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HomeMy WebLinkAboutCOM 0088.017 1998-2000 PO Box 1366 Kamuela HI 96743 February 14, 1999 ~ , Mr. James Arakaki, Council Chair Mr. Al Konishi, County Clerk Hawaii County Council 25 Aupuni Street Hilo, HI 96720 Dear Mr. Konishi and Mr. Arakaki: To my understanding the process envisioned for passage of Bill 250, which introduces both drafts four and nine for first reading, is not in compliance with the Court Order. Would you consider the following explanation. 1) The County already moved the Court on January 6, 1999, to refer back to the Council for ratification draft eight (the existing code). The Court denied the motion. Assuming as Mr. Konishi's transmittal states, that draft nine includes only non-substantive corrections to draft eight, the County Council by bringing on both drafts four and nine for first reading is accomplishing the effect denied by the Court. The procedure is unprecedented and evidences this intention. You may not have seen the transcript of the clarification hearing. On January 6, 1999 the Court stated that the Council might have the foresight to with draft eight as a new bill, with a different number, following proper procedures and Ramsayered. Corporation Counsel Wurdeman understood this. However, the Council is for all practical purposes beginning with draft eight as an amendment. 2) Please note the insurmountable difficulties presented to property owners and the public. The "bill" in its two drafts with cover explanation consists of over 300 pages of interlined technical text. 3) Draft four is an express repeal of the former code. Draft nine is an amending bill. It is not possible for the County Council to move from draft four to draft nine without violating section 3-10(d) of the Charter, which provides that a bill shall not be amended to change its original purpose. This aspect, although in the reverse order, came up during the court case. Comm. No. ~ I File No. H C G /Z N Ref, To: Go u,~ c i L Ref. Date FEB 17 ~ 4) Ratifying draft four is, I believe not a workable alternative. The Court Order did not indicate that Bill 250 (draft four) was to be ratified. Bill 250 (draft four) was not an act of the Hawaii County Council and was not adopted. In that sense it is void and cannot be ratified, although the Council might begin with draft four. 5) Drafts four and nine contain some illegal or probably illegal provisions that the Council will want to review. Section 25-2-63(a) disallows a contested case hearing when the planning commission considers use permits. You are aware that, following a Charter change, the County is by this provision not in compliance with Chapter 91 HRS. Sections 25-4-12 and 25-4-22(c) allow telecommunication towers to 500 feet from grade without a permit on agricultural lands. A lower court has ruled against this approach and the matter is before the Supreme Court. Sections 25-5-72(c), -142 and -152 allow heliports without a permit in certain districts. Contrary to Chapter 46 HRS, this defeats the intent of statutory provisions concerning heliports in Chapter 343 HRS, which requires an application to be triggered. Sections 25-1-5(b)(8) and 25-2-61(a)(7) allow commercial theme and amusement parks in agricultural areas with a use permit or special permit. Although there is some room for disagreement here, this has been found impermissable in Waianae Neighborhood Board v. Land Use Commission, 639 P. 2d 1097, 64 Haw. 265. Would you enter this letter on the record as a communication concerning Bill 250? I regret that I cannot be more supportive of the Council's present plans. Sincerely, ~TUdith Graham cc: Mr. Richard Wurdeman Mr. Frederick Giannini PO Box 1366 Kamuela HI 96743 November 14, 1999 Hawaii County Council 25 Aupuni Street Hilo, HI 96720 Dear Members of the Hawaii County Council: I have sent Mr. Arakaki and Mr. Konishi a letter outlining certain legal problems that I perceive with the approach the County Council is now taking with Bill 250. In this separate letter may I suggest a positive, constructive alternative which the Council may want to follow. The Court has offered the County Council an opportunity to adopt or ratify Bill 250 while affording proper due process to property owners and citizens. A constructive approach would be, as the Court itself clarified on January 6, 1999, to begin with draft eight (or nine if you prefer) and move ahead with it according to procedure as set forth in the County Charter and by your rules. This would be a different bill, Ramsayered against the original code and not against both the original code and administration proposed revisions, as is presently true of draft nine. This fair process could be accomplished by September 1999, the date set by the Court. However, if this is a concern, there might be a request to extend the deadline by perhaps a few months. It is important for everyone to set the code on a well- established legal footing. The process currently envisioned is faulty legally. Would it not be better to take the appropriate time? I do want to honor and acknowledge all the hard work of the County Clerk, his staff and the legislative auditor's staff. Sincerely, U/J/udith Graham cc: Mr. Konishi, County Clerk NEW ZONING CODE DESERVES YOUR CONSIDERATION Basic Background Information Pursuant to a Court order, the County zoning code has been sent back to the County Council for reconsid- eration. The new code includes many changes initiated by the Yamashiro administration. Itwas improperly passed in 1996. The Court gave the Council until September 1999 to handle the matter in a proper way. Please kokua by reviewing the changes to the former code listed below, and then participating in some way in the County Council's review. Hearings will commence in February. The Council is being advised to act very rapidly. And, due to technicalities of the Court's ruling, the Council may consider at one reading both an eazlier and the final draft of this bill-specifically, drafts four and eight. Lines of Authority with Respect to Land Use The zoning code affects all property owners and residents, as well as businesses and corporations. To understand the changes that have been introduced, it's important to know which person or boazd normally has authority over land-use actions. Here's a short summary. The elected County Council has authority over the County General Plan, zoning ordinances and other ordinances. The Planning Commission is appointed by the Mayor and may grant use permits or special permits. .The Planning Director is also appointed by the Mayor. When a special permit request involves more than 15 acres, the state Land Use Commission handles it. 1. Certain uses would not require a public hearing or involve public input, including: * Golfcourses and golf clubhouses in agricultural districts. 25-5-62(a), -72(a); draft four only. * Heliports in the General Industrial and Limited Industrial districts, and in some agricultural areas. The previous code requued a use permit, and thus a heazing, for any heliport. 25-5-72, -142, -152. * The former code did not mention telecommunication towers. The new code allows them without a permit to 500 feet from grade in any district except residential, where a permit is required. 25-4-12, 25-422. 2. For some important actions, power has been transferred to the Mayor and mayoral appointees; or the code newly authorizes actions by mayoral appointees. * A section that established a 40-foot-wide shoreline setback in ordinance, which is allowed by state law, was deleted. State law only requires a minimum 20 foot setback. This setback preserves open space along the shore. Now, as a Planning Department rule, the width of the setback could be changed by the department with the Mayor's approval. Former section 25-42 deleted. * The new code gives the Planning Director authority, with plan approval, to approve 100-foot heights for agricultural structures anywhere in the Agricultural district. The height limit of the district is otherwise 45 feet. Before, 100-foot heights could only be approved for the Intensive Agricultural district, which is basically Ag-20 or more. 25-5-73. * The former code stated that public buildings (such as a prison) were permitted provided they con- formed to the County General Plan. The new code states they are permitted in any district provided a. the Fl:;~r.ing D~,ECw~ hay essu. d ylan approval. 25-4-i i(~;. * The new code authorizes the Planning Commission to approve commercial theme parks, amuse- ment parks and auto racetracks by use permit or special permit in residential and agricultural dis- tricts. The formec code referenced instead "major recreational uses" as available with a use permit. The former code appeazs to have limited commercialism to accessory aspects of the facility. 25-1- 5(6)(8), 25-2-61(a)(7) and district sections. * The new code gives the Planning Commission authority to approve commercial yacht harbors and boating facilities, which would include resort marinas, by the use permit procedure. They did not formerly have this authority. However, state and federal approvals would still be required. 25-2- 61(a)(11)and 25-5-162(b). * The new code defines "lodges" differently than before and authorizes them with a use permit or special permit in several agricultural areas. Now they have become small hotels, defined as transient lodging accommodations with no more than forty guest rooms or suites. However, before, they were more on the order of hunting and fishing lodges or fraternal lodges such as for a club or Elks group. 25-1-5(b)(67), 25-5-52(c)(7),25-5-72(c)(9). 3. Other changes will affect preservation of Hawaiian historic sites. * For valid reasons the new code has prescribed the kind of conditions that the County Council may set when it grants zoning. However, this exclusive list of types of conditions does not include refer- ence to historic sites and perhaps environmental concerns. 25-2-44(a). * The new code has abolished the former Unplanned district. It is absorbed into Ag-5. Now the code allows new uses in Ag-5. They can affect remazkable collections of historic sites on the Mahukona Coast, formerly in the Unplanned district, and in the neaz-shore Kailua to Keauhou azea, formerly in the Unplanned district. Article 18 was deleted. 4. Other important changes briefly described. * A contested case heazing is disallowed when the Planning Commission considers use permit appli- cations.25-2-63(a). * Under the new code (draft four), the Planning Commission m s grant applications for use permits and special permits when several general conditions aze met. The language that ensures this is the word "shall;' which is a mandatory legal term. 25-2-65, etc. Restrictive deeds and covenants, where applicable to subdivisions in the Agricultural district, can- not limit uses allowed by the code. 25-5-72(f). * Formerly, for purposes of defining single family dwellings in residential areas, a family was de- fined as up to five unrelated persons. The new code sets the number at eight. 25-1-5(b)(43); draft four only. * Formerly guest houses, which are solely sleeping quarters for guests of the main occupant, had to be non-commercial in nature. This restriction has been removed. 25-1-5(b)(55). * If the County, instead of a landowner, initiates a zoning change, then property owners within 300 feet will not be notified by mail. Instead, several legal notices will appeaz. The purpose of this change was to "allow for flexibility if major county initiated zoning changes are proposed." 25-2- 43(c). * The new code requires that landowners are entitled to written notice before a golf course permit is revoked. This has effectively reinstated some expired golf links, such as three courses overlooking Waipio Valley. 25-2-67(c). * The new code has added theme pazks and amusement pazks as a directly permitted use in the Resort district. 25-5-92(a)(24), 25-1-5(b)(8). * Both codes allow public and private utility lines and poles in any district. The new code allows them to 500 feet from existing grade. The former code did not mention height. 25-422(c). * The former code required an EIS for any condominium or hotel development. This provision, razely used, has been deleted. An environmental report has been substituted. 25-1-5(b)(31). Former 25- 21(c)(4). * In a major new provision, the code establishes a Project District where, with a Project District designation by the Council, there can occur a mix of resort, residential and commercial uses in unspecified locations. 25-6-40 to 49. List prepared by Judith Graham, Waimea.