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HomeMy WebLinkAboutCOM 0939.005 2022-2024SIERRACLUB HAWAII ISLAND GROUP September 3, 2024 Policy Committee on Planning, Land Use, and Development c/o Hawai'i County Council 25 Aupuni St Hilo HI 96720 J Re: Bill 181 — Testimony, Suggested Amendmenits, and Comments Aloha Madam Chair and committee members, In general, HIG supports the intent and potential legal impact of Bill 181. This testimony will be divided into the following sections: 1. Legal precedent that enables and imposes the authority of Bill 181 2. Non-compliance with the General Plan Comprehensive Review (GPCR) process since 2015 with proposed solutions 3. HIG appeal to state Office of Information Practices (OIP) to address Planning Department's refusal to provide comprehensive list of land use map changes per Requests for Government Records submitted to the Planning Department. (see attached e-mail correspondence) 4. Request for public access to historical information provided to the committee per its request at the last hearing on Bill 181. 1. Legal precedent applicable to Bill 181 The GPCR process detailed in the current General Plan was originally an amendment adopted by Ordinance 2007-070. After 1989 GPCR process resulted in the adoption of the current GP, the county council passed ORD 07-70. The legislative intent was to create a clearly defined GPCR process and timeline for the next GPCR. Using simple logic, ORD 07-70 did not envision a GPCR process in which the Planning Director would propose a gut -and -replace amendment of the entire General Plan. We know this because the amendments recommended by resolutions of the 2015 county council were based upon the current General Plan. Once the gut -and -replace draft GP2040 was submitted as the recommendation of the Planning Director, the amendments proposed by the 2015 county council became moot. Not only did they become moot, but no Planning Director has submitted the recommendations on the amendments/resolutions required by the GPCR process. In addition, the county administration and county council are now in a legal limbo in which the GPCR process has not been followed and yet the county council is being told it must comply with the following language: PO Box 11,37 �­Ido, i-fl 96721-1137 1 hawaiiislandsierraclub@gmail.com sien-Adu[)hip,.ovg " However, any County Council change to a proposed amendment which substantially changes the general intent or subject matter of the proposed amendment, such as newly adding or deleting a goal, policy, or course of action, or standard, or a map amendment which changes a land use designation of a parcel, shall be considered an entirely new proposed amendment. Such a new amendment proposed at this stage shall not be processed as part of the ongoing comprehensive review, but shall be processed as a new interim amendment pursuant to Section 16.2." If the Planning Director's current schedule is imposed, the committee and the full county council will not have agendized the draft GP2045 for purposes of making council -initiated amendments to be considered by the planning commission along with prerequisite Planning Director recommendation. Further, the planning commissions and the county council would be prohibited from recommending changes to objectives, standards, goals, policies, and/or courses of action. This would be an absurd result. HIG believes the following legal concepts may be applied to the legal situation in which the county council and current administration find themselves, 1) the "clear statement rule", 2) the "soft plain language rule", and the "Doctrine of Absurdity". (Source: W(kipedia) "Clear statement rule When a statute may be interpreted to abridge long -held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it. This rule is based on the assumption that the legislature would not make major changes in a vague or unclear way, and to ensure that voters are able to hold the appropriate legislators responsible for the modification. Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, aka "Last in Time") When two statutes conflict, the one enacted last prevails." "Soft plain meaning rule Justices normally impose an absurdity limit on this rule, which states that a statute cannot be interpreted literally if it would lead to an absurd result. In the US Supreme Court Chung Fook v. White (1924) marked the beginning of the looser American Rule that the intent of the law was more important than its text. This is sometimes termed the soft plain meaning rule, where the statute is interpreted according to the ordinary meaning of the language, unless the result would be cruel or absurd. For example, see Rector, Holy Trinity Church v. United States, 143 U.S. 457 (1892)." "The Doctrine of Absurdity - Avoiding absurdity For jurisprudence in the United States, "an absurdity is not mere oddity. The absurdity bar is high, as it should be. The result must be preposterous, one that 'no reasonable person could intend"'. 591r6O1 Moreover, the avoidance applies only when "it is quite impossible that Congress could have intended the result ... and where the alleged absurdity is so clear as to be obvious to most anyone".611 "To justify a departure from the letter of the law upon that ground, the absurdity must be so gross as to shock the general moral or common sense",v with an outcome "so contrary to perceived social values that Congress could not have 'intended' it".16-3J 59. Texas Brine Co. LLC v. American Arbitration Association, 955 F.3d 482, 486 (2020). 60. " Scalia, Antonin; Garner, Bryan (2012). Reading Law: the interpretation of legal texts. Thomson Reuters. p. 237. 61. ^ Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States EPA, 846 F.3d 492, 517 (2d Cir. 2017) (quoting Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 470-71 (1989) (Kennedy, J., concurring in the judgment)). 62. ^ Crooks v. Harrelson, 282 U.S. 55, 60 (1930). 63. ^ John F Manning, 'The absurdity doctrine' (2003) 116 Hary L Rev 2387, 2390." HIG believes that Bill 181 creates the opportunity for this council to apply the "clear statement rule". "When a statute may be interpreted to abridge long -held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it." Therefore, Bill 181 and any amendments to incorporate the solutions detailed below would make a clear to the legislation intent of ORD 07-070 and would avoid the absurd result that is currently facing with regard to the GPCR. 2. Non-compliance and proposed solutions Non-compliance with General Plan Section 16. 1 (c)(2)(B) and (c): the county council has not agendized the draft General Plan for the express purpose of review, comment, and make suggested amendments in the form of resolutions. The Windward and Leeward planning commissions have not agendized the draft General Plan for the express purpose of review, comment, and make suggested amendments. Solution: Planning Department changes the announced GPCR process to allow for the county council and two planning commissions to review the draft GP2045 for recommended resolutions or amendments, as appropriate. Non-compliance with Section 16.1(c)(4): Participants in the "public workshops" held August 28th and August 29th reported the workshop was a presentation. Participants were asked to submit written questions to the moderator. 4 short 5-10 minutes question -and -answer periods were conducted during the presentation. Even though most of the written questions submitted to the moderator by the participants had not been asked -and -answered, the meeting was ended l/2 hour early in Kona. All participants contacted by HIG did not consider the meetings to be workshops. Solution: The county council and general public made it clear to the Planning Department that the public workshops. A general discussion of what constitutes a workshop is provided at the end of this testimony. Non-compliance with Section 16.1(5): The public presentations at the August 28th and 29th meetings did not constitute workshops. Public has not been provided with all information needed to make informed comments. The most critical and necessary is a list of the land use maps changes, their location, and the property owners impacted. Solution: The Planning Department re -schedules and reformat so that true public workshops are held at a future date in all island districts. Planning complies with HIG's Request for Government Records. Non-compliance with Section 16.1(6): The county council has not agendized the draft GP2045 for the explicit purpose of making recommendations for amendments through resolution. Not only has the council made such recommendations, but no Planning Director has made a recommendation on the council -initiated amendments made by the 2015 county council. Solution: The county council agendizes the draft GP2045 for the express purpose of making council -initiated recommended amendment via resolutions. These would then be submitted to the planning commissions with the Director's recommendation. If these solutions are implement, then the GPCR process would be back on track from Section 1.6.1(7)-(10). OIP appeal On June 20th, HIG sent a Request for Government Records for a compenhensive list of land use map changes between the current General Plan and September 2023 draft General Plan 2045 (GP2045). The Planning Department has sent a request to OIP to delay the date on which they must produce these records until October 4, 2024, over three months after the original request. HIG is opposing this request as October 4th is after the public comment period is currently scheduled to end on September 26t1, Public Access to Information The Sierra Club of Hawai'i, Hawaii Island Group (HIG) assumes the committee's request has been honored and that information has been provided to the committee. However, that information has not been made available to the public, so HIG is requesting that information be sent to all members of the public who have submitted their e-mail addresses to the Planning Department as part of the GPCR process. Mahalo for this opportunity to testify A workshop is a structured and interactive session designed to create an environment for meaningful work and to guide a group through a process that will lead to great outcomes. Workshops are designed to engage participants and foster their active involvement in the process. They are not training sessions where one person teaches everyone else in the room. Nor are they meetings where people give one another updates but rarely collaborate on a task with a structured approach. Workshops typically involve hands-on activities, facilitation techniques, group discussions, simulations, and collaborative exercises, which allow participants to explore, ideate, and participate in achieving their desired outcomes. Whether that's aligning on a perfect solution to a tricky problem or improving their skills experientially. Workshops can cover almost any topic you can think of — whether it be a creative word workshop for school kids or a strategic planning session for company executives. The key elements of these workshops are the same: they seek to create a dynamic environment that encourages participants to learn from each other, consider their own solutions, and apply the gained knowledge both inside the workshop and in the wider world. Another aspect that unites all workshops is that they are structured and designed in order to help a group achieve a desired outcome. A workshop facilitator will often plan a workshop as a sequence of activities with careful attention to timing, flow and an optimal group dynamic. ��� ~N ���r������ MokuLoa Hawaii Island Sierra Club <hovvaiiislands ierrodub@gmoil.com> K0KPA request #1: General Plan Comprehensive Review map changes (PK-INT-2024~ 008002) Smeoyageo Planning Internet Mail <planning@howaiicounty.gov> 11 July 2024ed 1515 To: yNokuLoa Hawaii Island Sierra Club <hawaiiio|andoionooub@gmail. oom> Cc: "Kom.Zendo^^Zondu.Kern @hewaiioounty.guv>."Dornow.Jeff' ^JefOarrow@howaiinounty.gnv~."CampbeU.Jean K" "JeenK.Cam pbe|l@howoiinounty.gov^.^Ley RocheUe^^Raohd|e.Ley@hawoiicounty.gnv>.Planning General Plan Aloha Mr. Flaherty, Please see attached U|PAnotice torequester dated O7-11'2O24(PL-|NT-2O24-O08O02).*No hard copy tmfollow* Mahalo. County ofHawaii, Planning Department 101 Pauahi Street, Suite 3 Hilo, H|@672O (8O8)8M1-8288|Email: p|enning@havvniicounhy.gov From: ptannk12@onnaiioonnxptanok12@mnnaiioorn> on Behalf OfMokuLoa Hawaii Island Sierra Club Gent: Sunday, June 3O'2OZ412:16PK4 To: Planning General P|an<genera|p|an@havveiioounty.Qou^ Cc: Planning Internet Mail <planning@hawaiicounty.gov>; Kern, Zendo <Zendo.Kem@hawaiicounty.gov>; Darrow, Jeff <Jeff.[}orrovv@havvoiicuunty.gov>;Campbell, Jean K<JeenK.CannpbeU@havvaiicounty.gov>; Vip@hovvmiigVv;Sullivan, Kevin <RevinSuUivan@havvaiioounb/.gov> Subject: Re: UIPA request #1: General Plan Comprehensive Review map changes Aloha, There has been a misunderstanding with regard to the records and waiver of fees request submitted to the Hawai'i County Planning Department on June 19, 2024. The June 19threquests donot relate hoany draft General Plan which may bereleased inthe future bythe Department. The June 19th requests relate to the draft "General Plan 2045" released to the general public in September 2023. The records requested onJune 10hdoinfact exist because the draft GP2045could not have been prepared and released bo the general public without the records requested having been produced prior to its release. In order to correct this misunderstanding and clarify the records request, please see the attached amended records request and request for waiver of fees. Chuck Flaherty, Chair OnMon, 24Jun 2O24et13:43.Planning General Plan <genere|p|an@howaiioounty.guv> wrote: Aloha Chuck, Thank you for the attached request for government records. VVeare still inprocess ofreviewing and incorporating the public comments from April 1,20%4,and preparing the draft documents, maps, and support information for the next public release onJuly 29,3O%4. VVethereby cannot meet this request within 10days. Per the attached, vve will make available the information you requested on or before August 15, 2024. Thank you for your patience and understanding while we prepare for the next Draft General Plan release. Mohab, April From: ptenoh12@kgnnaiLconn<phanoh12@onnaiicunn> OnBehalf 0f MokuLoa Hawaii Island Sierra Club Sent: Thursday, June 20,2O249:lOAN1 To: Planning Internet Mail xp|anning@havvaiinounhy.gov> Subject: U|k4request #1: General Plan Comprehensive Review map changes Aloha. Please see attached Request for Access huGovernment Record. Meho|n. Chuck Flaherty Chair MokuUoa (HawaiiIsland)Group, Sierra Club Wework hard to advance SierraClub's mission to explore, enjoy and protect the wild places of the earth; to practice and promote the responsible use ofthe medh'secosystems and resources; toeducate and enlist humanity bmprotect Moku Loa (Hawaii Island) Group, Sierra Club We work hard to advance Sierra Club's mission to explore, enjoy, and protect the wild places of the earth; to practice and promote the responsible use of the earth's ecosystems and resources; to educate and enlist humanity to protect and restore the quality of the natural and human environment; and to use all lawful means to carry out these objectives. 2 attachments 2024-06-30 PL-INT-2024-008002 Amended UIPA Request from Moku Loa Hawaii Island Sierra Club.pdf 2647K ., 2024-07-11 PL-INT-2024-0080002 UIPA Notice to Requester.pdf 2905K Moku Loa Hawaii Island Sierra Club <hawaiiislandsierraclub@gmail. com> 20 July 2024 at 15:44 To: Cory Harden <333cory@gmail.com>, Debbie Ward <cordylinecolor@gmail.com> Aloha Cory and Debbie, I'm not sure how to proceed given the Planning Department is saying that there is no list of map changes between the existing General Plan LUPAG map and the draft GP2045 Land Use map released to the public on September 18, 2023. It is really shocking, quite frankly, and brings into question the whole GP comprehensive review process. Thoughts? Chuck [Quoted text hidden] 2 attachments 2024-06-30 PL-INT-2024-008002 Amended UIPA Request from Moku Loa Hawaii Island Sierra Club.pdf 2647K 2024-07-11 PL-INT-2024-0080002 UIPA Notice to Requester.pdf 2905K Cory Harden <333cory@gmail.com> 20 July 2024 at 16:07 To: Moku Loa Hawaii Island Sierra Club <hawaiiislandsierraclub@gmail.com> Cc: Debbie Ward <cordylinecolor@gmail.com> So at first they said they would grant the request, then they changed their mind and said no? Have they provided this kind of info in previous Gen Plan updates? I guess you add their failure to document their actions to your testimony on Bill 181. BTW The task of doing Gen Plan updates seems to be so huge it's impossible to do in any reasonable time frame. Perhaps the Gen Plan should be less specific and CDP ACs should develop the specifics with (adequate!) support from Planning. Cory Sent from my iPhone [Quoted text hidden] <2024-06-30 PL-INT-2024-008002 Amended UIPA Request from Moku Loa Hawaii Island Sierra Club.pdf> <2024-07-11 PL-INT-2024-0080002 UIPA Notice to Requester.pdf> Cory <333cory@gmail.com> 20 July 2024 at 17:49 To: Moku Loa Hawaii Island Sierra Club <hawaiiislandsierraclub@gmail.com> Cc: Debbie Ward <cordylinecolor@gmail.com> Find a few map changes that concern you and ask the Councilmember for that district to ask Zendo why they made the change. [Quoted text hidden] Moku Loa Hawaii Island Sierra Club <hawaiiislandsierraclub@gmail. com> 24 July 2024 at 15:07 To: oip@hawaii.gov Cc: Planning Internet Mail <planning@hawaiicounty.gov> Aloha, The Hawai'i county Planning Department has again refused to provide a list of changes to the current General Plan Land Use Allocation Guide Map to the draft Genera[ Plan Land Use map released to the public on September 18, 2023. While the additional information being requested, such the reason for the changes and the sources of information used to justify the changes, may require a summary and/or compilation of records, the list of map changes most certainly does exist and is readily available. Requester does not accept the Planning Department's representation that a list of map changes does not exist since the changes between the two maps are contained within a ArcGIS software. However, this software requires members of the general public to "seek -and -find" to find map changes using a complicated "swipe" tool. Therefore, it is effectively impossible for any member of the general public to identify all changes between the map without investing hours and hours of time and, even then, not having reasonable assurance all changes have been identified. The general public has been asking for a lists of map changes in public meetings and in comments submitted to the Planning Department since September 2023, yet the Planning Department refuses to provide this record. Can OIP assist the Sierra Club Hawai'i Island Group in obtaining the list of map changes between the current LUPAG map and the draft Land Use map? Mahalo, Chuck Flaherty, Chair ---------- Forwarded message --------- From: Planning Internet Mail <planning@hawaiicounty.gov> Date: Thu, 11 Jul 2024 at 15:16 Subject: UIPA request #1: General Plan Comprehensive Review map changes (PL-INT-2024-008002) To: Moku Loa Hawaii Island Sierra Club <hawaiiislandsierraclub@gmail. com> Cc: Kern, Zendo <Zendo.Kern@hawaiicounty.gov>, Darrow, Jeff <Jeff.Darrow@hawaiicounty.gov>, Campbell, Jean K <JeanK.Campbell@hawaiicounty.gov>, Ley, Rachelle<Rachelle.Ley@hawaiicounty.gov>, Planning Genera[ Plan <generalplan@hawaiicounty.gov> [Quoted text hidden] [Quoted text hidden] 2 attachments „ 2024-06-30 PL-INT-2024-008002 Amended UIPA Request from Moku Loa Hawaii Island Sierra Club.pdf 2647K a, 2024-07-11 PL-INT-2024-0080002 UIPA Notice to Requester.pdf 2905K Moku Loa Hawaii Island Sierra Club <hawaiiislandsierraclub@gmail.com> 1 August 2024 at 13:28 Draft To: oip@hawaii.gov Aloha, 1 received OIP's e-mail to me stating that OIP received ---------- Forwarded message --------- From: Planning Internet Mail <planning@hawaiicounty.gov> Date: Thu, 11 Jul 2024 at 15:16 Subject-, UIPA request #1:General Plan Comprehensive Review map changes (PL-|NT-2O24'OU80U2) To: Moku Loa Hawaii Island Sierra Club <hawaiiislandsierraclub@gmail.com> Co: Kern, Zendo ^Zendo.Kem@haweiicnunty.gov^. Darrow, Jeff <JefDernow@hawaiionunty.gnv>. Campbell, Jean K <JeenK.CempbeU@hawaiicoun!y.gov`.Ley, RaoheUe<RanheUe.Ley@hawniicuunty.gov^.Planning General Plan <Qenena|p|an@hawmiicounty.guv~ [Quoted text hidden] [Quoted text hidden) 2attachmnantm �� 2O24-8G-3DPL1NT'3O24-088U82 AmnendmdUVRARequest �ommM8okuLoa Hawaii Island Sierra C|ub'pdf �� 2S47K 2O�4 D7 11 PL�NT-���4 DO8ODO2 U|PAN Notice to� �e df ' - - o oo aqu�� �p �� 29O5% G.l Moku Loa Hawaii Island Sierra Club < hawa i i islands ierraclu b@gma il.com> R�^: FW: Notice of Appeal from Denial of Access to General Records (KUAPPEAL 25- 02) 1 message Chuck Flaherty <ptanok12@Qmoiinom> 23August 2O24at17:58 To: ''Guvpvnnont.April" <4ph|.Surpn*nent@hawoiicounty.gov^ Cc: O|P<oip@hawoii.gov>.''Korn.Zendo^<Zendo.Kann@havveiioounb/.gov>."Darvow(Jeff' xJef[Donow@howmiioounb/.gov>."Loy.RonhoUa"^ReoheUo.Lny@hawaiinounty.Qnv>."CempboU.Jean K" xJaanK.Cam pbeU@hawaiioounty.gnv>.''DeVera.Ashley" <Auh|eyDeVero@hawaiinounh/.gnv>. "heweiiia|ondoierrao|ub@gmaiinom''<hawaiiio|anduierrmo|ub@gmaiionm> Aloha Ms. N1aumeu. It has been 46 business days, over nine weeks, since the amended Request for Government Record was submitted to the Planning Department. As important, if not more importantly, members of the general public have been requesting this information through written comments to the Planning Department and verbally at public workshops and meetings during the General Plan Comprehensive Review. Despite this fact, the Planning Department has refused andoondinueotoref oetnprovidedhio information. HIG believes the Planning Department could not have completed the draft General Plan 2045 without having produced this information. The Planning Department responded to the amended June 30th request that it could not provide all of the information requested until August 15.2O24. Today, August 23, 2024, 46 business days, nine weeks, following the amended request, the Planning Department sent a response that not only does not provide the information requested, but is requiring an additional 30 business days, 6 wmeku, to provide the information. This iaunacceptable because ofthe following reasons: 1. The Planning Department started a clock ticking on July 29th for the public comment period on the latest draft General Plan. 2. The requested information is needed to enable the public to easily identify the specific changes between the existing General Plan land use maps and the draft General Plan 2O45land use maps. 3. The requested information is needed to enable members of the public to be adequately informed of the proposed land use map changes in order to fully participate and comment on the proposed changes. 4. The Planning Department has refused to provide the requested information since the first draft of General Plan 2045 was released onSeptember 18.2023.almost one year ago. 5. The Planning Department today issued a schedule for public workshops (8/28-9/5/24) on the draft General Plan 2045 and the information is needed to enable members of the public to be adequately informed, participate, and comment in the public workshops. 8. The schedule issued by the Planning Department ends the public comment period on September 26, 2024, 7. The Planning Department is now requesting the OIP to allow an additional 30 business days, six weeks, to October 4, 2O24before it finally provides information that it already has had in its possession for one year now, D. October 4, 2024 is long after the Sept. 6th public comment period has ended and is also after 5 of 6 island -wide community meetings will have been held. For these reasons, H|8finds nojustification for further delay. N1eho|o. Chuck Flaherty, Chair Aloha Ms. Maumau, This was intended to be sent on Thursday, August 15th, and I had clicked send, but it clearly did not go. Deep apologies for the unintended delay. We are in receipt of the appeal (U Appeal 25-02) and appreciate the instructions you provided on August 2, 2024. We are working to provide additional records that may help to satisfy this appeal. However, due to the voluminous nature of the data, we request a continuance of an additional 30 business days to formally respond. In the meantime, we have just released the report on Technical Methodology for General Plan Land Use (2024) as it relates to the land use maps. Other reports have been available and provided in the Reports Folder linked below. • Technical Methodology for General Plan Land Use (2024): https://records.hawaiicounty. gov/weblink/1 /edoc/1 34458/Sce nario%20 Plan n ing%20-% 20Trend%2OScenario%20%2OLand%2OUse%20AIlocation%2OTechnical%2OReport%20-% 20Placeways%20(2016).pdf Thank you for your time and consideration. Mahalo, April April J. Surprenant, AICP Manager of Long Range Planning & Board of Appeals Hawaii County Planning Department 101 PaUahj Street, Suite 3 Hilo, HI 96720 808-961-812S www.planning,hawaiicounty.gov University of Hawaii Hilo — Planning Certificate From: D|P<oip@hawax.gov> Sent Friday, August 2,Z02412:Z5PKx To: Kern, Zendn<Zcndn.xern@hawaiicovnu^gnv> Subject: Re: Notice of Appeal from Denial of Access to General Records (L1 APPEAL 25-02) Dear Mr. Kern: Attached is u letter dated August 2, 2024 from the Office of Information Practices regarding a request for assistance we received from Mr. Chuck Flaherty. Also attached are the Appeal Proucdncam and Responsibilities of the parties, Mr. F|oberty's request to DIP and his uamd request to PLAN-B. Please contact our office ifyou have difficulty opening the attachments. Thank you, Office ofInformation Practices State o[Huvvuili No. \ Capitol District Building 250S. Hotel Street, #1O7 HDno|u|u, H| 96813 Ph: (8U8)586-l40U Facsimile: (0O8)586-l4|2 Emoi|:oip(�huvvuiigov