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HomeMy WebLinkAboutCOM 1021.001 2004-2006 rray+ Harry Kim Christopher J. Yuen Mayor Director ~r+ij•o~•N~+~~~ Brad Kurokawa, ASLA LEED® AP (fountg of'nivatt : UeinyBi{ecfor PLANNING DEPARTMENT 101 Pauahi Street, Suite 3 • Hilo, Hawaii 96720-3043 - (808) 961-8288 • FAX(808)961-8742 August 23, 2006 Honorable Stacy K. Higa, Chair and Members of the County Council COUNTY COUNCIL County of Hawai'i 25 Aupuni Street Hilo, HI 96720 Dear Chair Higa and Members of the County Council: SUBJECT: DRAFT RESOLUTION 430-06 This letter is to express concerns about proposed Resolution 430-06, which is being circulated within the Council for comments. The resolution calls on the Planning Director to do a review of an ordinance that would change the current process for amending the General Plan. I would be happy to work on changes to the General Plan amendment process; it could be improved. The draft resolution, however, contains statements in the "Whereas" clauses that are not correct. These are referred to as "interpretations" of the General Plan process that are causing concern by the Council. They are not the Planning Department's interpretations of the process, nor are they Corporation Counsel's interpretations. The draft resolution also implies that the 2005 General Plan reduced the power of the Council in amending the General Plan, or made the Council's role more procedurally difficult, which is also not correct. The draft resolution says that: "WHEREAS, during a recent planning-director initiated Interim Amendment process, the county council discovered that an "interpretation" of subsection 16.2(2)(f) [the current General Plan amendment process] does not specifically allow the county council to Comm. No Z 1. Ref. TO: Pfp Hawai'i County is an Equal Opportunity Provider and Employer. Ref. Datp UG 2 Honorable Stacy K. Higa, Chair and Members of the County Council COUNTY COUNCIL County of Hawai'i Page 2 August 23, 2006 modify, delete, or add changes to Interim Amendments as the council is explicitly permitted to do in the comprehensive review process of the Hawai'i County General Plan; and "WHEREAS, in order the clarify this `interpretation', the county council also learned that, if it initiated an Interim Amendment pursuant to subsection 16.2(1) above, the Planning Director does not have to prepare a bill for an ordinance if the director does not recommend approval of the amendment following a feasibility study initiated by the director; and [skipping one "WHEREAS" clause] "WHEREAS, the Interim Amendment procedures of the Hawai'i County General Plan, as written, removes the authority of the legislative branch to reasonably formulate public policy by placing an inordinate amount of authority in the executive branch, whereby the planning director can block a council-initiated amendment to which the director does not agree;" (emphasis added). If the Interim Amendment procedures did give the Planning Director the power to block an amendment initiated by the Council, we would indeed have a major problem, and this would, in fact, violate the Charter. But in fact, the Planning Director must forward the Council-initiated amendment back to the Council, even with a negative recommendation. This is clear from sec. 16(2), which describes what happens to a proposed amendment after the Planning Director has made a recommendation: "(d) The Planning Commission shall submit its recommendation on the proposed amendment together with the Planning Director's feasibility study and recommendation to the County Council within 30 days from the close of the hearing. (e) The County Council shall review the proposed amendment in accordance with its rules of practice and procedure." I wrote to the Council about proposed Resolution 383-06, initiating an Interim General Plan amendment (since filed.) In that letter, dated July 17,2006, I specifically said: "Neither the Planning Director nor the Planning Commission can block an amendment proposed by the Council. Once the Council passes the resolution asking for the study, the Honorable Stacy K. Higa, Chair and Members of the County Council COUNTY COUNCIL County of Hawai'i Page 3 August 23, 2006 amendment itself will eventually come back to the Council for its action." I said exactly the same thing at the Planning Committee hearing on that resolution. It is true that sec. 16.2(1)(d) says that the Planning Director submits a draft bill to the Council "if the Planning Director recommends approval." This is a technical question of who actually prepares the draft bill, rather than giving the Planning Director some kind of veto power. Even if the Planning Director recommended denial of an interim General Plan amendment initiated by the Council, the Director should give advice on the how to amend the General Plan to accomplish the intent of the Council. The Director does advise the Council on planning matters, as well as the Mayor and Planning Commission, under sec. 6-4.2(a) of the Charter. At the July 18`h Planning Committee meeting, where the potential Council-initiated Resolution 383-06 was discussed, I specifically stated that even if I made a negative recommendation, I would advise on how to do an amendment fulfilling the intent of the Council, what specific sections of the General Plan would have to be changed, and assist in other ways. Similarly, I would assist the Council in putting proper conditions on rezoning ordinances even if I did not favor the rezoning. At the Planning Committee meeting on July 31", we had a discussion of the extent to which the Council can make changes to interim amendments. Some of my comments may not have been precise enough. It is sometimes better to put things in writing. The Charter clearly requires that the Planning Commission be allowed to comment on any amendment to the General Plan and make a recommendation to the Council. Sec. 6- 4.3(b). Thus, if the Council modifies an interim general plan amendment proposed by the Planning Director to the extent that it becomes a new amendment, then this must be reviewed by the Planning Commission. To take an example using the Land Use Pattern Allocation Guide (LUPAG) map: suppose the Director initiated an amendment that would change the map designation of an area from "Open" to "Low Density Urban". If the Council, considering the amendment after it had been forwarded by the Planning Commission, wanted to change the designation to "Medium Density Urban", this is really a new amendment. It is a different land use category. It has to be reviewed by the Planning Commission. This is not basically different than the practice with zoning changes, where the Council, to take another example, could not change a rezoning ordinance that went through the Planning Commission as an RS zone, to become an RM zone. In either case, the Charter requires Planning Commission review. I do think that the Council can reduce the size of a proposed map amendment in a way that makes it more like the status quo, without sending the modification back to the Honorable Stacy K. Higa, Chair and Members of the County Council COUNTY COUNCIL County of Hawai'i Page 4 August 23, 2006 Planning Commission. For example, if the Planning Director proposed to change a 100 acre area from "Open" to "Low Density Urban", the Council could decide to modify the amendment to only change 50 acres to "Low Density Urban", leaving the remaining 50 acres Open. It doesn't make much sense to say that this has to go back to the Planning Commission, because the Council clearly has to power to change all 100 acres by approving the amendment, or to change none, by rejecting it. On text changes, the Council clearly has the power to make wording changes that do not change the basic intent of the amendment, and I made no objection to several such amendments at the July 31-August 1 committee hearing. Finally, the draft resolution implies that the 2005 General Plan, which changed the amendment process, reduced the Council's authority and made the process slower. This is not correct. The previous process, sec. 6 of the 1989 General Plan, said that if the Council proposed any modification of an amendment proposed by the Director, this would have to go back to the Planning Commission. This seemed to require that a modification that only reduced the scope of a proposed amendment would still have to go back to the Planning Commission, contrary to what I believe is now possible with my 100 acre example above. Also, the 1989 General Plan did not specify a time frame for the Planning Commission to complete its hearing, so potentially it could go on indefinitely. The 2005 amendment do give a time limit. Again, I would be happy to work on an improved amendment process, but I did not want to leave some of the statements in the draft resolution uncorrected. Sincer CHRISTOPHER J EN Planning Director CJY:pak Wpwin60/Chris2/County Council - Draft Resolution 430.06