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HomeMy WebLinkAboutCOM 1077.000 2006-2008 . or. Harry KimDixie Kaetsu Mayor Managing Director Barbara Kossow ~h•os N~+ Deputy Managing Director County of Hawaii 25 Aupuni Street, Room 215 • Hilo, Hawai' i 96720-4252 • (808) 961-8211 Fax (808) 961-6553 KONA: 75-5706 Kuakini Highway, Suite 103 • Kailua-Kona, Hawai'i 96740 *y (808) 3215226 Fax (808) 326-5663 March 6, 2008 G Honorable Pete Hoffmann, Chairman and Members of the County Council County of Hawaii 333 Kilauea Avenue Hilo, HI 96720 Dear Chairman Hoffinann and Members: Planning Director Initiated Amendment to Chapter 2, Article 7, Hawai'i County Code 1983 (2005 Edition, As Amended) Relating to the Planning Commission's Review of a Draft Community Development Plan or Amendments Thereof /anning Director Initiated Amendment to Chapter 25 (Zoning), Article 2, Division 3, Section 25-2-35, Hawai'i County Code 1983 (2005 Edition, As Amended) Relating to Administrative Enforcement As required by Chapter 4, Sec. 6-4.3(C), Hawai'i County Charter, transmitted herewith for the County Council's consideration and action are the Planning Commission's letters and enclosures regarding the above-referenced requests. erel W CN~F Harry Kim Mayor Enclosures Comttt. No, 10011 cc: Planning Department Ref. Too Ref. Date WIAR 11 2~8 ~S" luy; ••••ji•YF:1~r' County of Hawaii PLANNING COMMISSION Aupuni Center • 101 Pauahi Street, Suite 3 • Hilo, Hawaii 96720 Phone (808) 961-8288 • Fax (808) 961-8742 March 6, 2008 Pete Hoffmann, Chairman and Members of the County Council 0 County of Hawaii 333 Kilauea Avenue, 2od Floor n Z Hilo, HI 96720 Dear Chairman Hoffmann and Council Members: -v , Planning Director Initiated w ty; Amendment to Chapter 25 (Zoning), Article 2, Division 3, rv Section 25-2-35, Hawaii County Code 1983 (2005 Edition, As Amended) -a Relating to Administrative Enforcement The Planning Commission at its duly held public hearing on February 22, 2008, voted to forward a favorable recommendation to the County Council on the Planning Director's request for an amendment to Chapter 25 (Zoning), Article 2, Division 3, Section 25-2-35, Hawaii County Code 1983 (2005 Edition, As Amended) relating to administrative enforcement. The proposed amendment states that "an appeal to the board of appeals shall not stay the provisions of the (planning) director's order pending the final decision of the board of appeals." The Planning Director's reasons for the request are as follows: The purpose of the request is to provide for the assessment of fines for violations of the zoning code during the appeal process. As Section 25-2-35(f) is currently written, the provisions of the director's order (including fines) are stayed until a final decision is reached by the board of appeals. This allows the violator to continue to violate the zoning code without being assessed a fine until the appeal process has been concluded and the violator loses the appeal. This ordinance will amend Section 25-2-35(f) to allow the department to assess a fine during the appeal process and impose the accrued fine if the violator loses the appeal. The City and County of Honolulu's zoning code contains the same language proposed by this ordinance and has been upheld by the Hawaii Supreme Court as constitutional. xawai'i County is an Equal Opportunity Provider and Employer Pete Hoffmann, Chairman and Members of the County Council Page 2 Chapter 25 (Zoning), Article 2, Division 3, Section 25-2-35, Hawaii County Code 1983 (2005 Edition, as amended) is proposed to be amended as follows (added material is underlined and material to be deleted is bracketed and stricken): Section 25-2-35. Administrative Enforcement "(f) Any person adversely affected by any order issued under this section, may within thirty days after the service of the order, appeal the order to the board of appeals as provided by section [5-6-3]6-10.2, County Charter and sections 25-2-20 through 25-2-24. An appeal to the board of appeals shall not stay the provisions of the director's order pending the final decision of the board of appeals." We have also enclosed transcripts of the hearings and the Director's Background/Recommendation Report for your information. Should you have questions regarding this matter, please contact the Planning Director at 961-8288. Sincerely, _ Rodney atanabe, Chairman Planning Commission IpdinitiatedadminenforcementO I pc Enclosures cc: Planning Department-Kona Licoln Ashida, Esq. BRMInitiatedFnfdo 1/18/07 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND AND RECOMMENDATION INITIATOR: PLANNING DIRECTOR AMENDMENT TO CHAPTER 25 (ZONING), ARTICLE 2, DIVISION 3 HAWAII COUNTY CODE (2005 EDMON. AS AMENDED) Amendment to Chapter 25 (Zoning), Article 2, Division 3, Section 25-2-35, Hawaii County Code 1983 (2005 Edition, as amended) relating to administrative enforcement. The proposed amendment states "an appeal to the board of appeals shall not stay the provisions of the (planning) director's order pending the final decision of the board of appeals." PROPOSED ACTION 1. Background: The purpose of the request is to provide for the assessment of fines for violations of the zoning code during the appeal process. As Section 25-2-35(f) is currently written, the provisions of the director's order (including fines) are stayed until a final decision is reached by the board of appeals. This allows the violator to continue to violate the zoning code without being assessed a fine until the appeal process has been concluded and the violator loses the appeal. This ordinance will amend Section 25-2-35(l) to allow the department to assess a fine during the appeal process and impose the accrued fine if the violator loses the appeal. The City and County of Honolulu's zoning code contains the same language proposed by this ordinance and has been upheld by the Hawaii Supreme Court as constitutional. Chapter 25 (Zoning), Article 2, Division 3, Section 25-2-35, Hawaii County Code 1983 (2005 Edition, as amended) is proposed to be amended as follows: Section 25-2-35. Administrative Enforcement "(f) Any person adversely affected by any order issued under this section, may within thirty days after the service of the order, appeal the order to the board of appeals as provided by section [3-b3]b-10.2- County Charter and sections 25-2-20 through 25-2-24. An appeal to the board of appeals shall not stay the provisions of the director's order pending the final decision of the board of appeals." 4- RECOMMENDATION For the reasons cited above, the Planning Director recommends that the Planning Commission send a favorable recommendation to the Hawaii County Council for the amendment to Chapter 25 (Zoning), Article 2, Division 3, Section 25-2-35, Hawaii County Code 1983 (2005 Edition, as amended) relating to administrative enforcement. The accompanying draft bill is provided for your favorable consideration. -2- COUNTY OF HAWAII STATE OF HAWAII *0o, BILL NO. ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 25, ARTICLE 2, DIVISION 3, SECTION 25-2-35, HAWAII COUNTY CODE, 1983 (2005 EDITION) RELATING TO ADMINISTRATIVE ENFORCEMENT. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAI'L SECTION 1. Purpose and intent. SECTION 2. Chapter 25, article 2, division 3, section 25-2-35, Hawai'i County Code 1983 (2005 edition), relating to administrative enforcement is amended as follows: "Section 25-2-35. Administrative enforcement. (a) In lieu of or in addition to enforcement pursuant to sections 25-2-31, 25-2- 32, and 25-2-34, if the director determines that any person is violating any provision of this chapter, any rule adopted thereunder, or any permit issued pursuant thereto, the director may have the person served by personal service or by certified mail, with a notice of violation and order pursuant to this section. The director may also have a copy of the notice of violation and order posted at the building site. (b) The notice of violation shall include at least the following information: (1) Date of the notice; (2) Name and address or the person noticed; (3) Section number of the provision, or rule, or the permit which has been violated; (4) Nature of the violation; and (5) Location and time of the violation. (c) The order may require the person to do any or all of the following: (1) Cease and desist from the violation; (2) Correct the violation at the person's own expense before a date specified in the order; (3) Pay a civil fine not to exceed $500 per day for each day in which the violation persists, in the manner and at the time and place specified in the order; (4) Pay a civil fine not to exceed $500 per day for each day in which the violation persists, in the manner and at the time and place specified in the order. -1- i (d) The order shall advise the person that the order shall become final thirty days after the person's receipt of the order, unless the director's decision is appealed to the board of appeals within the thirty-day period. (e) The provisions of the order issued by the director under this section shall become final thirty days after the receipt of the order, unless the director's action is appealed to the board of appeals as provided in this section. (f) Any person adversely affected by any order issued under this section, may within thirty days after the service of the order, appeal the order to the board of appeals as provided by section [3-6:3]6-10.2, County Charter and sections 25-2-20 through 25-2-24. An appeal to the board of appeals shall not stay the provisions of the director's order pending the final decision of the board of appeals. (g) The director may institute a civil action in any court of competent jurisdiction for the enforcement of any order issued pursuant to this section. Where the civil action has been instituted to enforce the civil fine imposed by said order, the director need only show that the notice of violation and order were served, that a civil fine was imposed, the amount of the civil fine imposed and that the fine imposed has not been paid. (h) Annually, on September 1, the director shall file with the bureau of conveyances, liens on all properties which have been the subject of fines levied under this section, which remain unpaid for one year or more after final adjudication and the expiration of the time for any further appeal. (i) Fines, assessed under this section shall constitute a lien upon the subject property upon the filing of said lien with the bureau of conveyances. This lien shall be considered for purposes of authority, to be the equivalent liens which arise pursuant to the provisions of chapter 19 of this Code." SECTION 3. Material to be deleted is bracketed and struck through. New material is underscored. SECTION 4. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 5. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: Date of I" Reading: Date of 2"1 Reading: Effective Date: -2- PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT FEBRUARY 1, 2008 A regularly advertised hearing on the PLANNING DIRECTOR'S AMENDMENT TO CHAPTER 25 (ZONING), HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED) REGARDING BOARD OF APPEALS was called to order at 9:52 a.m, in the County of Hawaii, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: Rodney Watanabe ABSENT & EXCUSED: Takashi Domingo Kimo Alameda Rene' Siracusa Lani Bowman Andrew Iwashita Shelly Ogata Alvin Rho Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately nine people from the public in attendance. INITIATOR: PLANNING DIRECTOR Amendment to Chapter 25 (Zoning), Article 2, Division 3, Section 25-2-35; Hawaii County Code 1983 (2005 Edition, as amended) relating to administrative enforcement. The proposed amendment states that "an appeal to the board of appeals shall not stay the provisions of the (planning) director's order pending the final decision of the board of appeals." WATANABE: Agenda Item No. 4 is Planning Director initiated Amendment to Chapter 25 (Zoning), Article 2, Division 3, Section 25-2-35, Hawaii County Code 1983 (2005 Edition, as amended). Mr. Director. YUEN: This is another amendment to the Zoning Code that deals with enforcement. And this is an aspect that the Commissioners are not normally involved in, so let me give some background on it. Naturally, and you saw we had two individuals here who came for the previous matter who are our zoning inspectors. I should have introduced them; and they do a great job for us, Robert Usagawa and Scott Leonard. So when we get complaints of violations of the Zoning Code, things like somebody running a trucking baseyard out of an agricultural lot, or having chickens in a residential lot, or a junk yard in a residential lot, the inspectors write up a notice of a violation and they file a citation. The Code, the person who has 1 been cited has the right to appeal this violation to a group called the Board of Appeals. It's something like the Planning Commission. It's a group that's appointed by the Mayor and really serves as a check or a control on the Planning Director running amuck and violating the rights of the public. So the Board of Appeals can overturn the violation notice. They have a standard of review where if the Planning Director is clearly erroneous or the Planning Director has acted in violation of the law or acted arbitrarily and capriciously, the Board of Appeals can overturn that violation notice. Now when the violation notice goes out, it typically will say you have, and let's take the example of a person running a business out of a residential area that they're not supposed to run. It will say you will have "x", you know, you must stop running your business. If you keep violating it from this date forward you will have a fine of $100 a day. That's atypical violation notice. The law says that, currently the Zoning Code says that if you appeal that violation notice, the enforcement and the penalties are stayed until the appeal is finished. And so what happens is that if a person then makes an appeal they can continue running the business without accruing these fines until the appeal process has been finished at the Board of Appeals. This sometimes takes several months. So no matter how poor their case is they have an incentive to file the appeal. So we have noticed, and people start to understand this, that we get lots of appeals in this situation. So our proposal is that it changes so that the fines, if they continue to operate the fines will continue to run. Now if they win at the Board of Appeals, naturally they were right, we were wrong, there's no fine. But they have to take that risk if they choose to operate. So it doesn't mean, now they, and we don't ever You noticed my inspectors did not have guns strapped to their sides. We never actually go out with a gun and say you have to stop doing what you're doing. We give them a piece of paper that says you have to stop doing what you're doing. If it's an urgent matter, we can go to court, and go to court and get an injunction. So the person, you know, they have a choice. If they really feel that they are correct and they want to take that chance, then they can continue operating. Then they will accrue these fines if this passes the way it is. But it will take away this incentive of people to appeal just to buy time. WATANABE: Thank you. ALAMEDA: Question. WATANABE: Mr. Alameda. ALAMEDA: Sure, thanks. Thanks, Mr. Director. I like your way of explaining it, which allowed me some questions. So how much does it cost to appeal? YUEN: It's $250. ALAMEDA: Okay. Now if they end up correct and the Department is wrong, do they get all their money back from the fines? Because they've got to pay up to the appeal, right, their proposal? YUEN: We will never have actually the collected the fines pending the appeal. I mean, well, the fines will accrue. ALAMEDA: Right. But they're not paying it since the fines 2 YUEN They do not have to pay them. ALAMEDA: Okay, so if they are correct they don't pay the fines? YUEN: That's right. ALAMEDA: Even if it's accrued it doesn't matter? YUEN: Right. Then it will be wiped out. ALAMEDA: Right. But if the Department is correct, then they pay those fines that are accrued? YUEN: Right. ALAMEDA: And the law is saying right now that once they appeal, fines, there's no accruement; so there's a big motivation for them appeal just so they can stop accruement. Is that correct? YUEN: Right. ALAMEDA: And this proposal, what you're sharing with us, would eliminate that option for them so that it will decrease the motivation just to appeal? YUEN: Exactly. ALAMEDA: Got it. Thank you. WATANABE: Yes, Mr. Woodward. WOODWARD: Yeah, Chris, I'd like to ask, if they appeal and fines have been set at a certain level and they lose their appeal, do they have to pay the fine between the time that they appeal and the time the appeal is judged in your favor or not? YUEN: If they continue the activity, yes. WOODWARD: Okay. So if they appeal it puts the fines on hold but it doesn't stop them so that if they lose the appeal they have to pay those fines for the days between the time that the appeal was filed and the time that they were denied? YUEN: Right. If this amendment is passed, that's what would happen. WOODWARD: But that's not what happens now? YUEN: Correct. WOODWARD: Okay. And also I think you ought to get guns for the inspectors. 3 WATANABE: I thought you were from California, not Texas. WOODWARD: I lived 22 years in Texas. WATANABE: Do we have any further questions on this? Mr. Iwashita? IWASHITA: Thank you, Mr. Chair. So this language is it intended just to the fines or - ? 1 guess, cause I'm not really familiar with any other provisions of a violation notice. But is this just intended for fines or for other kinds of provisions? YUEN: It would really just apply to the fines because we, to actually stop We give somebody a violation notice that says that they're supposed to stop. But if they continue they only, we have only two choices: One is that they're getting a daily fine; and then we can go to Court for an injunction. But we don't have the power to physically make somebody stop. But say the Court, if somebody doesn't stop, eventually you're in contempt of court and eventually there are sheriffs and there's police; and then you get to that point. So as a practical matter this only affects the running of a fine. Now, again, if we had something really urgent, even at the present time we could go and get an injunction against somebody. That, but if somebody, you know, we see a serious violation that we think needs to be stopped right away and we cite with a notice of violation and the person keeps doing it, if you think about the physical aspect of when somebody, you give somebody a piece of paper that tells them to stop doing what they're doing and they keep doing it and you'd have to take it to the next level, we don't have the ability to use force to make them actually stop. WATANABE: So the only times you would it consider urgent is say like when you have irreparable harm or what is deemed to be it reparable harm to either the environment or surrounding neighborhood? YUEN: Right, right. WATANABE: Okay, okay. Yes, Mr. Iwashita. IWASHITA: If the intent is that it's to apply to fines, then can we limit the language to fines? Cause, you know, some creative lawyer might come along and make some kind of argument that, you know, like Ivan. But if it's intended just to apply the fine aspect of a violation notice then it'd be my preference that the language be limited to that aspect. WATANABE: Would you care to comment or maybe, cause we're not going to make a decision today, possibly think that over? And if you decide in favor maybe you could present a revision at the subsequent meeting in West Hawaii. YUEN: We could have our Deputy Corporation Counsel look at that. WATANABE: Take a look at that. YUEN: Right. 4 WATANABE: Cause I'm not sure you want to make that call on the fly. Does that satisfy you? IWASHITA: Sorry I made work for you, Ivan. WATANABE: I beg your pardon? IWASHITA: Just apologies to Ivan on the record. WOODWARD: Mr. Chairman? WATANABE: Yes, Mr. Woodward. WOODWARD: If I might have one question. If we change the language on this, do we have to bring it back here again? I mean it has to go to Kona. If we change the language does it have to come back here? WATANABE: It may, yeah. It may if the language is, I would say, substantive, a substantive change. It sounds like it may not really be a substantive change, if anything. WOODWARD: Thank you. WATANABE: And, again, I'm not sure that it would even come about at this point. I would leave it up to the experts. WOODWARD: That would be Mr. Torigoe's call, I would think. ALAMEDA: Mr. Chair? WATANABE: Yes, Mr. Alameda. ALAMEDA: Just one final thought on my end. So if the Board of Appeals, how many members on the Board of Appeals? YUEN: Seven. ALAMEDA: Okay. And if their job primarily is to keep the Director in check from running amuck, they wouldn't consider this action on the Director's part as part of running amuck, or would they embrace this action on your part, Mr. Director? YUEN: Well, the Board of Appeals still has jurisdiction over the violation. So if they think it's not a violation, they can reverse the violation; and then there's no violation and there's no fine. The person can also appeal, for example, the amount of the fine. They typically appeal the whole idea of the violation. But the Board of Appeals can modify the Director's decision if, again, following the standard of review. If they find that it's arbitrary, capricious, violates the law, a clearly erroneous decision, they can reverse or modify the Director's decision. This doesn't take away that power from the Board of Appeals. All it does is if the Board of Appeals actually sustains the Director's decision then the person who has done the violation, if 5 they have continued to operate or continued in the violation during the time of the appeal they will have au additional fine that's accrued. So then they have to be careful about their decision to continue. ALAMEDA: Okay. I was just thinking I thought it might, I like the proposal because it would limit the frivolous appeals, if you will. WATANABE: Do we have any further Mr. Woodward. WOODWARD: Well, I think it's basically a great idea. You can't use the Board of Appeals as an out if you've committed a violation to avoid the penalties; and that's what people are doing right now. You know, if the IRS tells you owe money, they are not going to wait, you know; and you've got to pay it now. Same thing should be true here, that is if there has been a violation you pay the fine. If, you know, you take it to IRS court, or to the Federal courts, and you win then the IRS gives you your money back. Same thing ought to happen here. If you go to the Board of Appeals and you win, then we give you your money back, not a problem. WATANABE: Thank you. Do we have any further comments? ALAMEDA: Well, I'm ready to make a motion or Are we deferring? WATANABE: Yes, we would be deferring, so maybe it'd be simpler if we defer by consensus to continue to the next West Hawaii meeting. With that, if everyone is okay, all in favor of continuing to the next West Hawaii meeting, please say aye. COMMISSIONERS: Aye. WATANABE: Any opposed? Thank you. By the way, for the record there was no one signed up to testify for this. The discussion ended at 10:05 a.m. Respectfully submitted, Q- Y'` - ulurrw~ _ Sharon M. Nomura, Secretary 6 PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT FEBRUARY 22, 2008 A regularly advertised hearing on the PLANNING DIRECTOR'S AMENDMENT TO CHAPTER 25 (ZONING), ARTICLE 2, HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED) REGARDING BOARD OF APPEALS was called to order at 10:40 a.m. at the Waikoloa Beach Marriott Hotel, Alii I, 69-275 Waikoloa Beach Drive, Waikoloa, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: Andrew Iwashita Lani Bowman Takashi Domingo Shelly Ogata Alvin Rho Rene' Siracusa Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Christopher Yuen, Planning Director And no one from the public in attendance. INITIATOR: PLANNING DIRECTOR Amendment to Chapter 25 (Zoning), Article 2, Division 3, Section 25-2-35, Hawaii County Code 1983 (2005 Edition, as amended) relating to administrative enforcement. The proposed amendment states that "an appeal to the board of appeals shall not stay the provisions of the (planning) director's order pending the final decision of the board of appeals." WATANABE: We are now on Agenda Item No. 3; this would be Planning Director initiated amendment to Chapter 25 (Zoning), Article 2, Division 3. And with that, I'll turn it over to Mr. Yuen. YUEN: Yes, good morning. Again, this is a matter that we did talk about a little bit at our last meeting. This relates to enforcement. And what happens when there is a Zoning Code violation, the Planning Department will issue a letter typically saying - and in a typical scenario somebody has an unpermitted use going on that, something that's not permitted in the zoning district - so the Planning Department letter will say, stop doing what you are doing, or if you don't stop by a certain - and it'll give a fairly short timeframe, if it's a stop-doing thing especially, it'll have a fairly short timeframe to stop - and it'll say if you don't stop by such and such a date, then daily fines will commence. It will also say that the person has the opportunity 1 to appeal this to the Board of Appeals. The Planning Department is not given absolute power in this; there is a check and balance in that the person can make an appeal to the Board of Appeals and challenge and say what I'm doing is allowed in the zoning district or I'm not doing it anyway, and challenge the notice of violation. So currently the Code says that the appeal stays the provisions of the order. So it'll also, it operates to stay the fine. So that means that if the person continues doing what they are doing, what with, they appeal and they continue what they are doing, there is no fine until the final action of the Board of Appeals, which typically can be two to three months down the road. And if there're any delays, then again they just get to keep on with the activity. Now so this proposal is to change the Zoning Code, so it says that the appeal does not stay the order of the Director. Now as a practical matter, this applies really only to the running of fines. So and what it means is that the person would, if the person stops what they are doing, they can still appeal, and if they win, then they can start up again. If they, but, and if they stop doing what they are doing, then they don't have any daily fines; they don't accrue. So that's the choice of the person that's been cited. If the person wants to keep doing the activity despite the cease and desist order, then they run the risk that they will lose at the Board of Appeals and then the fines will accrue during that timeframe. Our concern about the current situation is that it does create an incentive for the person to make an appeal regardless of the merits because it allows them to continue with whatever they, whether it's a, you know, they might be operating an auto repair shop in a residential neighborhood, something like that; that gives them two to three months that they can keep doing what they are doing in the violation and not have any consequences while the appeal plays out. So that's the reason for this amendment. WATANABE: Do we have Mr. Domingo. DOMINGO: Mr. Yuen, have you had any occasion where people have been doing this and they somewhat abuse the provisions of the law? YUEN: Yes. DOMINGO: Plenty? YUEN: Yes. Well, from our point of view, yes. You know, we have had appeals where the Department ultimately was successful and we felt that certainly there was no question or doubt that there was a violation. But the appeal happened and the person, you know, continues to operate for several months while the appeal runs its way on the process, and at the end of the appeal the Department is upheld, but the person has operated for several months. DOMINGO: Mr. Torigoe WATANABE: Follow-up? DOMINGO: Mr. Torigoe, can you think of any situation, and not specifically only to, you know, these land use matters, in which a law is broken and that, you know, you follow the same pattern that is followed by what this, the present ordinance permits? 2 q TORIGOE: Mr. Chairman. You know what's strange is that my understanding is that the City and County of Honolulu has basically the same provision but it says that an appeal well, basically it says what the Director wants this to say now; theirs says that an appeal to the Board of Appeals shall not stay the provision. So I think that that's the general pattern, and what we have here is kind of aberration. Maybe it was a clerical error, you know, where the "not" originally was taken out. WATANABE: Satisfied? DOMINGO: Thank you. WATANABE: Okay. Ms. Siracusa. SIRACUSA: And speaking of clerical errors, we do have one here in the ordinance because Section (c), Nos. (3) and (4) are exactly the same thing; they both read, "Pay a civil fine not to exceed $500 per day for each day in which the violation persists, in the manner and at the time and place specified in the order." We have it twice. Does that mean that they pay $1,000? So I'm just pointing that out. But I did have a question also. Shall I give you a minute first to look at that in the ordinance? Section 25-2-35, (c), (3) and (4). WATANABE: Yeah, I believe that is a clerical error, yeah? SIRACUSA: So what I'm wondering is, should there only be (3) or was there a different (4) that we don't have here before us? Because if it just ends with (3), there is no problem; we just say, okay, delete (4). But if there was something else that was supposed to be under (4), then we really shouldn't vote on this, if we don't know what we are voting on over there. And then I have a question, but I'll hold that while Shall I hold the question while the Director looks up? WATANABE: Yeah, let's clear this up first. SIRACUSA: Okay. YUEN: Okay, yeah, you are correct. The bill that's attached has a mistyping. Okay. What you have attached, (3) and (4) are exactly the same, whereas the actual ordinance which - and we are not trying to change the section of the ordinance - the actual ordinance, (3) is different from (4) in the current Zoning Code. Three is supposed to say, "Pay a civil fine not to exceed $500 in the manner" - which is also probably a, probably should say "matter" - "at the place and before the date specified in the order." And then (4) has the same reading as here. And so the way it's supposed to work in the Code is that you can enact a $500 fine under Subsection (c) (3), and then you have a $500 a day fine in Section (c) (4). So you are correct; what you have attached in this is, where (3) and (4) read exactly the same, is a mistyping where (c) (3) has a different wording than (c) (4) in the actual County Code. So we'll correct that. SIRACUSA: So (c) (3) is supposed to say "matter" with "t," and (c) (4) is "manner," or 3 YUEN: Thanks for correcting that. We'll make that change. Because that whole section of (c) (3) and (4) is not supposed to change, was not supposed to be changed at all, and it is In what you have before you, (c) (3) is put in wrong. SIRACUSA: So (3) is wrong. WATANABE: Yeah. YUEN: (c) (3) is wrong; should read differently SIRACUSA: Okay, but that's nothing that we are going to be voting on, right? We are not voting on anything to do with (3). YUEN: Right. There is no change intended to (c) (3); it's just that it was typed in wrong in the bill that you have in front of you. SIRACUSA: Okay, so it's irrelevant for our purposes. Then I go to my question then. WATANABE: Okay. SIRACUSA: Chris, and that is, suppose someone appeals, right? Is there a filing fee to appeal? YUEN: Two hundred fifty dollars, yes. SIRACUSA: Okay, I thought that was it, but I wasn't sure. Suppose the appellant wins the appeal, is their filing fee also reimbursed to them? YUEN: No. SIRACUSA: So even if they were right in the first place, and the Planning Department was wrong in issuing them the cease and desist and the violation notice, they still have to eat that fee. YUEN: Yes. WATANABE: That is SIRACUSA: That doesn't seem fair. WATANABE: That is May I comment? That is not uncommon within our system; if I were to sue you and it was a frivolous suit and you had to defend yourself and hire an attorney, and I basically didn't have any money, you couldn't get back it from me, either. So it sometimes costs you money to prove that you were right or innocent. DOMINGO: Or wrong. WATANABE: Yeah. 4 YUEN: That's correct, Ivan, right, that there is no provision for the return of the filing fee in the ordinance? TORIGOE: I'm trying to recall if I have some vague recollection that in certain circumstances when one might be able to, but I can't remember if it was just like a, you know, poverty situation or something like that. We don't have the Board of Appeals Rules, do we? SIRACUSA: It just seems like, if the Planning Department, for example, was acting frivolously, you know, not saying that you would or you do, but you know, you are not going to be the only Planning Director in the world, and the person really was innocent all along and, you know, where he's shown to be right, it seems that they shouldn't have to bear that cost. After all, to use Rodney's example, if somebody were to sue me for something and I have to defend myself, you know, then 1 could always have the option of suing them for court costs and attorney's fees, that sort of thing, right, so, to get back what I needed to defend myself. WATANABE: It's not uncommon ALAMEDA: Mr. Chair? WATANABE: But then again, you know, what you are discussing, I believe is potentially a separate amendment, to another section? SIRACUSA: Because I do support this; I do think we need some teeth here to close the loophole where some really ugly and possibly even hazardous violations are taking place. But at the same time, it seems like if somebody is found to be innocent or not in violation at the very least, it shouldn't cost them money to have to WATANABE: Well, on the other hand, it may be like I SIRACUSA: I mean it cost them money in the first place when they file their appeal; but they should be at least be able to recover that WATANABE: I understand where you are headed. But it may be in a different statute and a separate amendment that would be required, yeah? And so I'm not sure if we want to go there right at this moment. Mr. Woodward. WOODWARD: Yes, Mr. Chairman. I seem to remember, because I did actually appeal a property tax increase; and my recollection was that if you were successful, that they would refund your filing fee. But that's honestly neither here nor there because we are not voting on that. We are voting on what we are going to do; these are going to be the Board of Appeals rules, and we have no jurisdiction in that regard. So whether or not it's fair and what they do, that's really not something for us to consider. We have to consider what we need to do. And as I pointed out at the last meeting when we discussed this, you know, if the IRS sends you a bill, says you owe more taxes, and you file an appeal to Tax Court, you still have to pay the money. And you know, if you are successful, you get it back. And that's the way it ought to be here. I mean there is no reason to give people a chance to escape just because they file an appeal. So I 5 think this is a clear-cut issue. And the question of whether or not the Board of Appeals gives them their, you know, filing fee back, that's really not a matter that we can consider. WATANABE: Thank you. SIRACUSA: You are correct. And I thank you for pointing that out to me. WATANABE: Okay. Any further comments, Mr. Alameda? ALAMEDA: Yeah, I just want to say but I mean Ms. Siracusa's point is well taken that we should make a mental note of that; just because it's commonly done, it doesn't make it right. That's all. WATANABE: Mr. Domingo. DOMINGO: Just wondering. Does this apply to the Special Permits also? The collection of fines? YUEN: Yes. You know, in a sense that if we cited somebody for violating the terms of a Special Permit or other approval, we would, they could appeal If it was a revocation, we would bring it to the Commission; if we were citing somebody for violating the terms and making a fine, then it's something that they could appeal to the Board of Appeals, and so then it would apply to this as well. DOMINGO: If it's a revocation, then if the Planning Commission concurs with the Department, what will then happen with the fines that have been imposed in the past? YUEN: We would, they would stick. Say, what would happen is that we cited somebody for violating terms of a Special Permit and fines are accruing, and then we decided to bring the matter to the Commission to revoke because the Planning Department cannot just revoke the Special Permit; it's the Commission's permit. Then the Commission would vote on the revocation. Now that decision, by the way, doesn't go to the Board of Appeals because only the administrative decisions from the Director go to the Board of Appeals. It used to, appeals from the Planning Commission used to go to the Board of Appeals, but that was changed in the Charter. The appeal from your decision would be to the Circuit Court. Say, if you revoked a Special Permit and the person didn't like that decision, then they can appeal that to the Circuit Court. WATANABE: Okay, thank you. Any further discussion on this matter? SIRACUSA: I'm prepared to make a motion, if there is no discussion. WATANABE: Okay, it seems like we are ready for the motion then, Ms. Siracusa. SIRACUSA: In the matter of the Planning Director initiated amendment to Chapter 25, Zoning Code, Article 2, Division 3, Hawaii County Code 2005 Edition, as amended, relating to administrative enforcement, I move that we approve 6 WATANABE: Send a ALAMEDA: Second. WATANABE: Favorable recommendation? Send a favorable recommendation, yeah? SIRACUSA: Right, thank you. ALAMEDA: Second. SIRACUSA: I move that we send a favorable recommendation up to the County Council. ALAMEDA: Third. WATANABE: Okay. So it's been moved and seconded that a favorable recommendation be forwarded to the County Council. Any further discussion? Mr. Hayashi. HAYASHI: Thank you, Mr. Chair. Just for clarification, the typo error on SIRACUSA: Right. HAYASHI: The bill that was submitted will be corrected by staff SIRACUSA: As corrected. HAYASHI: Yes. SIRACUSA: With the typo error corrected. HAYASHI: Also just to let the Commission know, we are voting on the bill that has a Purpose to the bill; the first one we sent out to you, which was replaced at the last meeting, did not have the Purpose and the Intent. The one that we are adopting today or recommending or considering today has the Purpose included. SIRACUSA: And both of those had that typo? HAYASHI: Yes. SIRACUSA: Yes. HAYASHI: We apologize for that. With that, Commissioner Siracusa? SIRACUSA: Aye. HAYASHI: Commissioner Alameda? ALAMEDA: Aye. 7 HAYASHI: Commissioner Bowman? BOWMAN: Aye. HAYASHI: Commissioner Domingo? DOMINGO: Aye. HAYASHI: Commissioner Ogata? OGATA: Aye. HAYASHI: Commissioner Rho? RHO: Aye. HAYASHI: Commissioner Woodward? WOODWARD: Aye. HAYASHI: And Chair Watanabe? WATANABE: Aye. HAYASHI: Mr. Chair, motion carries. WATANABE: Thank you. The discussion ended at 11:01 a.m. Respectfully submitted, Noriko Sauer West Hawaii Secretary S