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HomeMy WebLinkAboutCOM 0389.000 2004-2006 I3OB./ACY)l3S'ON ~Z~orM1 Phone No: (808)961-8263 ['uunci] ]Icmper ~ ''~4 Pas No: (808) 961-8912 I:-Mail: Jacobs n hgca_org jjaw(r~co.hawaii.hi.us ! ~Ti'np'u~'M HAWAI`1 COUNTY COUNCIL Cow~ty'ofllmr~~i'i _ lluK•ai'i Coann~ 6uildinR ~ 25:1 agnmi S(ree/, Sure 20J lliln, Hax~~ii'i 16"70 TO: Stacy K. Higa, Chair Hawaii County Council FROM: Bob Jacobson Council Member DATE: August 4, 2005 SUBJECT: Bill to Provide Enhanced Public Notification of Proposed Development Enclosed is a Bill to provide enhanced public notice of proposed development. This Bill amends Chapter 23 (Subdivision Code), Hawai `i County Code by amending appropriate sections. I his Bill requires a developer or landowner to post a sign of a proposed development on the affected property for subdivision approval or variance pursuant to Chapter 23 (Subdivision Code), Hawaii County Code. The purpose and intent of this Bill were previously contained in Bill 23 (attached), amending Chapter 14 (General Welfare), Hawai `i County Code by adding a new article. Per County of Hawai `i Planning Commission communication of June 8, 2005, the Planning Director recommended that these provisions be included in the appropriate sections of Chapter 23 (Subdivision Code). A companion Bill amending Chapter 25 (Zoning Code) also arises from Bill 23 and similar recommendations from the Planning Director. Bill 23 was filed at the July 22, 2005 Hawaii County Council meeting. The Planning Director, at the May 20, 2005 Planning Commission hearing on Bill 23 (minutes attached), stated that the bill "wouldn't have to come back to the Planning Commission'° for the "technical" changes that he recommended and that were part of the Commission's favorable recommendation. Should you have any questions, please call me. Att. p~ ~a 11 134 ~ Comm. No. 3g 1 Ref. To: ww.- Ref. Cate, E1U~ Cl (UUJ District 6 (Ipper Nuna, Kn'u, rr~ul.SouJlr Kona l/awar`i Couiih' !s ~n F,qun/ Oppnrtuait~~ Prori~ler.4nd E'mp/nrer ~tV as 4~ ~'`V COUNTY OF HAWAII STATE OF HAWAII ~tl pi~M~~` BILL NO. 23 (Draft 3) ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 14, HAWAII COUNTY CODE 1983 (1995 EDITION), BY ADDING A NEW ARTICLE TO PROVIDE ENHANCED PUBLIC NOTICE OF PROPOSED DEVELOPMENT. BE IT ORDAINED BY THE COUNCIL OF 1'HE COUNTY OF HAWAII: SECTION 1. The County Council finds thatjurisdictions across the country and state keep citizens informed about proposed development projects in their neighborhoods by requiring developers to post signs. Such signage provides additional notice to members of the public who may miss a legal notice in the newspaper on a given day. SECTION 2. Chapter 14, Hawaii County Code 1983 (1995 edition), is amended by adding a new article to read as follows: "Article 15. Public Notification of Development. Section 14-100. Purpose. "the purpose of this article is to foster public participation in decisions made by government. An informed electorate is essential to a democratic government. By requiring developers to post notice on the property proposed for development, citizens can best bring forth their concerns and data to government decision-makers prior to any decision. By informing the public of these applications and inviting comment, the County can better fulfill its constitutional mandate of protecting customary and traditional practices. Section 14-101. Definitions. (a) "Applicant" means any person or entity applying for any of the following applications: (1) a special management area use permit, special management area minor permit, or shoreline setback variance pursuant to Hawaii Revised Statutes chapter 205A; (2) a land use district boundary amendment or special permit pursuant to Hawati i Revised Statutes chapter 205; (3) a preliminary plat subdivision approval or variance pursuant to Hawaii County Code chapter 23; (4) a zoning amendment, variance, use permit, plan approval, planned unit development, cluster plan development, or project district pursuant to Hawaii County Code chapter 25[; er] [ ~ (b) "Roadway" means any public or private street, avenue, road, alley, highway, lane, path, trail, or other place used by vehicles or pedestrians. Section 2-129. Notification. (a) Notwithstanding any provision to the contrary, within five days of submitting any application, an applicant shall post a sign notifying the public. The applicant shall continue to post the notification until the applicable approval has been granted, denied or withdrawn. The applicant shall promptly take down the sign within seven days after the decision on the application. (b) The applicant shall post a plainly visible and clearly marked sign on the property affected by the application. The sign should be visible from the roadway passing the Frontage of the property. If the property borders two or more roadways, the sign should be placed along the roadway more traveled, or a corner. (c) The sign shall candidly describe, at a minimum, the nature of the project, the size of the property, how the public can submit comments and which government phone number to contact for more information. (d) The sign itself shall between nine and twelve square feet in area, not including any supporting structure. Letters shall be at least one inch high. The sign shall be readable from the nearest point where the public passes by the site." (e) No department, board, commission or agency shall approve an applicant's application unless: (l) the applicant certifies that notice was properly posted in a timely manner; and (2) for any application that has a hearing, the applicant certifies that neither the applicant nor the applicant's agent removed the notice prior to the day of any hearing on the application." SECTION 3. If any provision of this ordinance, or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared to be severable. SECTION 4. This ordinance shall take effect on July 31, 2005. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MAY 20, 2005 A regularly advertised hearing on the application of COUNTY COUNCIL (Bill No. 23, draft 2) was called to order at l L 18 a.m. in the King Kamehameha's Kona Beach Hotel, Islander Room, 75-5660 Palani Road, Kailua-Kona, Hawaii, with First Vice-Chairperson Hannah Springer presiding. PRESENT: Rodney H. Watanabe ABSENT & EXCUSED: Fred Galdones Jeffrey McCall William R. Graham Rene' Siracusa Allen Salavea Andrew Iwashita C. Kimo Alameda Hannah Springer Ivan Torigoe, Deputy Corporation Counsel Chris Yuen, Deputy Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler representing Department of Public Works And approximately 11 people from the public in attendance INITIATOR: COUNTY COUNCIL (Bill No. 23, Draft 2) Draft Bill amending Chapter la, Hawaii County Code, by adding a new article to provide enhanced public notice of proposed development. SPRINGER: I would like to call this meeting of the Hawai i County Planning Commission back into order. And while at one point we had contemplated taking up the County Council Bill Number 23, Draft 2 at the end of our agenda, I see that Councilman Jacobson is here and I know that he's here to testify on this matter so we'll proceed with the sequence as posted. At this time we' Il take up the County Council Bill Number 23, Draft 2. It's a Draft Bill amending Chapter 14, the Hawaii County Code, by adding a new article to provide enhanced public notice of proposed development. Mr. Hayashi. HAYASHI: Thank you Madame Chair. At the last meeting in Hilo the Commissioners were provided copies of Council Bill Number 23, Draft 2. The Commission was also provided with a copy of Council Bill Number 23, Draft 3, which was provided to the Commission by Councilman Jacobson. The Commission also voted to continue the hearing till today in order to allow the Planning Director to provide you with his recommendation. The Planning Director has provided you a memorandum dated May 16, recommending that the- stating that, basically EXHIBIT B 1 stating that the Planning Director agrees with the intent of the Bill for public notification. However, rather than creating a new article under Chapter 14, the Planning Director recommends that these provisions be included within the appropriate County Codes. Meaning County Code, Chapter 25, which is our Zoning Code as well as Chapter 23 relative to the Subdivision Code. Further the Planning Director recommends that the Planning Commission also amend its rules, affected rules for notification. The Planning Director also wanted clarification only to note that the Bill should only reference State Land Use Boundary Amendments, which are 15 acres or less that are processed by the County rather than those processed by the State Land Use Commission since we have no jurisdiction as to their procedures. And that would be under Section 14, 101- A2. Finally the Planning Director is recommending that Section 2-149, subset E be amended to also include the County Council. With that, Madame Chair, members of the Commission the Planning Director is recommending favorable consideration of this proposal based on the recommendation provided in his memorandum. SPRINGER: Thank you Mr. Hayashi. Commissioners are there any questions for Mr. Hayashi at this time? Seeing none. Mr. Jacobson, you're representing the Council and are the introducer of the measure. JACOBSON: I'm the introducer of this measure and first off, aloha, it's a real pleasure to be talking to you guys this morning. I appreciate your service and it's good to see you all. SPRINGER: Thank you, may I swear you in? JACOBSON: Pardon? SPRINGER: May I swear you in? JACOBSON: I think [was here when everyone was just sworn in earlier. SPRINGER: Oh, okay. Thank you. If you could give us your name and address please. JACOBSON: Okay I'm Robert Jacobson, Hawaii County Council member. My home address is 161672 Opeapea Road in Hawaiian Acres, KuRistown, 96760 and my work phone is 961-8263. SPRINGER: Thank you, you may proceed. JACOBSON: First off I'd like to apologize for not making the last meeting and thank you for considering the Bill in my absence. I mostly showed up for you guys to answer, so I could answer any questions you might have and I was going to- I just spoke with Chris this morning briefly. You may notice that you have Draft 3 in front of you because I deleted considerations under Chapter ]0 regarding grubbing and grading as requested by Public Works. realize that it was an unworkable so that's why we ended up with a Draft 3. They suggested those changes and I happily acceded to them once I saw the wisdom of what they were saying. It was basically unenforceable for the grubbing or grading due to the nature of their permits, the duration and a number of other reasons. If 1 wanted to try to work with any posting of signs EXHIBIT B 2 under the grubbing or grading measure I think that we are looking at a revision of Chapter ] 0 sometime in the future. And if I was going to include any signage features I would hope that would go in there and it's not properly in this part. The Planning Director's recommendations that we move this from Chapter 14 and apply it in Chapters 23 and 25 makes sense to me. He's reasoned with me and 1 yield to his logic and better knowledge on this. Also, in our discussions I see that you would have to be changing some other rules regarding SMA Permits, Special Use Permits and etc, some other permits. I'm not trying to just mandate that you do this but I think that with the change regarding Chese notifications it would be important. So those would apply to the broadest number of issues that people would be able to find out what's going on in their neighborhood. The reason, if I may explain briefly why I wanted to do this is because quite frequently over the years I've testified at more than one issue. It was both as a citizen and as a Council member. And fi~equently people in their testimony to me or fellow testifiers have said well, nobody told me about this. Why didn't anybody notify me? Even when everybody has made a great effort to notify people, whether it be public notices, radio, or other methods of notification it's been inadequate for some of the people. And rather than making you guys listen to people saying why didn't anybody tell me, which I'm sure you have heard that before and the same thing for me. I don't mind listening to people but I don't like hearing their frustration and sense of estrangement from Government because of the lack of notice that- or perceived lack of notice on their part. So, this is an effort to try to address that. The Bill, I think you've read it before and looked at it. Chris has probably given some explanation of where I'm going with this and I guess at this point rather than talking on and on I'd like to have you get a chance to ask me any questions and thank you for your time. SPRINGER: You're welcome. Thank you Mr. Jacobson. Commissioner Siracusa? SIRACUSA: I'm very grateful to you for bringing this whole issue forward because it is quite true that there are a lot of people you know out there who live a very reclusive lifestyle. They don't get Che newspaper and they don't you know leave the house too often to see signs posted here or there. But they, you know do know what's happening in their neighborhood and suddenly there's a bulldozer and the place is being cleared and what, I didn't get a chance so I'm glad you've done this. My first impression when looking at this was, I wish you hadn't taken out the part about the grading and the grubbing permits because there are things that I have seen where the- a parcel is bulldozed on a Sunday or on a holiday like New Year's Day without a permit and then by the time you can get to report it to any agency of government it's too late the deal is done. And whatever was there whether it was a fishing heiau or a burial or some endangered plants is gone forever. I understand now having talked to some of my fellow Commissioners what some of the concerns were that made you pull that out and I was wondering- I hope that you will be able to find another methodology to deal with that problem. You know like, making the bulldozer operators, you know, responsible for making sure there's a permit or something, whatever it may be. [hope you won't throw out the baby with the bath water. ['d be willing to support this because I believe that the other things on it are important and the public notification is an extremely important part of our governmental process. So thank you once again. Did you want to address anything about that grading or grubbing permit part? JACOBSON: Well, [share your vexation with this. as you can see, 1 really by putting this into Chapter I4 I really tried to draw across many areas and kill a lot of birds with one stone. EXHIBIT B 3 But life in government is seldom that easy. That the nature of Chapter 10 posting signs, it doesn't lend itself I think, as you've been able to see to this type of ordinance. I have not forgotten about that aspect cause that is one of the most troubling aspects. But this was not the Bill to do it under. Even under the Chapter 10 Rules that may get changed, I haven't really discovered exactly the solution to it yet but I would look forward to some input or any ideas from any of you that you might have on this. And I'd be very happy to work with you in particular on this Rene. SIRACUSA: Thank you. I'd be glad to give you mana'o. SPRINGER: Thank you Commissioner Siracusa. Other Commissioners? Commissioner Watanabe? WATANABE: No. No. SPRINGER: Commissioner [washita? IWASHITA: The changes suggested by the Director as far as the limitation on land use district boundary amendments and the application of this change to also Council action, do you agree with those also? JACOBSON: Yes, [think that Chris has got some wisdom in this area and I'm willing to honor that wisdom and follow his good advice. IWASHITA: Thank you. SPRINGER: Thank you Commissioner Iwashita. Other Commissioners? Commissioner McCall. MCCALL: My yuestion, I'm not sure if it's to you Bob or to Chris. We're looking- Chris your recommendations are to I guess to have this not include anything that goes to the State Land Use Commission, from what I understand. I know the County doesn't have jurisdiction over that but could we still have jurisdiction over posting the sign if something is going there? YUEN: Well this would- the recommendation is that it not apply to boundary amendments of the State Land Use Commission since those are entirely done by the State Land Use Commission. No, I don't think that we can make a rule that covers- or pass a County ordinance that covers how a State Land Use Commission is supposed to do that. Typically though, the State Land Use Commission action will be followed by some County rezoning action. So, at the rezoning level there would be this posting of notice. The only thing I can suggest is for the- the Council member could write to the Land Use Commission and suggest that they- that they change their own rules accordingly. But we can't pass a County ordinance that says this is what you have to do at the Land Use Commission. MCCALL: Thank you. EXHIBIT B 4 JACOBSON: I think he answered it better than I could. I have one question if I may pose and I'm not trying to grill you all but I think this is more to Chris also. Should if you gave this positive consideration and I make changes to place this ordinance under 23 and 25 will I have to come before you again? Should I run this pass or what would be the procedure'? YUEN: No, at this point what we're asking is that- we ask that this comes to the Planning Commission cause it effects the zoning and subdivision ordinances. We would give a favorable recommendation with some, essentially technical kinds of proposals. We would work with you in putting that in a form that would be resubmitted to the Council. Because these are non- you've gone through the process of going to the Planning Commission and so it wouldn't have to come back to the Planning Commission for those kinds of changes. JACOBSON: And just one last statement. I'm afraid that I did not cook this idea up myself, I'd like to claim that I'm brilliant at times but actually the idea for this came from a number of constituents. I had many, many people ask me could you get some signs up so that people know what's going on? I'm afraid I did not start the idea; I'm just a vehicle for my constituents. And I would encourage you if you can in your heart find a place to give this positive consideration. SPRINGER: Thank you Councilman Jacobson. For the Commissioners. Commissioner Iwashita if I just may. The motion would be in effect to recommend approval by the County Council consistent with the Planning Director's recommendations. Commissioner Iwashita'? IWASHITA: I had questions I guess about the certification requirements and what if somebody lies? JACOBSON: If somebody dies? IWASHITA: Lies. JACOBSON: Lies? Well- IWASHITA: Provides acertification- JACOBSON: I was troubled by some of [he aspects of this or if somebody tears down the sign or somehow chooses not to comply. But like most of our laws I'm rather sanguine that the laws are made for 99% are going to be following them. The people who lie I can't always control them and I think that the proof will out eventually. The truth will come out into the light of day that when they are getting their approvals, if it's coming forward, there's a few of us that do pay attention to the notices and pay very close attention to what's happening. And it's incumbent upon those of us who are paying very close attention to try to place everybody else. I think that that's what a lot of our society does so, there's no real teeth that we can really hurt people with it. But I think that there's some teeth so I'm hoping that it would work. I think EXHIBIT B 5 Chris might have some ideas because I think he would be involved in some the enforcement of this. YUEN: The penalty would be- it depends on whether this requires an affidavit or not. The penalty, if the landowner files a certification but they lie they didn't post a sign they are criminal penalties then this is in the general criminal code. There's one crime called a unsworn falsification and there's another crime of false, sworn false, I don't remember what exactly what it's called. But if you submit something in support of some otTicial governmental business that says that that's a lie. There is this unsworn falsification and there's also the false swearing provision. What I didn't want to see with this and we did have a discussion with this when this first came up with the Council, is that we get into some debates over whether the sign was posted or not and that this would eventually or potentially jeopardize the permit application or the permit process which is complicated enough as it is. So if somebody- and the scenario that I didn't want to see happen is that the application is pending, the hearing is about to happen, somebody actually goes to the site and they say oh the sign is not there. And then the owner says, well I put the sign there and I'm not sure when it came down but it's not my fault. And we wanted to make it clear that that kind of scenario does not jeopardize the application in any way. So it is dependent upon the good faith of the applicant in posting it and then the applicant's only duty is to post it and to not take it down themselves and to provide this certification. And as I said, as I started saying the penalty is if they are proven to have lied about this then there is a potential criminal penalty for it. SPRINGER: Thank you Director Yuen. Follow up Commissioner? Thank you. Commissioners any other questions of either Mr. Jacobson or the Director? I have a question for Mr. Hayashi. With regard to the Planning Commission's amendments of its rules pertaining to these types of permits would we anticipate then the staff working with the Director to draft these up and then to come before us at some later meeting? HAYASHI: Yes. SPRINGER: Thank you. Commissioner Siracusa. SIRACUSA: In the matter of County Council Bill Number 23, Draft 3, I move that the Planning Commission send a favorable recommendation incorporating the recommendations of the Planning Director. SPRINGER: Thank you Commissioner Siracusa. [s there a second? MCCALL: Second. SPRINGER: Thank you Commissioner McCall. Is there any discussion on this matter? Mr. Hayashi we can take the roll call please. HAYASHI: Thank you. Commissioner Siracusa? SIRACUSA: Aye. EXHIBIT B 6 HAYASHI: Commissioner McCall? MCCALL: Aye. HAYASHI: Commissioner Watanabe? WATANABE: Ayc. HAYASHL Commissioner Alameda? ALAMEDA: Aye. HAYASHI: Commissioner Iwashita? IWASHITA: Aye. HAYASHI: Chair Springer? SPRINGER: Yes. HAYASHI: The motion carries. SPRINGER: Thank you. You will be informed in writing. JACOBSON: Thank you very much and thank you especially for moving me up in the agenda. I really appreciate that all of you. Thank you. SPRINGER: You're welcome. The discussion ended at 11:38 a.m. Respectfully submitted, Lynette Sanemitsu, West Hawaii Secretary EXHIBIT B 7