HomeMy WebLinkAboutCOM 0632.000 2000-2002 JNt Y'~F N,68.
Harry Kim c• Christopher J. Yuen
Mayor ,x,~,..T:~ _ Direetor
aTq~F pp ( Roy R. Takemoto
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PLANNING DEPARTMENT
25 Aupuni Street, Room 109 • Hilo, Hawaii 96720-4252
(808) 961-8288 • Fax (808) 961-8742
May 6, 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:
Amendment to Chapter 23 (Subdivision Code)
Relating to Condominium P~~y
12e~ime
As required by Chapter 4, Sec. 6-4.3(C), Hawaii County Charter, transmitted herewith for the
County Council's consideration and action is the Planning Commission's letter and enclosures
regarding the above-referenced matter.
Sincerely,
l~-~
Harry Kim
Mayor
L040502MAY
Enclosures
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PLANNING COISSION
25 Aupuni Street, Room 109 • Hilo, Hawaii 96720-4252
_ (808) 961-8288 • Fax (808) 961-8742
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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)
Relating to Condomirli Pro~~rl~Regime
The Planning Commission at its duly held public hearing on Apri15, 2002, voted to send
a favorable recommendation to the County Council relative to the proposed amendments
to Chapter 23 (Subdivision Code) of the Hawaii County Code, as amended, relating to
Condominium Property Regime (CPR). The Commission is in agreement with the
general aim of the ordinance to end CPR abuses, but also recommends that the Council
consider amending the ordinance to provide for CPR's without meeting all subdivision
requirements for the following: Family CPR's for estate planning, additional farm
dwellings, ohana dwellings, dwellings on RS zoned lots in compliance with minimum
building site areas, and also providing for transition periods for the foregoing.
The favorable recommendation is based on the following:
The Subdivision Code is meant to ensure 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.
The condominium property regime ("CPR") allows separate ownership of
apartments in real estate projects, while allowing the "common elements" like the
Honorable James Y. Arakaki, Chairman
and Members of the County Council
Page 2
roof, hallways, driveways, yards, and so forth, to be held in common. The CPR
disclosure and review process is regulated by the State Real Estate Commission.
In Hawaii County, the CPR has become widely used as a means for
creating separate ownership areas on a single lot without following the
Subdivision Code. The landowner would simply create a CPR. The result is
similar to a subdivision, although not officially called one. The CPR, unlike
subdivision, has no infrastructure requirements and is not reviewed by the
Department of Public Works for the adequacy of the roads or drainage. Although
each unit created must have an "apartment", the Real Estate Commission would
accept something as simple as a toolshed as the apartment and subsequently
approve the CPR.
Most CPR's in Hawaii County have actually involved lots that could not
legally be subdivided because they were not large enough to meet the minimum
lot size required for additional lots in the Zoning Code. But it has been possible
to divide the lot into several CPR units and sell them off separately. This
completely destroys the intent of the minimum lot size established by the zoning,
and is, in effect, a do-it-yourself rezoning.
In response to concerns about the use of the CPR to circumvent the zoning
and subdivision codes, the 2000 State Legislature passed Act 251, which added a
new section to the condominium law to state that "any condominium property
regime established under this chapter shall conform to the existing underlying
county zoning for the property..." Hawaii Revised Statutes, Section 514A-45
gives the County Council the power to enact supplemental regulations governing
CPR's.
In trying to regulate CPR's that are the equivalent of subdivisions of land
it is important not to interfere with the use of the CPR to own multi-unit
buildings. For that reason, the proposed ordinance does not cover zoning districts
in which multi-unit buildings are allowed.
The implementation of Act 251 may cause hardship for some individuals
who made investments in the expectation that it would be possible to do a CPR.
For this reason, the proposed ordinance allows some to complete the CPR process
in this transitional period, but limited to owners who had made their initial filings
within one year of the enactment of Act 251, or who wish to create a CPR on
property which had two legal dwellings, or permits for two dwellings. (Act 251
took effect on June 19, 2000.)
A draft bill to amend Chapter 23, Subdivision Code, adding a new Article relating to
Condominium Property Regime is provided for your favorable consideration.
Honorable James Y. Arakaki, Chairman
and Members of the County Council
Page 3
A copy of the Planning Department Background Report and transcripts of the hearings
are also included for your information.
Sincerely,
Geraldine M. Giffin, Chairperson
Planning Commission
Lcpr2council
Enclosures
' T
BPDCPR.agk-2/6/02
COUNTY OP IIAWAII PLANNING DEPAI~TIVIENT
~A C I~GIZO UN13 I~ P OIIT
PLANNING DIItECTOIZ INITIATED ACTION
AIVIENDI9~IENT TO CIIAPTEI2 23 (SIJ~DIVISION CODE)
IgELATING TO CONDOIl~IINIIJIVI PIgOPEI~TY ItEGI16~IE (CPI2)
PLANNING DIlaECTOIt INITIATED proposed ordinance to amend Chapter
23 (Subdivision Code) of the Ilawai`i County Code, as amended, relating to
Condominium Property Regime (CPR).
PLANNING DIRECTOIa'S INITIATED ACTION
1. Ilequest: The Planning Director is requesting that a new "Article
Condominium Property Regimes" be added within Chapter 23, Subdivision Code,
of the Hawaii County Code. The purpose of the proposed ordinance is to ensure
that when land is subdivided using a condominium property regime, the newly
created lots are adequately served by roads and other infrastructure, and that
drainage and flooding issues are properly addressed. It also clarifies the
applicability of zoning regulations to condominium developments.
2. Fandangs: The Subdivision Code is meant to ensure 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.
.
3. The condominium property regime ("CPR") was devised as a way to allow
separate ownership of apartments in multi-family and commercial buildings,
while allowing the "common elements" like the roof, hallways, driveways, yards,
and so forth, to beheld in common. The CPR process is controlled by the State
Real Estate Commission.
4. It is possible to divide up land with a CPR, by defining areas as "limited common
elements" for the exclusive use of one owner. The result is a division of land that
can be separately sold or mortgaged; similar to the result created by subdivision.
In Ilawaii County, the CPR has become widely used as a means for dividing land
into separate ownership without following the Subdivision Code. The landowner
would simply create a CPR. The CPR, unlike subdivision, has no infrastructure
requirements and is not reviewed by the Department of Public Works for the
adequacy of the roads or drainage. It may be approved by the Real Estate
Commission simply if the right paperwork is filed. Although each unit created
must have an "apartment", the Real Estate Commission would accept something
as simple as a toolshed as the apartment.
5. Most CPR's in Ilawaii County have actually involved lots that could not legally
be subdivided because they were not large enough to meet the minimum lot size
required for additional lots in the Zoning Code. For example, a 20-acre lot in the
Agricultural-20 acres (A-20a) zone district cannot be legally subdivided because
it is already the smallest legal parcel, but it has been possible to divide the lot into
several CPR units and sell them off separately. This completely destroys the
2
intent of the minimum lot size established by the zoning, and is, in effect, a do-it-
yourself rezoning.
6. In response to concerns about the use of the CPR to circumvent the zoning and
subdivision codes, the 2000 State Legislature passed Act 251, which added a new
section to the condominium law to state that "any condominium property regime
established under this chapter shall conform to the existing underlying county
zoning for the property..." Hawaii Revised Statutes, Section 514A-45 gives the
county council the power to enact supplemental regulations governing CPR's.
7. In trying to regulate CPR's that are the equivalent of subdivisions of land it is
important not to interfere with the use of the CPR to own multi-unit buildings.
For that reason, the proposed ordinance does not cover zoning districts in which
multi-unit buildings are allowed.
8. The implementation of Act 251 may cause hardship for some individuals who
made investments in the expectation that it would be possible to do a CPR. The
council fmds that it is reasonable to allow some to complete the CPR process in
this transitional period, but limited to owners who had made their initial filings
within one year of the enactment of Act 251, or who wish to create a CPR on
property which had two legal dwellings, or permits for two dwellings. (Act 251
took effect on June 19, 2000.)
9. Reference: (See Exhibit A -ACT 251, Session Laws of >Eiavvaii-2000, and
Section 514A-45 of the I~avvaii Revised Statutes)
10. Example: (See Exhibit B -1VIap showing examples of Condominium
Property Regime)
3
AGENCIES' COMMENTS
11. Department of Environmental Management (January 25, 2002 Memo):
"We have reviewed the subject amendment to Chapter 23 and our comments are
as follows:
1. Section 23- Purpose. Please revise to read as "...and that
wastewater, drainage and flooding issues are poorly addressed.
2. Section 23-Final approval if no infrastructure required. Please
revise to read as "If the project requires no construction of streets,
private streets, [drains,] drainage improvements, sewers, utilities,
or other infrastructure, the director shall issue final approval at the
same time as tentative approval."
12. Department of Water Supply (January 23, 2002 Memo):
"Thank you for the opportunity to comment on the proposed amendment. I
applaud your efforts to finally have Condominium Property Regimes (CPR's)
comply with the requirements of Chapter 23 of the Hawaii County Code, as it
relates to subdivisions. Given the fact that the present CPR procedure
circumvents the subdivision code and that we are not an approving agency in the
building permit process, we have missed out on revenues and required water
system improvements.
"Given this, I would like to impress upon you to specifically mention, where
appropriate, that Chapter 23-84 of the Code also mandates that a CPR must
provide a water system meeting the minimum requirements of the Department of
Water Supply. Mention is made in the draft of Department of Public Works'
infrastructural requirements that included only roads and drainage facilities.
However, no mention was made of water system improvements other than
`utilities' and `other infrastructure."
13. Police Department (January 28, 2002 Memo):
"Staff has reviewed the proposed amendments to Chapter 23 of the Hawaii
County Code and supports the intent of the amendment as it relates to providing
proper infrastructure."
14. Land Use Commission (January 28, 2002 Letter):
"We have reviewed the proposed amendment to Chapter 23 of the Hawaii County
Code, relating to Condominium Property Regimes (CPR), transmitted by your
memorandum dated January 16, 2002.
4
"Given that the proposed amendment involves the assertion of home rule
authority in issues involving zoning, the State Land Use Commission defers to the
judgement of the County of Hawaii in this matter. However, we support the
County's efforts to establish clear standards and criteria for CPRs, even as the
State Legislature continues to review numerous proposals, both for and against on
this subject."
"Thank you for the opportunity to comment on the proposed amendment."
15. State 12ea1 Estate branch: (See Exhibit C -January 31, 2002 Letter)
5
ACT ~:il
A~'~' S.B i~O. 2766
A Bill for an Act Relating to Condominium Property Regimes.
Be It E~znctecl by the Legislati~r-e of the State of Hawaii:
SECTION 1. The legislature finds that the function of county zoning and
county land development ordinances and rules is to protect public health, safety, and ,
welfare. The purpose of this Act is to clarify that projects created and established as
condominium property regimes are subject to county land use regulatory authority, i
and to ensure that projects created and established as condominium property regimes
conform to the provisions of underlying county zoning ordinances and development
requirements and are consistent with the purposes of adopted county land use
policies and the state land use law.
SECTION 2. Chapter 514A, Hawaii Revised Statutes, is amended by adding
to part I a new section to be appropriately designated and to read as follows:
§514A- Conformance with county land use ordinances. Any condo_
minium property regime established under this chapter shall conform to the existing
underlying county zoning for the property and all applicable county permitting
requirements adopted by the county in which the property is located, including any
supplemental rules adopted by the county, pursuant to section 514A-45, to ensure
the conformance of condominium property regimes to the purposes and provisions
of county zoning and development ordinances and chapter 205. In the case of a
property which includes one or more existing structures being converted to condo-
minium status, the condominium property regime shall comply with section 514A-
11(13) or section 514A-40(b)."
SECTION 3. Section 514A-11, Hawaii Revised Statutes, is amended to read
as follows:
"§514A-11 Recordation and contents of declaration. The bureau of con-
veyances and the land court shall immediately set up the mechanics and method by
which recordation of a master deed or lease and the declaration may be made.
Provisions shall be made for the recordation of instruments affecting the individual
apartments on subsequent resales, mortgages, and other encumbrances, as is done
with all other real estate recordations; provided that land court certificates of title
shall not be issued for apartments. The declaration to which section 514A-20 refers
shall express the following particulars:
(1) Description of the land, whether leased or in fee simple, on which the
building or buildings and improvements are or are to be located;
(2) Description of the building or buildings, stating the number of stories
and basements, the number of apartments, and the principal materials
of which it or they is or are constructed or to be constructed;
(3j The apartment number of each apartment, and a statement of its
location, approximate area, number of rooms, [and] immediate com- ;
mon element to which it has access, designated parking stall[,] if f
considered a limited common element, and any other data necessary l~ur
its proper identification;
(4) Description of the common elements;
(5) Description of the limited common elements, if any, stating to which i
apartments their use is reserved; t
i
833
i
'
(6) The percentage of undivided interest in the common elements apper-
taining to each apartment and its owner for all purposes, including
voting;
(7) Statement of the purposes for which the building or buildings and each
of the apartments are intended and restricted as to use•
(8) 1 he name of a person to receive service of process in the cases
hereinafter provided, together with the residence or place of business of
the person which shall be within the county in which the property is
located;
(9) Provision as to the percentage of votes by the apartment owners which
shall be determinative of whether to rebuild, repair, or restore the
property in the event of damage or destruction of all or part of the
property;
(10) Any further details in connection with the property [which] that the
person executing the declaration may deem desirable to set forth
consistent with this chapter;
(11) The method by which the declaration may be amended, consistent with
this chapter; provided that an amendment to the declarations of all
condominium projects existing as of May 22, 1991, and all condomin-
ium projects created thereafter shall require a vote or written consent of
seventy-five per cent of all apartment owners, except as otherwise
` provided in this chapter; provided further that the declarations of con-
dominiumprojects having five or fewer apartments may provide for the
amendment thereof by a vote or written consent of more than seventy-
five per cent of all apartment owners;
(12) Description as to any additions, deletions, modifications, and reserva-
tions as to the property, including without limitation provisions con-
cerning the merger or addition of later phases of the project. To the
extent provided in the declaration, an amendment to the declaration
[which) that is made to implement those additions, deletions, modifica-
tions, reservations, or merger provisions shall require the vote or
written consent of only the declarant or such percentage of apartment
owners as is provided in the declaration; and
(13) [In the case of a project which includes one or more existing structures
being converted to condominium status, a statement] A declaration
subject to the penalties set forth in section 514A-49(b) that the [project)
condominn.rm property regime is in compliance with all zoning and
building ordinances and codes [applicable to the project], and all other
permitting requirements pursuant to section 514A- and specifying[,
rf applicable:] in the case of a property which includes one or more
existing structures bung converted to condominium status•
(A) Any variances which have been granted to achieve such compli-
ance; and
(B) Whether, as the result of the adoption or amendment of any
ordinances or codes, the project presently contains any legal non-
conforming uses or structures[.]1
except that a property [hat is registered pursuant to section 514A 31
shall instead provide this declaration pursuant to 514A-40 "
SECTION 4. erection 514A-40, Hawaii Revised Statutes, is amended by
amending subsection (a) to read as follows:
"(a) No effective date shall be issued by the commission for a final public
report prior to completion of construction of the project, unless there is filed with the
commission:
S3~i
ACT ~~1
(1) A statement showing all costs involved in completing the project,
including land payments or lease payments, real property taxes, con-
struction costs, architect, engineering, and attorneys' fees, financing
costs, provisions for contingency, etc., which must be paid on or before
the completion of construction of the project;
(21 An estimate of the time of completion of construction of the rota(
project;
(3) Satisfactory evidence of sufficient funds to cover the total project cost
from purchasers' funds, equity funds, interim or permanent loan com_
mitments, or other sources;
(4) A copy of the executed construction contract; {
(5) Satisfactory evidence of a performance bond issued by a surety 1]_
tensed in the State of not less than one hundred per cent of the cost of
construction, or such other substantially equivalent or similar instru-
ment or security approved by the commission;
(6) If purchasers' funds are to be used for construction, an executed copy
of the escrow agreement for the trust fund required under section 514A-
b? for financing construction, ~,vhich expressly shall provide for:
(A) No disbursements by the escrow agent for payment of construc-
tion costs(,] unless bills are submitted with the request for dis-
bursements that have been approved or certified for payment by
the project lender or an otherwise qualified financially disinter-
ested person; and
(B) No disbursements from the balance of the trust fund after pay-
ment of construction costs pursuant to [the preceding] paragraph
until construction of the project has been completed and the
escrow agent receives satisfactory evidence that all mechanics'
and materialmen's liens have been cleared, unless sufficient
funds are set aside for any bona fide dispute;
(7) A parking plan to include designated residence parking stalls and guest
parking, if any, exclusive of assignment to individual apartments, if
parking stalls are to be considered limited common elements; [and]
(8) A copy of the disclosure statement required by section 514A-62(f)(3) if
an effective date for a contingent final public report has been issued by
the commission and the report has not expired[.]; and
A declaration subiect to the penalties set forth in section ~1~1A-49(b~
that the project is in compliance with all county zonink and building
ordinances and codes, and all other county permitting requirements
applicable to the project, pursuant to section 514A- "
SECTION 5. Statutory material to be repealed is bracketed. New statutory
material is underscored.'
SECTION 6. This Act shall take effect upon its approval.
(Approved June 1J. 2000.j
Note
I. Edited pursuant to HRS §23G-16S.
~~;'1 }
_ _
t:;t)c=it:rt~,'.1-l~`l1F.~wi f'14.t_>!~"1~',;.ilr' d,.:(;~.x.lt-,:~, zJ=Y,`;_l`j
~at151aCtJr'y CVrdf=LrCf: th=1t UnE; Or 1?crth 8~~.17-rrlir~Ilt, `_LLC f~r(h~'.r r~',["ilnt;/1 bV
the deve.Jvper, or cvnv~.yr:d to an ine~=ucablr: iru,t a. I,~:ra-:fir a ~;poecse c,r
farruly member of the developer. r~ firruly .uremb,~r i; ~~rryvr~~+ rt~lated }>v
blriod, descent, ur adoptlvn; and
(3j Payment of a uvrlretunctab.le .fee a~< provicleci by rules ' ~k,~,tr_.r1 by nc~:
department of cvrnrnerce and cvnsurne.r affairs pursuant to chapter 91.
`1'he final report shall be subject to th.c: supplemental pr.tblii. ceps>rt re.-1rri,enret,ts
as provided in section 514A-~11(aj.
The developer receiving an order under this sttbsecu~u :.ball prrivide writrer,
notification to the commission within dlu~ty calendar cLrys r_~Fauy subsPq,tc~:nt Sale and
conveyance of either apartrru:nt to an.y persvn. [.L 1'17;', c'd8, pt of §2_; Eim C, l'_~91, c
=t<l, §13; am L 1992, c 113,~s'1]
§S1~lA-44 Deposit of fees. :x.11 fees coliecterl unclr:r this el,apter >ha11, unless
otherwise provided in this chapter, be deposited t,y the director of conurterce and
consun-ter affairs with the director of finance to the eredit of the general fund. [L
1977, c 98, pt of §3; am L 1983, c 20~t, §8; am L 1983, c L"?'l, §17; am L 1991, c 44,
§ 14]
§51~1A-~5 Su{rplernental regrrlatiorrs gaverning a contlorrrinium property
` regirxae. Whenever they deem it proper, the commission, the county councils of the
various counties or the city council of the city and county of Hor?olulr, may adopt
supplemental rules and regulations Kaverning a condvnrin.iurn property regime
established under this chapter in order to implement this program; provided that any
of the supplemental rules and regulations adopted shall not conflict with this chapter
or with any of the rules and regulariorrs adopted by the commission to implement this
chapter. [L 1977, c 98, pt of §2; am L 1988, c 65, §2; am L 1901, c 44, §15]
§514A-~6 Irivestigratory powers. tf flee conr.rnission has reason tv believe
that any person is violating or has violated any provision set forth in sections 514A-
2, 514A-31 to ~ 14A-49, 514A-bl to 514A-63, 'i 14A-65, 514A-f,7 to S l 4A-70,
514A-83.S, 514A-84, 514A-8~, Sl4A-9~, ~14A-95.1, ~IdA-47, 51~1A-98, 514A-
132, 514A-134, or the n,les of the cornmissivr, adopted pursuant thereto, the
commission may conduct an investigation of [he matter and exanti.ne the books,
accounts, contracts, records, ar,d files of the association, the bvani al' clirecturs, the
managing agent, real estate broker, the real estate. salespe.rsvn, the: p,ucl,aser, or the
developer. For the purposes of examination, the developer and the real estate brv.ker
shall keep and maintai.rt records of all .sa.les transa,;tivns nerd of the funds received by
kl,e dev°loper srr,d the real estate broker pursuant t}rer~.ty, <lnr( to ,r;ak.e such re.r..ords
accessible: to the cornrnissior, upc;n reasonable notice acrd derna,cd. [L lf'/'r, c 98, pt
of §'L; am L, 1984, c'~S, and r '~13, §~l; gen clr 198; .ten L, 1?89, c 1, ~3-t; am L
:1990, c ~4, §'L; am L 1991, c std, ~iGi; am L 1992, r 113, ;;3J
§3:1rj~--17 C'ettse ~,!,d rlr'•;st c~rder•~. lr, ,,,1cLtiou tv if,, autYic~r_i.tj= c_,nder
se,;tivn ~ l=t:~-48, whenever the cornrnisson has r:'a3oi, to brli~~=e tl,rt ,tny },r,r;i>n is
violating or leas violated s?, ion; ~ 14-,_ ~ 1=t;1-3 ! to `~1=tr1--1'~,. l:;-~-;1 tv ~ 1=4A-
F3,514A-5~,~14A-6?tv~1~tA-JU,~1~1,~. vi.~,~1=1.r1-'r,~t,51=1,~-?;:5,5i'l;1-`.~`:~,~14'1-
95.1, ~1=IA-y~7, 514A-98, ~l'tA-13"Z, ~14A-13d, ur the rules cif the cvn:uni=slnn
adopted prus~.,ant thereto, it shall istle >~cnrf s,-rvr ~.iuoo the person a ;:r~rr~ f~l~liut stating
its charges in that respecr cor;taiuin~ a notice of a hr.,ri,~,g t,pc>u d:a~; ~.icu1 at ti crla:;e
therein fixed at least thirty nays after the: ser~vicr; of th>= i;omplaiot. 1t1Y per:;orr ~o
<:OrrlplartleCl Ot has the r1~~ilC to a(.~GeBr 1t Cl?C ~(7ii;r:e 1Il~~1 t107~' ~Q h,(c7~_l ;1~1~1 cifl_,'='+ CrI!l~•?
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01/31/02 15:48 FAX _ ~J002
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63ENJd1QI~IPd J. ICAYI=TAIdO KA7M62YN S, I~A'TA1P®5~d1
GOVERNOR f ~ OIf~CT062
Il= aL alp®NO JAN
LIEUTENANT GOVERNOR ~ ,are' ACTMG UCEPd&BA9G ADPAlNI57RR'roq-, /
n4~sea~ow~ _ _
STATE of hiAwan
F'R®FEBSBONAL Ard9J VOG4TI9NAL LICENSING DIV1SlOP1
®EP~tTMEN1' ®F COMMERCE AND CONSUMEr~ AFFAIRS
25D SOUTH KING STREE'T', ROOM 702
71®N09.ULU. HAWAIB 88b13
htPp:/Mnnav.alate.hLa~lPlie®c
hlrec@dcca.s421®,AI.u9
January 31, 2002
Mr. Christopher J. Yuen
Planning Director
County of Hawaii
25 Aupuni Street, {doom 109
Hilo, I-fawaii 96720-4252
Dear Mr. Yuen:
Re: Planning Director Initiated Amendment tv Chapter 23 (Subdivision Code)
of the Hawaii County Code, Reiating To Condominium property Regimes
Thank you for the opportunity to provide cornrraents on your proposed
amendments to Chapter 23 of the Hawaii County Code. We understand that the
proposed amendments to Hawaii County Subdivision Code provides for the following:
• makes the proposed amendments applicable to the creation of cor~dorvTiniun`T
property regimes in RS, RA, A, FA, IA, and AP17 zoning districts;
• prohibits a developer from ofiering for saie or lease any apartments in a
condominium property regime in RS, ice, A, FA, !A, and APD zoning districts
unless the project obtains final condominium property regime approval from
the director,
• prescribes the requirements for final condominium property regime approval
substantially similar to approval of a subdivision;
• requires the Planning 1irector of Hawaii County to regulate the offering for
sale of condominiurni property in Hawaii County and prescribes the
procedures for regulating the offering.
We have reviewed the proposed amendments, relevant portions of Hawaii
County's Subdivision Code, Chapter 23, and provide our comments in two parts. Part I
provides some general information and discussion about the Condominium Property
Regime Law, Chapter 5146A, P--IRS, ("state candorninium statute") for purposes of
clarifying what appears to be some misconceptions about what the law is and isn't. Part
01/31/02 15:48 FAh ~ 009
Mr. Christopher Yuen
January 3l, 2002
Page 2 of 11
Two provides fior a specific discussion of certain provisions of the proposed
amendments together with s®rne recommendations.
dart ~17e~ 'The ilerais~atlve intent and~ur,p®se of the C®lncl®rrainiut~l Pro~~o
Reg_ir~tes L.aw. Char 51~~
~'he legislative history for the Condominium Property Regimes Law, Chapter
514A, HRS, indicates that law is a land ownership law, a consumer protection law, and
governance law. It provides specifically for the creation of the condominium property
regirrle, t the regulation of its sales and offering of sales, 2 s and the marketing of the
' §514A-20 ColldorsAenlurn propc~ regimes. Whenever the sole owner or all of the owners
including all of the lessees of a property expressly declare, tluough the execution and
recordation of a rraaster deed, togetlacr witb a declaration, which declaration shall see forth
the particulars enuanerated by section S 14A-11, the Sole owner's or their desire to submit fire
property to the regime established by tins chapter, tltere shall thereby be established a
condomiatittartproperfy regime with respect to the property, and this chapter shalll be applicable
to rha property. If the master deed is already recorded, the recordation of the d~claaation is
su>'i'icicnt to achieve the same result. [L 1977, c 98, pt of §2; gen ch 1985; am L 1988, c 65,
§2]
a §514A-31 NotilieaatiorA off lnteattion. (a) Prior to the time when apartxncnts in a condominiumproject are to be
offered for sale in dais State, the developer shall register the project with the comtrnssion by notifying tine
commission in writing of the developer's intention to sell such apartments. No offer of sale or salt shall be trtade
until the project has been registered with the commission and the co~nission has issued an effective date for the
project's preliminary, contingent final, or final public report.
(b) Frior to the time when a developer offers or proposes to offer for sale a time share plan located in a
condotaainiuxra project where apar~cnts are being offered or proposed to be offered for sale for the .first time to the
public, the developer shall register the praject with the commission and obtain an effective date for the developer's
public report; provided that the developer shall not be required to deliver to a prospective purchaser or purchaser a
true copy of the developer's public repore or disclosure abstract, as required by this chapter, when a time share plan
is duly registered under chapter 514E, and for which a disclosure statement under chapter 5141r is effective and
required to be delivered to the purchaser or prospective purchaser. jt. 1977, c 98, pt of §2; gen ch 1985; am L 1991,
c 44, §2; am L 1997, c 135, §4; atn L 2001, c 237, §1]
3§514A-36 Public regaorts artd regis4ration fees. (a) Coaacurrcntly with its filing with the
cotrurtission of the notification of intention purstaant to sections S 14A-31 and 514A-32, the
developer shall prepare and submit to the commission a public report disclosing all material
facts pL'rtaining to the proj~ct.l`ltc public report shall be in such foma and content: as
prescribed by the commission. Such public report may not be used foe the purpose of selling any
apartments in the project unless and until the commission issues an effective date for the
public report. The conunlssion's issuance of art effective date for a public report shall not be
construed to constitute the commission's approval or disapproval of the project, or the
conarnission's representation Cleat all material facts concerning the project have been fully or
adcgttalely disclosed, or the commission's judgaacnt of the value or merits of the project. No
effective date for a final public report shall be issued until execution and recordation of the
deed or master lease, the declaration, the bylaws, and floor plans, as provided by sections
514A-12, 514A-20, and 514A-81.
01/31/02 15:49 FA% f~1004
Mr. Christopher Yuen
January 31, 2002
Page 3 of 11
condominium project in phases through the use of varying types of developer's public
reports. a
Specifically, the law allows:
Persons to own real estate under the condominium form of property
ownership (i.e., a form ®f real property ownership where each individual
member holds title to a specii•ic apartment and an undivided interest as a
"tenant-in-common" with other apartment owners in common elements such
as the exterior of buildings, structural components, grounds, amenities, and
internal roads and infrastructure);
Consumer protection regulation of the sale of apartments in the condonrlinium
property regime by means of adequate disclosures of all material facts
pertaining to the co~ldonninium protect; and
Provide for the managernent of the ongoing affairs of the condominium
community with minimal government involvement.
Contrary to what some would believe, the state condominium law doss not:
• provide the Deal Estate Commission (°°Commission", hereafter) with authority
to approve or disapprove a proposed condominium project. 1°hhe
Commission's limited authority is only initiated if the developer deoides to
offer the individual apartments for sale. After filing the appropriate
documents, the Commission may issue an effective date for a developers
public report upon the developer disclosing all material facts pertaining to the
(b) The commission may determine when a public report wilt supersede tht public reports
previously issued for the project.
(c) The developer sha11 be assessed nonzefiuadablc fees as provided in the rules adopted by the
director of commerce and consdurzer affairs pursuant to chapter 91, for each effective date
requested for a public report, including extensions, if any. [L 1977, c 98, pt of §2; atn L
1986, c 295, § 1; am L 1988, c 72, §2; am L 1991, c 44, §7; am L 1997, c 135, §TJ
a A developer's preliminary public report allows the developer to test the feasibility of tine projeeC vviehout binding
the purchasers. For this marketi~og phase, the developer is simply" testing the waters," and can do so without
recording a declaration, floor plans, and even without building permiu and a constntction lose. A developer with a
developer's contingent p~Iic report, for a period of 9 months, may among other things bind purchasers to a
contract without having amoMg-other things, a construction contract or building permits (section 514A•64.5(c),
~S)• With a final developer's public report, the developer can bind prospce[ive purchasers to a conIIaet. Among
other reduirements, for a final developer's developer's public report, the developer must have recorded a declaration,
executed construction contracts, obtained building permits.
01/31/02 15:49 FAg ~ 005
Mr. Christopher Yuen
January 31, 2002
Page ~ of 11
project and satisfying certain other requirements.s A point of information,
there are a good number of condominium projects existing in i~lawaii that
were not required to ale any application or documents with the Corr9rnission
as they were not being offered for sale;
• subdivide land; is not a land use law. It is a form of ownership or real
property and it does not govern what type of structures may be built on real
property, or the density/size, location and conditions of the structs~res, or
change zoning. Those issues are specifically left to separate state and
county lands use laws.
Thus, we recommend that the proposed amendments be amended to reflect the
legislative intent of the state condominium law consistent with our discussion as outlined
in this part of vur response.
We have attached a copy of the Commission's ®ecember 27, 2001 progress
report to the Legislature on the °'Recodfication of Chapter 514A, Hawaii Revised
Statutes (Gondominiurrr Property Regimes) In response to Act 213 Section ~ (SLM
2000) which includes a ¢ull discussion of the legislative intent and purpose of the
Condominium Property Regim®s Law.
Part T'v?®: Specific c®~ments ®n the pr®p®sed arr~endrnents t® Chapter 23
(Subdivlsl®n G®de) ®f the Hawaii C®unty C®de, relating t® C®nd®eir~inlum
l~r®perty ftegFn7as
Note- brackets indicate deleted material; new material is underlined.
While we recognize the County's concerns relating to adequate roads and other
infrastructure, we understand that the counties have certain powers, which are subject
to state general laws. Specifcally, we understand that section 46-1.5 (13), l~RS, gives
counties "the powers to ~:nact ordinances deemed necessary to protect health, life. and
property, and to preserve the order and security of the county and its inhabitants on any
subject mater not inconsistent with, or tending to defeat, the intent of any sta#e
statute..."
We are providing the following comments for those parts of the proposed
amendments that we feel are either inconsistent with, or tend to defeat the intent of the
Condorrdinium Property Regime Law, Chapter 514A, MRS.
s Supra 3.
O1/~1/02 15:49 Fr1% 1~J006
Mr. Christopher Yuen
January 31, ~00~
Page 5 ofi 11
1. Page one, last paragraph:
In line two, the language "multi-family and commercial buildings" needs further
clarification as the condominiut~ law does not limit CPRs to these two types. The
condominiums law includes all types of structures for all types of usage, including
industrial CPRs, parking stalBs CPRs, loading docks CPRs, warehouse CPRs, hotel
CPRs, business office CPRs, single-family CPRs, etc.
The last line "CP'R°° process is controlled by the State Real estate Cornrrtission';lhe
Commission does not control the GPR process- While the state condominium
statute provides the Commission with authority to regulate the registration of the
condominium project, its offering and sales, and issuance of an c;ffective date for a
developer's public report; the developer is required to construct and develop the
condominium project In accordance with all applicable county codes, land use laws,
and other applicable laws. Section 514A-1.6, i-iRS, makes this clear,
~Ve recommend. that the language be amended to read:
"The condominium property regime ("CPR") [was devised as a way to allow] lave
vermits the separate ownership of apartments Cis multi-family and comn~aercial] within
a real estate r~ro'e~t, while allowing [the] for cvmrnon element: like [the] roofs
hallways, driveways, yards, and so forth, to be held in common. The CPR
disclosure and review process for purposes of cansumer r~otection in the sale of
a a e is is [controlled] regulated. by the State Real estate Commission."
2. Page two, first paragraph:
In lines one, two and four, the references to the CPR statute permitting the division
of land or dividing land is incorrect. The condominium law is basically an ownership
law. A review of the early legislative history as discussed earlier and in our progress
report attached hereto indicates that the purpose of the state condominiurr~ law was
to establish a form of real property ownership in response to the h®using shortages
created by the early war years and the opportunity to capitalize on federal Insurance
of mortgages for condominiums. Additionally, it appears the legislature intended that
Chapter 484, F#RS, "Uniform Land Sales Practices Act" govern the sale of divided
lands in conjunction with the county subdivision ordinances and codes.
In line two, the language that a limited common element is for the exclusive use of
one owner is incorrect. The law defines it as "...reserved for the use a certain
apartment or certain apartments..."
O1/-31/02 15:50 FAQ _ _ I~j007
Mr. Christopher Yuen
January 31, 2002
Page 6 of 11
In line three, the language "separately sold or mortgaged" as it relates to "limited
common elements" on lines one and two is incorrect. The law does not permit a
limited common element to be sold separately or mortgaged.
In line eight, the language that a CPR may °°be approved by the Real estate
Commission" is incorrect. The Commission neither approves or disapproves the
project. See pages 3 and 4 and see footnote 3.
In line nine, the reference to "each unit created must have an "apartment"," is
confusing. An "apartment" is defined as a "unit" in Chapter 107, Hawaii
Administrative Rules. They are basically interchangeable terms. The more
consistently used term would be "apartment°°.
Rec®mrr~end: wherever the term "~unlt" appears thr®~a~h®ut the prop~~al,
replace with the term "apartaraent".
In line ten, the language that the Commission "would accept something as simple as
a toolshed" is very misleading, The law defines an "apartment as part of the
property intended for any type of use or uses, and with an exit to a public street or to
a common element_..leading to apublic street...". Thus, an apartment may be of
any type of structure and does not have to be a building as long as it falls within the
definition of "apartment". CPR is created by the filing of the declaration, bylaws,
and condo reap with the bureau of Conveyances N®'~ with the Corr'mission. The
Commission has n® authority to reject a "toolshed'° as an apartment.
9i9/e rec®mrrree~d that the language ibe amended t® read:
"CPR permits ownership of a lot by separate owners owning separate apartments.
1°hese apartments may have °°limited common elements" which are certain type of
common elements reserved for the use of a certain apartment or apartments to the
exclusion of other apartments. The apartments can be sold separately and
individually mortgaged. In i-iawaii County, the CPRs do not have to comply with the
subdivision code. The CPR is not reviewed by the Department of Public 1/Vorks for
adequacy of the roads or drainage. CPR may be created simply by filing a
declaration, bylaws, and condo map with the Bureau of Conveyance. The definition
of "apartment" is very broad and can include a toolshed, a parking stall, a portion of
ya,, warehouse, a portion of a loading dock, a lobby or front desk area in a condo
I lot~il, ~.t~'i•n
3. Page two, second paragraph:
01/31/02 15:50 FA% (~j008
Mr. Christopher Yuen
January 31, 2002
Page 7 of 11
The reference to the CPR destroying the intent of the minimum lot size; as
discussed earlier, the condominium statute requires the developer to develop and
build the condominium project in compliance with all applicable county ordinance,
codes, and permitting requirements. It is the practice, though not required by the
state condominium statute, that developers transmit a copy of its notice of intent to
offer for sale apartrraents in the condominium project together with a copy of the
deolaration and condominium map to the county. The county is provided an
opportunity to cornmenfi on the proposed notice of intent. It has been Commission's
practice, where applicable, to include the county°s comments in the developer's
public report as a part of the developer's disclosure of material facts.
In line 15, the language "possible to divide the lot into several GPR units..." is
misleading for the reasons mentioned previously on page 5.
Vole rec®rt~merad the language be ~mendecll t® read:
"possible to divide] create more than one apartment on the lot (into several CPR
units] and sell them off separately. This
4. Page three, proposed section 23 °'Purpose." Referencing ",..when land is divided
using a condominium property regime"; we have the same concerns as discussed in
number 2 above.
VVe rec®ro~rnend that the language be ar~tended t® read:
"...when land is [divided using] placed under a condominium property regime, the
individual [units] a ap rtments created are adequately...".
We have received complaints from prospective purchasers ar~d purchasers that the
developers from some condominium projects did not adequately disclose these
issues prior tv the sale of the apartments.
5. Page three, proposed section 23 "Definitions' ; it appears that the proposed
definitions for the most part are similar to those found in section 514A~3, l~RS. 1=or
clarity and consistency we recommend that definitions reference section 514A~3,
NRS, for example, " "Apartment" has the same meaning as defined in section 514~P+-
3, l~RS, ' ;unless the proposed amendments are meant to provide different
meanings.
6. Page four, Section 23- ,Applicability. Reference to "sections apply to the creation of
condominium property regimes°; state condominium statute governs the creation of
condominium property regimes. See footnote 2 section 514,4-20, FIRS, and
O1/~1/02 15:50_FAg ~J009
Mr. Christopher Yuen
January 31, 2002
Page 8 of 11
discussion of county ordinance and section 46-1.5 (13), FIRS, in the introduction
paragraph of part ll.
'iiJ99e recomrn®rtd that the language be artnended t® read:
"Sections to apply to [the creation of] condominium property regimes in the RS, RA,
A, FA, IA, and AP® zoning districts._.."
Page five, Section 23. Approval Required. reference to "no developer shall offer
any units for sale or lease state condominium law preempts the county from
governing the offering of apartments/units in a condominiurr~ property regirtr~ for
sale. See footnote 2, section 514~A-31, 36, FIRS, and discussion of county ordinance
and state statute in the introduction paragraph of part two.
We recommend the language be amended as foilov~a:
"Approval required. No developer shall [offer any units for sale or lease in any
project] construct any apartments within a condominiurr9 propserty„regitne in the l~S,
RA, A, FA, IA, and APD zoning districts unless -[the project obtains final
condominium property regime approval from the] approved by the director. The
application [for condominium property regime] for approval shall conform to the
procedures for subdivision approval except as otherwise stated herein."
8. Page eve, Section 23-Submission of preliminary plan, Standards of review;
references to "condominiums property regime approval"; state condominium statute
preempts the county approving the condominium property regime. See footnote 3,
section 514A-31, 36, FIRS, and discussion of county ordinance and state statute in
the introduction paragraph of part two.
9PVe reooerymeoad the language be amended by replacing reference to
"condominium property regime approval to" preliminary map approval for a
condominium property regime". In practice, this appears similar to the condominium
map, which the developer records together with the condominium declaration.
9. Page six, Section 23 - ~'entative approval, reference to "approval of a condominiurro
property regime; we recommend the following replace?~ent " a preliminary map for a
condominium property regime" for reasons consistent with the concerns previously
discussed.
10. Rage seven, Section 23 -Construction plans. Reference to "a condominium
property regime" be deleted and replace with tentative approval " ursuant to section
"for reasons consistent with the concerns previously discussed.
_ _
01/31/02 15:51 ,FAX ~ 010
Mr. Christopher Yuen
January 31, 2002
Page 9 of 11
13.I'age seven, Section 23 - pinal approval_ The provisions proposed as ""i=final
approval°° appears to provide conditions for creating a condorniniurn property regime.
As such, this provision appears inconsistent with the state condominium law
provisions for creating a condominium property regime. In particular, secfiion 514A-
12, SERB, prescribes another condition for creating a condominium project, namely
the filing of the floor plans and elevations of the building or buildings, showing the
layout, location, apartment numbers, and dimension of the apartments together
with the recording of the declaration.
1PVe recorr~rTaentl that th® language b® amended t® react:
E3y deleting the reference to °°final condominium property regime approval "and
replace it with "final rnap approval..." We also recommend deleting (3) consistent
with the reasons discussed in this response.
14. Page seven, Bastion 23 -Certification by director; these proposed sections are
preempted by the state condominium law and appear inconsistent with the intent of
state law. Current statute oufilines specifically that the Commission issue an
effective date for a developer's final public report to be used for sales or of~ring of
sales upon the developer's satisfying certain requirements. These requirements
include that the developer make a declaration that the project is in compliance with
all county zoning and building ordinances and codes, and all other county permitting
requirements applicable to the project, pursuant to section 514A-1.6, HRS. 1`or
construction of new condominium projects, the law does not require that the director
to certify compliance with all applicable county zoning and building ordinances and
codes. However, the state condominium law does provide civil and criminal
sanctions for developers who fail to conduct their due diligence of and compliance
with county regulations and falsely make such declaration. (section 514P+-4g (b), .
HRS). In contrast, for conversion projects, the state condominium law requires the
county to certify compliance (section 514A-40 (b), HRS).
We recommend that this provision be amended consistent with the recognition that
the state condominium statute provides for different county involvement for new
construction and converted condominium projects.
15. Page y -Conformance with conditions of approval required. It appears the
provisions of this section prescribes conditions for obtaining an effective date for a
developers final public rr~port which is preempted by state condominium statute,
Chapter 514A, HRS.
O1/-31/02 15:51 FA% ~?011
Mr. Christopher Yuen
January 31, 2002
Page 10 of 11
We recommend amending the provision to include language that where it is not
inconsistent with the requirements of Chapter 514A, HR5, the developer shall
include as a mafierial fact disclosure the conditions of the tentative approval and
other conditions in any filing with the real estate commission for obtaining an .
effective da#e for a final public report.
16. Page 8 Section 23 -Final condominium plan. We recommend amending the
reference of "fnal condominium plan" and °°final plan" with the addition of the term
"map" to clarify that the proposed amendments apply to county regulations and not
state law.
17. Page 8 Section 23 - IVo change in condominium after approval. For clarity and to
minimize confusion between the state and county law we recommend amending the
language '°IVo change in condominium after approval" to read "IVo changes after final
map approval` ;and "Af#er final condominium property regime approval..." t~o read
"After final condominium property regime map approval." We also recommend that
the county reexamine the proposed provision with the provisions of section 5'f4A-11
(11), HRS, which allows the declaration to be amended generally by 75®/0 of all
apartment owners. 'This includes changes made to the boundaries of the cornrnon
elements and limited common elements. However, where applicable, the changes
are still subject to county codes and ordinances.
113. !'age eight, Section 23 - ~fi'ect of condominium property regime approval.. We
recommend for clarity and to minimize confusion between the stat® and county law
amending the language to read as follows:
"![unit, apartment within a project that has received final condominium ~ approval
[and an effective date for a final public report] shall be considered a legal building
site and a lot for purposes of zoning and Subdivision Code.
19. Page eight, Section 23 Exemptions. This provision appears to provide for
"grandfathering''. We are always concerned about disclosures about any new
requirements a prospective purchaser may be required to satisfy should the
apartment be destroyed and the decision is to rebuild. Will the new apartments in
the condominium project be also grandfathered?
20. Page 9 Section 23 -Assessments and roll back taxes. For clarity and to minimize
confusion between state preemption and county law, we recommend amending the
provision to read: " In all zoning districts, if a rezoning ordinance applicable to the
property imposes a fair share assessment, impact fee, or other similar assessment
payable upon subdivision, said fee shall be paid prior to final condominium [property
regime] map approval [or prior to the effective date of a final public report if the
_
01/91/02 _15; 51 F.9% ~ 012
Mr. Christopher Yuen
January 31, 2002
Page 11 of 11
property is d'evided by condominium rather than by subdivision.] As discussed in this
response, the legislature did not intend the condominium law to subdivide land.
Thus we recommend that all reference to "subdividing" be deleted. Cn the issue of
roll back taxes, our recodification attorney informs us that the original rationale and
assumptions for rollback taxes were based on a number of outdated farming
practices. Thus we recommend that the county reexamine this issue.
In closing, we acknowledge the concerns of Hawaii County with respect to
adequate roads and infrastructure. We will continue to issue effective dates for public
reports where the developer has satisfied the requirements of Chapter 514A, IRS. it
rrfay be for some condominium projects that your proposed amendr?lents may delay and
run contrary to what Commission is mandated to do pursuant to Chapter 514A, FtR~_
We will continue to consider any county expressed concerns about the project and
require the developer to include such information in the public report where such
information is a material fact.
Should the developer receive any information from the county expressing its
concerns about the project, after we have Issued an effective date for a devel®per's
public report, the developer is required to stop sales, update the information in the
developers public report by means of a developer's supplementary pubic report. the
developer cannot resume sales until the Commission issues an effective date far a
developer's supplementary public report. We believe the current state condonniniurn taw
provides adequate opporkunities for the County of 0-lawaii and the Commission to work
together towards a common goal. We look forward to continuing dialogue with your
department.
Should you have any further questions, please call the undersigned at 586-2646
or write to me at the address above. If you would like us to indicate our comments and
recommended changes in ramseyer drafting format, please feel free to make such a
request
Very truly yours,
Mitchell Imanaka, Chair
Condominium Review Committee
Real estate Commission
Cynthia M.L. Yee
Senior Condo Specialist
PROPOSED Rl OF2D 129prri
_ _
PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
FEBRUARY 15, 2002
A regularly advertised hearing on the PLANNING DIRECTOR INITIATED PROPOSED
ORDINANCE TO AMEND CHAPTER 23 (SUBDIVISION CODE) OF THE HAV6rAI`I
COUNTY CODE, AS AMENDED, RELATING TO CONDOMINIUM PROPERTY
:REGIME (CPR) was called to order at 4:24 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 Springer Francis Smith
Grant Togashi
Ivan Torigoe, Deputy Corporation Counsel
Christopher Yuen, Planning Director
Alice Kawaha, Staff Planner
Susan Gagorik, Staff Planner
Eileen O'Hora-Weir, Staff Planner
Esther Imamura Kato, Staff Planner
And approximately 4 people from the public in attendance.
t CANNING DIRECTOR INITL~TED -Proposed ordinance to amend Chapter 23
(Subdivision Code) of the Hawaii County Code, as amended, relating to Condominium Property
Regime (CPR). The purpose of the proposed ordinance is to ensure that when land is divided
using a condominium property regime, the individual units created are adequately served by
roads and other infrastructure, and that drainage and flooding issues are properly addressed. It
also clarifies the applicability of zoning regulations to condominium developments.
GIFFIN: We are on Agenda Item No. 7, the Planning Director initiated, it is a
proposed ord~n ~nce to amend Chapter 23, Subdivision Code, of the Hawaii County Code, as
amended, relating to Condominium Property Regime (CPR). The purpose of the proposed
ordinance is to ensure that when land is divided using the condominium property regime, the
individual units created are adequately served by roads and other infrastructure, and that drainage
and flooding issues are properly addressed. It also clarifies the applicability of zoning
regulations to condominium developments. Alice?
KAWAHA: Thank you, Chairman. I guess the Director will explain on this CPR. But
we do have couple of amendments based on Department of Water Supply and Department of
Environmental Management comments. So that would be, I noticed that this ordinance is not
paged, so it would be on the page 3, sheet 3
i
GIFFIN: Hang on. Yeah, sheet 3?
KAWAHA: Yes. Where it starts with the "Article. Condominium Property Regimes,"
and the first paragraph on the third line. We wanted to include water system and also
wastewater. So this paragraph would read, "Section 23- . Purpose. The purpose of this article is
to ensure that when land is divided using a condominium property regime, the individual units
created are adequately served by roads, water system, and other infrastructure and that
wastewater, drainage and flooding issues are properly addressed. It also clarifies
GIFFIN: Can you wait just a minute. You lost me after "water system, and other
infrastructure."
KAWAHA: Okay, yeah, "and that", and insert the words "wastewater," and continue
on, "drainage and flooding issues are properly addressed."
GIFFIN: Okay.
KAWAHA: Then on the 7tl' page, page 7 or sheet 7, the first paragraph.
GIFFIN: Five, six, seven, Section 23?
I~AWAHA: Yes, "Final approval if no infrastructure required," we wanted to, again,
based on the comments from those two agencies, Water Department and Environmental
Management, we wanted to include their concerns regarding drainage improvements, sewers and
water system. So this paragraph would read, "Final approval if no infrastructure required. If the
project requires no construction of streets, private streets," omit or delete the word "drains" and
insert the words "drainage improvements, sewers, water system," and then continue, "utilities or
other infrastructure, the Director."
GIFFIN: One more time, I'm sorry, "drainage improvements"
KAWAHA: Comma, "sewers, water system," and then continue with what's stated.
GIFFIN: "Utilities or other infrastructure?"
KAWAHA: "Utilities or other infrastructure, the Director shall issue final approval at
the same time as tentative approval."
GIFFIN: Okay.
KAWAHA: I think those are the only two areas.
And then again for the record, the letter dated January 31St, supposed to be 2002, from the
I-Iawai'i Island Board of Realtors. And that's for the record that they submitted comments.
2
GIFFIN: What about the letter dated February 12th from Klaus D. Conventz?
KAWAHA: From whom?
GIFFIN: Klaus, Klaus Conventz.
KAWAHA: Yes. But there's also February 12th from Klaus Conventz. Another letter
from Jerry Bragdon dated February 14th. Here's another comment letter from the Department of
Public Works dated February 11th; from Department of Transportation dated February 8th
GIFFIN: I had a question regarding the State of Hawaii Real Estate Branch memo
to Mr. Yuen. Were all of those changes made that were suggested in her letter?
YUEN: No. That letter came after we submitted the proposed ordinance. I've
discussed this with Cynthia Yee. They're willing to reconsider the comments that they made.
They, there are a number of things that are really a matter of definition or emphasis. There are
only a couple of things that are really critical to the functioning of the ordinance. And I can get
into that in a little more detail if you want right now.
GIFFIN: Yeah.
YUEN: But it would be, I think it'd be helpful to just give a little bit of
background before talking about what the comments are.
GIFFIN: Was one of those that you were going to talk about us later "unit," the use
of the word "unit?"
YUEN: No. That point is to my way of thinking is not that critical. The critical, it
is the question of County approval of a CPR. They feel that the State process, only the State has
the power to approve a CPR.
GIFFIN: Right. And you disagree?
YUEN: Yeah. Let me, but let me, I think there's a way to work around that so that
we be on the same page with the Real Estate Commission on this.
GIFFIN: Okay. Are you going to do that a$er we're through talking with Alice
or
YUEN: At any time you want. But perhaps it's, maybe we can finish with Alice
and then I can talk about some of those questions.
GIFFIN: Okay. Alice?
KAWAHA: Oh, I have nothing else.
3
YUEN: Okay.
GIFFIN: Okay, then.
YL7EN: What, let me just give a little bit of background. One of the most
important planning tools is the Subdivision Code. The Subdivision Code is set up to control how
the property is divided up into smaller units to what we call lots in a subdivision. Whenever you
:divide a larger piece of property into units that can be sold separately you have the potential for
more development of those units. And you have the responsibility to make sure that those units
are properly supplied with access in the form of a road, water in the form of a water system, or if
it's impossible perhaps by catchment, proper drainage that maybe, that may go along with
building roads in an area or building more houses in an area. And all of those things are
controlled in the County primarily through the Subdivision Code. That's when the roads get
designed to be put into a tract of land. That's where the water system gets laid out. That's where
the drainage gets set up. So for a long time we have the Subdivision Code.
In recent years there has become a practice of dividing up land and achieving a similar result
through a subdivision by using a condominium rather than a subdivision. If you're very
technical about it, the subdivision, the condominium does not divide land. But the way that
they're set up comes to about the same result. Instead of calling the end result a lot, they will
call it a limited common element, which is defined as something that is for the use, exclusive use
of an area that's laid out on the map for your exclusive use.
The condominium process is handled, they object to the use of my word "control," but it's
handled by the State Real Estate Commission. As long as you conform with certain paperwork,
they will approve, they don't like the word "approve," they will register your condominium and
permit you to sell the units. The only real limitation that you have on setting up a condominium
is that you have to have some kind of structure in each unit, which can be as simple as a
greenhouse or a shade house. And, typically, very often you'll see these agricultural.
condominiums with a six by eight shade house. That's the apartment So each unit has to have
an apartment. Other than that, you could, you could theoretically take a thousand acres, put
10,000 six by eight greenhouses on it, assign each of those 10,000 greenhouses a map area called
a limited common element, get that approved or, they don't use the word approve, get that
registered with the Real Estate Commission and sell off each of those 10,000 little pieces of land
that has been so described. We haven't seen anything quite to that point, but we do see, there
have been in inquires of, with the Planning Department is years past of 25 or 50 units like this.
We have a 28-unit example that came in of doing something like this. And it creates a loophole
in the Subdivision Code because there aren't any infrastructure connected with this.
And the other, there's really two basic problems with it. First is that having, first is that there's
no infrastructure required, like there's no standard of how a road should be set into a
condominium like this. Second problem is that people are using it to create more units in a
parcel or on a piece of property that are allowed by the zoning. And in the agricultural area, I
know, we've seen many, we constantly see applications for rezoning here. Just to give an
example, last, couple of weeks ago we had Mr. Greenwell's application. He has a 27-acre piece
of property that's zoned Ag-20. Now he can only make one lot out of that. He has got 27 acres,
4
he's zoned Ag-20, that means the minimum lot is 20 acres. What people will do with a
condominium is they will create, say, five condominium units out of that property and each
being of approximately 5 acres, and sell those off as separate units, which is a result that you
can't get without, through the Zoning Code, without going through a rezoning of the property.
You couldn't make a S-acre lot without rezoning to a S-acre lot size. So, and that's a process, so
that process is something that would have to go through the Planning Commission and is
ultimately controlled by the County Council. The using of the condominium this way effectuates
sort of a do-it-yourself rezoning of the property.
Getting to the comments of the Real Estate Commission specifically, the one comment that
causes the most difficulty is they're saying that the County, we're saying that you have to, the
gist of this proposal is that you have to go through subdivision process if you're using the
condominium to do, to divide up land. This doesn't apply to the use of condominiums to make
multi-family buildings, more multi-unit commercial buildings and the like. And, basically, the
gist of it is you have to go through a subdivision and get an approval to create your lots and show
that you have the right roads, and the right drainage and the right zoning, particularly, to create
lots of a particular size that you're asking for.
I think the way to solve the Real Estate Commission's insistence that they have the final control
is to, we can look at changing the wording so that people cannot certify that they are in
compliance with County zoning, with County laws until they have gotten this County approval.
So the County is not actually approving the condominium, but the developer would be in
violation if they certified that they were approving it.
The way that this action, the way this works, and I need to give a little explanation cause I see
the puzzled face here. Okay, there are basically two kinds of condominiums that, when you go
to a Real Estate Commission. There's condominiums involving what they call new construction
and there's a condominium conversion. If you do a condominium that involves new construction
the County really has no direct input on that; and the Real Estate Commission will issue the final
public report if the developer states that they are in compliance with all County Codes. And so if
you're building, say, amulti-family condominium from scratch, the developer makes a
certification to the Real Estate Commission that they're in compliance; and the County doesn't
get involved at all. Whereas, if you were converting a building from, that is already existing and
making a condominium, the County has to say that the project is in compliance, and we have a
prior approval on that. What we need to do is simply say that for both of these you cannot
certify it until you've gone through this, essentially subdivision process that we're talking about
in the ordinance. And I think that will work with them.
GIFFIN: Does anyone have any questions of the Director, right now? If not, I have
a few questions. To go through the process that you're suggesting, and maybe you could just
clarify what those steps are, step by step. And then say I'm an applicant and I would like to go
through that step, I mean, that process for a CPR and with this new process, this new ordinance,
what are they and how much would it cost?
YUEN: You know, the cost I don't have the fees in my head. Sut it would cost the
same as a subdivision of the property.
5
GIFFIN: And that's about, ballpark?
YUEN: I think it's, well, I think, the application fee is $250 plus $250 per lot.
KAWAHA: It's $25.
YUEN: I'm sorry, wait, $25 per
KAWAHA: Twenty-five dollars per lot.
YUEN: I'm sorry, $25 per lot.
GIFFIN: Okay. I had another
YUEN: I have to say in practice 90 percent of the agricultural CPRs that are
currently being done would not be possible under this ordinance. Because it is generally, 90
percent of the time it's used to divide ownership of a piece of property that cannot be subdivided
because the lot is not large enough to subdivide.
We have, you know, and the basic idea of this is that say in an Agriculture 20 the County's
control at density in the agricultural area is the lot size. We have 20-acre lot sizes, for example,
and that means that, I mean, an Agriculture-20 acre zone, your lot size is suppose to be 20 acres;
and so you can't subdivide smaller than that. And what people are typically using the CPR for is
to divide up ownership of those, for example, 20-acre lots into smaller units that are below what
is allowed by the zoning. Okay, go ahead.
GIFFIN: I was just saying to Mr. Torigoe, the Hilo Lagoon right here in the Hilo, is
an example, right of conversion?
YUEN; That would be a conversion project, yes. Although, and it, that's, of
course, your typical traditional multi-family or multi-unit condominium building. But that would
have been a conversion project, yes.
GIFFIN: Okay. Once again, and please feel free to interrupt. Commissioner
Kubota?
KUBOTA: Why would that be a conversion? It was a hotel, it was amulti-unit
building to begin with.
YUEN: It was amulti-unit building that was under one ownership as a hotel. And
when it gets converted into a condominium then each of the units have different owners. And
KLTBOTA: Okay, but
YUEN: Go ahead.
6
KUBOTA: But following your rationale
YUEN: Yes.
KUBOTA: Of having infrastructure there, so this is necessary, this control is
necessary doesn't fall into that particular example because the infrastructure was there? It's just
the ownership that changed?
YUEN: Right, right. This is not an issue with, there's no real problems or issues
with the multi-family buildings. This is really an issue where people are taking
GIFFIN: Land.
YUEN: Like the bare ground, land, or land that has single family homes .and using
this process to divide up the single family, to divide up the land into single family. We have a
diagram in your packet of an application that came into the Planning Department in Waiakea
Uka. And this is a piece of property that is actually zoned for this particular use, for this
particular lot size. But instead of going into a condominium, I mean, instead of going to
subdivision, the applicant would put 28 greenhouses, if he went through what he wanted to do,
would have put 28 greenhouses on 28 different pieces of property established
GIFFIN: This is, it's B.
YtJEN: Yeah, established a condominium of those, get an approval from the Real
Estate Commission
GIFFIN: Oh
YUEN: I'm sorry, get an effective date for a final public report from the Real
Estate Commission and then could take people out and actually sell each of these 10, or 15,000
square foot areas as a house lot, but without having the, with any kind of road that the person
wanted to put in. Whereas, if you had a subdivision, you'd have to put in a road of a certain
width that Public Works would inspect it, they would check the drainage, you would have to
have a County water system into the area. But if you use this as a loophole you can, actually,
once the Real Estate Commission gives you the okay, you can sell these actually without, if you
can get people to buy them, you can sell them without putting any kind of road there, for
example, as a piece of ground. I mean, typically, I think from a marketing point of view, you'd
have to do something. You'd have to provide some access. And people aren't completely crazy
but you would, you could put any kind of road in. But you could get away with and still sell the
property. That's an example of the kind of situation. Now that would have been considered, see,
the Real Estate Commission would consider that new construction. Putting the 15 greenhouses
in would be considered new construction and not a conversion.
KUBOTA: Explain to me Madam Chair?
7
GIFFIN: Commissioner Kubota.
KUBOTA: You talked about two kinds of CPRs. You said there was one that
involved new building and one that involved conversion. And as I understood you to say, you
said that this amendment would not apply to new buildings but it would apply to conversions.
YUEN: No, this applies to both. It applies to both.
KUBOTA: It applies to both?
YLTEN: Yes. But it's set up, it does not apply, it's only in the zones, it only
applies to the zones where, it does not apply to any of the zones where you can do amulti-family
or multi-unit commercial building. It's really meant to get at the use of it to divide up land
typically for residential purposes.
GIFFIN: So what was the purpose of the other example in our packet?
YUEN: That's actually a fairly typical agricultural condominium. That's, it's
actually located right next to the Greenwell rezoning proposal that we were looking at a couple
of weeks ago. This person has atwo-acre lot zoned Ag-1 that could be subdivided into two
GIFFIN: Two lots.
YUEN: One-acre lots.
GIFFIN: Right.
YUEN: But by using the CPR the person is dividing up into half-acre units, which
they're selling, you know; and the point of this is to show how it's marketed. It's being sold,
basically, the same as a single, as a lot; and the person really is going to buy it with largely those
same kinds of expectations. But we went through all this discussion and studies and testimony
about, you know, Mr. Greenwell dividing his property up into one-acre, for example, and that
will eventually go to the County Council. But here is a way for, and this is how it has been used,
here is a way for a person to divide up their property into basically ahalf--acre zoning without
ever going to the County Council, or Planning Commission, or any kind of review at all.
GIFFIN: But in this instance it sounds as if the developer or the owner of the
property is providing the necessary infrastructure, in fact, sometimes, better than what the
County would require, paved access road, water and underground utilities.
YUEN: Yeah, in this case she apparently is, just as a matter of her marketing, yes.
GIFFIN: And so why would you object to something like this? Just because she
hasn't gone through the, or the person has not gone through the process of coming to the County
and paying all that money?
8
YUEN: Because the area is being divided up into half-acre lots when the zoning is
one acre.
GIFFIN: So just on that basis alone
YUEN: Right.
Giffin: You would object to it?
YUEN: Right, right.
KUBOTA: That's a density problem you're working with.
YUEN: Yes, it's a density issue, yes, in that, in this instance.
GIFFIN: Yeah. Any other questions of the Director, Commissioners? Hearing
none, we do have two people who have signed up to testify from the public. Bruce McClure and
Chris Brilhante. Will you please come forward. Chris, we've already sworn you in; but Bruce,
we haven't. We better swear him in. No chocolates. Please raise your right hand. Do you
swear or affirm to tell the truth on this matter now before the Hawaii County Planning
Commission?
MCCLURE: Yes, I do.
GIFFIN: Thank you. Please state your name and resident address, Bruce.
MCCLLTRE: My name is Bruce McClure. I live 1203 Kihonua Place, Hilo, Hawaii.
I've been instructed to testify on this item. The Department of Water Supply is very much in
support of the Planning Director's initiative. The points he brings up is infrastructure; and that's
our concern. We would like to be able to have adequate infrastructure there; and if not there, we
would kind of like it disclosed, you know, that that's the case.
And a couple of examples come to mind: I know of one CPR on the Hawi Road, it was divided
into three. We have water availability for only two. The third guy came in, we had to tell him,
I'm sorry, we don't have water available. Well, no one told me. Well, no one asked us, you
know. We have limited supply. We don't have infinite water. We operate 23 different systems
throughout the County. The other thing by coming in formally, we will get our duc. And we are
semi-autonomous, we need to collect our revenues so that we can keep the infrastructure in pace
with the growth. We have facilities charges; and that's $4,350 for each additional unit. If they
were to apply for a second or third service, we would collect that. If they don't come to us and
submeter, we don't get it, they're using the water and we haven't had a chance to, you know,
improve our infrastructure. And at some point we find, hey, too much water is being used, we
have to declare a moratorium or reduce. In Hawi we haven't declared a moratorium.
Availability used to be up to seven units per existing lot. It's one right now. And that's shaking
everybody to the point where "Wow, you guys can't do that unilaterally." We have to. At some
9
point we reach a point we don't have water; and at that point we can't continue to give it out.
And at some point if we're not good we have to declare an outright moratorium, ~.vhich we have
on several sections. Then, I'm sorry, even if you have land we can't make water available to
you. The other thing the condo doesn't always address Like that one there I'm not sure if they
put in four separate meters. And I know on this one where they didn't create easements and the
guy, we said, yeah, here's your water it's at this point. But he said, well, but my neighbor won't,
you know, I've got to have it down on the end. Well, we don't have a line there. Well, my
neighbor won't give me an easement. Well, I'm sorry. You know, that's not We're under the
Subdivision Code. We're going to make it a point that each lot faces the waterline or the
waterline is brought to each lot, one way or the other.
So we're very much in support of it and we feel that it's actually to the homeowner's benefit,
you know, to have adequate infrastructure; otherwise, we're like the 1966 lots, you know, in
Puna where we just said yeah, go.
GIFFIN: Any questions of Mr. McClure? Why not just change and make the water-
type infrastructure that you need within the existing CPR lot? I mean why couldn't that be
amended rather than saying what is being proposed? I mean, I'm not, you know, for or against it
but I'm just saying wouldn't that be easier?
MCCLURE: The underlying legislation is State legislation. Originally, it didn't even
address zoning, which they did several years ago. We don't have control over the hand that, you
know, handles the pen. This way it's at the County level. The other elements of the County
suffer, you know, or we're unable to provide, I mean, it's not so much sub We want to be able
to provide the best service possible and disclose it to them. We're not even aware of it
happening.
YUEN: I can say the State from talking to them they definitely will not check
.anything like whether there is water available to one of these units. That's, they consider that
absolutely not part of what they do.
GIFFIN: Any other questions of Mr. McClure? And for that you stayed till
5 o'clock, wow.
MCCLURE: Well, you guys are special, that's why.
GIFFIN: I know. Show it. Chris?
BRILHANTE: I have a simple request. We've been working with Chris Yuen for quite a
long time. This has been an issue that we've been working on for actually couple of years trying
to deal with this situation. I do want to go on record saying that the Board of Realtors, we're
generally not in support of the abuses that have been going on in relation to the CPR. We're not
in support of the greenhouse CPR where actually the infrastructure is not in. And what happens
is the subsequent owner of the CPR comes into the Planning Department trying to get additional
building permits; and it comes to their surprise that in the County's view the property is only
to
looked at as one parcel. And the first permit is approved, the second permit you can have some
additional, you know, hoops to go through.
We've been in contact with Chris Yuen, we've had meetings with him. There are several ways
that this issue can be tackled; and it's fairly complex. We did give Chris Yuen written
alternative testimony or recommendations. We're kind of working through that with Chris; but
while that process was going on, the ordinance was submitted. So, no, we have to deal with the
ordinance. In communication with Chris, we were primarily dealing with Ag zone, Ag
properties. But the ordinance actually deals with everything, except the multi-dwelling type
parcels. So actually you're dealing with, you're encompassing the Ag with the residential; and
there's actually differences depending on what zoning you have. Some of the issues that Chris
brings up as far as when a property is zoned residential, you can automatically build to, you
know, whatever the zoning is. If you have a, you know, aone-acre piece that's an RS-10, you
automatically can get, you know, four dwellings. That's not the same case in Ag zoned parcels.
So it's hard to lump it together because he's trying to solve the problem and it's not an easy
issue. And we kind of go around and around and around.
We do have testimony. We have met with the public, with attorneys; and we have a very good
handle on giving you guys some testimony. And, basically, I'm actually here today to see if we
can defer this at least one more meeting. It's my understanding that you guys, this is the first
hearing. It's going to go to Kona, but then a lot of you are not going to be at the Kona meeting.
GUIFFIN: Right.
BRILHANTE: And so, that's actually the meeting to approve of the council. What we'd
like to do is see if we can defer it. We can have full testimony, written, and have a lot of people
that can testify on the 25th meeting; but we would like it to come back to Hilo. So if there's any
way you guys can push it back just one meeting. We don't have to defer this thing, you know,
indefinitely. But we would like to give you guys some very thoughtful specific feedback and
possibly some alternatives, you know, because basically what is proposed right now, to me, is
that the CPRs have to be full compliance with the Subdivision Code. In essence, why would you
ever do a CPR? You never do a CPR because you're going to have to comply with the, so
GIFFION: Right, you might as well go subdivision.
BIRLHANTE: Right. So, in essence, you, really why would there be any CPR, you
know. So it's a big step that this ordinance is taking, you know, and there is a big impact on our
industry and the community. And I do want to say that personally I've never done any CPRs.
I've never sold any Ag CPRs. So I'm not coming here trying to, you know, defend CPR, defend
the process. But I do want to see if there can be some sort of way to solve, you know, the
concerns that Chris has and at the same time not eliminate the entire CPR process.
GIFFIN: So, Chris, if I understand you correctly, you're saying that this proposed
ordinance, in essence, would do away with CPR without really doing away with it because like
you said, why would someone CPR a property if they have go through all of this anyway. They
11
might as well forget that process and go right to the subdivision process. So, in essence, that is
what this ordinance is doing.
BRILHANTE: Right.
GIFFIN: It's forcing, not forcing, but strongly encouraging anyone to go through
the subdivision process rather than to explore CPR.
YUEN: You know, if I could just comment on that. One, that is, as a practical
matter that is probably correct. The problem right now is that you, you essentially, you have two
ways to divide up land for sale in Hawaii County. You have a subdivision which does get
reviewed by Public Works and the Water Supply and the Planning Department; and then you
have the CPR which is just go ahead and do it without any kind of review whatsoever. You have
these two parallel tracks and the ordinance does bring them into one track. So, there will, as to
what use there will be for a CPR afterwards, there are planned communities where they want to
hold, now we're only talking about single family CPRs. There will continue to be condo you
know, multi-family and multi-unit CPRs, the same as they are now. On the single family side
what I would see is that there are communities where people want to end up with areas being
held in common ownership rather than community ownership. And we see, there's some
developments like this. There's a development like this in Waimea where you have the proper
zoning, say you're going to do a 40, put 40 houses on a piece of property. You could divide it up
all into individual lots and have them individually owned; and if the roads are privately owned
then you have a community association do it. But you might want to do it by a CPR and you end
up with some open space that's commonly owned under the condominium, not individually
owned as a lot. The roads might be owned in a condominium form of ownership. Some people
are comfortable with that and like it as a way or owning common areas that might be roads,
parks, community buildings; and that would still be an available use of it and people will still
continue to do that.
GIFFIN: As long as they have this, the correct
YUEN: The correct zoning.
GIFFIN: Zoning for the number of units that they wanted?
YUEN: Right, they would not exceed, they could not exceed the density required
or allowed under the zoning.
BRILHANTE: Yeah, the vast majority of the CPRs that come in are really the two-unit
CPRs. And so these applicants, you know, coming in with the 28 unit CPRs is really a tiny
percentage. A concern really, and I wasn't here to testify really to, you know, for this today. But
the concern is really for, you know, the small mom and pop. You know, if somebody has a piece
of property and they have an existing home on there and they would like to transfer, you know,
the home to the child that that's, you know, unless they go through the whole subdivision process
and meet all the underlined approvals and going through, you know, the drainage study
12
requirements and all, everything to this requirement under that process, you're not going to be
able to do anything like that.
For, practically speaking, I know of, you know, families that have CPRd their properties here in
Hilo just because a child, you know, land is expensive, they want their children to be there.
They've actually CPRd. They get into the question about, you know, what happens if they're all
going to be on title, the question is about, you know, people getting married, what happens if
there's a divorce, you know, all those issues. And the issue of, you know, having to get people
on mortgage and, you know, who's going to be liable. And then being able to separate out that
ownership, you know, makes it a lot easier, a lot cleaner, you know. And there are some
specific, you know, advantages for at least having, you know, the CPR out there, eliminating the
CPR, being able to be an option.
As far as, you know, eliminating the abuses and putting some controls, you know, onto the CPR,
we are in support of that. So what we'd like to do is be able to come back to you on the 25t"~
We do have some alternative recommendations that we've already submitted to Chris Yuen that
at least we could get to you, explain, you know, things better, have more people that can give
you more examples. We're working with realtors on the other side of the island.
Hawaii Island Board of Realtors is 500 realtors, but 250 realtors in East Hawaii and 250 realtors
in West Hawaii. So on our committee we actually work with the realtors that are actually, you
know, intimately involved in actually the sales of CPRS. And, obviously, even within the
realtors you're going to have, you know, vast differences of opinions.
GIFFIN: Have they come out with a recommendation?
BRILHANTE: Pardon me?
GIFFIN: Have they come out with a recommendation? I know you said you have
some alternatives that you're working with the Director with. But have they come out with any
recommendation regarding the CPR ordinance?
BRILHANTE: Regarding the CPR ordinance?
GIFFIN: Yes.
BRILHANTE: We will give you that. Generally, on the whole, at this point we wouldn't
be in support of the ordinance at, you know, at this time.
GIFFIN: As it is?
BRILHANTE: Yeah, because the issue can be tackled in several different ways. It being
a zoning issue, we actually brought up, the reason why the CPR is such a problem is because
people can get a second dwelling on Ag land, readily can get that. And because of that, they can
go ahead and get a CPR done, and separate out the ownership, and go down the route. So, you
-know, one of the ways of tackling it is actually looking at the farm dwelling issue; and another
13
way is through the zoning, you know. Because a lot of the concerns that Chris is bringing up we
look at it as zoning type issues, you know. And so like I said I wasn't really going to be
testifying but
GIFFIN: Yeah, I'm sorry. I didn't mean to put you on the spot. But when you're
saying the 25`", you're saying the Hilo meeting?
BRILHANTE: That's Kona, right?
GIFFIN: Well, no, no, no. The next one is February 25`h, and you said you want to
defer it to the one after that.
BRILHANTE: No, no, no, no.
GIFFIN: Or at February 25`" meeting?
BRILHANTE: February 25`" we can be all set for you. But want we'd like to do is be
able to have the hearing come back to Hilo after that meeting.
GIFFIN: So deferred, I see.
BRILHANTE: Yeah. Because that, because I guess a lot of you are not going to be at that
February 25`" meeting
GIFFIN: Yes, that's true.
BRILHANTE: Is my understanding.
GIFFIN: That's true.
BRILHANTE: So what we'd like to do is we can give testimony there but we'd actually
like to come back and be able to give testimony in front of you guys back in Hilo.
GIFFIN: So you would like it to continue
BRILHANTE: Right.
GIFFIN: After the 25"' of February to the next Hilo meeting?
BRILHANTE: Exactly.
GIFFIN: Okay.
BRILHANTE: So, basically, you're supposed to have two hearings, this meeting today ,
and the 25`" meeting, and then you guys are supposed to vote to send it up.
14
GIFFIN: Yes.
BRILHANTE: What we'd like to do is defer it off of this meeting, go to Kona, and come
back to Hilo, and then you guys vote to send it up. That's all we're requesting today, you know,
to give us more time so we can add specifics regarding this proposal so you guys, make it a lot
easier for you guys to go, you know, go through it.
GIFFIN: And also it would give you time to work with the Director on some of
your alternatives that you said you have. Alice, the Hilo meeting in
KAWAHA: March 22"a
GIFFIN: March is now going to March 22"a?
KAWAHA: Yes.
GIFFIN: And what is the agenda like and do we have enough time, for example, to
post?
KAWAHA: We have lots of time to post.
GIFFIN: Okay.
KLTBOTA: Do we have room on the agenda?
GIFFIN: That's a good question now, isn't it?
KUBOTA: While she's looking that up, Madam Chair, there's a question I wanted to
pose to the Director. As I heard Mr. Brilhante testify he said they're in a working relationship
with you, with alternatives submitted to you.
YUEN: Yes.
KUBOTA: Was there any reason you came out with these amendments to this
ordinance at this time? Are they incorporated in here?
YUEN: Well, their approach that they submitted is a little different than this. The
approach that they submitted is different than this. In my view it does not solve the problem. It
goes part of the way towards solving the problem. And I don't know, I don't want to get into,
you know, obviously he doesn't want to testify in great detail. I don't want to get into a lot of
detail about it. We, this is something that I've been meeting with the Board of Realtors, people
in the community, on for probably seven, eight months. I do want to, and I do want to move
forward. This is going to be debated and discussed in the Planning Commission, be discussed at
the Council. I don't, this is a complicated initiative. I don't expect I think that something will
be passed to deal with the issue. I don't expect it to be word for word for what I proposed. I do
think it's important to get it rolling, get the process rolling. There's also, if you noticed,
IS
connected with this there are exemptions for people that now have started on the CPR and not
able to get them done. And that's probably as far as timing the main reason to do this.
As far as, I think on an administrative level, we have, administratively we have the lid on the
CPR abuses in the Department. We have people who are, we would like to regularize the
process though, set it in an ordinance, so it's not just a matter of administrative practice of what
we're doing. We would like to finalize a set of exemptions because there are those who are in,
sort of half way in the process; and we'd like to move them through it bypassing this ordinance.
I think that the exemptions, you know, part of the reason for, you know, you have public
hearings and people come up; and we may revise some of the exemptions as testimony goes
forward. But I, you know, it's one of those, there are a number of possible approaches to doing
this. This is not the, the way this is written, the ordinance, is not the only way to deal with it.
But it's important. We could also debate and discuss the right way to deal with it for a couple of
years and not move forward. So I did want to move something forward. And eventually it will
be, you know, it's up to the County Council to, they have the final say. And I would like to
move something to the Council. I know the Council will work on it; and I think there will be
revisions. There will be definitely I would like to move something up to the Council. There's
never going to be, it's not the sort of the thing that we would trash out and we would all agree
that this is the way to go at the end of it. There are always going to be differences of opinion.
There are differences of opinion on when people should be able to cut up a piece of property into
two or more pieces. So we're not going to come up with a perfect answer. So I would like, it's
good to have this discussion, answer the questions, hear what people have to say and, hopefully,
-move something along.
KUBOTA: Well, I mean, having heard you say that, considering it in Kona where we
won't have enough, amajority, Isuppose
GIFFIN: We will.
KUBOTA: We will?
GIFFIN: We'll have five.
KUBOTA: Okay, you have six?
GIFFIN: Well, I don't know, but we will have a quorum for this agenda item.
There are others that we won't.
YLJEN: I'm not, I'm not going to sit here and insist that the Commission vote this
out on, you know, next meeting in, you know, in ten days in Kona. It's really up to the
Commission to work on it till they feel comfortable. I believe, I don't think the Commission has
to make a decision tonight whether they're going to hear it on the 22°a or not, continue it to
March 22"d or not. We will have time to agendize it after February 25th
GIFFIN: But what does our agenda look like?
16
KAWAHA: We have four B&B applications; and there's a special permit for a
farmers' market; and those are just the new applications. Then we have the Trahan continued
and AT
GIFFIN: The what continued? I'm sorry.
KAWAHA: Ouida Trahan.
GIFFIN: Oh, yes.
KAWAHA: We have the AT&T Waiakea Uka, that's the one with Hearing Officer
Colin Love.
GIFFIN: Oh, the Hearing Officer's Report, yeah.
KAWAHA: And RT's Services on the Findings of Fact. So both of those two would
be scheduled after lunch though, because they need the afternoon.
GIFFIN: So that's two, three, RT, AT&T, and Ouida Trahan. So that's three after
lunch; and then this.
KAWAHA: Yeah, right. Or I can schedule it before lunch, this other continued and
just have the AT&T ones further
GIFFIN: Still have the numbers, yeah? We're talking about seven?
KAWAHA: So there's four new applications.
GIFFIN: And seven total
KAWAHA: Yes.
GIFFIN: Agenda items so far?
KAWAHA: Yes.
SPRINGER: Madam Chair?
GIFFIN: Commissioner Springer.
SPRINGER: To, just in terms of realistic expectations with the vacancy that hasn't been
filled on the Commission, it seems these days there's always a question of how full we'll be. So
we may have five in Kona and five again here in Hilo. So just, you won't necessarily see all the
seats filled when we come back to Hilo.
17
GIFFIN: That's the reality, although Mina will be back. And that's another, that is
a special meeting. I don't know how that's going to affect your schedule, Mr. Togashi.
TOGASHI: On the 25tn~
GIFFIN: Twenty-second.
TOGASHI: No problem, I think.
GIFFIN: Okay, one, two, three, four, five. Oh, Hilo might have more, at least two
more. So that would be seven. Okay. I need to hear your preference, Commissioners, regarding
the Board of Realtor's recommendation, or suggestion to defer today and continue, you know,
have the two hearing dates, I think this is what you're saying, be February 25th and March 22na
GALDONES: Madam Chair?
GIFFIN: Commissioner Galdones.
GALDONES: Being that pretty much they are very much interested in what's happening
to this change of this ordinance and they are trying to work things out with the Director, I think
all the time that they need in order to work this out would be much easier for the Commissioners
to deal with instead of having adversarial positions that comes before us to deal with.
GIFFIN: Yeah.
GALDONES: So I would not be against having the decision-making moved to
March 22na, to Hilo.
GIFFIN: Would you like to make that into a motion?
GALDONES: I cannot repeat that but Ijust
GIFFIN: Just say I so move.
GALDONES: I so move.
GIFFIN: Okay, it has been moved by Commissioner Galdones and seconded by
Commissioner Springer that the two hearing dates on this ordinance be February 25th and
March 22na. Is there any discussion? Hearing none, Alice.
KAWAHA: Commissioner Galdones?
GALDONES: Aye.
hAWAHA: Commissioner Springer?
~g
SPRINGER: Yes.
KAWAHA: Commissioner Togashi?
TOGASHI: Aye.
KAWAHA: Commissioner Kubota?
KUBOTA: Just a minute. Aye.
KAWAHA: Chairwoman Giffin?
GIFFIN: Aye.
KAWAHA: Chair, the vote passes with five ayes.
GIFFIN: Okay?
BRILHANTE: Thank you very much.
GIFFIN: You're welcome. We'll see you in Kona. Pack your bag.
The discussion ended at 5:20 p.m.
Respectfully submitted,
Sharon M. Nomura, Secretary
19
PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
February 25, 2002
A regularly advertised continued public hearing on the PLANNING DIRECTOR INITIATED
PROPOSED ORDINANCE TO AMEND CHAPTER 23 (SUBDIVISION CODE), AS
AMENDED, RELATING TO A CONDOMIMUM PROPERTY REGIME was called to order at
1:45 p.m. in the Ohana Keauhou Beach Resort, Kahalu`u Ballroom, 78-6740 Ali`i Drive, North
Kona, Hawaii, with Chairperson Geraldine Giffin presiding.
PRESENT: Geraldine M. Giffin ABSENT & EXCUSED: Mildred Mosher
Earl Fujikawa Aurelio Mina, Jr.
Fred Galdones Francis Smith
Florence Kubota Grant Togashi
Hannah Springer
Ivan Torigoe, Deputy Corporation Counsel
Christopher J. Yuen, Planning Director
Alice Kawaha, Staff Planner
Daryn Arai, Staff Planner
Susan Gagorik, Staff Planner
Norren Kato, Staff Planner
Kiran Emler representing Department of Public Works
Glenn Ahuna representing Department of Water Supply
And approximately 38 people from the public in attendance.
APPLICANT: PLANNING DIRECTOR INITIATED -Continued hearing on the proposed
ordinance to amend Chapter 23 (Subdivision Code) of the Hawaii County Code, as amended,
relating to Condominium Property Regime (CPR). The purpose of the proposed ordinance is to
ensure that when land is divided using a condominium property regime, the individual units
created are adequately served by roads and other infrastructure, and that drainage and flooding
issues are properly addressed. It also clarifies the applicability of zoning regulations to
condominium developments.
GIFFIN: Commissioners, I'd like to call the Hawaii County Planning Commission
meeting back to order. We are on Agenda Item No. 12. It's a Planning Director initiated This
is a continued hearing on the proposed ordinance to amend Chapter 23 (Subdivision Code) of the
Hawaii County Code, as amended, relating to Condominium Property Regime (CPR). The
purpose of the proposed ordinance is to ensure that when land is divided using a condominium
1
property regime, that individual units created are adequately served by roads and other
infrastructure, and that drainage and flooding issues are properly addressed.
And if my memory serves me correctly, Commissioners, we were through with the clarification
stage. Alice had given us some background material and the suggested amendment changes.
And you were through asking questions. But if you have more questions of the Staff or of the
Director, please feel free to do so now.
Hearing none, there are 13 people who have signed up to testify, and what I'm going to do
One, two, three, there are six chairs up front. I'm going to call you up in groups of six. You will
be limited to athree-minute testimony period. We have a timer. And so I'm going to call the
first six people up. Klaus Conventz, Richard L. Smith, Tommy Tinker, Sandra Scarr, Janice
Palma-Glennie, and Dan Roudebush, please come forward now. I only see four, are we missing
two people?
PUBLIC: I know Richard Smith left; he could not stay.
GIFFIN: Okay. Tinker is not here, right? Mr. Tinker, are you here? Okay. Then
I'm going to call up two more people, Rab S. Puri and Charles Fleming. Is Mr. Fleming here?
Okay. Christine deSilva, why don't you come on up. Well, that cuts the list down. Christine, I
know I swore you in already, but I need to swear everybody else in, also. So 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: Great. And starting with you, Mr. Conventz, will you please state your
full name and your resident address, and begin your testimony.
CONVENTZ: Klaus D. Conventz, I'm a planning consultant representing various parties,
and my mailing address is P.O. Box 2308, Kailua-Kona 96745.
GIFFIN: Begin.
CONVENTZ: I would like, as a basic statement, say that I am in opposition of the abuse
under the CPR rules, as well. As, for instance, the Planning Director mentioned, one 28-lot
subdivision of 15,000 square feet on the flood plain in Hilo, I am in agreement that should be
stopped. He also mentions that, in addition, that it should be disallowed to have a 20-acre lot in
the Agricultural Land Use District and cut them up in a thousand one-acre pieces and sell them
separately. Absolutely.
But at the same time, the Director talked about the abuse and rubber stamping in the past. I refer
to the, as part of the Zoning Ordinance, to the Farm Dwelling Rule, No. 13. This gives him
actually quite an instrument to avoid abuse. I am representing a lot of people in the Ka`u area on
the Red Cinder Road just off South Point Road on the mauka side where we have a 20-acre
zoning and there are lots between 22 and 32, or even larger parcels, Ag-20. If that is properly
2
done, and I have considerable applications approved by the Planning Director; and I also before
the Planning, before the Board of Appeal represented parties where there had been denials. And
what I'm saying is if we actually approve under the Rule 13, additional farm dwellings, and that
could be an instrument to do that first with the intent to CPR, to apply first for the additional
farm dwelling to give the Director a chance to approve that first. Then what's wrong with
owning the farm dwellings, two in that case, for ten acres, not for one acre, what is wrong with it
to own it separately? And I have a problem with the Director's statement about developers, and
that it is actually a subdivision. A CPR is an undivided interest, only different from co-tenancy.
While the co-tenancy applies a percentage of interest in the particular property, the other one is
an undivided interest as much, only it has an exclusive use area for one unit or the other. And
under the rules, implemented rules by the Planning Director, the application for farm dwellings,
additional farm dwellings
GIFFIN: Excuse me, Mr. Conventz, your time is up. You can summarize.
CONVENTZ: That was my summary.
GIFFIN: Okay. Thank you very much. Commissioners, any questions of the
testifier? Hearing none, thank you very much. Why don't we just take you in order, and I know
you are Christine deSilva.
DESILVA: Great. I have submitted some written testimony, and I am fortunate that
Chris is not up here with me because then if I go over my three minutes, he can take the next
three minutes. But I really want to call attention to the fact that we're not going to get into the
technical recommendations on language or premises and that sort of thing right now. We would
like to defer heavily to a letter by the Real Estate Commission that you guys have a copy of, I
believe, that was written on January 31S`. And we think that that document deals with, you
know, sort of questioning the underlying premises and assumptions of the draft, highlighting
certain clarifications and recommending changes for language. So Hawaii Island Board of
Realtors today wishes to speak to the more general issues.
First of all, we feel that the CPR ordinance is in conflict with State law. HRS 514A-45 gives the
Council, the County Councils authority to adopt supplemental rules and regulations regarding a
CPR that are not in conflict with this Chapter, and this is all in my written testimony. So from
our standpoint, it's clear that the Real Estate Commission's letter, you know, provides that, you
know, a property can, or a property owner can establish a CPR by a simple defined act of
recording a master deed in the Bureau of Conveyances. And only the Real Estate Commission
has the authority to regulate the sale of CPR units. This ordinance goes beyond supplementing
existing regulation in our mind; and we feel that, you know, the County level rights, or
otherwise, or should otherwise be restricted to zoning issues.
CPR is not a use, and that is something we really, really would like to try to put across there in
everybody's mind. We all seem to be talking in circles. And, you know, the use of CPRs for
this, and we're all getting a little bit mixed up, I think. But CPRs are really a form of ownership,
and that is, in large, what we're here to sort of defend today. My colleague, Chris Brilhante,
when he comes up, he'll explain that we're not in favor of circumventing rules and regulations.
3
We don't necessarily agree with many of the CPR projects that have been built, tool shed CPRs
or that, those matters. But we do feel that attempting to regulate use according to ownership
would be kind of, would be a, would be a fundamental violation of our federal Constitution
which guarantees equal protection under the law. It would be discriminating against a class of
joint owners because they choose to regulate their common ownership under provisions of a
State Iaw that is designed to allow them to do just that. So that's, in large, one of our
GIFFIN: Christine, your time is up.
DESILVA: Thanks.
GIFFIN: Would you like to summarize?
DESILVA: I think I will let Chris Brilhante, and you have the benefit of our written
testimony.
GIFFIN: Yes.
DESILVA: But Chris will sort of resume where I left off.
GIFFIN: Thank you.
DESILVA: Thank you very much.
GIFFIN: Sir, your name?
ROUDEBUSH: My name is Dan Roudebush. I'm at 75-633 Halewili Place, Kailua-Kona,
Hawaii.
I'd like to read an update of a letter I wrote to West Hawaii Today a while back and provide a
broader look of CPRs and changes to long term development.
Kona Board of Realtors, some of this applies to something I put in the paper, does not, nor does
any realtor, speak for the majority of residents in West Hawaii. Something has to be done to
bring the current explosive growth without infrastructure under control.
The current debate about CPRs is an opportunity for the Planning Commission to step forward
with courage and seize in the public eye the entire issue of urban sprawl and its dangers to the
lifestyle of the Hawaiian Islands.
This is not a debate about preserving the rights of property owners to make monies or even the
damnation of realtors to create more sales opportunities to line their pockets.
It is an opportunity for the Planning Commission to take a stand and turn the tide of a World War
II development system based on the automobile that threatens to destroy one of the last visages
of American beauty, the Island of Hawaii.
4
Permit me to elaborate.
Carmel, California does not issue any more building permits. People must buy old homes and
modify them. This is due to a water shortage in a very high-density area.
The same principle can be applied to West Hawaii on the basis of automobiles. Geographically,
and aesthetically, there is no room for massive freeways here. Igo into this quite a bit in my
letter. I include several attachments, including Attachment A regarding Peter Calthorpe's
philosophy on development, Attachment B, web links on dealing with urban sprawl, and also I
go into in Attachment C, some previous recommendations I've submitted on the General Plan.
In these, I had previously submitted proposed changes to incorporate a vision of smart growth
and the use of an exchange of development rights to protect agricultural and coastal lands
accessible to the public through the use of Transfer of Development Rights, TDRs. And it's
pretty well explained in Attachment C that I provided to you.
The current CPR debate provides the Commission with the opportunity to go beyond minutia,
which it seems to me you're arguing, you keep arguing over trees in these meetings, you don't
look at the forest. You've got to seize the Gordian knot of long-term development to its bosom.
Speaking of large numbers of friends, I again encourage the Commission to please get Kona's
expansion slowed to a crawl and examine some other options discussed in the attachments such
as the TDRs, etcetera, so we can protect our quality of life here. In the interim, I would say that
the Planning Director's attempt to put some checks on the current CPR until you can probably do
away with the things would be supportive.
GIFFIN: Sir, your time's up. Would you like to summarize?
ROUDEBUSH: I think I would like to summarize by asking the Staff, because I did not
provide nine copies
GIFFIN: Yeah.
ROUDEBUSH: To provide each one of you a full set of the documents I submitted.
GIFFIN: Thank you. Commissioners, do you have any questions of the public
testifier?
SPRINGER: No, thank you.
GIFFIN: Hearing none, sir, your name and your resident address.
PURI: My name is Rab Puri. I live at 75-349 Melelina Place in Kailua-Kona.
GIFFIN: You may begin.
5
per: I'm sorry?
GIFFIN: You may begin.
PURI: Okay, thank you. I am testifying on my own behalf, although I believe
that lots of people support my position, if not this Island's majority. I'll read, and if my three
minutes are up, I'll leave the documents with you.
I applaud Chris Yuen for having the courage and taking the initiative to correct a very serious
injustice, which the misuse of CPR has engendered. For many years now, the real estate
interests have successfully abused a handful of farmers as human shields and human levers, to
keep open the flood gates of uncontrolled development of homes, absent any infrastructural
improvements. It's time to end this blatant injustice. There are often issues which have two
sides. Fortunately, the CPR issue is cut and dry, black and white, with no shades of gray. Please
support Mr. Yuen by voting unanimously in favor of the legislation he has proposed.
We are very fortunate to live on this Island. The natural beauty, the weather with its many
micro-climates, our flora and our fauna, our beautiful coastline and beaches, our clean and clear
waters, our glorious sunrises and our beautiful sunsets, and our clear starry skies, all combine to
offer us a wholesome and magnificent environment. Given this environment, we can enjoy
swimming, diving, hiking, biking, etcetera, and a host of other activities. We need to preserve
this environment for ourselves and for future generations, and we can. The CPR loophole has
been a spoiler, but we are going to plug it -because we must plug it!
We are blessed to be the Island with the largest landmass and a relatively small population.
Others will want to move to our Island, because they want to enjoy the same things we do, and
they will come. We cannot stop and do not want to stop growth. We need to channel growth
and develop the infrastructure to support it. Some have termed it Smart Growth. We need
playgrounds, parks, schools, safe roads, sidewalks, bicycle paths, clean water supply, protected
watersheds, clean energy, and the other infrastructural needs that support a good quality of life.
The people who live here and move here need to pay for the infrastructure through the cost of
homes when they are built, and through taxes. There are no royal roads and no free lunches in
life!
We cannot allow the likes of CPR loopholes to continue unhampered, or we will invite urban
squalor and create ghettos. We have ample examples from the mainland of unplanned and
planned growth and the outcomes of both. We also see cities spending billions to clean up their
urban squalor, and rejuvenate their towns and cities where zoning has run amuck.
GIFFIN: Mr. Puri, your time is up.
per: Thank you.
GIFFIN: Would you like to summarize?
6
PURL: Yes, I would. We have too much at stake. We cannot allow a handful of
self serving persons, besieged my myopic insight and tunnel vision, to keep the CPR loophole
afloat any longer. The costs and penalties to our community at large are prohibitive. We must
support the proposed legislation to correct this injustice. At the same time, we must ask our
elected officials in Honolulu to craft, or revise, State laws so the interests of a few farmers who
need multiple dwellings is not compromised. Mahalo.
GIFFIN: Thank you for summarizing.
PURI: Imua. You're welcome.
GIFFIN: Thank you. I know your name, Sandra Scarr. Your full name and your
address.
SCARR: My name is Sandra Scarr. Is this on?
GIFFIN: Yes, I think so, tap it. No.
SCARR: No, this one isn't on. I can use this one.
GIFFIN: Yeah•
SCARR: My name is Sandra Scarr, and I live at 77-6222 Kaumalumalu Drive in
Holualoa.
I'm coming here in two capacities, one is as Vice President of Citizens for Equitable and
Responsible Government, otherwise known as CERG, because We have written to Mr. Yuen
and to members of the County Council supporting this amendment to the County Code to
prevent CPRs from continuing, and we know that the underlying zoning should have been
preventing the kind of abuse of CPR that has happened on this Island here before. But we really
applaud what Mr. Yuen is trying to do, and I think to codify this is very important.
CPRs, in their misuse, as they have been misused in this Island, subvert the General Plan; and we
should be following the General Plan as to land use. It subverts the Subdivision Code and
subverts agricultural land designations. We think that planning is absolutely critical. We need
the new General Plan, and we need regional plans that have the force of ordinance. We need to
preserve what we have, as Mr. Puri put it so nicely, and we need to think about smart growth and
controlled growth. We are not anti growth at all. We understand and recognize that it's
important to plan growth for this community. We are under great pressure on this side of the
Island, perhaps more than other places on the Island. And we feel very strongly, as
Mr. Roudebush put it, we feel very strongly that we cannot continue to have this uncontrolled
growth. And the patchwork of CPRs has left us without infrastructure.
So we feel that CPRs lead to land speculation, not investment in our community. There is a great
deal of land that's owned here that is being held merely for speculation, and CPRs were a big
part of why that happened. People felt they could buy agricultural land of some acreage, 5, 10,
7
20 acres, and turn it into small lots to sell for profit. And they were able to do that in the
previous administration. They are no longer able to do that, and we are thrilled that that has
stopped.
Of course you, we all know that CPRs increase the density of plan, beyond the planned density
of communities, and that there really should be no exceptions. I know I've argued this with Mr.
Yuen that I wish it had stopped, period, as of last June. But if he has to do on a case-by-case
basis a few exceptions, we will kind of swallow hard and live with it.
I want to speak now as the president of the Estates at Holualoa Subdivision because I live in an
agricultural subdivision of five-acre lots, and we have been hard pressed. We started with
19 five-acre lots, and two of them were CPRd under the last administration. And there, well,
now we're 21 lots, where there used to be 19.
GIFFIN: Ms. Scarr, I need you to please summarize.
SCARR: Then my summary for Estates at Holualoa would be we have water
resources issues, we have issues of land use within our community that make it essential for us to
maintain our five-acre plots. And some of those present today have attacked us and tried to
divide our land; and we're trying very hard to maintain it and not to CPR. Thank you.
GIFFIN: Thank you. Commissioners, do you have any questions of this testifier?
She spoke with two hats so None? Thank you very much, and thanks for waiting all day. And
your name is
PALMA-GLENNIE: I'm Janice Palma-Glennie.
GIFFIN: Oh, okay. Thank you. And your address?
PALMA-GLENNIE: My address is P.O. Box 4849, Kailua-Kona.
GIFFIN: Kailua-Kona. Thank you. You may begin.
PALMA-GLENNIE: Aloha, Planning Commission Members. Thanks for this opportunity to
speak. Mayor Kim and Planning Director Chris Yuen have taken the lead for better land use
planning in our County. A giant win-win step in achieving these goals is to enforce existing
subdivision laws by eliminating the indiscriminate use of the CPR subdivision loophole. The
CPR law was designed to give separate title to apartment units--not to subdivide land. The use
of the CPR loophole has had many deleterious effects including:
Number one, adding unexpected density to subdivisions, neighborhoods, and rural areas. Roads,
parks, schools, fire control, and other important provisions of planning are being stressed to the
max. CPR division can contribute to more than quadrupling the density of development.
Number two, land prices reflect CPR potential, often making land more expensive and purchase
risky. With hope (but no promise) that land could be CPR'd, people have gone into land
8
purchases which they might otherwise not have. Some people plan to recoup land costs or make
money on their property by selling these "limited common elements." This has made speculators
out of regular folk who are just trying to afford a home, not become realtors. Without CPR
potential, regular people may be able to better afford property when prices don't reflect that
potential.
Number three, CPR is a subdivision loophole, as I've said. It's not and has never been a given.
One person could get CPR approval (and maybe the right consultant, right timing, or mood), and
another may not.
Number four, CPR is more than a real estate dilemma. The inconsistent application of the CPR
loophole creates the appearance of government impropriety. By closing the CPR loophole,
Mayor Kim and his administration are taking the opportunity to heal the wounds which lack of
faith in government agencies has had on Hawaii Island communities.
Last, comments have been made regarding the new law, that it would solve the problem of
excessive Ag dwellings. However, this claim does not hold water, as tightening up the CPR
loophole will make it impossible to build additional units to be sold with fee simple title, giving a
disincentive for speculation or intent for building new structures for other than agricultural
purposes.
Anyone who drives a car or has a child in school knows the crunch of poor, unexpected planning
and the effect it has had on West Hawaii. No matter how you feel about "growth," the rapid
growth of this island's population and development will be better if it's proactively planned and
the rules enforced. Let's please not go down the road of Los Angeles and Honolulu-type sprawl,
which we are heading too fast. Please give your support to this measure which would, in a fair,
equitable manner, help clean up Hawaii County's haphazard planning and the future of our
neighborhood, our resources, and the social fabric of our communities. Thank you.
GIFFIN: Thank you. Commissioners, any questions of the last public testifier?
Hang on. Mr. Roudebush.
ROUDEBUSH: I'd just like to comment on the last speech. To put more buildings on land
to make it valuable is not necessarily correct.
GIFFIN: You know, I
ROUDEBUSH: Land without the ability to build more on it is becoming more valuable in
today's society.
GIFFIN: Thank you very much for your comments. But today's hearing is not to
have you people argue with each other but
ROUDEBUSH: No, no, I'm endorsing.
GIFFIN: Yeah, but it's not for that purpose, it's for comments for us.
9
ROUDEBUSH: Oh, I see. Okay.
GIFFIN: Thank you very much. You six or five remaining are asked to please step
back, and I will call Chris Brilhante, Duane Erway, Mark Van Pernis, Roger Meeker. I thought I
saw Tommy Tinker come back in. I called you in the first batch and you weren't back yet, so
why don't you come back up. Richard L. Smith, is he still, he has not returned? Is there anyone
else from the public who did not sign up to testify on this agenda item and would like to do so?
Why don't you give Alice your form and join the table. Chris, I know we've already sworn you
in. Mr. Van Pernis, I think we've done you. Mr. Tinker. So the three remaining who have not
been sworn in today, 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 very much. Sir, beginning with you, your full name and your
resident address.
MEEKER: Hi, my name is Roger Meeker. My address is P.O. Box 909, Kapa`au.
GIFFIN: And you do know that I am limiting testimony to three minutes?
MEEKER: I understand that.
GIFFIN: Thank you very much. Are you going to be referring to your
MEEKER: Well
GIFFIN: Handout?
MEEKER: Yeah, as much as I can, but I know there's a time limitation, so I' 11 do my
best.
GIFFIN: Okay. Commissioners, do you have his written testimony dated
February 25`"? It was in our handouts today. Okay. You may begin, Mr. Meeker.
MEEKER: Thank you, Commissioners and Director Yuen.
There are many problems regarding undesirable development in the County that remain
unresolved. I feel, however, that this proposed amendment is both legally flawed and
substantively misdirected in its attempt to address some of these problems.
I think you folks are in possession of a letter from the Real Estate Commission that addresses
this proposal, and it's a rather detailed 11-page analysis, and I would refer you to that. But they
do point out how many of the suggested provisions are, how some of the underlying
justifications themselves are flawed and how many of the suggested provisions are already
10
preempted by State law. And it does specifically note in that letter that contrary, "Contrary to
what some would believe, the state condominium law does not...subdivide land;...is not a land
use law. It is a form of ownership of real property and it does not govern what type of structures
may be built...the density, size, location and condition of the structures.... Those issues are
left...to separate state and county land use laws."
I think a good way, there's several examples you could use to point this out. If we have two
identical adjoining pieces of property, say two acres in size, both zoned RS-10. The density
allows for eight units. On one property, a developer could build eight houses and rent them out.
On the adjoining property, a developer could build eight houses, CPR them, they could be sold
individually. The permitting requirements are identical for both situations; the infrastructure
requirements for both projects are identical; and the density is the same. Then why, you need to
ask, is why one of these projects is deemed to be perfectly all right while the other somehow
constitutes a loophole around County infrastructure requirements?
Our own County Zoning Code specifically permits the construction of a second dwelling on
virtually any lot on this Island. We need to seriously address the appropriateness of this.
Remember, it's not a loophole if the Code specifically permits the very thing you are
complaining about. Unfortunately, CPR has become the convenient whipping boy for an entire
host of County Code deficiencies. It has become synonymous with double density development,
one of the things that supposedly we all deem non-desirable. But guess what? The
condominium law is not what provides, is not what allows the permitting and construction of two
houses on a lot. Our own County Zoning Code does that by either `ohana dwelling or additional
farm dwelling ordinances on virtually every single residential or agricultural lot on the Island.
We need to change this.
Previous administrations and previous County Councils have been unwilling to tackle these
problems. It has been much too easy to sit back and place the blame on the State condominium
law and say there's nothing we can do about it. I hope now you realize that this is not the case.
The problems have always been at the County level within our own Swiss cheese style of Zoning
Code. It's time to plug the holes. I know that our new Planning Director is very much aware of
the true nature of these problems, but I suspect that he questions whether the political resolve
exists to make the necessary changes. I very much hope that the Planning Commission and the
County Council can demonstrate a willingness to work with him towards that end. Although I
cannot support this proposed amendment for the reasons noted above, I will strongly support any
efforts this administration makes to finally address these land use issues by appropriately
amending our Zoning, Subdivision, and Building Codes to protect the legitimate
GIFFIN: Thank you.
MEEKER: Health, safety, and welfare of our County citizens. Thank you.
GIFFIN: Thank you. Commissioners, any questions of the last testifier, Roger V.
Meeker? All right. Thank you. Chris.
11
.
BRILHANTE: Hi, I'm Chris Brilhante. I represent the Hawaii Island Board of Realtors.
As you know in my previous testimony in the last hearing, we've been working with Chris Yuen
on this issue. It isn't an easy issue. It is quite complicated, and it can be tackled in several
different ways. In our discussions with Chris Yuen, we had a lot of difficulty and debate on how
this issue should be addressed. How, basically, the premise that was brought up was that there's
a lot of abuses, especially in West Hawaii, regarding CPRs, and a lot of people perceiving that
they are circumventing the subdivision laws and requirements and going ahead and doing CPRs.
And we are in agreement with Chris that we would like the abuses to be curbed. And just how
we go about doing it is really the crux of why we're here.
What Chris is proposing, basically, is to have CPRs fully be in compliance with the Subdivision
Code. In essence, what that's going to do is that's going to basically kill CPRs a hundred
percent. I mean except, you know, Chris talks about if somebody wants to do, you know, a nice
large project, you know, similar to like a planned unit development then, you know, CPRs would
be allowed. But, in essence, what this ordinance is going to do is completely disallow CPRs.
Because if anybody has to do, comply with all the subdivision requirements, why would they go
through the effort of having it done by CPR? They would have it done by the Subdivision Code.
What we proposed to Chris was, on one hand, what we proposed to him was to curb the abuses.
The abuses that we're seeing is people coming in and doing shade house CPRs, and CPRing the
shade house and basically with the intention of marketing that property. The Hawaii Island
Board of Realtors is really not in support of that type of CPR. What we told Chris, the other
issue that Chris brought up was the fact that developers are going out and CPRing property,
much like somebody going out and subdividing property. So we gave him a proposal limiting
CPRs to, you could only do one CPR every three years. You could only, one single entity could
do a CPR every three years. And CPRs could only be done through existing permitted
structures. And actually the reason why we took the third one was to give a disincentive to
somebody speculating on a CPR. We figured that if they are going to go ahead
GIFFIN: Chris, I'm sorry.
BRILHANTE: I'm out of time?
GIFFIN: Your time is up.
BRILHANTE: Okay.
GIFFIN: Would you like to summarize?
BRILHANTE: Well
GIFFIN: I know you had three different
BRILHANTE: Yeah, but, okay, that's Well, my explanation is going to take a little bit
too long. But anyway, that's only one side of it. The other side of it is that Chris has legitimate
concerns about the water.
12
GIFFIN: Yeah.
BRILHANTE: About the fire safety access, about the flood and, you know, flood control,
and we agree with him a hundred percent. I just don't think, we just don't feel that the CPR is
the avenue, is the tool to solve that problem.
That, the Water Department is not involved in the building permit process. We feel that the
Water Department should be involved in input. They're not in the loop in pulling building
permits.
And we feel that there should be changes to the Zoning Code and to the Subdivision Code to
make those requirements that Roger Meeker had brought up. You know, where his example is
you have two separate properties, and one property, you know, you can fully build, you know,
without the requirements as long as you don't CPR
GIFFIN: Right.
BRILHANTE: But one property you can
GIFFIN: Right.
BRILHANTE: You know, CPR.
GIFFIN: Right.
BRILHANTE: That
GIFFIN: Chris.
BRILHANTE: Is going to be
GIFFIN: I'm sorry but
BRILHANTE: Continue to be a problem.
GIFFIN: In all fairness, I need to ask the other Commissioners if they have
questions
BRILHANTE: Okay.
GIFFIN: To ask you. And then maybe it might give you an opportunity to elaborate
more. Commissioners? Mrs. Kubota.
KUBOTA: How'd you know?
13
GIFFIN: I saw, because I understand your body language.
YUEN: Leaning forward.
GIFFIN: Yeah, grabbing the mike.
KUBOTA: Mr. Brilhante, you started saying you proposed some alternatives.
GIFFIN: Yeah.
KUBOTA: Might you, I know you went through two, I didn't get your third.
BRILHANTE: Okay. The third one is basically kind of compromising, saying that you
can only CPR existing residential structures. The reason for that is to, Chris wants to have a
disincentive for CPR. But we have seen on the Big Island need for CPR in family situations.
Families have had situations, everybody knows that the land prices are high on the Big Island,
and families like to provide housing for their family or, you know, relatives. And one way of
going about it without getting into the complication of having to, you know, all get on the
mortgage, all get on, you know, have an interest in the property, is being able to separate the
ownership. You know, if there's anything that happens down the line, if there's a divorce, you
know, in the kids' situation, the whole property is tied up and it gets very, very messy as far as
the ownership issues. And CPR is one way for, you know, for the small family situation to be
able to separate out their ownership, to have another family member, you know, have a separate
ownership, and not have a lot of potential legal consequences because of that situation.
So what we proposed was that it would have to be legal permitted structures that would, I mean,
existing legal permitted structures. That would eliminate the shade house CPR. But it would
also allow the family situation where if Because of the fact that the structures already have to
be in existence, we feel that maybe only a family, you know, member type situation would get
involved in that situation. Because you would have to possibly get on title, possibly have to, in
*,he interim, get a mortgage together; and then after the structures are completed, then you can
separate out the ownership, you know.
But most people that don't know each other are not going to get into that kind of messy situation.
So there's not going to be a lot of incentive for the speculator, you know, to get involved in that
situation. And it becomes a financial burden for somebody that's going to do that, coupled with
the fact that you're only allowed to do a CPR once every three years, you know, per entity. So
it's some way of getting some safeguards, you know, put into place. But you don't eliminate,
you know, this and get, you know, some casualties that we didn't want to have.
GIFFTN: Any other questions of the testifier? Commissioner Springer.
SPRINGER: Madam Chair, question for you. May I ask the Director to respond to
Mr. Brilhante's comments at this time or should we wait until we've heard from all the public?
l~
GIFFIN: I'll leave Mr. Yuen to answer whichever you would like. Would you like
to do it public testifier, per public testifier or as, you know, the need arises?
YUEN: I think it would be best to go at the end because I think there are some
common themes that are going to come up
GIFFIN: Yeah. Okay.
YUEN: Rather than
SPRINGER: Thank you.
YUEN: If the Commission would rather, I'd be happy to do it either way. But I
think perhaps once we And since we're going fairly quickly through the public testimony,
when it comes to an end, then I can entertain any questions on this, on these particular
suggestions that have been made and on anything else the Commission feels that they
particularly want to discuss.
GIFFIN: Okay. Commissioners, once again, any questions of Chris Brilhante? I
have a question, Chris. Regarding the infrastructure comments you were speaking of, the water,
the, you know, the roads, could you elaborate on that again?
BRILHANTE: Basically, the CPR, requiring the CPR to meet all the Subdivision Codes
will only affect people that are doing CPRs. The problem that the County runs into is a typical,
say one-acre parcel that's zoned RS-10 that may have Flood Zone running through it, may have
inadequate water for the parcel, may have inadequate roads for emergency vehicles. Basically,
they can build to density, and they don't have to meet those requirements.
And what we'd like, we're in full support of changing the County requirements and the County
Code to have those properties meet those requirements. You know, get the Water Department
involved in the building permit, you know, process, get the Flood Zone requirements, possibly
up, you know, set a set number of units that are, you know, that would be a trigger to do, say,
possibly a flood study, you know, that's needed. Or some sort of limited flood, you know,
requirements, where if you're in a Flood Zone, you know, then immediately the County is going
to get involved.
GIFFIN: Because you were at our Hilo meeting, and what is the name of the man
from the Department of Water who spoke
YUEN: Bruce.
GIFFIN: In favor?
BRILHANTE: Bruce.
GIFFIN: McClure.
15
BRILHANTE: Bruce McClure.
GIFFIN: You heard
BRILHANTE: Right.
GIFFIN: Bruce McClure's comments regarding that. And so you were kind of in
fav you are kind of in favor of remedying those situations?
BRILHANTE: Definitely.
GIFFIN: Where he said, you know, people in CPR, current CPR situations come in
to get water and they find out there is not enough water. They don't even have a meter and
BRILHANTE: But it's not just CPRs, it's anyone that is applying for, you know, multiple
homes. And you can get multiple permits on property that you have no intention of CPRing, you
know. And so it's a problem that is not going to fully be solved by this ordinance. And it's
really an, the crux of the issue is, are you going to tackle this and try to solve this whole problem
on the CPR basis? Or, are you going to try to solve this problem on a farm dwelling type basis
or the number of units that would be allowed, you know, on a residential property? The problem
that we have is the fact that people can get multiple homes on Ag lands fairly easy. And if we
can address those issues, I think that we can actually solve the entire problem, you know, rather
than using the CPR as a vehicle to kind of tackle one portion of it. But we're still left with the
underlying problems that are not addressed.
GIFFIN: I know, that bothers me. Yes, Mr. Yuen.
YUEN: Yeah, let me contradict what I just said. And just to, I think, because we
are discussing this point right now. The issue on a Residentially zoned property is a little
different than Agriculturally
GIFFIN: Ag, yeah.
YUEN: Zoned property.
BRILHANTE: Right.
GIFFIN: Yeah.
YUEN: On a Residentially zoned property, if you have a 100,000 square foot lot
that's an unsubdivided lot, and you have RS-10 zoning, which means 10,000 square feet, you can
put 10 houses on that piece of property.
GIFFIN: Right.
16
YUEN: If, and you can put 10 houses on that piece of property and rent them out.
And if you do not subdivide the property
GIFFIN: Right.
YUEN: All of the infrastructure requirements of the Subdivision Code do not kick
in until you sell off them as individual units. I think, you know, Chris and I agree that that's not
a good situation. But to use that as the reason for saying that then what difference does it make
if you then let them become sold off separately as a CPR is sort of saying just because the
County lets you do one dumb thing, they should let you do another dumb thing that is very
similar but not exactly the same. I don't know what the reason, and when I say that you can put
10 houses on it and rent it out without any infrastructure, you have to build the houses a certain
distance apart, there's a
GIFFIN: Yeah.
YUEN: Code for that. But you don't have any standard as far as your road that
goes into the house; it's just considered a driveway, so you could have asix-foot wide dirt road
going into 10 houses, or 20 houses, or 30 houses.
This, there are little neighborhoods that are like this on the Island. I could tell you what they,
and I could name some of them, where there are a cluster of rental houses like this. It's, it is, it
can be a problem. It's a problem of limited dimensions because it's, because they are just rental
situations. If I were to try to justify it, I don't think it can be completely justified. There's a little
bit of a consumer protection, there's more than a little bit of a consumer protection issue when
you start selling off pieces of property like this. I mean if you go into a situation like this and
you rent out the house and you, and it really turns out long term that it floods, the road is lousy,
you can move out. Once those houses get sold, then there are, then you bought the house and
you have a problem. And if you have a problem, then someday the County has a problem
because you are going to bring it to the County's attention.
The way the County dealt with this was when you sell off, the idea was that's a subdivision and
you sell off the houses individually. But then the idea comes up of, well, we'll not call it a
subdivision, but we'll call it a condominium or a CPR and we'll sell off the houses that way.
And that's what, that's what the situation is now. And I don't see why, that if you're going to
divide the property, whatever you call it, into individual ownership and say this part, this is mine,
here are my boundaries, my house is on it, and sell that off as an individual unit, what is the
difference between that and a subdivision, and why shouldn't If the Code says you need to do
certain things for a subdivision, why not do it for a CPR that has exactly the same effect on the
ground?
I think that some of the suggestions the Board of Realtors are making are good suggestions. On
the question of existing buildings, I think if there were some time period like 10 years that the
home had to be sold, that that would make a difference in giving an exemption for existing
dwellings to be then CPR'd also. They weren't bought with the original intention for that
purpose.
17
GIFFIN: Commissioners, any other questions of Mr. Brilhante? Mrs. Kubota.
KLTBOTA: Mr. Brilhante, was it my understanding that, as you represented the Board
of Realtors' support, that part of what Chris was talking about, our Planning Director was talking
about, in terms of conforming to the zoning requirements, that the Board of Realtors was in favor
of it, such as water and infrastructure?
BRILHANTE: Yes.
KUBOTA: Yes?
BRILHANTE: We would be in favor. Well, in discussions in representing the Board of
Realtors on the GAC Committee level, Government Affairs Committee level, and :his is the
Hawaii Island Board of Realtors, we would like to tackle the problems that we laid out. But we
don't think that eliminating CPRs in its entirety is the vehicle to use to get there.
KUBOTA: But you did say you agreed that, the Board agreed that there are areas
within the CPR that needs cleaning out and perhaps, or am I
BRILHANTE: I think it's
KiTBOTA: Reading into it?
BRILHANTE: Areas in obtaining building permits
KUBOTA: Yeah. Yeah.
BRILHANTE: Farm dwelling requirements.
GIFFIN: Criteria.
BRILHANTE: In obtaining building permits, zoning. And, obviously, there is a need on
this, on certain parts of this Island for smaller, more affordable parcels or this wouldn't be going
on either, so that becomes a zoning, you know, type situation. And Chris has been open, you
know, to that. They have done some rezonings in Anekona, in Waimea; and he has addressed
that there is that need out there. And so, you know, that is another way of tackling it, you know.
KUBOTA: Thank you.
GIFFIN: Alice, Mr. Torigoe just raised a question that I need your answer to. Is
today considered the second hearing then for this agenda item?
KAWAHA: Yes, and it also has been continued to the March 22"d meeting in Hilo.
GIFFIN: It is?
18
KAWAHA: Yes. It was voted by the Commission at the
GIFFIN: Yeah, that's
KAWAHA: February 15'h meeting.
GIFFIN: Okay. Chris, what I'm going to do is move on with public testimony. Just
remain there, and Mr. Meeker, as well. And finally, Mr. Van Pernis, are you going to be
referring to your letter?
VAN PERMS: Only briefly. I certainly hope I get as much time as the Hawaii Island
Board
GIFFIN: If you generate as many
VAN PERMS: Of Realtors.
GIFFIN: Discussion questions, sure.
VAN PERMS: And I am going to supplement what I said in my written document; I hope
you will all look at it. First of all, I've been in the area of real estate law in Kona since 1976,
representing a lot of developers, a lot of brokers, a lot of realtors. I don't speak out of ignorance,
I speak out of a lot of direct experience with this issue for over 25 years, which is probably more
than any other gentlemen you've heard from so far.
If I did a 1,000-lot subdivision in Puna and a 1,000-lot subdivision in Kona, I assume I'd have to
put in a lot of infrastructure; otherwise, the County ends up paying for schools, fire, police,
roads, water, drainage, all that sort of business. What the County has basically allowed since
1982 is a 2,000-lot subdivision to happen, at least happen in the west side, with no infrastructure.
So if that's a policy you're going to continue to follow In other words, if I can't do it a
thousand at a time, why can I do it one at a time, or two at a time, or four at a time? If you're
going to continue with that policy, just tell the County Council right now to pump the taxes,
because the counties are all going to have to pay for all that infrastructure.
The Real Estate Commission is basically a, although I respect that agency and work with it
almost every week, it has basically captured by the real estate industry. Senator, or
Representative Chang's law in 1982, I think was it, or was it '89, I forget which, it's in my
writing, basically empowered the County to write the very kind of regulations Mr. Yuen is
proposing. There has been some fine, some hair-splitting about whether it's a supplemental rule
or not. But there is no question that the County can enforce and can determine its own
subdivision rules and its own Subdivision Code; and Chapter 23 is exactly that. Chapter 23
defines what a subdivision is, and a condominium is a, is exactly that.
I should point out that my wife is a real estate broker, a member of Mr. Brilhante's board. She
was not asked what her opinion was on this. And I think Mr. Brilhante will concede that they
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did not poll the membership of their board, nor did the Kona Board of Realtors, where my wife is
also a member, poll their members. So I think we should be careful when somebody says they
are speaking for the Board. Mr. Meeker, for instance, is a real estate attorney in Waimea, whose
primary source of income is doing CPRs.
Let's use his analogy. Well, there's atwo-acre piece zoned Residential and two of them next
door, that's not what we're talking about. What we're talking about is let's say atwo-acre piece
zoned Ag-2 and another piece next door zoned Ag-2. You end up putting four, six, eight houses
on those without any infrastructure? I don't think so.
The concept of, well, how about one every three years? That was proposed years ago, too, and
that was rejected. Why? Well, I do one, my wife does one, my kid does one, my corporation
does one, my partnership does one, we end up, you know, we're You write those kind of
loopholes, we lawyers can find ways around it pretty damn quick.
The way to deal with this is to eliminate the possibility of CPRing altogether, a hundred percent.
There, as my written article shows, there is no affordable housing that has ever been developed
by the CPR process. In fact, it drives prices up. The argument, well, what about a divorce? I
defy anyone to tell me, show me one divorce case where a CPR came into existence, in other
words, the divorce was settled by having both parties live in the same house together. There are
none.
GIFFIN: Mr. Van Pernis, I do need you to summarize and perhaps
VAN PERNIS: All right. Well, let me summarize, let me summarize in this way.
GIFFIN: Yeah.
VAN PERNIS: And I would ask you to read my written
GIFFIN: Don't worry, we will be asking you questions.
VAN PERNIS: All right.
GIFFIN: As well.
VAN PERNIS: I would feel safe, if you're not going to pass this sort of thing and pass it
soon, so all the rest of us don't continue on with our subdivision, pass a moratorium. No farm
dwelling agreements, no `ohana agreements until you make all of these other changes that
everybody is concerned about.
In summary, let me say this. This is shibai, a turning away from reality and commonsense. A
CPR is not subdividing, merely a method of land ownership. Section 23 of the Hawaii County
Code prohibits lots or units created by any form of division, which are to be developed or
transferred without complying with zoning and subdivision requirements. Calling a divided
portion of a lot a condominium, or a common element, or a limited common element, or a
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building site, or a unit and then selling it as a separate division or portion of an existing lot
without complying with the zoning and subdivision ordinances is a violation of Section 23. It
just takes the willpower of the County to enforce Section 23. It's a division, no matter what
legalese is used. The developer sells them as separate divided lots, and the buyer thinks that's
what he's getting, and the rest is semantics. So I would, and if you need any documentation to
verify all of the examples that I've provided in my written presentation of how subdivisions are
wrecked and covenants are violated, I have them with me here today.
Just one last point. With Mr. Ibbetson, you brought up the matter of
GIFFIN: Covenants.
VAN PERNIS: Covenants, all right. Well, why is it when you have covenants in
subdivisions that say they must be used for single family residences, that the County goes ahead
and doubles it up? All right, let's have two, three, four houses on a lot. So if you're concerned
with covenants, although I agree with Corporate Counsel and Mr. Yuen that covenants are a
private matter between individuals, if you care about covenants with one, care about covenants
for everyone. Thank you.
GIFFIN: Commissioners, any questions of the testifier? I do. In your written
testimony, you bring up Kamani Trees
VAN PERNIS: Kamani Trees, yes.
GIFFIN: As an example and also Hualalai Farms.
VAN PERNIS: Yes.
GIFFIN: Could you please explain, in particular, those two?
VAN PERNIS: Well, Kamani Trees is one of the most, one of the first situations that was
really egregious and brought the public out in Kona. It's an area near Kahakai School or an area
that became Kahakai School.
GIFFIN: Okay.
VAN PERNIS: That was zoned for 10,000 square foot lots by a developer, and
infrastructure assessed on the basis he was going to have fifty-some 10,000 square foot lots. He
then sold the project to Mr. Schuler, you may know who, Schuler Homes. He sold it to
Mr. Schuler. Mr. Schuler proceeded to CPR it and make it one hundred and ten 5,000 square
foot lots. The result was that first of all, the traffic was horrendous, and the County, you folks,
all of us taxpayers, had to put in a $250,000 street light at the intersection of Lako and Kuakini.
The street light you see down there by the Chevron station, we paid for that thanks to Mr.
Schuler's development. Kahakai School was almost immediately overcrowded. It was built and
it was all, because they had basically 50-some more homes than what was originally anticipated,
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50 more homes than what was, what the developer was originally assessed for when he got his
zoning and then subsequently sold it to Mr. Schuler.
Hualalai Farms is a case that I'm all too familiar with, in fact, I'm involved in litigation right
now. I represent a party who is involved in multiple-party litigation because of flooding from
Hualalai Farms. He lives makai of the area, and everybody is pointing a finger at each other
about flooding.
I also represented a gentleman who, a man who retired to Hawaii, an engineer, bought afive-
acre place in Hualalai Farms when it was first developed on the basis of it has covenants that say
single-family residence agricultural use. And he built his dream house up there, single family,
put in some agricultural activity, ran some horses and cows. The, over the years, a certain, I
won't name names, but you might recognize the names, a certain gentlemen bought two or three
five-acre lots up there and proceeded to get farm dwelling agreements, such that there were, and
then he CPRd it, all right. So that there were two or three, one lot has at least three homes on it,
one as small as 12,000 square feet, all right.
I represented an individual who asked me to participate in the owners association process
because the covenants said single-family residence, and he felt that this, and clearly it was a
violation of one family, one single-family residence per five acres. However, the gentleman got
more proxies than my guy did, so he basically, they voted not to enforce the covenants against
the multiple housing situation.
The problem was compounded because Hualalai Farms is developed off of one County water
meter. One, it's a private system where they pump the water up and put it in a big tank, and then
everybody has a private meter system, not an uncommon situation in Hawaii, not in Kona.
What happened is that the covenants, when written, of course, was each lot pays basically one
equal share of the water maintenance situation, very similar to what I said in my papers about
over on the Hilo side in Hawaiian Paradise Park. Then when all of these homes went on the
property, they all started using water. The water system was overtaxed, and it became time to
spend about $50,000 in improvements on the water system. Those improvements were assessed
equally per lot. So the guy with the one house on one lot was paying the same assessment as the
guy with the three-lot, three houses on one lot, all right. So you see the inequities. My guy said
the hell with it, eventually moved out, moved to North Carolina.
The same situation is going on in Hawaiian Paradise Park. I recently served on the Redistricting
Committee to redistrict all of the County Council seats. And we all heard from all the people in
Puna screaming about well, we don't have infrastructure, we don't have County roads, we don't
have County water, we don't have the same, you know, we're getting the short end of the stick
from Hilo. And what's going on, to some extent, is that's where you have all your Ag-1
subdivisions like Orchidland and Paradise Park. And in Paradise Park, you have private roads.
And so some guy will CPR his property and put two or three houses on the lot, and he has twice
as many cars driving up and down the road as the guy with one house on his lot. The road breaks
down and it's time to assess for the roads, and the guys with one house are basically subsidizing
all the rest.
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Now the CPR system is a loophole. It's what they called, when Senator Chang's or
Representative Chang's bill was passed, they called it a Big Island problem, all right. A Big
Island problem because all of the problems that generated that law were from the Big Island.
The other, after Representative Chang's bill was passed, the other Counties passed laws to
regulate CPRs. That's why I'm astounded to see the Real Estate Commission, although I
understand the realtors have been talking to them, the Real Estate Commission would say, hey,
maybe you can't do this, when all the other counties have actually done it. ~4nd, of course, we
also have Senator, or Representative Chang's bill that says you can use Chapter 23 as much as
you like. So it's not necessary to do this.
But my big concern is if you will go to the Real Estate Commission and review how many one-
lot or two-unit CPRs there have been since this law passed in '82, you will see, first of all, that
the majority of them are the Big Island, all right, and, secondly, you will see about 2,000 lots
since 1982. So, again, go back to where I started. If I came before you and said I wanted a
2,000-lot subdivision, now what infrastructure am I going to have to provide? But if I do it one
lot at a time, or my wife does one and I do one and my kid does one and my partnership does one
and my corporation does one--so, I can skirt any kind of loopholes, like limit of three, or it has to
be a divorce, or something like that. Then, you know, how, I basically get a 2,000-lot
subdivision over the years with no infrastructure.
So I applaud what's being done here. There may be a lot of ways to fine-tune it. But as
Representative, or Councilperson Domingo did years ago, he proposed a moratorium on all
`ohana, this was when `ohana was legal on Agriculture, as well, all `ohana and farm dwelling
until it could address the CPR problem, vetoed by Mr. Yamashiro, okay. Perhaps it's time to, if
you want to fine tune this thing, it's time to have a moratorium at a minimum.
GIFFIN: Thank you very much. Mr. Tinker, right?
TINKER: Yes, ma'am.
GIFFIN: You may begin your testimony.
TINKER: I've moved. I now live at 54-420 Kapa`au Road.
GIFFIN: Where? No.
TINKER: I'm going to try to speak to something a lot more specific than what we've
been hearing so far. My wife and I, we were successful bidders when they had some teachers'
cottages in Kapa`au, across from the school. We managed to get one, it was a duplex, so two
apartments.
GIFFIN: Yeah.
TINKER: We have about five acres in Kapa`au zoned RS-15. I had done a little bit
of a subdivision. So I had a home on a 30,000-square foot piece, I had a vacant 30,000 square
foot piece, and my sister-in-law owned a 21,000-square foot piece right across from us. When
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we buy this thing, and now we got two houses, we basically kept them split up, two bedroom,
two bath. We put one of them on the 30,000-square foot, 15,000 RS, it was fine. We got an
`ohana permit, put the other one down on my sister-in-law's 21,000-square foot, and then that's
what increased the density. It wasn't the CPR. We have two water meters on that one lot, one
for both CPRd houses, I mean not, the `ohana and the original house, a 50-foot driveway into this
whole complex. So the infrastructure is almost overkill.
We got caught right up to that, about two years ago, we put in for a CPR. We were in the CPR
process. We got half-way through it, and they shut them down. And I think that we, I think that
we were in that group that this change, they're going to look at and maybe conceivably search
out each individual case; and conceivably we might be back in the running to get the CPR on
that. And that's a little self-serving, but it's basically why I came today.
GIFFIN: Commissioners, any questions of Mr. Tinker? You know, Mr. Tinker, did
you say in the beginning what those two different lots were zoned as?
TINKER: The whole property is RS-15, so we have a couple of houses on 30,000-
square foot lots. The one we put the CPR, the `ohana on, the one we put the `ohana on is a
21,000-square foot piece. My sister-in-law and my wife and I are co-owners now on that one
piece.
GIFFIN: Oh.
TINKER: We have two houses on it now.
GIFFIN: Yeah. Okay. Mr. Erway, are you going to be referring to your written
testimony?
ERWAY: Yes, I ani. Excuse me, yes, I am.
GIFFIN: Okay.
ERWAY: I believe you all have a copy. Aloha, Commissioner Members. After
Mr. Van Pernis' testimony, I feel that I almost don't need to talk, and I thank him for the
testimony.
I'm president of Plan to Protect. And Plan to Protect promotes responsible land use planning
that seeks a balance between environmental protection, quality of life, and economic
opportunity. Our goal is sustainable and culturally sensitive use of the Island's resources.
PTP strongly supports the proposed ordinance. There is one argument that has been put forth in
the newspaper and elsewhere, that folks in Ag Districts should not be restricted from using CPRs
to separate land interests because current laws are now doubling the density now. However, as
other people have pointed out, there is a big difference between building a second house for farm
use and using the CPRs to split the farm in two properties. The present usage of CPRs
undermines the very designation of Ag lands since it promotes the building of more houses for
24
profit as opposed to crops; and this threatens the Ag lands with encroachment and inflated land
values.
The new law is needed to ensure that the proposed, that the purpose of Ag lands is not
compromised and that the County Planning is not subverted by this CPR loophole as it has been
in the past. Thank you.
GIFFIN: Thank you. Commissioners, any questions of Mr. Erway? Thank you
very much. Mr. Ford.
FORD: Thank you. I'm Larry Ford. I live at 81-6195 Napo`opo`o Road in
Captain Cook.
Since all the many points have been made, I'm going to really shorten this up mercifully for you
because I don't want to go over what everyone else has
GIFFIN: Thank you.
FORD; Gone over. I, of course, support sustainable use of this Island. I support
planning for this Island. And, therefore, I support this legislation.
The one thing that strikes me very much, is having attended many meetings over the years, I
realize that it takes 30 years to build a road in this community. It takes many, many years to
make infrastructure improvements in the water system. It takes many, many more years to
provide schools. And I'm not going to go into the police, the fire, and all of the other
infrastructure. Those three major things take such a long time that if we allow CPRs, then the
Planning Department has absolutely no tools to plan for the future. By the time they plan, by the
time they provide a road 30 years down in the future, they'll be blindsided by uncontrolled CPR
growth if they're not careful. Therefore, the Planning Department, all of their good intentions
will be totally nullified if we allow CPR to continue.
Also, farms will be at risk because if we're going to be a sustainable farming community, or
have a sustainable farming community, the lots have to be big enough, the farms have to be big
enough to be profitable. And we're getting to the point where many of them are not, mercifully
short.
GIFFIN: Thank you. Commissioners, any questions of Mr. Ford? Thank you.
There were some people who signed up who I was told have left, but I want to make sure.
Richard L. Smith, all right, Charles Fleming, is there anyone else here who came to testify on
this agenda item who did not sign up and would still like to testify? Okay. Commissioners, that
completes our public testimony portion of today's hearing on this agenda item. Do you have any
questions of any of the specific presenters that spoke today?
MEEKER:: Chairman?
GIFFIN: Yes.
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MEEKER: In view of some of the time allowed a couple of the speakers, would you
allow just a minute or two for elaboration?
GIFFIN: You know
MEEKER: Would that be permitted at all?
GIFFIN: Mr. Meeker.
MEEKER: Yes, ma'am?
GIFFIN: Will you please use the microphone. And if you'll wait just aminute
MEEKER: Absolutely.
GIFFIN: I'm going to review your written testimony.
MEEKER: I'm sorry, I misunderstood the last thing you said.
GIFFIN: Wait just a minute.
MEEKER: Just wait? I can do that.
GIFFIN: I'd like to review your
MEEKER: Oh, you'd like to review, okay.
GIFFIN: Written testimony.
MEEKER: Okay.
GIFFIN: While you were giving your testimony, I starred the, some of the things
that you were referring to and, in particular, on Page 2 of your written testimony, your last
paragraph where you said, "Remember, it's not a `loophole' if the code specifically permits the
very thing you are complaining about." Would you elaborate on that, please?
MEEKER: I'd be happy to.
GIFFIN: Thank you.
MEEKER: The example of Kamani Trees was brought up a little bit ago.
GIFFIN: Right.
MEEKER: And we all know about Kamani Trees.
26
GIFFIN: Well, I didn't, so
MEEKER: A hundred and ten houses.
GIFFIN: Yeah.
MEEKER: A hundred and ten houses got built in Kona. The `ohana zoning law
allowed those 110 houses to be built. The `ohana zoning law is what permitted that developer to
go down and pull 110 building permits. It was 55, it was a 55-lot subdivision, and on each of
those lots, the developer went down and got an `ohana permit. The County approved it, he
lawfully took out his two building permits for each lot; and then he built those 110 houses. Yes,
he ended up developing the project as a condominium project, but if the `ohana zoning law had
not allowed those 55 additional building permits to be just issued, we wouldn't be raving this
discussion.
We have that on this Island, that is the problem. And what I would really like to get everybody
to focus on is what the real problem is.
GIFFIN: Right.
MEEKER: If you want to regulate yard setbacks, you don't pass a law affecting
building heights, you pass a law regulating yard setbacks.
There was a discussion about the other counties. No, the problem is only on the Big Island, the
problem is only on the Big Island. Yeah, the problem is only on the Big Island because we're
the only island that you can build two houses on virtually any lot. The other counties took steps
to restrict when and under what circumstances second houses can be built; and in many
situations, you can't build a second house on Oahu, or Kauai, or Maui Counties. On this
Island, there has never been an effort to put those restrictions in place. It is our Zoning Code and
the holes within our Zoning Code that you can drive a truck through that allow this type of
development to take place.
If I, let's say I buy into an Ag-3 neighborhood, zoned Ag-3, three acres per house site. I build
my house. My neighbor on my left, I mentioned this in my testimony, puts up two houses, rents
them out. My neighbor on my right puts two houses.
GIFFIN: Yeah.
MEEKER: And CPRs them. I'm not a happy camper. I thought I bought into a three,
you know, three-acre zoned neighborhood, and I'm staring at four houses. Am I more upset at
these two CPR houses than I am these two? No. I'm upset with the fact that I've got double
density on both adjacent lots. That's what Kona has seen. That's what many portions of this
Island have seen for many, many years. And the proper steps have not been taken. Everybody
says, well, CPR, that's the problem. CPR is not the problem. CPR does not give you a building
permit. Our County Zoning Codes do. Our `ohana zoning law and now our additional farm
27
dwelling law, and that's what really needs to be focused on. And I know Chris is working on
that, on the additional farm dwelling requirements and what needs, you know, what criteria need
to be set down and this sort of thing. And there are a variety of different approaches, and I know
he's working on that and talking to other people about that; and I absolutely applaud those
efforts. But that's where the effort needs to be focused. Ownership of property is, I don't
completely discount the points that Chris has in terms of when you start to sell it it's somewhat
of a different thing. It is. But, to me, you've got to look at the big picture and what the real
problem is. And the real problem is double density zoning which, not the CPR law, but the
County Zoning Code allows. Anyway, I just wanted to elaborate on that.
PUBLIC: Yeah. The CPR allows you to sell it.
GIFFIN: Commissioners, do you have any questions of Mr. Meeker? Thank you. I
trust you're going to stay.
MEEKER: I much appreciate it.
GIFFIN: You're, I'm going to call on Chris right now to kind of give his take on the
comments that were given today.
MEEKER: Okay.
GIFFIN: And I know that we have some questions, as well.
MEEKER: Okay.
GIFFIN: Mr. Yuen.
YUEN: In the Ag area, this is very closely connected with the additional farm
dwelling. If you didn't have the possibility of the second dwelling, you would not have people
try to CPR the property. But the reality is that about 80 percent of the requests for additional
farm dwellings are connected with a CPR. The possibility of being able to sell off the portion of
the property and to get a building permit on it is what really is driving, is what's driving this
whole process and the whole situation.
We are, we have been and we are still reviewing ways of defining the standards for an additional
farm dwelling more exactly, but it is a very, very difficult thing to do. The idea behind the
additional farm dwelling is pretty clear. It says an additional farm dwelling is a dwelling that's
used in connection with a farm or where agricultural activity provides income to the occupants.
So it's really meant to be a second dwelling that is, exists on a farm because there may be a need
for further, for more labor on the farm. If I sit and read all the additional farm dwelling
applications that come before the County, and probably not more than I'm being very
generous to say that 20 percent of them are connected with anything that somebody would stand
there and call a farm or with any meaningful commercial agriculture. Eighty percent of, and 80
percent of the applications, the farming activity shown is supposed to be, is what they hope is
28
enough to get the house approved so that you can have a second residence on the piece of
property.
We are, what we're trying to do, really, is change the course of a big ship that has been going in
a certain direction for a long time. And the certain direction is that those, was that you can put as
many houses on the lot as you want and sell off the ownerships by doing the CPR, and this is
going to take some time to change the course of the ship. There's a couple of different ways to
do it. Unfortunately, what happens when you have this, the opportunity for the CPR, although
the person, the person buys, very often, the CPR with the shade house on it, it says in the fine
print that there is no guarantee that the County is going to give them an additional farm dwelling,
although it's their hope that they get it. But they, you know, they are ordinary people who
invested typically what they had in buying the piece of property that is really worthless to them
unless they get an additional farm dwelling. So the present system fuels an overhang of people
that are applying for additional farm dwellings. And even in my evaluation of where the County
should be going as far as standards on the additional farm dwelling, I have to, I am very
cognizant of the fact that there are all these people out there who have bought and put their life
savings
GIFFIN: Yeah.
YUEN: Into buying a piece of what they hope to be able to put a house on. And as
much as I might think that there's no ag activity and that it's not the purpose of the farm
dwelling law, there is this overhang of people that I think have to be gotten through the system.
Some of them may not make it. I mean they would not qualify under any stretch of the
imagination for a farm dwelling agreement. But these two things go together, and it is important
to recognize that the possibility of dividing up and selling off a piece of the property is what is
fueling this whole process.
GIFFIN: Commissioners, do you have any questions of the Director?
KUBOTA: The more I hear, the more confused I get.
GIFFIN: I have a question, Chris. What is your reaction to Mr. Van Pernis'
suggestion for a moratorium to work out the loopholes?
YUEN: Well, I don't want to do a mor I don't want to do a moratorium. And in
effect, we, what I am proposing as a ordinance on the CPRs is administratively what I am doing
as the Director Because it is my view that the CPRs that we are seeing are typically, do violate
the Subdivision Code. They are attempts to create lots. They are attempts A lot is defined in
the Subdivision Code as a unit of land intended as a unit for transfer for ownership or
development; and, clearly, the typical CPR in the Agricultural District does just that with a piece
of property. So on an administrative level, they are being held up.
What this ordinance would do is exempt some people that are in the pipeline and are being held
up, and part of the reason for pushing the ordinance is to get that group of people through.
29
As far as doing a moratorium on additional farm dwellings and `ohanas, I don't have any
authority to do that on my own; that would have to be passed by the County Council. I could
propose a bill like that. But I don't want to do that because you have people who are sitting out
there with, ready to build, hoping to build, and ready to make their `ohana or additional farm
dwelling applications. And I don't want to hold those people up while we consider
GIFFIN: Yeah.
YUEN: What kinds of standards need to be put in place.
GIFFIN: You know, I understand that, but, and I don't have any feeling one way or
another about the moratorium. But say you do propose an ordinance that does create or, you
know, has a moratorium effect, and you exempt those people. If I understood Mr. Tinker, I think
he would have been one of those already in transition.
YLTEN: If he has two legal houses on the lot as of June 19, 2001, he would be in
the exempt group.
GIFFIN: He didn't
YUEN: Yeah.
GIFFIN: State the date.
YUEN: Yeah. So I mean that's all I
GIFFIN: But why couldn't
YUEN: There are a number of people who are in that situation.
GIFFIN: Why couldn't you do something like that? If your concern really is for
those people who are already partway down the loop, why couldn't you just exempt them and
propose instead a moratorium?
YUEN: You mean a moratorium on I'm not sure that the County can do a
moratorium on the use of CPR. I think that the County can put conditions on what you'd need to
do in order to get a CPR. And in order to certify, in order for the owner to certify that they've
done everything that the County requires, we put certain conditions on, and that's what basically
we're doing. The, I have to say that I, if you're talking about a moratorium, you're talking about
a moratorium for additional farm dwellings and `ohanas? For the same reason that I just gave, I
don't want to just stop people from getting additional farm dwellings or `ohana permits. I can't
do that administratively, and I don't think, I don't want to ask the Council to do that while
we're It would take, you know, it could take longer to get that passed than to just deal with
this, with the issue of
GIFFIN: Yeah.
30
YUEN: How we're going to handle the CPR.
GIFFIN: Yeah. Commissioner Springer.
SPRINGER: Mr. Meeker refers, in his written comments, refers to the style of the
Zoning Code. Can you anticipate some sort of, on the last page of his correspondence, second to
the last paragraph, I'm wondering if we might anticipate some sort of address by you,
Mr. Director, of this issue through the Zoning Code.
YUEN: Ideally, the Zoning Code should have a better definition of what the
standards are for an additional farm dwelling. But if you continue to allow those dwellings to be
sold off with a piece of property attached to them in a way that reduces the zoning, there's just so
much incentive that people will do, will apply for the additional farm dwelling simply for that
purpose. The fact of the matter Just to give an example of, you know, Kaloko Mauka, you
have an area zoned for three-acre lots. And what has happened is people apply for an additional
farm dwelling and then they sell that off with an acre attached to it. And because you can sell an
acre of land in that area for quite a bit of money, there is a tremendous incentive to do that. And
so this is where I talk about the incentive as subverting any standard that you might want to put
in for what you need to do to get the additional farm dwelling as something to, which was the
intended purpose of, as a way to have somebody work on a farm versus as a way to get a piece of
land that you can sell off to somebody else.
GIFFIN: Commissioner Springer?
SPRINGER: Also, from the Hawaii Island Board of Realtor's testimony, on the last
page, can you address that first, the example given in the first full paragraph on the top of the last
page, the paragraph begins, "An example that illustrates one area of our concern?"
YUEN: This is a situation I spoke of a little while ago that the Zoning Code does
not make you put any infrastructure in when you just rent the houses out. This is something that
I think Chris Brilhante says we need to do something about. I agree we need to do something
about this situation. On the other hand, I don't accept that as an argument for saying that
because you let people do this and rent it out, that then you should be, allow people to do this and
sell them individually. By the same token, we shouldn't have a Subdivision Code at all because
that's all that we allow. That, the Subdivision Code is what puts the standards in when people
sell off the individual units. I think that, again, you know, it's a question of incentives. The
rental situation, had there been a large number of rental houses built with 6-foot wide dirt roads
and real shanty type situation, maybe the County would have done something about it earlier.
The CPR, then the next thing that, see, what has happened as a result of this is that all the
standards of like how good a road you have to put in, whether you have to do a drainage study
and so forth Because, it'll only kick in when you do a subdivision. Then people see, so-call,
I'm sorry, people then decided, well, then we can build the houses and then do it as a CPR
project, we'll never ask for a subdivision, and we can still sell off the houses individually. We
can draw lines on a map and say this is not a lot, this is not subdivision, but this is yours for your
31
exclusive use; and it's just exactly the same to the individual as if there were a lot. But then they
don't have to worry about, well, I don't have to build a road that's to County Code, I don't have
to do a flood study, etc. So that was the next step. And that's what I think we should plug up
with putting it into the Subdivision Code.
The next step after what I just described as somebody building the houses and selling them off
with a condominium on them was the 28-lot subdivision in Waiakea Uka where they just draw
the lines on the map and sell off the individual units with the greenhouse on them as And,
again, because there's no subdivision, there's, it's one we call the "CPR," none of the County
Codes comes into place for that kind of development. And, in fact, that person could sell off,
unless we, and which we did do, you know, administratively we put our foot down and said, no,
that we're not going to accept this as a loop hole in the Subdivision Code and we're going to call
this a subdivision. Otherwise, a person can put the shade houses on those 28 lots, build whatever
road that they can get away with and still make people interested enough to go ahead and buy it;
and it's strictly a buyer beware situation. And you have, what is in effect, the subdivision
without there being any County infrastructure.
GIFFIN: Commissioner Springer?
SPRINGER: I appreciate the Director's reiteration of his earlier comments. But in the
example that's cited in the letter, would an amendment to the Zoning Code address the
inconsistency that they draw our attention to? And that's why I was wondering if we can expect
just sort of a phased strategy. Where now we're looking at the Subdivision Code, can we expect
a similar scrutiny and address of the Zoning Code?
YUEN: Well, without affecting the, without saying the words CPR in the
residential areas the same result could have been achieved by saying that if you do a residential,
if you do residential development you need to follow the Subdivision Code, whether you sell the
houses or not. That could have been approached by that angle. But the end result would have
been the same as this particular ordinance that you would have to follow the Subdivision Code in
order to build residences, multiple residences on a lot. I'm not sure I answered the question.
What is the
SPRINGER: I either.
YUEN: Yeah.
SPRINGER: Can we, as you continue, I think that your effort is to take a
comprehensive approach to the myriad inconsistencies that we're living with. Can we expect to
look at the Zoning Code with a similar scrutiny that we're now looking at the Subdivision Code,
whether it's through amendment, through addition, or deletion?
YUEN: There are really only, there are two basic issues that come up and that are
in the Zoning Code. One is when do you get a farm dwelling, and the other is what is a standard
for putting multiple residences on a lot when there isn't a subdivision. The, both are things that
are, that I am considering. And I believe that the proper, that especially with respect to the
32
additional farm dwelling that whether you can sell off the additional farm dwelling is a major
consideration on how strict to be in setting the standard for the additional farm dwelling. If you
can sell it off to somebody else then you need to be much stricter and you also need to make sure
that there aren't then two farms on the property instead of one farm on the property. Because if
you, once you sold off the other house, you can no longer make sure that that person works for
you. In other words, if you are going to allow the additional farm dwelling to be sold off without
doing the subdivision, both sides, both the first dwelling and the second dwelling have got to
have farms attached to them. Because there is no way of assuring any longer that the second
farm, that the second farm dwelling works on the first person's farm, because there's no slavery
any more in the United States. Once, if you're renting, if you were the owner, if it was one piece
of property, you owned your house, you owned a farm, you apply for a farm dwelling for your,
an additional farm dwelling so a farm worker can live on your farm, you have a need for that. If
that person for whatever reason doesn't work out for you as the farm worker, you can have that
person leave your property at the end of whatever rental period of time that you contracted with
and get somebody else to work on it. If you CPR out that second dwelling, then that person is a
free person owning that second dwelling and there is no way to assure that that person is going to
work on your farm any longer, or any other farm. So then you would have to make sure that that
second farm dwelling isn't, there's also a farm attached to the second farm dwelling as well as to
the first dwelling.
SPRINGER: Madam Chair?
GIFFIN: I'm sorry, are you I had some questions about his example, too.
SPRINGER: Okay, shall we take turns?
GIFFIN: Yeah. You can go first.
SPRINGER: Well, then maybe, looking again at that paragraph from the Realtor's
correspondence, the last sentence is either a property is entitled to something or it isn't. Can you
address that, if you look at the last sentence?
YUEN: Well, in Ag, there's no entitlement to a second dwelling.
SPRINGER: But their example is a RS.
YUEN: There is a process for applying to get a second, or third, or fourth dwelling
on the lot?
SPRINGER: The example is RS-10.
YUEN: In the RS-10, yes. The County, as I mentioned before, will, you can build
the rental houses without any infrastructure; and that's a problem with the present Code that
should be addressed.
33
GIFFIN: Taking your example a little one step further, though, what if I am an
owner of a piece of property that is Ag zoned, and I am running a farm, and I do build a, you
know, an Ag dwelling. And, but in this instance the person who occupies that dwelling happens
to be my son who is working the farm. Okay, and then he would like to buy that dwelling and
still be employed on the farm. And you said that that could not happen, that there would have to
be two farms when, in fact, he might be my heir, he would receive this farm when I die. And he
is young and would like to have some sort of equity in the dwelling that he is living in. Perhaps
he has a family. What about that scenario?
YUEN: Well, in that scenario, if your son is renting from you, you can condition
his staying there on him working the farm. Once you've actually sold him the dwelling, then
you can't any more. He owns his own piece of property and you can't make him work for you.
GIFFIN: No, no. But what if he desires to, and he's going to be inheriting that farm
and knows that and, therefore, will be working the farm? Why do I have to have another farm?
VAN PERNIS: You can have a joint tenancy, with a co-tenancy agreement
YUEN: Well, if, there's nothing, you can jointly own a piece of property and the
person can voluntarily work for you. But once, and family situations are difficult. And one of
the difficult things is that, although, you know, on an emotional level we can see the benefit of
being able to split up property among family members.
GIFFIN: Yeah.
YUEN: The difficulty is that the law does not permit you, once you allow an
interest in property to be sold outright, the law does not permit you to say that that's okay to do
with a family member but it's not okay if it's not a family member. In other words, you know,
once you sell to your son, your son can sell to someone else. And your son does not, you cannot
keep your, you can't make your son be tied to the property, that that property interest remains in
your family once it's allowed to be sold.
GIFFIN: But under the ordinance that you're proposing that option for me would
not be available?
YUEN: It wouldn't be available unless the property could be subdividable. In
other words, if you had afive-acre property zoned AG-5 and there were two houses on it, yes.
You, your only option would be, to sell off a discreet interest would constitute a subdivision; and
if you think about it, that's what it is. And you would either not be able to do it or you'd have to
get a rezoning, as we have approved, for example, in the Anekona/Kanehoa situation to a 2-acre
lot size or something that would permit it to be subdivided.
GIFFIN: Commissioners, any other questions of either the Director or any of the
public testifiers who have spoken this afternoon?
And, Alice, as I recall, we are not going to act on this ordinance today, corect?
34
KAWAHA: Correct. It's continued to the March 22nd meeting in Hilo. Mr. Conventz.
CONVENTZ: Madam, I just want to ask whether my written testimony
NOMURA: Excuse me, please use the mike.
GIFFIN: Oh, I'm sorry. Could you come forward and
CONVENTZ: Yes.
GIFFIN: Please speak into the mike.
CONVENTZ: I just wondered whether my written testimony sent before this meeting is
part of my total testimony here.
GIFFIN: Oh, yes, yes.
CONVENTZ: Okay, thank you very much.
GIFFIN: And Alice took note of that, too.
CONVENTZ: Thank you very much.
GIFFIN: You're welcome. Did any of the former testifiers, Mr. Roudebush?
ROUDEBUSH: Just 30 seconds?
GIFFIN: Come. I'm going to get some more water. Thank you, Alice.
ROUDEBUSH: I think listening to the testimony one of the things that I was trying to get
to slipped by. Are, all of these discussions here are dealing with the CPRs from the supply site?
GIFFIN: Yeah.
ROUDEBUSH: Okay. You have not attacked the problem from the demand site of
providing alternatives for why these things are purchased. And that goes to the smart growth, the
high density, not the zoning, which I would strongly urge the Planning Commission to look at
the overall General Plan and go into some of the things that we've discussed here before. Thank
you.
GIFFIN: Thank you. Christine.
DESILVA: Thank you. Sorry, I just wanted to have the benefit of a little more
cohesive testimony. But in listening back there I keep hearing the same thing, I think, from
35
almost everybody on either side of this issue. Everybody is struggling to find the planning tool
to deal with this.
GIFFIN: Yeah, yeah.
DESILVA: And that's where we're really trying to come in and saying we don't wish
to be viewed myoptic, we don't wish to be viewed as pro-development, let's make money, let's
sell CPR lots. It's not what we're here to preserve. Basically, we feel that the CPRs have
become the escape goat for a host of other deficiences. And that's what we're here to outline.
Then, in turn, we're here to show our support for maybe the less desirable option of, you know,
dealing with this on other different County Code levels. It means that I'm in it for the long-haul
sitting before you testifying on future matters, we're all in it together. But that's our big concern.
The issue of incentive keeps coming up and I keep hearing that. And, as a realtor, I just would
like to add the benefit of verbal testimony that in terms of incentive with regards to CPR lot sales
these days, I don't know, and perhaps you could ask the Director But, I feel that the CPR
applications are somewhat under control at this point. And certainly from the standpoint of
realtors out in our industry trying to sell, we definitely know the disclosures or the vast majority
of our agents do; and we feel that it is very important to make those disclosures to the public. So
the incentive is being diminished as we speak and as we've been dealing with this issue. It has
been in the press, it has been everywhere.
You know, I think that basically, you know, our agenda is, we try to really simplify it. We
would like to be in support of ordinances that would, you know, prevent circumvention of
infrastructure. We would like to do all of that. This CPR ordinance we feel very strongly as a
matter of law is in violation of State law. The Board of Realtors feel it's very important to
protect private property rights and the right of ownership to a piece of property for the example
that, you know, Ms. Giffin gave, you know, that I could not CPR my farm and own it, you
know,
GIFFIN: Yeah.
DESILVA: My son, that's the type of thing that we are here to preserve today. So I
just kind of wanted to add that benefit.
The other point that I wanted to mention regarding incentive for the sale of CPRs is the end of
the letter for, that the Real Estate Commission gave on January 31, 2002. I don't knov~~ if I have
a copy here, easy to read. But it clearly states that they allow the Planning Director to give input
as a matter of disclosure, that they will require a developer of a CPR regime to put on that public
report. We are very pro-disclosure as realtors. We support that; and we think that that will also
have a lot to do with the incentive to do a CPR on speculation basis. I believe it's on the very
last page of the Real Estate Commission's letter.
And, basically, it states that the Real Estate Commission, so really we have a definite conflict
between State and County level here that is just going to be exacerbated. And we're going to be
36
.
in, you know, we'll begin, the next fight we're going to be fighting is with the Attorney General,
if the Real Estate Commission, on this same issue. So we really want to find the way to prevent
the specific abuses that we're all here to discuss today. I think everybody is sort of on the same
page with that. It's a matter of how we go about doing that.
We're not, you know, looking for the easy solution. We understand that it's going to be
challenging but we feel that it's in other County Codes. Thank you.
GIFFIN: Just remain right there for a minute. Commissioners, do you have any
questions of Christine deSilva? I do. So then we have this problem, we have an ordinance that's
being proposed by the Director, and we seem to be not at odds but differing in terms of the how,
I guess.
DESILVA: Right, exactly.
GIFFIN: So, specifically, your organization, the Hawaii Island Board of Realtors,
are you asking to then propose amendments to the Director's proposed ordinance?
DESILVA: No, thank you. That's another thing we wanted to clarify.
GIFFIN: Yeah
DESILVA: And it does in the very end of our written testimony. We feel that the
CPR ordinance that has been proposed is, with all due respect, misguided in its attempt to
address density, and zoning, and infrastructure levels. So we do not support amending the
current ordinance at all. We would actually ask that it be forwarded in with a negative review in
its entirety.
GIFFIN: As a denial?
DESILVA: As a denial.
GIFFIN: Okay.
DESILVA: We feel that we're going to confront other issues on a State level with the
Real Estate Commission. If we pursue this route with the Real Estate Commission continuing to
granting, to continuing to grant approvals and the Planning Department to, you know, this is a
back and forth thing. So we feel that it should not be adopted and that we should, in turn, seek to
do such things as amend Rule 13. You know, perhaps put additional requirements. I mean, we
are concerned about the Department of Water's, you know, water commitment question; and we
agree with that. I mean, we deal with that, too, day in and day out in our business and the other
requirements. And so, we're starting back at sort of ground zero with those issues.
GIFFIN: I see Mr. Van Pernis coming forward. You want to add to your testimony,
too?
37
VAN PERNIS: Yes, if I may
GIFFIN: Sure.
VAN PERNIS: First of all, Madam Chairman, to response to your question and Mr. Yuen,
there is a way you and your son could share the property and have a co-tenancy agreement and
joint tenancy
GIFFIN: And I heard you well.
VAN PERNIS: Outside the CPR. Secondly, I have to suggest to the Commission that they
inquire of the Hawaii Island Board of Realtors who these speakers represent, because I know
they have not polled their membership. And it's my understanding that it's basically a small
group from Hilo that conferred and decided what position they were going to take on the, on
these proceedings. And it's my understanding, and I represent a very large number of significant
brokers on the West side; and there's many brokers who are members of the Hawaii Island Board
of Realtors as well as the Kona Board of Realtors. And I think that if you polled all the
individual realtors that there would be a very significant number, if not a majority, who would be
opposed to continuing the CPR process.
Finally, let me state that I believe it has to be an all or nothing situation here in terms of the CPR.
It's not, you know, can't do some CPRs and some not. And I agree with Mr. Yuen that, you
know, just because the County is not too smart on apartments they should be not too smart on
CPRs. We don't have a problem of abuse of multiple housing, rental housing. At least in Kona
we don't have that problem where there are a lot of people building a lot of multiple housing and
renting it out. We don't have that problem. What we have a problem is that, when they sell; and
when they sell they use the CPR. They say, well, look they've got all these other problems in the
County Code so why try to attack CPR? It's because when they can sell the property, that's
when people come in to get the farm dwellings, come in to get the ohana zoning. It's when they
can sell. If they can't sell, people are not going to be doing it, other than folks like you who want
to do it for family. Remember when the law passed in '83, it was for the purpose of benefiting
the family.
GIFFIN: Right, right.
VAN PERNIS: Okay, not for the purpose of allowing speculators to double the density.
Thank you.
GIFFIN: While you're up there, I just wanted to ask this question, too. There seems
to be two different boards of realtors on this island.
VAN PERNIS: There's, there's
GIFFIN: And this Hawaii Island Board of Realtors is predominantly in East
Hawaii?
38
VAN PERNIS: Yes, Ma'am. The Hawaii Island Board of Realtors is basically what we
used to call the Hilo Board of Realtors. Then there was, a few years ago there was dispute over
the MLS System, which has got nothing to do with you.
GIFFIN: No.
VAN PERNIS: And some members of the Kona Board ofRealtors
GIFFIN: That's the other one?
VAN PERNIS: That's the other one, West Hawaii organization, decided to go with the
Hilo Board ofRealtors because of the MLS, this is the computerized listing services that were
available.
GIFFIN: Yes?
VAN PERNIS: The bigger and better brokerages in West Hawaii, many of which I
represent, became members of both.
GIFFIN: Oh.
VAN PERNIS: Because they found it was valuable to be members of both, both best
exposed Kona properties.
GIFFIN: Oh, so there's two.
VAN PERNIS: So when you're listening to this Board ofRealtors
GIFFIN: Yeah.
VAN PERNIS: It's basically Hilo, for instance, both of these folks are from Hilo. I doubt
whether there has been anybody from Kona that you've seen testify in Hilo here today. I think it
curious that you'd have the Hawaii Island Board ofRealtors appearing before you here in Kona
with no one from Kona testifying.
DAMS: Hey, hey, excuse me.
VAN PERNIS: Okay? And I would point out that my wife is a member of both board of
realtors, she's with Coldwell Banker Aloha Properties, one of the major brokerages on this side;
and she was not asked her opinion on it
GIFFIN: Yeah, you said that already.
VAN PERNIS: By either board. And I'm an affiliate member, I was not asked by either
Board. And I assume that these folks, as is often the case, speak for a small group of folks
interested in the issue on, based in Hilo. And
39
GIFFIN: Mr. Van Pernis.
VAN PERNI5: I'm not criticizing what they say
GIFFIN: No, no, no. You're actually just responding to my question; and I
appreciate that. Thank you very much. Mr. Conventz, one more closing, summarizing
statement; and then we're going to move on.
CONVENTZ: Madam Chair, I would like to answer your question you had where
Mr. Van Pernis suggested co-tenancy.
GIFFIN: Yes, yes.
CONVENTZ: I think that is not always possible. I have a client at the Red Cinder Road
with 20 acres in all Ag land and he bought the entire land
GIFFIN: Yes.
CONVENTZ: And built his house and spent his lifesavings, and they are on fixed funds
now for the retirement. They want to give to their kids the chance for an additional farm
dwelling; and that is a family of seven persons. But they cannot afford to risk their retirement by
getting summary mortgage on that entire property. So in order to protect the old folks the CPR
would be the only way to keep, they have a clear and free property, and can then happily live
ever after in their retirement. But they do not want till they die, if something happens to his son
and his family
GIFFIN: Yes.
CONVENTZ: And they have co-signed for a new mortgage, I think that is what
Mr. Van Pernis whom I know very well and his friends, but I think that is ridiculous.
GIFFIN: Thank you. Okay, Christine, this is it.
DESILVA: I'm sorry, I'll make it
GIFFIN: Cutting you off right after this.
DESILVA: Very quick, okay. Just, as it relates to our testimony, I would just like to
go on record as stating several weeks back when the ordinances were introduced we did hold an
open forum. We e-mailed 500 HIRB Members which are on both sides of the
GIFFIN: I recall that, I recall that.
DESILVA: Both sides of the island.
40
GIFFIN: That was brought up, yeah.
DESILVA: We invited them to participate
GIFFIN: Yes.
DESILVA: E-mail us their concerns. We've put copies of the ordinances on line for
our 500 members to review, etc. I'm sorry.
GIFFIN: Okay, thank you. I do recall
DESILVA: Thank you, sorry.
GIFFIN: That that was brought up in public testimony here, I think; and I think that
the hearing was on this same
DESILVA: That's right, that's right.
GIFFIN: Day as that hearing.
DESILVA; We're just the vocal ones that are showing up, sorry.
GIFFIN: Anyway, thank you very much.
Mr. Meeker, did you, I saw you kind of, did you? That's it, right?
MEEKER: No, I'm fine, I'm fine. Thank you.
GIFFIN: You're welcome. Ma'am, you wanted to give public testimony?
DAMS : Yes.
GIFFIN: Hang on just a minute. Yes, you do need to speak into the mike.
DAMS : Thank you very much.
GIFFIN: And please raised your right hand.
DAMS: Yes.
GIFFIN: Do you swear or affirm to tell the truth on this matter now before the
Hawaii County Planning Commission?
DAMS: Yes, I do.
GIFFIN: Thank you. Please state your name and your resident address.
41
DAMS: My name is Charlene A. Davis. My address is 78-7110 Kaluna Street.
GIFFIN: Thank you.
DAMS: That's Kona.
GIFFIN: You may begin your testimony; and we are limiting it, although you
wouldn't know it, few minutes.
DAMS: Actually, this is just atwo-minute, this is atwo-minute drill. Actually, I
just wanted, I was very happy to see that this Planning, you know, meeting was here today and I
was able to come, although I was drenched in a major storm out there. But for clarification, the
HIBR membership and so on, I am with Clark Realty. We have five offices on this island that
represent hundreds of hundreds of owners.
GIFFIN: HIB?
DAMS: HIBR, Hawaii Island Board of Realtors. So we are not just a Hilo side,
clarification there for Mr. Van Pernis, thank you. We are very visible, very big in the
community. So this is not only an East Hawaii issue, it's all over the island. But, anyway, just
to clarify that. And I concur with Ms. DeSilva that we, what is on the table right now needs to be
completely deferred, denied and needs to be re-evaluated entirely. Thank you.
GIFFIN: Deferred or denied?
DAMS: Denied, thank you.
GIFFIN: Thank you very much. This closes our portion of the public testimony for
today's hearing. As our staff has informed you, there will be another hearing in Hilo on the, I
can't remember the date.
KAWAHA: March 22na
GIFFIN: March 22na. So, Alice, please correct me if I'm wrong. There is no action
being taken on this agenda item today, correct?
KAWAHA: That's correct. Right.
GIFFIN: Okay.
42
.
The discussion ended at 3:38 p.m.
Respectfully submitted,
Sharon M. Nomura, Secretary
43
PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
March 22, 2002
A regularly advertised continued public hearing on PLANNING DIRECTOR INITIATED
PROPOSED ORDINANCE TO AMEND CHAPTER 23 (SUBDIVISION CODE) OF THE
HAWAII COUNTY CODE, AS AMENDED, RELATING TO CONDOMINIUii~1 PROPERTY
REGIME (CPR) was called to order at 4:05 p.m. in the County Building, Councilroom-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 INITIATED proposed ordinance to amend Chapter 23
(Subdivision Code) of the Hawaii County Code, as amended, relating to Condominium Property
Regime (CPR). The purpose of the proposed ordinance is to ensure that when land is divided
using a condominium property regime, the individual units created are adequately served by
roads and other infrastructure, and that drainage and flooding issues are properly addressed. It
also clarifies the applicability of zoning regulations to condominium developments.
GIFFIN: Agenda Item No. 8 is a continued hearing on the proposed ordinance to
amend Chapter 23 (the Subdivision Code) of the Hawaii County Code, as amended, relating to
Condominium Property Regime (CPR). The purpose of the proposed ordinance is to ensure that
when land is divided using a condominium property regime, the individual units created are
adequately served by roads and other infrastructure, and that drainage and flooding issues are
properly addressed. It also clarifies the applicability of zoning regulations to condominium
developments. Alice?
1
KAWAHA: Thank you, Madam Chair. This particular agenda item was continued
from, is continued from the February 25th meeting that we held in Kona. The first public hearing
that was held by the Commission was February 15th, so we are still within the 60-day timeframe
for Commissioners to review this proposed ordinance.
GIFFIN: And I might add that since no one recused themselves on this agenda item,
we are at quorum.
KAWAHA: Right.
GIFFIN: Is there anything else you wanted to
KAWAHA: Yes.
GIFFIN: Say, Alice?
KAWAHA: Yes. For the Commissioners, there were two things distributed to you.
One is a letter dated March 1 1, 2002, from the Planning Director to Cynthia Yee with the Real
Estate Commission.
GIFFIN: Yeah.
KAWAHA: And attached to that was a clean copy of the Draft 2.
GIFFIN: Okay. Hang on. March 11th, right?
KAWAHA: Yes.
GIFFIN: And then what was the other one?
KAWAHA: And, subsequently, the Department distributed a Ramseyer format.
GIFFIN: I don't have that. Of the ordinance?
KAWAHA: Yes.
GIFFIN: Hang on. You know, I think I need a copy of that, Alice, I'm sorry. Thank
you. Okay. Alice, were you going to refer to this letter?
KAWAHA: Which
GIFFIN: March 1 lth letter? No, you were just on the record saying we received it?
KAWAHA: Just on the record, yeah.
2
GIFFIN: Okay.
KAWAHA: And also for the record, I just wanted to state that all correspondences that
came in after the February 25th, that that, that be also submitted as record. There's a lot of letters
from the realtors that came in.
GIFFIN: Commissioners, since we have eight people who have signed, oh, I see
some names of people who are not here. Is Jean Yokoyama here?
YOKOYAMA: I'm here.
GIFFIN: Okay, will you please come forward. So what I'm going to do,
Commissioners, is to hear the public testimony first, and then we can discuss at our leisure the
ordinance. Joanne Scribner.
SCRIBNER: Yes.
GIFFIN: Okay. And Rick Barbati.
BARBATI: Here.
GIFFIN: You signed up to testify on this agenda item? Okay. And Allan Kroll.
PUBLIC: Allan is not here.
GIFFIN: Okay, and Joel LaPinta, again, on this agenda item, come forward. One,
two, three, four. Just the two women, I need to swear you in. Do you swear or affirm to tell the
truth on this matter now before the Hawai' i County Planning Commission?
TESTIFIERS: Yes.
GIFFIN: Thank you. Starting with you, ma'am, you can begin your, your name and
your resident address.
YOKOYAMA: My name is Jean Yokoyama-MacDonald, and I'm from, my address is P.O.
Box 452, Captain Cook.
I am here on behalf of myself and my family on the particular ordinance that has come before the
Planning Commission about the CPR. I am, our family is one of the ones that were caught in the
middle of this when we had applied in 2000, and I have some papers for you in front of you
about what has happened and transpired during this time.
And about a year and a half ago, I think Mr. Yuen put a stop to granting any kind of subdivision
approval because the, I guess the law was misinterpreted or not, misused. This is my
understanding. But the problem is that I had already gone through all the motions and the costs
of doing what I thought was legal, according to the laws of our, you know, our County. So I
3
have three legal permits on this particular property in Captain Cook with the County. I have
three structures already on there. I have already had an architect and an attorney draw up the
papers which has been recorded in the Bureau of Conveyances, but I am stopped right there. It
has been a year and a half. And I understand that you have to have three readings before the
Planning Commission and then it goes to the City Council, and then they have to overlook this
particular issue.
Now what I did was I conformed to the laws that were presently intact, so I feel that I did
everything within the regulations for the CPR. I am asking today if the Planning Commission
can consider to pass this on my particular property to three lots. And I have already conferred
with the Real Estate Commission, and Mrs. Yee has just said that all the Commissioner has to do
is to do a statement signing, an appropriate County official, that the project is in compliance with
all zoning and building ordinances and codes applicable to the project.
I feel like I'm being penalized for something that has happened in the past. I, you know,
conformed to whatever had to be done, and I If this law has to be changed, I can understand it,
because I do feel that maybe some perhaps have misused this CPR law, but I'm not in one of
those categories. I'm in a position where I had done this and then it was put to a stop. I, this has
been since November 2000. I have my two sons who plan to purchase the property, and they
can't get a mortgage because the Real Estate Commission does not have approval from the
public, your Planning Commission. So that's where I stand right now.
I've gone to see Mayor Kim. I have gone to see Mr. Yuen. I have retained an attorney and
brought him over with me. I've had, spent a lot of time and costs on this and, also, I would like
to see it done. You know, I don't want to make money on it, I want to have it in my family. So
I'm requesting, as soon as possible, if the Planning Commission can make some kind of decision
on this for my particular situation and, you know, you tell me what I have to do to get this thing
through.
GIFFIN: Mr. Yuen, I think you should respond first and then we'll go.
YUEN: First, it's not the, it's not the fault of the Planning Commission. I will not
sign the certification. The ordinance, as it stands, does contain an exemption which for, which
would cover your situation and a number of other people in the same situation, although it would
be limited to two, a creation of two CPR units. And if and when the ordinance is passed in that
form, then I will sign the exemption. Currently, the property does not conform because it's an
attempt to create a lot that's smaller than the minimum lot size in the zoning district.
YOKOYAMA: I was never told that. But what I'm questioning is that I don't think that I
should be made to wait on this ordinance because Mr. Yuen has already told me that this is not
for certain.
GIFFIN: For certain?
YOKOYAMA: That the ordinance is not, may not even pass into law. So here I am
waiting, and I'm waiting, and I'm calling, and I'm talking, and I've taken this to my City Council,
4
I've taken it to everybody that I can. I'm not pulling strings; I'm going through all the right
channels. I would just like this thing to be granted to me. And all it needs is his signature with
the Real Estate Commission. That's it. That's it.
GIFFIN: Chris, earlier she was saying that this body could go ahead and make a
recommendation, and some sort of authority to sign. Does that have to be you?
YUEN: Yes.
GIFFIN: Oh, well.
YOKOYAMA: And it's kind of sad that just one person is vested with this power, to me.
And, also, who is to say this ordinance is right, you know, because it still has to go through all
these readings. And so, you know, I'm saying, you know, I followed the law. The law is still
there, okay. And if you want to make a new law, that's fine with me; but don't include me in it
right now because I don't fall into that line, you know. And I understand that maybe there's a lot
of changes that have to be made in this, you know. But I feel that in my particular case, and
that's why I say I'm here to speak in my behalf and my family about this particular situation.
GIFFIN: Mrs. Yokoyama, I'd like to ask you a question.
YOKOYAMA: Yes.
GIFFIN: When you spoke to the Director, did he give you some criteria as to when,
I mean why he chose a certain date to cut off approvals?
YOKOYAMA: No. He just arbitrarily Now my date of recording that CPR was, it's like
maybe 21 days past that June
GIFFIN: Yeah.
YOKOYAMA: June date.
GIFFIN: Cut-off date.
YOKOYAMA: Okay. So that's one issue. A second issue is that I followed the line that if
this thing does pass
GIFFIN: Yeah?
YOKOYAMA: That I would have to wait another year, okay, for all the things to go, get
into line or whatever. You know, it has taken me a little while to understand the whole process
of this, but, you know, I understand what has to be done. But I don't feel like I have to wait, you
know. I mean I feel like why am, I mean I, this is not law, the ordinance is not law. What we
are following is the present interpretation of the ordinance, which passed many condominiums in
5
the past, okay. And, I mean, it's just because at this, between this certain time, mine was put to a
stop.
GIFFIN: Yeah.
YOKOYAMA: And so, you know, you can't just put a call in and say this is not lawful,
because it's not even law yet.
GIFFIN: Yeah. Mr. Yuen, do you want to respond to that regarding that arbitrary, I
mean that's her word, but the date, why you chose the date for no further action on CPR
requests?
YUEN: The date is one year after the passage of a State law requiring
condominiums to conform with the underlying County zoning. The attempt to create a
condominium unit smaller than the minimum lot size in the zoning district was actually illegal as
of the passage of that State law. So this is, the ordinance is necessary to legalize a group of
people who are in a process of doing their condominiums and providing a grace period of one
year after that law passed. Her, in regards to her particular situation
GIFFIN: Yeah.
YUEN: I don't, she says that the date of recordation was after that June 2001 date.
However, she qualifies under the other exemption of existing, either permit, dwellings that are
either built or have building permits as of that date; and on that, she would get through on that.
I'm not sure what she's referring to on the one-year wait
YOKOYAMA: But that's what I was, yeah
YLTEN: After the ordinance is passed. There, I, there isn't cone-year wait after the
ordinance has passed to finalize the condominium.
YOKOYAMA: Because, so you're considering the building permits as the date of the,
instead of the June
YLTEN: Well, you had building permits for your dwellings as of June 2001.
YOKOYAMA: Right, yes.
YUEN: Right.
YOKOYAMA: Yeah.
YUEN: So you're qualified under that exemption.
YOKOYAMA: Yeah. Yeah.
6
YUEN: And then if the ordinance is passed, what I didn't understand about your
testimony is that you said you'd have to wait a year after the passage of the ordinance.
YOKOYAMA: Well, that
YUEN: And that's not
YOKOYAMA: Okay, irrelevant. I think you've answered that.
YUEN: Yeah.
YOKOYAMA: But my still request is that I would like to have this thing considered or
done something about for three lots. That's what I asked for, this is what it's divided into
according to what we had done previously, and it's in the papers here. I have a statement from
Mrs. Yee that this is all we need, and they're not opposed to it. You know, nobody gave me any
warning. There was no warning, no letters written, no nothing, and it was just pulled, period,
okay. That's what it was, and I think that's unfair for me, you know.
YUEN: Let me
YOKOYAMA: And we should have been given some kind of warning. I mean, you know
where I read it in? I read it in the Sunday paper, last March, in our West Hawaii Today. So, you
know, I quickly called my attorney and, you know, and then this thing just started, you know,
escalating. So I'rn trying my best to see if we can do something about it. But I still feel that I
would like to request the three lots, and I would like to have this passed, you know, in what I've
done on this CPR project.
GIFFIN: Commissioners, any questions of Mrs. Yokoyama? Commissioner
Springer.
SPRINGER: It sounds from the Director's comments that perhaps more dialog needs to
occur because there may not be sufficient acreage to divide into three lots.
YUEN: No, the CPR ordinance would prohibit, as drafted, would prohibit
properties like this from being CPR'd into multiple lots in the future because there are not
sufficient, because of the minimum lot size. It, there's an, it is written though so that there will
be an exemption for these groups of people that were in transition, and that would include her,
her situation. So the lot size is what's holding it up now. The ordinance's passage would exempt
her to the extent that she could create two units on that property.
SPRINGER: Two units, but she's requesting three.
GIFFIN: Three, right.
YUEN: Right.
7
YOKOYAMA: And, yeah. Can I speak? Yeah.
GIFFIN: Yes.
YOKOYAMA: The ordinance is going to say that. It was not prerequisite of that division
at all before this, so, you know, I could have asked for four lots, you know. But I have three
houses, legal houses on there, with the County permits.
GIFFIN: Commissioners, any other questions of Mrs. Yokoyama? Mr. Togashi.
TOGASHI: I was wondering if your lawyer has perhaps suggested to you that Chris',
Director Yuen's decision could have been appealable to the Board of Appeals. Was that one of
his
YOKOYAMA: Yes. But, you know, I mean, this is the first step, you know, that I have
now. I have a letter here from my attorney, Sherman Yee, and he did come with me to this
meeting in Hilo. And he did write exactly what I am saying myself about, you know, asking for
three lots and that it was, it was grandfathered in, or whatever you want to call it. So I have that.
And I'm coming here as a citizen to appeal my case.
TOGASHI: But there is a different panel other than us, yeah.
YOKOYAMA: I have
TOGASHI: It's called the Board of Appeals and
YOKOYAMA: I don't know. I mean if you have the power to do this for me, thank you.
TOGASHI: No, there is a different body that hears, I guess, grievances, so-called
grievances.
YOKOYAMA: So what does that come about then? What do you do about that? I mean
does it just go into committee or, I mean does it get prolonged for appeal or you have to file
papers? I mean it just goes on, and on, and on.
GIFFIN: See, because a denial from Chris has not been done officially in writing,
the appeal process is not open to her yet.
TOGASHI: Oh, I see, it's just verbally communicated to her.
GIFFIN: Yeah. Yeah. Mrs. Kubota.
KUBOTA: No, I was going to ask if, did I understand you to say that you already had
three houses built on those three parcels?
YOKOYAMA: Yes.
8
KUBOTA: I'd like to ask a question of the Director, excuse me, as soon as I mop up
this mess that I just made. That's because the Chairwoman wasn't recognizing me earlier in the
morning, and I had to almost stand up and wave before she recognized me. Mr. Yuen, how do
these homes, I mean, these divisions like hers occur legitimately? I mean she has the permits,
how are they permitted to build and suddenly not permitted to go on and finalize?
YUEN: Well, they, I'm not sure of the exact timeframe of the building of the
houses. They're in the Agricultural District. And for, how you got an, you know, you come in,
you have a, she has I think a 5.5 acre lot in a
YOKOYAMA: Almost seven acres.
YUEN: Okay. I'm sorry.
YOKOYAMA: Six point.
YUEN: In an Agricultural 5-acre zone. They come in for their first building permit
for a house, and that's automatic, all right.
KUBOTA: Yeah, I know the ohana for a farm dwelling.
YUEN: Then they come in, and at a certain time, the County would call it an ohana
and they could get a permit for an ohana. And I'm not sure of the timeframe of hers. But
currently, let's do current law. You would come in for a, it would be called in the Ag District an
additional farm dwelling, and you could get an additional farm dwelling put on your lot for the
showing of some need for a person to work on a farm that you have, all right. And in their case,
they got a third house upon some kind of showing of that. I just have a vague memory of their
file. But there were statements about a farm on their property, and the need for labor and some
family member moving back, so they did get permits to have three houses on the property. What
they want to do is divide up now ownership of those three houses and convey them out
separately. In her particular case, she intends
KUBOTA: Excuse me, that's the CPR part?
YUEN: That's the CP
KUBOTA: Okay.
YUEN: There, one way of doing it is called a subdivision. And when, you know,
over Certainly the traditional way of look at dividing up a piece of property into two, or three,
or however many units, that somebody can call this is mine, and I can sell it on my own, and I
don't have to ask anybody's, else's permission to do it, and that's yours, that's a subdivision.
That's the essence of a subdivision, is dividing up a piece of property into different units that can
be bought and sold separately. Over the past dozen or so years in Hawaii County, it became a
practice to do the same thing but not call it a subdivision, call it a CPR, call it a condominium. A
9
condominium does not require any infrastructure. And before the passage of this law by the
State Legislature, it was allowed to divide up properties with CPR without respect to the
minimum lot size required by the zoning. And this ordinance would make it clear that
essentially to divide up property in the zoning districts where you can't do amulti-family, where
you're only doing detached dwellings, that basically you follow the subdivision process in order
to do that.
KUBOTA: Yeah. I understand that, but that didn't
YUEN: Yeah.
KUBOTA: Answer my question.
YUEN: Okay.
KUBOTA: My question was basically how can a citizen who went through the
permitting process, got the permits legally, and abided by the law, has built three units and
suddenly is told she can't go on
YUEN: No, she has, she got permits to build three houses. She has three houses.
KUBOTA: Okay.
YUEN: On an unsubdivided piece of property. She owns
KUBOTA: Okay, stop right there.
YUEN: She owns three houses.
KUBOTA: Okay. Stop right there.
YUEN: Yes.
KUBOTA: Then my next question is.
YUEN: Yes.
KUBOTA: Are these three units or homes that she built on her property?
YUEN: Yes.
KUBOTA: Her Ag land, are they legal?
YUEN: Yes.
GIFFIN: Buildings, the buildings.
10
.
KUBOTA: The buildings.
YLTEN: The buildings are legal, yes.
KUBOTA: The buildings are legal, right?
YUEN: Yes.
KUBOTA: If they are legal
YUEN: Yes.
KUBOTA: Why can't she, why can't she CPR them because the law says you can CPR
them, no?
YUEN: The law says you can CPR anything
KUBOTA: Yeah. Okay.
YUEN: If you want.
KUBOTA: These are legal, legal structures and legally divided structures. She just
doesn't want to go through subdivision.
YUEN: No.
KUBOTA: She wants to go through the CPR process.
YUEN: Yeah.
KUBOTA: And up until now, it's a State law that permits that. And for some reason,
the authorities that be must have thought that, must think it's a good thing because it's a State law
that you says you can do it, no?
YUEN: No. No.
KUBOTA: Oh, okay.
YUEN: The
KUIBOTA: Tell me why it's bad.
YUEN: The CPR process, the problem is this. The CPR process, as administered
by the State Real Estate Commission, they are, they regard themselves as strictly a registration
process. They are not a land use and azoning
11
KUB OTA: Okay.
YUEN: Process.
KUBOTA: Okay.
YUEN: They absolutely don't care about the land use issues, all right. You, and
you can go out and you can, if the County doesn't say anything about it, all right.
KUBOTA: Okay.
YUEN: And I'm just going by, if the County does not attempt to make any kind of
land use control, all right, the State Real Estate Commission will allow you, just to give an
example, to put, to take a 1,000-acre unsubdivided lot, put a six by eight greenhouse, put 1,000
of those
KUBOTA: Okay.
YUEN: On 1,000 one-acre pieces of property, draw a map showing those 1,000
pieces of property, each of those acres as being pertinent to that one-acre, that greenhouse, sell
those off to a 1,000 different people. And they also let you do the same thing in a residential
neighborhood in Hilo, on an unsubdivided lot, sell 10,000 square foot pieces of property. They
say they're not selling property. Put a greenhouse on each one, as long as you build something
on it, and sell to each person with no road, or a minimal road, or no water system, no nothing,
each of those pieces of property.
KUBOTA: But
YUEN: So as far as the
KUBOTA: Okay. Yeah.
YUEN: When you say it's okay with the State, yes, that part is okay with the State.
But the Counties have land use and zoning authority, and how, and the purpose of this ordinance
is to define how that fits in with doing a CPR.
KUBOTA: Okay. I can accept some of what you're saying, but some parts just don't
fit in with me. Because I feel, well, I guess, basically I feel that if we recognize something as
being legitimate and they have the permits and the allowance prior for building, and they want to
use a different kind of way to subdivide their lot, CPR or subdivision, it's their prerogative if the
State law allows it. I mean, who are we to say you can't do it this way, you must do it my way?
YUEN: If you
KUBOTA: I mean who are you?
12
YUEN: Follow that reasoning, there is no reason for anybody ever to do a
subdivision, and you might as well not have a County Subdivision Code.
KUBOTA: And the reverse is true, too. There's no reason why people want to do a
CPR if they have to meet all the subdivision requirements, so why not
YUEN: That is true.
KUBOTA: Wait. Wait.
YUEN: That is true.
KUBOTA: So why don't you just get rid of the CPR instead of writing another
ordinance to
YUEN: We
KUEOTA: Cover it? I mean I don't understand this.
YUEN: The County cannot actually ban
KUBOTA: Why?
YUEN: The CPR
KUBOTA: Oh, State law.
YUEN: Okay.
KUBOTA: Okay.
YUEN: The County can enact rules and regulations on how it's to be used. And
the basic question is how, what rules do we want to have when people divide up pieces of
property for sale. And it's extremely, it's critically important that we have rules on how people
divide up pieces of property for sale. That's the whole point of the minimum lot size in the
Zoning Code in the Agricultural District, and it's the whole point of having a Subdivision Code.
If we did not have a Subdivision Code
KUBOTA: Excuse me.
YUEN: Yeah.
KUBOTA: I didn't mean to monopolize this conversation.
13
YUEN: Okay. And I don't mean to either. But the question of, you know, to
return to my statement If you say that people can achieve the same result as having a
subdivision by, and the result that people want to have by having a subdivision is I can sell off
this portion of my piece of property to someone else
KUBOTA: Yeah.
YUEN: That is the result of having a subdivision. If you enable them to do that by
this other thing called a CPR where you don't have to put in any kind of roads, you don't have to
follow the minimum lot size in the zoning, then ultimately that is what people will do instead of
having subdivision. And you will not have a Subdivision Code, and we will be back to and
worse off than we were in the 'SOs and '60s when the thousands
GIFFIN: Excuse me.
YUEN: Of lots, substandard lots were created in Hawai' i County.
KUBOTA: Okay.
GIFFIN: Mr. Yuen and Mrs. Kubota, I'm really sorry but I do need to interrupt
because we have other people who have signed up to testify.
KUBOTA: Okay, this, okay, this
GIFFIN: And I would like
KUBOTA: Brings me to a point
GIFFIN: To continue this discussion.
KLTBOTA: Yes.
GIFFIN: After
KUBOTA: All right.
GIFFIN: We have heard all of the people who have signed up to testify.
KLTBOTA: I'm sorry. I'm sorry.
GIFFIN: No, no, I found it very interesting, too.
KUBOTA: I have some more things I want to ask.
GIFFIN: Me, too, and I'm sure Mrs. Yokoyama found it very interesting, as well,
but Mrs. Yokoyama, I'm going to have to move on to the second testifier.
14
YOKOYAMA: Fine.
GIFFIN: Joanne Scribner.
YOKOYAMA: Are we going to be able to discuss this after they testify?
GIFFIN: Yes, and they aren't
YOKOYAMA: Okay.
GIFFIN: They only ones, I have other people who've signed up.
YOKOYAMA: Oh, good.
GIFFIN: As well.
YOKOYAMA: All right.
GIFFIN: All right.
YOKOYAMA: So I just need to make that plea.
GIFFIN: I understand that.
YOKOYAMA: Okay.
GIFFIN: And you, I allowed you to go on.
YOKOYAMA: Thank you.
GIFFIN: Because I felt that that was germane to what I was going to request later
on, and then what Mr. Yuen and Mrs. Kubota were speaking of
YOKOYAMA: Right, very relevant.
GIFFIN: Were very pertinent
YOKOYAMA: Yes.
GIFFIN: Comments. But we need to move on.
YOKOYAMA: Okay. Good.
GIFFIN: And it's after 4:30. Joanne Scribner.
15
SCRIBNER: Yes.
GIFFIN: Please.
SCRIBNER: Hello, my name's Joanne Scribner. I live at 75-345 Melelina Place in
Kailua-Kona, and my testimony is on my own behalf.
I would like to first commend Mr. Yuen and all of the Commissioners for their diligent efforts
and energy in listening to the testimonies of all concerned with this proposed amended CPR
ordinance. I feel honored to be a part of this process. And I will read my testimony in support of
Mr. Yuen's proposed amended ordinance, and to state some questions that have come up for me
regarding some of the testimonials and suggestions that occurred at the February 25th meeting.
"I would like to address the objections of the Real Estate companies represented at the meeting
February 25th, in Kona. One of the main objections in the testimony of the Real Estate
representatives was that changing of the CPR ruling would hamper those individuals that wanted
to divide their properties for family only. As brought up at that meeting by Mr. Mark VanPernis,
Attorney at Law, that this could be accomplished by using another legal procedure, which would
allow them to accomplish this division without using CPR. This, I feel, puts a large question
mark in the Real Estate argument that the CPR as it is still needed. The benefit of the CPR is
definitely more for the Real Estate companies' ability to sell vacant land and for developers to
develop without addressing the infrastructure needed for the additional individuals being brought
into the area.
"Also discussed at that meeting was the current allowance of someone to build and rent a
property without contributin tg o the infrastructure as designated for subdivisions. My question
to you is, `What is the difference between building a home and making it a rental property, and
building a home that is sold, with the same amount of individuals living at each property?' Both
of these scenarios entail more people in the area, more cars, wear and tear of the roads, etc., and
bring stress to the existing infrastructure and should be ruled by the same laws. This needs to be
addressed.
"A suggestion was made during the same meeting that a building moratorium should be put in
place (with exclusion for those already having permits and in the process of building), until this
CPR ruling has been agreed to and made law. It was not made clear why this should not be put
in place, and I would like clarification why this is not a good suggestion and acted upon. Mahalo
nui," for your time.
GIFFIN: You're welcome. Commissioners, any questions of Joanne Scribner?
Hearing none, thank you. Rick.
BARBATI: Can I wait until, well, I'm here to support Hawaii Island Board of
Realtors' position, and I think Joel can speak first and you, if that's okay.
GIFFIN: Mr. LaPinta.
16
LAPINTA: Ah, where do you start with this issue? It's very complicated, very
convoluted. We've been talking about it for a couple years now, it seems, with Chris Yuen, with
the Mayor, with many people, and we've been trying to come up with a solution. The Board first
became energized to this issue for the main reason that we felt people like Mrs. Yokoyama were
being unfairly treated by an arbitrary change, that it was not supported completely by law, and it
was simply because a new Mayor had taken office and appointed a new Planning Director. The
former administration had pursued a practice that made for these ohana dwellings and additional
farm dwellings to be legally permitted with very little restriction on their permitted, being
permitted.
The, you know, it really didn't become interesting having the ability to put additional homes on a
parcel of land until people found ways to use the condominium property regime in order to sever
interest and be able to eventually sell those separate interests to other parties and then mortgage
them. I believe that that idea came from Kauai where there were projects, for example in
Moloa' a where they would use, they found that they simply would use a shade house to divide
up lands. But actually the projects, the project in Moloa'a that was done by Mike Strong was
supported by the County of Kauai. And in the County of Kauai, they had kind of a stopgap for
people doing too many additional farm dwellings because they have a limit of five per legal lot
of record. And the density goes a line of at the first house you have to have one acre, for each
additional house you have three acres.
But since the County of Hawaii, and I think what happened was in'96 the County of Hawaii
passed an ordinance which was in reaction to the Crazy Horse decision. And in that, they passed
an ordinance, they changed the ohana law and they put restrictions on the ohana law. But, at the
same time, they introduced into the Zoning Code Now the ohana law, the ohana is part of the
Zoning Code. So our Zoning Code allows for two houses in residential, and, but they did place
restrictions. And those restrictions are also contained in the Administrative Rules so that a
person could not obtain, one person could not obtain more than one ohana permit until, I think
there's a limitation how many they can have every two years individually. But the restrictions on
additional farm dwellings were pretty lax. And the former administration allowed one, and in
some cases two additional farm dwellings on Ag lands. So it seemed to us that, you know, they
allowed, the law does still allow and the law hasn't changed, I don't know why we haven't
addressed that law that the County Zoning ordinance and, the ability for people to obtain
additional farm dwellings. In the Administrative Rules, it shows, it says that you need to have
some showing of agricultural activity, but there is no way for the County to regulate that And
so in some cases very minimal agriculture was used to justify the additional farm dwellings.
The law that Mrs., that was passed by the State in June of 2000 is not very specific. It does not
say specifically what the Planning Director says it says. And it says that the CPR has to be in
compliance with the underlying zoning and development laws of the County in which the
property is located; and it says including any supplemental rules adopted by the county. And it
doesn't say, well, our zoning law allows for additional farm dwellings, as in the case of, I
believe, Mrs. Yokoyama. Is that, you have three, you have one, three farm dwellings on one lot,
and they are legally permitted. And the State condominium law is administered by the State.
The State has never given authority to the County to administer the Condominium Law, in the
same way that the State hasn't given the authority to administer registrations of corporations,
17
cooperatives, trusts. Because the State has given authority for the County to administer zoning
laws and development laws.
So we're at this state where there were a number of people who were in the process of obtaining,
who have obtained, who have completed condominiums, obtained final reports, and at that point,
the Planning Director decided that he needed to put a stop to this, and he chose to interpret the
State law for that purpose. We very much felt that was unfair to the people who were caught in
the middle because on one hand the County had told them that this was a legally permissible use
of their land, that it may have been bad policy at the County but they, and I'm not going to argue
that issue. I tend to agree that it has been bad policy to allow, you know, multiple dwellings on
agricultural lands and then, as a result of that, make it possible for there to be an economic
incentive to do these condominiums and sever the interest and create a market for actually
potential. You know, really, the worst thing is the potential site for an additional farm dwelling
became the object of commerce, and the thing that people were buying and selling, which is
different than Mrs. Yokoyama's case
GIFFIN: Yeah.
LAPINTA: Where she got the permits to build the house.
GIFFIN: And Mr. LaPinta, I need to ask you to end right now because I still have
some more people who have
LAPINTA: Okay.
GIFFIN: Signed up
LAPINTA: Now
GIFFIN: To testify.
LAPINTA: One thing.
GIFFIN: And so if you would
LAPINTA: I got, well, I want to get to a conclusion.
GIFFIN: No, just a minute. Sir, excuse me.
LAPINTA: Yeah.
GIFFIN: I will give you the opportunity to say one more
LAPINTA: Okay.
GIFFIN: Concluding sentence and that is it.
18
LAPINTA: Okay. Given that this is a very complicated situation, I haven't had the
opportunity to see the revised ordinance that's probably a response to the Real Estate
Commission's letter, and to Ms. Yee's very, very well written, Cynthia Yee wrote a very well
written response to, after reviewing the proposed ordinance. It carefully changes the ordinance
so it might be in compliance with the State law
GIFFIN: If you would like acopy
LAPINTA: Which I think the original draft that we have.
GIFFIN: Of the proposed ordinance, you can get it from our Staff.
LAPINTA: Yeah. So
GIFFIN: Thank you very much.
LAPINTA: You just received a copy, correct, today?
GIFFIN: Excuse me?
LAPINTA: Did you just receive a copy today?
GIFFIN: Yes, and you can get a copy.
LAPINTA: Yeah, we haven't had achance
GIFFIN: From our Staff.
LAPINTA: To review it.
GIFFIN: You're more than welcome to ask our Staff. Jerry Bragdon, Mary, are you
coming up to testify?
BEGIER: Yes, please.
GIFFIN: And I assume Helene Tajiri is gone, and Chris Brilhante. Were you in
before?
BRAGDON: Yes, uh huh.
GIFFIN: I think, Mary, you're the only one I haven't sworn in. Please raise your
right hand. Do you swear or affirm to tell the truth on this matter now before the Hawaii
County Planning Commission?
BEGIER: I do.
19
GIFFIN: Thank you very much. Beginning with you, Mary, then, why don't you
state your name and resident address and
BEGIER: May I ask to follow Chris Brilhante, please.
GIFFIN: Sure. Sure. Chris.
BRILHANTE: Actually, I wasn't going to speak today.
GIFFIN: Oh.
BRILHANTE: You guys have seen me enough. But I wanted to see if I could maybe
simplify, you know, what you guys are, what I'm seeing.
I agree with what Chris Yuen is saying. The County should have the right to put regulations, you
know, on the CPR situation. It's just to what extent are you going to, are you going to regulate
it? Under this ordinance, if you're going to be complying with everything you need to do for a
subdivision, then basically what you're saying is that CPRs are not going to be allowed any
longer. And so do we want to disallow CPRs for the entire Island?
Now has there been abuses? Chris has brought up abuses. That, I mean, his examples are
examples of extreme abuses that are allowed. When we met with Chris Yuen, we said, the
abuses that have happened for CPRs is a black eye for the real estate industry. We do not like it.
I've never done a CPR; I've never sold a CPR. And most of the realtors actually shy away from
CPRs because of everything that is surrounded with the CPR issue. And so the question is do we
want to just stop CPRs in its entirety?
GIFFIN: Right.
BRILHANTE: Okay. Under this scenario, we have spoke to Chris and said we don't want
that to happen. We do not want vacant land CPRs. We do not want the scenario where you can
go in and make these multiple, multiple CPRs. And we have tried to get some reasonable middle
ground on this issue. Now what we're seeing before us today, I think is an extreme, you know,
reaction to trying to
GIFFIN: Yeah.
BRILHANTE: You know, solve the problem.
GIFFIN: Yeah.
BRILHANTE: Now are CPRs used on the Big Island for positive reasons? I think
Mrs. Yokoyama is a perfect example
GIFFIN: Yeah.
20
GIFFIN: Thank you very much. Beginning with you, Mary, then, why don't you
state your name and resident address and
BEGIER: May I ask to follow Chris Brilhante, please.
GIFFIN: Sure. Sure. Chris.
BRILHANTE: Actually, I wasn't going to speak today.
GIFFIN: Oh.
BRILHANTE: You guys have seen me enough. But I wanted to see if I could maybe
simplify, you know, what you guys are, what I'm seeing.
I agree with what Chris Yuen is saying. The County should have the right to put regulations, you
know, on the CPR situation. It's just to what extent are you going to, are you going to regulate
it? Under this ordinance, if you're going to be complying with everything you need to do for a
subdivision, then basically what you're saying is that CPRs are not going to be allowed any
longer. And so do we want to disallow CPRs for the entire Island?
Now has there been abuses? Chris has brought up abuses. That, I mean, his examples are
examples of extreme abuses that are allowed. When we met with Chris Yuen, we said, the
abuses that have happened for CPRs is a black eye for the real estate industry. We do not like it.
I've never done a CPR; I've never sold a CPR. And most of the realtors actually shy away from
CPRs because of everything that is surrounded with the CPR issue. And so the question is do we
want to just stop CPRs in its entirety?
GIFFIN: Right.
BRILHANTE: Okay. Under this scenario, we have spoke to Chris and said we don't want
that to happen. We do not want vacant land CPRs. We do not want the scenario where you can
go in and make these multiple, multiple CPRs. And we have tried to get some reasonable middle
ground on this issue. Now what we're seeing before us today, I think is an extreme, you know,
reaction to trying to
GIFFIN: Yeah.
BRILHANTE: You know, solve the problem.
GIFFIN: Yeah.
BRILHANTE: Now are CPRs used on the Big Island for positive reasons? I think
Mrs. Yokoyama is a perfect example
GIFFIN: Yeah.
20
BRILHANTE: Of a CPR happening for positive reasons.
GIFFIN: Yeah.
BRILHANTE: She's not going to do it to make money.
GIFFIN: Right.
BRILHANTE: She's doing it because two of her kids wants to have two other units that if
they're on the other side of the Island they probably can't afford to purchase property. I've had
situation, I've had a situation in Waiakea, Waiakea-Uka, the Mattos' family. They have a pig
farm in Waiakea-LTka. They have two, they had two kids, two boys. They couldn't afford to go
out and purchase property. They had a large property up there, large enough to have additional
homes on the property. And they didn't know what to do because the kids couldn't, the kids
would probably have to leave, possibly have to go to Kona because that's where the job base is in
the hotels. And the parents want them close to them. The parents want them around. The
parents want to be around the grandkids. The parents want somebody to take care of them as
they get older. But they also couldn't, because the kids are married, because of all the potential
legal problems that could happen if everybody getting on title, people getting married, potential
for divorce, because of all that, being able, they can't build the homes for the kids. So the only
way, and the properties couldn't be subdivided. It could never be, it could never meet the
subdivision requirements. And so what are they going to do?
They went and CPR'd the property, completely, I have absolutely nothing to do They're not
clients of mine or anything, but they went ahead and they CPR'd the property. Today, they have
three homes there, two kids are married. They, the parents are happy. They're there in proximity
to the grandkids. You're keeping good citizens in Hilo that want to be productive in our
community. It's a great situation for their family. The, it's a great situation for them overall
legally. If somebody, if God forbid, something happens to them, the parents aren't losing their
home, the other brother is not losing, you know, their home. If there's a divorce, nobody's
putting liens on the property.
In the Kona meeting, the, we heard in earlier testimony, Mr. Van Pernis said that, you know, he
kind of flippantly said that, you know, I don't know, this marriage thing about, you know, how
that affects CPR. Because you could actually go and you could have somebody come in and
purchase the parcel
GIFFIN: Yeah, I remember that.
BRILHANTE: You know, along with the parents. And Chris Yuen went along saying
that, you know, if you do CPR, the son could sell it, you know, you don't have control over the
situation. Actually, if you don't, if you aren't able to separate it out for a kid's situation, and there
is a marriage involved, if there is any divorce situation, that spouse is going to have claim on the
property. That is going to, that is a problem. If you separate it out, if ownership is separated out,
21
if they have a problem, they have a problem on their entity. The parents are completely
protected; they're not going to lose their property.
I've had a situation in Hamakua where, this is years ago before, and like I said, I don't do CPRs,
but people had afive-acre parcel and they had, they went ahead and they built a home on a five-
acre parcel, okay, large enough. A relative of theirs, the actual, actually the brother-in-law of the
people that owned the parcel said that, you know, we'll help out, we'll buy an interest in the
parcel, okay, and we'll come back and we'll retire here. So they said, oh, that's great, you get to
help us out, you know, this is a great situation. We'll have, you know, we'll just split up the
property but not done through a CPR. Each side has an interest in the property. Okay, so they
come back, they build the home, you know, that they're going to retire on. They go through, the
house is just, almost completed, and the brother guys have financial problems, and they go
through foreclosure.
GIFFIN: Oh.
BRILHANTE: And the whole property goes through foreclosure.
GIFFIN: Five acres.
BRILHANTE: Okay. They could buy the people out. How are they going to buy the
people out? Come up with an additional $100,000 when they're putting everything they have on
their side, you know? If they did go through the CPR process, none of this would have occurred.
I mean they would have, the brother unfortunately would have gone through his situation, okay,
that's an unfortunate situation, but these guys don't go through the casualty, you know. And so
I'm not saying that CPRs are the way to go. I'm not saying that you should use that to
circumvent subdivisions because especially, you know, our company, we've done a lot of
subdivisions. And I agree with a lot of what Chris says, you know, where we have to go through
all of these hoops. We have to pay all this extra, you know, we have to pay water commitment
fees and potential roll-back taxes and all that kind of stuff, and people, you know, can go out and
CPR and get the same result and not have to jump through any of that. But I don't, but I think
that if we address the abuses, and we can stop the abuses
GIFFIN: Yeah.
BRILHANTE: Then we are not a hundred percent
GIFFIN: Yeah.
BRILHANTE: Eliminating every opportunity for every, for actually some positive things
that go under the radar, you know, that can happen on the Big Island. So I mean I'm, Chris, I
think if we get to the table, we try to work things out, you know.
GIFFIN: Thank you, Chris. Mary. I'm sorry, Commissioners, any questions of
Chris Brilhante?
22
GIFFIN: Mrs.
KUBOTA: I'll make it very short.
GIFFIN: Okay.
KUBOTA: Chris, can you speak to shade house CPRs and vacant lot CPRs, because
every time an example is given for a bad CPR, these terms come up, and I'm wondering how
often these violations occur.
BRILHANTE: I think in the past, Chris can speak to that, that they're not uncommon.
KUBOTA: No, I don't want him
BRILHANTE: Yeah.
KUBOTA: To speak to it because I know he speaks to it. I want to know the Board of
Realtors' position on it.
BRILHANTE: We are in complete opposition of shade house CPRs, vacant land CPRs.
KUBOTA: Thank you, that's all I needed to know. That's on record.
GIFFIN: Mary.
BEGIER: Thank you. What I would like to say is coming from the perspective of
someone who has held a State license in the State of Hawaii for 22 years to sell real estate. And
I've been active at the, in the political programs of the State association and the local Board of
Realtors here as well as in Honolulu, and I've dealt with the land use and relative to CPRs at the
State level for many, many years, for 15 years. I was present at most of the hearings that caused
Act 251 to be passed a few years ago, and saw the frustration of the State legislature in their need
to have to do that because they kept having a picture painted for them of our irresponsibility at a
County level. And it's unfortunate that they couldn't be here to watch the process that we've seen
unfold in the various hearings because we do have a very participatory County. And we don't
always agree, but everybody participates and we all go eat noodles at the same place later, you
know. And I think that we should be proud of that. We are volunteers, as realtors. We're
supposed to be out earning commission, representing our clients, and it is frustrating. I'm going
to assume that this Draft 2 that has been made available to you today was just printed this
afternoon, because it would have been nice to have had it ahead of time.
GIFFIN: Yeah. Yeah.
BEGIER: Because we have dedicated a lot of volunteer hours to communicating
with the Planning Director's office. And we've had meetings amongst ourselves so that we have
a unified front. So that when we come to you we can say when, as for example, Mrs. Kubota
asked Chris what the Board of Realtors' position was, we could say we're, in fact, speaking for
23
the Board and not just Chris, not just Mary. We are talking about ourselves and our clients. So I
just wish we could get those communications a little sooner so we could be more prepared when
we come together like this
GIFFIN: Yeah.
BEGIER: Having all waited all day.
GIFFIN: Mary, I think that one suggestion, and I think that there may be other
proposed ordinances, that perhaps the day before you can check with Alice to see if there is
anything more current than what you have in your possession. That's just a suggestion.
BEGIER: Thank you.
GIFFIN: So that, you know, it would give you a heads up and perhaps then copies
of what is being given to us. All right. Any questions of Mary Begier? Hearing none, Jerry.
BRAGDON: Thank you. For the most part, I agree with the HIBR's letter that they
submitted earlier. I thought it was very well written and to the point. The thing that I hope to
find out this afternoon, and I still don't hear an answer to, is why these condominiums aren't
addressed by building permit restrictions. It seems like that if you automatically create an
apartment or a unit that it just automatically creates a house; and that's really what it's all about,
is how many houses you can build. And so it seems like rather than eliminate the CPR, which is
what I think this ordinance is going to do, that you could restrict building permits a little more
easily and still accomplish the same thing, which is density. And that's what we're concerned
about, infrastructure load, that type of thing.
I also think that there's some uses for CPR that are in the agricultural areas. There are lots of
ginger farmers out there and people that would like to own a small parcel and do their own little
farm.
GIFFIN: Right.
BRAGDON: And pass it on to their family and have it forever. It doesn't have to have a
building permit, maybe a little barn or something. But it's certainly not going to create a lot of
load on the agricultural, or on the infrastructure; and not any more. Let's say you had four
apartments on a 20-acre parcel, that's five acres each, and if it's zoned Ag-5. You're not, you're
still only going to have one building permit but you could have three farmers there who are
doing orchards, bananas, or whatever. And so I don't want to see a property right disappear just
to kill this big concern people have about real estate people getting rich on CPRs, okay. That's
all I got.
GIFFIN: Thank you. Commissioners, any questions of the last testifier? Hearing
none, thank you. Thank you. Mrs. Kubota, you seem, I did cut you off. And so I thought that I
would give you this opportunity to continue. I think other Commissioners have some questions,
as well-.
24
KUBOTA: I will
GIFFIN: For how we are to proceed. I mean in a perfect world
KUBOTA: You know
GIFFIN: The Director would withdraw and meet with the people who have
KUBOTA: He's not going to withdraw.
GIFFIN: Other ideas, but he's not going to do that.
KUBOTA: Oh, no, don't frighten me.
GIFFIN: So
KUBOTA: Well, something else popped into my mind, and this has nothing to, and it
has to do with CPRs
GIFFIN: Oh.
KUBOTA: But nothing to do with individually owned lots. You know, my doctor,
my dentist, and my medical doctor, their offices are CPR'd. Why is it that, the CP your
amendments don't speak to the business sector CPRing? And yet the concept that we apply in a
CPR is the same for the business sector as it is for the private sector. Why is it that your
amendments speak only to the private sector and prohibit them from doing it and the business
sector can just go ahead and do it? I mean, I don't understand it enough
YUEN: Sure.
KUBOTA: That's why I'm posing the question.
YUEN: Sure. Let's take first of all the multi-family residential situation. In the
multi-family residential situation, you have a set number of units allowed by the zoning. And so
you can build those, say an RM-1.5, you get to build a unit for every 1,500 square feet. So then
you can build those units and you can rent them out and you can Actually you cannot
subdivide them to 1,500 square feet. And you can, and this is what the CPR was originally
designed or when it, when It came into vogue in the'40s, 'SOs, and'60s, and'70s as a way of
owning units in these multi-unit buildings. And there's no temptation to use it to divide up the
property into more units than it's, than allowed by the zoning because you have a set number. It
only comes into play in the Ag and the residential because you do have the opportunity to have
more than one house. And in that respect, it goes hand in hand with the additional farm
dwelling. It becomes the motivation for applying for an additional farm dwelling. In other
words, you're not applying for an additional farm dwelling because you have a farm and you
need somebody else to work on it, and you want a place for them to live. You're applying for the
25
_ _
additional farm dwelling so that you can sell off, you can CPR. If you can CPR off a portion of
the property, then you have, that person can get the additional farm dwelling and build a house
there. And, in other words, you've done the same thing as a subdivision in that case.
So in the, in returning, you know, to your question about the commercial and the multi-family,
well, the commercial or the multi-family situation, it is, this is the use of it, that is the appropriate
use of it is is a way of dividing up multi-unit buildings. That's why, you may look at the
terminology. The problem is that people have stretched something that was meant for something
different. I mean you can look at even the terminology of the condominium law where they talk
about an apartment. Why is the, why do they call the unit an apartment? That's because of what
it was, it was an apartment. And so, and that's, one of the concerns about doing any kind of
ordinance and, like this, is not to muck up the legitimate uses of a tool. And so this does not
apply in multi-family and business zones. It only applies in the zones where you have these,
where you have a residential, and the opportunity of doing multiple residential or multiple
dwellings in a lot, in a single lot.
KUBOTA: See Okay, Madam Chair, you know, this really brings to fore my dire
need, I guess I should say. I just don't feel comfortable voting on this, one way or another, with
the base knowledge that I have. I mean there are so many things. And the people that come to
testify keep, the experts are telling us this is a very complicated issue and, you know, we're
expected to vote on this issue up or down without full knowledge or a better knowledge. I know
I can't ever learn everything that I need to learn about CPR, but, certainly, I would like to have a
better base on which to make my decision, right or wrong. And, you know, I've been thinking
about this. How do I go about something like this? How do I feel, make myself feel comfortable
making a motion and voting on it for one thing? I need some help.
GIFFIN: I know, and I don't think that you're alone. And I
KUBOTA: And I'm frustrated.
GIFFIN: And I would like to also state that I think that contrary to what some
Commissioners may feel that they know enough to vote on it, I don't. And I think what it is is
that what I'm faced with is something abstract, and I would like something more specific. And I
think what I would like is to have something that is more, this is why I allowed Mrs. Yokoyama
to speak, even though her issue really was not germane to the ordinance. Because I would like to
see, personally, more of these examples of subdivisions, CPR'd subdivisions that have occurred.
Some of those examples that Chris Brilhante brought out, to me, are very, very important
because it gives me a handle to look at benefits, some that are negative, about the ramifications
of this ordinance. And I personally do not feel comfortable about voting on something that I am
not clear on. I think that we can bypass that whole thing by simply saying, well, we are advisory
to the Council, and that is well and good. But as long as I'm a member of this Commission, I
want to know that I voted on it with full knowledge and full comprehension, and I don't have that
right now. And I don't know that there is anyone on this Commission today who feels that they
know all of the ramifications of this ordinance. And so, correct me if I'm wrong, what are, and I
think the frustration that Mrs. Kubota is expressing is also shared by me. What are some of the
things, and maybe Chris, you can help us, that we can do to further clarify this situation? I said
26
earlier that I thought the example of Mrs. Yokoyama was excellent, and some of the examples
that Chris gave were also excellent.
I know of an example in Waimea where property values are so high, most people can't afford to
buy there. But because of the use of CPR, one of the former headmasters of HPA was able to
buy his retirement home there. And we're not talking about a plant, a former plantation
employee or a hotel bellman, we're talking about a lot of people who are middle and upper
middle income. Without this ability to buy CPR'd lots, they would be out of that community
totally. So it's not just family, which I was focusing on in Kona, and which, for Mrs. Yokoyama,
it is, but there are other people who would be adversely affected if this ordinance, I think, went
through in the manner in which it is being presented to us today. So I guess what I'm asking for,
like Mrs. Kubota, is what can we do to help give us this sense of comfort to be able to vote on
this in an intelligent way? Commissioner Springer.
SPRINGER: I have a couple of questions. If the existing regulations regarding CPRs
had been duly enforced, would we be in this sort of, have this sense of dire need?
KUBOTA: To change
YUEN: This ordinance, I am essentially doing what this ordinance says right now
except for the exemptions. And the effect of it is that the CPRs are not going through because of
an approval that they need from the County. So as far as enforcement, this is, what is in this
ordinance is essentially what I'm doing administratively, yeah.
SPRINGER: Question, in the
GIFFIN: Commissioner Springer.
SPRINGER: Thank you. In the letter from the July, sorry, January 31, 2002, letter from
the Real Estate Branch that's attached to our background report.
GIFFIN: Yeah.
SPRINGER: I'll give us a moment if you want to
GIFFIN: Yeah.
SPRINGER: Get to it.
GIFFIN: Hang on.
SPRINGER: I'm looking at No. 14, which indicates the State condominium law does
provide civil and criminal sanctions for developers who fail to conduct their due diligence of and
in compliance with county regulations, etcetera.
GIFFIN: Yes.
27
SPRINGER: Who then, who or what is the enforcement agency for this section? Is it
State or County?
GIFFIN: It must be State.
YUEN: That section is State.
GIFFIN: Yeah.
YUEN: Yes.
SPRINGER: So how do the State and the County coordinate to ensure compliance?
YUEN: If we learn that a CPR developer has falsely certified compliance with the
County codes, then we send a letter to the Real Estate Commission, and the Real Estate
Commission then will send a letter to the CPR person, a stop sales letter. If the condominium
has gone through to the, the final effect, the final point on a condominium is called the Real
Estate Commission giving you an effective date for a final public report. Once that date is
passed, then you can go and sell your condominium units. If that date is passed already, then
upon getting this letter from the County, they will say stop sales until the question is resolved. If
it's before the effective date of the final public report, they won't issue the effective date pending
resolution. I think this has actually happened only once where there has been a stop, actually
been a stop sales after the fact.
GIFFIN: Commissioner Springer.
YUEN: But, again, this is all in the last year or so as far as enforcement.
SPRINGER: So now I'm looking at the February 25, 2002, letter from the Hawaii Island
Board of Realtors.
GIFFIN: Yes.
SPRINGER: The first full paragraph under the first bullet. So it reads, "It is abundantly
clear from the Real Estate Commission's letter that Hawaii Revised Statutes permits a property
owner to establish a CPR by a simple defined act of recording a master deed in the Bureau of
Conveyances."
YUEN: That step does not allow you to sell the CPR unit. You can create a
condominium on your property simply by recording a document with the Bureau of
Conveyances that says this is what I'm doing. But to actually sell the units out and separate out
the ownership requires this effective date for a final public report by the Real Estate
Commission.
SPRINGER: One more question, Madam Chair?
28
GIFFIN: Yes.
SPRINGER: Mr. Director, if you're now or this administration is enforcing the
regulations as they presently appear, what additional benefit does what you have proposed offer?
YUEN: First, it exempts through a group of people including Mrs. Yokoyama.
SPRINGER: Okay.
GIFFIN: Yeah.
YUEN: Second, it regularizes the process for getting, for doing a CPR. And it's
true that there isn't an advantage, if this goes through, there isn't an advantage to doing a CPR
versus a subdivision. But there are circumstances where people want, where people want to do
residential developments with detached, in the single family district, for example, with detached
homes, but own the units in a condominium form of ownership. That way you have a
condominium association that maintains say a park, or roads, or playgrounds and the like, and
your home would be owned as an apartment. There are examples of that being done currently in
Hawai' i County, and this would say how you would go about doing that. When they say that it
would ban the CPR or it would not ban the CPR, it would take away the advantage from doing it
by way of CPR versus by way of a subdivision.
GIFFIN: Mrs. Kubota.
KUBOTA: I have a little note over here because I, this is something I heard for the
first time. Mr. LaPinta said in his testimony today that the administration of the CPR has not
been delegated by the State to the County. Did I understand him to say that?
LAPINTA: The authority. The authority.
GIFFIN: Excuse me?
LAPINTA: Authority.
KUBOTA: The authority to administer.
LAPINTA: CPR is with the State
YUEN: But let me say, the State law says that the County Councils can enact
supplemental rules and regulations that are not in conflict with the State law. So County
Councils can enact any rules and regulations for the use of condominiums as long as they're not
in conflict with State law.
KUBOTA: As long as they're not in conflict.
29
YUEN: And there is nothing in State law, for example, that says that the County
can't tell you that in order to CPR your property you have to follow certain standards that also
apply to subdivisions. There is nothing that contradicts State law in that.
GIFFIN: Commissioners?
KUBOTA: Okay.
GIFFIN: I'd like to redirect everyone's focus on what to do, because we need to
resolve whether or not, first of all, we're going to continue this hearing. Secondly, what is it that
we're going to do differently that will improve our understanding of this proposed ordinance?
Because I think, Alice, if by then, we might be very near the deadline, right?
KAWAHA: Right.
GIFFIN: And so if you look at the last, our next Kona meeting, that probably will
be the last opportunity that we're going to have to act on this proposed ordinance. What is it that
you would like to do to improve your comprehension of this proposed ordinance?
FUJIKAWA: Are you saying
GIFFIN: Mr. Fujikawa.
FUJIKAWA: Are you saying that we conduct a workshop on this?
GIFFIN: We could, we definitely could, and ask Staff to present us with some
information that would be more specific and germane examples. We could even have public
testimony that would be more specific. But I think that if we continue to speak in this way, I
don't know that that's going to help to resolve the questions that some of you have. So what I
need is direction from you as to how to go about the next hearing or do you want to, you feel
comfortable about voting on it today.
SPRINGER: Madam Chair?
GIFFIN: Commissioner Springer.
SPRINGER: Unless something has transpired in the last 10 minutes to the contrary, it
sounds as though at least two of us are not comfortable on voting at this time. I appreciate
Director Yuen's answers to my questions because that greatly clarifies the matter for me. But
getting, receiving more information as through a workshop, it might be of benefit to have like a
real estate lawyer there rather than just hearing more from the industry and more from citizens
who support it
GIFFIN: Yes.
30
SPRINGER: Or not. If we're looking for a more comprehensive understanding, I'm not
sure if a real estate lawyer is the only or the best resource for us, but that would certainly give us
a perspective that we haven't heard from yet.
GIFFIN: I think that that's really well taken. Mrs. Kubota, what is your take on that
since you joined our ranks of
KLTBOTA: In the discussion?
GIFFIN: Confusion?
KLTBOTA: I'm allowed to speak now?
GIFFIN: Now you may.
KUBOTA: Well, yeah, I think legal interpretation, legal connections are necessary.
But, you know, I'm looking at more the fundamental, the very everyday kinds of things that I'm
hearing from the Board of, I mean the testifiers that we're, by accepting the amendment, we're
denying certain kinds of things from happening which are very important that they be preserved.
Like, for instance, just for instance, it comes to mind, mom and pops. We're denying the mom
and pops the opportunity to do what is, you know, legally their right to do, which is to CPR. If
we say
YLTEN: No
KLTBOTA: No? I can see you saying no. But that's the impression I'm getting, and I
want to know, for real, are we doing it? What are we doing by going up, or what are we doing
by going down? What are we missing out on? And I really don't get the drift of it. I'm getting
bits and pieces. But, you know, I'm not a real estate person and this is my first exposure to these
kinds of concepts. And I find it very difficult in three or four hearings of this sort to pull out all
the cogent things that I need to apply when I make my decision, and Ijust
GIFFIN: And I'd like to direct the Commissioners to the March 5th letter that we
have in our binders from David A. Masaki, the same sort of mom and pop situation that we've
heard of and that is very meaningful to me. Commissioner Springer.
SPRINGER: I wonder if also someone from the, if we're looking at a workshop, where
we have
GIFFIN: Yeah.
SPRINGER: The opportunity
GIFFIN: Yeah.
SPRINGER: To dialog
31
GIFFIN: Yeah.
SPRINGER: With resource people, perhaps someone from the real estate branch, since
they seem to fit into this. There seems to be
GIFFIN: Cynthia Yee, that group
SPRINGER: Yeah.
GIFFIN: The State.
SPRINGER: Since there seems to be this debate where authority rests between the State
or the County.
GIFFIN: Good.
KUBOTA: And don't forget, we have to have the County represented, too, so they
can
FUJIKAWA: That's right.
SPRINGER: Yeah.
KUBOTA: Bring out their I think it would be germane to, I mean it would be
appropriate to have our Planning Director there so we can, you know, bust his brains.
GIFFIN: So maybe have a panel?
KUBOTA: Okay. If it has to be formal, a panel. I hate
GIFFIN: But I would like them to be prepared to speak to the pros and cons of the
ordinance.
KUBOTA: Okay. Okay.
GIFFIN: Mr. Fujikawa.
FUJIKAWA: Well, I think that right now, to some of us, it's kind of cloudy about the
whole thing, that we are looking at a workshop, and this is a recommendation to the County
Council. I believe that they would like to get into learning more about it, too.
GIFFIN: I'm not going to get involved in that. I think that if they want to have their
workshop, they can have their own workshop. This, for us, on April 5`h -
FUJIKAWA: Right.
32
GIFFIN: Would be us. But so far, I like the suggestions of perhaps a lawyer, a real
estate lawyer, maybe this Cynthia Yee and, of course, our Planning Director, the initiator of this
ordinance, to speak to the pros and cons and clearly delineate them maybe on the board, you
know. These are the pros from this perspective, these are the cons from this perspective.
SPRINGER: And I think that it brings us back, as so many discussions do, to the matter
of standard, consistent enforcement of the regulations as they exist. And when we don't practice
that sort of discipline, we get into this mire
GIFFIN: Yeah. Yeah.
SPRINGER: That we're in now.
GIFFIN: Is, right now, we seem to be heading towards the idea of a panel type
discussion with prepared comments regarding this ordinance. Is there anyone else, because we
have to direct Staff to locate these people. Is there anyone else that you would like to have on
this discussion, this panel discussion? Commissioner Springer.
SPRINGER: There's one other area of concern that I have, and that's enforcement. So
in that discussion, it may be as simple as the Director describes, and it's just a matter of now
enforcing for administration, that it's an administrative matter; but if we could have a clear
statement of that.
GIFFIN: Anything else? For the April St" meeting, Alice, is that, do we have
enough time to advertise this, because it would have to be agendized, right?
KAWAHA: As a caution, I already did today.
GIFFIN: Good.
KAWAIIA: Because it makes the 10-day on the, it's going to be published on a
Monday, and we just had to get it in today to the publisher, so we did meet the 10 days.
GIFFIN: Ivan, you look like you want to say something.
TORIGOE: Just that, Madam Chairman, you know, you talk about doing a workshop.
I think it has already been noticed as a public hearing which, essentially, is what it would be.
GIFFIN: Yes. Yes.
TORIGOE: It's just that you're going to do certain things to try and facilitate your
gathering information.
GIFFIN: Yes.
33
TORIGOE: Like it sounds like you want to invite Cynthia Yee, maybe you want to
invite the Planning Director, invite maybe, if someone knows a real estate attorney who's
interested in speaking to you, invite them to be here to be resources and help you understand
what's going on.
And, also, I was talking to Alice about the possibility of the Staff going through the
correspondence and testimony and picking out for you the mom and pop situations and kind of
compiling those so that you can see them easily. But, you know, basically it's a public hearing,
but you'll just be doing these things during the public hearing.
GIFFIN: Yeah, and a slightly different format but, nonetheless, it still would be a
public hearing.
TORIGOE: Yeah. So I guess I just want to make clear that you're not going to be, you
know, voting to hold something other than a public hearing. It's just that you're saying we want
to do certain things during this hearing.
GIFFIN: And I think that we should make it very clear that the members who we
invite to be a part of this discussion are going to be speaking to this ordinance, the pros and cons
from their point of view. And I don't know who or how we can get some sort of counsel that
might be very well versed on real estate law, but maybe Alice, with some input from the Director
and from Ivan, or Corporation Counsel, we can find somebody of that nature that, you know,
would be willing to speak on this ordinance. Commissioner Springer.
SPRINGER: Then given our window
GIFFIN: Yes.
SPRINGER: And the requirements thereof, would we be voting following this?
GIFFIN: I think that there is a time limit.
SPRINGER: Yeah.
GIFFIN: That will make it incumbent upon us
SPRINGER: Okay.
GIFFIN: To do that.
SPRINGER: Yeah.
GIFFIN: But right now, I think what I need to do, Ivan, and correct me if I'm
wrong, is to have a motion to continue, correct?
KAWAHA: Yes.
34
FUJIKAWA: Yeah.
SPRINGER: So moved.
TORIGOE: Yeah, that would be in order.
GIFFIN: Okay. So may I have a motion to continue.
KUBOTA: She moved.
SPRINGER: So moved.
GIFFIN: Oh, I didn't even
KUBOTA: I second.
GIFFIN: Recognize you.
KUBOTA: I second.
MINA: I second.
GIFFIN: Okay, then. And did somebody second?
KUBOTA: He seconded.
GIFFIN: And Mr. Mina. Oh. It has been moved by Commissioner Springer and
seconded by Commissioner Mina that the Agenda Item No. 8, the Planning Director initiated
action amendment to Chapter 23 (Subdivision Code), relating to condominium property regime
(CPR) be continued to our April St" meeting. And to also invite, as members of panel, to speak
to us on this proposed ordinance, a person of legal counsel in real estate law, our Planning
Director, there was one other person, who was the third person?
TORIGOE: Cynthia Yee.
GIFFIN: Oh, yes, Cynthia Yee. And also to direct the Staff to please have a
summation for us of the letters that we have received germane to this proposed amendment. Any
questions?
KUBOTA: I have a question.
GIFFIN: Commissioner Togashi.
35
TOGASHI: As you can tell, I haven't said too much because I am very tired and I am
more than willing to continue this matter. I do have a question regarding the deadline, the
60-day deadline. When is the deadline now?
KAWAHA: The 60 days, if you counted from the February 16th, which was the day
after the first hearing, the 60-day is April 16th
TOGASHI: So there is at least a few weeks of window available to us then, rather than
just confining it to April Sth. Because I'm wondering, you know, you are asking all these
participants to come on that designated day, and what happens if Ms. Yee can't make it on that
day? What happens if you can't get a panel assembled for that day, then what?
GIFFIN: I think the only person who might be, you know, in that predicament
might be Cynthia Yee because we are specifically asking her
TOGASHI: Mentioning her, right.
GIFFIN: But maybe she can appoint somebody else from her office in her stead.
And legal counsel, if the first one that we ask cannot do it on that day, maybe we can ask
another. There seems to be an abundance of lawyers.
TOGASHI: Would it be possible to, if we do schedule it on the 5th, to have this as the
first agenda item? I can see if it lingers like it did today, I'm just tired and, you know, I usually
don't say this kind of stuff, but, you know, I don't care anymore, yeah. I just want to move on
because we have three more items. And, you know, if we're going to, let's say, schedule this
toward the end of the day and the discussion will, you know, it's an interesting item, I mean early
in the day But as the day wears on, I'm just human, I'm just tired and I, you know, I would
opt I don't have a problem with April 5th, but perhaps opening up the agenda with the panel
discussion would be great and we can move on with the item. Or if that cannot be arranged,
perhaps putting it on another day.
KAWAHA: We published it for 1:30
TOGASHI: One-thirty.
KAWAHA: When we sent in the notice.
GIFFIN: But we can do, with the agreement of everyone there, a change, couldn't
we, just as we did today?
KAWAHA: As long as, no, because you cannot hold it before the 1:30. If it's already
published for 1:30, I don't think you can hear it before 1:30.
GIFFIN: No, but I'm saying that if we are running late.
KAWAHA: Yeah, right. Right.
36
GIFFIN: Then we can change the order.
KAWAHA: Right.
GIFFIN: After 1:30.
KAWAHA: Yes.
GIFFIN: So it's not going to be your opening act.
TOGASHI: So how many agenda items do we have that day then, prior to
GIFFIN: You have to ask Alice.
TOGASHI: One-thirty?
KAWAHA: We have nine agenda items.
TOGASHI: Prior to, for the whole day?
KAWAHA: Yes.
TOGASHI: Of which how many are scheduled prior to I :30? Maybe about six?
KAWAHA: Seven.
TOGASHI: Seven?
KAWAHA: Seven is Yeah.
GIFFIN: So we, after 1:30, the reality is we can change the schedule.
KAWAHA: Yeah, from 1:30 is the Unfinished Business.
GIFFIN: Yeah.
KAWAHA: There's two applications on unfinished.
TOGASHI: And just move on in at 1:30 and
KAWAHA: Sure.
TOGASHL• And everybody else then
KAWAHA: It's
37
TOGASHI: Will have to be accommodated then.
GIFFIN: So if there is no other discussion, Alice?
KAWAHA: Commissioner Springer?
SPRINGER: Yes.
KUBOTA: What are we voting on?
KAWAHA: Commissioner Mina?
MINA: Aye.
KAWAHA: Commissioner Fujikawa?
FUJIKAWA: Aye.
KAWAHA: Commissioner Kubota?
KUBOTA: What are we voting on?
KAWAHA: Continue
KUBOTA: Oh. Aye.
KAWAHA: To April Sin
KUBOTA: Okay.
KAWAHA: Commissioner Togashi?
TOGASHI: Aye.
KAWAHA: Chairwoman Giffin?
GIFFIN: Aye.
KAWAHA: Chair, the vote passes with six ayes.
GIFFIN: Thank you.
38
The discussion ended at 5:35 p.m.
Respectfully submitted,
Sharon M. Nomura, Secretary
Planning Commission
39
PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
Apri15, 2002
A regularly advertised continued public hearing on PLANNING DIRECTOR INITIATED
PROPOSED ORDINANCE (DRAFT 2) TO AMEND CHAPTER 23 (SUBDIVISION CODE)
OF THE HAWAII COUNTY CODE, AS AMENDED, RELATING TO CONDOMINI[_TM
PROPERTY REGIME (CPR) was called to order at 3:29 p.m. in the Ohana Keauhou Beach
Resort, Kahalu'u Ballroom, 78-6740 Ali'i Drive, North Kona, Hawaii, with Chairperson
Geraldine Giffin presiding.
PRESENT: Geraldine M. Giffin
Earl Fujikawa
Fred Galdones
Florence Kubota
Aurelio Mina, Jr.
Francis Smith
Hannah Springer
Grant Togashi
Ivan Torigoe, Deputy Corporation Counsel
Christopher J. Yuen, Planning Director
Alice Kawaha, Staff Planner
Daryn Arai, Staff Planner
Norren Kato, Staff Planner
Kiran Emler representing Department of Public Works
And approximately 30 people from the public in attendance.
APPLICANT: PLANNING DIRECTOR INITIATED proposed ordinance (Draft 2) to amend
Chapter 23 (Subdivision Code) of the Hawaii County Code, as amended, relating to
Condominium Property Regime (CPR). The purpose of the proposed ordinance is to ensure that
when land is divided using a condominium property regime, the individual units created are
adequately served by roads and other infrastructure, and that drainage and flooding issues are
properly addressed. It also clarifies the applicability of zoning regulations to condominium
developments.
GIFFIN: I have to beg your indulgence one more time. It seems like I've been doing
this all day. But we've had a special request from a person who has flown in today to testify on
Agenda Item No. 10 and has a flight to catch. I believe his flight is at 5:15, but you know how
the airlines are right now. And it has to do with the agenda item regarding CPR. And so with
your indulgence, what I would like to do is to hear his testimony and then go back to the regular
agenda items. Hang on one minute, all right, let me find that.
Will you please raise your right hand.
1
SAKAI: Yes.
GIFFIN: Thank you. Do you swear or affirm to tell the truth on this matter now
before the Hawaii County Planning Commission?
SAKAI: Yes.
GIFFIN: Will you please state your name and resident address.
SAKAI: My na,trte is Hiroshi Sakai. I'm an attorney, specializing in the area of real
estate law, subdivisions, condominiums, financing of projects. I presently serve on the
condominium
KATO: Please use the mike.
SAKAI: I presently serve on the condominium recodification committee with the
Real Estate Commission and the Agricultural Coalition Committee, anon-profit group of
landowners, farm bureaus, farm owners, the Dean of the University of Hawai' i Tropical
Agriculture, and other persons who are interested in agriculture problems of the State of Hawaii.
I am here at the request of the Hawaii Board of Realtors to provide comments on the proposed
Chapter 23 of the Hawaii County Code relating to subdivisions, as well as provide background
information and understanding of what the Commission is considering.
This subject matter of agricultural farms, subdivision, development and condominiums are
presently occurring at several different levels at the present time.
First of all, the Hawaii County is considering the regulating of condominiums in its subdivision
ordinance.
The City and County of Honolulu is considering two different ordinances. One ordinance is a
special agriculture ordinance through a conditional use permit process to allow leasehold parcels
to be made available with minimal infrastructure requirements to make these parcels affordable
to farmers.
Another ordinance is considering the perpetuating of the agricultural zoned property for longer
periods of time.
The Agricultural Coalition, a legislature sponsored group, is to help persons in the community
interested in agriculture to work out solutions relative to the change from the sugar, and the
pineapple, and other agricultural fields to diversified agriculture, agricultural activities, and
agricultural products.
The recodification of the condominium property law requested by Act 213, Session Laws of
Hawaii 2000, under the auspices of the Real Estate Commission of the State of Hawaii. This
2
advisory committee has monthly meetings which commenced from January this year and to be
concluded by December 2002.
I will break up my talk into a number of topics and areas, and after that I'll be happy to respond
to any questions that you may have.
1. Pre-emption doctrine -The question of apre-emption doctrine is that, where will the State be
in a Condominium Property Regime relating to establishing the division of ownership in real
estate and the role of the counties relating to the use and subdivision of the real estate. I might
add that there is some differences of opinion on this particular item.
2. The development of agricultural condominiums. The reason for the starting of the
condominiums, when it was first started in 1959. I was involved in developing the concept of
the agricultural condominiums. And the reason primarily was because of the infrastructure
requirements for subdivisions. When it came to agriculture, they retained so much of the
provisions of residential that it was not possible to bring the cost of agricultural subdivisions
down.
~o in one instance, I went to the County of Kauai, I spoke to the Planning 17irector and then the
Corporation Counsel, the city attorney at that time, and I told them, I said, you know, please try
and change your requirements. Because, I said, the cost, you know, by the footage and the area
is such that it would not be possible to really develop agriculture. So they said no. So I said,
well, you know, you force me, but no alternative, I'm going to use a CPR because a CPR has the
means by which, so that's how it all got started. Now also, at that time, one of the problems was
how do you get the building permit. That's where I came up with the idea of getting a shed and
use the shed as the basis for the apartment; and so, after that, everybody started doing that.
3. Now as far as the question of condominium to divide or should be an ohana property, we have
the application of ohana properties where you have two ohana dwellings. Sometimes you may
have it joined and sometimes you have it separated. Now when I look at this draft of your
proposed ordinance, if it's joined, it will be okay. But if it's separated and you have dirt in
between, it's not okay. And then that's the way it appears that your present ordinance is written.
And it just seems strange to have a ohana law and then in one instance you can do it and another
instance you cannot do it.
4. Well, agricultural farms at prices that farmers can make a living. You need to make changes
in the land use and subdivision laws and, basically, it amounts to the relaxation of infrastructural
requirements. This thing, you know, has come to the floor at the city and county level. So now
they're trying this idea of how about the landowners been, making land available, we were on the
conditional use, under their control, allow a relaxing of infrastructure requirements.
Now infrastructure requirements, for example, the major one is roads. Now, you know, the
plantations have been using cane haul roads and other roads for hundreds of years. It depends on
how much or what kind of activity you have on the road. You could have gravel roads. If they
are farmers, why need to have the road paved?
3
The other question that came up at the city and county discussion, this is only at the preliminary
stages, not at formal meetings, but what about water? And so they're willing to waive water
requirements and leave it up to the farmers to figure out where and in what form they're going to
get the wells, whether wells or catchment or, you know, working out with the private situations.
5. Now the other question came up was financing for farming. For financing for farming, when
I discussed with some of the people who are involved in financing, the problem is you have to
have a term of years. For example, if you have a 25-year lease, usually they'll take off five years
and they'll say 20 years is available for farming, you know, for your loan, so that means you get
20 years to amortize a loan. But if you have only 10 years, you have to pay back in 10 years,
there's no way the farmer can make it. So this is why this particular committee, the department,
in the case of the city, is trying to figure out, you know, that also, how can we make it more
easier or better for financing for the farmers.
Now on the pre-emption doctrine, I think Cynthia Yee responded to what Chris Yuen wrote, and
she wrote a lengthy letter. And then also Chris responded and came out with a format of the
particular draft. And so that was brought up before the Codification Committee. And David
Callies, the professor from University of Hawaii, looked at it and said he doesn't think that the
pre-emption, the pre-emption doctrine will work and will not allow, whereas it's the
inconsistency between what is being proposed and the CPR statute.
So, you know, as far as lawyers go, I've done some research previously and I've seen some cases,
and I haven't looked at it to see whether that's the majority. But according to what Callies
indicated, that he was fairly certain that the pre-emption doctrine would apply. So the question
you have to decide is the thing that's proposed in this ordinance, is it pre-empted by the State
Statute?
A couple other things, the matter of the storage shed being an apartment was challenged by the
Real Estate Commission. I was the one that brought it up and somebody challenged it, so they
sent it to the Attorney General for an opinion. And the Attorney General did find, back in 1987,
that the agricultural condominiums are allowed and not barred by the Hawaii Revised Statutes.
In essence, the reason why is because the statutes in the condominium area says for any use, so it
can be a shed or any type of use.
Now I might make some other observations. To me, the greatest deterrent to anyone developing
agricultural land is the infrastructure process; and I think that's the whole thing that has held up,
you know, agricultural land from being readily available. And I think that this Planning
Commission, the Planning Department, if they can devise a way of lessening the requirements
for the agricultural subdivision, then there would be no need for condominiums. That's how it
started. It's because the requirements of the subdivision were too stringent, so the people went to
do condominiums. If the subdivision ordinances were much more readily available, I think it
would be terrific. I would recommend strongly that you change your agricultural ordinances.
Now on the water situation, from what I've seen, you have potable and non-potable. The
potable, here I notice they truck the water in big water tanks. But on the non-potable, they either
do catchment or they dam up, you know, and then some with the wells But I heard on this side
4
of the island, sometimes, they cost anywhere from $350,000 to $1 million to dig a well. So, you
know, there's a problem. Also when you're digging a well, the other problem you run across is
the salinity of the water, how much salt in it and how brackish it is. In Waianae, for example, in
Honolulu, wells that are dug there had too much salt in them so, you know, they would have to
bring in some potable water and mix it to be able to make it usable.
The other things, of course, sanitation, cesspools and septic tanks, probably in the case of
agriculture, you can probably get by by cesspools.
As far as the drainage, you leave it up to the farmers, whatever they want to do.
Electric power they should arrange. And I think in this case here, probably they would draw
overhead lines to get to the particular properties.
I'm going to kind of mention some other things. I notice that on Kaua'I And then one of the
problems of the Planning Department here is that when you have the Rule 13 that you keep on
applying, they have more and more units. It seems to me that you can presently, under your
ordinance and your Rule 13, put a cap. In other words, like Kauai, how they did their cap was
one unit for the first one acre; the second unit and thereafter, three acres; but they coaxed it out at
five. Because at some point in time, if you get too many people wandering around in a property,
you're just going to have the problem, you know, that there's not going to be enough
infrastructure. So at that particular point, they should say, okay, you better get a subdivision and
then be able to, you know, meet some of the minimal infrastructure requirements for the next
phase.
So those are some of the things that I thought might be helpful to yourselves. Let me mention a
few other observations. When I looked at the proposed ordinance, it said we want to apply the
subdivision law to the condominium. When I look at the
GIFFIN: What page are you on in the ordinance?
SAKAI: Yes, your proposed ordinance.
GIFFIN: I know, what page?
SAKAI: I don't know the specific page, but overall
GIFFIN: Oh.
SAKAI: I'm looking at overall what is
GIFFIN: Okay.
SAKAI: Being attempted.
GIFFIN: Okay.
5
SAKAI: Well, one of the things that when you look at a subdivision, you're
dividing the land from the center of the earth to the top of the, heaven, anyway, the air space.
But when you come to a condominium, you have a slightly different situation. You may have
the air space, but the land below is owned as tenants in common, by a whole bunch of people;
and you have to get 75 percent to, of the association to agree to make changes. So when you try
to impress the subdivision ordinance on a, you know, the CPR, you're going to get into
complications, because the CPR says you can go ahead and assign the space, you know, over the
land to a particular person, to a particular unit. But the way this ordinance is drafted by the
Planning Department, I don't think does that. So you have kind of a practical problem there.
Otherwise, you're going to have to start doing air space subdivision. And it's not, you know,
unreal to have air space subdivision. I saw one in California and I saw one in Ohio where they
have air space subdivision. And I don't know whether, I don't think you are contemplating doing
air space subdivision where you have the space above the ground as, you know, being
subdivided, as contrasted to the underlying land. So that's one thing.
The other thing is the applicability. I mentioned earlier when you have atwo-unit ohana, if it's
joined together, you can come in and do a CPR. But if you separate it and you put a piece of
land in between, you can't do it under this proposed ordinance.
Also, in the condo map, one of the problems that you have, and I can see some of the fnestrations
of the Planning Department, it's because when you have a piece of land, you can map out and do
what you can on what is permitted on that piece of land. Then you draw lines, and you separate
those pieces, and you give different ownerships to different people; and that's what the
condominium law is. That's what it, allows the people to do it, which a subdivision you can't do
it.
So what, if your policy is to allow a piece of land to be developed and then separated' up into
ownership, fine, that's the CPR. But if other hand your policy is that we're not going to allow
people to build what they can build on a piece of land and then cut it up, well, then adopt this
ordinance. Of course you're going to nm into the question of whether the pre-emption doctrine
will apply. So that's kind of what you have to consider.
The other thing that I think I, in passing, I should make an observation is when you have a CPR
as contrasted to a subdivision, what you have is a tenants in common ownership of all the land,
and then you have different parts of the land being given to different people to use and own,
okay. That's what it amounts to. But the way this thing is structured, because of the minimum
land area, the minimum structure and everything, now you're going to impose all the subdivision
right in this one big piece of land. Which, at one time you could do what you, you can provide to
do under the Building Code and the zoning ordinance And now you're going to say, no, you
can't do it that way. So if that is the policy you want to adopt, fine, adopt this ordinance; but if
you don't want to do that, then you shouldn't adopt this ordinance. So you have, you know,
several areas that you have to consider in what is the final policy that you want to draft? And my
functional role today is to kind of highlight what I saw as some of the problems that you're going
to be faced with and, of course, subsequent, you know, legal challenges if someone is so
6
unhappy and they say, well, I am going to challenge this, you know, particular ordinance. So I'll
be ready to answer any questions.
GIFFIN: Commissioners, any questions of the testifier? Mr. Togashi.
TOGASHI: Thank you, Madam Chair. I do have a question with regard to Mrs. Yee's
letter, January 31St letter, to Planning Director Yuen. And in your discussion today, you spoke
quite a bit about this pre-emptive doctrine. And in this letter from Mrs. Yee, and she is, her title
is Senior Condo Specialist. Is she an
SAKAI: Yes.
TOGASHI: Attorney by trade?
SAKAI: She's an attorney.
TOGASHI: And yet in the course of her discussion, nowhere does she speak of this
pre-emptive doctrine. And she essentially is playing out language which the Real Estate
Commission would find agreeable with, for Planning Director Yuen. But what I found very
unusual is that she doesn't speak of this pre-emptive, unless maybe it's kind of like you have to
read between the lines to
SAKAI: No, you, you are probably correct. She doesn't come out and say about the
pre-emptive doctrine. But, well, Professor Callies mentioned about the pre-emptive doctrine.
TOGASHI: Mrs. Yee is an attorney, as well, by trade?
SAKAI: That's correct, yeah. But she does, you know, in her discussion, does say
that the State Statute, as far as the CPR as versus the subdivision, that if there's a conflict, that
the State Statute should prevail.
GIFFIN: Will you repeat what you just said, please?
SAKAI: That if there's a conflict between
GIFFIN: Yes.
SAKAI: The State Statute and the County ordinance.
GIFFIN: Yes.
SAKAI: That the State Statute
GIFFIN: Yes.
SAKAI: Should prevail.
7
_
GIFFIN: Yeah. Any other questions? Commissioner Springer.
SPRINGER: Thank you for joining with us, Mr. Sakai. I see by your comments and
your prepared remarks that your background is in law.
SAKAI: Yes.
SPRINGER: Do you have any background in agriculture or have you lived in an
agricultural community?
SAKAI: No, I haven't. But I've done a lot of agricultural condominium work on
Kauai. I started the first practice in Punalu'u Department. I've also done work here on the Big
Island. The reason why I developed knowledge is because I have clientele of people who are
interested in developing agricultural land. And as a result, of which, I did a lot of searching, not
only of the local ordinances but also, you know, trying to get information about agricultural
products and agricultural activities. And I did some consulting work, also. And
SPRINGER: Tl7anlc you.
GIFFIN: If I understood your comments correctly, Mr. Sakai, you seem to think
that the biggest problem that we would have would be in the area of presumption, pre-emption?
That's what you see is the biggest problem?
SAKAI: Yeah, pre-emption. Yeah, I think one of the problems would be pre-
emption; and, you know, you may be able to work around the pre-emption problem. But I think,
out of that, that I would say, if you'd like ohana and you want the people to be able to separate
the units, even if though they're separated by land instead of being joined together, then you
should modify whatever that's provided in here.
Also, if you have a piece of land and the land is developed and if you like what you're
preventing right now under your Building Code and zoning, then you should continue that. If,
on the other hand, you want to go ahead and stop all of that and say they have to, you know, stop
having the setback requirement, then you cannot take this approach. On the other hand, maybe
you can take another approach, and that is put the cap under the Rule 13 of your, you know, farm
dwelling and limit the number. In other words, don't keep on allowing them to keep on adding.
So that's another way of cutting it off, yeah.
And then I think the different counties have used different approaches. Kauai County has a limit.
I think Maui they have a dollar amount or something, you know. And that, I don't know, in
Hawaii, I heard that they were using receipts or something for indicating whether they were
doing agricultural work, you know, to justify that.
GIFFIN: Commissioners, any other questions? Commissioner Kubota.
8
KUBOTA: Mr. Sakai, thank you for waiting patiently for us. I guess what I need to
hear from you is my suspicion that if we abide by the amendments that are being proposed, it
would spell almost a death knoll to room-and-pop kind of subdivisions. Where I have a huge lot,
I want to divide it into two sections to give to my two sons, that would almost, it doesn't prohibit
it but it would be
SAKAI: Surely difficult.
KUBOTA: Unreasonable for them to, for me to go through the requirements that are
presently being required?
SAKAI: Well, what you would face would be the dollar amount that, you know,
you would have to meet the subdivision infrastructure requirements, you know, that means your
roads, your water, your electricity, all these things that, you know, those are the things that you
have to consider. If you have the smaller lots and the smaller people, to what extent, you know,
the infrastructure requirements are there And right now, you know, people are .going ahead
and doing these things, you know, because they can get their building permit; then once you get
the building permit then they cut it up.
GIFFIN: Any other questions? Mr. Togashi.
TOGASHI: May I ask about, in your testimony here, you talk about the Codification
Committee met in March and discussed the second draft that Planning Director Yuen had put
together. What was the opinion of the, committee's opinion of the second draft?
SAKAI: Actually, the committee did, well, the opinion was listed because I was
kind of surprised that Professor Callies showed up because he didn't show up at the previous
meeting. But he showed up and he started talking about the pre-emption doctrine. So that's why
the whole discussion Everybody had received, on the committee, had received a copy of the
opinion of Cynthia Yee and then the changes that Chris Yuen had prepared so And I think
Chris Yuen pretty much followed some of the things that
TOGASHI: I think so. Because I looked at Planning Director Yuen's, his second draft,
and it pretty much implements all of the suggested language that Cynthia Yee had asked the
Planning Director
SAKAI: I think you're entirely correct.
TOGASHI: Except for a few, like units versus apartments; but other than that, I mean,
she
S~,I{p,I; Yeah, I think you're entirely correct. I don't, you know, disagree with
your observation, I think you're correct. In fact, I was kind of surprised that Cynthia, after
looking at the first letter and then making all those suggestions, you know, well, it depends on
the style of the attorney. And I think I was kind of surprised that she didn't come out, and I
think, more forceful and say, but she's being a diplomat, too.
9
GIFFIN: Any other questions of Mr. Sakai? Hearing none, Mr. Sakai, thank you
very much.
SAKAI: Thank you.
GIFFIN: Commissioners, I know I made it sound as if this was going to be my only
indulgence, but we do have Mr. Tyler, who has also asked to be heard out of sequence because
he needs to leave as well. And I did agree that we would hear him.
TYLER: Thank you, Madam Chair.
GIFFIN: I do need to swear you in. Thank you for raising your right hand. Do you
swear or affirm to tell the truth on this matter now before the Hawaii County Planning
Commission?
TYLER: I do.
GIFFIN: Thank you. i lease state your name and your residence address.
TYLER: Good afternoon, Madam Chair and members of the Planning Commission.
My name is Curtis Tyler. I am a resident of
GIFFIN: Please use the microphone.
TYLER: I'm Sony. Good afternoon, Madam Chair and Members of the Planning
Commission. My name is Curtis Tyler. I am the elected Council Member for District 8 of the
Hawaii County Council. I come here this afternoon in that capacity as well as in my personal
capacity, and I'm going to speak very briefly on two items.
I appreciate the indulgence and the accommodation by the Chair. My god-daughter is getting
married here in a very short period of tune and I need to be over there. I'll be persona non grata,
and I appreciate the indulgence of the members of the public who are here.
First, I want to speak on Agenda Item No. 10, which is the proposed ordinance with respect to
the Condominium Property Regimes; and I especially am grateful for the previous speaker
spending his time and resources to come here to share his thoughts with you. I'm especially
grateful that he shared them in Yny presence so that I have an opportunity to think about them
when this matter comes before the Council.
I would like to give you the background with respect to this issue of Condominium Property
Regimes. Even before I was elected as the Council Member in 1996, I've been working on this
issue of double, or triple, or multiple density when only one dwelling might be allowed. Because
it was creating significant infrastructural deficits here in the County, and especially in West
Hawaii, with which I'm most familiar, as you know.
10
Subsequently, subsequent to my election, I immediately went and talked with the Corporation
Counsel, the former Planning Director and members of the Legislative Auditor's staff; and it was
decided that probably the best way to approach this was to deal with the legislative action at the
State level. And, so, we began a process or continued the process, and others had also begun to
address this seeming pre-einption of the Hawaii County authority. And I want to use the pre-
emption in the reverse way that the previous speaker used it.
I don't think that anybody in the Hawaii County Council has any authority or any desire to pre-
empt State law. Quite to the contrary, we are obligated by our oath of office to carry out the,
support and defend the Constitution, support and defend, you know, these kinds of statutes and
ordinances. And it's very clear that the State Legislature has given the power to the counties to
regulate land use matters and, for the health and safety of the inhabitants, the residents. And I
think you have this background report that I'm talking about.
And our inability, during my first two terms, to address the issue of double, triple and greater
density actually created some very significant problems. I'm sure most of you are aware of the
kinds of things or litigations, the determination with respect to the 205, the use of agricultural
lands. And anybody who drives here for any period of time knows that we have an incredible
infrastructure deficit here which is, clearly disrupts the order and security of the County and its
inhabitants. And we must, in all cases, take whatever efforts we can, as elected officials, as
appointed officials, by those in the decision-making process, to avoid this kind of disruptions. It
seems to me that the information that we received, your background report as well as your
recommendation, is replete with this kind of language.
And I look forward to your taking the Planning Director up on his favorable recommendation.
And I would say to you that if you have any bones to pick with your Director as to why this
matter came forward, you may point the finger directly to me. Because one of the first things
that I said to Mr. Yuen at his nomination and thereafter was the previous Administration didn't
deal with this, and the problem is this, and we need to address this post haste. And, fortunately,
fortunately for all of us, the State Legislature did finally act and you have that information. In
the July 2000, the Governor signed this into law and said that the County zoning regulations,
land use regulations, shall prevail and shall take precedence, and shall have to apply in the case
of CPR's, if anything else. And not to do so, it seems to me, would further exacerbate the
problem.
So I appreciate your favorable consideration. I know there are some more specific and detailed
issues that Mr. Sakai and others have brought up. But I don't think this is an issue for any
Council Member, or the Planning Director, or the Planning Commission, or a few people against
the Real Estate Commission, or a few attorneys, or likewise. We're here to protect the public's
interest and I mean it as sincerely as I can possibly say to you. Thank you.
And I will just briefly speak on, ladies and gentlemen, on No. 9
GIFFIN: Can you hang on just a minute. I'm going to see if the Commissioners
have any questions of you regarding Agenda Item No. 10.
11
TYLER: Thank you, Madam Chair.
GIFFIN: Mr. Togashi.
TOGASHI: Thank you, Madam Chair. There have been some suggestions by the
Board of Realtors that the CPR problem should be attacked from the standpoint of re-examining
the Zoning Code. And Mr. Sakai alluded to that today when he mentioned that Kauai as well as
Maui have attacked that problem from that standpoint rather than doing it the way that the
Planning Director has recommended. And, I guess, what are your thoughts on that? And why
did, you know, in your discussion, in your preliminary discussions to tackle this problem that
you approached it from this standpoint, rather than from what the Board of Realtors are saying
that perhaps you should look at the, you know, ordinances regarding farm dwellings, ohana
dwellings? And I'd just like your thoughts on that.
TYLER: Thank you very much, Commissioner Togashi. I appreciate that question.
When Director Yuen and I spoke, I did not give him directions as to how to approach this. What
I said to him was, "We got a big problem, and it has festered, and it's getting worse, and I need
your help; as a legislator, I need your help. You're not only an officer of the court, you're now
the Planning Director, Chief Planning Officer of this County, and I need your advice. And,
clearly, the Charter provides hiin to provide that kind of advice.
Mr. Yuen has used his best resources and information and experience
KATO: Your microphone.
TYLER: Oh, did I turn it off?
KATO: Yes. Thanks.
TYLER: Mr. Yuen, Director Yuen has used, in my estimation, you know, his best
resources to present to you what he feels is probably one of the simpler, more straight-forward
ways to deal with this. And I would agree, Commissioner Togashi, that our Zoning Code, which
we all recall went through a series of court challenges, etcetera, etcetera, there's always room for
improvement in anything we do. As my colleague, Council Member Leningrad Elarionoff, says,
these are living documents and they're subject to review, and thank goodness, we-have, the
people have given the nine of us the opportunity, and some of you, where you have decision-
making, to amend these things as we see fit. And I just think that it is Because of the State
land use laws now specifically addressing the issue of CPRs as it relates to County land use
planning, we have to do something. And I commend Director Yuen for taking the initiative.
He's the first one, despite my, almost getting on hands and knees with previous members of the
administration, previous administration, excuse me.
And I think that, you lrnow, from my, we have many, many kinds of issues that are potentially
significant as the kinds of things that CPR does, but we can't address them all at one time. And
I'm thinking, particularly, as you go down to Kailua and you see where the height of the land can
increase by 50 feet, just with a building permit. Which, and if the, you know, if the building
12
height is 45 feet, you know, essentially from a Coastal Zone Management Program, a 95-foot
building. So, that's just one example.
And I think that the issue of whether or not to do this is in the Subdivision or Zoning Code is,
obviously, one that the Council will make; and at that time we'll look forward to any testimony
pro or con.
But I just wanted to give you my background and my thoughts as to how we came to here.
GIFFIN: Any other questions of the Councilman regarding Agenda Item No. 10?
None.
At this time, 4:05 p.m., the Commission took up the applications of Jerry King, and subsequently
thereafter the applications of Daniel P. Ibbetson and Jerry King, respectively.
At 7:25 p.m., the Commission again tools up the CPR Matter.
GIFFIN: Commissioners, we are on Agenda Item No. 10. This agenda item is
initiated by the Planning Director. It's a continued hearing on the proposed ordinance (draft 2),
including any further recommended amendments, to amend Chapter 23 (Subdivision Code) of
the Hawaii County Code, as amended, relating to Condominium Property Regime (CPR). The
purpose of the proposed ordinance is to ensure that when land is divided using a condominium
property regime, the individual units created are adequately served by roads and other
infrastructure, and that drainage and flooding issues are properly addressed. It also clarifies the
applicability of zoning regulations to condominium developments. Alice.
KAWAHA: Thank you, Chairman Giffin. At the last meeting, March 22nd in Hilo, the
Commission decided to continue this item till today, noting that the 60 days for Commission to
make a recommendation to the Council would be probably around April 15th, and that's before
our next Commission meeting.
Also, I did distribute to the Commission a listing of all of the testimony that came in and with a
short comment of each testimony. Also distributed to you are recent letters that we received
yesterday; and, today, a letter from Cynthia Yee dated April 3rd stating that she or a
representative is not able to speak at today's hearing.
We also have a letter dated April 5`~' from Thomas Yeh; also, these are all today's date, yeah. A
letter from Hiroshi Sakai. That was also distributed, and he testified.
Dan and Ann Roudebush, Linda Gross, Marian Wilkins of the League of Women Voters of
Hawaii County, and those were distributed to you. Are there any questions?
GIFFIN: Yes. Alice, you were going to speak of the format that we were going to
follow tonight?
13
KAWAHA: Yes. Also, at the last meeting the Commission requested that there be
some kind of a panel to discuss the pros and cons of the proposed ordinance. We have Mike
Matsukawa here to speak as a real estate attorney; and I believe our Planning Director would also
be speaking, he was on the panel. According to the last meeting, it was Cynthia Yee, a real
estate attorney, and the Planning Director.
GIFFIN: And, so, tonight we have the Planning Director and Mike Matsukawa.
Okay. Perhaps it might be best, I did have a request from Mr. Tom Yeh who thought that it
might be helpful and I hope he was, Mr. Yeh, to kind of set the pace regarding just some opening
comments. And then what I would like to do is go ahead into the discussion with
Mr. Matsukawa and Mr. Yuen at the table and, you, as well, I'm sorry, I can't remember your
name.
PUBLIC: Is the public going to have to wait till after this is over?
GIFFIN: No, absolutely not. I think to have you to wait any longer would be really
inhumane. But I am going to ask Mr. Yeh to please come forward; and you've already been
sworn in so just please come forward and make brief comments.
YEH: Yes, thank you. Basically, as Mike's comments prefaced, you know, the
firm that I practice with, and I think Chris knows this, too, we don't submit CPR applications.
That's not, it isn't the practice that we do. We have, and particularly myself, have had some
concerns about how the CPR process has been abused for certain situations. And let's take the
storage shed situation for one. That has been one of the things that I think Chris has pointed out
as a driving force for initiating the proposed amendments. But having looked at the draft 2,
particularly, I think it still requires the Commission to closely analyze how that affects other
kinds of land use situations at the County. And the Zoning Code, for instance, has encouraged
and permitted And I'll take the three areas, and I talked to Chris just very briefly about this,
but under one hand, is the ohana dwelling situation. You can have a piece of property, say, it's
residential, you can add other dwelling on it; let's take a 10,000 square foot lot, have two
dwellings on that particular piece of property. The County, through the Zoning Code, the
Council has said this is an acceptable form of land use, an acceptable form of density and we will
not require certain infrastructure requirements in order for you to do that. And the policy from
the County's standpoint has been we will do that. Because we recognize that families and in
various situations because of the cost of housing, because of the cost of property, we're going to
allow people to do this.
Another situation; in the farm dwelling context, you know, you have an agricultural piece of
property, you have a dwelling, both, if you have another dwelling, you all have to be tied to the
agricultural use of the property. That's the trigger for doing this.
The third one is in the RS zone. If you have an acre lot, for instance, and you have four, I mean,
it's RS-10, you can theoretically put up four dwelling units on the property without getting a
subdivision.
14
So in all these contexts, the County's policy, stated policy, has been you can have this density,
you do not need the kind of infrastructure that the Subdivision Code normally requires, and the
reasons for that are varied. They allow individual ownership of property, they allow mortgages
to be taken out, they allow families to be able to provide housing for each other. And so those
have been the policies that have developed for the last several decades. They deal with density,
they deal with infrastructure.
Now, given that policy, how is this proposed CPR ordinance going to work? At least as it is
written now, if you take a look at the CPR ordinances as written now, there is an exception for
Planned Unit Developments and Cluster Plan Developments which have different Code
requirements for infrastructure. But taking those situations, we have family, you have two-three
homes on the property for estate planning purposes, for conveyance purposes, for getting
funding, mortgage purposes. The way the ordinance, proposed ordinance, reads now is you'd
have to meet the subdivision requirements for doing that.
What I need to do is echo the Real Estate Commission's previous comments, which is, the CPR
statute is not a land use statute, it's an ownership statute. And I think what's happening here is
we're confusing the two concepts. Because if the policy of the County is you can have this
density and you can have these dwellings without having this infrastructure, which is a land use
policy, what difference does it make from a density and infrastructure standpoint if once having
allowed that density, you tell people you can own this apartment and somebody else can own this
apartment? Because that decision has been made to allow that density to occur.
So I think that's the basic issue. And in our review of the, in our review of the issues, they're
basically saying, the County, if you're going to take a look at this whole policy and picture,
you've got to go look at some of these other considerations that the Council has said we want to
further and encourage these things to occur. That's basically where
GIFFIN: Thank you, Mr. Yeh.
YEH: Yeah, okay. Thank you.
GIFFIN: I'm going to ask the other members of the public who signed up to testify
to please come forward if you are still here and still wanting to testify. Joel LaPinta, Marian
Wilkins, Joanne Scribner, Dan Roudebush, Linda Gross and John Scribner. Will you please
come forward and I don't think there's anyone here that I swore in. You would think I would
know it by heart. 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?
TESTIFIERS: I do.
GIFFIN: Thank you very much. Starting with you, sir, will you please state your
name and resident address and begin your testimony.
ROUDEBUSH: My name is Dan Roudebush. I'm at 75-633 Halewili Place, Kailua-Kona.
I've given you some written testimony, I'll skip over that a little bit. I would like to address
15
some comments that were made in an earlier testimony and the witness testifying from Honolulu.
I think it was Mr. Sakai, was it?
GIFFIN: Yes.
ROUDEBUSH: I'd like to point out some deficiencies. He's stating some subjects that are
not related to the issue. For example, CPR provides common land use whereas a subdivision
does not. You can, in a subdivision you have ownership and also a common land. I'm, it's in
the mainland. There are some other parts of his speech which I don't want to take up my time
addressing. I'll try to send you a letter.
But in essence, the last time I did not get a chance to emphasize the supply side of low- and
medium-cost properties, as one we failed to emphasize; and I think that's one of the reasons that
we have CPR problems here with bad development. If you are going to address smart
development in the long run And I've given a video to Hannah Springer to look at, maybe
she'll share it all with you, which addresses some of these issues of higher density, pedestrian
oriented, getting out of World War II automobile situations. It also involves transfer
development rights from Ag land owners to developers that might want to do these high density
deals.
This is going to be a long process. I have not seen the County Planning Commission or the
Director himself start down this road other than tinkering with the existing code. It's going to be
along process. But I want to compliment Mr. Yuen for taking the first step in stopping the
current excesses; and I think this is what has to be done. You first stop building where you do
not have adequate infrastructure to support the density, then you will go and attack long term, the
transfer of the General Plan and the Zoning Code and everything to incorporate so-called smart
new planning which in effect is 15`x' century cities. Or if you want to take a case in the United
States, maybe you could visit Catalina Island. Thank you.
GIFFIN: You're very welcome. Ma'am?
MRS. J. SCRIBNER: Hello?
GIFFIN: Yes, you're on.
MRS. J. SCRIBNER: Am I on?
ROUDEBUSH I switched you on.
MRS. J. SCRIBNER: Okay. I think, I think I put it back. Aloha.
GIFFIN: Your name and resident address.
MRS. J. SCRIBER: My name is Joanne Scribner. Is it on? Aloha? No, it's off.
ROUDEBUSH: Now it's off.
16
MRS. J. SCRIBER: Aloha. Okay. My name is Joanne Scribner. I live at 75-345 Melelina
Place, Kailua-Kona 96075. And I was present the last two meetings on this proposed
amendment to the CPR ruling. And I did feel that the most important benefit to amending this
existing CPR has been sort of forgotten in all of the discussions between the real estate people,
the lawyers, and the people that come to talk about it. And what is most important is the
infrastructure. I feel that that would be the most important correction that would occur if you
were to pass this ordinance. Not taking care of the infrastructure is the immediate and future
problem that will occur for all of us that live here on the island.
Now, to the address the infrastructure and the building process, which includes what this is doing
to our roads, schools, traffic, garbage control, water, electricity and last but not least the anxiety,
stress and feelings of each resident and visitors being in overcrowded, overworked system on all
counts. It's very dangerous to the survival of each and every person on this island.
I ask, Madam Chair and the Commissioners, to please consider these thoughts when you make
your vote. Growth and more tourist trade is coming, and that we cannot and do not want to stop.
It is the life blood of this island. However, it needs to be done with total understanding of how
much the existing infrastructure can withstand. Each party that adds more stress on this existing
infrastructure needs to be made legally responsible for contributing to the needed changes in the
existing infrastructure to accommodate their building and adding to the population of this
beautiful island.
I feel that this proposed ordinance by the Planning Director, Chris Yuen, does exactly this. I
urge you to vote for this ordinance. Thank you for the opportunity to address you and be a part
of this process. Mahalo.
GIFFIN: Thank you very much. Sir?
JOHN SCRIBNER: Hi. I'm John Scribner. I'm the, that's the better half. I live at 75-345
Melelina Place, Kailua-Kona, 96740. The first gentleman that spoke, in essence, not to take up
your time, is exactly what I wanted to say, was that this is going to be a long process. But I do
think that we need to stop the burdening. I think we need to stop exacerbating the problem of the
density that services the infrastructure that we're short of right now. And we need to delay, I
think, any more of this building until we can sort through how best to do a better job of planning
and taking all of this into consideration.
I think once we can do that, then we can start working on the zoning and the ordinances. I
believe it is another process that needs to go through to take care all of the situations that need to
be handled in the process of doing ohana, or agriculture, or however we deem to do that as part
of the planning process. So I urge you to vote for the Director's proposal for this. Thank you.
GIFFIN: Thank you very much. Ma'am?
WILKINS: This is on?
17
GIFFIN: Yes.
WILKINS: My name is Marian Wilkins. I live at 73-1410A Kaloko Drive, Kailua-
Kona, 96740. And I'm testifying in behalf of the League of Women Voters of Hawaii County.
The League of Women Voters has always supported good planning and we support the
administration in its efforts to achieve better planning for Hawaii County. For too long our
island has allowed growth for growth's sake without regard for the future. We cannot continue
in this manner withoLit doing major damage to our natural environment. We cannot continue
developing without a thought to adequate infrastructure which is already so lacking in Kona and
the Big Island in general.
In my testimony, I must say, I have not addressed ohana. This testimony is dealing with, almost
entirely, agricultural land because this, I feel, is very important. And our League has talked
about this and studied this matter with the General Plan. And so if you don't hear ohana, that's
why.
We support the controls on issuing building permits, and I put, on agricultural land, for more,
that wants more than one house And if a true farm dwelling is needed for a worker or
caretaker on Ag land, then we should follow the lead of other counties and permit a small, such
as an 800-900 foot square building, square foot building. This was done for even ohanas on
some of the counties now, to keep huge mansions from being built in the guise of farm
dwellings, which is what the, how this is going on on this island.
If the land is CPRd, agricultural lands are CPRd, then there should not be a permit for a dwelling
cause this is where we're having our problem right now. Because people are building two very
large homes and then CPRing them, or CPRing them and then building their homes.
It is felt that our agricultural or conservation land is, I'm sorry, if it is felt that our agricultural or
conservation land is improperly designated or zoned, then we need to reexamine this. Should
lots of one or two acres really be designated as agricultural lots? When land is properly
designated as agricultural or has other environmental value because of forests, watersheds, or
other natural qualities, we should take great care in allowing development, I thinl: development
of any kind. Any development that is allowed should be carefully controlled. The county or
state, for that matter, should not have policies that undermine the planning process, which the
policy right now is allowing the CPRs, which the State has now given the County authority to
control what goes on those CPRs, is my understanding.
We all know that there are many square miles of land here that might have marginal use for
agriculture or conservation. Perhaps the state and county will have to look more closely at some
of these areas to see if their present designation or zoning is still desirable. Well-designed "rural"
areas might be a way to let people find affordable land and still have water and adequate sewage
disposal without creating the kind of substandard rural areas we now have in some areas. And
that this, to me, is a very difficult problem. So I agree with everybody else that it needs to be
worked out because we need more affordable land. And right now we're using some of our most
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precious land and the watersheds, such as Kaloko and mauka areas, as housing under the guise of
the CPR, allowing all the land to be broken in small pieces with houses and the forest is going.
So, anyway, we all know that there, as I said, one of the things that other people have talked
about are zoning laws and subdivision laws. In some cases it would be good to reexamine
because in a rural area, my question here is, "Do people want street lights?" Now, you know,
you have to develop with all these things. But the problem is to keep it from being substandard
but still desirable.
In the meantime, the League would like to see planning that is carried out in an orderly and well-
thought-out manner. We think that it is time to end the "farm dwelling"-CPR charade. We hope
that the Commissioners will have time to look at what is happening in such areas as Kaloko
Mauka and other mauka areas in Kona.
GIFFIN: Ms. Wilkins, you've had five minutes and so
WILKINS: Thank you.
GIFFIN: Thank you.
WILKINS: I know you Commissioners are being asked to go look at everything.
GIFFIN: But thank you for your patience and I am trying to give each of you five
minutes.
WILKINS: Thank you.
GIFFIN: Mr. La Pinta.
LA PINTA: My name is Joel La Pinta and I live at 2696 Ainaola Drive in Hilo,
Hawaii. I'm a broker who brokers development land. I've been a developer. I developed a 28-
lot residential subdivision in Pepeekeo and spent from, in time from the zoning change through
dedicating the streets at the very end, and spent $1,000 a lineal foot in building streets and
putting in underground utilities to provide homesites. And in that development we had a
covenant that prohibited the ohana dwelling. So, these were 7,500 square foot lots.
And as part of the Zoning Ordinance and Subdivision approval, there was a prohibition for the
second unit. I will not, just to follow with Tom Yeh's comments, the County Zoning Code has a
complete chapter for the ohana dwelling. In only Ag districts in the chapter there are provisions
for the process of obtaining additional farm dwelling agreements. And this has been a
observation of us small time developers for over a decade, over 15 years If you buy, those
lands in this County that were zoned the 60's, these zonings did not have conditions like the
modern zonings, like the zoning that the subdivision I had. In those zonings, there are no
conditions that you do your construction by a certain time period. There are no conditions that
are set regarding whether you can have this ohana dwelling. In those zonings, a person could
19
take a piece of land, there are pieces of land in Hilo that are over an acre in size that are zoned
RS-10; and you can basically pull from it to the density.
I've brokered anumber ofmulti-family sites. Now it seemed kind of strange to me that in the
multi-family sites, when a developer is developing a condominium or apartment building, they
have go through a process which is also in our County Code which plan approval. They have to
show their site, the topography, the engineering that will be done, the drainage, how to mitigate
drainage problems, where the parking lot will be, where the structures will be. Public Works
reviews these plans. It seems strange that we seek the, we wouldn't, we would not have a
development of a condominium using single family homes, for example, or building multiple
single-family homes on residential lands, also be subject to plan approval. That is, though, you
know, these are the ways the laws are now. We have laws that allow the ohana dwelling, the
additional farm dwelling, and for people to actually go and build multiple houses within the
residential zoning. As a, some of the other comments that other people are talking, they see,
that's the problem. That's the problem they see. Condominimization is actually a method of
ownership.
And as Cynthia Yee's letter points out, and I want to make the comment, she does talk on the
issue of State pre-emption. It's just that she doesn't use that word. And if you look at her letter,
page 4 of 11, she says, she quotes the State law. And in there she says, "While we recognize the
County's concern relating to adequate roads and other infrastructure, we understand that the
counties has certain powers, which are subject to State general laws. Specifically, we understand
that section 46-1.5 (13), HRS, gives counties," the powers to enact, this is the power to have
zoning laws, "the powers to enact ordinances deemed necessary to protect health, life, and
property, and to preserve the order and security of the county and its inhabitants on any subject
matter not inconsistent with, or tending to defeat, the intent of any state statute...."
I want to make an example. If someone has a 10,000 square foot lot and they build one house,
single family home, they obtain a permit which is allowed, which is permissible under the
Subdivision Control Code for a second house, they could live in one and have their children in
one, they could live in one and rent one. And, they could also record a condominium map.
GIFFIN: Mr. La Pinta
LA PINTA: I'm sorry.
GIFFIN: Excuse me. Your time is up. If you would like to use
LA PINTA: Can Isum
GIFFIN: Yes, one sentence.
LA PINTA: Yes, the summation is I think we need to get a hand, we need to regulate
some problems that are arising from the situation; but this ordinance is not the ordinance, or this
proposed ordinance is not the way to go. Thank you.
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GIFFIN: Thank you. Chris, I need to swear you in. 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?
BRILHANTE: Yes, I do.
GIFFIN: Please state your name and residence address.
BRILHANTE: Chris Brilhante. My address is 60 Hoohaloha Street in Hilo, Hawaii. You
guys have heard me testify over and over, and I don't know that I'd have go through the
testimony again. But I think if you talk to four well-informed reasonable people, they're going
to give you four different ways you can try and solve the problems that we're having. And you
kind of go around and around; and it's a difficult issue to really, say, pick the path. There's
really no clear path, you know, that we can go down. I think there are several areas that I think
though I can kind of clarify.
One is on Tom Yeh's testimony and which somewhat relates to Curtis Tyler's testimony earlier
today. Curtis Tyler, you know, stated that there are a lot of abuses that have gone on. You see
multi-homes on properties and no adequate infrastructure. Yes, true, you don't want to see that.
But if this ordinance gets passed that has no effect on that happening. Tomorrow you can have
all those same homes on all of those properties because they get those approvals through the,
they get those approvals through either ohana, or they get it through the farm dwelling approval
process. It has nothing to do with the CPR process. Now Chris Yuen will come back and say
that the incentive is there if you have a CPR; and so that may be true, yes. But the problem is
still not solved. Those homes will still be allowed on those properties. And so that's not
addressed here.
Secondly, this proposal basically as written will not allow, I mean, as written will have the effect
of not allowing CPRs, will have the effect that knowing we'll do a CPR, because they have to
meet all the subdivision requirements, all of the subdivision Code requirements. They have to
pay whatever rollback taxes are needed, they have to pay the water commitment fees. And so
like I've said it several times in the past, no one is going to do a CPR if they have to meet all the
subdivision requirements because they would just go ahead and do a subdivision. With that said,
the decision that you guys would have to make is do you want CPRs to be eliminated in their
entirety? Are there any situations where CPRs could have a positive good on our community?
And if you say in every case, except for the two that Tom Yeh had brought up today, you say in
every case there's no positive good that a CPR could have in our community, then go ahead with
this ordinance. But if you say that there are some cases that we think CPRs can have a positive
benefit in our community, then maybe we have to relook at this ordinance and see if it can
modified or if another one can be brought up. I said that we were in the process the last time I
spoke The last time I spoke with you guys I gave examples of people in the community that
were hurt because they didn't have the opportunity to do a CPR and people that benefited
because they did go ahead and do a CPR. And I don't feel that I should go bore you with going
over those examples again.
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Chris, you know, did talk to the Board of Realtors after the last meeting and he asked us to get
together with him. And so we were very encouraged because the dialogue has started back up
with him. We have met with him since our last meeting. He has indicated that he would be
willing to look at possible exceptions to the ordinance, you know, that is before you.
GIFFIN: Excuse me, your time is up.
BRILHANTE: Olcay.
GIFFIN: But you can summarize in a sentence.
BRILHANTE: All I want to say is if Chris is willing to discuss changing the ordinance
and you guys have a decision to make whether or not you're going to give a positive or negative,
you know, recommendation, Iwould say that we feel that, the Board's position is that the
ordinance currently as written, we'd prefer that you guys would give a negative
recommendation. It's not that we would necessarily ultimately, you know, not have a CPR pass,
but that would give the Council an indication that more work is needed; and so we can go ahead
and
GIFFIN: We might have a compromise, but thank you very much. I guess this is
always the case, the third time is a charm. But everything is so much more succinct, at least for
me, tonight and clearer. I'd like to call on our Corporation Counsel right now.
TORIGOE: Hannah had something
GIFFIN: No? Yes, you may, of course. Hannah, you had a question?
SPRINGER: I don't want to interrupt the flow that you're part engaged in
GIFFIN: Thank you.
SPRINGER: But I do have a question if it's appropriate
GIFFIN: Okay.
SPRINGER: To the testifier when you're pau.
GIFFIN: Okay. Yes. And what I would like is for the Commission and members
of the public to listen to Mr. Torigoe. There may be some sort of compromise.
TORIGOE: Oh. Well, thank you, Madam Chairman. At this point I'd just, I think
what you want me to do is try and give the Commission a little guidance as to how they can
make a recommendation at this point. Just to help you think about, you know, what you might
do, having heard the testimony, and with the panel that you'll have a chance to speak to.
Basically, your task is to send either a favorable or unfavorable recommendation on that
ordinance to the Council. But I think what you could also do is if you are in general agreement
22
with the aim of the ordinance, which is to end some of the bad CPR abuses that you have been
told about, but you also have some concerns about some of the other situations in which you
think CPR should remain available What you could do is, for instance, send a favorable
recommendation to the Council stating that you are in agreement with the general aim of the
ordinance to end CPR abuses but also recommend that the Council consider amending the
ordinance to provide for CPRs without meeting all subdivision requirements for certain things.
Just tell them, yeah, we kind of like the idea of ending the abuses, but there are certain things
which we would like you to consider amending the ordinance to allow, and what those are, you
know, you can pick and choose. For instance, there has been talk about family CPRs for estate
plarming, for additional farm dwellings, for ohana dwellings, for dwellings on RS zoned lots
which would be in compliance with minimum building site areas. And when you do this you can
also ask the Council to make sure that they put in a transition period to deal with those that may
be caught in the middle.
Another twist on that would be to say, if you wanted to say negatively, you could say, send a
negative recommendation but telling the Council that if certain changes were made, you know,
you would consider it positively. That is if provisions were made for CPRs to be used in certain
situations that you chose to list.
GIFFIN: Commissioners, response to Mr. Torigoe's suggested verbiage?
Mr. Togashi?
TOGASHI: Thank you, Madam Chair. This way of shooting this ordinance up to, is
similar to the attack that we made in shooting up the General Plan Review. And while it does,
it's a tactful way of doing it. I'm, I guess, more inclined to, since we didn't spend as much time
on the General Plan, on this one as we did on the General Plan which took a period of months,
I'm more inclined to vote it either up or down and Because I think they understand, as Chris
Yuen pointed out that, you know, we know that there are going to be changes and made at the
Council level and, 1 don't know, I'd just rather we vote it up or down. Because I think pretty
much what Ivan has said is, I would guess, pretty much the consensus of the panel here. But I
would prefer that, you know, we vote rather than do a stance as a body.
GIFFIN: So do I understand you correctly, Mr. Togashi, that you
TOGASHI; That we vote on it individually.
GIFFIN: Do not want to entertain Mr. Torigoe's suggested verbiage?
TOGASHI: Yeah, I guess so, that's what I'm saying.
GIFFIN: Okay, then, do I hear a motion?
TOGASHI: Yes. I would vote to, I do have, I guess I shouldn't preface my motion.
But I do want to move that we accept the recommendation of the Planning Director. Let me hold
off on that. Are we going to have this panel discussion before we Am I premature to do this
right now?
23
GIFFIN: No, you're not premature. I asked for you to make a motion, only
because
TOGASHI: Oh, so Mr. Matsukawa and the rest of the people are not going to be
participa
GIFFIN: There are really only Mr. Matsukawa and Mr. Yuen here to speak.
TOGASHI: Oh, so it's not going to beheld then?
GIFFIN: No, that isn't to say that. I'm just saying that I thought that what
Mr. Torigoe was offering was a wonderful compromise. But that's just my opinion, and you
happen to differ.
TOGASHI; Well, and to me it's a real nice thing to do. But
GIFFIN: I understand that you don't agree. So that's why I asked for a motion.
Because what I wanted to do is see if your motion will pass.
TOGASHI: Okay, passes, right.
GIFFIN: And then go from there.
TOGASHI: Olcay, all right. So I make a motion to accept the Director's, the
recommendation of the Planning Director based upon his findings.
GIFFIN: Do I hear a second?
SPRINGER Second.
GIFFIN: It has been moved by Commissioner Togashi and seconded by
Commissioner Springer that the Planning Director's initiated action recommendation be
approved. Discussion?
SPRINGER: Madam Chair?
GIFFIN: Commissioner Springer.
SPRINGER: I agree with the intent as evidenced by my seconding of the motion. But I
would also like the County Council to consider specific items in their consideration of this
matter, including, and particularly a transition period for people who are caught in, constitute a
gap group, if you will.
GIFFIN: So are you proposing an amendment? Can the seconder propose an
amendment?
24
.
TORIGOE: She can throw it out.
GIFFIN: So what you're doing is proposing an amendment to Mr. Togashi's
motion because Mr. Togashi was against anything else embellishing his
TOGASHI: Frankly, you know, I was going to preface my motion. But I really didn't
want to do it because I've been accused of just kind of just making things more clouded. So
rather than preface my motion, frankly and quite honestly, that was what I was thinking about,
was maybe changing the, rather than have a retro date maybe moving the date even forward. But
I really want to preface amotion, I
GIFFIN: Okay. I just was asking Mr. Torigoe what is the difference between what
you were going to say, and what Commissioner Springer said, and what Mr. Torigoe proposed.
TOGASHI: I guess the difference is I'd just like to, I'd just like each of the
Commissioners to make a decision based upon what they've heard and vote rather than, I guess,
vote as a unified body is what I'm saying, yeah, which to me is real nice. I mean I don't have a
problem with that. But I'd prefer that we just cast individual votes and that would be an
indication of how the counsel feels
GIFFIN: Then as the maker of the motion, do you accept the suggested
amendment?
TOGASHI: Let me see what the amendment is.
SPRINGER: Madam Chair?
TOGASHI: But, you know, I have no say. I mean I'm the maker of the motion and
she is amending my motion.
SPRINGER: Madam Chair?
GIFFIN: Commissioner Springer.
SPRINGER: I understood Commissioner Torigoe to say that
GIFFIN: Commissioner
SPRINGER: I'm sorry, Commissioner Togashi to say that he appreciated Counsel
Torigoe's fines with regard to the compromise, if you will.
TOGASHI: I appreciated it but I don't think that is the tact that we should send this up,
is what I'm saying, yeah. To me, it's, I'd just like as we normally do for each agenda item that
we vote individual
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SPRINGER: Could Mr. Torigoe enumerate those items that he mentioned previously?
GIFFIN: He could if you are suggesting to amend the motion because Mr., the
maker of the motion is not in favor of any amendments.
SPRINGER: So am I prohibited?
TOGASHI: No, that's not what I am saying. What I'm saying is that, you know, she's
free to amend the motion. But I'd just like for each of us to vote on some kind of a motion, rather
than
GIFFIN: If she proposes an amendment, as the maker of the motion
TOGASHI: Right.
GIFFIN: Would you agree?
TOGASHI: Well, sure, Imean Well, let me just hear what the amendment is, yeah.
GIFFIN: It would be similar. Commissioner Springer.
SPRINGER: Does the maker of the motion have to agree to an amendment or does not
the amendment just need to be seconded?
TOGASI-II: I don't think so, unless it's a friendly amendment or whatever, yeah?
But
TORIGOE: Madam Chairman, if I may, I think basically
GIFFIN: Mr. Torigoe.
TORIGOE: Yeah. If there is an agreement between somebody who wants to amend
the motion, and the maker and the seconder, and there is no other objection from the members,
then it is considered amended. If there is any objection from anyone or if the maker or the
seconder does not agree, then there should be a motion to amend.
SPRINGER: Mr. Torigoe, is it then better as the seconder of the motion for me to be
silent on the matter or withdraw my second?
TORIGOE: Well, if you, if Mr. Togashi is saying he simply wants an unadorned up or
down which is what it sounds like he wants, and therefore is not going to agree to your suggested
amendment, then your suggested amendment would be futile at this point.
SPRINGER: I'll withdraw the second.
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GIFFIN: There is a motion on the floor to approve or have a favorable
recommendation for the Planning Director's initiated action to amend Chapter 23, Subdivision
Code, relating to condominium property regime. Is there a second? The motion dies for lack of
a second. Correct, Mr. Torigoe?
TORIGOE: That's correct.
GIFFIN: All right. Now can we please revisit Mr. Torigoe's suggested motion.
Mr. Torigoe.
TORIGOE: And this was just for your consideration. I'm not, you know, saying that
this is what you should do. But the possibility is what you could vote on is to send a favorable
recommendation to the Council stating you are in agreement with the general aim of the
ordinance to end CPR abuses, but also recommend that the Council consider amending the
ordinance to provide for CPRs without meeting all subdivision requirements for certain specific
situations, such as And this is the list that you would make, you can, I mean, I'm just throwing
out some things I've heard: Family CPRs for estate planning, additional farm dwellings, ohana
dwellings, dwellings on RS zoned lots which are in compliance with minimum building site, site,
sizes and also provide for a transition period for the foregoing.
KUBOTA: Madam Chair?
GIFFIN: Commissioner Kubota.
KUBOTA: I would like to move what Mr. Torigoe has just
GIFFIN: Suggested?
KUBOTA: Thank you, suggested.
GIFFIN: Do I hear a second?
SPRINGER: Second.
GIFFIN: It has been moved by Commissioner Kubota and seconded by
Commissioner Springer that Mr. Torigoe's suggested wording be approved. Discussion?
KUBOTA: Madam Chairman?
GIFFIN: Mrs. Kubota.
KUBOTA: I would like to speak to that. Whether we send it up with a positive vote
or a negative vote, I don't think it matters in this case because we are clearly stating that our
concerns are such as those listed there, and those are my primary concerns. For me to sit here
and try to pass on that I know everything about the CPR law and that I understand the total
27
revision impact that the County will have to suffer is total, it would be a sham or a lie. I don't
understand it, okay?
GIFFIN: Thank you.
KUBOTA: From what I have heard thus far and from what I have experienced at our
last meeting, my primary concern is that CPR things should be done away with.
GIFFIN: Thank you very much. Ms., Commissioner
KUBOTA: But, we need to, we need to protect the moms and pops and whatever
GIFFIN: Whatever was stated.
KUBOTA: I know. That's why I'm speaking to it.
GIFFIN: Thank you. Commissioner Springer.
SPRINGER: I just wondered if Mr. Torigoe's most recent comments includes the
transition period.
TORIGOE: Yes.
SPRINGER: Thank you.
GIFFIN: Any other comments or discussion?
GALDONES: Madam Chair?
GIFFIN: Commissioner Galdones.
GALDONES: I'm making certain assumptions but I just want to get it out so that I'm
pretty clear. I'm not so sure of the process. It goes before the Council then the parties who are
interested in testifying, such as what we have before us today, have that opportunity to go before
the Council and the Council can engage in the dialogue that they were engaged in or prepared to
engage in with Director Yuen?
GIFFIN: Yes.
GALDONES: Okay, thank you.
GIFFIN: Any other comments? Alice?
TOGASHI: Hold on.
GIFFIN: I'm sorry. Commissioner Togashi.
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TOGASHI: I just wanted to, clarification. The motion is to accept the language of the
Planning Director, right, as, as written, right, in Draft 2?
GIFFIN: Would you like Mr. Torigoe to repeat it for you?
TOGASHI: Yes, yes.
KUBOTA: Would you listen
TOGASHI; I was listening.
TORIGOE: This is to send a favorable recommendation to the Council regarding the
proposed ordinance, knowing that you are in agreement with the general aim of the ordinance to
end CPR abuses, but also recommending that the Council consider amending the ordinance to
provide for CPRs without meeting all subdivision requirements for the following: Family CPRs
for estate planning, additional farm dwellings, ohana dwellings, dwellings on RS zoned lots in
compliance with minimum building site areas, and also providing for transition periods for the
foregoing.
TOGASHI: So essentially we are, the motion is to, to basically accept the language of
Draft 2, right? It's to accept, but with these provisions, or provisos, I guess, right?
GIFFIN: There are provisos.
TOGASHI: Right. That's what you're saying, right, that the language in Draft 2 is to
be favorably considered?
TORIGOE: Right, right, but with these items that the Council should consider
amending the ordinance to deal with those items. Your duty is basically to make a
recommendation; and that's basically what I'm talking about.
GIFFIN: And that's what I said in my reiteration of the motion. Any other
discussion? Alice?
KAWAHA: Commissioner Kubota?
KUBOTA: Aye.
KAWAHA: Commissioner Springer?
SPRINGER: Yes.
KAWAHA: Commissioner Fujikawa?
FUJIKAWA: Aye.
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.
KAWAHA: Commissioner Galdones?
GALDONES: Aye.
KAWAHA: Commissioner Mina?
MINA: Ayes.
KAWAHA: Commissioner Togashi?
TOGASHI: Aye.
KAWAHA: Chairwoman Giffin?
GIFFIN: Aye.
KAWAHA: Chair, the vote passes with seven ayes.
GIFFIN: Thank you very much. Thank you, Mr. Matsukawa.
MATSUKAWA: Where do I send my bill?
GIFFIN: Write to the County Planning Department, the same place we're going to
send ours. On that note, Commissioners, I am adjourning. It is now almost 8:30. Thank you
very much.
The discussion ended at 8:27 p.m.
Respectfully submitted,
Sharon M. Nomura, Secretary
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