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HomeMy WebLinkAboutMIN PC 2017/08/15 (2016-2018)Committee on Planning 11th Session West Hawaii Civic Center 74-5044 Ane Keohokalole Highway, Building A Kailua-Kona, Hawaii August 15, 2017 CALL TO The regular meeting of the Committee on Planning was called to order at ORDER: 2:22 p.m., in the Council Chambers, Kailua-Kona, by Ms. Karen Eoff, Chair. R(1T T CAT r Present: Ms. Karen Eoff, Chair Ms. Eileen O'Hara, Vice Chair (via videoconference from Hilo) Mr. Aaron S. Y. Chung, Member Ms. Maile Medeiros David, Member Mr. Dru Mamo Kanuha, Member Ms. Susan L. K. Lee Loy, Member (via videoconference from Hilo) Ms. Valerie T. Poindexter, Member Mr. Herbert M. "Tim" Richards, III, Member Ms. Jennifer Ruggles, Member (via videoconference from Hilo) STATEMENTS The Chair directed the Committee to proceed to the next order of business, FROM THE Statements from the Public on Agenda Items. PUBLIC ON AGENDA ITEMS: The following individuals registered to speak and came forward when called by by the Chair: Jerry Warren: Michelle Galimba: John Replogle: Michael Matsukawa: Thomas Yeh: Katherine Garson: Ron Ebert: (representing the Ka`u Steering Committee) Bill 52 (Comm. 351), in opposition. Bill 52 (Comm. 351), in support. Bill 52 (Comm. 351), in support. Bill 52 (Comm. 351), in support. Bill 52 (Comm. 351), comment. Bill 52 (Comm. 351), comment. Bill 52 (Comm. 351), comment. PC -11 August 15, 2017 CHR. EOFF: Thank you very much. Is there anyone else that wishes to testify? Okay, then I will close the statements from the public portion of the agenda. And we have—the first item is the Ka`u CDP, but if there are no objections, I would like to take the rezoning first so that Mr. Fuke can attend to another matter as soon as possible. So Mr. Clerk, would you please read Bill 59? And can you read Bill 60 as well? COMMUNI- The Chair directed the Committee to proceed to the next order of business, CATIONS: Communications. (There were none.) ORDER OF The Chair directed the Committee to proceed to the next order of business, RESOLUTIONS: Order of Resolutions. (There were none.) BILLS FOR The Chair directed the Committee to proceed to the next order of business, ORDINANCES: Bills for Ordinances. Change Order As directed by the Chair and with no objection from the Council Members, the of Business: following items were taken out of order: Bill 59: AMENDS THE STATE LAND USE BOUNDARIES MAPS FOR THE COUNTY OF HAWAII BY CHANGING THE DISTRICT CLASSIFICATION FROM THE AGRICULTURAL DISTRICT TO THE URBAN DISTRICT AT KEA`AU, PUNA, HAWAII, COVERED BY TAX MAP KEY: 1-6-141:002 Motion to Approve: Ms. David moved to recommend passage of Bill 59 on first reading. Seconded by Ms. Poindexter. CHR. EOFF: I'd like to ask Mr. Fuke to come forward, please. (Note: At this time, Planning Consultant Sidney Fuke came forward to address the members of the Committee.) MR. FUKE: Thank you very much. CHR. EOFF: Good afternoon. Would you please just state your name, and your connection to this rezoning, and give us a little bit of an overview? MR. FUKE: Sure. Thank you very much. My name is Sidney Fuke, I'm a Planning Consultant, and I'm here representing the applicant, Hawaii Island Distilling, LLC. In a nutshell, the request is to rezone approximately six -acres of land in an area where, I guess the applicant would call it more like a beverage Page 2 PC -11 August 15, 2017 community. There already is an existing water bottling plant. There are a couple of other properties in that area that were issued special permits, specifically for bottling and beverage facility. By way of background, the applicant was the founder of—was one of the co-founders of this Hawaiian Springs bottle watering firm, and that's adjacent to the subject property. And way back when, in the late 80's and early 90's, he was the founder of a microbrewery in Honolulu and was called the Brew Moon on Oahu. And more recently, within the last 10 years, he founded this vodka, it's called Kai Vodka, and it's brewed—it's distilled primarily in the Vietnam area. So his vision was to kind of do essentially different types of brewing operations, whether it's going to be a distillery or like a brew -type of operation in that particular area, largely because he—water is the critical resource for any brewery or like a distilled operation. And that area is known for its excellent water resource. Kai Vodka they have like adifferent type of, tropical type of use associated with the distillery, whether it's going to be rambutan, papaya, and citrus. And in the Puna district, you have a lot of those kinds of agricultural products, so he just felt like it was a natural. To date, adjoining the property is already a constructed is in the process of constructing another water well and on the subject property itself, he has constructed and is operating a 306 kilowatt solar array. That array is currently providing much needed electrical support to the Hawaiian Springs bottled water facility. But basically, like we're here requesting the Council Committee support and ultimately the Council support. The Planning staff and the Planning Commission both reviewed the application and had favorably concurred to the request and likewise, we're making that request of this body. CHR. EOFF: Okay, thank you, Mr. Fuke. Council Members, do you have questions or comments for Mr. Fuke? In Hilo, any comments Council Members? Seeing none MS. O'HARA: I do, Chair. CHR. EOFF: Okay, Ms. O'Hara. MS. O'HARA: Yeah, I am familiar with where the water bottling company is currently, and I'm assuming there's going to be some road improvement on Slaughter House Road as part of this. If this is going to be a visitor destination as I understand it, a tasting room and that sort of thing. Is that correct? MR. FUKE: If you look at the proposed condition, I think there was a condition relating to improvements within the project area. And I thinkI'm just trying to Page 3 PC -11 August 15, 2017 find it. Conditions number eight for example and also Condition number I, they deal with a level of roadway improvements that's going to have to be made in conjunction with the development of the property. There's also, ironically, although the project is a water facility and there's an abundance of water in this area, nevertheless, the subdivision code calls for some water line improvements. So there is an existing line that's going to have to be upgraded and brought to the property. So the short answer to your question is that yes, improvements are going to be made. MS. O'HARA: Okay, thank you. CHR. EOFF: Is that it? Then I'll go ahead and take a vote. All those in favor of approving Bill 59, please say aye. Vote on Bill 59: The motion to pass Bill 59 on first reading was carried by (Approved) the following voice vote: Ayes: Committee Members Chung, David, Kanuha, Lee Loy, O'Hara, Poindexter, Richards, and Chair Eoff — 8. Noes: None. Absent: Committee Member Ruggles —1. Excused: None. Bill 60: AMENDS SECTION 25-8-22 (PUNA DISTRICT ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING) OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED), BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL — TWENTY ACRES (A -20a) TO GENERAL INDUSTRIAL — 20,000 SQUARE FEET (MG -20) AT KEA`AU, PUNA, HAWAII, COVERED BY TAX MAP KEY: 1-6-141:002 (Applicant: Hawaii Island Distilling, LLC) (Area: 6.505 acres) The Windward Planning Commission forwards its favorable recommendation for this amendment to the State Land Use Boundaries Maps and change of zone, which would allow the applicant to establish a microbrewery with a retail sales and tasting center. Reference: Comm. 386 Intr. by: Ms. Eoff (B/R) Motion to Approve: Mr. Richards moved to recommend passage of Bill 60 on first reading. Seconded by Ms. Poindexter. CHR. EOFF: Any more discussion, Council Members? Or would you like to add anything more, Mr. Fuke? Page 4 PC -11 August 15, 2017 MR. FUKE: No, except just to say thank you for putting me out of order. CHR. EOFF: You're welcome. Okay, then all in favor of approving Bill 60, please say "aye." Vote on Bill 60: The motion to pass Bill 60 on first reading was carried by (Approved) the following voice vote: Ayes: Committee Members Chung, David, Kanuha, Lee Loy, O'Hara, Poindexter, Richards, and Chair Eoff — 8. Noes: None. Absent: Committee Member Ruggles —1. Excused: None. MR. FUKE: Thank you. CHR. EOFF: Bill 60 moves to Council with a positive recommendation, and we'll go to Bill 52. Return to Order The Chair directed to Committee to return to the order of business. of Business: Bill 52: ADOPTS THE COUNTY OF HAWAII KA`U COMMUNITY DEVELOPMENT PLAN (CDP) The Windward Planning Commission forwards its favorable recommendation for the adoption of the Ka`u CDP. The CDP Program is established by the County's General Plan to create a framework for residents and other stakeholders to participate in regional planning for their communities. The planning area for the Ka`u CDP encompasses most of Judicial District 9, surrounding Ocean View, Waiohinu, Na`alehu, and Pahala. Reference: Comm. 351 Intr. by: Ms. David (B/R) Motion to Approve: Ms. David moved to recommend passage of Bill 52 on first reading. Seconded by Ms. Poindexter. CHR. EOFF: Ms. David, I'm not sure if you want to go into some discussion now or if you'd like to take the presentation? MS. DAVID: I think we should have the presentation first, and then we can go into discussion afterwards. CHR. EOFF: Okay, so my understanding is Mr. Whitmore, Mr. Yee Page 5 PC -11 August 15, 2017 MS. DAVID: April, Ms. Surprenant, Director Yee— CHR. EOFF: And Ms. Surprenant have a PowerPoint presentation. You could bring a third chair up there, April. (Note: At this time, Planning Director Michael Yee and Deputy Director of Research and Development Ron Whitmore gave a PowerPoint presentation to the members of the Committee. For viewing of the subject presentation, see the DVD copy of the meeting proceedings on file in the Clerk's Office. A copy of the PowerPoint presentation is made a part of the record, see Comm. 351.) CHR. EOFF: Okay, thank you very much. Mr. Chung has to leave right away, so I was going to offer him the floor, just so he can make a comment. MS. LEE LOY: Chair, can I make a request after Mr. Chung because I have a medical appointment also, and need to be leaving. So I'll follow Mr. Chung, if that's okay? MS. EOFF: Okay. Mr. Chung, go ahead. MR. CHUNG: Thank you, Madam Chairman. And thank you, Ms. David for letting me speak first, you know have to leave like three minutes ago. But Ron, thank you again, very much for that presentation, very enlightening. From my perspective, I'm certainly happy to support whatever came out from the community. I mean you guys explained what they went through. This is a reflection of the community; I have no problem with that. But coming off the heels of this Missler decision, that's a game changer now, okay? And I know the Planning Director, based on my cursory review of this, has tried to address some of that. But I'm not real clear exactly what all of these things mean and I think in one of your statements in this handout it says, "Importantly, the Ka`u CDP does not amend the General Plan or County Code." But then, when I look at the proposed recommendations, it only talks about the General Plan, so nothing about ordinances. I mean I'm just kind of throwing things out right now because this thing is hitting me pretty hard. What I'm—as I said, I got to leave. I just wanted to state what my concerns are. really want to support this but for me to support it, it has to be in line of what we had all thought these CDP's (Community Development Plan) would be, maybe not all of us, but me anyway. The County looks like they subscribe to this position as well, that it was going to be guidelines and reflections of the community's desires after much input, much more than we could ever do. I agree. I mean even with this shoreline setback, I don't think anyone could have said it better, it's part of the Ka`u psyche. And I think we should respect that, Page 6 PC -11 August 15, 2017 maybe to the—that might come to the chagrin of others but you know, it really is something that's special. But it cannot trump County laws. I never ever envisioned the CDP—you know what came out of these Steering Committees to be directive. It just cannot, not in my mind. And for all of this work—and I want to give deference to, I want to say yes, but if I have any feeling that this trumps County laws, or the authority of this body, or the General Plan, I got to say no. That's just my thoughts. So if you guys can address that, please, in subsequent meetings that we have, I would really appreciate it. Thank you. CHR. EOFF: Thank you. Ms. Lee Loy. MS. LEE LOY: Thank you, Chair for allowing me to go first, or second in this case. I echo the exact same concerns of Mr. Chung. I have been in the land planning field for the better part of 20 years, and I want an opportunity to get some briefing from Corporation Counsel to understand the Missler decision and the ramifications of that. And there were some things within the presentation that I began to have almost anxiety about, as far as honoring the goals and objectives of a community. But if it's in conflict with the General Plan, the General Plan rules. And I'm having a lot of hard time understanding that. I absolutely agree that the community put a lot of effort into this and by my math, we're pushing up on 10 years. I have had an hour and a half and I have a lot more questions. And I would just urge maybe my Council Members to just take one more committee meeting to digest so much information that took almost 10 years to develop. And maybe even have the Planning Department take a look at some of the letters that we got and address them so that we can have information to make good decisions. My understanding for all my 20 years of planning was that the Community Development Plans was kind of a guideline, and I'm learning that wasn't the case. And with maybe even some de facto zoning or subdivision, or rule making that's occurring, I want to be able to ask that question of our Corporation Counsel and get that feedback. And I apologize for having to leave. I had this appointment set for a long time for my son, so I do have to go. But that's what I would like to see, and if this body does decide to move it forward, I would still request that we get more information before hearing it at first reading at Council. That is my request and again, I'm not ready, which is why I'm asking for more time. And I Mr. Warren made a great point, there's other stuff we have discusses at nauseam and this one, I think we just need a little bit more time. So thank you, I yield. CHR. EOFF: Okay, thank you, Ms. Lee Loy. Before I go toI want to give the floor to Ms. David, but did you folks want to respond to either of their comments before going to Ms. David? Page 7 PC -11 August 15, 2017 MR. YEE: If Council Members are not ready, then I'm not ready. Clearly, I want to be sure that you have all the information possible to make a great decision. So if that's where we need to go, then we'll go there. CHR. EOFF: Okay, thank you. Ms. David, why don't you take the floor? MS. DAVID: Thank you, Chair. And thank you, Ms. Lee Loy for your comments and also Mr. Chung. I know that this is a matter that has a lot to digest, but I think in everybody's district, starting with the Kona Community Development Plan, I think we have gone through an awful lot of discussions about the importance of CDP's. I appreciate, Mr. Whitmore, your in-depth explanation on some of the concerns that were raised earlier regarding the set back and all of those things. I really feel that in my mind, I'm ready to vote on this. The community waited nine years, and I really feel that if Ms. Lee Loy and some of my other members would like more clarification, then I think we have some opportunity between now and the next meeting on the Council when this moves ahead. But I am very much set on making my decision today, and I ask my Council Members to support this, and we can work things out as we move along. Thank you, I yield. CHR. EOFF: Ms. Poindexter. MS. POINDEXTER: I want to applaud the Ka`u Community for putting themselves in the driver seat. I mean we in these rural communities, have struggled all along because we've had developers or other people coming into our community. And you know, the community didn't really have a voice until we had this Community Development Plan. And this is a guide. This is the wish of the people. And should we, as policy makers, decide to do something or create a policy that could meet one of their wishes, that's what this is for. It's like a strategic plan, yeah? It's a living document that keeps moving. I appreciate the set back because it talks, it speaks volumes to me in perpetuating that lifestyle and that culture that Ka`u wants for generations, protecting it for our keiki. But like we heard too, it's not just perpetuating for our keikis, it's an economic driver as well, the beauty of open space and that area in Ka`u. And we've had this Council, and even before I was on the Council, many years ago, I participated in our CDP. We've known about CDP's coming to the Council to get the approval. We've had that time and we still have time for those who are not still familiar with it to get familiar with it, and understand it, and understand the people's voice. So this isI'm totally supporting it. I say we move it on to Council and if they want to continue to work on it at that point, and the Ka`u people are saying let's give it some time or whatever, I'm saying the years that they've spent, like Hamakua, you know, the people that have come out, the voices that we've heard, it's the respect that I have for those people. Page 8 PC -11 August 15, 2017 This is not an ordinance, I mean it's not the things that are written in there, the setbacks and all of that, that's the wish and the guidance from the Ka`u people saying help us and create that policy, maybe. So I'm in support of it. Thank you, Maile, for advocating for the people, and thank you, especially to the Steering Committee, for your commitment and dedication for the people of Ka`u. And the people of—actually Hawaii County, because you're setting this beautiful statement that is saying this can be done even if it's kind of like out of the box with the quarter mile of a setback. I love it. We're saving our island and I again, I applaud the people of Ka`u. So thank you, I'll yield at this time. CHR. EOFF: Thank you. I believe Mr. Richards was next. MR. RICHARDS: Thank you, Chair. First of all, again, to the Steering Committee, thank you very much for the work. Thanks to Ka`u, the community, for putting the effort in for the last, coming up on 10 years. I was in Ka`u yesterday, spent a lot of time down there. My concern, and I echo Mr. Chung and Ms. Lee Loy'swe have a Missler decision that I'm not sure the ramifications, and as I understood, the CDP is an invaluable document for us, we as a community, and we as a County, to plan our future. And everything that Ms. Poindexter articulated, everything Ms. David articulated, couldn't agree more with, except I'm concerned of ramifications going forward. And that's where I'm not comfortable. I'm not an attorney, and in reading the documentation, I've always understood that the CDP is, as Ms. Poindexter pointed out, a living document that gives us insight into the community's wishes and desires for that community going forward. The problem is, as Mr. Chung pointed out, if we have something that contradicts our County Code, I fear we're going to set ourselves up for problems. And so I'm not comfortable at this stage. Though I completely support the CDP process, I'm not comfortable with making a decision on this yet, because it's been nine plus years. Realistically, what's a couple more months? I think we need to make good decisions and I want to hear from Corporation Counsel, how this is going to infect Planning going forward. I think we need to do our homework. As Ms. Lee Loy pointed out, this has been a 10 -year process and we've had a couple of hours. And I think in order to truly represent the constituency going forwardI don't disagree with comments in here and I don't disagree with the intention of what's in here, my concern is the ramifications going forward and how it'll trickle down to everything else. The CDP process, I think was novel and it was also foresightful in setting the direction for our County. But we also know that we've got some conflict between the CDP's. And if we're setting ourselves up, we have a new decision that I don't know if we've been given enough time to think about how that will implicate any Page 9 PC -11 August 15, 2017 decisions we make going forward. So with that, I think we need to either put this on the table, set it aside, explore it a little bit further, and get more input, especially from Corporation Counsel as we go forward. Because I want to make a good, solid decision that we don't' have to come back and say we need to put a band-aid on this to fix it. So I will not support it at this point because I need more information. I yield. CHR. EOFF: Thank you. Mr. Kanuha. MR. KANUHA: Thank you. And I don't know if I'm getting mixed signals about what we're discussing because I hear things that this isn't an ordinance, but it is an ordinance and that it will affect how we move, how Ka`u moves forward as a community, in things that we pass or things that move forward that will go through that community. And so I absolutely agree that we need to get this right. I want to make sure that whatever's in this CDP doesn't conflict with what's in the Code, or what's in the General Plan. I mean I know there have been issues, which is why this Missler case is so important for me to understand, because I really don't know the ramifications of what happened because of that. And so I'd actually want to see that in front of the Council as a discussion purpose in the future, whether that affects what's happening. And how we move this forward is a different story, but that's definitely something that I really want to see. I've heard from several Council Members that there are certain issues, and maybe not crazy issues but more clarification needs to be done. I agree, because I'd love toI want be able to support this 100 percent, that's what I want to do. And this is coming out of the community, and that's exactly what I want to support. But I want to make sure that as we move forward, Planning Department's recommendations are taken into account in this document, as well as OHA's (Office of Hawaiian Affairs) recommendations for certain things, to clarify within this document. I want to make sure that everybody's clarifications are taken note of, and I'd rather not move that forward. I'd rather have that done in committee because that's where we need to like—that's where I feel we should work on it. But, as was stated earlier by a testifier, what are the differences in how certain recommendations could change the Code or could change policies within the General Plan? Is that laid out as a ramseyer type of thing so we'd know that if there is that difference in what the CDP says to what the Code says? I'd like to know that, but right now, I have no idea. And just a question, I think you stated earlier that the CDP directs, guides, and that when aso if with the CDP—it'll recommend for a Code change or General Plan change within the CDP, there's certain directives that's say it shall do this, it shall do that. If this is a change to the Code, if we're adopting legislation that CDP is now a bill, passed by the Council, signed by the Mayor, how does that go into play when we're saying that this is the recommendation to do and it doesn't Page 10 PC -11 August 15, 2017 automatically do? That's the question. I don't know. I know we've had problems doing that within the Kona CDP because there are a lot of things that says "shall." And there are different interpretations of how you roll that out. And I don't want to confuse, not only myself, but everybody in the community who moves forward with these things. That this is what the community says, this is law, this is put into our Code as a CDP. So I'm just kind of wanting to get clarification of how that works from— CHR. EOFF: Just identify yourself. MR. WHITMORE: Yeah, I'm sorry, I apologize. I was remiss earlier. My name's Ron Whitmore, I'm currently Deputy Director of the Department of Research and Development, but I served as the Senior Planner in Long Range Division for the Planning Department. To answer your questions, the intent and hopefully—and it's not just the spirit but the letter of the CDP, it's designed to not it's intentionally designed to not assume it's amending the County Code, recognizing that the only way to do that appropriately is through an ordinance in ramseyer, to specifically amend language of the Code. MR. KANUHA: So then why is the CDP an ordinance? Why isn't it just a resolution? MR. WHITMORE: The General Plan identifies—in Chapter 15 of the General Plan, it says CDP's will be adopted by ordinance. MR. KANUHA: Okay, so then how's it only a guiding principle if it's by ordinance? MR. WHITMORE: This is my view on this, which is not shared universally. There is not tremendous clarity currently in the County's community planning framework, about the relationship between the General Plan, LDP'S, and other regulatory, other components of the regulatory framework. We worked with what we had and we're very deliberate about trying to keep the Ka`u CDP within the bounds of what is sometimes an unclear set of parameters or framework for CDP's. And so—but the things we were very clear about is that the CDP cannot amend the Code upon adoption, which is why you'll see in the Ka`u CDP specific County actions, which were designed to be follow-up actions, after adoption for actually making some Code amendments that would help achieve the community's objective. And so MR. KANUHA: And is that completely different than the rest of the CDP's? Okay. MR. WHITMORE: I don't recall. I assume some of the other CDP's must have spoken to some Code amendments because Chapter 15 explicitly identifies as one Page 11 PC -11 August 15, 2017 strategy CDP's can use as to recommend amendments to the Code or to the General Plan, which is my second point is we—it was never an assumption and it's clear in the CDP that the CDP does not trump the General Plan. It does not amend the General Plan, the General Plan is controlling. That being said, I suspect some of the confusion is around areas where, while on the one hand recognizing the CDP does not trump the General Plan, the CDP presents policies it acknowledges are in conflict with the General Plan. So it does that on the one hand and then separately, as another policy, an action, a follow-up action, it says we—basically it says we understand this is in conflict currently as presented. The policy maps are the best example. Therefore, after adoption, an action required is to amend the General Plan to bring them into alignment, recognizing that's a whole other legal process. The CDP does never assume it trumps—it either trumps the GP (General Plan) or amends the GP. And so it was an effort at trying to be crystal clear about what land use policies would best achieve community objectives, while at the same time, recognizing that some of those as written, are inconsistent with the General Plan as written. And so, it was unclear how to be clear about the policies on the one hand but later, you know—sorry, was there a comment? CHR. EOFF: Your mic might be on. MR. KANUHA: No, go right ahead. MR. WHITMORE: Sorry. So I want to be explicit about on the one hand, how to amend the GP at a later stage and provide that clarity in the CDP itself, never assuming that those maps trump the maps on the General Plan. Another way at looking at it, and I think Mr. Matsukawa's comments speak to this to some extent, is that at the end of the day, you are the authority and you consider a wide range of factors when making any particular land use decision, whether it's a change of zone, a State Land Use Boundary amendment, amendment to the General Plan. And you're going to consider the General Plan, you're going to consider any related CDP, you're going to consider testimony, you're going to consider studies done on the ground of the site in question. And given all that information, you make the final decision, right? And so consider the CDP, one of those pieces of information you use to form a decision about a specific application specific to a particular place, right? MR. KANUHA: Yeah, but MR. WHITMORE: And in your mind, understanding that if there's conflict between the General Plan and the CDP, you got to go with what the General Plan currently says, right? MR. KANUHA: For this specific CDP? Page 12 PG11 August 15, 2017 MR. WHITMORE: I would—to my understanding, it's true for all CDP's. MR. YEE: Correct. It was written in the General Plan. The General Plan is controlling and so yes, the Missler case has presented some challenge. I think importantly, it's not as if working on the Ka`u CDP, especially in drafting of the last couple years, was working in a vacuum. The staff was very much knew about the Missler case, knew the issues that were being presented, and were trying to make the adjustments to the Ka`u CDP, as things went along and as I came aboard in January. We were pushing to make sure the language was clean enough to avoid any problems. We didn't want to have a repeat of the Kona CDP. I also want to add that the Kona CDP is the kind of a bad example. The other CDP's weren't written with so many "shalls" and stuff So we know the problems for the Kona CDP, and we've tried to reflect that, and that was said. We were reviewing and making edits and trying to clarify it. Now, I think there's the question of whether or notI agree, if you're not ready, I want to be able to present more information, answer questions from testimony or whatever. Whether or not that can be done between now and another Council meeting, you know, I would certainly put forth that yes, I think I could certainly be ready to put forth whatever information is needed to get that. I don't think I need months to do that with you, but I certainly want to provide the information on whatever timeline that you decide on. If you want to take longer than that, that's for you to decide and I will certainly do it whichever way you want. Thank you. MR. KANUHA: I'll yield to other Council Members because there's a lot more discussion that I'd like to go through. CHR. EOFF: Okay, I think everyone except Ms. O'Hara has had a chance, so go ahead, Eileen. MS. O'HARA: Thank you and this is a very important issue because of recent actions by the courts. And just reflecting back, I keep hearing as if we started with the Kona CDP as the first CDP on this process. Actually, I believe it was the Puna CDP that was adopted first and there are—it's obvious that the community development planning has improved dramatically since the County Planning Department first started this effort in 2005, when they rolled out the Puna CDP, the Kona CDP. We're getting better at it, definitely getting better at it, and this is a really excellent effort by the community for Ka`u. It unfortunately should have come to us a couple of months ago perhaps, and we would have embraced it without these types of questions. But given that the Missler decision did occur in June, June 26th of this year, that's just two months ago, not even. It changes things. It does change things and I don't feel, given the testimonies that we have received from Carlsmith, Ball, and also from Tom Yeh here, attorneys' opinions who deal with land use issues all the time, interacting Page 13 PC -11 August 15, 2017 with the County, that we have completely vetted this document to make it as effective as it can be, moving forward. The explanation that Ron Whitmore just gave us and the Planning Director, was our previous view on what CDP's would and could be as a guidance document. But the court doesn't see them that way, and we have to recognize that action took place, and we have to be careful to review what we have here. Are we setting new rule, because that's what the courts opined in certain circumstances? So I would like to take the time, let the Director take the time to take into consideration the discussions that we've received here today, and let Corporation Counsel come back and talk to us about their view on this particular plan. We haven't heard from them at all. And we have another good testimony that came in from OHA about their concerns about the plan with regard to cultural resources. Some of those comments may need to be things that are incorporated. It has taken nine or ten years for the community to get this far, and again, they've done a fantastic job. Yet, I would like to take the time to consider the new input under the new circumstances that we've been given, since this is the first plan to come before us, the first community development plan to come before the Council after the Missler decision, and make sure that we fully understand the ramifications of that decision on our community development process, our Planning process for these types of plans. And I also would recognize that we are short three members at this point in the afternoon. And because this is such an important issue, I would beseech the Council Member who presented this, Ms. David, to consider holding this at the committee level for another couple weeks at least, or at the call of the Chair, however you want to do this, so that we can have this ongoing discussion and work out some of these issues that are making many of us feel just little bit uncomfortable, before we move forward with this. With that, I yield. Thank you. CHR. EOFF: Thank you, Ms. O'Hara. Ms. David. MS. DAVID: Yes, thank you. And I appreciate the discussion and what I—how I see this is that the Missler case that we're all talking about right now, it's not something we just heard about two weeks ago. This was in the newspaper for the last couple of years, and it really was obvious that case would have a huge bearing or impact on CDP's. Now knowing that, I saw thatI read that in the paper, and I'm sure the Planning Department did. And what Mr. Whitmore is trying to explain, which I totally appreciate, is the fact that, and the Director, is the fact that given the pending Missler court case, they actually took the time to go through the Ka`u CDP in anticipation that the decision might be whatever it would have turned out to be. And in this case, because you folks have made a lot of changes, before you finally submitted it to basically say that this does not trump the General Plan, and that these are recommendations for future Code amendments. Page 14 PC -11 August 15, 2017 There is no way, I thinkI believe, in the Kona CDP, that was the problem, is because they made it sound like—the Kona CDP sounded like a document that directed things to be a certain way and no other way. So, I understand that now, in hind sight, the department is working to change that "shall" to adopt it to be more of a breathing document, where it couldn't make more sense in falling into the role of a document that is a collaborative effort. So for me, there are different levels, not only before this body. There is the State LUC (Land Use Commission) process, there are various different agency processes that are the checks and balances for anything that might be impacted by this Ka`u CDP. So, I agree that we should get a briefing from Corporation Counsel, but I can do that on myI can do that with a phone call and ask Mr. Kamelamela to come in and give me his opinion on this, or present something to the Council at our next meeting. I really feel that this case does present some question, but I also feel that this has—you folks have adequately, in my mind, addressed it and there has been adequate time for people to understand what this CDP process was and the Missler case. This is just a personal note. I have experienced a lot of situations where the community had to sue government in order to get remedy in applications for development. And that participation on a citizen level, on their own dime, I think makes—we should do better in going through our processes and how we approve things. And that is not something that can happen overnight or be resolved in two weeks, but I think we need to be mindful that this has to move forward. I'm not going to vote no on this to postpone it because I think we can discuss everything that concerns the other Council Members that have reservations about voting for this today. We can discuss that at Council and they can have Mr. Kamelamela present something to the Council at that time. But in all due respect for Ka`u, the Ka`u community, and the hard work that they've done, I see no harm in moving this forward. And any questions that my Council Members may have between now and two weeks from now, I think they can get their answers beforehand. So, I yield. Mahalo. CHR. EOFF: Ms. Poindexter. MS. POINDEXTER: Planning Director, or whoever can answer this, how long has this been available to the public? MR. WHITMORE: The presentation or the CDP? MS. POINDEXTER: The CDP. Page 15 PC -11 August 15, 2017 MR. WHITMORE: The initial draft, which was very similar in form and most of the content was the same, it went through refinements and tweaking from there. The initial draft was completed in the end of 2014 I believe. MS. POINDEXTER: Okay, we've had MR. WHITMORE: So it's been available as a complete document since then. MS. POINDEXTER: Right. We've had access to it through our County website, correct? And through the public, whether it be libraries or whatever it is, correct? Yes. MR. WHITMORE: Correct. MS. POINDEXTER: So I knew it was coming up, I knew—the same thing with Hamakua, so it's available to the people. With no disrespect to our Council Members, we knew this was coming up. We had several weeks or when it posted, we had the opportunity to speak and Planning Director, did you get a chance to speak with the Council Members? MR. YEE: All of them or—not with all of them then. MS. POINDEXTER: Not with all. You spoke with three? Did any of the Council Members call you for any questions or anything? MR. YEE: No. MS. POINDEXTER: Okay, so I am supporting Council Member David. This is her district. I have the utmost respect, again I say, for the people. I have the utmost respect for the CDP, understanding it as working years with it as well as from the private, from the, you know, as not being on the Council, and being very familiar with that. And knowing that it is enough time for everyone here to be able to get enough—more information within the next two weeks, I think it's three weeks before our next Council meeting. We have a long stretch before the next Council meeting, so we do have enough time. The Missler case was out there for years. We talked about it in the past Council for I think the past two Council terms, as soon as I got on I think they were talking about it. I remember Brenda Ford bringing it up and a lot of people discussing it, so I'm not going to delay this. I support Council Member Maile David's decision to support her people, so I'm voting in favor of it. Thank you. CHR. EOFF: Thank you. Go ahead, Mr. Richards. MR. RICHARDS: Okay, thank you, Chair. I want to be sure that this is not understood that I do not support the CDP, because I do support the CDP. What I Page 16 PC -11 August 15, 2017 don't understand is the ramifications, and that's my concern. And it's not a question of whether the CDP was available for review, that's not what we're talking about. What we're talking about is a different interpretation of what the CDP, and I can ask Planning Director Yee, is CDP statutory or not? If it's advisory, I'm in. But that's the question that is before us now, and Director, I'm not going to ask you that question. But I think we need to hear from Corporation Counsel because this is my concern and without any hesitation, I support this document coming out of Ka`u. I know the people in Ka`u. Council Member David and IKa`u and Kohala have a lot of similarities and I love Ka`u, but that's not what we're talking about. We're talking about the long-term ramifications and how it may conflict with some things. And if we have the language "shall," and then we know it's knowingly conflicting with the General Plan, and we have another CDP that knowingly conflicts with the same problem in the General Plan, I see us setting up a problem, not now, but in the future. And that's what I don't want to do, because I don't want to set up litigation for the future. That's not planning for success for the future. So that's where my hesitation, and so Chair, I don't know if this is the point to call Corporation Counsel up to give us some advice on this because like I said, if this is advisory, and don't misunderstand, I don't take advisory as lightly, this is the word coming from the community, and advisory means this is what we want. And I believe it's our mission as Council people to represent the wishes of the community, and we're supposed to be the advocate for the CDP coming out of our community. I agree with that, but if it's statutory, that poses other complexities or problems that I'm not comfortable with at this point. So I think we need to call up Corporation Counsel. (Note: At this time, Corporation Counsel Joseph Kamelamela came forward to address the members of the Committee.) CHR. EOFF: Mr. Kamelamela, are you prepared to discuss that with us today? There's just one Council Member in Hilo. Just introduce yourself first. MR. KAMELAMELA: Joseph Kamelamela, Corporation Counsel. What I could do is that we go into Executive Session. There are six of you here, and you know if CHR. EOFF: There's one in Hilo. MR. KAMELAMELA: Eileen there and can give you guys a short version of what I would do in this case, and it's up to you. Page 17 PC -11 August 15, 2017 CHR. EOFF: Thank you. Is that what Council would like to do? I mean we'd have to have a motion. MR. RICHARDS: Since I called up Corporation Counsel, and Clerk, help me out on this one. This is important, this is a real important decision and it's been noted that we're missing three of our Council people, and so we have two ways to go. We can again, postpone it to the call of the Chair, set up a special meeting, whatever the case may be. I don't want to rush something that if, with a little bit of time, we can understand and make the right decision. And so, Mr. Kamelamela, I understand that—appreciate your willingness to go into Executive Session, but also, I think it's very important that all Council Members hear this when we discuss this. And so my concern if we go into Executive Session now, we're only two-thirds of what we are. We have quorum to discuss this, and listen, but we're going to have three people that are going to have a puka in their knowledge, and that's my concern. I can go either way because I'm actually here, but I'm concerned about our fellow Council Members. CHR. EOFF: Ms. David. MS. DAVID: Yes, thank you. So I would definitely want to go into Executive Session, and I will reserve the question on postponement after we have our talk with Mr. Kamelamela. Is that okay with my colleagues? MR. RICHARDS: I would agree with that. MS. DAVID: Thank you. Okay. CHR. EOFF: Okay. MS. DAVID: Then I'll make the motion to go into Executive Session, unless Mr. Richards want to. CHR. EOFF: Okay, just let me make a comment, too. But I also heard Mr. Richards say that he would like the other three Council Members that are missing to hear this information that we're going to get during Executive Session. So I don't know which you want to do first. MR. RICHARDS: The follow-up on what Council woman David just said, she reserve for the question of postponement after we hear a brief conversation with Corporation Counsel. It may actually trigger a whole bunch of other questions, in which case, we'll go there and so I think that's reasonable. I'm willing to do that, to go into Executive Session. Page 18 PC -11 August 15, 2017 CHR. EOFF: Okay. Just let me just check something with the Clerk. We need a motion first, right, Mr. Clerk, to even discuss whether or not to go into Executive Session? Or does that motion? MR. HENRICKS: Yeah, that would be good to start. A motion and a second, and also an articulation of why, for what particular reason the Executive Session would be called for. We have several reasons that are permissible under HRS that are listed in our Council Rules. I would think it's item (D), "to consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities." Motion to Enter into Ms. David moved to enter into Executive Session in order Executive Session: to hold attorney-client privilege discussion regarding Bill 52, as authorized by Section 92-5(a)(4) of the Hawaii Revised Statutes. Seconded by Ms. Poindexter. MR. HENRICKS: And now you may freely discuss that motion. CHR. EOFF: Okay, thank you very much. Mr. Kanuha. MR. KANUHA: I'm just trying to figure out why we need to go into Executive Session. I haven't heard one excuse yet. MR. KAMELAMELA: It might be helpful. MR. KANUHA: Why can't we say it in public? MR. KAMELAMELA: Because it's going toI'm going into a lot of details that, at this time, it would only be for the Council. MR. KANUHA: Are we going to be talking about the Missler case or are we going to be talking about how this is statutory? I want to know exactly what we're going into Executive Session for. MR. KAMELAMELA: It will discuss everything that they talked about today and just putting it together. MR. KANUHA: Just trying to get a sense of why. Why can't we discuss it out in the open? Is there a liability involved in discussing something like that? MR. KAMELAMELA: And I can tell you that in Executive Session. And this would be pursuant to HRS Section 92-5(a)(4). CHR. EOFF: Okay. We still have five of us here. Well I don't know how many votes we need to go into Executive Session. Page 19 PC -11 August 15, 2017 MR. KANUHA: Okay, I yield. CHR. EOFF: Okay Council Members, you ready to take a vote? This iswe are now voting on whether to go into an Executive Session. Mr. Clerk, can you take the roll call vote? Vote on Motion to The motion to enter into Executive Session was carried Enter into Executive by the following roll call vote: Session: (Approved) Ayes: Committee Members David, Kanuha, O'Hara, Poindexter, Richards, and Chair Eoff — 6. Noes: None. Absent: Committee Members Chung, Lee Loy, and Ruggles — 3. Excused: None. (Note: Mr. Kanuha and Ms. O'Hara voted "kanalua" then Ic aye. CHR. EOFF: Okay, thank you. And we can do the Executive Session including Ms. O'Hara, correct, by videoconference? Okay, so we'll get the room prepared. I'm not sure who can stay in. just you, Mr. Kamelamela? MR. KAMELAMELA: I mean if you need him here. The Planning Director can stay in, he's part of the County. CHR. EOFF: Okay, thank you for clarifying. And I guess that'll take us about five minutes, a little more than five minutes to get the room prepared. Okay, thank you. Recess: At 4:22 p.m., the Chair called for a recess to allow the Clerk to clear the room. Reconvene: The meeting reconvened at 5:14 p.m. CHR. EOFF: I'd like to call the Planning Committee out of recess. Motion to Postpone: Ms. David moved to postpone Bill 52 to September 6, 2017. Seconded by Ms. Poindexter. MS. DAVID: And I think I'd like to just thank Corporation Counsel, Mr. Kamelamela, for taking us into Executive Session and I look forward to our next meeting when we have all Council Members here to engage in discussion on this important matter. So, thank you very much. I yield. CHR. EOFF: Okay, any other comments? Mr. Kanuha. Page 20 PG11 August 15, 2017 MR. KANUHA: Thank you and I appreciate the postponement. I learned a lot. I definitely am supportive of moving this thing or supporting the community in this CDP. I just think it's really important to have everybody at the table giving feedback and fully understanding everything that's going on. I think it's definitely enlightening to know that aspect. So I appreciate the postponement, and I know there's going to be a lot of work to be done between now and the next meeting, but I think that's the right path to go. So I really appreciate that. CHR. EOFF: Okay. Mr. Richards. MR. RICHARDS: Yeah, I too support the postponement. That will give us the time to finish up and do the homework so we pass this thing. And again, fully support it, fully support the intent, but we make sure everything is—all the is are crossed, all the is are dotted, so look forward to it. Thank you. CHR. EOFF: Okay, anybody else? Seeing no further discussion, all in favor of postponing Bill 52 to September 6, please say aye. Vote on Motion to The motion to postpone Bill 52 to September 6, 2017 was Postpone: carried by the following voice vote: (Approved) Ayes: Committee Members David, Kanuha, O'Hara, Poindexter, Richards, and Chair Eoff — 6. Noes: None. Absent: Committee Members Chung, Lee Loy, and Ruggles — 3. Excused: None. Page 21 PC -11 ADJOURN MENT: Approved: August 15, 2017 There being no further business, at 5:17 p.m., Mr. Richards moved to adjourn the meeting. Seconded by Ms. David and carried by the following voice vote: Ayes: Committee Members David, Kanuha, O'Hara, Poindexter, Richards, and Chair Eoff — 6. Noes: None. Absent: Committee Members Chung, Lee Loy, and Ruggles — 3. Excused: None. CHR. EOFF: We're adjourned. Thank you. Ms. Karen Eoff, Chair Planning Committee KE/jm $.36. 0 (Date) Page 22