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HomeMy WebLinkAboutCOM 0762.040 2004-2006 Page 1 of 1 Murashige, Laura From: nellie medeiros [nellie88@hotmail.com] Sent: Monday, May 01, 2006 11:25 PM To: Pilago, K. Angel Cc: counciltestimony@co.hawaii.hi.us Subject: In Opposition of Bill 246 Importance: High Aloha Mai Angel, Attached please find testimony that we would like to submit for tomorrow's County Council meeting regarding Bill 246. Mahalo, Nellie & Clarence Medeiros Comm No. '16 2. D Ref. Tai hug Ref. Date 5/2/2006 DATE: May 1, 2006 TO: Councilman Angel Pilago Planning Committee Chairman FROM: Clarence A. Medeiros, Jr. & Nellie J. Medeiros SUBJECT: Bill 246 We would like to provide testimony in opposition to Bill 246 that proposes to amend Chapter 23, Subdivision Code, relating to information required for the submittal of a subdivision application. This bill seeks to absolve the Planning Dept of its longtime past practice of accepting incomplete subdivision applications which was found to be illegal by the Hawaii Supreme Court. The intent of this bill is no different than the bill that was recently brought before the State Legislature to "legalize" non-conforming agricultural subdivisions approved by the County, i.e., Hokulia, Hawaiian Ocean View Estates, Kona Acres, and Makalei Estates, to name just a few. That piece of legislation did not pass and Bill 246 should have the same fate. Bill 246 proposes changes that include giving the Planning Director the option of waiving some informational requirements which have not been enforced in the past. In our appeal before the Board of Appeals, BOA 04-013 & 04-014 Consolidated, opposing the tentative approval of the Ki'ilae Farms Subdivision development, the Planning Director testified that the past practices of the Planning Dept. have not been correct. It is because of these discretionary powers that the Planning Dept. finds itself processing hundreds of subdivision applications that do not have one or more of the informational requirements mandated by the Subdivision Code. The integrity of the subdivision approval process should not be jeopardized by making piecemeal changes to the code to remedy the Planning Dept.'s incorrect past practices and the Planning Director's discretionary powers. Another major reason given by the Planning Director for the proposed code changes is the possibility of legal challenges. This issue has merit because the legal challenges are already happening. I would like to cite one subdivision application out of the hundreds that the Planning Dept. is working on that has the potential to become a legal nightmare for the County - the Ki'ilae Farms Subdivision development. Only after the issue of title was raised did the Planning Director specifically request a complete title report for his review regarding the lands within the development area. Yet he granted tentative approval without even receiving the requested document, much less reviewing it. He relied on title insurance which is completely different from a title report to make his decision to give tentative approval. Title insurance insures only the developer and does not prove clear title, not does it determine ownership, nor to what degree, whether exclusive or partial. We understand that it is not within the Planning Department's jurisdiction to determine title. However, the Director has the discretion to require to comply with the Subdivision Code that requires the consent of all owners and that was not obtained. Until a quiet title action has been done, each tenant in the development area, which included ourselves, has an undivided interest and equal right in the property to make use of and enjoy the entire property. When asked if an issue of title is raised subsequent to the sale of lots in the proposed subdivision, the Planning Director testified that it is definitely a complication if subdivided property doesn't have clear title and definitely more complicated after the subdivision is completed. The Planning Director also said he didn't think that the County would be liable per se. That is not much of a defense for the County if someone were to sue if title to a purchased lot was being disputed, especially if the County knew it was an issue and ignored it. Future lot sales in this subdivision could expose the County to litigation and using per se isn't adequate defense. The Planning Director gave tentative approval of this subdivision despite the exposure of major discrepancies in the archaeological report that included the proposed destruction of a historic landmark that contained a mausoleum of known burials. We also provided documentation of 80 burials within the development area and its significance was dismissed because tentative approval was given. With tentative approval the developer can do land clearing activities such as grubbing and grading. However, these activities can and do destroy historical and burial sites permanently. Historic sites and burials run the risk of destruction during grubbing and grading that is allowed with tentative approval. The magnitude of the previous grubbing and grading done in the Ki'ilae Farm Subdivision involved a bulldozer operating without a permit and without a monitor present. The Dept. of Public Works' investigation and report says that the clearing of the roadway could have been done with a much smaller and less destructive machine, such as a tractor mower. The Planning Director's discretion in giving tentative approval in this subdivision has repercussions. He testified that with tentative approval, the developer can begin grading, grubbing and clearing and the County is forced to honor the approval and follow the preliminary plot, despite the plan's deficiencies. The Planning Director has much discretion but he admitted that the past practices of the Planning Department have not always been correct. In the Leslie case, the Planning Director believes that it did not actually change how the lots were laid out, or where the roads were built, etc. However, the subsequent Board of Appeals case brought to light the existence of at least 80 burials that will undoubtedly affect boundary lot lines and the proposed location of infrastructure. Simply said, the Planning Director is saying why ask for information up front when it can be given later. But later can be after permanent and irreparable damage has been done to the land that no amount of money can ever compensate or replace. This is unsettling since this is only one of the hundreds of subdivisions that have the potential for legal challenges. And this has happened because of the Planning Director's power of discretion. We do not feel comfortable adding more of the Subdivision Code to discretion and taking away from informational requirements. We oppose the passage of Bill 246 and suggest that a comprehensive review of the Subdivision Code in its entirety be conducted instead of deliberate piecemeal changes.