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HomeMy WebLinkAboutCOM 0939.007 2022-2024Mitchell D. Roth Mayor Elizabeth A. Strance Corporation Counsel J S. Yoshimoto Assistant Corporation Counsel COUNTY OF HAWAM OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 Hilo, Hawai'i 96720 o Phone (808) 961-8251 Fax (808) 961-8622 October 1, 2024 Via Hand Delivery Heather Kimball, Chair Hawaii County Council and Hawaii County Council Members :Y 25 Aupuni Street Hilo, HI 96720 Dear Chair Kimball and Council Members: Re: Bill 181: General Plan Amendments — Council Request for Legislative History During previous consideration of Bill 181 before the Policy Committee on Planning, Land Use, and Development Committee (PCPLUD) this body requested legislative history relative to prior changes to the general plan amendment process as it might inform council consideration of Bill 181. This bill seeks to amend Hawaii County Code, Chapter 16 to add procedures for amending the general plan. rIIIIIIIIIIIII �- � FWAI I The current county general plan was submitted to council on January 16, 2002, as Bill 163. Three years later, on February 2, 2005, the Council passed draft six which became Ordinance 2005-25, effective February 9, 2005 ("Current General Plan"). The Current General Plan is not codified in the Hawaii County Code, though it is referenced in Hawaii County Code, Chapter 16. As has been the case with prior general plans, the Current General Plan includes the amendment procedures in the ordinance itself. The comprehensive general plan review underway commenced in February 2015. The Current General Plan prohibits consideration of interim amendments once the comprehensive review has started. Bill 181 was initiated, in part, over concerns about where to find the general plan review procedures and whether the interim general plan amendments contained in Hawaii County is an Equal Opportunity Employer and Provider Conrinri. No.. Ref. To: V I LUD Ref. Date ACT' - 2 2024 Heather Kimball, Chair Hawaii County Council and Hawaii County Council Members October 1, 2024 Page 2 of 12 Ordinance 2007-70 ("2007 Amendment") limited council authority to make substantive amendments to a general plan bill when submitted. The legislative history to the 2007 Amendment does not reflect an intention by a prior council to limit the authority of subsequent councils to amend the general plan. Rather, the amendment was intended to 1) better identify the types of amendments requiring Planning Commission review, and 11) streamline the amendment process. Although Bill 181 does not reference the Current General Plan, adoption of the bill will amend the general plan by implication even though the general plan prohibits interim amendments once the comprehensive review has commenced. 11. DISCUSSION A. Legual Framework for General Plan Amendments The County general planning process is governed by both State and County law. For example, Hawaii Revised Statutes ("HRS") 46-4 requires that "[z]oning in all counties shall be accomplished within the framework of a long-range, comprehensive general plan prepared or being prepared to guide the overall future development of the county." In addition, HRS §226-58 includes directions for the preparation of general plans. For example, it mandates input from state and county agencies as well as the public and goes on to describe content which must be included in a general plan. Further, it directs that "[c]ounty general plans shall be formulated on the basis of sound rationale, data, analyses, and input from state and county agencies and the general public, and contain objectives and policies as required by the charter of each county." HRS §226-58. The Hawaii County Charter ("Charter") §3-15 assigns Council responsibility for adopting the general plan and includes minimum content requirements. The Charter requires, among other things, that the general plan be adopted by ordinance and permits either the Council or the Planning Director to initiate amendments. Council authority, however, is tempered by Charter required Planning Director and Planning Commissions' duties and functions. The Charter directs the Planning Director to "[p]repare a general plan, implementation plans and any amendments thereto in accordance with Section 3-15." Charter §6-7.2(b)(2). In addition, the Planning Commissions duties and functions include "[fleview the general plan, its amendments and other plans and modifications thereof and transmit such plans with recommendations thereon through the Mayor to the Council for consideration and action." Charter §6-7.5. Where the Charter provides special procedures that are applicable to the general plan, the Council may not make additions or changes Heather Kimball, Chair Hawaii County Council and Hawaii County Council Members October 1, 2024 Page 3 of 12 without following those specified procedures. Dalton v. City & County of Honolulu, 51 Hawai'i 400, 616, 462 P.2d 199, 209 (1960). Bill 181 amends Chapter 16 of the Hawaii County Code by adding general plan amendment procedures to the County Code. The bill both codifies and changes the amendment procedures described in the uncodified Current General Plan. The Charter does not distinguish between ordinances which are codified and those which are not. Rather, "[e]very legislative act of the council shall be by ordinance." Charter §3-8. Further "[o]rdinances shall be initiated as bills". Charter §3-10. In other words, the Charter does not make a distinction between codified and uncodified ordinances.' B. The Legislative History of the Current General Plan, as amended Supports Council Authority to Amend a General Plan Bill The County's first general plan was adopted on December 15, 1971 (Ordinance 439)2. The second comprehensive general plan was adopted by the Council on February 1, 1989 (Ordinance 89-142). It included a requirement that the Planning Director initiate a comprehensive review within 45 days after the lapse of ten years from the adoption of the prior plan — before March 15, 19993. The comprehensive review timely commenced. A proposed new general plan was submitted to council on January 16, 20024 and eventually passed on February 2, 20055 becoming Ordinance 2005-25 ("Current General Plan"). The comprehensive review now under way is to amend the Current General Plan, as amended. As with prior general plans, the Current General Plan includes amendment procedures within the ordinance itsel£6 Also consistent with prior plans, it 1 The County of Hawai'i follows the Hawaii Legislative Drafting Manual. It states that the "fact that an Act (or any part thereof) is not codified in the Hawaii Revised Statutes does not make that Act or provision any less a 'statute' or'law'. Hawai'i Legislative Drafting Manua (Eleventh Edition) at p. 132. See also, 5 Municipal Corporations §15:12 (3rd Edition). 2 Between 1960 and 1963 a series of regional plans were completed and adopted as a general plan by Ordinance 317 in July 1965. It did not include the Ka'u district. The 1971 General Plan was the first enacted following ratification of the County Charter in 1968. See, proposed 2005 General Plan, "History of the Plan". 3 The Planning Department started early with public hearings commencing in February 1998. See, Communication 0673.001 1996-1998 Term. 4 Letter dated January 16, 2002, from Mayor Kim to County Council transmitting Planning Commission's letter and enclosures regarding its review of the proposed plan together with the General Plan revision document. Communication 0493.000, 2000-2002 Term. The proposed revisions became Bill 163. Ultimately, Draft 6 was passed. 5 The bill was effective February 9, 2005. 6 Draft 3 of Bill 163 sought to pull the amendment process out of the ordinance and codify it via separate legislation. It was withdrawn. The reason for the withdrawal is not clear. Of some interest, however, the 2007 amendments renumbered the amendments and assigned them numbers 16.1 and 16.2 which correspond with the Hawaii County Code chapter which addresses the general plan. Heather Kimball, Chair Hawaii County Council and Hawaii County Council Members October 1, 2024 Page 4 of 12 describes two types of amendment procedures: i) comprehensive review, and 11) interim amendments. Interim amendment procedures are those "other than during the comprehensive review."7 Following enactment of the Current General Plan, two interim amendments were adopted which affected the amendment procedures. The first, Ordinance 2007-70 ('2007 Amendment"), was designed to clarify and streamline the interim amendment procedure. The second, Ordinance 2014-87 ('2014 Amendment"), changed how the general plan review was commenced. Under the original Ordinance 2005-25, the comprehensive review commenced ten years after the date the prior general plan was adopted with the Planning Director's presentation of proposed amendments to the Council. The 2014 Amendment eliminated the requirement that the Planning Director submit proposed amendments at the commencement of the comprehensive review period. The 2007 Amendment was born of council frustration with the interim amendment process. Resolution 430-06 proposed specific changes to the amendment process and tasked the Planning Director to "study ambiguous provisions, conflicting and contradictory language and reasonable aspects of timing relating to procedures."8 Draft 1 of Resolution 430-06 contained the following recitations: WHEREAS, during a recent planning director -initiated Interim Amendment process, the county council discovered that an "interpretation" of subsection 16.2(2)(f) above does not specifically allow the county council to modify, delete, or add changes to Interim Amendments as the council is explicitly permitted to do in the comprehensive review process of the Hawaii County General Plan; and WHEREAS, in order to clarify this "interpretation," the county council also learned that, if it initiated an Interim Amendment pursuant to subsection 16.2(1) above, the planning director does not have to prepare a bill for an ordinance if the director does not recommend approval of the amendment following a feasibility study conducted by the director; and WHEREAS, these "Interpretations" of the Interim Amendment procedures of the Hawaii County General Plan, as written, fundamentally violate the spirit and intent of the Hawaii County Charter which permits the county council to initiate amendments to 7 Ordinance 2005-025 at pg 336. 8 Report of Planning Committee, PC Report No. 25, dated April 3, 2007. Heather Kimball, Chair Hawaii County Council and Hawaii County Council Members October 1, 2024 Page 5 of 12 the general plan, pursuant to a charter amendment approved by voters in 1979; and WHEREAS, the Interim Amendment procedures of the Hawaii County General Plan, as written, removes the authority of the legislative branch to reasonably formulate public policy by placing an inordinate amount of authority in the executive branch, whereby the planning director can block a council -initiated amendment to which the director does not agree; and WHEREAS, the county council wishes to rectify the imbalance and contradictions in these Interim Amendment procedures by initiating an amendment to Section 16.2 of the Hawaii County General Plan. The Planning Director objected to the above recitations contained in Draft I and they were removed.9 The Council's proposed bill required the Planning Department and the Planning Commission to complete their respective reviews and forward their recommendations to Council within 90-days of receipt of the proposed amendment. The Planning Department and the Planning Commission, however, felt the 90-day timeframe proposed by Council was too short and recommended against adoption of the Council bill. There was also a concern raised about how quickly an amendment should be considered and whether it was contrary to the idea of long-term planning. Eventually, the commission recommended adoption of the Planning Director - initiated bill that became the 2007 Amendment.10 Once presented to Council, Council Member Higa highlighted his belief that the modified bill was "more efficient and affords council members, especially new council members, an opportunity to bring forth amendments and complete the process before his or her council term expired." Report of the Committee on Planning, April 3, 2007, Report 25, Comm. No. 181.1/Bill No. 75. Under the prior procedure, an amendment took approximately seven months to wind its way through the Planning Director and Planning Commission before returning to Council. 9 "The draft resolution, however, contains statements in the 'Whereas' clauses that are not correct. These are referred to as 'interpretations' of the General Plan process that are causing concern by the Council. They are not the Planning Department's interpretations of the process, nor are the Corporation Counsel's interpretations. See, Letter to council members, From Stacy K. Higa Council Chair, dated 8/24/2006 Re: Resolution 430-06, Draft 2, Comm. 1021.006 2004-2006 Term 10 The bill includes a 150 day commission review period. Heather Kimball, Chair Hawaii County Council and Hawaii County Council Members October 1, 2024 Page 6 of 12 Section 16.1 of the 2007 Amendment also added a provision affecting the procedure to process amendments during the comprehensive general plan review. It states: The County Council may make modifications, deletions or additions to the proposed amendments as it may deem necessary within the general intent and subject matter of the proposed amendments in accordance with its rules of procedure. 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. (Emphasis added.) The highlighted language is part of the motivation for Bill 181 and has raised concerns about whether it limits the authority of the current Council to make substantive amendments to a bill submitted to it as part of the comprehensive review. Review of the 2007 Amendment legislative history, however, does not support such an interpretation. Rather, it reflects an intent to align the Council -initiated amendment process whether made during the comprehensive review or after. It also reflects an attempt to i) expedite review through the interim amendment procedure, and ii) clarify the types of amendments that must be submitted to the Planning Commission for review pursuant to current Charter §6-7.5. For example, the Planning Commission summarized the revisions to 16:1 (Comprehensive Review) as follows: • Makes clear the Planning Director must send a set of comprehensive amendments to Council within ten (10) years after the adoption of the previous comprehensive review. "Thus, the entire comprehensive review process, except for County Council action, must be completed by February of 2015. The Planning Director will have to work backwards to schedule all the necessary events." • Permits Council to propose amendments at the beginning of the comprehensive review process, by resolution. "The comprehensive review should result in a package of amendments that go through the process together, rather than having various amendments dribble in during the process." Heather Kimball, Chair Hawaii County Council and Hawaii County Council Members October 1, 2024 Page 7 of 12 • "It will allow the Council to make modifications when the amendments reach them, but any changes that create a new amendment will be required to go through the same process as an interim amendment. The Council would have some flexibility to amend the language of proposed changes, but the County Charter requires that the Planning Director and the Planning Commission review all proposed General Plan amendments. This is found in the County Charter under Section 6-4.2(b) for the Planning Director, and under Section 6-4.3(c) for the Planning Commission. The types of changes that constitute a new amendment are listed in the proposed ordinance. This is not a comprehensive list, but it is meant to give examples of what would constitute a new amendment. An analysis will have to be done on a case -by -case basis if changes are proposed at the Council to determine if the changes are creating a new amendment." Planning Commission Minutes, September 6, 2000. 1998-2000 Term. (Emphasis added). In addition, during a March 2, 2007 planning commission meeting, Planning Director, Christopher Yuen, described the background and intent of the proposed amendments as follows: County Council in the latter part of last year initiated a bill to change the procedure for amending the General Plan. The procedure for amending the General Plan itself is a part of the General Plan. So this is an amendment to the General Plan. The basic concern expressed by the Council was that it took too if long -- especially if the Council initiated a change to the General Plan, initiated an amendment -- because of the timeframe for the Planning Director and Planning Commission to review, that it would take up to seven months from the time the Council wanted to move on something to the time when they actually got it back and could vote on it. So the Council initiated this bill. So let me just walk through the changes that are proposed in this bill from the current procedure... First change deals with the comprehensive review... The current language sounds like the Planning Director initiates the comprehensive review ten years after the last General Plan has been enacted. Because the comprehensive review takes a couple of years from the time public hearings, Planning Director formulation, going up to Council, this results in the General Plan getting revised actually every 12 years or so, best case scenario. So we wanted to change it. So it's said that the Planning Director has Heather Kimball, Chair Hawaii County Council and Hawaii County Council Members October 1, 2024 Page 8 of 12 to, it doesn't give a time for the Planning Director to initiate the comprehensive review, rather it gives the Planning Director a deadline for getting the amendments to the Council ten years from the time of the last enactment of the comprehensive review. So the Planning Director has to plan a little bit and work backwards from that date and figure out all the timeframes. And what it is going to result is, is the comprehensive review is going to start sometime in probably 2013 and the package of the revised General Plan be forwarded to the Council in February 2015. That's how that would work. The next meaningful change is that this gives an opportunity for the County Council to put amendments into the comprehensive review. The current process says that the Council can initiate interim amendments, but the Council cannot initiate amendments during the comprehensive review. And this can be a little frustrating for the County Council because there's this comprehensive review going on for which they had no opportunity to directly submit an amendment. So this gives the County Council notice that the comprehensive review... Then there's a change on the next page, on the top of the next page, that's meant to clarify the extent of changes that the County Council can make when these amendments get up to the County Council. And the basic idea here is that the Charter says that all General Plan changes are supposed to be reviewed by the Planning Commission. Now what happens at the County Council, clearly the County Council can make wording changes, they could scale back the extent of the map change from, say, covering 100 acres to covering 50 acres, because those are not new amendments or new changes. But we wanted to really give guidance to the scope of changes that can be made at the County Council and make it clear that they can't make a change that has the effect of being a new amendment without sending it back to the Planning Commission for a review. Planning Commission Minutes Transcript, March 3, 2007, Exhibit "B" pp 1-3 (Emphasis added). Based on the foregoing, the legislative history of the 2007 Amendments does not support a conclusion that the 2007 Council intended to limit a latter council's authority to amend a proposed bill to amend or replace the Current General Plan during the comprehensive review. Heather Kimball, Chair Hawaii County Council and Hawaii County Council Members October 1, 2024 Page 9 of 12 C. Current General Plan Legislative History Confirms Council's Obligation to Submit Proposed General Plan Amendments to the Planning Commissions for Review There have been suggestions that prior to the 2007 Amendment, council could freely amend a proposed new general plan without further review by the Planning Director or the Planning Commission(s). This suggestion is not supported by the Charter or Current General Plan legislative history. The Charter directs the Planning Director to "[p]repare a general plan, implementation plans and any amendments thereto in accordance with Section 3- 15." Charter §6-7.2(b)(2). In addition, the Planning Commissions duties and functions include "[fleview the general plan, its amendments and other plans and modifications thereof and transmit such plans with recommendations thereon through the mayor to the council for consideration and action." Charter §6-7.5. These obligations were clearly known during consideration of the Current General Plan. For example, during the June 19, 2002 General Plan Workshop, the following exchange took place with the Planning Director. MS. PISICCHIO: Mr. Yuen, can I ask you a really fast question? You went over really quickly over the process to complete the General Plan approval. How long do you think that is going to take for us to get through the process and get this thing approved? MR. YUEN: The Council has a series of Workshops scheduled till late July. If the Council wants to initiate a General Plan amendment, the Council would have to make a resolution to that effect and that would go to the Planning Commission for their comment. MR. TYLER: Good question. A follow up question. Mr. Yuen. so, does that mean that if the Council initiates any other changes. subsequent to the second review by the, as you've just described by Planning Commission, that we would have to send this back down? MR. YUEN: That's correct. And so, I would suggest that if the Council wants to make amendments, that the Council decide the timeframe for doing that and try to set a timeframe. And so, you don't have two cycles going back to the Planning Commission. Heather Kimball, Chair Hawaii County Council and Hawaii County Council Members October 1, 2024 Page 10 of 12 Committee on Planning Workshop, MIN PC 2002_06_19 at p.4. Similar exchanges took place at other meetings during consideration of the Current General Plan. See e.g., General Plan Workshop, February 10, 2003 ("if the Council initiates any new amendments to the General Plan or modifies any of the amendments that you see in front of you, then those new amendments or those modifications to amendments that have come up to you need to go back to the Planning commission, for Planning Commission to review and comments upon.") Min PC 02/10/2003, 2002-2004 Term at p.2; Committee on Planning, December 18, 2003 ("If the Council Members want to introduce any new amendments... Those have to, then, come back, come down to the Planning Director for review, come through the Planning Commission for consideration, and then back to Council".) MIN PC 12/18/2003 2002-2004 Term, at p.3. Based upon the foregoing, while Council has authority under Charter §3-15 to amend a proposed general plan bill, it still must submit them to the Planning Commission for review. D. Ordinance 2014-87 Eliminated the Planning Director's Obligation to Submit Proposed Amendments to Council at the Commencement of the Comprehensive General Plan Review The second amendment affecting the general plan amendment procedure was Ordinance 2014-97 ("2014 Amendment") which was enacted shortly before the current comprehensive review was scheduled to commence. The Council approved this Planning Director initiated a general plan amendment to eliminate the requirement to submit proposed general plan amendments at the beginning of the comprehensive review. Instead, the ten-year anniversary triggered the Planning Department obligation to start the comprehensive general plan review. The Council, however, imposed a thirteen -year deadline for the Planning Director and Planning Commissions to complete their review and submit at bill to Council. As a result, a general plan bill should have been presented to the Council in February 2018. While there was broad Council agreement to impose a deadline for submission of a bill to Council," there was skepticism about whether a deadline would be met. One member felt the deadline was of limited value because the bill did not impose any accountability to meet the deadline.12 Another felt the Planning Director might not finish the review within the time allotted, but wanted the process initiated earlier. 11 The original amendment required submission of amendments to the Council within eleven (11) years after adoption of the previous plan. Thirteen years was selected based upon the Planning Director's estimate of the time it would take to complete the process. 12 Council Meeting, May 3, 2014 at approximately 1 hr, 37 minutes, 38 seconds. The only records we could find for this hearing was obtaining a copy of the audio and video recording for the meeting. Heather Kimball, Chair Hawaii County Council and Hawaii County Council Members October 1, 2024 Page 11 of 12 Despite committing substantial resources to the comprehensive review, the Planning Department did not meet its deadline to submit proposed amendments to the Council in 2018. In April 2020, the Planning Director listed the following challenges that prevented submission of a plan: • The volume and diversity of opinions to the 2019 draft created a longer than anticipated amount of time to compile and organize comments. • The need to synchronize with other planning. The director indicated significant efforts being undertaken to synchronize the General Plan with the Kilauea Recovery planning as well as updating to the Multi - Hazard Mitigation Plan. • Diversion of staff to Short Term Vacation Rental matters. Staff who otherwise would have been working on the comprehensive general plan amendments were required to either process applications and/or respond to an unprecedented volume of petitions to the Board of Appeals. Reporting the Board of Appeals was administered by the long range planning division. • COVID — 19. A large number of staff was on administrative leave and a number had transitioned to remote work. See, Communication 774.003, Departments' Response to 2020 Budget & Program Review Questions, dated April 13, 2020 at pdf pg. 196. This office opined that the inability of the Planning Department to submit proposed amendments by the deadline was not fatal to the comprehensive review. The use of the term "shall" as used in the ordinance was directory rather than mandatory. We further opined, however, that while the term `shall' is directory under the current ordinance, the rules of statutory construction favored Council authority to propose a limited interim general plan amendment to impose a new deadline together with a consequence for non-compliance. Finally, if an amendment was proposed, the Charter §6-7.5 required review by the Planning Commissions. E. Bill 181 Amends the Current General Plan Bill 181 proposes to amend Chapter 16 of the Hawaii County Code by adding the general plan amendment process into the Hawaii County Code and changing some of the procedures currently found in the Current General Plan. Because the bill is effective upon passage, it also amends the Current General Plan by implication even though the Current General Plan prohibits interim amendments during the comprehensive review. One of the reasons for this prohibition is to prevent general Heather Kimball, Chair Hawaii County Council and Hawaii County Council Members October 1, 2024 Page 12 of 12 plan amendments from filtering in while amendments are being generated and then considered. In Dalton v. City and County of Honolulu, 51 Hawai'i 400, 416, 462 P.2d 199 (1969), the court held that "the safeguards specified by the charter as applicable to the adoption of the general plan must be followed in altering the general plan." The amendment procedures for the general plan have been imbedded in the general plans themselves, including the prohibition of interim amendments during the comprehensive review. As a result, any amendment to the procedures should be viewed in the context of the requirements of Charter §§3-15 and 6-7.5. Hopefully, the foregoing is helpful. Please let me know if you have questions or require clarification. Respectfully submitted, ELIZABETH A. STRANGE Corporation Counsel c: Zendo Kern, Planning Director The Honorable Mitchell D. Roth, Mayor Jean K. Campbell, Deputy Corporation Counsel