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HomeMy WebLinkAboutCOM 0042.001 2002-2004J. CURTIS TYLER III s Bus: (808) 326-5684 vg,e chair Hoax: (808) 326-5697 District 8 6varlh Kona) `y 4 06YI�Yt iJintntpan a yl IiAWAPI COUNTY COUNCIL � Knnec Council C9ice •77-6399 Nalani Street •.:side 104 0Kadua-Kona •Hawai'i '96730-8980 Via Facsimile: 961-8572 Pages: 23 Dcoember 23, 2002 �' � is / k'J TO: Leningrad Elarionoff, Chair Committee on Public Works d Intergovernmental Relations FROM. J. Cin°tis Tyler III , Vice Chair SUBJECT: �iil 2$0.t San Code Per your 12/3 memo, I am faxing copies of departmenud cc rmspondcnee relating to proposed revisiow to the existing Sign Code: • ,wemo from�V, . Tyler to Mr. Ashida dated Februapy 2, 2001 • 1b emn and attachments from Patricia K O'Toole to Mr. Tyler dated June 27, 2 001 • Email from D ie Kaetsaa in response to Mr. Yj Ier s recju t, for rtmew Oero6er 2, 2001 • Letter, froar Ploming Director Chris Yuen dated October 22, 2001 • Url�t»attnl' r ;*iees8 rreerrcv fr�aar. Lincoln Axhlda to Jay Kimura dated December 7, 2001 • Memo from Staasley ;T'aakeanura, Building Dtvision Chiefdotted Febmary 4, 2002 • Mea.hseage froa s Prosecuting Artmrnq Jay Kimura dated F ebruary 6, 2002 with • Letter froaYa Pcarricia K. O'Toole to Mr_ Tyler darea September A 2002 The urigluals of tho subject communications arc- being forwarded to you by pouch. Thank you for your assistance in this matter. If you have any questions regarding this memo, or if I cm be of further help, please call my office @ 327-3666. Mele Kalilcimaka a me ka. Haubli Makahiki Hou. JCT/mm Anuc eats (S) J(."C/Cortrz/MemD/ElarionoWO2DecD6 (North Kona -- District 8) Comm, No. File • Rif. To. Ref. %ltie 3 TO Med 0071 469SSZE SO:ZT ZOOZ/EZ/ZT J�4V OF a J. CURTIS TYLER III �� y' Bus: (808) 326-5684 bice Chair *' * Fay.: (808) 326-5697 District 8 (North Kona) ': � _:_ -__ �aetylera,interpac. net HAWAII COUNTY COUNCIL Kona Council Office ' 77-6399 Nalani Street 'Suite 104 'Kailua-Kana 'Hawai'i •96740-8980 Via Facsimile: 961-8572 Pages: 23 December 23, 2002 MEMORANDUM: TO: Leningrad Elarionoff, Chair Committee on Public Works and Intergovernmental Relations FROM: J. Curtis Tyler III Vice Chair SUBJECT: Bill 280, Draft 3 — Sign Code Per your 12/3 memo, I am faxing copies of departmental correspondence relating to proposed revisions to the existing Sign Code: • Memo from Mr. Tyler to Mr. Ashida dated February 2, 2001 • Memo and attachments from Patricia K O'Toole to Mr. Tyler dated June 27, 2001 • Email from Dixie Kaetsu in response to Mr. Tyler's request for review October 2, 2001 • Letter from Planning Director Chris Yuen dated October 22, 2001 • Originating request memo from Lincoln Ashida to Jay Kimura dated December 7, 2001 • Memo from Stanley Takemura, Building Division Chief dated February 4, 2002 • Message from Prosecuting Attorney Jay Kimura dated February 6, 2002 with • Letter from Patricia K O'Toole to Mr. Tyler dated September 9, 2002 The originals of the subject communications are being forwarded to you by pouch. Thank you for your assistance in this matter. If you have any questions regarding this memo, or if I can be of further help, please call my office @ 327-3666. Mele Kalikimaka a me ka Hau` oli Makahiki Hou. JCT/mm Attachments (8) JCT/Corres/Memo/Elarionoff/02DecO6 (North Kona — District 8) • SraN� J. CURTIS TYLER, III Council Member District 8 (North Kona) HAWAII COUNTY COUNCIL February 2, 2001 MEMORANDUM: TO: Lincoln Ashida Corporation Counsel FROM: J. Curtis Tyler III Council Member (District SUBJECT: Proposed Revisions to the Sign Code -P0jc 1 -4 -tom( ) _ -)/ Bus: (808) 326-5684 Fax: (808) 326-5697 ctyler@interpac.net During the last three years, the Council Public Works Committee has been reviewing the Sign Code and has considered a number of revisions to that code. Following public hearings, the first draft of these revisions, contained in Bill 280, was introduced by then - Council Member Joe Reynolds. Following introduction of that proposal, I prepared an additional draft which was submitted to the committee for its review. A large number of public comments were submitted in connection with this draft, and the matter was deferred for further revision by me. After many months, I am happy to say that a new draft has been completed. However, before I submit it for administrative review and comment, I would appreciate your review as to form, content and legality. Toward this end and to assist you, I am enclosing a diskette with the proposed draft in Ramsayer format and two charts which summarize the revisions. Since I would like to have a finalized draft ready to introduce in 45-60 days. I will appreciate having your written response at your earliest convenience. Thank you for your help in fulfilling this request. If you have any questions regarding this letter or the draft, please call me. Attachment C:UCINCorrespondence\Metnos\Ashida020101 Kona Council Office: 77-6399 Nalani Street 0 Suite 104 1 Kailua-Kona • Hawai`i 0 96740-8980 KONA COUNCIL Harry Kim M E M B 7.,.-t ., ►, Mayor 2Zim .2 P�21 COUNTY Or HAWAII C�Ounfij of �aivait Lincoln S.T. Ashida Corporation Counsel Gerald Takase Assistant Corporation Counsel THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808) 961-8251 • FAX (808) 961-8622 MEMORANDUM TO: Council Member Curtis Tyler Hawaii County Council FROM: Patricia K. O'Toole Deputy Corporation Counsel DATE: June 27, 2001 RE: Proposed Revisions to Sign Code As requested, we reviewed the draft of revisions to the Sign Code. By way of background, the draft was reviewed with some basic constitutional issues in mind. The Code deals mainly with commercial speech which in general is afforded less protection than other kinds of speech, but, nonetheless, is accorded a measure of constitutional protection. As is often the case, if questions arise, the findings which indicate the need for the regulation and the goals to be accomplished by the regulation are extremely important. The findings here appear comprehensive but we might want to give it some thought and supplement them in some areas of concern. As further general guidance, we can consider the tests set forth in Central Hudson Gas & Electric Corp. vs. Public Services Commission of New York, 447 U.S. 557, 100 S Ct. 2343, 65 L Ed 2d 341 (1980). The case expresses the principle that the constitutional protection available to commercial expression turns on the nature of the expression and of the governmental interest secured by its regulation. A test is set forth in commercial speech issues. First is the expression protected by the First Amendment. Secondly is the asserted government interest substantiated. If the answers are yes, the question is asked whether the regulation directly advances the governmental interest asserted and whether the regulation is more extensive than is necessary to secure that interest. In other words, is there a compelling state interest and is this the least intrusive method of reaching that goal? There is also a Hawaii Supreme Court case which recognizes that commercial speech is protected by the U.S. and Hawaii State constitutions although it is accorded lesser protection than other forms of speech and the protection afforded commercial speech depends upon the nature of the expression and of the governmental interest secured by its regulation. State of Hawaii vs. Bloss, 64 Haw. 148, 637 P.2d 1117 (1981), reconsideration denied 1125/82, as amended 2/8/82. MEMORANDUM Council Member Curtis Tyler June 27, 2001 Page 2 Our specific comments are as follows: The definition of "aerial sign" is that it is a sign located above "the business establishment' and "the business establishment property." This seems to imply that an aerial sign is one that advertises a business and is flown above that particular business from the property on which the business is located, perhaps leaving room for argument that if the sign is flown on property adjacent to the business, it does not fall within the definition. However, since apparently all aerial signs are prohibited, the definition does not need to limit itself to mean only signs somehow connected to the enterprise property. 2. The ordinance prohibits signs which are obscene without providing any definition for the term, thus, making enforcement difficult as well as subjecting enforcement officials to accusations of acting in an arbitrary and capricious manner. This whole area is, of course, difficult to precisely define. I have attached § § 712-1210 and § 712-1211 of the penal code for your information. Perhaps, reference could be made to these definitions. 3. Regarding § 3-9 and singling out "real estate" signs. I do have some concern that this is a regulation of speech based on the content of speech and favors/disfavors certain commercial speech. Your notes indicate that attorneys on Oahu who have voted on this feel it is appropriate. It would be helpful if you could let me know who I could contact about this. The case of Linvale Associates. Inc. vs. Township of Willingboro, 431 U.S. 85 (1977), dealt with an ordinance which fined "for sale" signs on residential property. The town justified the signs as being reasonable regulations of time, place, and manner. The Court considered what alternatives were available. The ordinance was struck down in part because it forbade realty advertising only and was, therefore, directed to the content of the signs and not their size, place, or manner. The Court held that the town could not deny information to citizens which is neither false nor misleading. 4. Re § 3-17(b). This provision requires a notice of transfer to be filed with Department of Public works within 90 days from the effective date of transfer of real property on which the sign is erected. This would be difficult in enforcement. Also, is it meant to apply only to sales of real property or of transfer of any interest, such as leasing or subleasing? 5. Re § 3-36. Are these signs which are now legal without a permit which you wish covered by this grandfathering provision? Also, this section refers to sentencing to a "fee" of $100 per day. "Fine" would appear to be the more appropriate word. 6. § 3-39(b) is somewhat confusing. Is it meant to say that each day the illegal sign is not removed, or the problem not corrected, is a further offense after conviction? 7. § 3-39(c). There should be space between "to" and "fines" in the second line. MEMORANDUM Council Member Curtis Tyler June 27, 2001 Page 3 8. The administrative enforcement section is authorized by statute. The statute sets forth a further step which requires a review of the daily fines in the situation where there has been an appeal and fees have accumulated during that time period. I have attached § 46- 1.5 for your information. My suggestion is to add the highlighted part. 9. § 3-43(h) requires the director of public works to file liens with the Bureau of Conveyances on September 1. I understand that this is taken from the zoning code, but I see no reason why the ordinance should limit our filing to 1 day. What is the consequence if we send in the documents and they are filed on August 31s` or September 2nd? It seems the interest may be to give a year for people to pay fines and if they have not, then, after the year has passed, the lien should be filed. I have suggested to the Planning Department that this change be made as well. PKO:mkk a:Tyler Memo -5-31 Attachment PUBLIC HEALTH AND MORALS 712-1210 Case Notes Corroborative evidence generally. 62 H. 112, 612 P.2d 110. One prostitute cannot corroborate testimony of another. 6 H. App. 101, 711 P.2d 1307. [§712-1206] Loitering for the purpose of engaging in or advancing pros- titution. (1) For the purposes of this section, "public place" means any street, sidewalk, bridge, alley or alleyway, plaza, park, driveway, parking lot or transporta- tion facility or the doorways and entrance ways to any building which fronts on any of the aforesaid places, or a motor vehicle in or on any such place. (2) Any person who remains or wanders about in a public place and repeat- edly beckons to or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons for the purpose of committing the crime of prostitution as that term is defined in section 712- 1200, shall be guilty of a violation. (3) Any person who remains or wanders about in a public place and repeat- edly beckons to, or repeatedly stops, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons for the purpose of committing the crime of advancing prostitution as that term is defined in section 712-1201(1) is guilty of a petty misdemeanor. [L 1991, c 275, §1] COMMENTARY ON §712-1206 Act 275, Session Laws 1991, prohibits loitering in a public place for the purpose of engaging in or advancing prostitution. This section was created to help protect unwilling victims from repeated harass- ment, interference and assault by aggressive prostitutes in our public places. Senate Standing Committee Report No. 1050. PART II. OFFENSES RELATED TO OBSCENITY §712-1210 Definitions of terms in this part. In this part, unless a different meaning is required: (1) "Community standards" means the standards of the State. (2) "Disseminate" means to manufacture, issue, publish, sell, lend, distrib- ute, transmit, exhibit, or present material or to offer or agree to do the same. (3) "Material" means any printed matter, visual representation, or sound recording, and includes but is not limited to books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, drawings, sculptures, and tape or wire recordings. (4) "Minor" means any person less than sixteen years old. (5) "Performance" means any play, motion picture film, dance, or other exhibition performed before an audience. (6) "Pornographic." Any material or performance is "pornographic" if all of the following coalesce: (a) The average person, applying contemporary community standards would find that, taken as a whole, it appeals to the prurient interest. (b) It depicts or describes sexual conduct in a patently offensive way. (c) Taken as a whole, it lacks serious literary, artistic, political, or scientific merit. (7) "Pornographic for minors." Any material or performance is "porno- graphic for minors" if: 307 712-1210 HAWAII PENAL CODE (a) It is primarily devoted to explicit and detailed narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse; and: (i) It is presented in such a manner that the average person apply- ing contemporary community standards, would find that, taken as a whole, it appeals to a minor's prurient interest; and (ii) Taken as a whole, it lacks serious literary, artistic, political, or scientific value; or (b) It contains any photograph, drawing, or similar visual representation of any person of the age of puberty or older revealing such person with less than a fully opaque covering of his or her genitals and pubic area, or depicting such person in a state of sexual excitement or engaged in acts of sexual conduct or sadomasochistic abuse; and: (i) It is presented in such a manner that the average person, applying contemporary community standards, would find that, taken as a whole, it appeals to a minor's prurient interest; and (ii) Taken as a whole, it lacks serious literary, artistic, political, or scientific value. (8) "Sexual conduct" means acts of masturbation, homosexuality, lesbianism, bestiality, sexual intercourse or physical contact with a per- son's clothed or unclothed genitals, pubic area, buttocks, or the breast or breasts of a female for the purpose of sexual stimulation, gratification, or perversion. (9) `Sexual excitement" means the condition of the human male or female genitals when in a state of sexual stimulation or arousal. (10) "Sadomasochistic abuse" means flagellation or torture by or upon a person as an act of sexual stimulation or gratification. [L 1972, c 9, pt of §1;amL1981,c106,§1] COMMENTARY ON §712-1210 Act 106, Session Laws 1981, added the definition of "community standards," to mean a statewide standard. It also amended the definitions of "pornographic" and "pornographic to minors." The conference committee stated in its report (Senate Conference Committee Report No. 14 and House Conference Committee Report No. 12) that the amendments were merely to conform the definitions to the holdings of the United States Supreme Court in Miller v. California, 413 U.S. 15 (1973) and the Hawaii Supreme Court in State v. Manzo, 58 Haw. 440 (1978). Law Journals and Reviews State v. Kam: The Constitutional Status of Obscenity in Hawaii. 11 UH L. Rev. 253. Case Notes Pornographic. , Construed; provision not unconstitutional for overbreadth or void for vagueness. 58 H. 440, 573 P.2d 945. Material held to be "utterly without redeeming social value." 63 H. 418, 629 P.2d 1130. Cited: 413 U.S. 15, 93 S.Ct. 2607. §712-1211 Displaying indecent matter. (1) A person commits the offense of displaying indecent matter if the person knowingly or recklessly displays on any sign, billboard, or other object visible from any street, highway, or public sidewalk, a photograph, drawing, sculpture, or similar visual representation of any person of the age of puberty or older: (a) Which reveals the person with less than a fully opaque covering over his or her genitals, pubic area, or buttocks, or depicting the person in a state 308 ants of and: apply - ,taken id cal, or station .)erson Is and ement and: erson, d that, ,t; and ,al, or tality, a per- ast or on, or :male ion a pt of �ewide ' The House to the lawaii P.2d ,nse any lk, a .the his tate PUBLIC HEALTH AND MORALS 712-1213 of sexual excitement or engaged in an act of sexual conduct or sadomas- ochistic abuse; and (b) Which is presented in such a manner as to exploit lust; and (c) Which lacks serious literary, artistic, political, or scientific value. (2) Displaying indecent material is a petty misdemeanor. [L 1972, c 9, pt of §1; am L 1981, c 106, §2; am L 1982, c 147, §26; gen ch 1993] COMMENTARY ON §712-1211 Section 712-1211 restates previous Hawaii law regulating public display of matter which would be deemed offensive by a substantial segment of the public. Although nudity and near -nudity now have gained wide acceptance, many people would be affronted by a public display of the sort here pro- hibited. The precedent for regulating public display is well established. Mr. Justice Brennan has com- mented, I may say that whatever theory of the first amendment's scope is championed, all schools of thought... are in substantial agree- ment... that government has some power to regulate the "how" and "where" of the exercise of the freedom; government is not powerless to say that you cannot blare by loudspeaker the words of the first amend- ment in a residential neighborhood in the dead of night, or litter the streets with copies of the text. In other words, though the speech itself be under the first amendment, the manner of its exercise or its collateral aspects may fall beyond the scope of the amendment.' And Mr. Justice Stewart, after underscoring the sanctity of freedom of expression, remarked in his Ginzburg dissent that: Different constitutional questions would arise in a case involving an assault upon individual privacy by publication in a man- ner so blatant or obtrusive as to make it difficult or impossible for an unwilling indi- vidual to avoid exposure to it.' Displaying indecent matter is a petty misde- meanor. This relatively light penalty is based on the small amount of harm done, but it is thought desir- able to have a brief jail sentence available as an unpleasant reminder that society does not favor such conduct. The section requires the mental state of knowledge or recklessness as a minimum basis for prosecution. Thus negligence would be insuffi- cient. This is in accord with United States Supreme Court case law in the area of dissemination of obscene books.' The area of prohibited display is limited to areas which the general public cannot avoid if affronted by the display. Thus it is not as broad as the definition of "public place" in §711- 1100(2). Section 712-1211 contains special requirements that the display be presented in such a manner as to exploit lust and that it be utterly without redeeming social importance. Arguably neither requirement is constitutionally necessary because of the limited area of prohibition, but particularly since certain works of art would otherwise be included it seems wise to include such a limitation on liability. SUPPLEMENTAL COMMENTARY ON §712-1211 Act 106, Session Laws 1981, amended subsection (1)(c) to conform to the revised definition of pornographic in §712-1210. §712-1212 REPEALED. L 1973, c 136, §10. §712-1213 Displaying indecent material; prima facie evidence. The fact that a person engaged in the conduct specified by section 712-1211 is prima facie evidence that the person engaged in that conduct with knowledge of or in reckless disregard of the character, content, or connotation of the material which is displayed. [L 1972, c 9, pt of §1; am L 1987, c 176, §5] Cross References Prima facie evidence, see §701-117. §712-1211 Commentary: 1. Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1, 5 (1965). 2. Ginzburg v. United States, 383 U.S. 463 (1966). 3. Smith v. California, 361 U.S. 147 (1959). 309 GENERAL PROVISIONS 46-1.5 charge shall be used for the construction or maintenance of county highways. (20) Each county shall have the power to regulate the renting, subletting, and rental conditions of property for places of abode by ordinance. (21) Unless otherwise provided by law, each county shall have the power to establish by ordinance the order of succession of county officials in the event of a military or civil disaster. (22) Each county shall have the power to sue and be sued in its corporate name. (23) Each county shall have the power to establish and maintain waterworks and sewer works; to collect rates for water supplied to consumers and for the use of sewers; to install water meters whenever deemed expedient; provided that owners of premises having vested water rights under exist- ing laws appurtenant to the premises shall not be charged for the installa- tion or use of the water meters on the premises; to take over from the State existing waterworks systems, including water rights, pipelines, and other appurtenances belonging thereto, and sewer systems, and to enlarge, develop, and improve the same. (24) (A) Each county may impose civil fines, in addition to criminal penal- ties, for any violation of county ordinances or rules after reasonable notice and requests to correct or cease the violation have been made upon the violator. Any administratively imposed civil fine shall not be collected until after an opportunity for a hearing under chapter 91. Any appeal shall be filed within thirty days from the date of the final written decision. These proceedings shall not be a prerequisite for any civil fine or injunctive relief ordered by the circuit court. (B) Each county by ordinance may provide for the addition of any unpaid civil fines, ordered by any court of competent jurisdiction, to any taxes, fees, or charges, with the exception of fees or charges for water for residential use and sewer charges collected by the county. Each county by ordinance may also provide for the addition of any unpaid administratively imposed civil fines, which remain due after all judicial review rights under section 91-14 are exhausted, to any taxes, fees, or charges, with the exception of water for residential use and sewer charges, collected by the county. The ordinance shall specify the administrative procedures for the addition of the unpaid civil fines to the eligible taxes, fees, or charges and may require hearings or other proceedings. After the unpaid civil fines are added to the taxes, fees, or charges as specified by county ordinance, the unpaid civil fines shall be deemed immediately due, owing and delinquent and may be collected in the same manner as the taxes, fees, or charges. The procedure for collection of unpaid civil fines authorized in this paragraph shall be in addition to any other procedures for collection available to the State and county by law or rules of the courts. (C) Each county may impose civil fines upon any person who places graffiti on any real or personal property owned, managed, or main- tained by the county. The fine may be up to $1,000 or may be equal to the actual cost of having the damaged property repaired or replaced. The parent or guardian having custody of a minor who places graffiti on any real or personal property owned, managed, or maintained by the county shall be jointly and severally liable with 46-1.5 COUNTY ORGANIZATION AND ADMINISTRATION the minor for any civil fines imposed hereunder. Any such fine may be administratively imposed after an opportunity for a hearing under chapter 91, but such a proceeding shall not be a prerequisite for any civil fine ordered by any court. As used in this subparagraph, "graffiti" means any unauthorized drawing, inscription, figure, or mark of any type intentionally created by paint, ink, chalk, dye, or similar substances. (D) At the completion of an appeal in which the county's enforcement action is affirmed and upon correction of the violation if requested by the violator, the case will be reviewed by the county agency that imposed the civil fines to determine the appropriateness of the amount of the civil fines that accrued while the appeal proceedings were pending. In its review of the amount of the accrued fines, the county agency may consider the following: nature and egregiousness of the violation, duration of the violation, number of recurring and other similar violations, effort taken by the violator to correct the violation, degree of involvement in causing or continu- ing the violation, reasons for any delay in the completion of the appeal, and other extenuating circumstances. The civil fine which is imposed by administrative order after this review is completed and the violation is corrected is subject to only judicial review, notwith- standing any provisions for administrative review in county char- ters. (E) After completion of a review of the amount of accrued civil fine by the county agency which imposed the fine, the amount of the civil fine determined appropriate, including both the initial civil fine and any accrued daily civil fine, shall immediately become due and collectible following reasonable notice to the violator. If no review of the accrued civil fine is requested, the amount of the civil fine, not to exceed the total accrual of civil fine prior to correcting the violation, shall immediately become due and collectible following reasonable notice to the violator, at the completion of all appeal proceedings. (F) If no county agency exists to conduct appeal proceedings for a particular civil fine action taken by the county, then one shall be established by ordinance before the county shall impose that civil fine. (25) Any law to the contrary notwithstanding, any county mayor may exempt by executive order donors, provider agencies, homeless facilities, and any other program for the homeless under chapter 201G from real property taxes, water and sewer development fees, rates collected for water sup- plied to consumers and for use of sewers, and any other county taxes, charges, or fees; provided that any county may enact ordinances to regulate and grant the exemptions granted by this paragraph. [L 1988, c 263, §2; am L 1989, c 338, §1; am L 1990, c 135, §1; am L 1991, c 212, §2; am L 1993, c 168, §§ 1, 5; am L 1994, c 171, §§3,4; am L 1995, c 236, § 1; am L 1996, c 19, §§ 1, 2; am L 1997, c 350, § 17; am L 1998, c 212, §3] Cross References Construction projects; recycled glass requirements, see §103D-407. Glass container recovery, see §§342G-81 to 89. Graffiti, parental responsibility, see §577-3.5. Counties' general power of el and 101-2; when a municipal of 46, 868 P.2d 1193. Financial responsibility law chapter 431, article IOC), where §46-1.5(13)). 76 H. 209, 873 P Where city ordinance did not defray the city's investigative ai open the possibility that the cha a 'service fee" under paragrap ordinance was invalid. 89 H. 3 §46-1.6 REPEAI §46-4 County zo changed to "201G-1". 1 Appeal to circuit court, see The Lum Court, Land Use, L. Rev. 119. The Manua Valley Special UH L. Rev. 449. Grandfather protections affc prohibit new zoning ordinanc. under an existing zoning ordi "Lawful use" and "previc refer to compliance with previ be applicable to the construe [§46-12.5] State Conclusive presumptions r (repealed June 30, 2003). L [§46-13.1] Volu Section establishes a com services from volunteers whc "other law" or "state statue 97-6. §46-15.1 Housi standing, any county applicable limitations, corporation of Hawaii reasonably construed I constructing, and proN county shall be empoN Page 1 of 1 Curtis Tyler From: "Dixie Kaetsu" <cohmd@interpac.net> To: "Curtis Tyler" <ctyler@interpac.net> Sent: Tuesday, October 02, 2001 5:12 PM Subject: Re: Draft Revisions, County Sign Code Curtis, thank you very much for all your work on this. I will print it out and share it with Harry also, as he is very interested in the sign code. Thank you for your cooperative attitude in working with us on this matter! Dixie ----- Original Message ----- From: Curtis -Tyler To: cohmo interpac.net ; cohdpw@ilhawaii.net ; Chris Yuen ; lashida a co_hawaii.hi.us Sent: Tuesday, October 02, 2001 11:05 AM Subject: Draft Revisions, County Sign Code October 2, 2001 TO: Dixie Kaetsu, Managing Director; Dennis Lee, DPW Director; Chris Yuen, PD Director; Lincoln Ashida, Corp. Counsel Aloha! As you know, over the last 3 years, the County Council, through its Public Works Committee, has been considering proposed revisions to the Sign Code (Chapter 3, County Code); however, for some time, the matter has been deferred. During this time, I have been working to address concerns expressed by the public and to find ways to improve the code by incorporating ideas from other counties and the public itself. I also have worked directly with the office of the Corporation Counsel and Building Division, as well as the Outdoor Circle, which, itself, has sought input from their business members and others throughout the county. At this time, I am happy to report that much of the preliminary work has been completed (see asterisk below). However, since the implementation and enforcement of the sign code is really an administrative matter, I wanted to provide you and your department with the opportunity to review and comment on this latest draft proposal. For this reason, and to facilitate your review and comment, I have attached my proposed revisions as a Word document in Ramseyer format. Since I would like to have this matter agendized for early November, I will appreciate receiving your response by October 10. This will allow adequate time to review your comments and make any further revisions by the posting deadline. I consider your individual help and direct input to be crucial in making this ordinance the best it can be. Collaboration is so vital to this process, and I thank you deeply for your willingness to kokua in this important public matter. I look forward to receiving your thoughts soon. Of course, if you have any questions about this request, please email or call me. * There seems to be a strong interest in Kona for the Kailua Village Design Commission, rather than the Planning Commission, to be the decision-making body for sign variances in the Kailua Village Special Design District. As a former member of the Commission, I think this idea merits serious consideration. However, in order to give you more time to review the whole proposal, I have not yet included any specific language in that regard. Nevertheless, I would appreciate any thoughts you might have about including such a revision. 10/2/01 KONA COUNCIL Harry Kim µEh'Fr" Mayor 2001 OCT 25 Phi 1 40 COUN T'' U iIAWAII October 22, 2001 &UUfV of'.ttfuntt PLANNING DEPARTMENT 25 Aupuni Street, Room 109 • Hilo, Hawaii 96720-4252 (808) 961-8288 • Fax (808) 961-8742 Honorable J. Curtis Tyler, III Councilman Hawaii County Council 25 Aupuni Street Hilo, HI 96720 Dear Councilman Tyler: SUBJECT: SIGN CODE Christopher J. Yuen Director Roy R. Takemoto Deputy Director Thank your for allowing us the opportunity to review the proposed amendments to the Sign Code. These comments try to cover the more significant issues and questions rather than a line -by-line review. In trying to understand the Sign Code, one picture is truly worth a thousand words. There are model sign codes available on the Internet which have pictures demonstrating the types of signs and how the various parameters such as height and size should be measured. Pictures like this would be an invaluable addition to our sign code. The earlier draft was also accompanied by a table that gave the allowed types and sizes of signs in the various districts. This table is very helpful and should be included in the final draft. Because the bill changes the allowed size of signs in some areas, it is very important to specify how we handle signs that were legal when installed but have become non- conforming. Sec. 3-36 in the bill apparently allows non -conforming signs to remain indefinitely, as long as the business is in existence, and as long as "a legal permit had been obtained." It allows "repairs and maintenance for the purpose of keeping the sign in a clean and safe condition." Apparently, it would be legal to repaint a non -conforming sign. This is the same as the present Code (except for Kailua Village.) Honorable J. Curtis Tyler, III Councilman Hawaii County Council Page 2 October 22, 2001 This approach has the virtue of not arousing opposition from those who have non- conforming signs. It does mean that for an indefinite period, those businesses may be allowed to have signs that are larger than new businesses, and that the "look" that the sign code is trying to achieve may never happen. The alternative is to set some absolute deadline for all signs to comply, like six years. This is legal as long as there is a reasonable time for the investment in the sign to be amortized. How to handle the non -conforming signs is, in the end, a judgment call: how important is it to phase out non -conforming signs, versus the expense to businesses that will eventually have to replace their signs if there is a fixed period. More specific comments: Temporary signs and banners: Sec. 3-10(a)(1)(A) should make it clear that "special events" do not include ordinary commercial activities such as special sales. Variances by Council. Sec. 3-23 provides that the Council shall decide on all variances. Corporation Counsel should be consulted on the question whether this is a function that can be given to the Council. As a practical matter, variance hearings have proven extremely time-consuming for the Planning Commission, and because of committees and multiple hearings, these would probably be even more time consuming for the Council. I would support giving the Kailua Village Design Commission control over sign variances within Kailua Village, again subject to Corporation Counsel deciding whether this function can be delegated to that body. KAILUA VILLAGE ISSUES The bill has three different areas in Kailua-Kona. 1. The Kailua Village, defined as under the present code, a very broad area consisting of approximately 825 acres and including most of the area makai of the Queen Kaahumanu Highway. 2. The "village core" defined as "the area bounded by or adjacent to Alii Drive, Palani Road, Kuakini Highway and Hualalai Road". 3. The "Kona Industrial Subdivision" which is not Honorable J. Curtis Tyler, III Councilman Hawaii County Council Page 3 October 22, 2001 defined in the bill. The "core" has some regulations stricter than the rest of the Village, whereas signs are allowed in the Industrial Subdivision that are considerable larger than the Village, but not as large as allowed generally. The "village core" should be defined to include all signs on buildings fronting on Alii Drive, Palani Road, Kuakini Highway and Hualalai Road to eliminate any possible argument about "adjacent to". The boundaries of the Kona Industrial Subdivision should be specified. Number of signs: The draft bill increases the number of permissible signs from one per street frontage per business to two per business. This is consistent with the rest of the sign code, but is it the intent for Kailua Village? It is not clear how the aggregates are to be applied. Are they applied separately for each type of sign? For example, can a building in the Kailua Village core have twelve square feet of ground signs, plus twelve square feet of marquee signs, plus twelve square feet of hanging signs? The whole subject of aggregate signage is a problem in the current sign code. While it is a good idea to have an overall limit when there are multiple businesses, it creates a problem that sometimes a business cannot legally have a sign because the quota has been used up. If we are to have aggregate limits, I suggest that one small wall, hanging or window sign be allowed per business that does not count against the aggregate limit. The phrase "total area" is ambiguous: does it apply to the total area of any one sign, or does it apply to the total area of signs in the aggregate on a building? The current code does not specifically allow marquee signs in Kailua Village. The draft bill allows signs hanging from marquees, as well as a thirty-two square foot sign on the face of a marquee (smaller in the village core). Sign height is another issue. Under the present code, there does not seem to be any way for a building on the second floor to have a sign, because all signs are limited to five and a half feet from the ground, except projecting signs, which can be nine feet from the ground. The draft bill continues that, except that wall signs can be one-half the height of Honorable J. Curtis Tyler, III Councilman Hawaii County Council Page 4 October 22, 2001 the building. This would allow a very high wall sign on any of the tall buildings in Kailua Village. I would suggest that the maximum height for window and projecting signs be measured from the adjacent sidewalk or walkway, so that a second floor business can have a window or projecting sign. The height limit for a wall sign should be increased—the 1994 Master Plan suggested nine feet; I would suggest fourteen feet or half the height of the building, whichever is less. Half the height of the building is too much when dealing with the taller buildings. No height limit is given in the draft bill for marquee signs in the Village. Under the present code, the Planning Department administers the sign code in Kailua Village; the DPW in the rest of the island. The bill changes that so that DPW also administers the code in the Village, apparently for the sake of consistency. The difficulty is that Kailua village signs will all go to the KVDC for review. DPW personnel do not normally attend KVDC meetings, whereas the Planning Department does, for various other reasons. I suggest that we should be trying to create a consistent sign code along the Kaahumanu Highway from the airport to the Village that discourages the use of signs on individual businesses to attract attention. There is a tremendous amount of light industrial development and commercial development currently being planned along this road corridor. The businesses in the Industrial Subdivision that front the Kaahumanu Highway, and those in the adjacent Liliuokalani Trust lands (which is not even covered by the Kailua sign code) have a much greater visual impact on the visitor and the ordinary motorist than those in the heart of the industrial subdivision. Sincerely, C ISTOPHER J N Planning Director` CJY:pak Wpwin60\Chris\Sign Code Comments Honorable J. Curtis Tyler, III Councilman Hawaii County Council Page 5 October 22, 2001 cc: Ms. Dixie Kaetsu, Managing Director Mr. Dennis Lee, Director, Department of Public Works Lincoln Ashida, Esq., Office of the Corporation Counsel Mr. Daryn Arai, Program Planning Manager 25 Aupuni St., Hilo, HI 96720, Rm. ft4AA 9011-8331, Fax 961-8410 MEMc, ICE 02 FEB 7 flM 9 20 CQUN1-'r -,AWAII Memo DatvFebnay 4,2W2 To: Honorable Curtis Tyler, Councilman Hawaii County Council From: Startle Takemura, Building Division Chief CC: Dennis K.W. Lee, Director — Department of Public Works Re: Sign Code Draft — Hawaii County Code, Chapter 3 The following are our comments on the subject draft: Section 3-3. Definitions of "sign" and types of sign. (Suggested additional wording in bold) (1) "Sign".... (B) "Is placed out on real property, is attached to or placed on the exterior of buildings or structures, or is placed on the exterior or interior surface of a window, or is mounted within a building in such a manner so as to be visible through a window, and " (12) "Window sign" means any sign which is located or displayed on the inside or outside surface of a window, or is mounted within a building in such a manner so as to be visible through a window to the general public from a public right-of-way. Article 2. Kailua Village Signs. Under this draft the enforcement of the provisions have been shifted from the Planning Department to the Department of Public Works. As indicated by the Planning Director's comments Public Works has not attended KVDC meetings and many of the issues may be of an esthetic rather than a safety or structural issue. We therefore believe that the Kailua Village 0 Page 1 Sign Code Draft — DPW Comments 02-04-02 Page 2 signs should continue to be monitored by the Planning Department and these provisions possibly be included as part of Chapter 25 —Zoning requirements. Also as stated by Planning Director Christopher Yuen, does the County Council want the additional work of having to hear and decide on every sign variance issue. This work might be more efficiently done at a commission level. Regarding the rest of the sign code draft we find the provisions acceptable. 0 Page 2 Harry Kim Mayor KONA COUNCIL MEMBEI- ;t� riCE 2001 DEC 11 AIM 9 20 Lincoln S.T. Ashida Corporation Counsel Gerald Takase Assistant Corporation Counsel C4UN i 1 v , riAWAI I (;9VUUf1j of �.nt anti OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808) 961-8251 • FAX (808) 961-8621) �-- ,-, - December 7, 2001 _ MEMORANDUM -Lj r� TO: HONORABLE JAY T. KIMURA Prosecuting Attorney FROM: LINCOLN S. T. ASHIDA Corporation Counsel RE: Proposed amendments to County sign code Enclosed is a proposed draft of amendments and additions to the County sign code. Councilmember Curtis Tyler forwarded this copy to me for my review and comment. The proposed amendments provide for the criminal prosecution of offenders. Language in the proposed draft contemplate the Director of Public Works to have the ultimate authority on enforcement. However, the proposed language indicates he may seek assistance from other County agencies. I suggested to Councilmember Tyler's office that you have an opportunity to review these proposed changes, since it may inevitably impact your office. You may submit your recommendations and/or comments directly to Councilmember Tyler's office (attn: Megan), or my office. Thank you for your kind attention to this matter. Encl. cc: Office of Councilmember Curtis Tyler (w/out encl.) ii S: Departments/Prosecutors/LSA Misc. Corresp./Memo to JTK re sign code 12-7-01/LSAmr Sign Code: Jay Kimura Sign Code (February 6, 2002) 961-0466 (1:00 p.m.) Re: Comments to the Sign Code Came by the Kona office. Said he read the ordinance. Has some concerns more in the area of penalties. On the conversion there's some language, "if someone has a legal permit" — perhaps use the language "valid" permit instead. As far as the civil/criminal — looks O.K. But when gets to the Kailua-Kona section there's a separate penalty section which Jay says seems a little confusing. And in terms of criminal penalty would recommend a minimum but not a maximum and leave it to the judge to decide as the HRS already provides for a maximum (but doesn't provide a minimum). Says he will give the ordinance to his staff — Mel Fujino — at the Prosecutor's Office in Kealakekua @ 323-2252. Says, if you have questions on the criminal side of enforcement to please call him. Jay said he would brief him today (2/6) on it. Please call him in a couple of days. The criminal is done by the police and if ordinance done by department. The police have their priorities so it's a question as to how much time they can devote to this section. Usually says its done on a complaint basis. Says that down the road will have to meet with the road department and various agencies and might require education of the public before making it law.. Harry Kim Mayor C�uulk g �." ate CGUN- OFFICE OF THE CORPORATION COUNSEL SEP 12 Lincoln S.T. Ashida Corporation Counsel Gerald Takase N'tant Corporation Counsel 6AWAl 101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808- X961-8251 • FAX (808) 961-8622 September 9, 2002 Curtis Tyler Councilmember Hawaii County Council 25 Aupuni Street Hilo, HI 96720 Dear Councilman Tyler: Re: Revised Draft of Sign Ordinance This is response to your request that this office review the revised draft of the sign ordinance. Previous comments by this office have been incorporated in the revision. Our comments on the revision follow. 1. Section 3-2. This section indicates that the chapter regulates all signs in the County which are visible from "streets" in the County. You might consider specifying that this includes public and private streets. 2. Section 3-3(A)(1)(b) contains a typo - "windows" should be "window". 3. The use of "building" in the definition of "wall sign" should be defined. It excludes rock walls and retaining walls. The Department of Public Works has been requiring a rock or retaining wall over six feet to require a building permit. There is a definition of "building" in §3-53 of the county code (Kailua Village Design). 4. In §3-5 the terms "plate," "roofed" and "outlined by a bright line or area" are not defined and may be difficult to enforce without definitions. 5. Section 3-9 (a) (1) (B) exempts small unlighted signs which are displayed for a period of time not to exceed 30 days during any calendar year. Is this meant to be consecutive days? The way it is written it seems that the sign could be put up and taken down throughout the year as long as it is not up for more than a total of thirty days. This may be what is intended but it seems that this scenario would be very difficult to enforce. At any rate, it should be clarified. Curtis Tyler September 9, 2002 Page 2 6. The note to §3-12 says that a building with large windows could have several hundred square feet of signage, but the limit is 25% of the total area or 150 square feet whichever is greater. 7. For §3-14 "altered" and "reconstructed" should be defined. Do you want to address issues such as painting or other maintenance? 8. Section 3-16 on illuminated signs should define "electrical inspector." The note indicates that the inspector's action is advisory while the proposed ordinance language says that the inspector approves or disapproves the application. Since the inspector is actually making a recommendation of approval or disapproval the language should state recommend approval or denial and then continue on to provide that the application and the recommendation be returned to the director of public works for his action. 9. Section 3-17(b) states that a permit is not transferable unless notice is filed with the director within 90 days of transfer of premises. Generally permits which allow certain uses on land such as building permits run with the land and are not personal to the holder of the permit. What is the intended consequence if such notice is not filed? If this section is to be retained a provision should be made specifying what will happen if not complied with. 10. Division 6 transfers the variance function from the Planning Commission to the council. This is a quasi-judicial function which is not generally a function exercised by a legislative body. Is it your intention that an appeal to circuit court from the council's decision on the variance request be allowed or provided for? Based upon the case of Sandy Beach v. City Council of the City and County of the Honolulu, 70 Haw. 361, 77 3.P2d 250 (1989) which held that chapter 91 did not apply to the city council when it acted upon an SMA permit, you probably would not need to follow the procedural requirements contained within chapter 91 and applicable to administrative hearings. However, you should be prepared for arguments on whether constitutional property rights have been affected by the variance action and that therefore, an appeal should be permitted. The standard for granting a variance might lend support to this argument. Under the present code, appeals from the planning commission's decision on a variance request are taken to the Board of Appeals. Since the Board conducts a contested case hearing, it's decision is then appealable to the circuit court. Curtis Tyler September 9, 2002 Page 3 11. Section 3-23(b)(9) provides that notice of the variance application shall be served on adjacent property owners or tenants, granting them the opportunity to submit comments to the Hawaii County Council. (Note the need to add "the" before "Hawaii County Council.") Is it the intention that the applicant notify the adjacent property owners or tenants and file a proof of such notice with the council or will the council staff bear this responsibility? Instead of stating that the notice will grant the owners or tenants the right to submit comments to the council, it would be clearer to state that such comments should be submitted in writing either by a date certain or within a certain number of days of the notice. When the notice is served, will the council meeting date or dates be known? Do you want to have the owners or tenants notified of the council meeting date so that they can appear and testify if desired? If so, this needs to be provided for. 12. Section 3-26 requires an annual report to the council of monies received pursuant to the article. Would the council also like an accounting of how the monies were spent? If you have any further questions, please let me know. Yours sincerely, Patricia K. O'Toole Deputy Corporation Counsel PKO:pc s:pko misc\Sign Ordinance Itr to Tyler 9-02 PKOpc. wpd