissions conversation, we would have some really robust material to have a discussion about next time. The other thing I was thinking about when you were talking about not having a future vision of everything else that could happen. Hopefully, you guys remember Gina (McGuire from the University of Hawai `i) who came in with Christian (Giardina from U.S. Forest Service) to talk about decision support tools. She's working on a super cool layer right now, GIS (Geographical Information System) layer, that basically takes everything in its current zoning and imagines what it would look like and what the impacts would be on water, wastewater, erosion, all of that, if it was fully built out, And so, part of the answer to this I think is also better data for us around the whole decision making and more and more of that is becoming available. So, I don't know if you're —I'm willing to work with you on it but yeah, that's what I'm kind of thinking is like the more diagnostic actually would be really, really helpful here. Thanks. MR. KERN: I have a very strange request and you can honor it or not, either way. I'm a bit short staffed. We just had a referral of a stack of heavy-duty bills with the TAR (Transient Accommodation Rental) bill and the rest of it coming through. Once it's referred to us, we have a very strict timeframe to get it back in 120 days. On behalf of my staff, if we could defer for two weeks and then launch it, we'd appreciate it. If you're not inclined and it needs to go today, we'll make it work, but it's going to have an impact on my team. Up to you. MR. INABA: I'd like to hear from Council Member Kierkiewicz first. Page 38 PCPLUD- t 0 February 7, 2024 CHR. KIERKIEWICZ: Thank you for bringing this forward. You know, just reflecting on a little over five years. Oh my God, five years of our lives on the Council. It's like an eternity. We've seen a lot. I think the first bill that I had introduced and Chaired for Planning Committee was related to Ka`upulehu, and they were asking for a time extension. I think for that project it was like five years for completion or ten years, and like seven years waiting for SHPD (State Historic Preservation Department) to respond. And like I bring that up because like, simply like what is being proposed here seems like it could be a really good fix. But it's not a one size fits all sort of solution. There are so many different nuances and complexities with every single request that comes before this body that it really does require a careful case by case analysis, right. Like the decision point here is not about a project per se, it is about is the use conducive. Is the zoning conducive? Because there are a number of different things that could happen within each zoning district. So, I think sometimes we're getting a little bit too caught up in like project specifics and we have to evaluate are any of these uses conducive to this community. And I think it's so important to give deference to General Plan and Community Development Plans (CDP's) because CDP's and especially, and we all, right, we honor these from our community. They're community generated. And so, I appreciate you explaining, Director, where your department was coming from in not including the timing element because if it makes sense to these documents that we've adopted and are essentially law of the land, well then, it's a good land use decision. It's good in perpetuity. I do think though, there needs to be some sort of timing element. I like the idea of exploring performance based. I get hesitant on prescribing an end date for when all of the conditions of an ordinance must be satisfied because again, the decision that's made here is part of a larger ecosystem, County, State, sometimes federal agencies, all have to get involved in the mix and we don't have control over that. And I feel like an applicant is going to be penalized for something that's like outside of their control. I'm definitely for sending this to the Commissions to get their mana`o. But I don't necessarily think that this as it's being prescribed today is the right fit for what we are trying to solve for. I think there's a lot of other considerations that have to be brought to the table and flushed out a little bit more. But I like that we are having this conversation because it highlights all the complexities that go into a development, right, like it's not lost on me that Hawaii ranks consistently number one as the most difficult place to do business. I'm for little bit of deregulation, but not if it's going to be sacrificing natural cultural resources and the ability for local people to make it. Like I think it can be made a little bit easier for like local people to develop and thrive. Page 39 PCPLUD-10 February 7, 2024 That being said, thank you for bringing this forward so that we can have the conversation. The Director did make a request about deferring for a couple of weeks, so I want to make sure that you address that so that we have clear instruction on next step. MR. INABA: Yeah. Director Kern, sorry, can you reiterate the reason for the request? MR. KERN: So, I have a division, my Planning Division is short staffed by three members right now. We're going through recruiting. And we have a number of applications that are coming forward outside of Council initiated ones so we're getting stacked up. And then we had the Council initiated ones from two weeks ago when I was out sick, that are three bills that we have to do a background report, and recommendations, and get that to the Planning Commission within a define period of time. And so, I'm saying my staff is stacked up. We have a lot to do, and any relief we can get on a little bit of cadence would be very helpful. Like I said, it's your folk's choice, but I have to ask on behalf of my team and myself to try to find a reasonable workload for my team. MR. INABA: Thank you. Do you know the provision that requires? MR. KERN: 120 days. CHR. KIERKIEWICZ: It's in the Charter. MR. INABA: That's in the Planning Code? MR. KERN: It's in the Charter. Once you folks refer, we have 120 days to get it back. MR. INABA: Mr. Clerk, can you refer me to the section of the Code, please? MR. HENRICKS: I think it's 25-2-43. MR. KERN: You sound confident enough. MR. HENRICKS: Somebody can fact check that later. MR. KERN: But it is a Code requirement. MR. INABA: Yeah. As part of your, you know, support of at least sending this bill to the Commissions, I'd be happy to postpone this to the next meeting. MR. KERN: Yeah, we're moving it forward. I mean, honestly, I think the intention, I don't think we're off as far as what our intention is. I think we're Page 40 PCPLUD-10 February 7, 2024 trying to figure out how we get there and hying to put our minds together to accomplish something that's going to work better than what has been working. MR.INABA: Great. MR, KERN: So, I'm happy to run it through and continue the conversation. Hopefully come up with something even better. MR.INABA: Yup. Motion to Postpone: Mr. Inaba moved to postpone Bill 127 to February 20, 2024, Seconded by Ms. Lee Loy. MR. KERN: Really appreciate that. Thank you. CHR. KIERKIEWICZ; Any discussion on the postponement? MR. INABA: Yes. I just wanted to thank Director Kern for making that request on behalf of the staff knowing the backlog at the Commissions right now. CHR. KIERKIEWICZ; Council Member Lee Loy. MS. LEE LOY: Yeah. On the postponement, and maybe this is just a way for me to just thank you. I heard loud and clear the weight that your office carries, and it's a challenge. It really is. And to know that someone local is holding it up and trying to provide for us, I appreciate that. And so, love the honesty of asking for a little bit more time because we all want to help. I yield. CHR. KIERKIEWICZ: I'll be supporting the postponement. I want to make sure that you and your team have all the time necessary to put forth solid recommendations. I really feel like we're in alignment here. How we get there remains to be seen. But again, want to make sure you have ample time to put forward solid recommendations for the Commissions and the Council to deliberate on. Thank you. There's a motion on the floor to postpone this measure. All those in favor, please say "aye." Vote on Motion The motion to postpone Bill 127 to February 20, 2024, was to Postpone: carried by the following voice vote: (Ap rt� 'oved) Ayes: Committee Members Evans, Inaba, Kagiwada, Kaneali`i-Kleinfelder Kimball, Lee Loy, Villegas, and Chair Kierkiewicz — S. Noes: None. Absent: Committee Member Galimba — 1. Excused: None. Page 41 PCPLUD-10 February 7, 2024 ADJOURN- There being no further business, at 12:43 p.m., Mr. Inaba moved to adjourn the MENT: meeting. Seconded by Ms. Lee Loy, and carried by the following voice vote: Ayes: Committee Members Evans, Inaba, Kagiwada, Kdneali`i-Kleinfelder Kimball, Lee Loy, Villegas, and Chair Kierkiewicz — 8. Noes: None. Absent: Committee Member Galimba — 1. Excused: None, CHR. KIERKIEWICZ: Committee is adjourned at 12:43 p.m. Mahalo. Approved: Ms. Ashfey L. Kierkiewicz, Chair Policy Committee on Planning, Land Use, and Development AK/tk Page 42