HomeMy WebLinkAboutCOM 0351.015 2016-2018 PIPC,
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Law Offices of Yeh & Moore THOMAS L.H.YEH
tly@yehandmoore.com
A Limited Liability Law Company MICHAEL W,MOORE
mmoove@yehandmoore.com
10 Kamehameha Avenue,Hilo,Hawaii 96720-2830 Of Counsel:
Telephone (808)961-0055 JILL D.RAZNOV
jdraznov@grnail.com
August 31, 2017
Honorable Karen Eoff, Chairperson
Committee on Planning, County Council
County of Hawaii -0
25 Aupuni Street ,,
Hilo,Hawai'i 96720 C,
. . -.-
Re: Bill 52: Hawai'i Ka'u Community Development Plan --
Dear Ms. Eoff and Planning Committee Members:
As you are aware, in conjunction with your committee meeting of August 15,2017,we
submitted our letter identifying our concerns with the adoption of the Ka'u CDP as drafted and
as proposed in Bill 52. Our concerns related to the legal effect of such adoption in light of the
Missler decision, filed on June 26, 2017, after the Steering Committee and the Windward
Planning Commission voted to recommend approval of the CDP.
Since the last committee meeting regarding Bill 52,we reviewed additional records from
the Steering Committee and Windward Planning Commission, which further confirm that the
understanding and intent of those bodies was that the CDP was not intended to amend or
override either the Hawai'i County 2005 General Plan(GP)or existing ordinances or rules, but
was intended to guide help decision making.
These recommendations were made in light of pertinent language in Section 15-1 of the
GP:
Regulatory Actions. The County administers and enforces various
regulations to control land use. These regulations include the
„' zoning code, subdivision code, flood control code, grading code,
sign code and building code. The County also administers
requirements imposed by the Federal and State governments,such
as the Coastal Zone Management Act and State Land Use Law.
The Community Development Plans shall recommend'amendments
as appropriate to the codes, maps, or administration and
enforcement." (Emphasis added). Attachment 1.
Neither the GP nor those recommending adoption of the CDP envisioned that existing
codes,statutes or rules would be amended as to geographical areas covered by a particular CDP.
However,as we know,the Missler decision opined that where the word"shall", or words of
similar import were used in the Kona CDP, such language in the CDP was interpreted to
constitute amendments to existing ordinances as they applied to developments in Kona(in that
case,code provisions related to planned unit developments or PUDs),notwithstanding that the
No.
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Law Offices of Yeh&Moore
A Limited Liability Law Company
Honorable Karen Eoff, Chairperson
Committee on Planning,County Council
County of Hawai`i
August 31,2017
Page 2
County Planning Department also considered such language in the Kona CDP to be policy
f.
:- language only.
As such,adoption of the draft Ka'u CDP by the current form of Bill 52 without
qualifying language in either the bill and/or the CDP may also result in consequences not
intended by the Planning Department, Steering Committee or the Planning Commission, as to.
the numerous policy controls which could be interpreted as being mandatory from a legal
standpoint.
We provide pertinent chronological references to the record relating to the intent of the
agencies which recommended adoption of the CDP,all prior to the Missler decision.
Steering Committee
On September 24, 2015,the Steering Committee was moving closer towards
recommending the adoption of the CDP. As it relates to the shoreline setback issue,the Steering
Committee specifically discussed the shoreline setback policy being adopted, was informed by
the Planning Department as to the several regulatory provisions which would need to be adjusted
to accommodate the policy. Thus,Policies 30 and 31,proposed amendments to existing
shoreline setback and SMA rules,reflecting the understanding of how the CDP was to be
interpreted relative to the existing regulatory framework. See Steering Committee Meeting
Minutes of 9/24/15,Attachment 2. -
On October 27,2015, during its meeting recommending the draft CDP be sent to the
Windward Planning Commission,facilitator Bob Agres confirmed that when the CDP is adopted
and implemented,"it will become a County policy document, guide Federal and State Agencies,
and guide community-based actions to achieve community objectives." See Steering Committee
Meeting Minutes of-10/27/15,Attachment 3,page 2. This is the basis of the Steering
Committee's understanding when voting to recommend approval of the CDP
Planning Department
In an opinion vetted by Corporation Counsel,on February 16,2016,the Planning
Department interpreted the Kona CDP,which contained similar words of a mandatory nature to
not constitute amendments to existing codes for the Kona area,citing the above referenced
section of the GP, and confirmed that the"very intent of the CDP was to be another tool to assist
the Planning Department through submittals of`recommendations'that should be used guide
decision making in the future. " Attachment 4.
Most recently,as members of this Committee may recall, at its August 15,2017 meeting,
Ron Whitmore,who was the Planning Department's representative during the course of the
Steering Committee and Planning Commission review, confirmed that the GP controls over
Law Offices of Yeh&Moore
A Limited Liability Company
Law CP Y
Honorable Karen Eoff, Chairperson
Committee on Planning, County Council
County of Hawai'i
August 31,2017
Page 3
inconsistent policies which may appear in the CDP, and that the CDP "does not presume to
amend"the County Code.
Windward Planning Commission
During its May 10, 2017 meeting regarding the CDP,prefatory remarks by the Planning
Department confirmed to Commissioners the intent behind the adoption of the CDP (references
herein are to May 10,2017 Hearing Transcript of the Windward Planning Commission,
Attachment 5):
"[I]t becomes a County policy document, guides Federal and State
agencies, and guides community-based actions." (p. 9)
"Because at the end of the day, it's the Director's authority to
establish the setback, right?" (p. 18)
"And,the CDP, anyway, doesn't change the zoning." (p. 26)
"Yes, it is very specific in some cases about the-what it really liked
the Planning Director to do in certain cases where the Director has
authority to do something,but we,I don't think we crossed the line
and said you trump the authority of the Director or the authority of
the Planning Commission or the Council, right?" (p. 27)
During its June 1,2017 meeting, at which it voted to recommend the adoption of the
CDP, additional discussion tookplace as to the effect of the CDP below references are to June
1,
2017 Hearing Transcript of the Windward Planning Commission, Attachment 6):
"And then policy control, on the other hand, is really in the spirit
of,or these sorts of this authority that the General Plan gives to the
CDP. Its directing, designating and guiding and, sometimes, in
fairly specific ways about how to achieve community goals using
land use tools. The alignment of the CDP and the General Plan
`would be a follow-up step.' "(p. 5)
Prior to the Commission's vote to recommend approval, as to a commissioner's question as to
the effect of the adoption of the CDP as a policy document,both the Planning Department and
Corporation Counsel spoke to the issue:
"The Steering Committee and the community worked to be clear in
the CDP to make it clear to the decision makers what the (a)goal
was,what the intent was; and(b)how it thought tools in the
Law Offices of Yeh&Moore
A Limited Liability Law Company
Honorable Karen Eoff, Chairperson
Committee on Planning, County Council
County of Hawai'i
August 31,2017
Page 4
planners' toolbox should be used in different circumstances, but
was very careful at all times never to cross the line of basically
assuming more authority than the CDP had It's very, its very
differential (sic) to where authority lies in the regulatory
framework, the Charter, General Plan, Code... tryspecific to be as
as possible so that those who are making a decision had no doubts
in their mind what the intent and preference of the community is,
right?But at the end of the day,the decision makers are the
decision makers, and they will ultimately make the call, and as you
know, it's on a case-by-case,application-by-application basis,
right?" (R. Whitmore,pp. 11-12,Attachment 6)
"[The important thing to keep in mind is the CDP is guidance for
how they want future growth to occur in a particular district;
whereas the General Plan covers the entire island." (A. Self,p. 12,
Attachment 6)
Analysis of Appellate Case Law
Steering Committee minutes from the June 1, 2017 meeting reflect the same
understanding that decision makers will consider the CDP a guidance document for the Ka'u
district. Attachment 7.
Under the Missler decision,even though the Hawai'i County Planning Department
considered the Kona CDP to be for guidance only, where language of the Kona CDP stated that
certain policy provisions containing the word"shall"would be interpreted as containing legally
binding policies that must be implemented through land use decisions,and which had the legal
effect of amending existing PUD provisions in the County Code,notwithstanding that there was
no specific language of amendment as contained in the enabling ordinance.
In a prior decision,Protect Ala Wai Skyline v. City and County of Honolulu, 6 Haw. App.
540(1987),the Intermediate Court of Appeals (ICA)held that where the General Plan for the
City and County contained explanatory language that policy statements contained in the Plan
"are intended to serve as policy guidelines as opposed to rigid requirements", and the Plan was
expressly stated to be a"guide",the Plan was not interpreted as a prohibition on further
expansion of uses in Waikiki.
The Ka'u CDP contains a number of"Action Controls"which, similar to the Kona CDP,
are stated to be policy which is"imperative or mandatory". As with the Kona CDP, adoption of
the Ka'u CDP under the form of Bill 52 as currently written, will result in consequences that
were not intended by the drafters,the Steering Committee or the Windward Planning
Law Offices of Yeh&Moore
A Limited Liability Law Company
Honorable Karen Eoff, Chairperson
Committee on Planning, County Council
County of Hawai'i
August 31,2017
Page 5
Commission. Such unintended consequences can be avoided by inserting cautionary language
similar to the language that was contained in the Protect Ala Wai Skyline case,
Thus,the Council should consider the following amendment/addition to Section 16-2 of
the Code, which are consistent with the language of the GP, and the intent of Steering
Committee and the Windward Planning Commission:
KA U. The document identified as Kau Community Development Plan"is
adopted by reference,subject to later amendments by ordinance, and may be cited
as the"Ka'u CDP". The planning area for the Ka'u CDP encompasses most of
Judicial District 9 in the County of Hawai'i. Eastern portions of the district near
and including Village were included in the Puna CDP planning area and were.,
therefore,not incorporated into the Ka'u CDP. In the event of any conflict
between the Ka'u CDP and the Hawai'i.County General Plan, as amended,the
General Plan shall be controlling, and all statements of policycontained in the
g
Ka'u CDP, including policy controls, shall constitute specific policy guidelines,
but shall not constitute amendments to existing codes or rules.
As suggested in our previous letter,the following language amendment to the definition
of a Policy Control at Section 2.4.1.b of the CDP, at page 18, should be considered :
Policy Control. These statements of policy provide more specific development
guidelines to be considered by the Council and County agencies when
considering or reviewing zoning, subdivision, grading, SMA or other permit
applications [limit the range of decisions that can be made] in the future, like land
use policies that specifically designate future settlement patterns. These [binding,]
sometimes restrictive policy controls [often include the use of the word"shall",
which,from a legal standpoint,means the policy is imperative or mandatory]
must be considered in the decision making process,when the regulatory
framework allows."
Conclusion
In light of the recent Missler decision,the stated assumptions that the lines of authority in
amending codes and existing regulatory provisions are not being crossed cannot be taken at face
value. In order to properly incorporate the intent of the Steering Committee and the Windward
Planning Commission,the enabling ordinance and/or content portions of the CDP relating to
Policy Controls and similar mandates should be revised accordingly.
Law Offices of Yeh&Moore
A Limited Liability Law Company
Honorable Karen Eoff, Chairperson
Committee on Planning, County Council
County of Hawai'i
August 31,2017
Page 6
Please let us know if you have questions regarding the above. We look forward to your
considered review of the above.
Very truly yours,
LAW OFFICES OF YEH&MOORE
THOMAS L. H. YEH
Attachments 1 - 7
cc: Corporation Counsel
Planning Director
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PLAN.. :err.d-�r� rr•�P�-.u,,.-.>*�
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IMPLEMENTATION
The General Plan sets forth broad goals,objectives, and policies. Implementation requires
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translating these broad statements to specific actions, systematically evaluating progress,
and active community participation. In this regard, follow-up planning efforts will in-
volve the preparation of Community Development Plans, Capital Improvements Program,
and an annual report.
15.1 COMMUNITY DEVELOPMENT PLANS
The Community Development Plans are intended to be the forum for community input
into managing growth and coordinating the delivery of government services to the com-
munity. The Community Development Plans will translate the broad General Plan state-
ments to specific actions as they apply to specific geographical areas.
A Community Development Plan should direct physical development and public improve-
ments within a specific area. The Community development Plan may contain detailed
land use and zoning guide maps,plans for roadways,drainage,parks, and other infrastruc-
ture and public facilities, architectural design guidelines,planning for watersheds and oth-
er natural features, and any other matters relating to the planning area.
The Planning Director or Council may initiate a Community Development Plan. Each
Community Development Plan shall have a steering committee composed of members ap-
pointed by the mayor and confirmed by the council. The members shall be broadly repre-
sentative of the affected communities.
The steering committee shall work in conjunction with the Planning Department and with
any professional consultants hired to assist in the preparation of the plan. The exact
boundaries of the planning area may be determined during the preparation of the plan.
It is not mandatory that there be a Community Development Plan for each region. Al-
though the previous General Plan called for Community Development Plans, in the thirty
years since the enactment of the first General Plan, only one Community Development
Plan has been enacted byordinance, one by County Council Resolution, and two by Plan-
ning Commission Resolution. Time, cost, the degree of effort, and in some cases, the in-
-) abilityachieve
to a sufficient consensus,has been the limiting factors.
Hawaii County General Plan ; 15-1
ATTACHMENT 1
§15.1: Community Development Plans
The need for a Community Development Plan for a particular area should be assessed lti
considering a number of factors, including how much is public infrastructure chal-
lenged by recent or anticipated growth and whether there are significant efforts to
change the zoning and land use in the area.
After the steering committee has recommended approval of the Community Develop-
ment Plan, it shall be forwarded to the Planning Commission for its review and recom-
mendation to the County Council. The County Council may modify or amend the
Community Development Plan before enacting it by ordinance, but it shall give the
steering committee and the Planning Commission an opportunity to review and com-
ment upon substantive amendments and modifications before final adoption of the
plan.
In the process of creating the Community Development Plan, it may be determined
that the General Plan should be amended. The Planning Director or County Council
may initiate amendments to the General Plan, and the steering committee may recom-
mend amendments, that would be enacted at the same time as the Community Devel-
opment Plan, or as a follow-up to the Community Development Plan. If,there is a
direct conflict between the Community Development Plan and the General Plan, the
General Plan shall be controlling.
The Community Development Plans shall focus on action. The courses of action spec-
ified in each element of the General Plan need greater detail and need to be coordinat-
ed by district. The Community Development Plans shall identify appropriate
governmental actions that include:
• Regulatory actions. Regulations rely on government's police power to control what
people can and cannot do in the interest of the public's health, safety, or welfare.
The County administers and enforces various regulations to control land use. These
regulations include the zoning code, subdivision code, flood control code, grading
code, sign code, and building code. The County also administers requirements im-
posed by the Federal and State governments, such as the Coastal Zone Management
Act and the State Land Use Law. The Community Development Plans shall recom-
mend amendments as appropriate to the codes,maps,or administration and enforce-
ment.
• Incentive measures. Where regulatory controls are the government's "sticks", incen-
tives are the "carrots"to encourage certain actions. Too often, regulation is the so-
lution. Regulation can be restrictive,reactive, and divisive. Incentive measures, on
the other hand, can invite creative "win-win" solutions. Examples of incentive
measures include property tax exemptions such as for agricultural or native forest
dedications, expedited permit processing, density bonuses, and discounted facility
fees. Community Development Plans shall consider appropriate incentive measures
to achieve various objectives, as applicable.
15-2 : Hawaii County General Plan
ATTACHMENT 1
§15.2: Capital Improvements Program (CIP)
SMr: C
• Acquisition actions. Where significant resources are located on private property, it K '`;
may be more appropriate for government to purchase the development rights or fee
simple title rather than to severely regulate the owner's use of the property. Obvi-
ously, purchasing in reaction to development proposals is expensive. The Commu- :.I ;,!r:
nity Development Plans shall identify acquisition priorities, as appropriate,and seek '
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means to leverage financing by working creatively with the landowner, other levels err: 4
of goverment, land trust • •
g s, and/or nonprofit groups. -, �
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• Capital budgeting actions. The County annually prepares a capital improvements `'
budget where public facility ro ects (new construction or major repairs) are identi-
fied. The budget is accompanied by a six-year capitalFl",:„,,,MT:4;improvements program CIP The CIP rocess is ex lained in more detail below. The Communit Devel- Y.r+. 4
opment Plans shall identify and prioritize public facility projects important to the " `'
community. The CIP shall take into consideration the recommendations in the { _ 7 �w
CommunityDevelopment Plans, recognizing that the CIP must reconcile competing 4'' -- .r�r
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interests for a limited amount of funds. {` xr;�s
• Programs. Certain community needs do not necessarily require land or a new facil- ,..1-it a�
ity, but rather a focused commitment of time and money towards achieving specific
objectives. These operational projects are referred to as programs. Examples in- Uzi • ;;.
dude an after-school youth program, neighborhood watch program, or mediatior'07,","-;.):
training program. Too often,resources are diverted to studies that could be more ef-
fectively used for pilot programs that actually try to achieve results and provide les-
sons through action. Community Development Plans shall identify desired +^rY.a•��c+'^1a1
programs
am;
and the community's role in planning and implementing the programs. ,. ��. �t .,
YYg: wk,,a::.,
• Development/Redevelopment. In very special situations, it may be appropriate for t: .
government to take the lead and act as developer either singly or as a public/private '4 -
partnership. These situations arise when the private market fails to address certain 1( ='
needs, such as very low income housing, or when the situation is quite large-scale, t5-;. ,.,
complex, and especially requires government's power of eminent domain to assem- ``'``" ,'
ble land for redevelopment. Community Development Plans shall identify desired %.h4:
gkigikeloge
projects for public development or redevelopment, and shall coordinate input from �' '� ,;tr3,
appropriate agencies such as the Office of Housing and Community Development to ' ;;`1z .
or the U.S. Department of Housing and Urban Development.
15.2 CAPITAL IMPROVEMENTS PROGRAM (CIP) - `� '«��,s,
Capital improvement projects have the potential to influence where growth occurs, to 4400g
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more equitably distribute County services, and to promote important objectives such , , Y,
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as affordable housing. The County Charter sets forth the procedure for the submittal ,; i, y
and adoption of the CIP: Ki ,
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The various departments and agencies submit project requests and cost estimates to �t�,sia� r�
the Mayor. The Planning Director reviews the lists and recommends priorities. F lr
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Hawaii County General Plan 154 iENsitet.iq
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ATTACHMENT 14 . .
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2015 NMI ? Pm 07
KA`U COMMUNITY DEVELOPMENT PAN,(CD - HENT
��G�JN ( UF IHAWAII
STEERING COMMITTEE
MEETING MINUTES
Thursday,September 24,2015
Pahala Community Center
CALL TO ORDER
Leina'ala Enos opened the meeting with an oli at 5:30 p.m.and welcomed the Steering
Committee members and members of the public.
ROLL CALL
Members Present: Patti Barry,John Cross,Ron Ebert,Leina'ala Enos,Michelle
Galimba,Marino Ramones,Simon Torres
Absent/Excused: Bob DaMate,Eldridge Naboa,Loren Heck
Others present: Ron Whitmore,Hawai`i County Planner and Ka`u CDP Project
Manager;Bob Agres,Islander Institute;Bethany Morrison,Hawaii County Planner;
Keiko Mercado,Community Planning Assistant;Isobel Donovan,Recorder
MEETING OVERVIEW
Leina'ala Enos provided an overview of the meeting.She first explained the purpose and
scope of the CDP,which is a tool and a guide to be used by the community and County,
working together,to plan for the future of Ka`u. The CDP is a forum for community
input on
• Specific regional actions that implement the goals of the General Plan
• Directing land use,including zoning, growth,development,and design
• Protecting natural resources and cultural resources
• Strengthening infrastructure and services,including public facilities
transportation,drainage and recreation
• Building a resilient local economy.
She then explained the role of the Steering Committee,whose members are broadly
representative of Ka`u and of each community,such as Ocean View(Patti Barry,Bob
DaMate,Loren Heck),Wai`ohinu(Leina'ala Enos),Na`alehu(Eldridge Naboa),
Honu'apo/Ka'alaild(Michelle Galimba),Punalu`u(Ron Ebert),and Pahala(Simon
Torres,Marino Ramones).
1
101780
ATTACHMENT 2
Leina'ala stressed that the Steering Committee is an advisory County Committee,
advising the Planning Director to help produce a high quality CDP for the people of
Ka`u. The appropriate roles for the Steering Committee are to share perspectives that
reflect a broad cross-section of the affected communities and provide varying points of
view. Their role is not to represent perspectives or interests,or to advocate for particular
perspectives or interests.
Likewise,Leina'ala reminded the Steering Committee members that they must disclose
any conflict of interest when they have financial,professional or personal interest in any
matter coming before the Steering Committee and withdraw from the discussion and
voting on that matter.
Leina`ala then reviewed the`Aloha Etiquette' adopted by the Steering Committee and
asked that it be observed.
Bob Agres reviewed the CDP planning process,highlighting the adoption of the Vision
and Values Statement,the Community Objectives,and the affirmation of the CDP draft
strategies for community review. There were a variety of ways in which community
input was sought on the Draft CDP,including"speak outs",focused discussions,and
written comments. He pointed out that the comments fell into three groups:
• Comments that are supportive of the draft CDP Strategies
• Comments that can be addressed with further explanation
• Comments that prompt consideration of CDP revisions.
The Planning Department organized all the input received during the community review,
and the Steering Committee had a chance to discuss that input as well as alternative CDP
strategies and associated trade-offs at a series of meetings that focused on specific topics:
• August 11,2015 -Town Infill and Agricultural Subdivision(Pahala)
• August 15,2015—Ocean View Development and Special Permits(Ocean View)
• August 18,2015 -Coastal Development(Na`alehu)
• August 25,2015 -Discovery Harbour Development(Discovery Harbour)
• August 29,2015—Economic Development(Na`alehu)
The outcome of these discussions was the incremental,preliminary affirmation of
revisions to the Draft CDP.
Bob explained that during these deliberations,it became clear that the draft shoreline
setback policy required more discussion. In addition,the Steering Committee hadn't yet
had a chance to discuss structural and"easy fix"revisions or review the Land Use Policy
Map. These will be the subject of tonight's meeting.
In October,the Steering Committee will recommend a final draft of the CDP. The CDP
will go to the Windward Planning Commission for review and recommendations and then
to the County Council for review and decision. The fmal step is the Mayor's signature.
PUBLIC COMMENT ON AGENDA ITEMS
2
ATTACHMENT 2
Barbara Winch spoke about urban sprawl and urged the Steering Committee to be
vigilant in setting aside a special conservation zone called the Ka`u Coastal Protection
Trust,from the southern boundary of Volcano National Park to Miloli`i,that would
extend 1.5 miles from the shoreline and out into the ocean to a distance that would ensure
the protection of endangered marine life and would also ensure the preservation of the
many historical,cultural,and recreational resources that exist on the coast. She advised
that this was the recommendation of a special task force in 2005 and urged the Steering
Committee to take action on this recommendation.
Nancy Bondurant expressed concern about the chemicals that residents use to make their
plants grow,and how these chemicals get into the water and take the oxygen out of it,
again endangering marine life. She urged the Steering Committee to set stricter standards
and to keep the 1.5 mile setback recommended previously by a special task force.
Megan Lamson,marine biologist and president of a small community group Ka `Ghana
0 Honu'apo,which is dedicated to protecting the 225 acres alongside Honu'apo Bay,
provided email testimony regarding proposed Policy 29. She advised that the group's
Board of Directors officially stands in support of Policy 29. However,they are
concerned about one of the proposed revisions to the policy,which would allow owners
the option to choose the method for determining the setback. She feels that if owners
have this choice,they will choose the option that will get their structures closest to the
shoreline. She asked the Steering Committee to reconsider the wording of the revision.
John Replogle supported Megan Lamson's testimony and felt that the proposed '/4 mile
setback treats everyone fairly,not denying anyone their rights on their own land.
Lehua Lopez-Man said she supports the currently proposed version of Policy 29 and the
new County Action regarding shoreline setbacks. As former Executive Director for Ka
`Ghana 0 Honu'apo,she sees no conflicts with any of the future improvements as
proposed in the Honu'apo Park Resources Management Plan or the Wetlands Habitat
Restoration Plan for Honu'apo Estuary. In view of the continuing weather changes,she
feels it would be reasonable to forestall building human structures within '/mile of the
shoreline anywhere in Ka`u.
APPROVAL OF MINUTES
The Steering Committee considered the draft minutes of the August 11 15, 18,25 and 29,
2015 meetings.
It was moved by Patti Barry and seconded by Marino Ramones to approve the minutes of
the August 11,2015 meeting. The motion carried unanimously.
It was moved by Michele Galimba and seconded by Simon Torres to approve the minutes
of the August 15,2015 meeting. The motion carried unanimously.
It was moved by Patti Barry and seconded by Michele Galimba to approve the minutes of
the August 18,2015 meeting. The motion carried unanimously.
3
ATTACHMENT 2
It was moved by Simon Torres and seconded by Patti Barry to approve the minutes of the
August 25,2015 meeting. The motion carried unanimously.
It was moved by Marino Ramones and seconded by Michele Galimba to approve the
minutes of the August 29,2015 meeting. The motion carried unanimously.
BUSINESS
1. Consideration of the Revisions to the Draft Shoreline Setback Policy(Policy 29)
Ron Whitmore provided background information regarding Policy 29. He noted that,
during the August 18,2015 meeting,the Steering Committee was generally in agreement
to:
• Retain a shoreline setback policy,(i.e.,not delete Policy 29 completely)
• Focus the policy on parcels that have development potential but aren't yet
subdivided,possibly by excluding public lands and/or Punalu`u
• Apply the policy only to parcels that abut the shoreline
• If two methods for establishing a setback are included in the policy(e.g. Y4 mile or
science-based):
o Maintain consistent language when describing each method
o Clarify who chooses the method
• When determining a setback,consider community input on the appropriate
setback distance
• Define and clarify key terms,including"practicable,""science-based
assessment,""site specific,"and"structure."
Based on the Steering Committee's feedback the CDP Planning Team reconsidered how
best to achieve the Community Objectives in light of public comment and the current
regulatory system. The following proposed revision to Policy 29 was offered for the
Steering Committee's consideration:
Policy 29: Establish shoreline setbacks on lots that are at least partially within the
Special Management Area(SMA)in the Kali CDP Planning Area at the earliest
stages of the land use planning and development process and as far as possible
from the shoreline either 1)at 1,320 feet(1/4-mile)or 2)using all of the
information necessary to assess the proposed activity's impacts in the Special
Management Area(SMA)and in consideration of the physical limitations of the
property.The applicant proposing the activity may choose the method for
establishing the shoreline setback.For lots created prior to the date of adoption of
the CDP with an average lot depth of two hundred feet or less,the shoreline
setback shall be 40 feet.
Referencing an information packet prepared for the meeting,Ron explained the rationale
for the revisions based on Steering Committee preferences and in the context of existing
regulations,definitions,studies and what is currently allowable under the Hawai
Revised Statutes(section 205A),Planning Conunission Rule 9 regarding review of
development in the Special Management Area,and Planning Department Rule 11,which
establishes the minimum setback at 40 feet.
4
ATTACHMENT 2
Following considerable discussion about the proposed wording for the policy,it was
moved by Leina'ala Enos and seconded by Patti Barry to amend the wording to read:
Policy 29:On lots that are at least partially within the Special Management Area
(SMA)in the Ka`u CDP Planning Area,establish shoreline setbacks at the earliest
stages of the land use planning and development process,as far as possible from
the shoreline,at a minimum 1,320 feet(1/4-mile). For lots created prior to the
date of adoption of the CDP with an average lot depth of two hundred feet or less,,
the shoreline setback shall be 40 feet.
Following extensive deliberation, Steering Committee members voted:Aye:0;Nay:
Simon Torres,Michele Galimba,Marino Ramones,Ron Ebert,Leina`ala Enos,Patti
Barry. The motion did not carry.
It was then moved by Michele Galimba and seconded by Patti Barry to revise the
proposed policy as follows:
Policy 29: On lots that are at least partially within the Special Management Area
(SMA)in the Ka`u CDP Planning Area,establish shoreline setbacks at the
earliest stages of the land use planning and development process at a minimum of
1,320 feet(1/4-mile);however,the applicant may request that the setback be
reduced by providing information to the Department,including information
required for SMA review,which would allow for an assessment of the proposed
activity's impacts and in consideration of the physical limitations of the property.
For lots created prior to the date of adoption of the CDP with an average lot depth
of two hundred feet or less,the shoreline setback line shall be 40 feet.
Following extensive deliberation,Steering Committee members voted:Aye: Simon
Torres,Michele Galimba,Marino Ramones,Patti Bally,Leina'ala Enos;Nay: Ron Ebert.
The motion carried.
It was also moved by Michele Galimba andseconded by Patti Barry to add a new County
Action that was offered for consideration by the CDP Planning Team:
Amend Planning Department Rule 11 to specify that the Planning Department
establish shoreline setbacks in the Kau CDP Planning Area in accordance with
Policy 29.
Steering Committee members voted:Aye: Marino Ramones,Michelle Galimba, S'
Simon
Tones, Patti Barry,Leina'ala Enos;Nay:Ron Ebert. The motion carried.
2. Consideration of Structural and"Easy Fie Revisions to Various Parts of the
Draft CDP: Ron summarized proposed non-substantive structural revisions to the
Draft CDP as well as revisions proposed during community review that appear to be
5
ATTACHMENT 2
straightforward and non-controversial. The proposed CDP revisions are included
below.
Following Ron's explanation of the changes, it was moved by Patti Barry and
seconded by Michele Galimba to accept all of the proposed changes. The motion
carried unanimously.
3. Review of the Draft Land Use Policy Map: Ron summarized findings from a
review of the Land Use Policy Map against preliminary decisions about potential
CDP revisions. The Steering Committee had no questions.
PUBLIC COMMENT ON AGENDA ITEMS
Chris Manfredi referenced email testimony he had submitted about the former Hutchison
Sugar Mill at Honu'apo,requesting that the CDP Land Use Policy Map not remove the
Industrial designation for the site.
Ron referenced the email exchange that followed Mr.Manfredi's request,which Steering
Committee members had received. Based on that exchange,herecommended removing
the Industrial designation as planned.
Steering Committee members asked some related questions about zoning,permitted uses,
and appropriate uses for the site,but no motion was made to revise the Draft CDP.
NEXT STEPS
1.Evaluation of the September 24,2015 Meeting: Steering Committee members
identified the following positive aspects of the meeting:
• Very good comments in discussions
• Great participation
• Planners did a great job in preparing for the meeting
• Worked through some difficult discussion
• Concurrence that it has been a pleasure and an honor to work with the Steering
Committee members to come up with the best solution possible.
They identified no opportunities for improvement.
2. Upcoming Meetings and Topics: Ron reviewed the next meetings and topics:
• Tuesday,October 27,20155:30 pm,NA'Alehu:Final recommendations.
The Steering Committee discussed how they would handle new comments at the October
27 meeting, and agreed that any major issues would be agendized for focused discussion
at a follow-up meeting. It was also agreed that it would be imperative to explain the next
steps in the process,specifically how public hearings and public testimony would occur.
AJOURNMENT
The meeting adjourned at 9:35 pm
6
ATTACHMENT 2
Submitted by:
Isobel Donovan
Recorder
7
ATTACHMENT 2
KA`fU COMMUNITY DEVELOPMENT PLAN (CDP)
STEERING COMMITTEE
MEETING MINUTES
Tuesday, October 27,2015
Na`alehu Community Center
CALL TO ORDER
Leina`ala Enos opened the meeting with an oli at 5:30 p.m. and welcomed the Steering
Committee members and members of the public. {;t_,
ROLL CALL : :t ;h ;
Members Present: Patti Barry,John Cross, Ron Ebert,Leina`ala Enos,Michelle:Galimba,
Loren Heck, Simon Torres
Absent/Excused: Bob DaMate, Eldridge Naboa, Marino
„P.
Others present: Ron Whitmore, Hawai`i'County Planner and Ka`u_;CDP Project Manager; Bob
Agres, Islander Institute;Nalani Partin, CommunrtyPlanning Assistant; Isobel Donovan,
Recorder
MEETING OVERVIEW
Leina`ala Enos provided an overview;of the meeting. She first explained the purpose and scope
of the CDP, which is a'tool Viand a guide to be used by the community and County,working
together, to plan for the future of Ka1u -;The:CDPis a forum for community input on
• Specific regional actions-that implement the goals of the General Plan
•
Directing land`use `including oning, growth,development, and design
• Protecting natural resources and�'cultural resources
• Strengthening infrastructure and services, including public facilities transportation,
drainage:and recreation,'
r-1�a
• Building aresilient local economy.
She then explained the.ri a of the Steering Committee,whose members are broadly
representative of Ka`u and of each community, such as Ocean View(Patti Barry,Bob DaMate,
Loren Heck), Wai`ohinu (Leina'ala Enos),Na`alehu(Eldridge Naboa), Honu'apo/Ka'alaiki
(Michelle Galimba), Punalu`u (Ron Ebert), and Pahala(Simon Torres, Marino Ramones).
Leina`ala stressed that the Steering Committee is an advisory County Committee, advising the
Planning Director to help produce a high quality CDP for the people of Ka`u. The appropriate
roles for the Steering Committee are to share perspectives that reflect a broad cross-section of
the affected communities and provide varying points of view. Their role is not to represent
perspectives or interests,or to advocate for particular perspectives or interests.
1
ATTACHMENT 3
Likewise,Leine ala reminded the Steering Committee members that they must disclose any
conflict of interest when they have financial,professional or personal interest in any matter
coming before the Steering Committee and withdraw from the discussion and voting on that
matter.
Leina`ala then reviewed the `Aloha Etiquette' adopted by the Steering Committee and asked that
it be observed.
Bob Agres then reviewed the CDP planning process,highlighting the Steering Committee's
adoption of the Vision and Values Statement and Community Objectives as' vell as its
affirmation of the CDP draft strategies for community review. He;explained that when the CDP
is adopted and implemented, it will become a County policy document:guide Federal and State
Agencies,and guide community- based actions to achieve the communiobjectives to
• Direct future conservation and settlement patterns;'
• Protect and enhance natural and cultural resources .;.
• Strengthen infrastructure, facilities and services''
• Build a resilient, sustainable local economy.
Bob then reviewed the variety of ways in which community iriput:was sought on the Draft CDP,
including"speak outs,"focused discussions,aid written comments:
The Planning Department organized all the input received during the community review,and the
Steering Committee had a chance to discuss that input as well as alternative CDP strategies and
stF",.', 3'
associated trade-offs at a series:of`meetings that focused on specific topics:
C'�
• August 11,2015 ,Town Infill.and Agricultural Subdivision(Pahala)
• August 15,2015—`;Ocean V'ew Development and Special Permits(Ocean View)
• August 18,2015 - CoastalDevelopment(Na`alehu)
• August 25,-2015;.°- Discovery Harbour-Development(Discovery Harbour)
• August'29,201 5 Economic Development(Na`alehu)
• September, 24,2015' °°Shoreline-Setbacks, Land Use Policy map, "quick fixes" (Pahala).
Ron Whitmore provided a summary of the revisions to the Draft CDP that resulted from these
meetings:
ti�.e
• Structural clanges;to make it easier to understand and navigate the CDP
• Other non-substantive changes
• Substantive changes including changes to the Policy map for Ocean View and Discovery
Harbour,the shoreline setback policy, and strategies related to agricultural subdivision,
special permits, and infrastructure (facilities, roads,emergency services, schools, and
parks).
The details of these revisions were also provided in writing to the Committee members in the
document"Proposed Revisions to the March 2015 Draft Ka`u Community Development Plan
(CDP) As Preliminarily Agreed on by the Steering Committee during its August 11, 15, &25
and September 24, 2015 Meetings" (attached).
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ATTACHMENT 3
Bob explained that the objective of tonight's meeting was to recommend a final draft of the
CDP. Bob then reminded the Steering Committee that, for tonight's meeting, it previously
agreed to:
• OnIy consider input and information that is new and verifiable
• Take action on what they can
• Leave for a future meeting any new, substantive revisions, or parts of the CDP that lack 5
votes.
After the Steering Committee recommends approval,the CDP will go to,:the Windward Planning
Commission for review and recommendations and then to the CountrCouricil for review and
decision. The final step is the Mayor's signature. 4
Bob then spoke about the Action Committee,which will succeed the Steering Committee. It will
be a committee comprised of nine members,whose primary residence is in"fine.Ica`u planning
area,and will be appointed by the Mayor and confirmed by County Council. 'Existing Steering
committee members may serve. Bob explained that recruitment is tentatively scheduled to begin
when the CDP is before the Windward Planning
PUBLIC COMMENT ON AGENDA ITEMS
Sharon Shining expressed concern about the of jobs for the community since the loss of the
sugar industry and suggested that a group coihe together„and list the current hurdles to a
sustainable job market. She listed a viable golf course tand-tourist accommodation in Discovery
Harbour as examples of potential employmenopportunities ��z'
t
APPROVAL OF MINUTES
The Steering Committee considered"the draft minutes of the September 24, 2015 meeting.
It was moved by Michele Galimba',ar d seconded by Patti Barry to approve the minutes of the
September 24 meeting,-,The Motion carried unanimously.
BUSINESS �; ,,, .;,
1. Recommendation for Approval'of a Revised Ka`u CDP: It was moved by Leina'ala Enos
to recommend>approval of the March 2015 Draft Ka`u CDP,amended to reflect the revisions
summarized in the;:documentProposed Revisions to the March 2015 Draft Ka`u Community
Development Plan(CDP)As:Preliminarily Agreed on by the Steering Committee during its
August 1 l, 15, &25`a4,4'8eptember 24,2015 Meetings” (attached). The motion was seconded
by Michelle Galimba.PAfter some brief discussion about the merits of the CDP and the benefits
of the planned revisions, Steering Committee members voted: Aye: Patti Barry, Michelle
Galimba, Loren Heck, Simon Torres, Leina`ala Enos;Abstain: Ron Ebert. The motion carried.
PUBLIC COMMENT ON AGENDA ITEMS.
There was no public comment at this time.
3
ATTACHMENT 3
NEXT STEPS
1. Meeting Evaluation: Steering Committee members identified the following positive aspects
of the meeting:
• Good public participation
• Appreciate Steering committee work
• Being kind and polite throughout the process
• Steering Committee members know each other better now, and can agree to disagree
• Like the tools in the CDP, resources from the County for Action Committee
• Thankful to Ron and County for their time and work
• Good,positive preparation from County
• High quality,thoughtful action from Steering Committee;;>y
• Thankful to Nalani for logistics and support
2. Upcoming meetings: No further meetings were scheduled time.:1On Whitmore
advised that there may be one or two meetings, as ne,eaed,before the recommended CDP is
signed by the Mayor. "
ADJOURNMENT
The meeting adjourned at 6:35 p.m.
Submitted by:
Isobel Donovan, 'y '' E.
Recorder
•
F ,
.sr
4
ATTACHMENT 3
i
0 ,
,n •-.:.---,,,..
William P.Keno '
'' . '�;: Duane Kandla
Mayer . Director
x * i Bobby Command
'�`, ° .<`f Depue,DbHuor
Wet thrall Oflioo EastHawai'i OMee
74-5044 Ane keohokelole Hwya 101 Peuahl Skeet,Suite 3
Keilue-Kane,liewai'i 96740 County of Hawai 1 Hilo.Hawoi'i 96720
Phone(808)323.4770 Phone(808)961-8288
Vex(808)327-3563 PLANNING DEPARTMENT FOX(108)9614742
February 24,2016
Mr.Hiram Rivera,Chairperson
Kona Community Development Plan Action Committee
Planning Department,West Hawai'i Office
74-5044 Ane Keohokalole Hwy
Kailua-Kona,HI 96740
SUBJECT: RE VEST FOR LEGAL OPINION
)..\ s
Dear Mr. 'vet's:
This is in response to a letter dated February 8,2016 from past KCDP AC Chairperson Greg Agin
requesting clarification on whether the ordinance adopting the KCDP also amended all of the other
code provisions that the KCDP stated it amended. Further,the letter also asks if all sections of the
existing County Codes,that are not consistent with the KCDP,were also amended.
Both Assistant Corporation Counsel William V.Brilhante Jr.and I reviewed the subject letter and
our joint response follows herein.
The short answer is no. The only way the Hawai'i County Code("the Code")can be amended is
through submittal and approval of a detailed amendment specific to a particular code section
clearly articulating the language to be deleted and/or added. Until such time as specific
amendments to the Code Sections Chapter 23 (Subdivisions) and 25 (Zoning)are approved by
Council action,the Code requirements remain unchanged and controlling.
Discussion:
The authority vested in the creation of the various Community Development Plans("CDPs")were
codified in the Hawaii CountyGeneral Plan "GP" . The GP specifically states"the Community
� )
Development Plans shall recommend amendments as appropriate to the codes, maps or
administration and enforcement(emphasis added). See GP 15.1, pg. 15-2 (February 2005 as
amended).
www.eoltplenningdegt.eunl tfaral Coon*lrevn Equal OpporlunlryProviderand Employer phptam'imu~etiilcountr.g
ATTACHMENT 4" •
. •
w y
Mr.Hiram Rivera,Chaijperson
Kona Community Development Plan Action Committee
February 24,2016 •
Page 2
The very intent of the CDP was to be another tool to assist the Planning Department through
submittals of"recommendations"that should be used to guide decision making in the future. There
was no intent in the GP for the CDP's to override any statutory requirements currently held.
The controlling documents which adopted the various CDPs are Ordinance No. 08 116, an
ordinance adopting the County of Hawaii Puna CDP; Ordinance No. 08-131; an ordinance
adopting the County of Hawaii Kona CDP; Ordinance No. 08 151, an ordinance adopting the
County of Hawai'i North Kohala CDP; and Ordinance No. 08 159, an ordinance adopting the
County of Hawaii South Kohala CDP. Each ordinance had a stated purpose which was to adopt
the CDP attached to the respective ordinance as Appendix A,pursuant to the County of Hawai'i
General Plan,Section 15.1(February 2005 as amended).
The CD?S were subsequently and collectively adopted under Chapter 16,PLANNING,Article 2.
Community Development Plans,Section 16-2,Adoption of Community Development Plans of the
Hawai'i County Code. Section 16-2 states in part"The community development plans listed below
are adopted and incorporated by reference."
KONA. The document identified as"Mapping the Future:Kona Community Development
Plan Volume I"is adopted by reference subject to later amendments by ordinance, and may be
cited as the"Kona CDP." The planning area for the Kona CDP encompasses the judicial districts
of North and South Kona.(emphasis added)
NORTH KOHALA. The document identified as`North Kohala Community Development
Plan"is adopted by reference subject tg later azendmeuts}ny 91siiirnce,and may be cited as the
"North Kohala CDP." The planning area for the North Kohala CDP encompasses the judicial
district ofNorth Kobel&(emphasis added)
PUNA. The document identified as the"Puna Community Development Plan"is adopted
by reference subject to later amendments by ordinance, and may be cited as the "Puna
CDP."(emphasis added) The planning area for the Puna CDP encompasses the judicial district of
Puna and the Volcano Census Designated Place that includes the Volcano Golf Course subdivision
in the district of Kea.
SOUTH KOHALA. The document identified as the "South Kohala Community
Development Plan"is adopted by reference subject to later amendments by ordinance,and may be
cited as the"South Kohala CDP."(emphasis added) The planning area for the South Kohala CDP
encompasses the judicial district of South Kabala.
As you can see,the purposes for each of these ordinances and incorporation in the Hawaii County
Code were specific to the adoption of the particular CDP. None of them made any reference to
amending any other portion of the Code. Of all the CDP's individually adopted by ordinance,only
the Puna CDP was further amended by ordinances for clarification,designation or providing for
ATTACHMENT 4
t*,
Mr.Hiram Rivera,Chairperson
Kona Coimmunity Development Plan Act ion;Committee
Februaiy 24,2016 •
Page 3
non-substantive formatting and clerical revisions between November,2010 and December,2011
These amendments were proposed and adopted following the adoption of the initial Puna CDP
document In 2008, based on suggestions by the PCDP AC to the Planning Department, and
initiated by the Planning Director.
Section 3-10(b)Hawai'i County Charter("the Charter")specifically states,"Every ordinanc of
the council shall embrace but one subject, which shall be expressed in its title, If an ordinance
elnlgraces a subject not expressed in its title,only that subject shall be void,(emphasis added)See
Hawai'i County Charter Section 3-10(b).
Accordingly,pursuant to the language of the Charter,other than adoption of the above-referenced
CDPs, any stated, expressed or implied amendments to any other sections of the Code,shall be
void.
Finally, as referenced in ordinances above, each CDP was adopted pursuant to a controlling
document,which by Charter is the GP. The GP sets forth specific language clearly-delineating
which documents shall be controlling,wherein it states"If there is a direct conflict between the
Community Development Plan and the General Plan, the General Plan shall be controlling.
(emphasis added) See Hawaii County General PIan Section 15.1(February 2005 as amended)
Accordingly,not only will specific requirements of the CDP that are in conflict withthe Code have
to be amended thru Council action,but any conflicts between the CDPs and the GP would have to
be specifically amended as well.Until such time as that takes place,each conflictthat arises within
the CDPs are deemed void and unenforceable pursuant to the Charter and GP.
What the above determination means for the CDP AC's,is there is now a more interpretive role
for the AC's with respect to providing guidance to the department in the implementation of the
various components of the Kona CDP which were heretofore considered to be enacted and
therefore legally binding through its adoption. Two important elements of the Kona CDP,
Transportation and Land Use, although still guided by the documents Vision Statement and
Guiding Principles,can now be implemented in a more flexible manner which is more reflective
of how community dynamics ebb and flow over time. Nevertheless,I fully expect that the AC's
will give due consideration to the intent ofthe participants and drafters of the KCDP in the exercise
of this expanded interpretive role.
Relatedly,then,various action items which are pending concurrence by this department relating
to the above, are hereby acknowledged and will be implemented. More specifically, the
recommendation by the AC as of your meeting of August 27,2014 relating to the use of adjacent
or nearby lands and/or improvements to make up a difference in a proposed master plan with a
total land area of less than 50 acres, and a recommendation on the application of CDP
transportation policy 6.1 to require application of the official concurrency map in a manner that
ATTACHMENT 4 .
:4
4.A t
•
Mr.Hiram Rivera,Chairperson
Kona Community Development Plan Action.Gomnnittee
February:4,2016 •
Page 4
area mitigation transportation improvements sufficient to offset traffic demand or impact of a
proposed project based on approved level of service(LOS)analysis will be applicable.
• Staff will have to re-orient themselves a bit in response to this adjustment in how the Kona CDP
is to be viewed but I expect that this re-adjustment will provide a great opportunity for a closer
and more productive working relationship with the AC over time.It is thus critically important for
the AC members to clearly understand that amendments to existing ordinances are a time
consuming process and wholesale revisions will generally not be favorably considered. The AC's
with the assistance of staff will need to prioritize their thinking and try to focus on what critical
elements of the CDP really and seriously need amending or revision.
I will be happy to respond to any further questions you or the other members of the KCDP AC
may have on this matter.
Sincerely,
6
DUANEKANUHA
Planning Director
DK:rl
c: Assistant Corporation Counsel William V.Brilhante,Jr.Esq.
Deputy Planning Director Bobby Command
All Division Managers
Kona CDP Action Committee Members
Managing Director
•
ATTACHMENT 4
WINDWARD PLANNING COMMISSION
COUNTY OF HAWAI`I
HEARING TRANSCRIPT
MAY 10, 2017
A special advertised hearing regarding the Ka`u Community Development Plan was called to
order at 5:32 p.m. in the Na`alehu Community Center, 95-5635 Mamalahoa Highway,Na`alehu,
Hawaii with Chairman Gregory Henkel presiding.
COMMISSIONERS PRESENT: Joseph Clarkson, Gregory Henkel,Donald Ikeda,and Myles
Miyasato.
ABSENT&EXCUSED: Donn Dela Cruz.
ALSO PRESENT: Michael Yee(Planning Director),Malia Ho Hall (Deputy Corporation
Counsel for the Windward Planning Commission),April Surprenant(Planning Program
Manager),Ron Whitmore(Project Manager for the Kara CDP), Christian Kay(Planner), Leana
Gloor(Planner), Grace Armstrong(Planner), and Sarah Hata-Finley(Commission Secretary).
And 39 members from the public in attendance.
KAT COMMUNITY DEVELOPMENT PLAN
On October 27,2015,the K.a`u Community Development Plan(CDP)Steering Committee
recommended approval of the Ka`u CDP. After reviewing agency comment, the Planning
Director is recommending non-substantive amendments to the CDP. Pursuant to Section 2-28.1
of the Hawaii County Code, within sixty days after receipt of the Planning Director's
recommendation on a draft community development plan or any amendment thereof, the
Windward Planning Commission shall transmit the draft community development plan or any
amendment with its recommendation through the Mayor to the County Council. Likewise,
pursuant to Section 15.1 of the General Plan, the County Council may modify or amend the
community development plan before enacting it by ordinance, but it shall give the Steering
Committee and the Windward Planning Commission an opportunity to review and comment
upon substantive amendments and modifications before final adoption of the plan.
The purpose of this meeting and public hearing is to afford all interested persons a reasonable
opportunity to comment on the Keil' CDP and for the Commission to review the CDP and
consider its recommendation to the County Council.
HENKEL: There's only one agenda item tonight, and that's the Kau Community Development
Plan. On October 27, 2015, the Ka'u Community Development Plan Steering Committee
recommendedapproval of the Kart* CDP. After reviewing agency comment, the Planning
Director is recommending non-substantive amendments to the CDP. Pursuant to Section 2-28-1,
.1 of the Hawaii County Code,within 60 days after receipt of the Planning Director's
recommendation on a draft community development plan or any amendment thereof, the
EXHIBIT A
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ATTACHMENT 5
6 '
•
Windward Planning Commission shall transmit the draft community development plan, or any
amendment,with its recommendation through the Mayor to the County Council. Likewise,
pursuant to Section 15.1 of the General Plan,the County Council may modify or amend the
community development plan before enacting it by ordinance,but it shall give the Steering
Committee and the Windward Planning Commission an opportunity to review and comment
upon substantive amendments or modifications before the final adoption of the plan.
The purpose of this meeting and public hearing is to afford all interested persons a reasonable
opportunity to comment on the Katu CDP and for the Commission to review the CDP and
consider its recommendation to the County Council.
So,first,we're ready to present. Ron,are you? Ron Whitmore for the Planning Commission
will do his presentation.
WHITMORE: Thank you,Chairman Henkel, and thank you members of the Planning
Commission for making the trip out to Ka%this evening to hear from the people of KEIT'and
their perspectives on this community development plan. Thank you, Director Yee and County
Planning staff for arranging the meeting and staffing it, and having me as guest. I'm actually no
longer with the Planning Department. I'm Deputy Director of the Department of Research and
Development,but because I was Project Manager for the Kau Community Development Plan, it
seemed fitting for me to see this through the adoption process. So, I'm here because I'm familiar
with the plan and can probably answer questions about it fairly well.
I want to also thank members of the Steering Committee who are here. This to make sure
we're covered with Sunshine Law, tonight's meeting is agendized also as a Steering Committee
meeting so that we can have the Steering Committee members here and who are free then to talk
and share their perspectives. With us here tonight are John Cross, Loren Heck,Michelle
Galimba, and Ron Ebert. Thank you very much for coming out. They aren't part of the
presentation tonight,but they're free to provide testimony is my understanding and also to
respond to any questions Commissioners may have for them.
Okay,I also wanted to thank all the members of the community who are out here tonight to share
their perspectives,hear the Commissioners' comments. It's part of what's made this planning
process so successful is the active involvement of community members and the Steering
Committee's efforts at listening very carefully what people have to say,working it into the plan
to produce a plan that is the best representation of how to achieve the community's goals that we
could come up with.
Oh, also with us here tonight is Council Member Maile Davis [sic]. Thank you for coming out.
Appreciate that, It's nice that she's here because the next stop for the plan after the Planning
Commission is the County Council.
So,what I'm going to do tonight is first provide a little context to make sure we're on the same
page in terms of where, what community development plans are all about,where they come
from. Then, I'm going give you a bit of an overview of the plan, speak to next steps to some
EXHIBIT A
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ATTACHMENT 5
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}
can't do anything about,the Feds can't do anything about that really require local leadership and
initiative.
And, so the CDP is clear about those four distinct types of strategies, and it's really helpful
because,in part, once it's adopted,implementation then is very clear. Planning Department
knows what it needs to do to guide its land use decision making. CII'priorities are clear. We
can clearly communicate to DLNR. You know,DOA,what we'd like them to do to support
community, and then the community has a roadmap itself for moving forward on achieving the
community's objectives.
This really doesn't do justice to the CDP,but this is the CDP in a nutshell. So,it becomes a
County policy document, guides Federal and State agencies, and guides community-based action
to do four fundamental things. And, those numbers are simply correlated with the sections in the
CDP.
So, Section 3 is the land use section where we—where the community tries to be clear about
what the preferred settlement patterns are and how it,and what tools it are appropriate to
use to achieve those settlement patterns. Section 4, then,is the environmental piece,and there's
subsections for all the different types of natural and cultural resources—coastline,agriculture,
mauka forests,historic resources, etc. Fifth is community infrastructure—roads,water,parks,
schools, etc.
And,then, finally economic development. And that was another bit of a difference in Ka`u is
because, (a)because the economy really was the highest priority in the community development
planning process and (b) even though we knew it was largely outside County jurisdiction,we
thought it would be an injustice to not give the economic section as much attention as we gave
everything else. And, so, you'll see that chapter or Section 6 of the CDP is just as robust and
detailed as the,the other sections of the plan.
Okay, so that work was done, and a draft CDP was developed. And as I mentioned earlier, it
then went to the Steering Committee, and they went through an extension, exhaustive review
themselves,then they made a lot of refinements,and then they said,okay,it's ready for
community review. And,we didn't just hold a hearing like this, explain,do a 45-minute
presentation and ask for comment. We bent over backwards to make it easy for people to
understand what's in the plan and provide meaningful feedback. We had, we obviously,the plan
was available in hard copy in various community centers and libraries. You could rent a copy.
You could buy a copy. You could review it at the Planning Department. We would deliver it to
your house if you wanted one. So,the CDP was available for review.
We also had what we called,"Speak-Outs"which is where in a room like this,you put up posters
with stations, organized roughly by the way the CDP is organized. And,people could see on a
poster fundamentally what the CDP is trying to achieve and how. And,then people could put
post-it notes on it,provide,Could just talk story, and there were recorders there who would
transcribe everything people were saying so we,so we were able to capture thousands of
comments that way through people just talking story, asking questions,sharing their perspective
on what they saw and heard.
{ EDIT A
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• ATTACHMENT 5
•
All that being said,I need to emphasize that nobody in Ka`u is really happy about a quarter mile.
There's a coastal commission that was State mandated some years ago where their
recommendation was 1.5. And, you don't know how many people we heard from that said, "Go
deeper. Go deeper. Go deeper." Right? You know,but we wanted to have a distance that had
some,some grounding and justification,right?
So,what--so important to also understand is that the policy also makes it very possible for the
applicant,through the normal process,it's `cause they're gonna have to submit a Special
Management Area application anyway. In that application,they can provide whatever
justification they think is reasonable to make a case for a closer setback. Because at the end of
the day,it's the Director's authority to establish the setback,right?
And, also important to understand,this is a structural setback. It is not, it is not speaking to
permitted uses at all. It's simply saying where they should be relative to the shoreline,right?
And, all these parcels are Conservation,near the shoreline, and in most cases,Agriculture
beyond that. And so when you think about the range of permitted uses on Ag land, you're
talking about farm dwellings,barns,what not,right? None of which you really need anywhere
near the shoreline. So,this does not affect permitted uses on the shoreline.
I just thought I'd throw this out there. This is a snapshot of one of the maps we used to help us
identify a reasonable distance for the shoreline,right? So, you can't see it very well here, but the
orange line is a quarter mile. This is Ka`alu`alu Bay, and so the quarter mile here, you can see
there's a whole lot of resources. These are identifying anchialine ponds, Hawksbill nesting sites,
beauty sites, etc. You know, the other hatchings are hazards and what not, so—which, by the
way, the Special Management Area review process also needs to consider when considering
appropriate placing of structures.
Okay! I think I am just about to the end. I think we're now turning to the opportunity for
questions,oh no,testimony, and then you guys.
HENKEL: First, Ron, are there anyquestions from staff. I me from the Commission to staff?
�
Yes, Mr. Clarkson.
CLARKSON: Yes. I'm a--I'm still confused about the issue of conflict with the General Plan.
How many of the previous CDP's have been—where you said adopted by the Council as
amendments to the plan.
WHITMORE: In reference to the General Plan?
CLARKSON: Yes.
WHITMORE: They're all adopted individually as ordinances and if you read Chapter 16 at the
top of it in the County Code,there's basically placeholders that basically says this is
administratively where the community plan,plans, so that's how it's adopted. By ordinance and
incorporated into the zoning or the,not the Zoning Code, the County Code,right? Malia, if I'm
EXHIBIT A
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ATTACHMENT 5
•
FREITAS: Yes,I do.
HENKEL: All right. Please speak into the microphone and proceed.
FREITAS: Okay. God,I'm nervous. I don't do this stuff. I grew up here in Ka`u in South
Point,and growing up,we didn't have a lot of these things we have today. You know,South
Point Road,Kamaoa Road was red cinder. You know,hardly had houses. Ocean View lucky if
had two houses. Two lights from South Point you could see, you know? My parents raised us to
live with what we had. We lived off the land. We hunt pig. We eat fish. You know,the plants
that we have here is medicine for us, you know? I grew up here, and I used to think,"Oh, no
more nothing." You know,and then I moved away and then I come back and I learned that we
live in the best place in Hawaii, you know what I mean? You guys put one resort there,it'd be
killing our natural resources, you know? It's like already with what Discovery Harbour has over
there. Our local people,you cannot do this. You cannot do that. You cannot do this. You
know? And, even the shorelines. It's like one time we go to the beach and these people make
like we going kill the animals,but we swim with these animals for years. You know what I
mean? We protect the animals. We protect the land. You know?
We need more schools and we need a lot of things,but we don't need no condominiums. You
know what I mean? Our water today is getting damaged. You know,you get people that coming
over here,they take the water, and they selling the water, and we buying our own water,you
know?
Ocean View get plenty people that got nowhere to go,you know. It doesn't need—we need
schools. We need things. But,we don't need no resort. You know,people,we travel far, but we
do what we do because we love our`aina. It's been this way for years,you know. All I can say
is that we live off this land. You know the love we have for this land and the people is how we
go around,we take care and we like it this way. You know,kids can still be kids. You can run
around, you know. Your kid can run up the street and the other aunty or the uncle going take
care, "eh!" You know? You cannot do that any kine place. And, we like keep our traditions,
you know.
But, I just ask that you guys humbly consider what I had to say, you know. And,that's all.
Thank you.
HENKEL: Thank you, Starlette. You may be seated. Ron, would you like to respond to any of
the testimony?
WHITMORE: Sure. Just very briefly. So,two main points,I guess. And,I apologize. I know
the land use language and designations are confusing. But,just again,one more time to try to
explain the Discovery Harbour situation. The,those two parcels,their current zoning is Open.
They are not zoned Village Commercial. And,the CDP, anyway, doesn't change the zoning.
The problem is not the CDP or any County or State land use entitlements. Tthe challenge is the
CC&R's,okay? The current landowner tomorrow could submit an application to develop a
resort. There's no land use designation in his way, okay? And,the CDP isn't going to impact
EXHIBIT A
ATTACHMEA6r 5
that one way or another. I apologize for the confusion. The Village Commercial term is in your
CC&R's. It's not anywhere in the State Land Use Law, Zoning Code, or General Plan. So,just
to clarify that.
ASMAN(from audience): But, it isn't in our CC&R's. [inaudible]
HENKEL: Excuse me,but I'm sorry,but we cannot allow any testimony outside of the public
testimony portion. He's responding. All of you,this is going to—you know, we're not going to
do an action today. We're going to in our June l meeting, and you'll have another opportunity
to testify there. But,Ron, I'm sorry. Go ahead.
WHITMORE: No, I just,I apologize. I know this stuff gets confusing. So, and then the only
second point is, you know,Kathy,I really appreciate your comments. I think you're right on the,
you know,the General Plan isn't as clear as it should be about the meaning of and the authority
of CDP's vis-à-vis the General Plan,and we're,the Planning Department I believe is trying to, it
has plans to clarify that during this General Plan review. And,so, you know, the Steering
Committee and community did the best it could to find language it though was consistent with
what authority the General Plan gave it and tried to be, used all the existing tools available. So
yes,it is very specific in some cases about the—what it really liked the Planning Director to do
in certain cases where the Director has authority to do something,but we, I don't think we
crossed the line and said you trump the authority of the Director or the authority of the Planning
Commission or the authority of the Council,right? So, it's,it's really a balancing act. Trying to
be super clear, trying to make good use of the tools that are in the toolbox without overstepping,
right? And, it,but fundamentally,the language in the GP isn't clear enough in terms of
distinguishing the authority, and so,but you're right. At the end of the day, the General Plan is
controlling and so that's always going to be the last call,right? So—.
HENKEL: All right. Could we have a motion to close public testimony?
IKEDA: Motion to close public testimony.
MIYASATO: Second.
HENKEL: It's been moved by Commissioner Ikeda. Seconded by Commissioner Miyasato. All
in favor,say"aye."
COMMISSIONERS: Aye.
HENKEL: Opposed? The public testimony portion is closed. Will there be a motion for action?
We're limited to specifically what action we can take and basically that's to--I think Christian
was going to clarify this, right?
KAY: Yes,thank you,Mr. Chair. It's our understanding that because we're going to be
continuing this to June 1 ,there's no action to take tonight.
HENKEL: Would there not be a motion to continue?
EXHIBIT A
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ATTACHMENT 5
KAY: Yes, you can take a motion to continue. 'That's correct.
HENKEL: I would look for a motion like that.
MIYASATO: Chair Henkel,before I make a motion,you know, I'd just like to thank everyone
for coming out and expressing your concerns. And, you know,my uncle used to have the ranch
right down this road,right next door to the Galimba's one. Our ranch,we ranched this land for
many years, 12,000 acres all the way down to the ocean. The ocean down here, the,beach,the
shoreline is amazing,yeah? We'd stay at that house,that green house right across Hana Hou
Restaurant. I'd hunt up in these mountains with the Cabreros family. I learned how to rodeo
right here in this arena with Hano Grace, and you know we'd rush to do our cattle work,and
jump on the four wheelers and,head down to the shoreline. Go fishing,check out the beach. So,
I share all your passion and concern for this area. And,just thank you for coming out and
sharingyour testimony and concern.
With that, Chair,I'd like to make a motion for a continuance.
IKEDA: Second.
HENKEL: It's been moved and seconded to continue to the June Pt meeting. Discussion? I
would like to concur with Commissioner Miyasato that we really do value all of your input, and
we appreciate you coming out, and we realize, too, the distance involved. You know,Hilo is the,
the seat of our government. I live in lower Puna, and I thought that we were kind of
geologically, geographically separated by my 30 miles,but,you know,driving out here today, I
realized that I could walk to, walk to Hilo from there. And—and, we really do appreciate it.
And, I appreciate the work that the Steering Committee did,too. So, any other discussion on the
motion, Commission? Then,with that,all in favor for a continuance, say"aye."
COMMISSIONERS: Aye.
HENKEL: Opposed? Then,the,this hearing will be continued to June ls`, and I'm looking
forward to seeing you some of you there if you can make it. Oh, is there a motion to adjourn?
MIYASATO: Motion to adjourn.
HENKEL: Sorry,we got one more motion. We didn't adjourn. I'm sorry. My bad.
IKEDA: Second.
HENKEL: It's been moved and seconded to adjourn the meeting. All in favor, say,"aye."
COMMISSIONERS: Aye.
HENKEL: Opposed? All right. Meeting adjourned. Thank you,staff.
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ATTACHMENT 5
The discussion ended at 7:21 p.m.
Respectfully submitted,
fiAll/Z6e/4'69144
Sarah Y. Hata-Finley, Secretary
Windward Planning Commission
•
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EXHIBIT A
29
ATTACHMENT 5
Y• r
WINDWARD PLANNING COMMISSION
COUNTY OF HAWAI`I
HEARING TRANSCRIPT
JUNE 1,2017
A regularly advertised hearing regarding the Kin Community Development Plan was called to
order at 9:39 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street,
Hilo,Hawai`i with Chairman Gregory Henkel presiding.
•
COMMISSIONERS PRESENT: Joseph Clarkson,Gregory Henkel,Donald Ikeda, and Myles
Miyasato. . _• 1• "
ABSENT&EXCUSED: Donn Dela Cruz,Thomas Raffipiy.
ALSO PRESENT: Michael Yee(Planning A,irector),Darya Arai(Deputy. Planning Director,
9:16 a.m. to 10:33 a.m.),Amy Self(Deputy Corporation Counsel for thepltanning Director,9:26
a.m, to:10:41 a.m.), Malia Ho Hall(Deputy Corporation Coups: for the Windward Planning
Commission),Jeff Darrow(Planning Program Manager),AO),Surprenant(Plalvo.' g Program
Manager,9:50 a.m.to 10:33 a.m.),Ron (Project Manager for the Ka`u"CDP,9:16 a.m.
to 10:33 a.m.),Maija Jackson(Planner),Eliiistian Kay(planner), Shancy Watanabe(Planner),
Leana Gloor(Planner, 9:43 a.m.to 10:33;a.ni:); eilco Mercadb.(Planner,9:43 a.m. to 10:33
a.m.), and Sarah Hata-Finley(ComrnissiOn Secretaiy);
And 8 members from thepublic ui attendance..•• . •• .
KA` T COMMUNITY REVELOPMENT PLAN:;
On October.27;,2015,the Katu Commun"tty•.Develo went Plan(CDP) Steering Committee
recommended-'approval of the Ka`u CDP:'`After reviewing agency comment,the Planning
Director is:recommending non-substantive amendments to the CDP. Pursuant to Section 2-28.1
of the Haw:Ai,`i County Code,within sixty days atter receipt of the Planning Director'srecommendation on a draft community development plan or any amendment thereof,the
Windward Planning Commission shall transmit the draft community development plan or any
amendment with its.,recommendation through the Mayor to the County Council. Likewise,
pursuant to section 15;'1 of the general Plan, the County Council may modify or amend the
community development plan before enacting it by ordinance,but it shall give the Steering
Committee and the Windward Planning Commission an opportunity to review and comment
upon substantive amendments and modifications before final adoption of the plan.
The purpose of this meeting and public hearing is to afford all interested persons a reasonable
opportunity to comment on the Ka`u CDP and for the Commission to review the draft Kali
Community Development Plan(CDP)submitted by the Ka`tl CDP Steering Committee and the .
Planning Director and consider its recommendation to the County Council.
HENKEL: Okay,we're going to move on to Item No. 4,the Ka`u Community Development
Plan with -Ron is going to do the presentation.
1
ATTACHMENT 6
r r
WHITMORE: Thank you,Chair. I'm Ron Whitmore. I'm the Deputy Director of the
Department of Research and Development with the County. Here today on behalf of the
Planning Director because I was the Project Manager for the Ka`u CDP as it was going through
its development process. I want to thank the Director,thank the Commissioners, counsel, staff
for this opportunity. I also want to thank folks who I see here today from Ka`u. It was a
tremendous pleasure for me working with the people of Ka`u and supporting development of this
plan, and many of my favorite people and friends from Kati are here today so appreciate you
guys coming out.
Just so I'm clear on the protocol as well as for the Steering Gotvkiriittee members,this meeting is
agendized as well as a Steering Committee meeting. Is that;correct?
HENKEL: I don't think so. {�.} ►:'r
ti.t
•WHITMORE: We don't know. • - ra:
HALL: How many—how many of them are here?. .y
`Kr r.1• '
WHITMORE: There are—there are-our.he•re, and just�to°recognize them John Cross is a
member of the Steering Committee, non=vofig member, Michelle Galimba to his right. I'm
sorry,there's three here,excuse me. John,you',re not a Steerin 1Committee•--and Ron Ebert in
the back over here,so—. so,there's three:;Thete% t:quoru n,but there's more than two.
They're gonna confirm,but;I'it's my understanding.tliat'itis.agend zed as a Steering Committee
meeting which allows them botli,to•iestify and to.respond to any.questions the Commissioners
may have during discussion. Is that:'correct? Okay.
•
HENKEL: Ronm ,
,excuse eI dori't see,that.on the'.agenda. It's a Sunshine Law issue,though,
right? Maybe'
HALL:':it's fine. As long'as they',re,not talking to each other. You guys can ask them
questions. They're just members of the'public first of all,and then after that,as long as--I really
• know how to explain this roPerly—
;..,
SELF(from audiertce): —They're going to check and see because they are not supposed to—.
HALL: Oh,okay.
WHITMORE: Oh,these folks can probably answer that question. [Referring to Leana Gloor
and Keiko Mercado who entered the room.]
SELF (from audience): They can't have a discussion if—
WHITMORE: Keiko—
HENKEL: —Amongst themselves-
2
ATTACHMENT 6
SELF (from audience): Right. Or even with you guys.
WHITMORE: Keiko,quick question. This meeting is agendized as a Steering Committee
meeting. Is that correct?
MERCADO(from audience area): Yes.
WHITMORE: Yes, all right—we have an answer.
HALL: There we go. 7 ,'- '
\.t•
i
HENKEL: Okay, thank you.
i
WHITMORE: Okay,very briefly. I have everything we presented black in May at the hearing,
w rz •.
but I have no intention to present it all again bec?aise it's the same forur`Commissioners here
present, same staff. Do want to give a very brie tefresher and then touch pn,a few items. One is
a question that came from a Commissioner that I'd like to respond to, and the,second is some
additional public comment that was received by the D-p artment between meetings
Again,big picture. I tend to have a p-retty c 1m:demeanor;;liut,I am really very excited to be at
this point in the process,and this very much is a
;pause for celebration because the Kati
community and the Steering Committee n embers spe if_cally Thave..worked long and hard to get
to this point, and we very`m zth;appreciate'the support that we, that°tRe plan received through
agency review and through the-Director's positive'recommendation. But, again,just to reinforce
some of the three key•things to keep in mind as*you're concluding your deliberations is that this
was, this process that resulted in this-recommended plan was extremely credible,highly
participatory,collaborative,'very-:systematic_strategic, and transparent. So, throughout the
process,the,process was_clear,the decision points were clear, and everybody who had a stake in
the decisions being made;had more:than ample'opportunity to weigh in.
• Which leads to.the second point that this'has been vetted at all levels to an extreme—at the
community level;.Steering Coinhiittee level twice, and through agency review. And, again,to
remind you, every aingie strategy in the Community Development Plan has a rationale behind it
that is in writing,and-coif questions do come out,come up about specific policies or actions,we
ask that you start withttlie rationale behind those when considering any potential recommended
revisions to be consistent=00:.ihe process that's led us to this point.
So, again, the CDP does what you would expect from a community plan,.and as is provided,
as—for the direction also provided in the General Plan in Chapter 15,does four fundamental
things. One is it lays out the preferred land use pattern for the district. And,then building on
that foundation,it tackles very specifically,the three main pillars of what makes for healthy,
sustainable communities: natural and cultural resource management;the building blocks of
community including infrastructure facilities and services;and then what builds on top of that,a
resilient,sustainable local economy. And,those numbers on the screen there correspond with
3
ATTACHMENT 6
r= ,.
the four main substantive sections of the plan. I'm not going to go into that in detail,but if you
have any questions about any of that,many of us here are available to respond.
And,again,where we're at is the Steering Committee made its formal recommendation for
approval in October of 2015. That recommended version of the plan then went through agency
review. The Director then considered the Steering Committee's recommendation as well as all
the agency comments and made his favorable recommendation that included some non-
substantive revisions that were really just a function of useful insights from agency comment.
An effort to smooth out some of the organizational elements of the plan that were a little bumpy,
and then in those cases,to provide clarification, as needed. Ano,we went through much of that
at the hearing in May.
And, again,so we're all on the same page,we're now at.that iiixe l Sc hearing, the second of two.
You have 60 days from when you received the plan,..which I thin :brings you to sometime in late
June, and so, again,Counsel, correct me if I'm wrbn$,'but if they do .tn' act today,then it goes to
Council with a negative recommendation. Is.that��correct? But,the bottom line is today is your
scheduled meeting to make a decision. I guess As ,if necessary, you could"bequest a special
meeting some time before your deadline,but the assumption,,is��that today you'll a conclude your
t • �
discussion and come to a recommendation. And,then'i�t goes'to'_ ��r Council. We'll go through a
similar process. Planning Committee.* tnen to full Couicil. Before they make'their final
decision,it goes to the Mayor's desk:'"
So,again,that's the limitation, the limits of;the overview. What I'm going to do is I'm going to
dive right in to some of tlie.comment we received since the'May meeting. And,again,just to
remind you because,nioat of ifrelates to sorne of the land use policies in the CDP—the shoreline
setback,the meaning q the land use maps in the'CD1'. I just want to remind you what the
General Plan says about:the.scope Of,CDP's as it-telates to land use. And,these are all verbatim
quotes from-Chapter 15 of the Geni`ral Plan. a
And, the key terms, I think,,are direct, designate, and guide. And,fundamentally,what this is all -
about is what I would consider a healthy attention between the General Plan and the CDP's
where on the one hand,the General Plan is very clear that the General Plan is controlling when
there's conflict between the two.',On the other,the General Plan itself uses very strong language
to empower community development plans to provide very specific land use guidance. And,just
for kicks,I looked upthe definition of"direct,""designate,"and"guide,"and they all speak
about control, govern;regulate}-identify, steer, etc. And,so, it's, a significant authority on the
land use front is given to CDP.'slo direct physical development, detailed development patterns,
and provide clear guidanceron.preferred future settlement patterns.
The other thing to keep in mind is that there are four distinct types of strategies in the CDP, and
this was done very intentionally and very thoughtfully. Recognizing that the initial round of
CDP's created some confusion around what really different types of language and different types
of strategies in a CDP really mean. And,so we tried to be really clear on that front. The key
distinction is between what would be considered an action and what would be considered a
policy control. And, that's really where this healthy tension lies. So,the vast majority of what
you see in the CDP are either County actions which is basically,the County,the community's
expression of what they consider to be priorities of what the County should do. None of them
4
ATTACHMENT 6
are mandatory. They're simply saying,"Hey,these are the infrastructure priorities for our
community. These are the problematic priorities for our community. Counsel and
administration,we'd like you to take the appropriate next steps,whether that's appropriations or
what have you to move on those fronts." And,then the other types of actions relate to non-
County agencies, State and Federal, and then community-based actions, those that require
leadership and initiative on the community front. Again,none of those are legally binding in any
way. They're simply trying to be clear that to achieve the community's goals,all these actors
really would need to do these things,right?
So,separate from those actions then are policies, and there's even two types of policies in the
CDP. One is called policy intent. `Cause what you'll see when'lobking at the General Plan in
particular is lots of language that described kind of the preferred future. This is what we'd like
to see.. But,they're not specific enough or clear enoughto:•prrivide any direct guidance on what
should be done. So,it's things like protect the shoreline, It's really+,hard to make meaning of
that when considering a specific, let's say, applicatiOn before the Cojipission. In contrast, that's
a policy intent. And then policy control,on the other hand, is really ntfe,spirit of, of these sorts
of, this authority that the General Plan gives to-GDP. It's directing,designating, and guiding
and,sometimes, in fairly specific ways about how=to:achieve ebmmunity goalsusing land use
tools. < _ ±
So, again, I just threw up a couple of exa i'pl'es:so you're c [ear on how that's,how that displays
in the language of the CD?, and what I'im•showirig:you hereis-actually the Planning Director's
recommended revisions because that's a lo#of where:the Director-focused his recommendations.
To really be very clear;on•thee points aboutyhat are'tlie;differenttypes of strategies and
specifically as it relates-�•to'land•use•policy,what ai.ithon.ty.does the CDP have vis-a-vis the
General Plan. And,so you see,you know, corrections of language to make sure it's using
V ..
language that mirrors what''s in Chapter 15 of th'e General Plan and strong emphasis on the fact
that the General Plan is controlling*ben there are`direct conflicts between the CDP and the
General Plan And,•also.plarifyirig that any,-mall those cases where there's conflict and/or
amendments would be,need to be made to the General Plan to bring the two into alignment, the
CDP specifically notes where that would be necessary and appropriate and includes a follow-up
County action to do that,right? " r
And, so a great example is Policy,7 and its corresponding Policy 15. So,you see in Section 3.4,
you have a land use policy. This'is a policy control. It's a map that is similar in nature to the
LUPAG Map in the General Plan but is the CDP's policy map, and it does some important
things. One is the red at•the bottom clarifying, and although this was noted up in Section 2 there,
clarifying that if the CDP and General Plan are in conflict,the General Plan is controlling. And,
then 3.5 is the corresponding action, the follow-up action that would be required to bring the
General Plan and the CDP into alignment to the amendments required to the General Plan to,to
bring the two into alignment. So,that would be a follow-up step.
So,that's kind of general land use reorientation to what the CDP tries to do and the tools it tries
to use to achieve community objectives using land use tools.
5
ATTACHMENT 6
•
And, then quickly on the shoreline setback as this is applied, and this relays,Joe, to some of the
questions you raised by email. You had some questions about ownership of shoreline parcels
and zoning,right? So, again,the Shoreline Setback Policy, Policy 28,is one of many tools that
the CDP tries to use to achieve one of the community's highest priorities, which is to limit
development on the shoreline. And,we don't need to go over the details again can talk through
this again if you'd like during your discussion. But it's again, like every other strategy in the
CDP, it's an effort at using the tools that are already available—in this case,those described in
Planning Department Rule 11-5, giving the Planning Director the authority to establish shoreline
setback.
And, again,just to remind you what Policy 28 does and does/Pt do,it's triggered when
development is proposed on any parcel that includes part.of the Special Management Area in
Ka`u. The starting point is the quarter mile setback;however;.the applicant always has the
option, as part of their SMA review process or through other means, to make a case for a
different setback. And,the fundamental idea here is conditions and coastal properties are often
very site specific and unique, and so it's important that information specific to that place and the
type of development being proposed is considered,and weighed when making the final decisions
about what an appropriate setback should be, right?::
So,I'm going to--I have available a number of resources if it'd be helpful to look at—zoning,
land use designations,ownership relative to coastal parcels..But, in general sense,Joe,to answer
your question,the privately owned parcels in Ka`u are,the coastal parcels in Ka`u at this point
are very few so there is two that are between basically Ocean View•and I guess there's three.
Three between Ocean View,you know,Ranchos, and South Point. ,One is the large parcel that
made the news just in the last couple clays that's for sale again and the various public entities
have tried to purchase over the years: Another is the one,the smaller one immediately adjacent
to it—directly below the Ranchos Subdivision. And,the third is to its east, which is the large
Kamehameha Schools parcel,Pakini, . :
And, then from there,you're into'DHHL property through South Point. And, then when you
get—then there's a section of next public private ownership between South Point and Honutapo.
All of,well,several of which have tried that—community organizations and PONC have tried to
purchase in the past, one of which is currently being subdivided to move the developable parcels
mauka adjacent to the town. A third, that are—I think again up for sale because the County
wasn't able to make an offer that the owner could accept, and then a third,that's got a pending
subdivision application:
•
And,then from there between Honu`apo and Punalu`u,it's almost uniquely publicly owned with
a few exceptions—one mauka parcel just above Whittington Park. The Carroll property,which
has a house on it there at the shoreline, and then one other property which I think has a hundred
different people's names on the title which would be difficult to develop.
And,then from,between Punalueu and the National Park then,you have a,a large—I think it's
either a DLNR Kamehameha Schools owned parcel, and between there,you have several very
large privately owned parcels including The Great Crack and several parcels that have large mac
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But, I think if you look at the CDP overall,there's much more than the quarter mile setback. It
has to do with many other things that people brought up over the period of time. More police,
better public safety functions, and so, I urge you guys to vote in favor of it. Thank you.
HENKEL: Thank you, Ron. Commissioners, do we have any questions for the testifiers? With
that then,we should close public testimony if there's a motion.
MIYASATO: I make a motion to close public testimony.
IKEDA: Second. F�-
HENKEL: It's been moved by Commissioner Miyasatf5,'-sjcotided by Commissioner Ikeda to
close public testimony. All in favor say, "aye?"
yrs
COMMISSIONERS: Aye. '{ '
rJ
HENKEL: Opposed? Public testimony is closed there any_discussion and is there a motion
for action? Yes,Mr. Clarkson. • : •
CLARKSON: I just want a little bitmore`clarification as£9 the legal effect on,of this document
on land use regulations. I saw a lot of what Ron.said. Design:4p, guide,but all the language
about conflicting with the General Plan,I just want io'�venify that-thy impression that this is a
recommendation from,the echo inunity of K 11 r
to the-,Coiiiity._Council that in and of itself,unless
it's in its entirety or in pall, incorporated into County Code or General Plan,has no legal
effect. Is that a wrong impression oris that a correct impression?•
HENKEL: Would you like to.respond,.I .on?
WHITM'ORE(from audience): I #can but Amy'can shut me up at any point if she thinks what I
say is inappropriate.
WHITMORE:'Actually,Christian, do me'+k favor? There's a document there. It's Appendix
like V-1. So,that actually was Our.starting point before we started this whole process,right?
Let's start off being-very clear about the authority of CDP's,right?
And, so one of the first things we did is put together this Appen—which is now Appendix, I
think,one of the CDP whicli�-is not, not adopted as part of the CDP. It's a supporting document.
So,we looked carefully at what the General Plan says; what the charter says; any related State
statute or County Code, and at the time,what we also had was a memo from the Director. And,
he wrote this at the tail end of the first round of CDP's. So,this is from May of 2008. And,he
was speaking,he was,he crafted this in response to several queries from the initial set of steering
committees at the time. Right? `Cause they had the same question. It's like what does this
really mean,right? What is the legal effect of a CDP? And, so,he drafted this memo trying to
respond to that question, and we, for the Ka`u CDP,drew on language from the General Plan,
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ATTACHMENT 6
Charter, and this memo to clarify all that in this particular Appendix,which then was reflected in
Section 2 of what is now the CDP,which is the authority section of the CDP.
And,so,that's what we're working from, and part of what's important here is that the Director at
that time clarified those different types of strategies that you can include in a CDP. The most
important distinction being the one that I noted earlier—the distinction between those policies
that are in effect controlling and those that are actions that require follow up. Action on the
Council's and/or the Administration's part that are not mandated,right? And, so, it was that,that
we were building on as our starting and working assumption for what a CDP can and cannot do.
Now, as is the case with all land use applications decisions,there are all made on an application
specific basis,right? And,so,how all of this is interpreted liy.the Director or the Planning
Commission or Council,depending on the type of permit;we` ally can't speak to at this point.
The Steering Committee and the community worked to be clear in the CDP to make it clear to
those decision makers what(a)the goal was,what'tle•intent was; n.d(b)how it thought tools in
the planners' toolbox should be used in differpot cit umstances,but was'yery careful at all times
to never cross the line of basically assuming mare,authoritY than the CDP;.had. It was very, it's
very differential to where authority lies in the reghlaitgry framework,the Cliarter, General Plan,
Code. But—but in some cases,knowing the natures'bf likely,.future developmett:i Kaen,try to
be specific as possible so that those} who`are making adecision had no doubts idtheir mind what
thgjatexamiatfirence of the community_.-is .right? Buf;"-it-the end of the day,the decision
makers are the decision makers, ~hey will ultimately make the call,and as you know,it's on
a case-by-case, application,by-application basis,right? : ,
Is that fair? .
SELF: Deputy Corporatiot,:Counsel,Amy Self.T1trepresent the Planning Department. So, I
think in answer to your question,there is no way that you can develop any CDP or even amend
the General Plan to prevent lawsuits froth being filed.I.We still have a case in, at the Intermediate
Court of Appeals concerning the Kona CDP. So,-people will interpret it in different situations
depending on what they want to gain for their client for permits,but the important thing to keep
in mind is that the CDP is guidance for how they want future growth to occur in a particular
district;whereas,the General Plan covers the entire Island.
So, you know, we cain't sit here and say—`cause like Ron said,it's on a case-by-case basis. It
depends on the particular'landowner that comes in for whatever permit they're applying for, and
it depends on at that time Show the language is interpreted. And,if we get a lawsuit, our office
will defend the Planning Department's decision. But, they did,you know, the thing that I looked
at when I was reviewing the policy on the shoreline setback is that at least it's not a mandate.
It's not mandatory language if you look at it. It's a—it's a guidance. So,that in and of itself to
me would be defensible.
So,I hope that helps.
CLARKSON: Well,let me,let me just ask this then as a follow-up. Since the ultimate decision
makers are judges,have any of them ever decided a case in favor,well, on the basis of the
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ATTACHMENT 6
,
language in the CDP, as opposed to the language in the General Plan? In other words, said to a
decision maker,it be at the Planning Department or the County Council,that they erred by not
deferring to the language in the CDP. Has that ever happened?
SELF: There is a Supreme,Hawaii Supreme Court case. I think it's--is it the Breshia case in,
but it's Maui County. Theirs is set up a little differently. Maui County adopted their CDP's by
amending their General Plan so their CDP's are part of the General Plan. I can tell you that there
is a Hawaii Supreme Court case. It says the General Plan—that the zoning has to be consistent
with.the General Plan. So,we have that. I'm going blank right now. There is a case regarding
the Maui CDP, and I can't recall right now the specifics,but the,court would look at that. I
mean,this is going to be adopted by ordinance so what thePl g Department will be doing is
when a permit application comes in for Ka`u area,they willbe4looking to see if it's consistent
with the CDP,with the language of the CDP. And,theyAll-•also be looking to make sure that
it's consistent with the General Plan.
The language is like, for instance,let's take the:General Plan. The General Plan has a lot of
language describing what the direction they hope:the growth will take,but yben you get to the
regulatory ortion that's actually the LUPAG M . .,`cause thatractuall define the use of
different areas of the Island. So,that's,why the Supreme giii.O said the zoning:has to be
consistent with the General Plan. So, you;,if you're trying•to get a if you're trying to use
your land for a particular use and yoiirzonin$,*es not math what's in the General Plan
LUPAG Map,then you're going to have to tiiy?and,get the Geneial Plan LUPAG Map amended.
So, there's a process for that.
•
Where you have language.in the`CDP that isyery.strong language encouraging certain growth
patterns,if it's not consistent with`.the General'Plan.;just like Ron said,you would have to go in
for a General Plan amendment if you want to push that part of the CDP.
•
'.` :moi1•r - ...•�'...
So,it's not`gotnag•to•ever be like lbfack and white.. Thelaw never is. But,we just have to put
forth otic:best argument if we get.challenged which is what we did with the Kona CDP,and we'll
see how`not turns out. We..have no-idea yet.
HENKEL: Thank you,Amy. •Aiiy oth>iestions or comments from the Commission?
MIYASATO: Chair;=I°have a cbtpinent.
• HENKEL: Go ahead,Myles.. .•='
MIYASATO: Yeah, you know,I'd just like to thank all of you for coming out. At least you
folks had to drive this time. Thank you for coming out,and,you know, great work on the CDP.
Thank you for your testimony. It gave us a lot of more insight on the development and what you
folks went through to put this CDP together.
You know,as far as the shoreline,you know,it seems to be a hot topic, and I can see how a lot
of discussion or argument between the community members went about on that subject. And,
you know, I think its healthy discussion that was, as was brought up on that topic. You know,I
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ATTACHMENT 6
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I t
was fortunate to have experienced that shoreline which is not readily accessible which is what
one of the testifiers had brought up at the Kati"meeting who I guess enjoyed surfing. But,you
know, as he stated, not all the shoreline is accessible.
a the
You know,I've seen that King's Trail down on that shoreline. And,to seepath that's in
middle of a`a,smooth for miles. You just gotta imagine how many people walked that shoreline,
and that shoreline is still sustainable in food resources. I know areas down between Kalowalo
down to Galimba's property where we had our ranch. You have a carpet of limu kohu,yeah?
You actually gotta step on it to pick it, Fish, salt—you can pick your own salt--you know, you
can go down there and pick it and dry it. Lobsters--I not going-tell you guys where the lobsters
are but,they're walking on the reef. ;: •
-r.
So,you know,yeah, your guys footprints of old fishing villagesthat you can see once existed
have been all the way down to Kapua where that trial continues;.yob know, where's the
Hawaiian Slide, an amazing structure, smooth rocks,imprinted into the ground leading to
Queen's Bath. Just so rich in cultural and food:resources,you know.T.Iiitiautiful place to be.
And, I think John Cross put it the best where it's-a.document. It's a docuinient of what the people
of Katu want,yeah? That was very well put,ancf Chair,with,that,I'd like to make a motion.
•
HENKEL: Yes, go ahead. •
MIYASATO: Yeah, I move that a favorable recommendation be,forwarded to the County
Council on the Karp Community Development Plan based on the Planning Director's
recommendations,recommended amendments,and.endings.which-shall be adopted.
•
IKEDA: I second.
HENKEL: It's been,moved�by;CoMiy
inmissioner asato; seconded by Commissioner Ikeda.
With that,we'll do.discussion,`feel free to comment;and a roll call vote.
KAY: Thank you,Mr. Chair. Commissioner Miyasato?
MIYASATO -.Aye.
KAY: Cornmissioner`Ikeda? . "
0. I
IKEDA: Aye.
KAY: Commissioner Clarkson?
CLARKSON: Aye.
KAY: And,Chair Henkel.
HENKEL: Aye.
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ATTACHMENT 6
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a
KAY: Thank you,Mr. Chair. Motion carries four, nothing.
[Applause in audience.]
HENKEL: I'd like to,you know,second what Myles said about the work that the Steering
Committee did and to all the Ka`u citizens that contributed. It's been awesome. It's grass roots
democracy at its most,rewarding.
•
The discussion ended at 10:32 a.m.
Respectl. •submitted,
4r
• Srah Y. Hata-TinleY, Secretary
_. . Windward Planning commission
•r t
,~ • •i• fay
•:::,-•.,a
•
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ATTACHMENT 6
JiSY` M,y,
L
Harry Kim •i• .�,!'% .1,..
' �;*' Michael Yee
Mayor
` Director
tE°F,rf' Daryn Arai
Deputy Director
County of Havvai`i
PLANNING DEPARTMENT
KAT COMMUNITY DEVELOPMENT PLAN STEERING COMMITTEE
Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawai`196720
Phone(808)961-8288 • Fax(808)961-8742
DRAFT MEETING MINUTES
Thursday,June 1, 2017
County of Hawaii Aupuni Center Conference Room
CALL TO ORDER BY WINDWARD PLANNING COMMISION
Commission Chairman Gregory Henkel called this special meeting to order at 9:39 a.m.,
welcoming Windward Commission members, Steering Committee members and members of the
public.
STEERING COMMITTEE
Members Present: John Cross, Ron Ebert, Michelle Galimba
Absent/Excused: Marino Ramones, Patti Barry, John Cross, Bob DaMate, Leina'ala Enos,
Eldridge Naboa, Simon Torres, Jr., Loren Heck
Others present: Michael Yee, COH Planning Director; Daryn Arai, CON Deputy Planning
Director; Amy Self, COH Deputy Corporation Counsel for the Planning Director;April
Surprenant, COH Long Range Manager; Ron Whitmore, COH Research&Development Deputy
Director; and COH Planners: LeAna Gloor, Keiko Mercado, and Bethany Morrison.
BUSINESS
1. Windward Planning Commission Public Hearing re: the Ka`u Community
Development Plan (Community Development Plan): This meeting was a concurrent
Windward Planning Commission Public Hearing to adopt the Ka`u Community
Development PIan within the Community Development Plan project area, and a Ka`u
Community Development Plan Steering Committee meeting to abide by the Sunshine
Law(HRS Chapter 92)and enable Community Development Plan committee members to
attend and provide comments to the planning commission. Members of the Ka`u
Community Development Plan Steering Committee attended this Windward Planning
Commission Public Hearing and were able to answer questions from the Commissioners
during the public hearing.
When posted in July,the meeting minutes for the Windward Planning Commission meeting
can be found here: http: :recc,rd5.co.ltat\aii.l1i.tls.« biiIlk.Bro‘ .w.a,p\?startidMI IOSzihiki -1
ATTACHMENT 7
All of the background information and presentation slides referenced in the meeting can be
viewed and downloaded from the Ka`u Community Development Plan website:
hap::i\x\t\1.ha niicoullticdp.in o=kau-cdp steering..-committee steerilli?-colllnlltee-meetill us cop\ or max-10_
2017-steet'i tl`?-Ciltll111 thee-Meetill2
Mr. Whitmore gave a brief overview of his presentation from the May 10, 2017 Planning
Commission meeting for the Ka`u Community Development Plan. Commissioner Joseph
Clarkson asked clarifying questions on the Shoreline Setback Policy. A discussion of how
development in the Ka`u District would be affected by the setbacks stipulated in the
Community Development Plan.
PUBLIC COMMENT:
1. Starlette Freitas testified in support of the adoption of the Ka`u Community Development
Plan and expressed her concern for the preservation of the shoreline for cultural and
ancestral purposes.
2. Steering Committee Member Michelle Galimba requested that the Windward Planning
Commission approve the Ka`u Community Development Plan and thanked Mr.
Whitmore for the work he had done with the Community Development Plan.
3. John Replogle talk about the setbacks mentioned in the Community Development Plan
and expressed full support. He would like the Ka`u Community Development Plan to be
approved.
4. Non-voting Steering Committee Member John Cross briefly explained his relationship to
Ka`u and why he is a part of the Steering Committee. He explained that the Ka`a
Community Development Plan represents what the people of Ka`u want.
5. Steering Committee Member Ron Ebert stated that the Community Development Plan is
more than just about the quarter mile shoreline setback. The Community Development
Plan has many things that the people in the community were concerned about, such as
public safety and recommending more police presence in Keil. He urged the
commissioners to vote in favor of the Ka`u Community Development Plan.
Commissioner Myles Miyasato made a motion to close public testimony. Second by
Commissioner Donald Ikeda. The motion to close public testimony passed with 4 votes aye and 0
votes nay.
FURTHER COMMISSIONER DISCUSSIONS:
1. Commissioner Joseph Clarkson sought clarification from Mr. Whitmore on the legal
effects of land use policies of the CDP in relation to the County General Plan. Mr.
Whitmore explained that the CDP was created using language from the General Plan as a
guide. He also referred to Section 2 of the Community Development Plan, as the
explanation of what the Community Development Plan can and cannot do. He explained
that the Planning Department consults CDPs in making land use decisions.
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ATTACHMENT 7
2. Deputy Corporation Counsel, Amy Self, explained that it not possible to predict how
people will interpret the Community Development Plan. The CDP should be used as
guidance for future growth in the district, whereas the General Plan provides guidance for
the entire island.
3. Commissioner Myles Miyasato thanked those present and those who contributed in
creating the Ka'u Community Development Plan.
Commissioner Myles Miyasato made a motion to forward the Kai('Community Development Plan
to the County Council to be adopted. Second by Commissioner Donald Ikeda. The motion to
forward the Ka'u Community Development Plan to the County Council for adoption passed with 4
votes aye and 0 votes nay.
The Windward Planning Commission concluded their consideration of the Ka`u CDP at 10:32
p.m.
The Windward Planning Commission continued with other business of their board.
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ATTACHMENT 7