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HomeMy WebLinkAboutREP PC 078 03/24/2008 2006-2008 REPORT OF THE COMMITTEE ON PLANNING DATE: March 24, 2008 Re: Comm. 1077/Bi11265 PLACE: Councilroom 333 Kilauea Avenue, 2"'~ Floor Hilo, Hawaii 96720 TIME: 1:30 p.m. Council Chair and Members Hawaii County Council Hilo, Hawaii 96720 Your Committee on Planning, to which was referred Bill 265, reports as follows: Bill 265, transmitted via Communication 1077 from Mayor Harry Kim, dated March 6, 2008, presents an amendment to Chapter 25 (Zoning Code), initiated by the Planning Director. Bi11265 seeks to amend Chapter 25, Article 2, Division 3, Section 25-2-35, Hawaii County Code 1983 (2005 Edition, as amended), relating to Administrative Enforcement. Communication 1077 reports that the Hawaii County Planning Commission, as required by Chapter 4, Sec. 6-4.3(C), Hawaii County Charter, considered the above request on February 22, 2008 and voted to forward a favorable recommendation to the County Council on the Planning Director's request. 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 purpose of the request is to provide for the assessment of fines for violations of the Zoning Code during the appeal process. The current provision of the Code states that the Director's order, including fines, are stayed until a final decision is reached by the Board of Appeals which allows a violator to continue in violation without being assessed a fine until the appeal process is completed and the violator loses on appeal. The proposed amendment to Section 25-2-35(f) will 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. At the March 24, 2008 Planning Committee meeting public testimany was presented by Mr. Tim Reese who expressed his general agreement with the intent of the bill but stated he would prefer that it provide that actual payment of fines be stayed until the outcome of the appeal to allow for proper due process. PC Report No. 78 Communication 1077 Bill 265 Page 2 of 3 Planning Director Yuen explained that typically what happens when the Department receives a complaint is that an inspection is performed, and if a violation is found to exist, a written notice is mailed advising the person to cease and desist the illegal activity by a certain date. The letter also advises the person that if the violation does not cease, a tine will accrue. The letter also informs the person of his right to appeal the Director's order to the Board of Appeals. Director Yuen said that under the current language of the code, the Director's order is stayed until a final decision is made by the Board of Appeals which allows the activity, determined to be an illegal activity, to continue throughout the entire Board of Appeal process. Council Member Ford expressed her concern regarding how the Department ensures that once a notice to cease and desist is issued, the violation does in fact cease and stated that she felt the cost of pursuing an appeal should be reimbursed in the event the appeal is won. Director Yuen responded that typically, filing fees and application fees are non-refundable. Mr. Yuen also stated that inspectors from his Department conduct follow-up inspections to determine if a violation has in fact ceased after a notice has been issued. Council Member Jacobson stated his support for this important measure, and noted that in his experience, the Planning Department has done an excellent job in addressing complaints and conducting follow-up inspections. Council Member Yagong felt that a fine should be levied at the time the Board of Appeals determination confirms a violation. Mr. Yagong stated he sincerely believes that a substantial amount of anxiety would be inflicted on a person upon being informed that if he chose to appeal and was unsuccessful, a substantial amount in potential fines will have accrued and become due. Mr. Yagong's concern was that this may in fact deter people who feel they have a valid claim from appealing and not pursue their right to due process. Corporation Counsel Amy Self explained that the Hawaii Supreme Court has upheld that the amendment being proposed in Bi11265 is not a due process violation. Ms. Self explained that the current trend and practice has been to conduct and operate an illegal business until a complaint is filed and a notice of violation issued. Ms. Self also noted that the current code has been utilized by individuals to obtain permits "after-the-fact" while continuing to operate anon-conforming business without being penalized. Director Yuen stated that the proposal is not meant to be a disincentive to appeal but rather intended to discourage the violator from continuing the illegal activity during the appeal. Council Member Yoshimoto noted that initially Bill 265 seemed to be a good proposal, however, after hearing comments of Council Member Yagong, he stated that his concern was for the person who may in fact have a legitimate claim. Mr. Yoshimoto stated that for those who clearly circumvent the process and obtain after-the-fact permits, then the proposal is fine, however for the people with legitimate claims, the possibility of having to pay a substantial amount if the appeal results in an unfavorable decision, the proposal may work against them. Corporation Counsel Amy Self explained that the Corporation Counsel as well as the Planning Department diligently works with the parties to resolve violations and that the main concern is not how much fines can be collected, but rather their focus is on the need to stop circumvention of obtaining required permits and illegal operations. In fact, Ms. Self noted that even if a person PC Report No. 78 Communication 1077 Bill 265 Page 3 of 3 doesn't appeal, her office and the Department can usually negotiate the fine amaunt and afford them the benefit of the doubt. Council Chair Hoffmann noted an example in Waimea of an automobile "chop shop" operating in the middle of a residential area in which the violator refuses to comply and has complete disregard for its ongoing violations. In situations such as this, Mr. Hoffmann stated the Director's proposal should be supported, and acknowledged Mr. Yuen's conclusion that the assessed fine is intended as a tool to bring a person into compliance. Your Committee on Planning is in accord with the purpose and intent of Bill 265 and recommends it pass first reading. and nvas rvoes nee ex Respectfully submitted, FORD X HIGH X COMMITTEE O~ PLANNING HOFFMANN X IKEDA X / JACOBSON X NAEOLE X K. ANGEL PI GO, CHAIR PILAGO X YAGONG X PC REPORT NO. 78 YOSHIMOTO X ADOPTED: APR OAPR 9 7OOA7OOA