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HomeMy WebLinkAboutMIN PWPRC 2018/10/16 2016-2018Committee on Public Works and Parks and Recreation 26th Session West Hawaii Civic Center 74-5044 Ane Keohokalole Highway, Building A Kailua-Kona, Hawaii October 16, 2018 CALL TO The regular meeting of the Committee on Public Works and Parks and Recreation ORDER: was called to order at 3:18 p.m., in the Council Chambers, Hilo, by Ms. Maile Medeiros David, Acting Chair. R(1T T CAT T Present: Ms. Maile Medeiros David, Vice Chair Mr. Aaron Chung, Member (via videoconference from Hilo) Ms. Karen Eoff, Member Mr. Dru Mamo Kanuha, Member Ms. Susan L. K. Lee Loy, Member Ms. Eileen O'Hara, Member Member Ms. Valerie T. Poindexter, Member Mr. Herbert M. "Tim" Richards, III, Member (came in later) Absent & Excused: STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS COMMUNI- C A TTnNC Ms. Jennifer Ruggles, Chair The Chair directed the Committee to proceed to the next order of business, Statements from the Public on Agenda Items. The following individuals registered to speak in support of Bill 199 (Comm. 1097), and came forward when called by the Chair: Richard Robbins, representing Leilani Community Association. Jay Turkovsky. ACTING CHR. DAVID: That concludes Statements from the Public. I will close Statements from the Public at this time, and we will move on. The Chair directed the Committee to proceed to the next order of business, Communications. (There were none.) PWPRC-26 OctoberM, 2018 ORDER OF The Chair directed the Committee to proceed to the next order of business, Order RESOLUTIONS: of Resolutions. (There were none.) BILLS FOR The Chair directed the Committee to proceed to the next order of business, Bills ORDINANCES: for Ordinances. ACTING CHR. DAVID: Mr. Clerk, Bill 199. Bill 199: AMENDS CHAPTER 5, ARTICLE 2, DIVISION 1, SECTION 5-11, OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED), RELATING TO DUTIES OF THE DIRECTOR OF THE DEPARTMENT OF PUBLIC WORKS Requires the Department of Public Works to compile, maintain, and provide to applicants for building permits information on homeowner association covenants, conditions, and restrictions that may affect the applicant's proposed project. Reference: Comm. 1097 Intr. by: Ms. O'Hara Motion to Approve: Ms. O'Hara moved to recommend passage of Bill 199 on first reading. Seconded by Ms. Poindexter. ACTING CHR. DAVID: Ms. O'Hara, before you proceed, I will ask Mr. Erickson and Deputy Director to come up to the table. (Note: At this time, Deputy Public Works Director Merrick Nishimoto and Plans Examining Manager Neil Erickson came forward to address the members of the Committee.) CHR. DAVID: Go ahead, Ms. O'Hara. MS. O'HARA: Okay, thank you. This is an amendment that my homeowner association has been seeking for a long time. The folks that testified from the Leilani Homeowner Association referenced to Hawaiian Beaches. It's actually Hawaiian Shores that has CC&Rs (Covenants, Conditions, and Restrictions). In my district, there were three subdivisions that had CC&Rs. One has been wiped off the face of the earth, that was Vacationland, and then there's Leilani Estates and Hawaiian Shores. There are a few other subdivisions in East Hawaii that have enforceable CC&Rs, and these are CC&Rs that address building heights and limits and other types of things. Some associations have Page 2 PWPRC-26 OctoberM, 2018 CC&Rs that don't address those types of requirements. There are quite a few in West Hawaii. Our experience as a homeowner association has been for a number of years that when an applicant—when someone buys a property, they're provided a new member packet, which has instructions about how to do design review, et cetera. Many people do not follow instructions well. So when they decide to build, they get their plans done and they come into the building department and put in their application, and Building deals with them. They come out with a stamped plan, and they come into the community and they start to build. In our case, we have waterlines, so you can't even grub your lot without notifying the association because we don't want our waterlines broken. But as they haven't read the instructions, it usually falls upon our maintenance crew to discover these people in the neighborhood and inform them that they need to come in for design review. They do this and then find out that they might have gotten a stamped plan from DPW (Department of Public Works) that doesn't comply with our CC&Rs, in which case they have to go back and redo their plans. For instance, our height limit is less than the County's, the height limit on home, above grade. Then they have to redo the plan, it can cost them $5,000 to $10,000. They have to go through another six months of permit review. And then, they end up entering the community with an attitude. I can't blame them; they're a little upset because they've had a setback in time, they've had to pay extra money. And yes, it was their mistake for not paying attention to the instructions. But it would help greatly if there was just a notification, a list, at the building department that informs them, "Oh, you're coming in from that subdivision, well, they have enforceable CC&Rs." It falls upon the Homeowner Associations to notify the building department. All you're going to need to do is do a notice. A notice in the paper or something. Every homeowner association that has CC&Rs, applicable CC&Rs, will then contact you. It's not up to you to go out and start contacting all of these associations. Just do a notice in the paper. If other subdivisions are having problems, and we've heard from other subdivisions besides my own, they will contact you. It just resolves a longstanding problem that we who are in subdivisions with CC&Rs continue to have. We're not asking for a lot. We're not asking for you to enforce CC&Rs. That's absolutely outside the purview of the County and the department. Just to have a list, to remind people they need to check with their homeowner association. For some time, and this was about 10 years ago, I went in with the head of our Design Review Committee, an architect. We made a little half -sheet, and we made 100 copies of them. We left them on the counter to try and inform people. We were hoping that the County would follow though and at least keep it printed, Page 3 PWPRC-26 OctoberM, 2018 keep it up on the counter, but they never did. As soon as that pile got used up, it was gone. So, we're just asking for a little support out in the subdivisions to prevent conflicts and to prevent people from expending time and money they don't need to do. That's what this amendment to the Code is really all about. It's a simple little thing. It doesn't put a lot of onus on the department, and it will help to smooth things out in the communities. That's what I have here. ACTING CHR. DAVID: Thank you, Ms. O'Hara. Council Members, comments? Ms. Lee Loy, go ahead. MS. LEE LOY: Well, I guess, you know, we have our technical experts in front of us, and I just wanted for them to kind of give us a thumbnail schedule on what their interpretation of this does, and then if it's possible for us to move forward. ACTING CHR. DAVID: Go ahead, either one. Mr. Erickson, you can go first. MR. ERICKSON: My name is Neil Erickson. My title is Plans Examining Manager with Public Works, Building Division. I have read this proposed bill, and what its states is slightly different than the way Councilperson Eileen has stated. Since it simply says, "Compile and maintain a record of homeowner associations' covenants," CC&Rs, it implies that it's going to be our responsibility to go out and seek the homeowners. I know that's not what you intended, but that's what it implies. To go one step further, it really seems to imply that the County is now going to intervene in a private agreement between the association and the property owner. It does seem like it may actually place us in a position of liability, if we don't notify the homeowner. It really is the job of the title company because CC&Rs are generally only one of many, may encumberments on a piece of property, right? It could be waterline, or a drainage easement, or a road widening. Many, many other things. Are we going to now open the door to let people know there are other things you need to look at that are private issues on that property in particular? Not just the entire the community, Waikoloa Beach Association has covenants and the subdivisions within that also have covenants. They also have restrictions for other uses, as well. There are layers upon layers of CC&Rs, and literally hundreds of communities that have CC&Rs in this County alone. So, I mean, to maintain that list is not a trivial matter. I'm not trying to shirk our responsibility or maybe in a way to help the public, and I understand what you're trying to do. I really think it's the homeowners association, or the realtor, or the design professional's obligation to learn what's required for that community. If it's 25 feet height limit, or 40 feet, or 800 square feet minimum area, theirs are all way above and beyond what the Page 4 PWPRC-26 OctoberM, 2018 Code requires, right? We're looking at minimum standards for the Code, and I think the last thing you want is to require more Code restrictions that prohibit people from building in communities. I mean, to say it has to be a minimum of 2,500 square feet for Waiki`i Ranch, that's way beyond what the Building Code would require, right? So, I don't want to say these are something you have to look at because it's part of the Building Code, which implies that we're helping the candidates know or applicant know that there's something beyond the Building Code that you have to look at. It's really private agreement between the association and the homeowner. So, I feel real strongly that we're over reaching our role, right. I didn't talk to our Corporation Counsel yet. I mean, these are private agreements. There's lots of civil matters between homeowners and association members that go in and build without, you know, talking to you. Some associations charge a fee, and they get it reviewed. You know, that helps alleviate a lot of the problems. If you start construction or start grading, someone is going to go out and help monitor what's going on in that community. I think you had a speaker here from the Keaukaha, Leleiwi Association earlier. They keep a real interesting, you know, very active tab on what's going on in the community, and I think they're going to let people know if they think they're out of line. I think that's probably true with most communities. If it's anywhere else on this side of the island, they don't get very far. I don't mean to shoot you down like that, but I just don't think it's our job to notify people that there are additional Codes and requirements beyond the minimum standards. MS. O'HARA: Thank you. MS. LEE LOY: I think I have the floor? ACTING CHR. DAVID: Yes, you have the floor, Ms. Lee Loy. MS. LEE LOY: Well, I saw Merrick kind of lean forward. Your thoughts, Merrick? Thank you. MR. NISHIMOTO: Thank you, Neil. Once again, my name is Merrick, Deputy Director of Public Works. I'd like to take the thinking a step back and broaden it out a little bit. I feel the role for the Department of Public Works is one of life safety. The role of getting involved with CC&Rs, I agree with Mr. Erickson, it goes beyond life safety. You know, we are challenged enough as it is to make sure people comply to these minimum standards for life and safety. Page 5 PWPRC-26 OctoberM, 2018 I hear you, Eileen, that you're saying it's not that much more of a burden on us, but I think it will be, you know, that additional time, which we're trying to cut down. The big initiative this year is for us to get things streamlined. The more that we add to these layers upon layers of bureaucracy, the more we slow down this process. We're trying to revitalize the economy here on the Big Island. Part of that revitalization is to streamline the building permits, and that is one of the processes we're trying to streamline. I'm not saying that this one little additional task, and that's one perception, is little, but this additional task is going to really drastically change the timeline; but if we continue down this path and continue to add in more things to this process, I feel that we may impact it a little more negatively. So, I would prefer that the Department of Public Works stay out of this. MS. LEE LOY: Thank you, Neil and Merrick. I don't like when government starts to insert themselves in an area that they have no duty. But I do hear what Ms. O'Hara is trying to do, is just to provide some level of safety net for people to be more aware. You might have to go check your CC&Rs or something else. But, we're back to the duties and liabilities of government. We heard this conversation during our short-term vacation rentals, especially with the condominium units, that we are providing a vehicle for them to have short-term vacation rentals in the condos. But if that condominium's CC&Rs prohibits it, they have to follow their condominium's CC&Rs. We provide a space for it, but it's up to the individual owner to understand their property rights. I want to try and figure out a way. I think—but as both Neil and Merrick laid out here, maybe it's more wordsmithing, maybe it's tools that we give to various homeowners associations. Have them check—because I know we post building permits online, and who's pulling this information, or grading/grubbing permits. think the information is out there. I think the consumer just has to be more aware. Where, the homeowner association has to know how to use those tools that are already available online with our processes. With that, I'm not going to support this. I can see maybe wordsmithing it, where we point them in the other direction rather than take on the duty and responsibility. That's where I stand. I yield. ACTING CHR. DAVID: Thank you, Ms. Lee Loy. Mr. Chung, go ahead. MR. CHUNG: Oh, thank you. I couldn't have said it any better than Neil and Merrick. I have to respectfully disagree with Ms. O'Hara, this does place an onus on the Department of Public Works. First of all, it obligates them now, pursuant to a Code provision, if this were to pass, that they have to both obtain and compile all of these covenants. So, they have to go out and seek all of these things. Page 6 PWPRC-26 Octoberl6, 2018 There's some language in here that kind of throws me off, too. It says that they have to keep or maintain records pertaining to these types of covenants which are supplemental to laws, regulations, and requirements, you know, under our jurisdiction. But a lot of times, in these types of covenants, you have a mix of provisions. You have some relating to design, but you also have stuff like not pertaining—you can't have a livestock on agriculture lands. I don't know how legal that is, but they do have that. It has nothing to do with the building department or Public Works; but yet, because it's all in there, you can't separate it out. This phrase, supplemental to the laws, really, it shouldn't be in there, Because basically, what Ms. O'Hara is asking for, is for them to maintain anything. All of these covenants, period, whether it relates to buildings or other things. That becomes a real big problem for our department. Merrick said it, you know, we want to start to move towards getting things out faster. This is only going to move things out slower. At some point, we cannot let people off the hook from their own responsibilities. These things are recorded in the Bureau of Conveyances. They have to do their due diligence. The only think that I can think of to address this would be—in all of these of these applications, and it shouldn't be codified, but in all of these applications, the department maybe should put something in there, if they haven't already, that each applicant is or shall be required to be aware of all of the requirements of their respective restrictive covenants, you know, if there any at all. But I think that's as far as the department should go already. We can't be placing more responsibilities on them. Thank you. ACTING CHR. DAVID: Thank you, Mr. Chung. Mr. Richards, go ahead. MR. RICHARDS: Thank you, Chair. I think I definitely understand Council Woman O'Hara's intent, and I support the intent. Listening to you, Neil, and listening to you, Merrick, brought a few things that really grab me. First of all, we have to go, or you have to go seek these CC&Rs. Okay, that's problematic. What if you miss one? Secondly, what you said, and it's probably closer to home, is we're trying to speed up the process, and if this is any encumbrance. So then listening to Council Woman Lee Loy and Councilman Chung, having something maybe on the application, just says, `Be sure to check with any homeowner CC&Rs in your area or where your home is located," and that's the end. Maybe it does already. I don't know. I definitely support the intent, trying to streamline. But the last thing we want to do is put more requirements on you, especially if you're trying to update untold number of CC&Rs. I thought, well, you know, as long it's on their neck, can be Page 7 PWPRC-26 OctoberM, 2018 sure that they keep communicating with the Planning Department, excuse me, Public Works. But what if they don't and then you guys have something out of date? That's very problematic. I think what Councilman Chung has said, you know, be sure you check with your homeowners association and then end. I like the idea, but I cannot support this for those reasons. I yield. ACTING CHR. DAVID: Thank you, Mr. Richards. Mr. Erickson, you wish to make a comment? MR. ERICKSON: Councilman Richards, I think you brought up something that I hadn't thought of, is that all applications now start with the Planning Department. By the time it gets to the building department, I really don't have an opportunity to notify an applicant. I mean, eventually this will change, but it will become electronic and we're not going to be dealing with applicants in person at all. So that's one thing that is kind of awkward to start with. Second, here's an example of a title report, right (holding up stack of paper)? They can get very wordy, right? There's a lot of restrictions and covenants that go into a title report for a piece of property, and it's really the applicant's responsibility to understand all of these. I'm not saying this is a typical example, but they can be very awful. I just wanted to point that out because Councilman Chung pointed it out. This is really not our responsibility. Someone just got to take the lead for this, and I think, personally it's the homeowners association. But the applicant, you're absolutely right, is the one who should be looking at these things when they purchase property in a community that has association rules and covenants. ACTING CHR. DAVID: Thank you, Mr. Erickson. Anyone else before I go back tooh, Ms. Eoff, this is your first time. Go ahead. MS. EOFF: Thank you, Madam Chair. And before my colleagues said this, I was actually thinking, maybe without having to put it in a bill like this, that there could be somewhere where you post. Planning Department could do it, too. Just a reminder to applicants for any kind of permits that they need to be aware of, their specific CC&Rs that govern their subdivision or building. That way it'll be at least be an effort to remind people. I like that idea. ACTING CHR. DAVID: Do you yield? MS. EOFF: I yield. ACTING CHR. DAVID: Are you done? Okay. Now, we can go back to Ms. O'Hara. Go ahead. Page 8 PWPRC-26 OctoberM, 2018 MS. O'HARA: Okay, thank you, Chair. Yes, I think we have the same objective in mind, in streamlining. Like I said, it doesn't help. Because the last three cases in my neighborhood this occurred, it had to go back through the permitting process. That's not helping your streamlining either. Nobody reads those reports, Neil, I mean, not word for word. Come on, nobody reads that kind of stuff nor do we read every word of these things either. MR. ERICKSON: That's why we hire attorneys, right? MS. O'HARA: Well, I'm wondering why we waste all the papers, is the other thing. Understanding the process, because I kind of argued with my Legislative Assistant, because my understanding is it starts at planning. So when an applicant comes in, what is the first document they're requested to fill out if they're going after a building permit? MR. ERICKSON: Right now, they fill out a worksheet, and that will be a good opportunity to do it. But at this point, generally most people have their plans done, right? So somehow, we need to do some outreach in public education, like we are today, right? MS. O'HARA: Yeah. MR. ERICKSON: And I'm happy to do that and let people know that we have 22 preapproved packaged homes that they can choose from. You know, get that through the permitting process within a week probably, right, and those kinds of things. MS. O'HARA: Yeah, yeah, yeah. Yeah. MR. ERICKSON: But do they meet all the homeowners association CC&Rs? I really don't know. MS. O'HARA: Well, they need to check. The onus is on them. But they need to be aware that these things exist. So where that message is posted or how it's presented is of great importance, in terms of streamlining; because I think that's all we're trying to do, is reduce the time that people spend getting their permits and make sure they don't have to come back through a second time. So if you can help me understand where to inject that, I would be happy to help in any way. ACTING CHR. DAVID: Thank you, Ms. O'Hara. Anyone else? Oh, Mr. Nishimoto. Go ahead. Page 9 PWPRC-26 Octoberl6, 2018 MR. NISHIMOTO: Thank you. Let me offer this to you, Eileen. Let me check with the Planning Department. I really don't want to speak for them, but I'm going off on memory and I thought there was some type of document that might have stated for the applicant to check on it. But let me check with the Planning Department. If such a document does not exist, a generic document to the applicant, that clearly states something to the word of "please check for any CC&Rs," if it's not with the Planning Department, maybe they'd be in agreement to have a sheet or some type of attachment for them during the application process be handed out. But if that doesn't work for them, then maybe we can do it with Public Works. But can I get back to you on that, for some type ofa little bit of adjustment in the application process? Very generic. MS. O'HARA: I appreciate that offer. You might know that we do have the Planning Director hiding over in the corner here. He hasn't been paying attention, but he is with us. Perhaps—have you been listening, Mr. Yee? Okay. Is this something you might be able to work with Merrick on? Anyway, no I'm serious. It would really help, and it would help with the whole streamlining effort that we're trying to mitigate the time that it takes to get these permits, and that's really an important part of it. So if we could get that, front and center? First application the person fills out, that would be really helpful. Thank you. ACTING CHR. DAVID: Thank you, Ms. O'Hara. Anyone else? MS. LEE LOY: I just want toI think that's a wonderful idea. But, something Neil mentioned. All too often the consumer comes with their plans already. I mean, I think there's a way to work together. But it's the design professionals, that's where it supposed to start. Before they pick the preapproved package from HPM (Hawai`i Planing Mill) or Honsador, the 600 square feet or the 800 square feet, they have to know. And the expectation of them being a consumer, to pull a building permit. Thank you, Merrick. Thank you, Michael. But I'm with Neil, it's on the consumer side. Before they even think about a design of a home, they need to know what they can and cannot build on their property. MR. ERICKSON: Maile, if I can interject? ACTING CHR. DAVID: Yes, thank you. MR. ERICKSON: Sue, you may not be aware, but I wrote a guide, you know, to residential permits, right? That's a perfect place to interject that. We could reprint those. We reprint them all the time, so why not just put that out for the public, who are moving here and thinking about building a home? I haven't thought about that until Merrick brought it up. That's a perfect spot. And thanks for letting us speak up about it. Page 10 PWPRC-26 Octoberl6, 2018 MS. O'HARA: Thank you. We had to have this discussion to think of all of that. Thank you, thank you, thank you. ACTING CHR. DAVID: Ms. Poindexter. MS. POINDEXTER: Yeah, and I just wanted to say that I'm with the homeowners association. We have CC&Rs. A lot of times the people who want to do something, the homeowner is going to try and get away with it. We as the Board needs to be on top of that. Because a lot of times they try to slide pass the CC&Rs and build something, when it's too late and they know that the Board wouldn't go against what we require in our CC&Rs. It's a lot of work on the associations and the board, but it is what it is. A lot of times you may give that information and tell the homeowner, "Hey, you better go check with your CC&Rs," and they go toss them all and, "Okay, we did." You know, let's just do it. It's a lot more work for the board members, but it's just what it is. So, I just wanted to state that. But, thank you. MR. ERICKSON: Thank you. And hopefully those people will come in and apply for a building permit, as well. ACTING CHR. DAVID: Thank you, Ms. Poindexter. Anyone else? No? Mr. Chung, are you done? Okay, thanks. Since everyone's done, gentlemen, thank you so much. In fact, before you gave us that little position of the department, I really had some serious questions about the intent, and whether this was enforceable, number one, and how much work it actually would add. I respect Ms. O'Hara's intent to take care of her district, but just in Kona alone, we have so many CC&Rs. Almost every subdivision has one. The volume of work that this piece of legislation would entail is humungous. So, thank you for that. Because I think the idea that Ms. Lee Loy of putting it in your instruction booklet, and keep it out of the process, the County process. Even if it's a little note on the application, I don't feel that we should post anything. Instruction booklet, like you said. Keep it separate, because this is a separation of authority and responsibility, and we don't want to go there. So, thank you very much gentlemen for your input. You want to say something before I take the vote? MS. O'HARA: Well, yeah, I do. ACTING CHR. DAVID: Okay, go ahead. MS. O'HARA: I withdraw the measure. It's a bill. Withdraw the bill, 199. ACTING CHR. DAVID: Thank you very much, Ms. O'Hara. Page 11 PWPRC-26 Withdraw Bill 199: October 16, 2018 Ms. O'Hara announced the withdrawal of Bill 199. MS. O' HARA: And just again, thank you guys. I do agree, the guidelines seem to be a very appropriate place to be discussing this, and getting into the hands of the consumers as early as possible. Yeah, thank you. CHR. DAVID: Thank you very much, Ms. O'Hara. So, Bill 199 has been withdrawn. I believe that concludes our agenda items for today. May I please have a motion to adjourn? ADJOURN- There being no further business, at 3:53 p.m., Ms. Poindexter moved to adjourn MENT: the meeting. Seconded by Mr. Richards and carried by the following voice vote: Ayes: Committee Members Chung, Eoff, Kanuha, Lee Loy, O'Hara, Poindexter, Richards, and Acting Chair David — 8. Noes: None. Absent: Committee Member Ruggles — 1. Excused: None. ACTING CHR. DAVID: Thank you very much, everyone. Approved: Public Works and Parks and Recreation Committee MD/na //- 0/- 16 (Date) Page 12