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HomeMy WebLinkAboutMIN PC 2017/09/06 (2016-2018)Committee on Planning 12th Session Hawaii County Building 25 Aupuni Street Hilo, Hawaii September 6, 2017 CALL TO The regular meeting of the Committee on Planning was called to order at ORDER: 9:30 a.m., in the Council Chambers, Hilo, by Ms. Karen Eoff, Chair. R(1T T CAT r Present: Ms. Karen Eoff, Chair Ms. Eileen O'Hara, Vice Chair Mr. Aaron S. Y. Chung, Member Ms. Maile Medeiros David, Member Mr. Dru Mamo Kanuha, Member Ms. Susan L. K. Lee Loy, Member Ms. Valerie T. Poindexter, Member Mr. Herbert M. "Tim" Richards, III, Member Ms. Jennifer Ruggles, Member 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 registered to speak and came forward when called by the Chair: Dwight J. Vicente: Patti Barry: Michael J. Matsukawa: John Cross: (representing the Steering Committee) Megan Lamson: Nohealani Kaawa: Pu`u Davis: Bill 52 (Comm. 351), in opposition. Bill 52 (Comm. 351), comment. Bill 52 (Comm. 351), in support. Bill 52 (Comm. 351), in support. Bill 52 (Comm. 351), in support. Bill 52 (Comm. 351), in support. Bill 52 (Comm. 351), in support. Keoni Fox: Bill 52 (Comm. 351), in support. PC -12 COMMUNI- r A TTnNc John R. Replogle: Michelle Galimba: (representing Ka`u CDP Steering Committee) Jerry Warren: September 6, 2017 Bill 52 (Comm. 351), in support. Bill 52 (Comm. 351), in support. Bill 52 (Comm. 351), in opposition. CHR. EOFF: Thank you. Is there anybody else here who would like to testify before I close the public testimony? Okay then, we'll move on. I'm going to take the nominations, the first one is Communication 405. The Chair directed the Committee to proceed to the next order of business, Communications. Comm. 405: NOMINATION OF STEVEN HIRAKAMI TO THE BOARD OF APPEALS From Mayor Harry Kim, dated August 16, 2017, submitting for the Council's review and confirmation the above nomination. Requires Council Confirmation by: October 1, 2017 (Section 13-4(1), Hawaii County Charter) Vote on Comm. 405: Ms. Ruggles moved to recommend confirmation of the (Approved) appointment of Mr. Steven Hirakami to the Board of Appeals. Seconded by Ms. O'Hara and carried by the following voice vote. Ayes: Committee Members Chung, David, Kanuha, Lee Loy, O'Hara, Poindexter, Richards, Ruggles, and Chair Eoff — 9. Noes: None. Absent: None. Excused: None. Committee members spoke in favor of the appointment. CHR. EOFF: This communication does go to Council in two weeks and you do not have to appear before us at that time, but we'll formalize your nomination at that point. Okay, so thank you, Mr. Hirakami. Next, Communication 406. Page 2 PC -12 September 6, 2017 Comm. 406: NOMINATION OF JOHN L. HETHERINGTON TO THE KAILUA VILLAGE DESIGN COMMISSION From Mayor Harry Kim, dated August 16, 2017, submitting for the Council's review and confirmation the above nomination. Requires Council Confirmation by: October 1, 2017 (Section 13-4(1), Hawaii County Charter) Vote on Comm. 406: Mr. Kanuha moved to recommend confirmation of the (Approved) appointment of Mr. John L. Hetherington to the Kailua Village Design Commission. Seconded by Ms. David and carried by the following voice vote. Ayes: Committee Members Chung, David, Kanuha, Lee Loy, O'Hara, Poindexter, Richards, Ruggles, and Chair Eoff — 9. Noes: None. Absent: None. Excused: None. Committee members spoke in favor of the appointment. CHR. EOFF: You do not have to appear before us at Council, but we will finish the process of completing your nomination at that time. MR. HETHERINGTON: Thank you very much again. CHR. EOFF: Okay, thank you. Okay next, we have Communication 407. Comm. 407: NOMINATION OF JASMINE VICTORIA CRUSAT TO THE KAILUA VILLAGE DESIGN COMMISSION From Mayor Harry Kim, dated August 16, 2017, submitting for the Council's review and confirmation the above nomination. Requires Council Confirmation by: October 1, 2017 (Section 13-4(1), Hawaii County Charter) Page 3 PC -12 September 6, 2017 Vote on Comm. 407: Mr. Kanuha moved to recommend confirmation of the (Approved) appointment of Ms. Jasmine Victoria Crusat to the Kailua Village Design Commission. Seconded by Ms. Poindexter and carried by the following voice vote. Ayes: Committee Members Chung, David, Kanuha, Lee Loy, O'Hara, Poindexter, Richards, Ruggles, and Chair Eoff — 9. Noes: None. Absent: None. Excused: None. Committee members spoke in favor of the appointment. CHR. EOFF: I think you've heard but you don't have to appear before us in Council, okay? So thank you for being here today. MS. CRUSAT: Thank you. CHR. EOFF: That concludes the nominations, so we'll move on to Bills for Ordinances. Mr. Clerk, Bill 52. 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, Bills ORDINANCES: for Ordinances. 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) Postponed: August 15, 2017 (Note: There is a motion by Ms. David, seconded by Ms. Poindexter, to recommend passage of Bill 52 on first reading.) Page 4 PC -12 September 6, 2017 CHR. EOFF: Okay, thank you, Mr. Clerk. So there's a motion on the floor, but before I turn the floor over to Ms. David, I'd just like to make sure everybody has both the confidentials that we received yesterday and a memo from the Planning Director, which would be Communication 351.5. Okay, and if you don't you can let me know. With that, I'll move on to Ms. David. MS. DAVID: Mahalo Chair Eof£ And first of all, I really would like to thank the testifiers again, for coming out today and expressing sentiments that only they can express from being involved in this lengthy process. And so my opening statements will be just a few personal observations. I agree that Ka`u is one of the very few places left on this island which through the years, has been able to maintain its unique cultural landscape, that when you visit Ka`u, you have the sense that really it's the same as when you were a kid. Basically, that's how I look at it. And in this day and age, I think that's very special and unique, especially when you consider the development explosion that one of the testifiers testified to, in the mid 70's and 80's in west Hawaii, which basically erased the look and feel of so many places. So fast forward to 2017, we have a plan. But we have an entire district that has been given an opportunity to start with almost a clean slate, and they have told us what their vision is for Ka`u. Almost 50 years ago, government didn't have a responsible plan, nor did it acknowledge and consider its constitutional duties to determine impacts to our natural and cultural resources. We have come a long way and so today, I just want to note for my colleagues that were not here at the last meeting, we have before us a valid piece of legislation, in my view. It took countless hours and personal sacrifice of an entire community, to let government know what their vision is for Ka`u. We have a document that gives these particular citizens of Ka`u a hope that government will now have important information with which to guide and consider in their decision making. This document also maintains and guarantees everyone's right to utilize establish laws and procedures to address potential concerns and/or amendments in the future. So hopefully, CDP's will eventually eliminate the need for citizens like yourselves to hold government's feet to the fire, through contested case hearings like the Missler case or court actions on their own dime. And I feel very strongly about that, having been one of those people prior to coming to the Council. So I appreciate when our citizens have to engage in legal processes to make a point or to have government follow the law. So nine years, I think is long enough for the people of Ka`u to have a say in government, and I personally want to thank everyone that testified this morning. I wholeheartedly support your efforts, I believe in the CDP's because I think it's not whether it has a force of law in itself, I think it's a document that has to work together with established laws and processes that we already have. And if something comes up later on, this body is the one to address any future Page 5 PC -12 September 6, 2017 amendments. And so I'm very comfortable and I'm very supportive and I just urge my Council Members to feel the same and vote accordingly. Last thing I noted for Council Members, I'm reading the bill itself. It says that the Ka`u CDP is—the purpose of the bill is to adopt a CDP and adopt it according to the Hawaii General Plan. Also, for those that are concerned that possibly—we have to have a very complete document that addresses everybody's concerns up front, it also says that this document is adopted by reference subject to later amendments by ordinances. So to me, I think this document is not meant to be perfect. I think it's a living and breathing document that just expresses the desires of an entire community. And on that, I just ask for my Council Members' support and their yes vote. Mahalo. CHR. EOFF: Thank you, Ms. David. Mr. Richards. MR. RICHARDS: Thank you, Chair, and also, thanks to the people who came in to testify on the Ka`u CDP. I too, thoroughly have a great aloha for Ka`u. I spent a great amount of time and I know some of the testifiers quite well. I've known them for many, many years. I couldn't agree with you more that the CDP is a reflection of almost a decade's worth of work and raising the concern and the will of the community. I fully support that and I get it. And I know there's a lot of conversation about setbacks and all that, and I understand that too. Hearing from the community is really important. In the previous meetings we've had concerning the CDP, all of your concerns actually have nothing to do with the concerns I have about the CDP. It's not the CDP, it's not the will that's in there because I fully support that, I get it. I understand that. Mr. Cross made a comment that the intent of this is to be advisory, this intent is to express our will but we—and it's stated in our documents that the ordinances cannot be changed by a CDP, it must go through a case by case portion, and I understand that as well. My concern is the interpretation in reference to the Missler case and I am bothered by that. We have documents before us that I need further clarification. It's not that I don't support the CDP because I absolutely support the CDP. My concern revolves around how it would be applied to our County General Plan, because even though I hear from the testifiers that this is meant to be advisory and this is our will, this is what we want. According to as I understand, it becomes part of the General Plan once it's adopted, which triggers other unintended consequences, and that's where my concern rides. So at this point, I will relinquish. MS. EOFF: Mr. Richards, some of your questions, would you like to engage with the Planning Director at this time? Because I think he's addressed some of them. Page 6 PC -12 September 6, 2017 MR. RICHARDS: I'm going to want to hear from Corporation Counsel, but I think there are other peopleI know Ms. Lee Loy has some questions, so I'll hang on. CHR. EOFF: Okay, thank you. Ms. Lee Loy. MS. LEE LOY: Good morning and thank you, Chair. I have been in the planning field for probably 20 years now and I am thrilled about what the Ka`u CDP and this document brings to the table as far as addressing community needs. I stay up at night thinking about how we are going to provide housing for our families and maintain a sense of community and a sense of culture in areas that make people excited to move to. Gentrification keeps me up at night and this is one area, Ka`u is one area that we can really begin to look at how we address the needs of the community while maintaining a rural setting. And those are the reasons I support the Ka`u CDP, but the backdrop of the Missler case and how it's being intertwined into the adoption of a General Plan and the language contained within that, is what I need clarification on. It has nothing to do with setbacks. It has nothing to do with preserving a rural community. That's what this document does and I want to be sure that how we apply this, which will become law, that it maintains the integrity of our existing laws and codes and fills the gap in the areas of the General Plan that hasn't addressed those needs. That's the way I view the CDP's. We have an overarching General Plan and the CDP's fills the gap where it was absent, or the language was absent in our General Plan. That's how we maintain community. So I have a number of questions and I'll be more than happy to take us into executive session. I've had a very long conversation with Planning Department. I completely understand, but Mr. Cross captured it all. He said it was a recommendation, but my reading is it's more than that. And so, how do we strike a balance between that recommendation and the language that has the force and effect of law? So I'm going to yield at this time. I'm going to be looking forward to moving into executive session. I'll be more than happy to get this body there. Thank you. CHR. EOFF: Okay, thank you, Ms. Lee Loy. Mr. Kanuha. MR. KANUHA: Thank you. I spoke the last time that there is no doubt that I feel that this is the community's work, and we need to be there to support the community and what they've labored over this for so many years. So that's not a question. I fully support the intent of this. I fully support the community and where they want to go with this. It's just that overarching question from one member of the committee, just was stated that their vision of this is their recommending document, not a mandating document. But there is some language in there that will be mandating, so I that's the overarching question for me. Are we here advocating on the fact that this document is just a recommendation? Or is there a recommendation with some language in there that does have the force Page 7 PC -12 September 6, 2017 and effect of a mandating Code section? So that's my question. I'm there for the community. If they think that this is just a recommendation document. I'm there if they think that there's language in there that does have that force and effect of "shall," absolutely, those sections, I'm there. But I just need to get clarity on what we feel this is and what the members think that this is. Is the language in there going to be the force and effect of law, or is it just our interpretation of that language, the force and effect of law? I don't know. I don't know how they're going to do that in court, but that's just my question. Here to support the will and intent of the community. I just need to get clarity on what that actually means. So, I'll just leave that open for now and I'll yield. MS. EOFF: Thank you. Ms. Poindexter. MS. POINDEXTER: I've always said I support the recommendations of the people of Ka`u through the CDP process. And I believe—and I think from the last meeting that we had, and I cannot wait to get into executive session so we can talk about that more, but even from asking the Planning Director, yes, the force and effect of law, that it mandates the commission to look at what the people's recommendations are. That's what this document does. The CDP is brought and it says, okay, here's the force and effect of law, here's the CDP Commission, make sure—look at it when you're deliberating on what your actions are going to be. Please take this into consideration. It's not saying you will, commission, do everything that CDP does. No, it mandates the commission to say take a look at this document on the recommendations of the people. Finally, we're at that point. Here we are. I'm going to be waiting for Hamakua's one. Finally, we have the people's voices mandating for everyone to pay attention to the recommendations and the wishes of each community, because we want to preserve our cultural lifestyle, our way of living that we cannot come in and you know, we talk about a gathering rights, ruining—I've seen that. I've seen it happening out in Hamakua, what has gone on with all the cliff side failures there with the destruction of our gathering places, where the water is destroyed. I mean I've seen it happen because we're not listening to the people of those communities. So this, the force and law of this document is pay attention. Look at what the people are saying and take this into consideration when you're taking action. That's what it is and that's what I believe it to be. So again, that's what I believe it to be, that's my interpretation of it. So I give so much mahalo to the Steering Committee for representing a lot of the people's voices. And a lot of times, a lot of people don't show up but you run into them in the supermarket, at the parks, at the gyms and people telling you all these things. I know, I sat in on some of the Hamakua CDP meetings and a lot of people don't show, but they're out there. And all of the people on that Steering Committee, you get people calling you, talking to you, and not only on the Steering Committee but us as people who are Page 8 PC -12 September 6, 2017 actively involved in that process. We get that. So we go and we—you know, one voice may represent 200. So anyway, mahalo and I'm supporting this. Aloha. CHR. EOFF: Okay. Ms. Ruggles. MS. RUGGLES: Thank you. I just wanted to say that I wholeheartedly agree with everything that has been said, and I also want to frame this or just to remind us that with this specific CDP, 14 percent of the population was said to participate, and that's huge. That's a huge amount of people for a sample size and that really represents a direct will of the people and personally, I think should have the force and effect of law over other guidelines because this is a direct will of the people. I mean this is something that's been going on for eight to nine years the community has been working on this. There were community summits, there were speak outs, there were focused discussions on all the contentious topics, and they worked out the fine details. And this has been gone back to the Steering Committee, into the Planning Commission, to the Steering Committee, and our office of Corporation Counsel looked at it. It's been very well vetted and I am in complete support of it. Thank you. CHR. EOFF: Ms. David. MS. DAVID: Yes, I guess before we go into executive— CHR. EOFF: Wait, excuse me. Does anyone mind if I make a comment before we go to the second round of comments? MS. DAVID: Sure. CHR. EOFF: Okay. MS. DAVID: I mean I don't mind. CHR. EOFF: Ms. O'Hara. Ms. David, let me go to Ms. O'Hara then. Let me take Ms. O'Hara because she hasn't had a chance on the first round and if nobody objects, I'd like to just make a comment before we go to the second round of comments. MS. O'HARA: And my comment is very short. We're all troubled by the precedence set by the Missler case, and how that is going to impact us going forward with our General Plan, and so forth. But I do want to comment on this particular plan. It's excellent. It is the best community-based planning I have seen yet and I totally commend everyone who participated. I know how many volunteer hours that it takes and I really want to support this. Thank you. Page 9 PC -12 September 6, 2017 CHR. EOFF: Okay, thank you, Ms. O'Hara. I'd just like to say that I'm not troubled by the Missler case. I'm actually glad that there's some clarification for us. In a plan that has policy that's "should," those are "should." If the policy is a "shall," I believe it's a "shall," and it shall be enforced. Now, there could be variances or specific situations that may come up but in this case, I don't think we should be troubled because we were told at the last meeting that the Ka`u CDP Steering Committee was very careful on how they worded this document. I don't really want us to go into an executive session if there are things that can be clarified in Sunshine here in front of the public, especially by the Planning Director, if this isn't a confidential document or if there's questions Council Members may have to further clarify the concerns that they have. But I would like to see us do most of that in open session. If it comes to a point where Corporation Counsel recommends we take an executive session, then so be it, but I don't really want to leave the public in the dark either about whatever needs to be clarified here. That's just my comment for now and I'll go back to Ms. David. MS. DAVID: Thank you, Chair, and I totally agree with what you said. I just wanted to make a note in case we go back into executive session that Planning Director—Missler didn't happen overnight. Missler was around for several years and so in anticipation of a potential litigation that would have been an extreme impact on CDP's, the Ka`u one in particular, I understand that all—everything that could possibly be taken into consideration to address both Mr. Kanuha's and Ms. Lee Loy's concerns are about the Missler case, has been vetted. And I'm not one to say the Planning Director or even our Corporation Counsel, who read this document twice and said that he saw no reason why we should not move forward. Now, he's our attorney, so based on that, I really believe that we as a body, in taking into consideration the Planning Director's view and comments and position on this, given the Missler and also our Corporation Counsel, I really think that we are ready to move forward. And should some of the Council Members be uncomfortable because of questions that they may or may not have, there's a way to deal with that. I mean I'd just hate to see anybody vote no, but I'm going—my position is based on our attorney and the Planning Director who says, given the Missler decision, this plan is okay to move forward. So, that's my position, I'm ready to move forward based on good information from people that have studied this. So, I yield. CHR. EOFF: Thank you, Ms. David. Mr. Kanuha. MR. KANUHA: Thank you. Mr. Cross, do you want to? I just want to get a clarification. (Note: At this time, John Cross came forward to address the members of the Committee.) Page 10 PC -12 September 6, 2017 MR. KANUHA: You said you're on the Steering Committee? MR. CROSS: I am on the Steering Committee. I'm a non-voting member. MR. KANUHA: Okay. MR. CROSS: It's because I work in the district of Ka`u but I don't live there. MR. KANUHA: Representing a large property owner I think you MR. CROSS: Yes, I used to work for Olson Trust and I provide consulting work for Resource Land Holdings, 6,000 acres, and I currently work for Ka`u Royal Hawaiian Coffee and Tea, 1,600 acres. So, I used to be Vice President of Real Estate for C. Brewer, 31,000 acres of land under my control. MR. KANUHA: Okay, so I know you stated earlier that you thought that this was a recommending document. MR. CROSS: I am recommending you pass this document, this bill. MR. KANUHA: I agree. I think we should pass it. MR. CROSS: Okay. There are issues within the bill that may upset large landowners or properties within the quarter mile setback or changes in zoning that were recommended. MR. KANUHA: That's not my issue. But I just—where I'm trying to get is there is language in there that is legally binding, mandating certain things. I just want to make sure and clarify that this entire document isn't just a recommendation document. Sure, it's recommending a lot of things, but there is language in there that does legally bind the County to—when things come up, that we "shall," based off the community's input within this CDP, that these shall be done. I'm just— MR. CROSS: That's not my answer to give. Maile, you just said it. Or maybe it was Valerie. When a plan or a development comes before the Planning Commission, they will refer to the CDP. They will refer to the General Plan. They will follow the County Code, and they will make recommendations to that developer or landowner on how they should proceed. The CDP is there with the community's voice as to we would like this to happen. So the Planning Commission takes that into consideration and if the General Plan had to be changed, the CDP recommends to the General Plan to make the change, and then it's you guys to make the change to the General Plan. That's how I see this. MR. KANUHA: Okay, thank you. Can I bring up Planning Department? Page 11 PC -12 September 6, 2017 (Note: At this time, Planning Director Michael Yee, Planner April Surprenant, and Deputy Director of Research and Development Ron Whitmore came forward to address the members of the Committee.) MR. KANUHA: Good Morning. CHR. EOFF: You can get one more chair if MR. KANUHA: If you could introduce yourselves. MR. YEE: Michael Yee, Planning Director. MR. KANUHA: Thank you. MS. SURPRENANT: April Surprenant, Planning Department. MR. WHITMORE: Ron Whitmore, Deputy Director of Research and Development. MR. KANUHA: Thank you guys for being here, and again, thank you for all your work with the community on making a great document. And maybe I'm going too far on this, I really want to support this, but I just want to make sure that I'm completely pono with my decision on voting and where I feel that my vote would matter. But you heard from Mr. Cross and in the fact that the CDP will hear from certain things and they're going to be making recommendations based off of what's happening in the CDP, what's happening in General Plan to the Planning Department, to the Planning Commission and just recommendations. There is language within the CDP that is mandating and you "shall" instead of just recommend doing this, this, and this. Is that correct? MR. YEE: Correct, and I think if you would refer to the specific sections that have "shall," they're going to be referring to existing, you know, Hawaii ordinance MR. KANUHA: Already an ordinance? MR. YEE: Correct. So to back up a little bit, I think we're, and I'm assuming, I don't want to speak for John, that you can section the "shoulds" where a lot of the community focused on was how do you craft the "shoulds." And that's where the energy went into and that's where it's the recommendation versus the things they felt like it was important enough to reiterate ordinance because it was important enough. Well I don't think that's where his focus was and so that's why I think he tends to use the language recommendation, not thinking about the stuff that's already up at Hawaii State Statute. So I think also—we went back to the table after the last committee meeting and we reviewed the document again. We ended Page 12 PC -12 September 6, 2017 up starting to wordsmith parts of it and we realized in just trying to wordsmith stuff, we were going to maybe kick it back to the Steering Committee. It wasn't worth it because if down the road we need to amend, we can do that down the road. It wasn't enough to feel like we wanted to postpone again and send it back to Steering. So we went through it again to just ensure there was nothing being said that put us at risk of trying for something to be an ordinance that we didn't intend to. And I think we've gone through it. If you read Corporation Counsel's comments, clearly it's the "shall" and "should" that gets us into sticky points, and we went through it again to just ensure that's not the case. MR. KANUHA: Perfect. If that's the case, you know, this was a document that has been worked on for 10 years. This is what the community wants. Why isn't it mandating language? I know there are issues with the "shall" and "should" and all that stuff, but you know, if the community wants this, they worked so hard, you know, I just feel that shall be the wishes of the community. You know what I mean? I know we get into legal issues, but I just hate to see us pass something and then it goes through the process, and it's just recommendations. And then a developer says it's just recommendations, I'm the property owner, I have rights too, and I want to do this. Sure, it's just a community plan that isn't mandatory, I want to do this that's against that recommendation or against that thing. So that's why I'm like, not against the recommendation, but like it's not a binding thing. MR. YEE: Clearly stepping into this job, I did ask the question. Why don't we just make it a "shall"? And a lot of the, and I'm talking specifically around the quarter -mile setback, in the end, it was a community compromise. I wasn't here for that discussion, but clearly, it was articulated it was the compromise that was reached at the Steering Committee level. So that's the simple answer to that. I want to respect what they worked out. MR. KANUHA: Okay. I'm going to yield. CHR. EOFF: Ms. Lee Loy. MS. LEE LOY: Thank you, Chair. I know these guys too long, so I know exactly where all of this is going. My concern is about some of the back drop. I got a copy of the executive minutes that I was not in attendance, and there were a number of questions I personally would have asked of our Corporation Counsel that this Council didn't ask, and I just want that opportunity. And so I hear what my colleagues are saying, but there's a moment of clarity that I need that I have not gotten yet. And I want to be able to ask about the existing writ that's still pending, the back drop of the ICA (Intermediate Court of Appeals), what they decided, and even down at third circuit court. And there was a lot of conversation down there on how it dealt with our public trust, and I am a huge supporter of Page 13 PC -12 September 6, 2017 protecting our public resources, which is why I am so excited about the Ka`u CDP. I really believe that was actually what drove this CDP, was the protection of our public resources and how we manage that going forward. So I can appreciate what the Ka`u CDP is bringing to the table. But what's bothering me is my colleagues didn't ask the questions that I would have, and they're sitting here saying, "I'm comfortable." I'm saying I'm not, and I really want to take this into executive session so I can go get comfortable, and bring clarity, and we can come out of this, and have a decision. So I yield at this time. CHR. EOFF: Okay, and that's fine, I just wanted to have as much discussion in public as we could, but if there's something that we cannot talk about in open session, then we can always have that motion. Ms. David. MS. DAVID: Yes, I guess before we go into executive session, I think we have Mr. Matsukawa, who is the attorney on the Missler case. I mean he's sitting there, I'm just wondering if my colleagues have any questions for the attorney that was very involved in Missler. If we have any questions for him before we take this into executive session to get some clarity in—so that's my suggestion. He's sitting there and I'm not sure as far as what possible questions we can ask him that doesn't require us to go into executive session for clarity purposes and for the people that are here, that's not privileged and confidential. Point of Order: MR. KANUHA: And I agree, if there's a question that needs to be asked, I think just ask him. If it needs to—if it's, Madam Chair, if there's a question that needs to be asked, ask the question. If it's deemed that it needs to be asked in executive session, then CHR. EOFF: I agree with that. Did you want to call him at this time? MS. DAVID: Yeah, if Council Members have questions. I mean I don't have any questions myself, but if they would like to entertain questions for Mr. Matsukawa. Mr. Richards, I'm not sure if you want to do that. Point of Order: MS. LEE LOY: Chair, just a point of order. Mr. Matsukawa is part of that ongoing writ that we have with our County, so I am getting very concerned about where we're going with this and how we ask Mr. Matsukawa any questions, because we have a pending writ of, and I'm going to say it wrong, certiorari, I hope I said it right, with Mr. Matsukawa and the clients. So I'm just going to caution my colleagues about where we go with this and that's why I want to get into executive session. CHR. EOFF: Okay. Page 14 PC -12 September 6, 2017 MS. DAVID: Okay. I mean that's totally up to this body who wants to go into executive session. I just made the offer because I know Mr. Matsukawa is not going to discuss things that are confidential with respect to the writ. But I'm just saying that if you had questions regarding what the decision came to as far as public trust resources, that we can discuss outside. Other than that, I yield. Let's go into executive session. CHR. EOFF: Well there's not a motion yet for that, so MR. RICHARDS: I'll move to go into executive session. I want to discuss this document that we have and it says confidential, so I think that implores that it must go into executive session. And again, I want people testifying understand this has nothing to do with the content of the CDP, that's not what we're discussing. Motion to Enter into Mr. Richards moved to enter into Executive Session in Executive Session: order to hold attorney-client privilege discussion regarding Bill 52 (Comm. 351), as authorized by Section 92-5(a)(4) of the Hawaii Revised Statutes. Seconded by Ms. Lee Loy. Vote on Motion to The motion to enter into Executive Session was carried by Enter into Executive the following voice vote: Session: (Approved) Ayes: Committee Members David, Kanuha, Lee Loy, O'Hara, Poindexter, Richards, and Chair Eoff — 7. Noes: None. Absent: Committee Members Chung and Ruggles — 2. Excused: None. CHR. EOFF: The purpose of the executive session is to discuss the document that was written to us on September 5th, which is regarding the Missler versus Board of Appeals. And we'd like to ask Corporation Counsel Schoen and Kamelamela to please stay with us and whomever else they believe needs to be in. Thank you. So we're in recess while we get the room prepared. Recess: The Chair called a recess at 11:01 a.m. Reconvene: The meeting reconvened at 12:05 p.m. CHR. EOFF: Resume our regular session of the Planning Committee and just to let everybody know, we did hold an executive session. Some of the Council Members had questions regarding a confidential communication that we received from Corporation Counsel, so we were involved with the discussion that answered some of our questions. However, we wanted to resume in public because a lot of Page 15 PC -12 September 6, 2017 the conversation needs to be heard by everyone so everybody can better understand what this process is as we move forward. So, I'll go ahead and resume conversation with the Council Members now, and we have Director Yee here and we have Corporation Counsel here still. So Council Members, would you like to continue this discussion? Mr. Richards. MR. RICHARDS: Okay, thank you, so—thank you, Chair. Again, to reiterate what our Chair had said, just asking some questions concerning a confidential document and implications for the County. So moving forward coming back from the CDP, it is my understanding from the Planning Director that this has been vetted and that you are comfortable with it being essentially and largely a recommendation. A lot of the "shall" was been taken out and is now "should." guess I can look at both of you. So we're not going to be locking ourselves into something that could pose a problem for the County in the future. Is that your understanding? CHR. EOFF: Mr. Yee. MR. YEE: Yes, the document is intentional but what it wants to mandate in terms of "shalls" and it's very intentional about what is a wish from "shoulds." I still want to say it's adopted in its ordinance those, so it's not a document that you can say outright that it's just a recommendation either. So I think that would be an inappropriate description too of it. But it's also not a document that is everything that it said, is changing every item in there is going to affect an ordinance and going to change it. No, it doesn't do that unless it's prescriptive about it. CHR. EOFF: Okay, any other comments? Ms. Ruggles. MS. RUGGLES: I have a question for Mr. Kamelamela. (Note: At this time, Corporation Counsel Joseph Kamelamela came forward to address the members of the Committee.) CHR. EOFF: Just state your name again. MR. KAMELAMELA: Joseph Kamelamela, Corporation Counsel. MS. RUGGLES: Thank you. Knowing in light of the Missler case and having gone through the Ka`u CDP, do you see any problems for the County? MR. KAMELAMELA: I'm comfortable with the way that the report is written, yes. MS. RUGGLES: I yield, thank you. Page 16 PC -12 September 6, 2017 CHR. EOFF: Thank you. Ms. Lee Loy. MS. LEE LOY: Thank you, Chair. Thank you everyone. Thank you to the members of the Steering Committee. In follow up to Mr. Yee's question, and if I'm understanding it correctly, and we're going to keep reiterating this, areas of the Ka`u CDP that made specific recommendations are written with the crafting language to have that force and effect, whereas other areas that are silent are just recommendations. Is that accurate? MR. YEE: Correct. MS. LEE LOY: So I want to focus a little bit on Bill 52 itself and the language contained therein. Where are those assurances that areas of the Ka`u CDP that says "shall" have the force and effect, whereas those that wish, is just a recommendation, specifically in that Bill 52? In the underscored or is there an opportunity to clarify that very clearly in that unscored language? I understand you guys have all the policy and the policy guiding documents and the definitions within the Ka`u CDP, but I'm specifically looking at the bill that adopts this plan. MR. YEE: In a comment earlier, are we crossing over into having two issues in the bill by doing so? So I'm not sure if we want to ask Corporation Counsel that question. Or can we? CHR. EOFF: Mr. Kamelamela or Renee. Ms. Schoen. (Note: At this time, Corporation Counsel Joseph Kamelamela came forward to address the members of the Committee.) MR. KAMELAMELA: Good afternoon again, this is Joseph Kamelamela. I know that the General Plan itself talks about that where there's a conflict between the CDP and the General Plan, then it's the General Plan that takes precedence. So there are laws on the books right now for that, but it doesn't state it in the bill itself. MS. LEE LOY: I yield. CHR. EOFF: Anybody else? Ms. O'Hara. MS. O'HARA: Just a follow up on what I understand Ms. Lee Loy is asking for is that type of clarification in the language specific to the Ka`u CDP. And quite frankly, I think if we put in such clarifying language, it should apply to all of the CDP's that are listed in this area of the Code that's being amended, rather than specific to the Ka`u Plan because it should apply to all of the CDP's. So then, you do get into the different subject matter that Mr. Yee referenced before. In other words, we can't have a bill that has two different subject matters. And so I Page 17 PC -12 September 6, 2017 think we need to move forward with the bill that we have before us and consider potentially an amendment. And if Ms. Lee Loy would like to provide language for that, she does have expertise in planning and I would encourage her to do so. So that's kind of what my understanding what the discussion is about. Okay, thank you. CHR. EOFF: Thank you, anybody else? No? Okay, well then I'll go ahead and make a comment. First of all, I'd like to thank the people of Ka`u for their years and years of hard work and all of the Planning staff I think this is a good discussion today to try and alleviate any concerns Council Members have and to educate all of us better about how we interpret what we are doing today and what we have been doing in adoption of community -driven plans. Which I think was they were intended to give the community a strong voice in planning. And so whatever is recommended is a strong recommendation. Whatever is mandated through the language that includes "shall" is serious. And I believe that we are doing this per the General Plan requirement that the County adopts community development plans by ordinance. So to me, I'm also ready to close down discussion unless anyone has a last minute thought on this. Mr. Chung. MR. CHUNG: Just briefly, as I stated in executive session, I think our application of this law is wrong. I'm going to be voting in favor of this thing today, but I just think the application, the way we've gone through the process, is not what it's supposed to be. It states that these community development plans are supposed to recommend amendments to the Code and all these other things. don't think really, that it contemplated, and I'm just speaking off the top of my head, that it contemplated codifying things that are different all over the island. Probably what it contemplated was making recommendations to the Code which could be used throughout the island. And then for each specific area, you would have recommendations that would not be codified. That's only my personal thoughts, okay? But at the same time, I heard a lot of things within the executive session that led me to believe, maybe my belief is mistaken, that most, if not all of my colleagues feel that these things more should be for purposes of guidance, most. I think I'm really confused quite frankly, with what the message is both from the administration and my colleagues, no offense to any of you, are, but it's just so confusing. But just in deference to the hard work that's gone through all of this, I'm willing to cast my favorable vote for the Ka`u CDP, I have no problem doing that. I think it's actually a reflection of what the community wants and I don't see anything wrong with it. But I just think there are systemic problems with this whole process that need to be addressed somehow. And I think from what I see, based on what I've read, that the administration is planning to doI don't know if it adequately addresses my concerns, so we can talk about that too. Thank you. Page 18 PC -12 September 6, 2017 CHR. EOFF: Thank you, Mr. Chung. MS. LEE LOY: Chair? CHR. EOFF: Ms. Lee Loy. MS. LEE LOY: Thank you and I appreciate all of the clarity that I have received. I completely agree that the Ka`u CDP was written with the back drop of so many of the concerns. But I also heard a lot of conversation about what certain Council Members' interpretation was, and I will be supporting here at the Planning Committee level, but unless we put those words on paper, if this moves forward, 15 years from now and is evaluated, the words on this paper doesn't really provide the clarity that we talk about right now. So I would actually urge my Council Members that we go ahead and pass this out of committee but we look at specifically that clarifying language so everybody is getting what they want. And I did hear what Ms. O'Hara mentioned, but that overarching language, as it applies to all the CDP's, I'm going to use something Mr. Richards always says, it's not ready for primetime. So we could actually address it right here, right now with the Ka`u CDP and use this as a model for future CDP's as we adopt those. I don't see us going into the General Plan and amending that to adopt them by resolution. It doesn't validate the hard work of the community and 10 years is hard work. And so I think we have an opportunity to clarify exactly what some of our Council Members said here today, but we need to put it on paper. So I'm going to be supporting it at this time. Thank you. CHR. EOFF: Thank you, Ms. Lee Loy. Ms. David. MS. DAVID: Thank you, Chair, and I also I have been—and you folks know I do support this and I really thank my colleagues for the, as Ms. Lee Loy coins it, robust discussion that we had. And I did have a chance to confirm my position that this document took into account a lot of things that was of serious concerns. And so I'm very comfortable and I really would like to thank the testifiers that have come out today and the last meeting. So with that said, I think Ms. Lee Loy put out the offer that every otherI mean if for some reason we feel that there needs to be clarification in this ordinance down the road, we welcome that. And then it can be given its due time and dedication to get into really deep discussions on any amendments. But I'm ready to move forward and I really thank you folks and colleagues. Thank you. CHR. EOFF: Okay, then if there's no further discussion we'll go ahead and take I guess a roll call vote. Mr. Clerk. Page 19 PC -12 September 6, 2017 Vote on Bill 52: The motion to recommend passage of Bill 52 on first (Approved) reading was carried by the following roll call vote: Ayes: Committee Members Chung, David, Kanuha, Lee Loy, O'Hara, Poindexter, Richards, Ruggles, and Chair Eoff — 9. Noes: None. Absent: None. Excused: None. (Note: Mr. Richards voted "kanalua" then "aye.") CHR. EOFF: Thank you very much. Bill 52 will move to Council with a positive recommendation. Thank you everybody. ADJOURN There being no further business, at 12:21 p.m., Ms. Poindexter moved to adjourn MENT: the meeting. Seconded by Mr. Richards and carried by the following voice vote: Ayes: Committee Members Chung, David, Kanuha, Lee Loy, O'Hara, Poindexter, Richards, Ruggles, and Chair Eoff — 9. Noes: None. Absent: None. Excused: None. CHR. EOFF: This meeting is adjourned. Approved: Ms. Karen Eoff, Chair Planning Committee KE/j m 5. /f. 17 (Date) Page 20