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HomeMy WebLinkAboutCOM 0579.000 2000-2002 ~a.~r~os:;gy~,a k€arry Kicn ~P,•• Dixie Kaetsu .'Mayor ~ ; llfanaging Director ~o e~P.~ ~'efter T. Young p'•••MZ vii qPe ov•o~~'t? ,1 t._ L?eputyrMana~ingDirector ~f iii 25 Aupuni Street, Room 215 • Hilo, Hawaii 96720-4252 • (808) 961-8211 • Fa~t"($0$) 961-6553 KONA: 75-5706 Kuakini Highway, Suite 103 • Kailua-Kona, Hawaii 96740' ' - ~ ' (808)329-5226 Fax (808)326-5663 March 25 , 2002 Honorable James Y. Arakaki, Chairman and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chairman Arakaki and Members: State Land Usc Boundary Amendment Application (SLU 01-012) Request: Agr,~cultural to Rural Change of Zone Application (REZ O1-023) Request: Agricultural (A-Sa) to Residential & Agricultural (RA-2a) Applicant: Thomas C. and F. Ann Hill Tax Map Key: 6-2-11:26 Street Names -North Kohala District Street Name - Polinahe Way 1997 Hawaii Land Partnership (SUB 7134) TMK: 7-3-059 (formerly 7-3-005:009) Street Name - Konawaena School Road Onouli and Kalukalu South Kona, Hawaii Street Names Keauhou View Estates, Unit I Phases IV, V, & VI TMK: (3) 7-7-026:027 & 7-7-025:Por. 080 (SUB 7202-C,7202-D, 7202-E) Street Names Kahauloa House Lots Subdivision Kahauloa 15`, South Kona ref, fio: 1-Ionorable James Y. Arakaki, Chairman and Members of the County Council Page 2 March 25, 2002 ~r~e€~dcnt Cha;~?t~;~° 25 t~orv€~g Code ;~~>7~ ~ l~f~,..`~~,~ S =.t, ~~...s3~I~~ss°:~..Dscre„p~ncv As required by Chapter 4, Sec. 6-4.3(C), ~Iawaii County Charter, transmitted herewith for the County Council's consideration and action are the Planning Commission's letters and enclosures regarding the above-referenced requests. Sincerely, arry Kim Mayor L022502rnay Enclosures cc: Planning Department Ha Kim ~,~~v ®s n,~4 ~3' ~ ' ~ t'~ Geraldine M. Giffn ~rayor z4~ i C~ai.*person ,4 ~~+Dp•.e. fib."=P~~ - ~Pff OR~tA~ ra~~. FI~~NNINNG C®1d~IISSION 25 Aupuni Str~~:, Room 109 • Hilo, Hawaii 96720-4252 (808)961-8288 • Fax (808)961-8742 I s'':: Honorable James Y. Arakaki, Chairman and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chairman Arakaki and Members: Amendmsent to Chapter 25 (Zoning Code) Relating to De Minimis Structure Position Discrepancy The Planning Commission at its duly held public hearing on February 25, 2002, voted for a favorable recommendation on the proposed ordinance relating to De Minimis Structure Position Discrepancy. This favorable recommendation is based on the following findings: The Planning Director initiated action proposes to amend Chapter 25, Zoning Code, of the Hawaii County Code by amending Section 25-1-5 (Definitions), to add the ne~~~ definition of "de minimis structure position discrepancy," and amend Article 4 (General Development Regulations) by adding a new Division 7. De Minimis Structure Position Discrepancy. With more modern surveys, it is sometimes discovered that a structure has been inadvertently located a small distance into a required yard or open space. Section 669-11, 12 and 13 of the Hawaii Revised Statutes, legitimated "de minimis" encroachments of improvements. The purpose of the amendment is to apply the same principle to similar minor encroachments of improvements into required yards and open spaces. This new definition and division would provide the procedures for recognising de minimis structure position discrepancy. The accompanying draft bill to amend Chapter 25, Zoning Code, by adding a new definition and new Division 7 und:,r Article 4 (General Development Regulations) is provided for your favorable consideration. Honorable James Y. Arakaki, Chairman and Members of the County Council Page 2 We have enclosed copies of the February 15, 2002 and February 25, 2002 hearing transcripts and the Background Report for your information. Sincerely, r , ' Geraldine M. Giffin, Chairman Planning Commission L,councildemini Enclosures cc: Planning Department -Kona r B PDDeminimis. agk-2/5/02 COUNTY OF IIA~VAII PLANNING DEPARTI~NT ~3AC~GItOUND ItLPOIZT PLANNING DIRECTOR INITIATED ACTION AMEND1i~IENT TO CIIAPTER B5, ,ZONING CODE REGADING DE 1dIINI1l~IS STRUCTURE POSITION DISCREPANCY PLANNING DIRECTOR INITIATED proposed ordinance to amend Chapter 25 (Zoning Code) of the Hawaii County Code, as amended, relating to De Minimis Structure Position Discrepancy. PLANNING DIRECTOR'S INITATED ACTION 1. Rega~est: The Planning Director is requesting that a new definition in Section 25-1-5 (Definitions), and a new Division 7 under Article 4 (General Development Regulations) be added within Chapter 25, Zoning Code, of the Hawaii County Code relating to "de minimis structure position discrepancy". 2. Findings: With more modern surveys, it is sometimes discovered that a structure has been inadvertently located a small distance into a required yard or open space. Section 669-11, 12 and 13 of the Hawaii Revised Statutes, legitimated "de minimis" encroachments of improvements. The purpose of the amendment to the Zoning Code is to apply the same principle to similar minor encroachments of improvements into required yards and open spaces. 3. References: (See ExlailDit A -ACT 185 and Chapter 669, Part II Structure Position Discrepancies of the Ilawaii Revised Statutes) AGENCIES - NO RESPONSE Department of Public Works g Ililo & Kona, Department of Water Supply, Real Property Tax Offgce, Department of Ilealth _ _ Y • ACT 185 { ~ - operator either to the front or to the rear of the projection to SECT] $f call attention to the ro•ection; . p J follows: { (5) The [foregoing] limitations in this subsection upon length shall not . $ apply to vehicles transporting pipe, poles, timbers, reinforcing steel, ~ "[~]§6 structural steel, or other objects of a structural nature which cannot be (1) A readily dismembered; provided that when transported by night every e1 .>s. such vehicle shall be' equipped with a sufficient number of clearance (2) N lamps upon the extreme ends of any projecting load to clearly mark the P~ . n dimensions of the load." of • di SECTION 2. Statutory material to be repealed is bracketed. New statutory re material is underscored. ~ ' re (3) RE ~ SECTION 3. 'T'his Act shall take effect upon its approval. ~ de ; (Approved July 2, 1999.) eri #x OVA # ~ (4) Li; mi ACT 185 H.B. NO. 77 s ova •~t~ A Bill for an Act Relating to Real Property Encroachment. " suc ; . ~ ~ Be It Enacted b the Le aslature o the State o Hawaii: y s' f f wrt } ide SECTION 1. The legislature finds that this Act represents a collaborative me. effort among licensed land surveyors, title and escrow companies, and the real estate the community in Hawaii at clarifying the existing law on real property encroachments. ~ . The purpose of this Act is to adopt cost-efficient, time-saving methods to SECTIO resolve relatively minor structure position discrepancies, including those situated on ~ amending sectie industrial property, and without regard to the date at which such discrepancies arise. • The legislature recently enacted a structure position discrepancies law. However, £ "SECTh that law applies only to discrepancies that existed on June 16, 1997. The problem ~ effect on its effe • ,#r ~ with the law is that applicability turns upon the date of construction. of the # the discrepancy encroaching structure, which often is indeterminable due to the lack of docurnenta- ? lion. This ambigusty renders the law unusable in many situations. The legislature SECTIO: believes that the removal of the retroactive date of that law will allow that law to be • ~ material is unde. •r>`: implemented. Furthermore, the requirement that the structures be otherwise "legally <j constructed" forecloses the possibility that the law, without any temporary restric- SECTIOI lions as to its applicability, will be used to promote or encourage future, intentional 16, 1997. encroachments. (Approved s s { ~ SECTION 2. Section 669-11, Hawaii Revised Statutes, is amended to read as follows: <A 3. ~~[[]§669-11[]] De minirraus structure position discrepancies, defined. ; For the purposes of this part, "de minimus structure position discrepancy" means: A Bill for an Ac (1) For commercial property, industrial propertyl and mulri-unit residential • - property, 0.25 feet; Be It Enacted b; ~ (2) For all other residential property, 0.5 feet; (3) For agricultural and rural property, 0.75 feet; and SECTINI (4) For conservation. property, 1.5 feet; the owner of ling • ~ between the location of an improvement legally constructed along what was reason- ~ or large lots of s; • : ably believed to be the boundary line and the actual location of the boundary line ~ lure produces, or • based on [a modern] the most recent survey." f give law enforce w•.-{ • z,~•.,: <k:~r 't 632 ~ ~ ~ ~ ~ cs:~. •N<~: ~ 4 Ey~,Rs.'... { ?y #h,::. ~ " ACT 186 . ~A projection to ~ SECTION 3. Section 669-12, Hawaii Revised Statutes, is amended to read as s s ' follows: s'#~ ngth shall not iforcin steel "[[]§669-12[]] Consequences. g • . rich cannot be (1) Ads minimus structure position discrepancy shall not be considered an y night every encroachment or a basis for a zoning violation; r of clearance (2) No de minimus structure position discrepancy authorized under this part shall be considered as a basis for an claim of adverse ossession :arly mark the Y P , s of land. If the wall or other improvement that is affected by the :#<:~s: discrepancy is removed or substantially damaged or destroyed, the slew statutory replacement improvement shall be constructed to comply with the most recent survey available at the time of construction of the improvement; (3) Responsibility for maintenance and repair of an improvement within a de minimus structure position discrepancy shall be borne by the prop- erty owner who constructed the improvement[,] or the property owner's successor in interest; [and] ' (4) Liability for any claims for injuries or damages to persons or property { ' arising out of, or in connection withi an improvement within a de H.B. NO. 77 minimus structure position discrepancy shall be borne by the property s • owner who constructed the improvement[,] or the property owner's j' successor in interest[.); and { ' In the event that the property owner who constructed the improvement- 'j within a de minimus structure position discrepancy is not readily identifiable then for purposes of this part, the owner of the improve- ~ollaborative ment shall be determined to be the owner of the property upon which f he real estate , the improvement is substantially located." ` ;roachrx~ents. methods to SECTION 4. Act 131, Session Laws of Hawaii 1997, is amended by ...f . e situated on aanending section S to read as follows: s ' ~ . Fancies arise. <,:,_s::~: v. However, "SECTION 5. This Act shall apply to all structure position discrepancies [in Chs problem effect on its effective data] without regard to when the facts or actions giving rise to s~ ;lion of the the discrepancy occurred." documenta- e legislaeure SECTION 5. Statutory material to be repealed is bracketed. New statutory ~ . iat law to be material is underscored. ise "legally <`"s >;:a» rary restric- SECTION 6. This Act, upon its approval, shall take effect retroactive to June 4:` intentional 16, 1997. ` (Approved July 2, 1999.) I` s. ;d to read as ~ . s~, t ACT 186 H.B. NO. 138 s, defined. ` ~y" means: ~ ` A Bill for an Act Relating to Agricultural Goods. t residential ~ f Be It Enacted by the Legislature of the State of Hawaii: { SECTION 1. The purpose of this Act is to .establish a means of identifying the owner of large lots of picked fruits, nuts, or vegetables of any tree, vine, or plant, {r'> vas reason- ` or lar e lots of shrim s, ravens, shell fish, fish, seaweed, al ae, and other a uacul- g P P g 9 xndary line ~ lure products, or large lots of flowers, ornamentals, or other horticultural products to give law enforcement officers an additional means of identifying the lawful owners 633 i _ QUIETING TITLE 669-1 ry purpose, in [§667-41] Public information requirement. All financial institueions, and encum- mortgagees, lenders, business entities and organizations without limitation, and ~erty shall be persons, who intend to use the power of sale foreclosure under this part, under the value include conditions requirred by this part, shall also develop informational materials to educate in exchange and inform borrowers and mortgagors. These materials shall be made available to the y. (L 1998, c public, including the borrowers at the time of application for a mortgage or loan, or other contract containing a power of sale foreclosure provision. These materials, among other things, shall inform the borrower that the financial institution and other gor, and any business entities and persons who are authorized under this part to exercise the power :cordation of - of sale foreclosure, in the event of the borrower's default, have the option of pursuing appeal in the either a judicial or nonjudicial foreclosure as provided by law. These infannational :a<mpdons set materials shall fully and completely explain these remedies. [L 1998, c 122, pt of § 1] required by cordation of [§667-~12] Application of this part. The requirements of this part shall affidavit and apply only to new mortgages, loans, agreements, and contracts containing power of ~rdance with sale foreclosure language executed by the borrowers or mortgagors after July 1, 1999. [L 1998, c 122, pt of §1] :rty consists ~~°lAPTEi~ t3~~ ? satisfy the ~'~[~7`fT10M ~ ~t~A! ES~AT~ §668-1 Actions for partition. is part shall or having a Case Notes riotlCe Of As chapter allows actions to be brought only for partition of real property held in joint tenancy or fSUre Of the tenancy in common, and not for estates held by the entireties, property owner was not authorized to sever property is husband's alleged interest in property from wife's interest and thereby convert wife's interest into a dVhile that tenancy in common with property owner. 92 H. 228 (App.), 990 P.2d 126. ocess shall ~CI~~P'fE~ ~ll~E`=~~iG 'fi"TL~ The re- ate as full PART I. GENERAL PROVISIONS SECTION :ee even if the debt is PART IT. STRUCTURE POSITION DISCREPANCffiS debts of 669-11 DE MINIMIS STRUCTURE POSITION DISCREPANCIES, DEFINED 38, c 122, 669-12 CoIasEQuENCEs 669-13 RESTRICTIONS AS TO OWNER OF PROPERTY I~AttT I. GEINE~?L PIt~V151®Id5 any other Note ~dation of tgOr, may Sections 669-1 to 669-8 designated as Pazt I by L 1997, c 131, §3. ~vhere the §669-1 ®bject of action. nortgage Case Notes tain non- Claimants failed to establish prima facie case of hostile and exclusive possession for entire twenty-year permits, period where evidence of actual notice to other claimants insufficient and time period of possession remedy, uncleaz. 86 H. 76, 947 P.2d 944. t0 those Where claimant failed to rebut presumption that claimant's possession of property remained permissive by providing evidence [hat claimant or claimant's predecessor-in-interest converted possession from i Of Sale. permissive to hostile, claimant failed to prove it was entitled to the fee simple interest in tha property based on adverse possession. 90 H. 289, 978 P.2d 727. 139 669-1 _ CIVIL REMEDIES AND DEFENSES Article XVI, § 12, of the Hawaii constitution does not bar adverse possession claims to more than five Section 17. acres of land where claim matured prior to November 7, 1978; this section is a reasonable construction of article XVI, §12. 91 H. 545 (App.), 985 P.2d 1112. dries. If red Claimant established prima facie case of adverse possession where claimants built, operated and leased Wlthlri a de slaughterhouse for over fifty years, erected signs designating property, and placed and maintained fences Of the prop around property. 91 H. 545 (App.), 985 P.2d 1112. Publicly recorded conveyances evidencing the existence of a cotenancy inland may render a cotenant's SUCCeSSOr 1: belief that he or she had no reason to suspect the cotenancy's existence not objectively reasonable. 91 H. dureS Or Or 545 (App.), 985 P.2d 1112. p~IIT 11. ~TI2l8~i'IJt~~ R®SITI®B~ ~IS~[IEPAIVCIES Note Applies to all structure position discrepancies without regazd to when the facts or actions giving rise to PwR~ the discrepancy occurred. L 1997, c 131, §5; L 1999, c 185, §4. SECTION 671-11 1 6669-11 De xninimis structure positioa? discrepancies, defined. [1999 671-11.5 ~ amendment retroactive to June 16, 1997. L 1999, c 185, §6.J For the purposes of 671-t9 l this past, "de minimis structure position discrepancy" means: (1) For commercial property, industrial property, and multi-unit residential property, 0.25 feet; As chapter r: p p to Hawaii's citi (2) For all other residential ro er 0.5 feet; cost of tieigatio (3) For agricultural and rural property, 0.75 feet; and 496. (4) For conservation property, 1.5 feet; between the location of an improvement legally constructed along what was reason- ably believed to be the boundary line and the actual location of the boundary line §671-1 based on the most recent survey. [L 1997, c 131, pt of §2; am L 1999, c 185, §2J §669-12 Consegaaences. [1999 amendment retroactive to June 16, 1997, L 1999, c 185, §t5. J Where certav health care pro (1) A de minimis structure position discrepancy shall not be considered an property ruled encroachment or a basis for a zoning violation; medical claims (2) No de minimis structure position discrepancy authorized under this part shall be considered as a basis for any claim of adverse possession of land. §671-3 If the wall or other improvement that is affected by the discrepancy is removed or substantially damaged or destroyed, the replacement im- provement shall be constructed to comply with the most recent survey Patient-orient available at the time of construction of the improvement; H. 475, 904 P.2 (3) Responsibility for maintenance and repair of an improvement within a de under circum was not plastic ; minimis structure position discrepancy shall be borne by the property A consent fon owner who constructed the improvement or the property owner's succes- (App.), 947 P.2c sor in interest; (4) Liability for any claims for injuries or damages to persons or property arising out of, or in connection with, an improvement within a de minimis §671-11 structure position discrepancy shall be borne by the property owner who pensation. . constructed the improvement or the property owner's successor in inter- review and r. est; and damages in n (5) In the event that the property owner who constructed the improvement (b) A ~ within a de minimis structure position discrepancy is not readily identifi- pursuant to se able, then for purposes of this part, the owner of the improvement shall be otherwise disl determined to be the owner of the property upon which the improvement shall consist o f is substantially located. [L 1997, c 131, pt of §2; am L 1999, c 185, §3] and experient > < licensed to pr. s [§669-13] Restrictions as to owner of property. This part shall not apply one physician to an de minimis structure osition discre anc on ublic land ed in Y P p y p s, as defin chairperson sl 140 .f MEDICAL TORTS 671-11 an five section 171-2, or to such encroaching improvements incident to shoreline bound- tion of aries. If real property subject to this section is owned by a county, any improvement leased within a de minimis structure position discrepancy shall be removed at the expense fences of the property owner who constructed the improvement, or the property owner's Want's successor in interest, upon notice, in accordance with the respective county proce- 91 H. dares or ordinances. [L 1997, c 131, pt of §2~ ~~A~TE~ bTl EI31Ce4L 1'~RTS ~ise t0 PART II. MEDICAL CLAIM CONCILIATION SECTION - 671-I I MEDICAL CLAIM CONCILIATION PANELS; COMPOSITTON, SELECTION, COMPENSATION '999 ~ 671-11.5 WAIVER OF FILING FEE 671-19 DUTY TO COOPERATE; ASSESSMENT OF COSTS AND FEES s of Case Notes trial As chapter rationally furthers legitimate state interest of assuring the provision of affordable health care to Hawaii's citizens by requiring participation in medical malpractice dispute resolution such that the high cost of litigation may be avoided, plaintiff not denied equal protection of the laws. 89 H. 188, 970 P.2d 496. iP~ltY 1. C~ENEi3~aL ~R®i61S1®fm15 on- line §671-1 Definitions. §2l Case Notes L `Nhere certain counts of plaintiff's complaint alleged errors or omissions in professional practice by a health caze provider, thus falling under the definition of "medical tort" under paragraph (2), court an praperly ruled plaintiff could not proceed with those counts of suit without first submitting them to medical claims conciliation panel as required by §§671-12 and 671-16. 89 H. 188, 970 P.2d 496. art id §671-3 Informed consent; board of medical examiners standards. is Case Notes m- ey Patient-oriented standard applies [o physician's duty to disclose risk information prior to treatment. 79 H. 475, 904 P.2d 489. de Under circumseances of case, physician did not have affirmative duty to inform patient that physician was not plastic surgeon and dad not have hospital privileges. 86 H. 84, 947 P.2d 952. •ty A consent form is no substitute for a physician's affirmative duty to inform his or her patient. 86 H. 93 ;g_ (APP.), 947 P.2d 961. ~Ali;~ 11. ~~~ICAI. Cl.~?llVl C~NC1LlA1'1®10l ty tis §671-11 Medical claim conciliatioaa Iaanels; composition, selection, com- b pensation. (a) There are established medical claim conciliation panels which shall r- review and render findings and advisory opinions on the issues of liability and damages in medical tort claims against health care providers. nt (b) A medical claim conciliation panel shall be formed for each claim filed i- pursuant to section 671-12 and after each panel renders its decision or the claim is ~e otherwise disposed of it shall be disbanded. Each medical claim conciliation panel It shall consist of one chairperson selected from among persons who are familiar with and experienced in the personal injury claims settlement process, one attorney licensed to practice in the courts of the State and experienced in trial practice, and y one physician or surgeon licensed to practice under chapter 453 or chapter 460. The n chairperson shall be appointed by the director of the department of commerce and 141 PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT FEBRUARY 25, 2002 A regularly advertised hearing on the AMENDMENT TO CHAPTER 25 RELATING TO DE MINIMUS was called to order at 11:51 a.m. in the Ghana Keauhou Beach Resort, Kahalu`u Ballroom, 78-6740 Ali`i Drive, North Kona, Hawaii, with Chairperson Geraldine Giffin presiding. PRESENT: Geraldine Giffin ABSENT & EXCUSED: Aurelio C. Mina, Jr. Earl Fujikawa Mildred Mosher Fred Galdones Francis Smith Florence Kubota Grant Togashi Hannah Springer Ivan Torigoe, Deputy Corporation Counsel Chris Yuen, Planning Director Alice Kawaha, Staff Planner Daryn Arai, Staff Planner Susan Gagorik, Staff Planner Norren Kato, Staff Planern Kiran Emler from the Department of Public Works Glenn Ahuna from the Department of Water Supply And approximately 8 people from the public in attendance. PLANNING DII~CTO~ INITIATED -Continued hearing on the proposed ordinance to amend Chapter 25 (Zoning Code) of the Hawaii County Code, as amended, relating to De Minimis Structure Position Discrepancy. The purpose of the proposed ordinance is to address minor encroachments of improvements into required yards and open spaces. GIFFIN: Commissioners, we are on Agenda Item No. 11. It is the Planning Director initiated, this is a continued hearing on the proposed ordinance to amend Chapter 25 (Zoning Code) of the Hawaii County Code, as amended, relating to De Minimis Structure Position Discrepancy. Alice? KAWAHA: Thank you, Chairwoman Giffin. At the last meeting on February 15t" in Hilo, the Department made some amendments. The major one that I should just touch up on is the, on page 3 under Section 25-4-67, Review by director. We had changed, "The director shall approve or deny an application...within. 25 days," rather than the 10 days that was indicated. And this is just for the public's information, also, on this side of the island. 1 GIFFIN: So, Commissioners, did you hear Alice? She was page 3 under Section 25-4-67. Correct, Alice? KAWAHA: Yes. And there's one more amendment which we would, the Department would want to propose. It's on page ~1, Section 25-4-69, Disclosure. We wanted to include the phrase "by the owner." So that sentence would read, "A de minimus structure position discrepancy shall be disclosed by the owner to subsequent purchasers of the property in question." GIFFIN: Commissioners, we're all on the same page, page 4, Section 25-4-69 under Disclosure? Alice, anything else? KAWAHA: That's it. GIFFIN: All right. Commissioners, any questions of staff, of the Planning Director? Hearning none, there are two people who have signed up to testify on this agenda item, Christine deSilva and Chris Brilhante. Will you please come forward. Is there anyone else from the public who has come to testify on this agenda item? All right. Will you please raise your right hands. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? TESTIFIERS: Yes. GIFFIN: Thank you. Starting with you, Ma'am, your name and resident address, into the mike. Thank you. DESILVA: My name is Christine deSilva and my residence address is 1175 Waialeale Place in Hilo. GIFFIN: You may begin your testimony. DESILVA: Great. Basically, we're sort of together and we're going to make this very quick. We're just going to sort of imitate what we said, what Chris said at the February 15tH meeting. We're largely in support of this ordinance. We feel that it's really beneficial to property owrders. As real estate professionals we can attest to the frequency of these minimal types of encroachments that this ordinance might address by establishing tolerable allowances. They happen very, very often in our industry and we are very, very supportive of a practical way to address this. Basically, our only comment or concern at this point was about the timing and we just heard the amendment to have it be a total period of 25 days. The only thing we'd like to go on record as explaining is typically in a real estate transaction when a survey is required, the survey doesn't happen until maybe the last two or three weeks of a transaction. And, therefore, everybody is sort of under the crunch with title companies, insurance companies, banks, and the realtors, and the property owners to get things done. So we would definitely support, you know, as user friendly and as succinct process as possible. It's very clear cut. The de minimus rule provides 2 very clear cut and easy to interpret boundaries; and, therefore, we don't feel that there's a lot up to the discretion or, you know, that there's going to be a lot of difficulty in establishing or proving these de minimus position discrepancies. The only other comment we'd like to make just verbally, and it's not included in our written testimony today which I have copies for everybody, is that basically the State, this de minirrus rule for, on t'~e County level, mimics the State's rule for encroachments across boundaries. ®n the State level, there's actually no BRILHANTE: Administrative DESIVLA: Yeah, there's no administrative requirements to comply with. For instance, if .=ire have a survey report that shows that in a residentially zoned property, you know, there's an encroachment of feet and the tolerance is .5 feet, the title companies, the banks, the realtors, everybody would just sort of acknowledge. And I'm not sure how the Planning Department Dandles it but I believe, has, you know, handled it just without administrative procedure, that that should be passed through without a problem. So creating this ordinance does kind of add a whole layer to that on the County level. And though we want to support it, we just would want to be mindful that it's another process to go through in a real estate transaction administratively; and, of course, timing is critical and all of that. So that's basically our testimony. We fnd that it's a practical way to address the harmless and minimal encroachments. And we do anticipate there will be lots of these. You know, modern day surveys }save resulted that, you know, these types of very manini encroachments come up quite often. And so we think that there will also be an abundance of these; and that's ;mother concern for our hope that it would be a very easy process to go through. Chris? GIFFIN: Commissioners, any questions of Christine deSilva? Hearing none, Chris? BRILHANTE: Hi, my name is Chris Brilhante. My address is 60 Hoohoaloha Street in Hilo. Basically, I just wanted to echo S<~what Christine has said. We're both here representing the Hawaii Island Board of Realtors. Her point, Chris seemed, I was looking at Chris' face when Christine was making the point about the differene^ between the State 1_aw and this law. Basically, on the State level, the State law has stated that as long as the encroachment is less than, in residential, in a residential property situation, urdess it's smaller than 6 inches, it's basically deemed, at this point, not to b~ an encroachment. And that is what the State law says. If the struct~:re is damaged significantly, more than 50 percent, then they have provisions regarding having to rebuild. the structure in the proper location and the like. But, actually, there is no administrative process th t gets triggered. Basically, anything that's, you know, less than 6 inches is just deemed to be at this point not an encroachment. So it is, it is something, another process that we do have to go througl-i. So that's why in the last testimony when I was before 3 you, the timing and the amount of days required to get this, you know, through is very, very critical. And so keeping it as short as passible, I think that the testimony, the written testimony that the Boasrd of Realtors has given you, you know, shorten it to a 20-day period. But I think in the last testimony Chris was saying it was going to be 30 days and they GIFFIN: Right. BRILHANTE: And they brought it down to 25 days. I think we can live with that, given if the up-front requirements, the submittal process is as simple as possible, you know, the requirements of the Planning Department and that, you know, the total timeframe is 25 days. But, hopefully, we can get things through, you know, quicker than that. And so that's all I have to say. GIFFIN: Commissioners, any questions of the testifier? Did you have public testimony that you wanted to pass out? DESILVA: We did, sorry. GIFFIN: You can give it to staff; and they'll do it. DESILVA: Great, okay, fantastic. KUBOTA: May I, while she's doing that, may Iask GIFFIN: Yes. KUBOTA: The difference between the State and the County requirement regarding discrepancy GIFFIN: Yes? KUBOTA: She's talking about the administrative layer. Would you explain that one more time for me hour that layer works and if it does become over-burdensome? YUEN: Well, it wasn't the intent to create an additional layer. What, there's a State law that seems to apply only to actual encroachments over the property line rather than side yards and the like. That we would, and what you're saying is correct. For those, if it's less than the distance in question it's. simply not a violation and there's no need to get a recognition that there's not a violation. Tl.~at would, my vie~~~ is that we would continue to treat that that sway. This is meant to deal only €~ith your setbacks which arc, say, 15 feet from the property line. Currently, if your setback, if you measure it and you're 14 %2 feet versus 15 feet, administratively I am applying this already 5n saying that that's de mii~imus. But there has been a concern that the la~Rr, the ordinance saq~s 15 feet is the setback and anything less needs a variance. And so in order to do away with any question of there needing to be a variance we're making this process ~~jhich is 4 quicker and easier than doing a variance. The major differences with a variance are the standard is much easieY for this, you don't have to notify the adjacent property owners within a 300-foot radius of yo;.~x property as you do with respect to a variance, and the time frame is less. The variance has a 60-day time frame. Plus, that there are penalties for getting a variance in that, for example, yo~~ can't get an ohana dwelling after you've gotten a variance. So there is a difference for the owner between getting a variance for this So none of this, all of this was me:~nt to make life easier for people when they have these rather small differences in the setbacks. As I say, I've bee~~ administratively applying this and giving people de minimus letters. But we'll have both a i-~.~le and an ordinance passed so that it's clear that there is a basis, actually occurred, that there's a basis for doing this. As far as the encroachment over the boundary line, we would continue to call that covered by the State law; and it's simply not a violation. And it doesn't, it will not need to go through this process in the future. And I thank them for bringing this question to my attention. I 5~>~ill, if, I'd like to move this along. If the Commission would simply vote, I think there's no real opposition to this. I wil look at it ar~d see if there's any way to fix any confusion, that there might be an ordinance to make it clear that if you have an actual encroachment over the property line that is de minimus you won't have to do, you won't even have to get this kind of letter, that this was meant to apply only to the sideyard, frontyard setbacks. KUBOTA: Okay. BRILHANTE: I'd like to say that we are in support of the ordinance; and we do appreciate Cl;}ris Yuen's effort to clarify the situation pertaining to the boundary lines and the setbacks. Because when that State law did come out, there was confusion regarding that and questions, and the banks and the title companies have handled it inconsistently, actually. And so we do appreciate Chris' efforts in clarifying the situation. GIFFIN: Thank you. Commissioners, any other questions of the testifiers? Alice, is today the ~~ay that we vote? KAWAHA: Yes, if there's no continuance. GIFFIN: Any other, Commissioner Springer. SPRINGER: I'm wondering if the Director has any comments on the February 15, 2002 letter that we have from Klaus Conventz. He's recommending additional language. YUEN: Yes. Actually, I think I'd rather not go with what he is proposing on that. And the intent is that we simply, the staff simply followed the zoning on this. It becomes, it other wise becomes a matter of a great deal of confusion and complication. What he is talking about is that >~e nave property thud's shown as agriculturally zoned in our zoning maps, like Agricultural 5-a, but may actually be a much smaller lot, like a 10,000-square foot lot. And then the setbacks also, and this is not an arbitrary thing. This is per Code. The Code, the setbacks would be applied at a smaller lot size. And so instead of the norma130-foot setback it might be, and I don't have these things in my head, but that might be fora 5-acre zone you would have a 5 15-foot setbaclt. The way the ordinance is written is, though, that if you're in agriculture zone you will get the 9 inches that is talked about as being de minimus, even if your lot size more consistent witl a residential zone and would need a 6-inch setback. And this is just for the, say, standpoint of having a simple way of applying this in these kinds of areas. So, and the difference is 9 inches versus 6 inches. So in the kind of area that I talked about where you have a 10,000- square foot lot in an Agricultural 5-acre zone then we would allow the 9 inches because it's an agricultural zone. SPRINGER: Thank you. GIFFIN: Any other questions or comments? Hearing none, do I hear a motion? CommissioneA Kubota. KUBOTA: Madam Chair, I move that we send a favorable recommendation of the Planning Director's action to amend Chapter 25, (Zoning Code), relating to de minimus structure position discrepancy to the County Council. GIFFIN: Do I heax a second? GALDONES: Second the motion. GIFFIN: It has been moved by Commissioner Kubota and seconded by Commissionea• Galdones that we forward a favorable recommendation of his initiated action to amend Chapter 25 (Zoning Code) relating to de minimum structure position discrepancy to the County Council. Discussion? KUBOTA: Madam Chair? GIFFIN: Commissioner Kubota. KUBOTA: I forgot to put on record the changes, the amendments to the ordinance. GIFFIN: Yes. And I didn't catch it either, I apologize. Alice? KUBOTA: Yeah, GIFFIN: Why don't we have her read KUBOTA: Okay, great, we'll have her read it. GIFFIN: Alice, could you please reiterate the changes that you inserted in our last meeting. KAWAHA: Okay. Ln the title of the proposed ordinance, it should read, "AN ORDINANCE AMENDING CRAFTER 25 (ZONING CODE) OF THE HAWAII COUNTY 6 CODE 1983 (1995 EDITION) RELATING TO DE MINIMUS STRUCTURE POSITION DISCREPANCY." "SECTION 2" of the proposed ordinance should read, "Section 25-1-5 (Definitions), Chapter 25 of the Hawaii County Code 1983 (1995 Edition) is hereby amended by adding the following to be appropriately read as follows:...." And on "SECTION 3" on page 2, it should read, "Article 4 (General Development Regulations), Chapter 25 of the Hawaii County Code 1983 (1995 Edition) is hereby further amended by adding the following to be appropriately numbered and read as follows:...." On page 3 "Section 25-4-67. Review by director," the second sentence and the third sentence should read, `'The director shall approve or deny an application for recognition of a de minimus structure position discrepancy within 25 days after acceptance of the completed application. If the Director does not approve or deny the application within 25 days of acceptance, the application shall be deemed approved." Then on page 4, Section 25-4-69, disclosure, should read, "A de minimus structure position discrepancy shall be disclosed by the owner to subsequent purchasers of the property in question. " GIFFIN: Commissioners, any discussion? Hearing none,Alice. KAWAHA: Commissioner Kubota? KUBOTA: Aye. KAWAHA: Commissioner Galdones? GALDONES: Aye. KAWAHA: Commissioner Fujikawa? FUJIKAWA: Aye. KAWAHA: Commissioner Springer? SPRINGER: Yes. KAWAHA: Chairwoman Giffin? GIFFIN: Aye. KAWAHA: Chair, the vote passes with five ayes. 7 GIFFIN: Thank you. The discussion ended at 12:13 p.m. Respectfully submitted, Sharon M. Nomura, Secretary s PLANNING COMMISSION COUNTY OF HAWAII IIEt-1RING TRANSCRIPT FEBRUARY 15, 2002 A regularly advertised hearing on the AMENDMENT TO CHAPTER 25 RELATING TO DE MINIMUS was called to order at ~-:0~ p.m. in the County Building, Councilroom-Room 201 25 Aupuni Street, Hilo, Hawaii, with Chairperson Geraldine Giffin presiding. PRESENT: Geraldine M. Giffin ABSENT & EXCUSED: Earl Fujikawa Florence Kubota Aurelio Mina, Jr. Fred Galdones Mildred Mosher Hannah Spr=nger Francis Smith Grant Togashi Ivan Torigoe, Deputy Corporation Counsel Christopher Yu:.aa, Planning Director Alice Kawaha, Staff Planer Susan Gagorik, Staf'~ Plainer Eileen O'Ilora-Weir, Staff Planner Esther Imamura Kato, Staff Planner And approximately 4 people from the public in attendance. PLANNING DIIBECT®It INITIATED ~-Proposed ordinance to amend Chapter 25 (Zoning Code) of the rlawaii County Code, as amended, relating to De Minimis Structure Position Discrepancy. The purpose of the proposed ordinance is to address minor encroachments of improvement, into required yards and open spaces. GIFFIN: Commissioners, we are now on Agenda Item No. 6. This is the Planning Director initiated proposed ordinance to amend Chapter 25 (Zoning Code) of the Hawaii. County Code, as ame~rded, relating to De Mini KUDOTA: De Minimis. GIFFIN: De Minimis - I vas going to say that, and I practiced it. Then I vas beginning to pound like I €vas ~~tterixag - De Minimis Structure Position Discrepancy. The purpose of the proposed ordinance is to address minor encroachments of improvements into required yards. and open spaces. Alice? KAWAHA: Thank you, Chairwoman Giffin. I think the recommendation speaks for what this proposed ordinance is for. I'd like to also do some amendments. t One is, this is to make the ordinance in conformance with how ordinances are supposed to be prepared. A.nd so one is in the title of the ordinance. GIFFIN: Hang on just a minute. Okay. KAWAHA: It should read, "AN ORDINANCE AMENDING CHAPTER 25 (ZONING CODE) OF TIE HAWAII COUNTY CODE 1983 (1995 EDITION) RELATING TO DE MINIMUS STRUCTL,TItE POSITION DISCREPANCY." GIFFIN: Nineteen eight three (1995)? KAWAHA: Edition. That's in paren Then going to "SECTION 2," again, adding that "1983 (1995 Edition)" after "Ilawaii County Code." Okay, and it will read, "is hereby amended by ~.dding the fo1lo~Ning to be appropriately read as follows:" and delete the word "definition." These amendments are si~.ilar to what we did with the other two ordinances; and those were comments from the Corporation Counsel. GIFFIN: Will you say that again for "SECTION 2?" KAWAHA: Yeah, it will read, "Section 25-1-5 (Definitions), Chapter 25 of the Hawaii County Code 1983 (1995 Edition,.) is hereby amended by adding the following to be appropriately read as follows:." Then moving on to "SECTION 3" again, and this should be read as such "Article 4 (General Development Regulations), Chapter 25 of the Hawaii County Code 1983 (1995 Edition) is hereby furthez amended by adding the following to be appropriately numbered and read as follows:." Then moving to the next page is, the Department wants to make a correction on this. This is under "Section 25-4-67. Review by director," going to the third line, and the sentence starts with "The director shall approve or deny." It has, "The director shall approve or deny an application for recognition of a do minimus structure position discrepancy within ten days after acceptance...." We'd like to change that ten to thirty days. So it would read, "...thirty days after acceptance of the," and add the word "completed" "application." KUBOTA: Before an application? KAWAHA: Yes. YUEN: I thought that was going to be twenty-five, no? KAWAHA: Thirty. Did it change when you went to hearing? We have thirty. YUEN: Fifteen plus ten is twenty-five, huh? GAGORIK: He rounded it off. z . _ KAWAHA: According to Susan you rounded it to 30 days. I mean if you want to change YUEN: Okay. KAWAHA: Okay. Then this last sentence, "If the Director does not approve or deny the applicatien within ten days," again, that should be changed to " 30 days" and "within. 30 days of acceptance, the application shall be deemed approved." And those were the only amendments that we have. At the Kona meeting, February 1 Sc, _ GIFFIN: February l sc~ KAWAHA: Yes. There was a letter from the Hawaii Island Board of Realtors that was distributed to you; and there was a letter dated January 31, 2000, 2000, it should bE 2002. They did requ~dst that all four proposed ordinances be continued. I just wanted to point it out that there was that letter from Hawaii Island Board of Realtors. Are there any questions? GIFFIN: Commissioner Galdones. GALDONES: Madam Chair, ve,~y insignificant, but being that it's going to be for public record, on the background report and also on the recommendation "REGARDING" is ~~isspelled at the top. GIFFIN: Yes. Why didn't the two former English teachers find that? You see that, Alice? KAWAHA: What was that now? GIFFIN: The word is "REGARDING." KUBOTA: Madam Chair? GIF'FIN: Mrs. Kubota. KUBOTA: Just so that the English teachers don't get degraded, I was going to bring that up. But I was going to ask if that was a new word, just like De Minimus is. I mean, you know, this is the first time I've heard of De Minimus. And so I thought "ZONING CEDE REGADING DE MINIMUS STRUCTURE POSITION DISCREPANCY?" So I was going to ask the Director what it meant. GIFFIN: I did look up "DE MINIMUS" but I didn't look up "REGADING." KAWAI-IA: And I spelled chick, too. Thank you. 3 KUBOTA: Just to add some levity to this discussion. GIFFIN: Alice? KAWAHA: This item will be continued to the February 25th meeting in Kona. GIFFIN: God willing. We don't want to have any more recuses. Okay? Commissioners, discussion, questions for Alice or the Director? It might be a good time for the Director to give us just an overview; and I'm going to ask you to do that for both. But since we're on this agenda item, will you please do that. YUEN: The purpose behind this is to make life a little easier for people in the community. Very often when people are about to sell their homes they have a survey done and they find that the home has been built slightly within the setback. And that's what we call a de minimus, in tl'ss case, like within, depending on what zone you're in, 3, 6, 9 inches into the setback. Under current law, under current rules, they have to process a variance. Some of the banks will ignore this problem and just loan money against, for a house and just ignore it. Otr~ers will not. If yoa, and what happens then is that the sales transaction gets stuck in escrow%. While a variance is prepared to the Planning Department, that variance gets published in the paper, gets sent to everybody in the neighborhood, €hey pay a $250 application fee. The Planning Department is supposed to compl~t~ the variance in two months, but sometimes, in fact, it does take longer. ?4~Ieanwhile a buyer and a seller are awaiting for their house, sales transaction to close. In the circumstances where this was an inadvertent mistake we always grant these variances. So just to make life easier for people in this position, we prepared this rule, I'm sorry, this ordinance. It's based on something that passed the legislature about four years ago. That may already cover-this but has typically peen interpreted to apply only to encroachment across lines. If you have a -stone wall, now say you have an old wall or a fence that goes into your neighbor's property when. they do a proper modern survey by this de minimus amount. That's not considered an encroachment any more. Ire, before the legislature changed the law, you would have to do something about that. So we're just applying that to these building setbacks as well. I've, I have a rule proposed that does the same thing. But it has been, there has been some question whether the rule is enough.. So that's why we're doing an ordinance to cover all the basis. GIFFIN: Commissioners, any questions of the Director? Hearing none, is there anyone from xhe public who is here to testify? BRILHANTE: Yes. GIFFIN: Will you please come forward. And will you please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? 4 BRILHANTE: Yes. GIFFIN: Will you please state your name and your resident address. BRILHANTE: Chris Brilhante, 60 floohaloha Place. Thank you very much for letting me come here today. Actually, I am representing the I-Iawai'i Island Board of Realtors. I'x~ the past president of the Board of Realtors. I'm currently the Vice Chair for the County GoveY~~znent Affairs Committee for the Board of Realtors. I testified at Chris Yuen's public rearing for the rules pertaining to this. And, actually, we want to speak in support of Iris ordinance; Ord we want to thank Chris for putting together this ordinance. Chris gave an excellent background on the de minimus situation. And there is confusion on the State law, whether or rot the State law pertains only to the boundary encroachments and whether or not it pertains to the setback encroachments. And so some of the title companies do let it slide like Chris said. Some of the mortgage companies let it go, but some have a problem with it. It typically does occur after loan approval in a real estate transaction, towards the tail end, usually within about a week or two weeks prior to closing; and it creates tremendous hardship for the buyer and seller. And so the only real question we had was getting clarification on the approval, because I think the rules and the ordinance had two different dates on it. We discussed that in your hearing. And from what I heard today, it was still not clear to me. If I can get further clarification on dates. Because, obviously, having the dates as short as possible would be a benefit, you know, for the whole community, buyers and sellers. And stretching it out an additiona130 days when you really usually only have about 7 days or so, you know, at the most maybe 10 days before GIFFIN: Because it's happening so late in the BRILHANTE: Yeah, because it's happening so late. Keeping that part of this process as expedient as possible would be definitely a benefit. And so if I could get maybe some clarification of the step-by-step process. YUEN: Okay. There's 15 days to review the application; and then if the application is .approved it gets backdated to the date that it was submitted. Okay, and teen you know, Ithink-.that regardless of what I said earlier, we should make it 25 days from the date of approval. So there is a total time frame of 25 days. GIFFIN: Okay. Wait, then we should look at the recommendation. Alice? YUEN: Did you hear that? It should be 15 and 25. KAWAHA: Okay. GIFFIN: Fifteen and 10. 5 YUEN: Well, this is the confusing part, and that's why it was written wrong. When I wrote this up, I thought that you, 10 days after your date of acceptance you finish and you issue the letter saying that it's approved as a de minimus. The way though the staff dates acceptance of applications is that they backdate it to the day that it was submitted, or the day that it was received when the application is accepted. They do this consistently with all the applications. So just to make it simple, February 1St the application gets handed in. February 15t~, is the last day to cccept it; and if it's accepted on February 15th, it's accepted as February 1St. Then the last day to act on it, for the Director to act and approve it as a de minimus, would be February 25th. That would be the way the timeframe works. Correct, Alice? KAWAHA: Yes. I was just thinking of if it happens to be like a 3-day weekend, then you're losing like three days. That's all I'm just thinking about on that. YUEN: Yes. But we should be able, we really should be able to do it. Because the work is going to be on, if everything is there that it's within it's not more than the 6 inches or whatever, then it's a matter of just putting pen to paper and signing it, really. There should be a form letter or clanks that you fill in of how far it is instead of how far it's supposed to be; and then that's it. I mean, we're trying to get something that works, works quickly. So let's do that. GIFFIN: So then we're going to change? YUEN: Again. That would be, 15 and 25 would be the dates. GIFFIN: So the recommendation, Alice, we're going to go back to page 3. Is that correct? KAWAHA: Yes. GIFFIN: And say 25 days? KAWAHA: Twenty five days. Chris? BRILHANTE: As long as we're clear that the total time frame is 25 days, we don't have 15 then additiona125 days. YUEN: It's not right. That's right, its not 40 days, it's 25. GIFFIN: Should we be clear in our wording for the ordinance? KAWAI-IA: It says 25, after acceptance of the completed application. So that's total, from the time that we receive it. GIFFIN: Chris, are you comfortable with that? You don't look comfortable. 6 BRILHANTE: Well, yeah, as long as What Chris said earlier is fine, that they go back to the GIFFIN: Remember Chris is not going to be there always. YUEN: No. But this is the way, this is the way all of the time frames arc read in the GIFFIN: Ordinance? YUEN: Zoning Code. GIFFIN: Oh, okay. YUEN: Which I found out. Now I realize why staff is scrambling all the time. I thought they had 60 days after they finished reviewing it to bring things forward. But it has become 60. Because they backdate it from day one, it becomes a much shorter time frame to do everything. GIFFIN: The reality. YUEN: Right, right. BRILHANTE: All tight. Okay. GIFFIN: So you're comfortable? BRILHANTE: Yes. GIFFIN: Okay, so, Commissioners, under Section 25-4-67, correct, Alice? KAWAHA: Yes. GIFFIN: On page 3, it should read, "Position discrepancy within 25 days after acceptance of the application. If the Director does not approve or deny the application within 25 days...." Correct, Alice? KAWAHA: Yes. GIFFIN: Okay. Alice, was that anywhere else? No, right? KAWAHA: There was a word added in the first 25, within 25 days after acceptance of the completed application." GIFFIN: So is that in the first line of the same section that I read? Where is it? 7 KAWAHA: Yes. GIFFIN: It is? KAWAHA: Yeah., the second, the first sentence that you read GIFFIN: Uh huh. KAWAHA: The word "completed" was GIFFIN: Yes, yes. I'm sorry. KAWAHA: I meant to include, yeah. GIFFIN: These, after the acceptance of the completed, yeah, I even have it here. Okay. With the exception of that, Chris, you were BRILHANTE: We're in support of it. And, again, we thank GIFFIN: You're in support, okay. BRILHANTB: Chris, thank you very much for putting the ordinance together. GIFFIN: Any other questions or comments, Commissioners? Is there anyone else from the public here to testify on this agenda item? Hearing none? KUBOTA: A motion? GIFFIN: Well, not really because this is to be continued to Kona, correct? YUEN: Correct. KUBOTA: Oh, that's right. GIFFIN: But, no, yes? YUEN: No motion. Continue this. GIFFIN: Yes. YUEN: This is the first hearing. We'll have another hearing in Kona before you vote on this. GIFFIN: So we don't even need a motion to continue? YUEN: Right. s GIFFIN: Mr. Torigoe, no? TORIGOE: This is not an action item for today, right, and actually it's just a recommendation that's going to be going up. So YUEN: Right. GIFFIN: So no motion? TORIGOE: I don't think it's necessary. GIFFIN: Okay. The discussion ended at 4:2~ p.m. Respectfully submitted, ~ . ti`~~~ Sharon M. Nomura, Secretary 9