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HomeMy WebLinkAboutCOM 0608.000 2000-2002 ~1°AtY ®F~ y'aB~9 Harry d~ixu Dixie Kaetsu Mayor Managing Director •y ~a Peter T. Young >e's~'~ae.'t° Deputy Managing Director ~®'i~'~ ~ 211 25 Aupuni Street, Room 215 • Hilo, Hawaii 96720-4252 • (808) 961-8211 • Fax (808) 961-6553 KONA: 75-5706 Kuakini Highway, Suite 103 • Kailua-Kona, Hawaii 96740 (808)329-5226 • Fax (808)326-5663 April 22, 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: ' ~~nnnd.~r}en~ t~ Chanter 23 (Sl~"€~divisi®n Code) l~,.i;~~fng to ~'r~:-~x~:>tzng Lots Resutirl~ from leases Change of Zone Application (REZ 01-010) Applicant: Robert K. Greenwell Request: A-20a to FA-1 a Tex Mab Kev• 7-4-6~6 As required by Chapter 4, Sec. 6-4.3(C), I-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, U L'~~ Harry Kim Mayor IA32202may Enclosures ~ cc: Planning Department ~O'~'~° ~ file Nu~ Ref. t~a.~= H Kim ~JM4y ®s,N~~.r arry Mayor I ~G~'m ~a -I,4~•Oi.µppl ~®~~y ~f air PLANNING COMMISSION 25 Aupuni Street, Room 109 • Hilo, Hawaii 96720-4252 (808)961-8288 • Fax (808)961-8742 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: Amendment to Chapter 23 (Subdivision Code) Relatin;? to Pre-Ex~sti~g Lots Resulting from Leases The Planning Commission, after a duly held public hearing on March 22, 2002, is forwarding a default unfavorable recommendation on the proposed ordinance to amend Chapter 23 (Subdivision Code) of the Hawaii County Code, as amended, relating to Subdivisions, specifically pre-existing lots resulting from leases. The 60 days wherein the Commission is to take action on this bill have passed, and there was no quorum to vote on the matter. We are enclosing a copy of the Planning Department's background and recommendation and hearing transcript for your information. Sincerely, . . Geraldine M. Giffin, Chairman Planning Commission Lchap23pre-existinglots ' Enclosures t B PD initpree xi stinglots. skg-1 / 11 /02 COUNTY OP HAV6~AII PLANNING I?EPAIZTMENT ~ACI~GI~OUND I~POIaT PLANNING DIRECTOR INITIATED ACTION AMENDIVIENT TO CHAPTER 23, SUEDIVISION CODE REGADING PRE-EXISTING LOTS (CREATE NE~V ARTICLE 11~ PLANNING DIRECTOR INITIATED proposed ordinance to amend Chapter 23 (Subdivision Code) of the Hawaii County Code, as amended, relating to Subdivisions, specifically pre-existing lots resulting from leases. PLANNING DIRECTOR'S INITATED ACTION 1. Request: The Planning Director is requesting that a new Article 11 be created within Chapter 23, Subdivision Code regarding pre-existing lots. The purpose of this article is to specify when pre-existing lots maybe recognized based upon leases, and to limit the use of certain pre-existing lots for consolidation and resubdivision. 2. Findings: The law regarding lots that pre-exist the subdivision code, and their use for consolidation and re-subdivision, needs clarification. This is particularly true for "lots" that are claimed to result from leases or other temporary arrangements, such as units within abandoned plantation camps. The council should clarify that units within abandoned plantation camps cannot be considered as pre-existing lots. 3. Control over the creation of lots-the subdivision of land into units that can be sold separately-is an essential tool of modern planning. The Subdivision Code ensures that when land is subdivided, the new lots have adequate access, drainage, and other infrastructure. The Subdivision Code specifies the minimum requirements for subdivision, such as road standards. The County has many examples of infrastructure problems from subdivisions developed before there was a strong subdivision code. 4. The Zoning Code works with the Subdivision Code to specify the minimum area and dimension of lots. This is the basic control of density. Lot sizes are a basic difference between agricultural and urban areas. 5. The County's first Subdivision Code was enacted in 1944. On January 8, 1948, the subdivision law was amended so that the lease, as well as the sale of lots, must conform to the Subdivision Code. ~:t. 6. The County has recognized the legal validity of lots created by sale or other transfer of fee simple interest before the creation of lots was formally regulated by the Subdivision Code. All grants and awards of land from the government created separate "lots" when they were conveyed. When portions of those properties were later sold or otherwise permanently transferred, if in full compliance with the laws of the time, new lots were created with the new boundaries. When an owner sold, devised, or otherwise permanently transferred a portion of a lot, it was clearly the intent to make a permanent separation of one part of the property from another. If the County did not recognize the creation of a separate lot by such actions that occurred before the first Subdivision Code, the owners of the areas in question would not own separate properties, and might be co- tenants in one larger lot. 7. Property that was only leased separately is different. The leasing of a portion of a lot does not imply the intent to permanently create a separate legal entity. The owner takes back the area at the end of the lease. I3y law, when the owner of a fee interest also acquires the leasehold interest, the leasehold interest "merges" into the fee interest, and no longer constitutes a separate interest. Simerson v. Simerson, 20 Haw. 57 (1910). 8. The Planning Department has, however, in the past, recognized some pre-existing lots based upon leases, or other temporary arrangements, in certain circumstances. This was done primarily in allowing existing plantation camps to be converted to fee ownership. This preserved existing communities after the demise of the sugar plantations. It allowed the residents of the camps to purchase their homes, in furtherance of the general public policy in favor of home ownership. While some vacant lots were also recognized, these lots were within existing communities. All of the existing camps-those that contain residences-have now been subdivided and transferred. 9. In recognizing that lots based upon leases maybe abused to create new development that is not in conformance with the subdivision and zoning codes. In particular, if "lots" are recognized in long-abandoned plantation camps and these "lots" are then developed without following the regular subdivision and zoning codes, this undermines the public health, safety, and welfare, and the public interest in the orderly development of land. -2- 10. The rationale for recognizing the continuing existence of lots that pre-date the Subdivision Code is that if the land has already been divided and developed, recognizing the lots do~es~not contradict the purposes and spirit of the Code. Akai v. Lewis, 37 Haw. tl 374, 379 (1946). Obviously, to allow subdivision of areas based upon small "lots" whose separate use has long been abandoned would contradict the purposes of the subdivision law. 11. At one time, there were many plantation camps scattered around the island which were closed and abandoned because the companies and workers wanted a higher quality of housing. At one time, the camps did contain residential dwellings. The employees typically did not have long-term or recorded leases to the dwellings. When employees occupied the dwellings as an incident of employment, without a separate contract giving a set term of occupancy, the use of the home was not even considered a lease. Ecija v. Paauhau Sugar Plantation Co., 26 Haw. 42 (1921). The owners have demonstrated that they had no long-term intent or expectation to retain the separate identity of the units within the camps by their actions in demolishing them and putting the land back to agricultural use. For the most part, these areas are in large-lot agricultural zoning, and have been for many years. The owners of areas containing abandoned plantation camps have no reasonable expectation that the individual units in these camps can now be revived and used to subdivide the surrounding agricultural land to lots that do not conform to the subdivision and zoning codes. 12. Past County actions in recognizing pre-existing lots based upon leases might not have adequately considered the significance of other statutes. After 1859, the laws of the Kingdom, and later the Territory, required the recordation of leases with a term of more than a year. Unrecorded leases with a term of more than a year were not valid against third parties without notice. From 1911 on, Territorial law required that when property was subdivided to be sold or leased by lots, the plan of the subdivision would have to be recorded with the Bureau of Conveyances. 13. There is some lack of certainty and clarity in the present law. By enacting this ordinance, it does not imply that the law presently recognizes abandoned plantation camps or other -3- abandoned leasehold interests as pre-existing lots. 14. The ordinance creates two basic exceptions: property that contains a legal dwelling; and property continuously leased as a separate unit. The first exception recognizes the public policy in favor of converting leasehold residential interests to fee ownership. See Chap. 516, H.R.S. The exception for property continuously leased recognizes that this shows a continued intent to treat the property as a separate unit, and that the lease did not merge into the fee. 15. Another related issue in consolidation and resubdivision is the use of lots that were not created to be building sites, such as road lots, flume lots, or railroad rights-of--way. Section 23-7 of the Subdivision Code provides that the normal standards of the Code do not apply if a consolidation and resubdivision does not create a greater number of lots. The rationale for this exception is that the potential for additional development does not result if no additional lots are created. But this exception should not apply to the conversion of lots not meant for buildings to lots that can be used for dwellings and other substantial structures, by the consolidation and resubdivision process. 16. SuYngnary: The new article establishes requirements for recognizing pre-existing lots when they are based upon a lease or other temporary conveyance - 1) it contains a legal dwelling and 2) the property is continuously leased as a separate unit. It also states that the landowner shall provide evidence that a valid lease was in existence on January 8, 1948, which specifies the boundaries of the claimed lot with reasonable certainty. Further, the new article makes it clear that apre-existing lot that was not intended for use as a dwelling site, such as road lots, railroad right-of--ways, flume lines or pole anchors shall be excluded for purposes of Section 23-7. In essence, such lots cannot be consolidated and resubdivided to create a buildable lot. These particular amendments to Chapter 23 shall help to clarify that units within abandoned and vacant plantation camps cannot be considered as pre-existing lots. 17. References: See Exhibit A (Section 23-7 from Subdivision Code) AGENCIES NO RESPONSE 18. Department of Public Works @ Hilo and Iona, Department of Water Supply, Real -4- 0 Property Tax Office, Department of Health. -5- SUBDIVISIONS § 23-4 Section 23-4. Penalty. , Any person violating or failing to comply with the provisions of this chapter shall be sentenced by a fine not exceeding $500. The continuance of any such violation after conviction shall be deemed a new offense for each day of such continuance. (1975 C.C., c. 9, art. 1, sec. 4.) Section 23-5. Appeals. Any person aggrieved by the decision of the director in the administration or application of this chapter, may, within thirty days after the d'irector's decision, appeal the decision to the board of appeals. The board of appeals may affirm the decision of the director, or it may reverse, modify or remand the decision if the decision is: (a) In violation of this chapter or other applicable law; or (b) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or (c) Arbitrary, or capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. The board of appeals shall adopt rules pursuant to chapter 91, Hawaii Revised Statutes, necessary for the purposes of this section. (1982, Ord. No. 748, sec. 1; Am. 1999, Ord. No. 99-11.1,-sec. 2.) Article 2. Administration. Division 1. General Provisions. Section 23-6. Applicability of State and County general plans. This chapter shall be applied and administered within the framework of the County general plan which is a long range, comprehensive, general plan prepared or being prepared to guide the overall future development of the County. The County general plan includes that portion of the State's general plan that applies to the County, or such lesser portion thereof as the County may adopt, together with those comprehensive or general plans for sections of the County which may be adopted as amendments to or portions of the County general plan. (1975 C.C., c. 9, art. 2, sec. 1.) Section 23-7. Applicability to consolidation or resubdivision action. The requirements and standards of this chapter shall not apply to consolidation and resubdivision action resulting in the creation of the same or fewer number of lots than that which existed prior to the consolida- tion/resubdivision action; provided that the director, upon conferring with the chief engineer and manager of the department of water supply, may require necessary improvements to further the public welfare and safety. (1974, Ord. No. 66, sec. 5.) Section 23-8. Issuance of building permits; Zoning Code. No building permit shall be issued for any building to be erected on any lot within the area covered by any proposed subdivision unless the requirements of the Zoning Code are met. (1975 C.C., c. 9, art. 3, sec. 1.) Section 23-9. Permits for installation of service utilities; subdivision approval. The department of public works shall not issue a permit to cut a curb, tap a sewer line, or install any lighting or sewer facilities and the department of water supply shall not issue a permit to tap a water line or install any water facilities in the area covered by a proposed subdivision until such subdivision has been approved as required by the provisions of this chapter. (1975 C.C., c. 9, art. 3, sec. 2.) (Hawaii County 7-1-00) Ifi couN~ o~ ~T~°r~ of ~~r~T~1 SILL NO. ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 23 OF THE HAWAII COUNTY CODE RELATING TO SUBDIVISIONS. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. FINDINGS. The law regarding lots that pre-exist the subdivision code, and their use for consolidation and re-subdivision, needs clarification. This is particularly true for "lots" that are claimed to result from leases or other temporary arrangements, such as units within abandoned plantation camps. The council should clarify that units within abandoned plantation camps cannot be considered as pre-existing lots. Control over the creation of Lots-the subdivision of land into units that can be sold separately-is an essential tool of modern planning. The Subdivision Code ensures that when land is subdivided, the new lots have adequate access, drainage, and other infrastructure. The Subdivision Code specifies the minimum requirements for subdivision, such as road standards. The County has many examples of infrastructure problems from subdivisions developed before there was a strong subdivision code. The Zoning Code works with the Subdivision Code to specify the minimum area and dimension of lots. This is the basic control of density. Lot sizes are a basic difference between agricultural and urban areas. The County's first Subdivision Code was enacted in 1944. On January 8, 1948, the subdivision law was amended so that the lease, as well as the sale of lots, must conform to the Subdivision Code. The County has recognized the legal validity of lots created by sale or other transfer of fee simple interest before the creation of lots was formally regulated by the Subdivision Code. All grants and awards of land from the government created separate "lots" when they were conveyed. When portions of those properties were later sold or otherwise permanently transferred, if in full compliance with the laws of the time, new lots were created with the new boundaries. When an owner sold, devised, or otherwise permanently transferred a portion of a lot, it was clearly the intent to make a permanent separation of one part of the property from another. If the County did not recognize the creation of a separate lot by such actions that occurred before the first Subdivision Code, the owners of the areas in question would not own separate properties, and might be co- tenants in one larger lot. Property that was only leased separately is different. The leasing of a portion of a lot does not imply the intent to permanently create a separate legal entity. The owner takes back the area at the end of the lease. By Iaw, when the owner of a fee interest also acquires the leasehold interest, the leasehold interest "merges" into the fee interest, and no longer constitutes a separate interest. Simerson v. Simerson, 20 Haw. 57 (1910). The Planning Department has, however, in the past, recognized some pre-existing Lots based upon leases, or other temporary arrangements, in certain circumstances. This was done primarily in allowing existing plantation camps to be converted to fee ownership. This preserved existing communities after the demise of the sugar plantations. 2 It allowed the residents of the camps to purchase their homes, in furtherance of the general public policy in favor of home ownership. While some vacant lots were also recognized, these lots were within existing communities. All of the existing camps- those that contain residences-have now been subdivided and transferred. The Council finds that recognizing lots based upon leases maybe abused to create new development that is not in conformance with the subdivision and zoning codes. In particular, if "lots" are recognized in long-abandoned plantation camps and these "lots" are then developed without following the regular subdivision and zoning codes, this undermines the public health, safety, and welfare, and the public interest in the orderly development of land. The rationale for recognizing the continuing existence of lots that pre-date the Subdivision Code is that if the land has already been divided and developed, recognizing the lots does not contradict the purposes and spirit of the Code. Akai v. Lewis, 37 Haw. 374, 379 (1946). Obviously, to allow subdivision of areas based upon small "lots" whose separate use has long been abandoned would contradict the purposes of the subdivision law. At one time, there were many plantation camps scattered around the island which were closed and abandoned because the companies and workers wanted a higher quality of housing. At one time, the camps did contain residential dwellings. The employees typically did not have long-term or recorded leases to the dwellings. When employees occupied the dwellings as an incident of employment, without a separate contract giving a set term of occupancy, the use of the home was not even considered a lease. Ecija v. Paauhau Sugar Plantation Co., 26 Haw. 42 (1921). The owners have demonstrated that 3 they had no long-term intent or expectation to retain the separate identity of the units within the camps by their actions in demolishing them and putting the land back to agricultural use. For the most part, these areas are in large-lot agricultural zoning, and have been for many years. The owners of areas containing abandoned plantation camps have no reasonable expectation that the individual units in these camps can now be revived and used to subdivide the surrounding agricultural land to lots that do not conform to the subdivision and zoning codes. Past County actions in recognizing pre-existing lots based upon leases might not have adequately considered the significance of other statutes. After 1859, the Laws of the Kingdom, and later the Territory, required the recordation of leases with a term of more than a year. Unrecorded Leases with a term of more than a year were not valid against third parties without notice. From 1911 on, Territorial law required that when property was subdivided to be sold or leased by lots, the plan of the subdivision would have to be recorded with the Bureau of Conveyances. The Council finds that there is some lack of certainty and clarity in the present law. By enacting this ordinance, it does not imply that the law presently recognizes abandoned plantation camps or other abandoned leasehold interests as pre-existing lots. The ordinance creates two basic exceptions: property that contains a legal dwelling; and property continuously leased as a separate unit. The first exception recognizes the public policy in favor of converting leasehold residential interests to fee ownership. See Chapter 516, H.R.S. The exception for property continuously leased recognizes that this shows a continued intent to treat the property as a separate unit, and that the lease did not merge into the fee. 4 Another related issue in consolidation and resubdivision is the use of lots that were not created to be building sites, such as road lots, flume lots, or railroad rights-of- way. Section 23-7 of the Subdivision Code provides that the normal standards of the Code do not apply if a consolidation and resubdivision does not create a greater number of lots. The rationale for this exception is that the potential for additional development does not result if no additional lots are created. But this exception should not apply to the conversion of lots not meant for buildings to lots that can be used for dwellings and other substantial structures, by the consolidation and resubdivision process. SECTION 2. Anew Chapter 23, Article 11 is added to the Hawaii County Code which shall read as follows: "Article 11. Pre-existing Lots. Section 23-117. Purpose. The purpose of this article is to specify when pre-existing lots may be recognized based upon leases, and to limit the use of certain pre-existing lots for consolidation and resubdivision. Section 23-118. Definitions. As used in this article, the following terms shall have the meanings indicated: "Pre-existing lot" means a specific area of land that will be treated as a legal lot of record because of a sufficient conveyance that occurred before the enactment of the first applicable county subdivision ordinance. "Conforming" means in compliance with the requirements of the applicable zoning district, including minimum building site area and minimum dimensions. 5 Section 23-119. 1Zequire~nents for pre-existing lots based upon leases. No pre-existing lot shall be recognized based upon a lease or other temporary conveyance, except for a lease which complied with all other applicable laws when made, including Territorial statutes regulating the sale or lease of property by lot number or block number, and on the effective date of this ordinance, the proposed lot: (a) contains a legal dwelling, or (b) has been continuously leased since January 8, 1948, as a separate unit. Section 23-120. Proof. The owner of property seeking recognition as apre-existing lot under section 23-119 shall provide evidence that a valid lease was in existence on January 8, 1948, which specifies the boundaries of the claimed lot with reasonable certainty. Section 23-121. Use of non-buildable pre-existing lots in consolidation and resubdivision. A pre-existing lot that was not intended for use as a site for a dwelling or other substantial building, such as a road lot, a railroad right-of--way, a flume line, or a pole anchor, shall be excluded for purposes of section 23-7, unless it is conforming. SECTION. 3. Section 2 shall not affect any pre-existing lots recognized by official action of the director, or within any subdivision which had received tentative or final approval, prior to the effective date of this ordinance. SECTION 4. Severability. If any provision of this ordinance or application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid 6 provision or application, and to this end, the provisions of this ordinance are declared to be severable. SECTION 5. The Clerk of the County of Hawaii is directed to insert the effective date of this ordinance in any section of the Subdivision Code which requires reference to this date. SECTION 6. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: Date of 1St Reading: Date of 2na Reading: APPROVED AS TO FORM AND LEGALITY: LINCOLN ASHIDA Corporation Counsel DATED: 7 RPDinipreexistinglotskg-1 /11 /02 COUNTY OF IIAWAII PLANNING DEPAI~TlO~IENT RLCOli~Iii~IENI3ATION PLANNING DIRECTOR INITIATED ACTION AIVIENDI9/IENT TO CHAPTER 23, SiJDDIVISION CODE REGADING PRE-EXISTING LOTS (CREATE NEW ARTICLE 11) Upon careful review of the request, the Planning Director recommends that the Planning Commission forward a favorable recommendation of his initiated action to amend Chapter 23 Subdivision Code relating to pre-existing lots to the County Council. Since this recommendation is made without the benefit of public testimony, the Director reserves the right to modify and/or alter the recommendation. This favorable recommendation is based on the following findings: The Planning Director initiated action proposes to amend the Subdivision Code, Chapter 23, to create a new Article 11, Pre-existing Lots. This new article would provide requirements for recognizing pre-existing lots when they are based upon a lease or other temporary conveyance - 1) it contains a legal dwelling and 2) the property is continuously leased as a separate unit. It also states that the landowner shall provide evidence that a valid lease was in existence on January 8, 1948, which specifies the boundaries of the claimed lot with reasonable certainty. Further, the new article makes it clear that apre-existing lot that was not intended for use as a dwelling site, such as road lots, railroad right-of--ways, flume lines or pole anchors shall be excluded for purposes of Section 23-7. In essence, such lots cannot be consolidated and resubdivided to create a buildable lot. These particular amendments to Chapter 23 shall help to clarify that units within abandoned and vacant plantation camps cannot be considered as pre-existing lots. The accompanying draft bill to amend Chapter 23, Subdivision Code, by adding a new Article 11 is provided for your favorable consideration. 1 PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT March 22, 2002 A regularly advertised hearing on the PLANNING DIRECTOR INITIATED PROPOSED ORDINANCE TO AMEND CHAPTER 23 (SUBDIVISION CODE) OF THE HAWAII COUNTY CODE, AS AMENDED RELATING TO SUBDIVISIONS, SPECIFICALLY PRE- EXISTING LOTS RESULTING FROM LEASES was called to order at 3:15 p.m. in the County Building, Councikoom-Room 201, 25Aupuni Street, Hilo, Hawaii, with Chairperson Geraldine Giffin presiding. PRESENT: Geraldine M. Giffin ABSENT & EXCUSED: Fred Galdones Earl Fujikawa Mildred Mosher Florence Kubota Francis Smith Aurelio Mina, Jr. (Left at 3:22 p.m.) Hannah Springer Grant Togashi Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Alice Kawaha, Staff Planner Susan Gagorik, Staff Planner Esther Imamura, Staff Planner Eileen O`Hora-Weir, Staff Planner Kelly Gomes representing Department of Public Works Bruce McClure representing Department of Water Supply And approximately 18 people from the public in attendance. APPLICANT: PLANNING DIRECTOR Il~TITIATED proposed ordinance to amend Chapter 23 (Subdivision Code) of the Hawaii County Code, as amended, relating to Subdivisions, specifically pre-existing lots resulting from leases. GIFFIN: All right, moving right along. We are on Agenda Item No. 7. Agenda Item No. 7 is a continued hearing on the proposed ordinance to amend Chapter 23 (the Subdivision Code) of the Hawaii County Code, as amended, relating to Subdivisions, specifically pre-existing lots resulting from leases. Susan? GAGORIK: This item was also continued from the previous hearing, and at that time, also, we did not have a quorum. The Planning Director is recommending that we move forward with this request. We have submitted to you two revised drafts. One is a draft that shows the Ramseyer format, and in that format, we integrated some minor changes that were suggested by Corporation Counsel. 1 GIFFIN: Yeah. GAGORIK: We also forwarded to you a clean draft which takes out all of those underlined, underscoring and bracketing. I do need to make one comment though on the Ramseyer format. GIFFIN: Hang on just a minute. So which one are we going with, I guess that's my question? GAGORIK: What will be forwarded to the County Council will be the clean copy. GIFFIN: Is that the one that says Planning Department Draft 2 or the one that has nothing on it? GAGORIK: The one that has nothing on it. GIFFIN: Okay. GAGORIK: The Draft 2 is Ramseyered. GIFFIN: Right. GAGORIK: Yeah. So if you pull out your Ramseyer copy and look at Page 6 on Section 23-121, we forgot to insert one word that would make it a little clearer. It says use, in the title, it says "Use of [non-buildable]" and we deleted that. It should say "'certain' pre- existing lots in consolidation and resub GIFFIN: Say again. Where are you? GAGORIK: Section 23-121. GIFFIN: Okay. Yes. Yes. GAGORIK: In the middle of the page. GIFFIN: Yeah. GAGORIK: It says "Use of [non-buildable]," delete that, and include the word "'certain' pre-existing lots in consolidation and resubdivision." GIFFIN: Is that in parenthesis? GAGORIK: "Non-buildable" is in parentheses. GIFFIN: Was. 2 _ _ _ GAGORIK: Yeah. And "certain" should be underscored. GIFFIN: Oh. Okay. GAGORIK: Okay. GIFFIN: Okay. Any other changes? GAGORIK: That's all. In your clean copy, the change was already made. GIFFIN: I see. GAGORIK: Yeah. GIFFIN: So then we, that's the one we should just refer to. GAGORIK: Yeah. ' GIFFIN: Susan, will you please speak to the 60 days. GAGORIK: According to the Zoning Code, whenever the Director initiates an amendment through the ordinance process, it is required to From the time it comes to you, you have 60 days to make a decision and forward it to the County Council. Today makes 63 days, so we are in this timeframe again similar to, I think, the, was the height ordinance that GIFFIN: Yeah. GAGORIK: You addressed in Kona, yeah. GIFFIN: All right. Commissioners, any questions of either Susan or the Director? Mr. Togashi. TOGASHI: I don't have any comments, what was that, questions of the Staff or comments of the Planning Director. But I have studied this, I've read the transcripts, re-read the transcripts, and I'm inclined to vote in favor of the Planning Director's recommendation regarding this amendment to Chapter 23 regarding pre-existing lots. GIFFIN: We do have, just for the Commission's information, we do have nine people who have signed up to testify, so before I entertain any motions, I would like to hear from the public. But is there anyone on the Commission who has any questions? Okay. Hearing none, there are four chairs, so I would like to call Rick Barboti, Alan Kroll, Joel LaPinta, and Jerry Bragdon. Will you please come forward. I only see three. Who's not here? Jerry Bragden? PUBLIC: Alan Kroll is not here. 3 GIFFIN: Alan Kroll is not here. Okay, then Mary Begier. Would you like to wait? BEGIER: No, I'm just going to support them. GIFFIN: Okay. BEGIER: Thank you. GIFFIN: Chris Brilhante. Okay, and I need to swear all four of you in, so could 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: I do. GIFFIN: Okay. Starting with you, sir, will you please state your name and resident address and then begin your testimony. LAPINTA: My name is Joel LaPinta, and my residence address is 2696 Ainaola Drive here in Hilo. GIFFIN: You may begin. (Commissioner Mina left at this time, 3:22 p.m.) LAPINTA: Well, I understand the Planning Director's conundrum with certain landowners coming in with requests to recognize leases as pre-existing lots, and I'm somewhat aware of the history of how that became a precedent. And perhaps the mistake was made early on by former administrations creating that precedent. But I don't have any, I'm looking at this, this is different than applications you, earlier here today. Because this type of application is affecting the, a wide class of stakeholders, including, you know, the stakeholders in this issue, because you are proposing legislation, are people who don't even, aren't even aware that they are stakeholders in this issue. And I'm just looking at the principle of private property rights. The word "pre-existing lot" is a very sloppy term that has been used for some time to describe lots that have been legally created throughout the history of the County. There really is no lot that was not created without some providence or legal authority, be that the quit claim of King Kamehameha IV in the Great Mahele, and then the establishment of the Land Commission, in which kuleanas and ahupua` as, the titles of that were recognized by recordation. And then in the time of the republic, the republic granted, there were many grants made by the republic, and after that, when this was a territory under the Western Homestead Act, many homesteads were created. You know, all of these parcels and remnants were created somehow prior to the 1942 and 1948 subdivision control laws, the first being introduced by, you know, to a very limited, it was a very limited law and it had a very limited scope. 4 But my point is all of these parcels or lots of record are, you know, have a legal, were created under the laws at the time, you know. The property right, the right of property is like the right to your person, and government regulates by restriction of those rights. And to pass an ordinance, the precedent that somehow redefines what it means to be a preexisting lot, I cannot agree with that. Because it's, you know, rewriting the history and restating what these lots, whether or not they were legally created. I think the question is were these lots legally created at the time? GIFFIN: Commissioners, any questions of Mr. LaPinta? Hearing none, Mr. Yuen, is there any response you would like to make? YUEN: The point of this ordinance is to make it absolutely clear that the mere fact that somebody leased a piece of property to, for example, a plantation camp dweller in 1948 did not create a permanent division of the land. LAPINTA: Yeah, I understand that. YLTEN: It makes that clear. And it's the difference between things like grants and other kinds of awards of the fee in property that were legally made in the past, is that those had a permanent existence and apermanent LAPINTA: Right. YLTEN: Entity. LAPINTA: I agree. YUEN: The, and I'll leave it at that. LAPINTA: Can I respond to that? GIFFIN: Just a minute, please. So, Chris, I think if I heard you correctly, you're saying that the original legal grants, or for want of a better word subdivisions, established subdivisions, would not be affected. What you're talking about were lots that might have been created in plantation type situations that occurred all along the, for example, Hamakua Coast? YUEN: Right. And the basic idea that a lease is a temporary arrangement, and when that lease ended, the status of the property being leased out ended, and it returned to the owner. The way that pre-existing lots are legitimately applied is the fact that before the Subdivision Code you could sell a portion of your property without, and, if you owned 100 acres, you decided to sell an acre of that to somebody, you could describe that by metes and bounds and sell that acre to someone else. And, before there was a subdivision law, you were free to do that. And after the subdivision law was enacted, that one acre has a legal status as a lot that was created validly and has a permanent status as such. These kinds of temporary arrangements, these leases, are entirely different and should not be recognized as pre-existing lots. 5 GIFFIN: Mr. LaPinta, I thought, did I hear you say you wanted to add to those comments? LAPINTA: Yeah. My point, that doesn't address my point. I don't disagree with what the Director says. I don't disagree that a lease was a temporary arrangement. In fact, not only were there plantation leases, these plantation camps that we're talking about, but the republic leased tracts of land that didn't correspond to the grants that they made. And at one time we had talked to former Planning Directors about can they be recognized as pre-existing lots, and his, they made the point that they could not be. I disagree with the idea of legislating the issue. I think this is something that should be decided without, I mean, you can lay on a new ordinance. But the fact remains whether or not a lot is a legal lot of record is a matter of the history of when that was conveyed and granted at the time. That doesn't change the fact that your position regarding these leases maybe correct because, you know, I'm not talking about your position on these particular leases; I'm talking about the principle of trying to redefine the meaning of pre- existing lots with the It's meaningless to say that the term pre-existing lot doesn't really mean much. Because pre-existing, which ordinance are you talking about? Which law? The lots that are legally recognizable are ones that were created legally at the time they were created. YUEN: So are you GIFFIN: Mr. Yuen. YUEN: Saying that the ordinance is not necessary because these are things that are already not legal lots of record? LAPINTA: That may be the case with the leases, yes, and you may prevail in that opinion. But I don't agree with passing an ordinance to try to define what needs to be defined in those specific individual cases of a property owner trying to either prove that he has this individual lot, this property right. And you cannot just go and pass an ordinance to change the facts of the past, and that's what this seems to do or attempts to do. GIFFIN: Commissioners, any questions of the testifier? Hearing none, thank you very much. LAPINTA: Okay. GIFFIN: Sir, your name and resident address. BRAGDON: I am Jerry Bragdon. My address is 11-2899 Palainui, Mountain View, Hawaii. I'm here to support the Hawaiian Island Board of Realtors' position on this ordinance. And I would just want the assurance that we continue to enjoy the right to determine legal lots in our business; and I think we've been fair up until now, and I don't want that to change. And I defer the rest of my comments to Mr. Brilhante. 6 GIFFIN: Thank you. Commissioners, any questions of Mr. Bragdon? Hearing none, thank you. Chris. BRILHANTE: Hi, I'm Chris Brilhante, Vice Chair of the Government Affairs Committee for HIBR. Actually, the Board's position should be in front of you dated February 25, 2002. GIFFIN: Hang on just a minute. BRILHANTE: I don't know if you guys GIFFIN: It is here. BRILHANTE: Do you need me to, do you want me to read it or do you, I can summarize it. GIFFIN: If you wait just a minute, let us locate it, because Do you have that memo that he's referring to? It's dated February 25th. Okay. What is your desire? Would you like him to speak to it rather than reading it? Yeah. Chris, would you just kind of summarize each of your BRILHANTE: Sure. The first point is actually what Chris Yuen spoke about earlier. His intention for the ordinance, basically, saying that it's only pertaining to leased parcels that didn't have any metes and bounds, they weren't existing, necessarily existing lots, mainly just camp lots, and say, generally saying that the leases have to be continuous, they have to be in existence. We actually don't have a problem, as the Board of Realtors Government Affairs Committee, we don't have a problem with that; and we would go along with that. And so that's not a problem, okay. What, if you get further into the ordinance though, there are some wording in the ordinance that we do have some concerns on. And so if you go to 23-118 under the definitions GIFFIN: Yeah. BRILHANTE: He, the ordinance uses the term "significant conveyance," okay, in its definition, okay. The term, if an example, what he's saying is you need to have a significant conveyance for a lot, for apre-existing lot to be recognized. If you have a lot that gets dissected with a railroad, okay, that runs through it Okay. I guess that's the end of my testimony, no, just kidding. YUEN: Time's up (jokingly). You know what, could I just interject that we, I did change that definition. GIFFIN: Okay. BRILHANTE: Okay. 7 YUEN: And it's changed in the draft that the Planning Commission has before it. The term "sufficient conveyance" is taken out. It says,"'Pre-existing lot' means a specific area of land that will be treated as a legal lot of record because of actions that occurred before the enactment of the first applicable county subdivision ordinance." BRILHANTE: Okay. YUEN: And that is, that was to BRILHANTE: That's my wording. Yeah, that's YUEN: Yeah. BRILHANTE: Very similar to our wording. We don't have a YUEN: That was in response to a comment that they made earlier that a sufficient conveyance would not include something like the lot being severed by a road. BRILHANTE: Right. YUEN: And that you could create lots through the lots being severed by a road or something else. So although that would also involve a conveyance, for the standpoint of dealing with that, we did change, I did change that. BRILHANTE: Okay, very good. GIFFIN: So you're comfortable with that? BRILHANTE: Yeah, we're comfortable with that, thank you. Moving down to 23-121, and I noticed that there was a change earlier today, so maybe Chris would have to speak on that to give us further clarification. But in 23-121, the "Use of [non-buildable] pre-existing lots in consolidation and resubdivision," our primary concern with this section is the use of the term "not intended for use as a... dwelling or other substantial building," okay. That, our opinion, that leaves it very broad and very vague as to you have certain situations where you can have acliff- faced lot and there could be an argument whether or not you, it could be used for residential purposes or a substantial building can be put on there. There are situations where you have a larger Ag piece of property that has a small remnant TMK there that there could be an argument whether or not that could be used for a dwelling or if it could be used for a substantial building. Small grants, school lots, cemetery lots, all of those would come into question whether they would be recognized. What we would like to do is we would like to clarify that section. And I know that you made a change, but I'm not sure if, you may have to clarify that. What we wanted to have the wording say was "railroad lots, railroad right-of--ways, flume lines, and pole anchors shall not be considered pre-existing lots of record for purposes of 23-7." We don't necessarily disagree with, the previous administrations have recognized railroad lots. They have recognized flume right-of- 8 ways as completely separate lots. We will actually say that it's okay not to recognize; we would go along with saying that those weren't intended to be residential lots or separate lots and not recognizing them would be okay. One of the realtors in discussion today brought up an interesting point though. On the railroad lots, for the most part, the railroad lots are railroad track lots. But when you get into the station area that's, those station lots are really railroad right-of--ways also but they're much larger. Some of them are used for residences, you know. And so by saying that all railroad lots, you know, would not be recognized, you do have an area, kind of a gray area there that you would need to address. The other area is on the flume right-of--ways. 'For the most part, the flumeright-of--ways is a small, narrow, you know, flume right-of--way. But when it gets down to the industrial portion, you know, of certain parcels, it expands out and it becomes a much larger area of land impacting even industrial land. And there is a question of whether that could be considered large enough to be considered a separate parcel of land, a separate lot. I'm not here to specifically speak on those two things. A realtor is going to come up, Vern Yamanaka is going to come up and speak more specifically on that. But our purpose here in this section was to simplify what is going to be considered recognized and what's not going to be considered recognized, and we don't want to have it open and vague, you know. GIFFIN: Yeah. Yeah. BRILHANTE: Which is what the wording GIFFIN: Yeah. BRILHANTE: Was before, okay. Moving on, we wanted to clarify the point regarding my earlier example of having one parcel of land that is dissected with a railroad right-of--way, okay. And so in previous administrations, if you had one parcel of land that was dissected by a railroad right-of--way, actually what you could do is you could go in and you could get, you could recognize three pre-existing lots, okay. You recognize two, the two lots that were dissected and the one lot that the railroad was dissecting the lot. What we're saying is that's no longer going to be recognized, railroad lots won't be recognized, but the other two lots should still be recognized, you know. They are separated out, they are two separate lots; and so, yes, there shouldn't be three lots there, but there still should be two lots there. That is our feedback to you. GIFFIN: Okay. BRILHANTE: Lastly, in, the wording in Section 3, the quotations say that in "Section 2 shall not affect any pre-existing lots recognized by official action of the director, or with any subdivision which has received tentative or final approval, prior to the effective date of this ordinance." What we do, what we'd like is to add in "or applicable appellate body," because the applicable appellate body is recognizing and making a decision. And they do have authority to recognize if lots were pre-existing or not. And so we feel that that's the way it is now, that wording should be in the ordinance, and it's more of just getting that clarified. 9 GIFFIN: Yeah. BRILHANTE: And that's it. I appreciate you guys letting me talk today. Thank you very much. GIFFIN: Okay. Commissioners, any questions of Mr. Brilhante? GIFFIN: Commissioner Springer. SPRINGER: Particularly with regard to the suggested language in Section 3. GIFFIN: Yeah. SPRINGER: Mr. Director, does that seem like a reasonable addition? YUEN: I think that's meant to apply, the only situation I'm aware of is the Pepe' ekeo Camp situation, that that would apply to. I think that would be a question for a court as to whether the ordinance could apply to something that was passed already. I would prefer to leave the language as it stands. On the other question of the, of 23-121, I think that I made the changes requested. It now reads, "Use of certain pre-existing lots in consolidation and resubdivision. Apre-existing lot that was created for use as a road lot, a railroad right-of--way, a flume line, or pole anchor, shall be excluded for calculating the number of lots in applying Section 23-7, unless it is conforming." So it is no longer open-ended, and it was limited to those groups of lots. The rights of way, I don't think that a railroad lot that was used as a station house would be considered as a railroad right-of--way. In any event, the lot could be counted if it is conforming, that is if the lot itself is of the dimensions called for in the zoning, in the zoning district that it is in. GIFFIN: Oh. YUEN: So if, for example, the flume line went into a industrially zoned area in which the minimum lot size was 20,000 square feet and there was 20,000 square feet of flume line in there, that could be counted. GIFFIN: Commissioner Springer. SPRINGER: I, too, as Mr. Brilhante was going over their testimony and as I was looking at our newest draft, felt that the other items were considered. But it seems as though with the discussion of the appellate body, a decision by the Director could be appealed. Did I hear the Director indicate that there's only one such case? YUEN: I think that there's only one situation where there is a determination of pre- existing lots made by a Board of Appeals that's contrary to something recognized by the Director. 10 SPRINGER: And this is a I'm sorry, may I? GIFFIN: Yes. SPRINGER: And this is finite, the number of these lots is finite and that one case exhausts YUEN: Well, there are only a certain number SPRINGER: The possibility? YUEN: Claimed. There are only a certain number claimed. SPRINGER: And there is not potential for more to be YUEN: Well, there are potential for more people to come in with applications. We have one other application that is pending at the Bepartment for recognition of a plantation camp which has been demolished as constituting pre-existing lots. That is the former 'Amauulu Camp above Pu'ueo, which was demolished about 20 years ago. But there is certainly a potential for other applications like that to come in which is one reason for moving forward on this ordinance. SPRINGER: Madam Chair? GIFFIN: Commissioner Springer. SPRINGER: With that in mind, I would be inclined to seek an amendment to embrace the recommendation by the Board but, of course, we'll hear the rest of the testimony. GIFFIN: Yes. Yes. And then I have something to add after that. Any other questions of Chris Brilhante? SPRINGER: No, thank you. GIFFIN: Hearing none, sir. BARBATI: Hi. GIFFIN: Hi. BARBATI: My name is Rick Barbati. GIFFIN: Okay. BARBATI: And I am a realtor and a member of the Hawaii Island Board of Realtors. And I would also like to support the recommendations that they make. That's it. 11 GIFFIN: Thank you. Of Hawaii Island Board of Realtors. Okay. Thank you. Will you please step back, and I would like Karen Clarkson, Vern Yamanaka, and Helene Tajiri to please come forward. PUBLIC: Helene Tajiri had to leave. GIFFIN: Okay. 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: I do. GIFFIN: Thank you. Karen, why don't you begin. CLARKSON: All right. I wrote a letter explaining my position on this pre-existing lot ordinance. Because it specifically touched a client of mine that, you know, purchased his property with the understanding that because there was a flume right-of--way running through his property, he effectively was, you know, there were two separate lots created by that And he wants to be able to do a consolidation resubdivision and donate the bulk of the property to a consortium of agencies that help foster children. And I just am concerned because I felt that the language in the ordinance gave the Director too much leeway to make his own interpretations of what was apre-existing lot or not. And it could potentially change the way that situation has been looked at and that people have relied on that policy in past actions to make their decisions. And to pull the rug out from under them is, I just feel it's not fair. It's very easy to sit there and think up laws that, you know, you want everything to be perfect. But you have to think about how is that affecting people and is it taking away something that they thought they had and, you know, diminish the utility of their property. So I think it's really important to be aware of how these things do affect people on an individual basis, you know, rather than a developer say, but individuals And I wanted you to make aware, be aware of this particular person's situation. GIFFIN: I appreciate your coming. Commissioners, do you have any questions of Karen Clarkson? YUEN: Could I comment on that? CLARKSON: Yes. GIFFIN: Yes, I wish you would. YUEN: Because this is similar to a question that Chris Brilhante brought up. The ordinance would not prevent a lot from being considered two lots if you had one lot and in the olden days a flume was laid across it. It would prevent it from being counted as three lots. CLARKSON: Okay. All right. YUEN: That is the point of the 12 CLARKSON: Okay. YUEN: That is the point of the ordinance, of this part of the ordinance. CLARKSON: I support the idea of not counting the flume, say, you know, but that's my concern, and I just wanted to make sure that was really clear because it didn't seem clear to me. There was still this vague idea of what was considered pre-existing and leaving it up to just the Planning Director to make that determination GIFFIN: No offense intended. Yeah. No, I CLARKSON: You know, as GIFFIN: Go ahead. CLARKSON: That's my concern. But I don't know that that really clarifies, I mean the ordinance doesn't really clarify that forme at this point. I mean I understand you're saying that they don't want to count these other things, but it's not specifically saying GIFFIN: What is. CLARKSON: It's still giving this great latitude for interpretation. GIFFIN: I, too, share that concern. CLARKSON: Okay. GIFFIN: But, anyway, Commissioners, any other questions? Hearing none, Vern. YAMANAKA: Thank you. I guess the advantage of going last, or maybe the disadvantage, is that everything you had prepared to say you can't say now. GIFFIN: All pau. YAMANAKA: But then maybe you can. But I'm glad that Chris clarified that one issue on Paragraph 23-118 because I think that was of great concern to me. Just a little real quick background is that, you know, I was involved in the dissolution or in the resale of a lot of the plantations. Like I did Hamakua Sugar, I also did Puna Sugar, I worked on some C. Brewer land transactions in Ka'u Sugar when it closed. But all during those times, we dealt with a lot of these type of properties, and we, myself and a lot of the other realtors I worked with, we've sold hundreds of these types of lots. And we've sold hundreds of these types of lots with the understanding that the buyers who took them had understanding that they could, you know, they had more than one lot oftentimes. 13 I understand the rationale of treating a flume way and aright-of--way as that. But as Chris pointed out, you do separate and you do have two lots. The thing that bothered me in your, in the discussion and your explanation is that you said there's no problem particularly if there is, if the lots are conforming. Now that creates a big problem because I'll tell you that the majority, over 50 percent are going to benon-conforming. They're going to be non-conforming with Ag zoning, because your Ag zoning is going to run probably about 20 acres to 40 acres. And when you go in and cut a lot, it's going to be like 10,000 square feet, half an acre, one acre, and those lots are virtually non-existing in Hamakua. If I had a five- acre lot in Hamakua, I can get 300 percent more than a lot of 20 acres, you know, size. YLTEN: No YAMANAKA: And so YLTEN: I meant in the situation that was, the example that was given where a flume went into an industrial area and the line became large. Certainly, very few flume lots or rights-of--way, etcetera, in the agricultural areas are going to be conforming, and they are not going to count; and that is the purpose of the ordinance. YAMANAKA: No, but in, okay. Well, that's not exactly true because in the majority of the situations I think, you know, you got to realize those flume lines meandered and the lots are very irregular. So when they do meander, I know of situations in Hamakua where you got, where you do have 10,000 square foot lots; and the lots, although they're a part of the mill site, and that's not just the mill site, it's not an industrial area, in fact. Many of these places were not even zoned. They'd be going through like Papa'aloa, they'd be going down through weigh stations, and they would be going through areas where they collected water like on the upper parts of the river where they collected water for the flumes. There are oftentimes larger areas there, and so those lots tended to be maybe about a half acre in size where they collected water. And, in time, those places might have been leased out for other types of purposes because the lots were, you know, a little bit more significant in size. I've got like, well there, right before Maulua Gulch, I've sold myself parcels that, you know, were three acres, four acres in size, and all the surrounding pieces of 20 acres. And the reason why you have four-acre parcels is because these people, places were collection areas alongside, you know, rivers and streams. But the other situation where they will all be non-conforming is where you have the railroad right-of--ways. Because when you talked about, when Chris touched on the fact that the railroad right-of--ways will go through, I've got situations in Puna, in Kurtistown, where we've actually gone in and sold, you know, within a quarter mile area, maybe 18 separate railroad right-of- ways. And in that area where, if you know where Hoaka Road is, where Hara Store is now, that railroad right-of--way went actually on the, would be the, as you're going towards Hilo, the left hand side of that road. There was a railroad right-of--way that went through that area, and there was a station there. And it's cut into about, you know, two, one 10,000 square feet, one 8,000, and those lots had like utility buildings, station houses; and people bought those with the intent that these might benon-conforming residential sites. Now they don't conform with your zoning, because your zoning there is Ag-1. So if you say non-conforming, then all of these lots you're 14 going to tell me are not going to be legal lots, at least to your discretion. And I don't think I want to run into a situation where a guy who bought a property with intent that he could use it as a residential site all of a sudden can't because it's a decision that you say no, this is non- conformingbased upon the zoning. You know, I've got multiple buyers in that situation. y~N: You're describing a railroad right-of--way that's not just a 50-foot wide right-of--way. YAMANAKA: Yeah, because your railroads never, weren't only, if you say railroad right- of-way, it's not just a road. You got a situation right here, Ho'olulu Park. If you go behind where the pool is, that's a railroad right-of--way, but you got a big roundhouse, you got a building there that was the roundhouse, and it's contiguous with the railroad tracks. My Hilo Iron Works Building, I've got railroad right-of--ways going right through the building, you know, and I, you've got all kinds of situations. You go to 'Opihikao, Kaueleau, down by Kalapana, I`ve got tons of lots over there that have been cut, you know, there were stations on two sides of the railroad right-of--way. Surrounding lands are Ag-20, but you're going to end up with 10,000- 14,000 square foot lots. YUEN: This ordinance only applies to the use of those in a consolidation or resubdivision. Are you selling, you talk about lots that are sold on their own or are they sold to the abutting owner? YAMANAKA: No, and many times there are sold to multiple owners, but sometimes to single owners; that's why the conveyance issue is important. Because like a single buyer will come in and he'll buy maybe four with the idea of taking a 20-acre parcel, he might You know, there are all kind of different situations. Let's say you have a 20-acre parcel with two 14,000 square foot parcels, and the idea is to cut them into maybe five-acre parcels, make them bigger. YUEN: Yeah, with YAMANAKA: From a planning perspective, it's better, right? Y1~N: No, the ordinance YAMANAKA: Than to have anon-conforming small lot. YUEN: The ordinance is meant to prevent, when you have a railroad right-of--way running through a 20, say a 20-acre parcel that's zoned Ag-20, that does create two lots. But to create it from, keep it from being consolidated and resubdivided to three separate lots, yes, that does, that is the effect of the ordinance, and that's what it's meant to do. YAMANAKA: Okay. YUEN: Because 15 YAMANAKA: But what did you mean by saying if it's, only if it's conforming? YUEN: If the parcel, if the roadway parcel itself, say it's an acre, in a one-acre zone, then it is, then that's conforming. YAMANAKA: I think YUEN: The idea is to, so that when people that own a little, large parcel that is cut by a railroad right-of--way, they do not have three lots of record that they can use to subdivide the property with, they have two. YAMANAKA: But if YUEN: Yeah. YAMANAKA: One lot doesn't conform., it's not a problem. YUEN: Pardon me? I'm sorry? YAMANAKA: If the, if a remnant lot that is created as a result of the railroad going through that lot does not conform, it's still going to be recognized as an individual lot. YUEN: This does not change the use of remnant lots. It does not change the use of a portion of a lot that is cut by the right-of--way. YAMANAKA: Okay. YUEN: It, you have two lots rather than three; you do not count the railroad right- of-way as a lot for purposes of consolidation resubdivision. The remnant, the lots on either side do not have to be conforming. YAMANAKA: Okay. Now YUEN: Yes. YAMANAKA: And so I guess the other question is if that railroad right-of--way, they cut that lot. YUEN: Yes. YAMANAKA: Was not necessarily aright-of--way but might have been a train station. YUEN: I think we have to look at that differently. YAMANAKA: That would be looked 16 GIFFIN: Yeah. YAMANAKA: So then we could have YUEN: You have to look at that differently. YAMANAKA: Three lots in that situation. YUEN: Possibly, yes. YAMANAKA: Okay. There's no way to put that into an ordinance; that would have to be a discretionary thing. GIFFIN: At the discretion. YUEN: That's, the ordinance itself is really, is looking at the right-of--way, which is, you know, 95 percent of the length of the railroad or the flume line or whatever. And, now that you mention it, I'm aware, you know, I know of a house that's built on a former railroad station. I think that is, that is a different situation. GIFFIN: Any other questions of Vern Yamanaka, Commissioners? I have to bring this to the attention of the Director. I did earlier raise it with our Corporation Counsel that, as we all knew, Commissioner Mina had to go to the doctor. He is coming back, but with one of the Commissioners being. recused, we do not have a quorum for this agenda item. And so I need to speak and get your feedback regarding what we should do today, and I also would lake to have some feedback from Mr. Torigoe. Being that we are already in the 63rd day, I did not want to give up this opportunity for public testimony because I felt that that was important. And so I'm open to a direction from both of you. Mr. Torigoe. TORIGOE: Madam Chairman, as you know, since we are past 60 days since the submission of this matter to the Commission, according to the ordinance, this matter does get sent to the Council with a default unfavorable recommendation. I suppose what you could do is as you recognized, there have been people who have wanted to give testimony on this and you have allowed them to do so. That is in the record now, such as it is. If you wanted to just forward that along with your, with a default recommendation, unfavorable recommendation, I suppose you could do that just for information purposes. Also, the time has not been wasted inasmuch as it has given the Director a chance to get more input. GIFFIN: Oh, absolutely. I felt that that was important. Did you want to continue? TORIGOE: No, I think that's all I have to say. GIFFIN: Mr. Togashi, I know you had some strong feelings. Did you want to express that or come out on record? TOGASHI: Let me get what Counsel Torigoe is saying. In other words, it really 17 doesn't matter what we do at this point. We don't have a quorum, we cannot vote, and so it's just going to go up as a, our recommendation is a negative recommendation? TORIGOE: That's GIFFIN: Negative. TORIGOE: That's correct. And actually, even if you had a quorum already, you're past 60 days, and so even if you made some kind of a vote, it would be nothing more than TOGASHI: On the record. TORIGOE: An informal statement at this point. TOGASHI: Oh. GIFFIN: Mr. Yuen. YUEN: I'm afraid that's the only alternative. GIFFIN: All right. So, Commissioners, are we all clear on this? Our, this ordinance will go up to the Council with a negative recommendation from us. TOGASHI: Could we GIFFIN: Mr. Torigoe. TOGASHI: I'm sorry. GIFFIN: Mr. Togashi. TOGASHI: So we cannot vote on it because we do not have a quorum. GIFFIN: That's correct. TOGASHI: Right? Okay. GIFFIN: Okay. And I know you had some strong feelings, and so I just wanted to make sure you were clear on it. Commissioner Springer. SPRINGER: May we express our opinion? GIFFIN: For the record. SPRINGER: Into the record? 18 GIFFIN: Yes. Yes. SPRINGER: For the record, I would support the Director's recommendation on this matter with inclusion of the language GIFFIN: Yeah, the language SPRINGER: That GIFFIN: From Chris Brilhante SPRINGER: Mr. Brilhante GIFFIN: Yeah. SPRINGER: Brought forward regarding Section 3, which would insert the following: "Section 2 shall not affect any pre-existing lots recognized by official action of the director or applicable appellate body," and that's inserting "or applicable appellate body" to the language which is recommended by the Director. Thank you. GIFFIN: You're welcome. Mr. Togashi. TOGASHI: Is it possible to call up Mr. Brilhante? I just wanted some clarity from Mr. Bril GIFFIN: Is it germane to this agenda item? Because we still have the next agenda item. TOGASHI: I mean, perhaps maybe you can clarify for me then. I just wanted to know, what was the position of the Board of Realtors? Was it Mr. LaPinta's view or was it more of a view which Mr. Brilhante expressed which was pretty much in agreement with what Director Yuen, except that he wanted GIFFIN: Minor changes. TOGASHI: A little bit more clarity, yeah, in the language? GIFFIN: I think, and Mr. Brilhante is still here so he can correct me if I'm wrong, Chris was referring to this letter on the Hawaii Island Board of Realtors letterhead. TOGASHI: And in this letter, I don't see anything with respect to what Mr. LaPinta was saying that, you know, history GIFFIN: No. No. I think he prefaced his remarks by saying that he also had some personal 19 TOGASHI: Oh, as a GIFFIN: Consideration. TOGA5HI: These were his personal beliefs but they were not necessarily indicative of the Board's. GIFFIN: I think he was in support. LAPINTA: Let me, can I clarify? I GIFFIN: If you'll LAPINTA: I diverted GIFFIN: Please come forward, sir. LAPINTA: I diverted GIFFIN: Please come forward and speak into the mike. LAPINTA: Yes. My position is not directly at odds with the Board's. GIFFIN: No. LAPINTA: But it diverts from them. I think that the history of the laws that were passed throughout have defined what pre-exist, what our lots, the legal record, and that those should stand, and that the exercise of passing this ordinance is unnecessary. I think the Board wants to be sure that since it looks like you want to try to pass this ordinance, that it be done in a way in which the property rights of those parties affected, who are not even aware at this time that their rights are going to be affected, are not abridged bypassing this ordinance. GIFFIN: Thank you. Any other comments LAPINTA: So GIFFIN: Regarding this agenda item? Hearing none, then let's move on to Agenda Item No. 10. Am I correct? It's not, it's Agenda Item No. 8. The discussion ended at 4:05 p.m. Respectfully submitted, ~ b~-._.~..~,a Sharon M. Nomura, Secretary Planning Commission 20