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HomeMy WebLinkAboutMIN PCPLUD 2024/07/09 (2022-2024)Policy Committee on Planning, Land Use, and Development 1611 Session Hawaii County Building 25 Aupuni Street Hilo, Hawaii July 9, 2024 CALL TO The regular meeting of the Policy Committee on Planning, Land Use, and ORDER: Development was called to order at 10:02 a.m., in the Council Chambers, Hilo, by Ms. Ashley L. Kierkiewicz, Chair. ROLL CALL: Present: Ms. Ashley L. Kierkiewicz, Chair Mr. Holeka Goro Inaba, Vice Chair Ms. Cindy Evans, Member Ms. Michelle M. Galimba, Member Ms. Jenn Kagiwada, Member Mr. Matt Kdneali'i-Kleinfelder, Member Ms. Heather L. Kimball, Member Ms. Susan L. K. Lee Loy, Member Ms. Rebecca Villegas, Member STATEMENTS The Chair directed the Committee to proceed to the next order of business, FROM THE Statements from the Public on Agenda Items. PUBLIC ON AGENDA ITEMS: (There were none.) CHR. KIERKIEWICZ: Let's move on to business of the day, Bills for Ordinances. BELLS FOR The Chair directed the Committee to proceed to the next order of business, ORDINANCES: Bills for Ordinances. PCPLUD-16 July 9, 2024 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: Intr. by: Postponed: Referred to Planning Commissions: Comm. 694 Mr. Inaba February 7, 2024 February 20, 2024 ; and Comm. 694.5: From Mayor Mitchell D. Roth, dated June 13, 2024, transmitting for Council's consideration and action, the Windward and Leeward Planning Commissions' letters. Motion to Approve: Mr. Inaba moved to recommend passage of Bill 127 on first reading. Seconded by Ms. Galimba CHR. KIERKIEWICZ: Mr. Inaba. MR. INABA: Yes. Thank you. This bill was referred to both Planning Commissions and there was some really good discussions. So, it did come to us with a negative recommendation by the Director, and that recommendation was forwarded to both Commissions. The Windward Planning Commission, as you can see in the transmittal letter forwarded a favorable recommendation on the bill but recommended that we incorporate recommendations Number 3 and 4 from the Planning Director. So, Number 3 is creating an informed time matrix, and that's really to have a better understanding of the timeframe in which, you know, different types of applications might take to get through a certain approval through different agencies. So, that would be a departmental thing that would be lead essentially by the Planning Department. And again, the Planning Department right now is the one who's putting forward the timeframes in which the conditions are to be completed. The second recommendation from the Windward Planning Commission was the Planning Director's recommendation Number 4, and it was to allow certain exemptions from this time requirement. And there was discussion in the Commissions regarding, let's say if you go back to open space, you know, you wouldn't want to put a timeframe on an ordinance like that. So, those are those Page 2 PCPLUD-16 July 9, 2024 two. I'm just going to kind of give us the rundown of what the both Commissions said. The Leeward Planning Commission, they wanted strengthened standard performance conditions. So, that's kind of already included in our change of zone ordinances, but they are asking that those conditions be strengthened and maybe retooled to make sure that they're in a timely fashion or there's better checks rather than just letting an ordinance go. The Leeward Planning Commission also discussed or recommended, I should say, the addition of tolling language. That's a conversation that we'll bring up again today. And then lastly, from the Leeward Planning Commission was the sunset condition to revert land back to its previous designation should a change of zone ordinance not be complied with, and an initial time extension not be secured. So, what we have before us today is essentially those recommendations. I don't have amendments today because I really wanted to have this discussion and hold this over one, I guess for myself, and I did represent this to both of the Planning Commissions regarding tolling. I think it's really hard and I think we've had this discussion before. We are giving adequate time now, and I think part of the recommendation for informed time matrix is to really give as best an idea as possible on how long things might take. And again, the Code now guarantees folks that they will have the opportunity to come for an initial time extension via resolution. So, I'm not ruling out the possibility, but I think we've kind of set things up for certain, you know, what it says on the paper as the deadline is the deadline. Tolling might make it a little bit confused. And then, I guess I'm just going to, with those recommendations as you see in the transmittal letter, would just like to hear from the body at this point. I'll yield the floor. Thank you. CHR. KIERKIEWICZ: Thank you, Council Member Inaba. And I did get word that Planning Director Zendo Kern is on his way in the event that members of the Committee have questions for him. But in the meantime, do members have any questions for Council Member Inaba? Council Member Evans. MS. EVANS: Yeah. So, I'm not that familiar with tolling and I think other people like the public might not understand it. So, what would tolling language, what would that look like? CHR. KIERKIEWICZ: Council Member Evans, do you have any other questions that you're going to be asking of Council Member Inaba? MS. EVANS: I don't know. Page 3 PCPLUD- 16 July 9, 2024 CHR. KIERKIEWICZ: I would like to just avoid having a two way conversation between two members. MS. EVANS: Right, right, right. So, I can ask the director that question. Be happy to. CHR. KIERKIEWICZ: Perfect. Director Kern, you're here at the right time. MS. EVANS: Good timing. CHR. KIERKIEWICZ: So, Director, just a quick overview while you catch your breath. Council Member Inaba provided an overview of some of the recommendations that each of the Planning Commissions had to strengthen the bill. And Council Member Evans has just asked a question related to tolling. MS. EVANS: Yeah. One of the recommendations is to add tolling language to time conditions, and I thought for myself and probably the public, what would that look like; tolling language? (Note: At this time, Planning Director Zendo Kern came forward to address the members of the Committee.) MR. KERN: Good morning, Chair, Members of the Committee. Zendo Kern, Planning Director. Thank you for the question. Tolling, we'd have to establish basically language that when an application was under review for various departments or agencies, such as SHPD (State Historic Preservation Division), Department of Public Works, that the time would stop on the clock. So, if there was ten years for the change of zone application to get it done, let's just say, that when the plans were under review, that clock stopped. And so, plans were under review for a cumulative of two years, and it was a ten-year overall that would basically give it twelve. Simple math. Because that's where there's a lot of uncertainty. MS. EVANS: Have you used tolling language in the past? MR. KERN: I have attempted to put it into a change of zone ordinance at the previous council and the concept was talked about, but it felt it was better done more as a universal change, not on a per application. So, it's been put out there, but it hasn't landed. MS. EVANS: Okay. And then, with tolling language, it could be specific instead of the cumulative where collecting from all departments. Let's say it gets stuck in on department, what reasonable time —or let's say, two out of X just seem not to be able to get the answer to you, after a certain reasonable amount of time, you know, whatever the kind of normal standard, maybe you think you'll have an Page 4 PCPLUD-16 July 9, 2024 answer in six to eight months, once it gets beyond that point then you could start the tolling. So, it wouldn't start when you send it out. It would start after X amount of months; you're not getting your comments back from maybe a couple departments. MR. KERN: I think there's different ways to approach it and look at it. MS. EVANS: Okay. MR. KERN: It could be that. It could even be the converse to that where you tolled it for that six months but once it started maybe going too long, maybe that the tolling stopped over a period of time because what we're trying to do is give a reasonable —the concept is to give a reasonable amount of time for an agency or department to review an application that doesn't put the burden on the applicant that generally doesn't have all the ability to move it along, but also have the guardrails on it where it's not being utilized from the applicants side of it to even extend further than you'd want to. You know what I mean, it's trying to find that mutual accountability. MS. EVANS: Okay. I kind of like the concept actually. Finding the right language would be interesting if you have examples of the two ways. Then if there's anything in between, I mean, is it this way or this way or is there combinations? MR. KERN: I can work on putting something together. I know we have the language from one of those previous rezones, I would say about two or three years ago that we had kind of pulled out as a discussion point, because we already have that written. MS. EVANS: Okay. MR. KERN: And if it's looking like this is some direction that's going, I can put a little bit more time and attention into it with the resources that I have. If it's not going anywhere, then I don't have the resources to spend on it, if that makes sense? So directionally, I can put gas to it or brake on it. MS. EVANS: Right, right. Okay. I yield. CHR. KIERKIEWICZ: Thank you, Council Member. Anyone else? Council Member Villegas. MS. VILLEGAS: Sure. I have a quick question and will humbly admit that it will expose some of my naivety with these terms. What is the definition, because I'm sure there are people listening who don't understand what a tolling condition entails? Page 5 PCPLUD-16 July 9, 2024 MR. KERN: Tolling is simply, the clock stops. You stop the clock. To toll something, the clock stops. At certain points and time when something might be under legal review, that's often times when you'll see the tolling language come in, like all the times been tolled while this is being worked out. So, tolling is simply while a certain action is happening, that's defined within however this language would be, the clock stops. So, for example — MS. VILLEGAS: Nope. I get. Thanks. Yup. I got it from there. MR. KERN: Got it. MS. VILLEGAS: Okay. Yeah. I'm in support of this legislation, and thank you, Mr. Inaba, for bringing it forward. We need to remove and ensure that there are stock gaps from manipulation of the system and that not only, you know, I consistently hear that we need to make sure that we're not causing undo stress or delays on builders or developers, but I also want to make sure that we're remembering our job is to serve the people of this community, and of our communities and our constituents, and residents of the island, not just the business people. And so, I think that it's important that that balance be realigned and that we —I just have high respect for Mr. Inaba and his ability to navigate these documents and put in ways for a stop gap to ensure that there's a balance in how we do things, and that the priorities are in alignment with the value system of our communities. With that, I yield. CHR. KIERKIEWICZ: Thank you. Council Member Lee Loy. MS. LEE LOY: Thanks. Director, another recommendation from one of the Commissions was like a timing matrix, right? And I'm really curious about this because therein lies the critical path on the ability for anybody to get anything done. What does that timing metric or matrix look like? And I'm asking that because a three acre development compared to a 100 acre multi -family, multi - commercial project would look very different. Explain to me or kind of just thumbnail what a timing matrix would look like? MR. KERN: So, it's an idea that we have that I would say that needs to be worked out into the detail because as you say, certain projects would be a different size. So, it's kind of trying to find an element. If you have a project of this type and this size, here's your general timeframe it could happen, here's what the review period should be on this, and then have it scale, I'm not sure how many categories you'd have. That's where a lot more detail would need to go in to actually forming this. So, down to a simple two lot subdivision up to, you know, like the Kumuhou project that we looked at couple years ago. Those are kind of on both sides of it, so I think we need to kind of look at right sizing that. I'd want to get some more feedback on it. We don't have it fully baked. It was just an Page 6 PCPLUD-16 July 9, 2024 idea of say, if we're moving in this direction, potentially a timing matrix could be helpful in coming up with decisions. MS. LEE LOY: One concept that Chair Kimball introduced us to was like a decision matrix, right. You put in all kinds of information, and it'll tell you if you're going to landscape, it's going to cost this amount of money. Have we looked at that kind of technology to help us; one, make the decision, but two, have a framework to allow developers, housing contributors, to take a look at if these are the known inputs. Here's a decision matrix app, for lack of a better description, to help kind of push out back to everyone to say, "Hey, here's the reasonable expectations. A project of this size is definitely a five to seven year project, whereas a project of this size, we're looking at closer to 15 to 20 years for full build out." That doesn't mean you cannot get other things along the way. Have we looked at some of that technology? 1, • MS. LEE LOY: Okay. MR. KERN: It might exist. I think it's in my mind, I'm thinking that at some point Al (Artificial Intelligence) will help us with some of this. I think we're close. Haven't had the chance to dive into it, we've been just trying to handle normal business. But I do think that would be helpful. MS. LEE LOY: Yeah, I think we're trying to manage expectations. I think the bigger challenge is every piece in this complex process all has to work at a particular expectation, and I think that's where I'm challenged when we start putting in kind of timing requirements, which is why I do support the tolling language having done this for a number of years. MR. KERN: Yeah. I think it's tricky because we as a department ask the developer, who's the applicant, how long do you think it's going to take. And they generally want to put their best foot forward, give the best timeframe, and say it's going to happen really quick, and then life happens. That's the consistency. So, I think I think having something in there to say, hey a project like this is typically in this area, would be helpful. I think on both sides of it, from the applicants standpoint, to the Council's standpoint, to the community's standpoint, to get some framework around it. MS. LEE LOY: I think the other challenge too, as we craft our conditions of approval, and I really appreciate the expertise from Planning Department, which reaches out to all the other expertise, is we layer in conditions of approval, and community wants stuff like road widening, traffic, signalization. All these things. Those things cost lots and lots of money. And so, to frontload that makes it more expensive on the frontend. So, to give developers more time, housing Page 7 PCPLUD-16 July 9, 2024 contributors more time, or commercial entities more time to pencil it out. I think it's the layering of the conditions of approval. And you guys to a great job at that but then it comes to us and then we hear community saying, "We'll support it if you put in the hospital, and the commercial, and the traffic light, before anything else." I think that is another challenge. How do we balance that, Director? MR. KERN: That's a good question. I think what it comes down to me when I look at it is a level of certainty from the community, to the applicant, to the department, and to the Council, and what are the big issues there. So we try to condition to mitigate the impacts and at what point, and time are we needing to mitigate those impacts. The mitigation needs to occur before the actual impact occurs. To your point, often times we frontload things. So, we need to see everything now even though the development doesn't happen for six, seven years down the road. And we're kind of basing off of things that are current versus what I've been trying to get to you is more performance condition. This makes sense, let's move it, but prior to actually impact, prior to a plan approval, prior to a subdivision application, we look at that and it's mitigated based on that time. A Traffic Impact Analysis Report (TIAR), if it's needed it's done at that time, and we mitigate for that. Same with sewer, same with water. So, it's happening in real time closest to the point of impact as possible. We were just in a meeting with our code consultants talking about this very subject right now and their concept was the TIAR needs to be pushed closer to the point of the impact, not frontloaded now when you're going to take a few years to go through, a few years if you're lucky, often times it's five, six, seven years later. If they know they're going to go and they have the level of certainty to get to do the TIAR now, they're going to do it. That's fine. And so, I come back to the conditions are supposed to create a level of certainty that the Council's making a good decision if it's approving it. The community knows the impacts are going to be mitigated, and the applicant understands what they need to do, and the costs associated with that. To me, that becomes smart, good planning. MS. LEE LOY: Yeah. Thanks, Director. You know, to the maker, yeah, I would love to see what kind of language. I think the tolling language that we've attempted to try in the past where we stop the clock is actually, it's healthy. It's healthy because life happens. I mean, I've been on projects where SHPD took ten years to evaluate an AIS (Agricultural Impact Statement). I've been on projects where DOT (Department of Transportation) took the better part of six years just to evaluate the signalization plan, not to mention flooding with a LOMR (Letter of Map Revision) and a CLOMR (Conditional letter of Map Revision). And I could go on and on and on about how there's the project, but there's all these other complex things that need to be addressed by individuals who don't sit here, who don't feel the pressure, who are just doing their job. But their job is complex. So, to the maker, I think I would love to see that, the tolling for sure, but also some way to strike a balance between modest sized projects to, you Page 8 PCPLUD- 16 July 9, 2024 know, very complex multi -family projects. I think there's a spectrum there. Thank you. Thank you, Director, for being here. I yield. MR. KERN: Thank you. CHR. KIIERKIEWICZ: Thank you. Council Member Kdneali'i-Kleinfelder? Nope. Okay. Council Member Kimball. MS. KIMBALL: Thank you. And thank you, Director, for being here. To the maker, I just want to lend my support to the concept of some tolling language. Whether or not it can live here or not is a question, but I am supportive of that. Also, supportive of this matrix concept and rather than being like a project -wide matrix of, you know, it's a three acre versus a hundred acre, something like that, it would be maybe more directly related to certain conditions. Like we would expect this type of condition to be within this range and, you know, something like that. Speaking a little bit to what Council Member Lee Loy hinted at and you spoke about with performance metrics, I'd love to see like a sequencing matrix too, like you cannot do Step B until you've done A; you cannot do C until you've done B. And, you know, to a certain extent, based on the order, conditions often are presented in the change of zone ordinances. I think that is somewhat reflected there, but I can imagine how much easier it would be if there was just a table at the end of each change of zone that says these are the order of conditions, and even if it's the letters, you now, of the conditions and what are the dependencies. You know, just to speak briefly around the idea of a decision tool, there's certainly folks that, I know that April (Surprenant) has talked with some folks that I had connected them with about that whole idea of giving us the view of the whole area for decision making. This would be a different type project, but we do have resources we can tap into to maybe look at something that doesn't already exist for something like that. So, happy to further that discussion, but that's my feedback to the maker. Thank you. CHR. KIIERKIEWICZ: Thank you. Council Member Galimba. MS. GALIMBA: Thank you. So, this is sort of in a different direction. You know, sort of philosophically, I really like the idea of zones just being as stable as possible, certainty. So, I'm just wondering —but I also get the idea of accountability and, you know, the zoning has been used forever as the tool to get accountability. Is there another tool that we could use potentially that would not get us into these situations where we are putting pieces into zone limbo? And this is because we're all still in like baby stages of this somehow, even though we've been doing this for a while. And you don't necessarily have to answer that now, I'm just kind of throwing it out. Page 9 PCPLUD-16 July 9, 2024 MR. KERN: Even the concept that I've running around has been around trying to get us in, not all projects, but in many, having a certain sense that the zoning makes sense today, it should make sense in ten, twenty, thirty, forty years, if it's consistent with all the areas and the settlement pattern. So, for example, like smack dab in the center of Hilo you're going to do commercial, it's probably fine for commercial for it, you know, to remain here at the time. To actually create a level of say, "Hey, it's zoned. You're done." But once you want to take action, here's all your mitigation steps. So, it's the same type of conditions, it just happens prior to actually doing it and that's what a lot of other jurisdictions will do, is say your zonings set and then we're going to come in for your use, you're going to mitigate accordingly. And if your use came in for a single-family residence, minimal. If your use came in for a drive-thru, you know, restaurant, that's a different story. We're looking at queuing, we're looking at all of those things, and you mitigate based on the impact that's close to the time as possible. That's the other way that I'm seeing it. It's kind of the contrast to having the timing conditions in there. Again, still just trying to create the level of certainty for both sides of it. The community has to know mitigation's happening and the applicant has to have a fair shot at moving forward. So, I don't have any other brilliance other than that. I'm going to keep thinking about it. But that's the other side of the equation. MS. GALIMBA: Thanks. I mean, there definitely are cases where zoning that happened in the past are not appropriate. And so, we'd also need a way to change the zone that even doesn't have anything to do with the project. So, there's two sides to it as well. But thanks for that. MR. KERN: Correct. And I would say well if there's areas on the fringe, then what I say wouldn't, you know, you'd want to be like now is the time we're looking at it, now's the time. So, great. MS. GALIMBA: Right. Right. Thanks. CHR. KIERKIEWICZ: Thank you. Council Member Evans. MS. EVANS: Okay. Thank you. Given this discussion, I'm really more inclined to, if someone comes in and says they want to do it, I'm more inclined if they start on the process in submitting, you know, all their applications and you're putting them out to do the tolling at the beginning. It's just like, give them six months or eight months or whatever. So, it's very, very clear that you get the tolling from taking action. If you don't take action, you don't get tolling. But if you toll, then you can't play with tolling, right? Because you can't. You don't want to play with it and say we send it out to ten agencies and one agency sits for four, five years. Well, you can't control that agency but maybe somebody else can. So, I'm having a little bit of a trust factor going on here. So, I'm thinking more like your Page 10 MZOURi1l3Ci July 9, 2024 one idea is at the beginning when they really are effectuating the —they're actually doing it, and they come in, and all off a sudden things are going out. Then I can see that a timeframe of tolling being given to them, but you just stop it. MR. KERN: So, yeah. I mean, I think trying to safeguard the abuse of the tolling is really important. I think at which point in time the tolling occurs will be based on the applicants action, right? And whether it happens right at the beginning, part way through, or towards the end, there's more risk if it goes towards the end if there's a timing condition on there. And then life happens, right. You could have come through, got your change of zone right at 2020, you're expecting everything's going to go and all of a sudden COVID (Coronavirus Disease) and the world stops for a moment, and you're two, three years later and you're trying to get your project going back up again, right. So, there's different things that might occur, but the concept around tolling is once it's submitted the clock stops, but it has to be within reason. MS. EVANS: Right. MR. KERN: And it's tricky because in certain cases, you know, maybe somebody not following up allows the time to go further. In other cases, I've followed up on things every single week, it still took two years. MS. EVANS: Right. Well there has to be sidebars on it, right, or safeguards. But I will say this, I thought and, you know, maybe I'm making the assumption, but I was kind of hoping that you do have language that when things like a natural disaster, earthquake, whatever happens that that too stops. That should also stop the clock. Do we have to put that language in here? MR. KERN: Yeah. MS. EVANS: Because you don't have it anywhere else? MR. KERN: Otherwise we'd be putting it as a condition per, you know, zoning ordinance. But it would be more of a practice kind of like how — MS. EVANS: Like a man-made war, or a natural disaster that would definitely change. Yeah, I do support that idea because I've seen that many times in language over the years. MR. KERN: And then, you know, and then to that point, at what scale and to what geographic location, right? COVID is going to affect the entire island. Something like 9-11 affects the entire country. COVID affected the entire country as well. 2018 Kilauea eruption very much affected Puna, anything happening in Puna, it affected the department's capacity in certain way because of Page 11 July 9, 2024 responding, but it didn't have that same effect say in Honoka`a, right? Honoka`a was still business as usual. So, it's like how do we right size it — MS. EVANS: So then there's an official recession that's been called. I mean, you know, always recessions have a beginning and an end but that can be done at the State Department of Business and Economic Development, for the Hawaii State being in recession, not the country. MR. KERN: Yeah. Maybe it's under emergency proclamation. I think and that's where this dialogue is kind of fluid. CHR. KIERKIEWICZ: Anything else? MS. EVANS: Thank you. MR. KERN: You're welcome. CHR. KIERKIEWICZ: Mr. Kaneali`i-Kleinfelder, I saw your mic on again, asking? No? Okay. Council Member Villegas. MS. VILLEGAS: Thank you. You know, I think it's interesting. I hear so many times up here, yeah, life happens. Change is constant. How we manage it and handle it, also investment by builders or developers or landowners, has a certain risk when you have a project there, and only so much of that can be mitigated by what we do here. But that's where the wisdom and the experience, and the understanding of the place in which this resides, I think, comes into play. You know, most of us were at the Hawaii State Association of Counties meeting that we hosted about a year ago here, and you all were there for the presentation about Kohanaiki and the development there. And one of my predecessors and mentors, Angel Pilago, wrote it into the conditions of approval that that developer paid the impact fees, built the park, put in the stop light, every single part had an impact fee that had to be completed on the frontend before they could sell or build one home on that property. And it wasn't too much for them, and they abided by it. If we hold those standards of accountability, we sit on the most priceless resource in the world, potentially. And so, holding and transitioning to that level of accountability and requirement I think is a courage that it's wise for us to take because for years it's been the assumption. We're dealing with one now. Somebody buys twenty acres, it's just assumed. I'm going to buy it and I'm going to get a zoning change. And then, I'm going to sell off a parcel to pay for my parcels — Point of Order: MS. LEE LOY: Chair, point of order. I'm wondering where this conversation is, as it relates to the discussion or what the maker of this bill is looking for. Page 1.2 PCPLUD-16 July 9, 2024 MS. VILLEGAS: Thank you for the leeway. I tend to tell things with a story and that's where I'm going with this as it relates to my district, and that's what I see this bill relating to, and prospecting and change of zone being a given, I think, is something that is part of the purpose for this kind of legislation so that we can realign the decisions that are made in planning and here on the Council to be more authentically aligned with value systems that ensure that our properties and the developments that happen are authentically in the best interest of our communities. MR. KERN: May I respond? CHR. KIERKIEWICZ: Yes. Please, Director. MR. KERN: So, Kohanaiki is an example of a project that is of higher level, or more on the higher end side of things. So, that being said across the board, does that also apply then to your affordable housing project, does that also apply to the person that's just trying to do a small family subdivision for themselves, or say the local family that's trying to do a change of zone so they can open up their grocery store or something like that? There's just no one size fits all. There's maybe different categories. So what I'm hearing is that we apply that to everybody. Any change of zone, you're paying for it. Any change of zone, there's impact fees right now all the way through at any given time because they can do that, is that true? CHR. KIERKIEWICZ: I think that's a rhetorical question. I'm not looking for a response. MS. VILLEGAS: Actually, I would like to respond because that's not what I'm saying. CHR. KIERKIEWICZ: You've yielded the floor and I'm moving on to Council Member Evans, and I'm not looking for us to get into a tit for tat at this point. Council Member Evans. MS. EVANS: Yeah. One of the recommendations from the Commission is to look at adding a sunset condition. My question has to do —I know a couple times you have said, zoning goes stale. Okay. So, stale meaning it just sits there, but so they don't have to come back to the Council and ask quote for an extension because it's just sitting there. So, I like the idea of sunset, but I just need to hear more about how that could get applied. MR. KERN: Sure. I'm going to run through that process really quickly just so can get to that stale, that zoning in limbo. So, a project comes through, it gets a change of zone approval, let's say a five-year time condition on it to do subdivision or plan approval. Time goes on, that condition isn't met, the time has Page 13 July 9, 2024 lapsed, okay. So, at that point and time, let's just say the zoning went from Ag-1, to RS-10. So, from agricultural zoning to residential zoning. The time has lapsed. They come in and they say I want to do something on my residential zoned property. We say we're sorry, your timing is lapsed, and you can no longer do that on that property. If you'd like to use your residential zoning, you need to go back through the process and get it current, which means submit your request to the Planning Department, go through the Planning Commission, make your way back to Council; as you've seen them happen, and then the Council will then potentially grant an extension on the timing. Then they say, okay great, I really don't want to do that right now. I'd just like to use it for the agricultural purpose that it was originally zoned. We say, we're sorry, your property is no longer zoned for agriculture, and you can't do that either. If you'd like to take it back to agriculture, guess what you do? You submit a request that the Planning Department then processes, it goes back to Commission, it makes it's way back to the Council to get it back to its original zoning. So, the way it's currently set up, once that timing condition goes into limbo, either way you look at it, it's around an eight -month process on the minimum to get it back to either its original zoning, which you've seen them come through, request to revert back to its original zoning, or to get it back to the new zoning in good standards, basically back under a time condition. In either case, it comes back. And so, it's tricky because it basically makes that parcel unusable once that time comes up. And that is tricky because I don't think property should necessarily be unusable unless it's really intended to be unusable, like a conservation easement or something like that. And so, that automatic reversion was a concept that came up. And I think that should be looked at a bit more. I think it gets a little bit trickier because it is an ordinance and we should probably have Corporation Counsel opine on that of how something like that would automatically revert by way of an ordinance, right? Because a change of zone is an ordinance, which is a law. So, can you have that baked in there where it like automatically reverts? I want to think that it's possible, but I think that's a legal question. Does that make sense? MS. EVANS: It does. But if you have the language in there that it sunsets. And in the ordinance, the condition is there that it will sunset if no action is taken. Of course then, that's where maybe Corporation might —because I remember there was always a, when the EIS (Environmental Impact Statement), when they say substantial. So, what's considered substantial action versus no action because let's say someone does two, you know. So, when you sunset it, it's because they're seven -eighths of the way and done. I mean, I get that. Just, you know, I like the idea of sunset, I do. But how to write it and get it, it's going to be a little tricky, but I like the idea. MR. KERN: It's easier if nothing has happened. It's harder is somebody began, is so far down the road and they get vested rights. That's where it gets much Page 14 PCPLUD-16 July 9, 2024 more complicated, if it's towards the tail end of it. Often times what we'll see is, somebody just, it doesn't line up, things happen, whatever. But they weren't able to actually get the project done or they're looking to get it done towards the tail end and then the lender will look at it and say, we're not touching that because you only have a year left on your change of zone timing. And then if that doesn't work, you know, ideally, they'd be proactive and come in, they'd ask for a time extension and go forward on that. But if doesn't, can it revert back? I think it's a possibility. I think it's better than sitting in limbo. MS. EVANS: Okay. Thank you. I yield. CHR. KIERKIEWICZ: Thank you. Okay. Third times a charm. Council Member Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Thank you. As I was listening, people were asking the questions I was thinking about and then I have this floating question. I think it really is, if we amend the bill does it have to go back to the Planning Commission or we're done, we're out, and we just proceed as business? MR. KERN: That is not my jurisdiction. MR. KANEALI`I-KLEINFELDER: Okay. CHR. KIERKIEWICZ: The Planning Commission provides us with a recommendation, and then the Council takes that into consideration, and we can incorporate their recommendations or not. But we get final say on the ordinance that's passed. MR. KANEALI`I-KLEINFELDER: Even if we do major amendments to the bill? CHR. KIERKIEWICZ: Yes. That is correct. MR. KANEALI`I-KLEINFELDER: Okay. Thank you. CHR. KIERKIEWICZ: You're welcome. Council Member Kagiwada. MS. KAGIWADA: Thank you, Chair. Just, good discussion. Doesn't sound like we're ready to really move too much on this because there's so much more to be done here. So, looking forward to learning more about what we can do and what we should do. I'm definitely in support of looking further into some of these timing issues, matrices, you know, trying to make it so that developers do have some of the community efforts that the community really wants up, you know, at the front of some of these building developments and stuff. But, yeah, it just doesn't seem like we're quite ready to move forward on this yet. Thanks. Page 15 PCPLUD-16 July 9, 2024 CHR. KIERKIEWICZ: Thank you. Before I pass it back to Council Member Inaba to postpone because it sounds like there is some work to do, Director, just thank you for your collaboration and suggestions as part of your report. I just want tick through the five things that commissions have identified and provide some insights. So, with the informed development timing, I like the idea of taking a look at the projects complexity to make that determination. But other things that kind of come to mind just based on all the different time extensions we've seen, there's the cultural and historical features. So, SHPD. I remember my first rezone application or time extension was Kaupulehu, and they were waiting for SHPD to respond for seven years. So, that has to be part of that timing matrix. I also think about whether or not there are native species that need to be preserved. So, that's part of the timing element. The requirement to put in any infrastructure, and if it's in a FEMA (Federal Emergency Management Agency) floodplain. So, those are things that just kind of came top of mind when you think about —in addition to like the base timing for a project. If there are other things that make the project a bit more complicated and required more time. I'd just like to see that as part of the matrix. Can you provide examples for exemptions to timing condition requirements? Because that was one of your recommendations in your report. It says, "Add provisions to allow exemptions from timing condition requirement." MR. KERN: Yeah. I believe that would be in the case like we were reverting back to original zoning or something that was maybe going to like an open zoning where nothing's really going to happen, then it should just stay that way. That was the concept there. CHR. KIERKIEWICZ: Okay. That was the only example? MR. KERN: That's coming to my mind at the moment, yeah. CHR. KIERKIEWICZ: Okay. If in the next couple weeks you could think of other examples, that would be really helpful as part of our deliberation. And then I'm sure you've touched on this a little bit, but I just want you to be a little bit more specific around strengthening and clarifying standard performance conditions. What more can be done to improve these conditions? MR. KERN: I think the actual performance conditions are generally right sized. It's the timing of when they get done. CHR. KIERKIEWICZ: Okay. So, this is where the sequencing would come into play? Page 1.6 July 9, 2024 MR. KERN: Or sometimes there's too —and I think it's something we need to be sensitive to. Sometimes they're too great. But an applicant feels like they don't really have anything else to say other than yes. And we've seen that with projects in upper Hilo that they had to come back through and get relief where they thought that they'd be able to kind of handle the requirements of a certain roadway or a certain improvement. But it's so great that it didn't pencil, so they come back and say, "Hey, we really can't do this." And it kind of slows things down. So, I think when you're looking at traffic, that's the big one, water, wastewater, public access, things like that, we have those in there. It's really trying to right size them and time them. CHR. KIERKIEWICZ: Okay. That makes sense. Thank you. And it sounds like you've got a good sense of how to craft the tolling language to time conditions. On the sunset piece, is your Deputy Corporation Counsel going to provide an opinion on whether or not we can achieve this through ordinance? Because I hate that, you know, once ordinances lapse, now the zoning is in limbo, right, it's stale, and can't do anything. So, again, I wonder if that can be a condition that's in there about reverting back to original zone? But I also want to be able to explore if zoning makes sense today, this rezone, that it should be good in perpetuity. But I want to make sure we have guardrails for that in our Code and that the Council will make that ultimate decision, that there can be a very grounded, methodical, formulaic even, recommendation that's provided by the Planning Department, that we take into consideration and make a determination; this zoning is good in perpetuity or if we want to sunset it. Okay. Thank you for that. MR. KERN: Makes sense and I'll ask Jean to check that out. CHR KIERKIEWICZ: Okay. Awesome. Thank you. Thanks for collaborating with Council Member Inaba. Council Member Inaba, do you have everything you need? What would you like to do? MR. INABA: Yeah. I'm just going to recap on what I'll be working on with the Planning Department, and that is an amendment for exemptions from the time requirement for those things like open or reversions, bringing a communication regarding tolling language. You know, this conversation today kind of highlighted there's support for it and I think I just want to remind my colleagues that Bill 194 did guarantee a method for an initial extension via resolution. So, you know, when we come up with this matrix and we come up with this informed decision making, it's to help us put a solid timeframe on an application. And if the applicant, for some reason, godly, ungodly, whatever it may be happens and they're not able to get it, or if an agency has it for five of the ten years, they can come and get that extension via the resolution. So, again, I don't want something on paper to not mean anything, which is my only concern with the tolling. But we Page 17 PCPLUD-16 July 9, 2024 will bring language at our next meeting that we can discuss to see how we can potentially make it work. And then lastly, that language again with the sunset condition. The other two recommendations from the Commissions, which were the matrix and the standard performance condition, those aren't necessarily things that would be inserted into the bill, but perhaps more a continued effort with the Planning Department. That would be a Planning Department led effort. So, if we have it right, I will make the motion to postpone Bill 127 to the July 23 rd committee meetings. Vote on Motion Mr. Inaba moved to postpone Bill 127 to July 23, 2024. Postpone: Seconded by Ms. Lee Loy and carried by the following (Approved) voice vote: Ayes: Committee Members Evans, Galimba, Inaba, Kagiwada, Kdneali'i-Kleinfelder, Kimball, Lee Loy, Villegas, and Chair Kierkiewicz — 9. Noes: None. Absent: None. Excused: None. CHR. KlERKIEWICZ: Thank you, Director, for being here. ADJOURN- There being no further business, Chair Kierkiewicz adjourned the meeting MENT: at 10:50 a.m. Approved: Ms. Ashley L. Kierkiewicz, Chair Policy Committee on Planning, Land Use, and Development AK/tk (Date) Page 18