HomeMy WebLinkAboutMIN PC 2018/10/16 (2016-2018)Committee on Planning
34th 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 Planning was called to order at
ORDER: 9:44 a.m., in the Council Chambers, Kailua-Kona, by Ms. Karen Eoff, Chair.
ROLL CALL:
Present: Ms. Karen Eoff, Chair
Ms. Eileen O'Hara, Vice Chair
Mr. Aaron S. Y. Chung, Member (came in later; videoconference from Hilo)
Ms. Maile Medeiros David, Member
Mr. Dru Mamo Kanuha, Member
Ms. Susan L. K. Lee Loy, Member (came in later)
Ms. Valerie T. Poindexter, Member
Mr. Herbert M. "Tim" Richards, III, Member
Absent & Excused: Ms. Jennifer Ruggles, Member
STATEMENTS
FROM THE
PUBLIC ON
AGENDA ITEMS
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 and came forward when called by
the Chair:
Matt Middlebrook
Sherry Rockwood:
Richard Henderson
Sarah Moon:
(representing Leleiwi
Community Association)
Mike Drutar:
(representing West
Hawaii Association of
Realtors)
Bill 108, Draft 4 (Comm. 739.83), comment.
Bill 108, Draft 4 (Comm. 739.83), in opposition.
Bill 108, Draft 4 (Comm. 739.83), in support.
Bill 108, Draft 4 (Comm. 739.83), in opposition.
Bill 108, Draft 4 (Comm. 739.83), in support.
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October 16, 2018
Marissa Ashley: Bill 108, Draft 4 (Comm. 739.83), in support.
Pamela Small: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Jon Olson: Bill 108, Draft 4 (Comm. 739.83), comment.
Robert Golden: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Patti Pinto: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Dennis McFerrin: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Harry Kim: Bill 108, Draft 4 (Comm. 739.83), comment.
Edward Rapoza: Bill 108, Draft 4 (Comm. 739.83), comment.
Charla Thompson: Bill 108, Draft 4 (Comm. 739.83), in support.
Dana Butler: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Tara Frazier: Bill 108, Draft 4 (Comm. 739.83), comment.
Claudia Rohr: Bill 108, Draft 4 (Comm. 739.83), comment.
Louisa Lee: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Stathie Prattas: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Stephanie Donoho: Bill 108, Draft 4 (Comm. 739.83), in support.
Jordan Sonner: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Chris Yeaton: Bill 108, Draft 4 (Comm. 739.83), comment.
Jaerick Medeiros Garcia: Bill 108, Draft 4 (Comm. 739.83), in opposition.
(representing Pepe`ekeo
Community Association)
Rick Henry Cabados: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Peter Anderegg: Bill 108, Draft 4 (Comm. 739.83), comment.
Kyle Jones: Bill 108, Draft 4 (Comm. 739.83), in opposition.
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Rourk Reagan: Bill 108, Draft 4 (Comm. 739.83), comment.
Dennis Doland: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Adrian Farrell: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Axel Kratel: Bill 108, Draft 4 (Comm. 739.83), in support.
Suzanne Kilner: Bill 108, Draft 4 (Comm. 739.83), comment.
Rachelle Onaka: Bill 108, Draft 4 (Comm. 739.83), comment.
Sean Davis: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Bob Hoxsie: Bill 108, Draft 4 (Comm. 739.83), in support.
Ranae Bumsey: Bill 108, Draft 4 (Comm. 739.83), comment.
Lani Kahawai`i: Bill 108, Draft 4 (Comm. 739.83), in opposition.
Joey Roth: Bill 108, Draft 4 (Comm. 739.83), comment.
CHR. EOFF: We're going to close public testimony and I'm going to take about
a seven -minute recess, and then, when we come back, if no one objects, I'd like to
take the rezoning bill out of order. It's Bill 200 and before we go into discussion
on Bill 108, we'll take care of Bill 200 first. I would urge you to stay if you can
because just so we can address some of the issues that were raised and get a
better understanding all the way around. So, we're in recess. Thank you.
Recess: At 11:40 a.m., the Chair called for a recess.
Reconvene: The meeting reconvened at 11:59 a.m.
CHR. EOFF: Council Members, I'm taking the meeting out of recess. We will
go to Bill 200. Mr. Clerk.
COMMUNI- The Chair directed the Committee to proceed to the next order of business,
CATIONS: Communications.
(There were none.)
ORDER OF The Chair directed the Committee to proceed to the next order of business,
RESOLUTIONS: Order of Resolutions.
(There were none.)
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Change Order As directed by the Chair and with no objection from the Council Members, the
of Business: following item was taken out of order:
Bill 200: AMENDS ORDINANCE NO. 04-110 WHICH RECLASSIFIED LANDS
FROM OPEN (0) TO INDUSTRIAL -COMMERCIAL MIXED (MCX-20)
AND GENERAL INDUSTRIAL (MG -la) AT HONOKOHAU IST AND 2ND
NORTH KONA, HAWAII, COVERED BY TAX MAP KEY: 7-4-008:013
AND 030
(Applicant: West Hawaii Business Park, LLQ (Area: 196.63 acres)
The Leeward Planning Commission forwards its favorable recommendation for
this amendment to Condition K (Roadway Improvements). The amendment
would increase the acreage of land that may be developed, from 10 acres to
48.4 acres, before the construction of Kamanu Street is required.
Reference: Comm. 1098
Intr. by: Ms. Eoff (B/R)
Motion to Approve: Mr. Kanuha moved to recommend passage of Bill 200 on
first reading. Seconded by Ms. Lee Loy.
CHR. EOFF: Mr. Richards.
MR. RICHARDS: Thank you, Chair. I'm going to be recusing myself from this
vote. This property is owned by Lanihau Properties and it has a sister company,
Palani Ranch, which I serve on the Board of Directors. But I'd like to ask my
fellow Council Members if it's okay if I participate in the conversation.
CHR. EOFF: Okay. If there are no objections and there's nothing that the Clerk
has to offer on that, Mr. Clerk?
MR. HENRICKS: No. Of you accepting Mr. Richards' excuse from voting.
Thank you.
CHR. EOFF: Yes, I'll accept Mr. Richards' need to be recused from voting.
MR. HENRICKS: Okay, thank you. And as far as him participating, he made the
request—can discuss and that's up to you folks.
CHR. EOFF: And that is due to a conflict of interest.
MR. HENRICKS: Correct. So, he's made the request to his fellow Committee
Members if he can discuss but not vote, and I believe that's up to you folks.
CHR. EOFF: Okay. Well, I don't hear any objections at this time, so, we'll move
ahead. Here in the chambers, we have the applicant representative, Riley Smith,
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as well as Bill Moore the Planning Consultant. Could you please come to the
table in case we have questions? I guess it would be helpful if you could just
provide a brief summary so we are all on the same page.
(Note: At this time, Applicant Representative Riley Smith and Planning
Consultant Bill Moore came forward to address the members of the
Committee.)
MR. SMITH: Good morning, Committee Chair, Karen Eoff and Council
Members, my name is Riley Smith, I'm the President of Lanihau Properties. Just
to give you a little history on our company, I think most of you are familiar with
the Greenwell family. We've owned this property since—for 168 years since
1850. Our family and their interactions in the community go back many years.
Palani Ranch, as well as Palani Road is named after Frank Greenwell, one of the
founders of our company, so, we have a lot of history in North Kona. The history
on this land is that it was entitled back in 2004, went through the EIS
(Environmental Impact Statement) process in 2003, obtained the state land use
district boundary amendment in 2003, and the change of zone for 2004. We've
tried over a number of years to market this property so that it could be improved
into the zoned commercial and heavy industrial classes. We're a passive
landowner, we're not a developer.
What we've tried to do is improve the value of our lands through entitlements as
well as offsite infrastructure. What we've accomplished since 2004 is we've
dedicated a one million gallon well as well as storage reservoir on our property
that would serve all of our entitled lands. We've also coordinated with the State
Department of Transportation on the recently completed Queen Ka`ahumanu
Highway improvements, and if you've driven on that corridor, you've seen the
new traffic signal that provides safe access to our lands.
In the original zoning ordinance, we had 243 acres of land that were entitled.
What we've tried to do is to find an active partner with that property so that they
could put in the vertical infrastructures, one of the roadways to complete the
project. We've been unsuccessful in doing that. At first, we tried the 243 acres
and then we down scaled that slightly and tried to sell one of our parcels, which is
parcels 748-76, which is a 95 -acre portion of that 248 three -acre parcel.
And again, we ran into resistance from interested parties because of the cost of the
infrastructure of Kamanu Street that would be required before we could build, or
before they could build Kanalani Street and south and north access roads, which
would provide direct access to the developed parcels.
So, our current strategy is to work with the Planning Department, the Leeward
Planning Commission, and modify a section of the existing zoning ordinance that
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would allow us to subdivide a 48 -acre portion of these entitled properties and
build needed infrastructure. This needed infrastructure would connect to the
existing, recently built traffic signal at Queen Ka`ahumanu Highway, and provide
a direct connection to Kanalani Street by the Spectrum central office located
within the Koloko Light Industrial area.
One of the other significant improvements that would benefit the community is
improve safe and direct access to all of the customers and patrons of the Kaloko
Light Industrial area, especially those that patronize Costco and Home Depot and
are trying to find a safe means of egress from this development area to go south.
They would be able to take that back exit out of Costco and Lawehana Street to
Kanalani, to get to the traffic signal, and it would provide an additional safer
means to exit the Koloko Light Industrial area.
With me is our Planning Consultant, Bill Moore. Bill, did you want to add
anything?
MR. MOORE: Yeah, just one thing. The original zoning really took into account
the need for Kamanu, and at that time, there was no connection between Hina
Lani and Kealakehe Parkway. So, the zoning was predicated on triggering the
Kamanu Street extension. A number of things happened since then. One is
Ane Keohokalole has been built and now provides an interregional transportation.
So, Kamanu Street extension went from a regional need to a now localized need.
So, the need for it really has diminished.
With the widening of Queen Ka`ahumanu Highway, now, there is a fully
functional signal that doesn't go anywhere. This project would then provide the
impetus to extend that to tie to Kanalani, providing another access, both for the
quarry area, which will be using that signal anyway, but, for Kaloko Light, it
really helps them.
The other thing to keep in mind is the triggers for Kamanu Street is still there. So,
once this 48 -acre is developed, to do anything else, Kamanu Street has to be built.
So, it doesn't eliminate a need, it just defers it or pushes back while another really
necessary infrastructure system is being provided.
MR. SMITH: Also, if I could add, we did have a number of outreach meetings.
We invited all of the existing business owners at Kaloko Light Industrial as well
as the Honokohau area where the Tesoro gas station, Kona Trans, and Kaiser
Permanente is. There was pretty much wide -spread support for this project. I
think everyone would appreciate the additional means of access into this very
busy area in our community.
MR. MOORE: Again, if there are any questions, more than happy to respond to
any.
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October 16, 2018
CHR. EOFF: Thank you very much. Council Members, do you have questions?
Ms. Lee Loy?
MS. LEE LOY: Thank you, Chair. Thank you, Mr. Moore and Mr. Smith, for
being here. I usually just ask this of all applicants. The various conditions of
zoning provided for in Bill 200, you guys have read through that and accepted the
conditions as outlined in the bill?
MR. MOORE: Yes.
MS. LEE LOY: Okay.
MR. MOORE: I do want to point out, if you look at the history, there has been a
whole bunch of amendments going back and forth. Some we agreed with some
we didn't agree with, but I really want to acknowledge the Planning Department
and the Director in working with us to come up with what we think is a
reasonable approach and conditions. So, yes, we have read them, we've
negotiated them, and we're fine, we can live with them.
MS. LEE LOY: I like that answer. Thank you, I yield.
CHR. EOFF: Thank you, Ms. Lee Loy. Any other comments or questions?
Mr. Richards.
MR. RICHARDS: Thank you, Chair. I just want to offer a little bit of
perspective. As I said, I'm recusing myself from the vote. As Mr. Smith pointed
out, this is a piece of property that has been owned and managed by a local family
for 160 plus years. The intentions are being followed. The direction for
developing the whole area is a big bite, and for a variety of different reasons, it
hasn't gone forward. The intention is still to go forward but just taking a smaller
bite, initially. So, with that, it's in keeping with what we are trying to do and
what the families are trying to do to take care of things. So, I'm supportive of
this, and I just want to speak from that perspective because it's the right direction.
It's the right direction for Kona and it's the right direction for the landowners as
well. So, I encourage my colleagues to consider that. Thank you.
CHR. EOFF: Thank you, Mr. Richards. Ms. David.
MS. DAVID: Thank you, Chair. I just wanted to thank Mr. Moore and
Mr. Smith for actually doing the reach out because that area, or this area that we
speak of, I think it has a huge community benefit, given the fact that now there is,
and will be, an option of getting out of the Kaloko Light Industrial area, which
everyone knows, is much needed. So, I just wanted to thank you for coming by
and explaining this process to me, and I support this because of the community
benefit that you folks are providing in Kona. Alright, mahalo.
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CHR. EOFF: Okay, thank you. I'm going to add my support. I think some of
these basic improvements that you will provide going forward is actually much
needed and fits the area as proposed. So, we'll go ahead and take a vote. All in
favor of approving Bill 200 and moving it to first reading with a positive
recommendation, please say "aye."
Vote on Bill 200: The motion to recommend passage of Bill 200 on first
(Approved) reading was carried by the following voice vote:
Ayes: Committee Members Chung, David, Kanuha,
Lee Loy, O'Hara, Poindexter, and
Chair Eoff – 7.
Noes: None.
Absent: Committee Member Ruggles –1.
Excused: Committee Member Richards –1.
CHR. EOFF: Bill 200 will go to first reading with a positive recommendation.
Thank you for being here. Thank you for waiting through this morning's
testimony. Okay, Council Members, at this time, I'm going to need to relinquish
the chair. I'm the Chair of the Planning Committee but because I'm a co-sponsor
of Bill 108, I need to relinquish to our Planning Committee Vice Chair,
Eileen O'Hara. So, let the record show that I have relinquished the chair.
Relinquish Chair: At this time, the Chair relinquished the chair to Acting Chair O'Hara.
ACTING CHR. O'HARA: Thank you, Chair. Please let everything reflect that
I'm assuming the chair of this committee, somewhat reluctantly, given our
procedures. We have already read in bill—Clerk.
MR. HENRICKS: Madam Chair, I can just read it in and then there will be a
motion on the floor and then we will be ready to go.
Return to Order The Chair directed the Committee to return to the order of business.
of Business:
BILLS FOR The Chair directed the Committee to proceed to the next order of business, Bills
ORDINANCES: for Ordinances.
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Bill 108: AMENDS CHAPTER 25, ARTICLE 1, ARTICLE 2, ARTICLE 4, AND
(Draft 4) ARTICLE 5, OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS
AMENDED), RELATING TO SHORT-TERM VACATION RENTALS
Defines where short-term vacation rentals would be allowed, establishes
regulations for their use, and provides a way for an owner or operator to obtain a
nonconforming use certificate that would allow them to operate in a non -
permitted district.
Reference:
Intr. by:
Postponed:
Referred to Planning Director
and Planning Commissions:
Comm. 739.83
Ms. Eoff and Mr. Kanuha
May 8, June 5, and 18, 2018
July 24, 2018
(Note: There is a motion by Ms. Eoff, seconded by Mr. Kanuha, to recommend
passage of Bill 108, as amended, on first reading.)
;and
Comm. 739.308 From Mayor Harry Kim, dated September 27, 2018, transmitting the Windward
and Leeward Planning Commissions' favorable recommendations, with
suggested revisions as recommended by the Planning Director and Commission.
(Note: Comm. 739.310, from Council Members Karen Eoff and Dru Mamo
Kanuha dated October 12, 2018, transmitting proposed amendments to
Bill 108, Draft 4, was circulated.)
ACTING CHR. O'HARA: Thank you, Deputy Clerk. Ms. Eoff, would you like
to deal with the communication?
MS. EOFF: Thank you. Mr. Clerk, just a question. So, the motion on the floor is
already there for Bill 108, does that include all related communication such as
739.308 from the Planning Department, or do we have to motion for that?
MR. HENRICKS: No, there's no additional motion necessary to deal with the
informational memo from the Planning Department and Planning Commissions.
MS. EOFF: Okay, thank you. Then, Council Members, I'm going to ask the
Planning Director to come forward, and I believe in Hilo, we have the Deputy
Planning Director Daryn Arai. Director Yee is here, and I think Ron Kim, as far
as Corporation Counsel is also in Hilo.
Before I turn it over to the Planning Director to give us a background report on
the background report and the recommendations, I'd just like to say a couple of
words and then I'll give the floor over to Director Yee, and that's just to thank
everybody for being here today, for all the testifiers who have continued to weigh
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in and take part in this legislative process. I'd also like to thank the department
for all of their work and time devoted to this bill, and to the Mayor. Both
Planning Commissions took a serious look at draft four and provided
recommendations along with the Director's recommendation.
So, just to let everybody know, the process required that and now that has been
taken care of, a couple months have gone by since it was last here at the Planning
Committee. Now the bill is back on our table and work that's gone into it during
this time was to try and incorporate recommendations. Some things that had been
overlooked, some things that just needed further clarification, some things that
actually needed some revision, and those are what we are going to be discussing
today.
I just would be remissed if I didn't thank the Legislative Research staff in the
Legislative Branch as well. Because to take in all of that recommended changes
and produce a Ramseyer version of a proposed amendment was a big task, and
Leslie Chow did a very careful and expert job at providing this Ramseyer
information so that we can begin talking about the recommendations. But first,
we'll just turn it over to Director Yee.
(Note: At this time, Planning Director Michael Yee came forward to
address the members of the Committee.)
MR. YEE: Thank you. Michael Yee, Planning Director. Council Woman Eoff
just took care of some of the thank yous I wanted to make, but yes, there are a lot
of people behind -the -scenes on this bill over a year now of having to review. I
want to highlight some of them because they are behind -the -scenes in some cases.
The Planning Commissioners, both Planning Commissions were able to get
through this with one meeting, which helped to bring it back here as quickly as
possible. Planning staff, Jeff Darrow and Maija Jackson, did an incredible
amount of work to craft and to revise language. Certainly, Deputy Director Daryn
Arai had a lot of hands on this. Again, Leslie Chow, even Jon had some
comments. Mayor's office, Roy Takemoto and Nancy Pisicchio has continued to
put input through all the Planning Commission input. And finally, I appreciate
the Mayor coming out to speak at the Planning Commissions and today. He's
really been vocal about the need for this bill and I would agree with that.
Just to highlight where I think the Mayor is trying to go, is he's trying to ensure
that what has made Hawai'i special continues to be special. Hawai'i was special
way before vacation rentals came into play. So, how do we find that balance?
Again, zoning is about where you want things, somebody read a zoning
description. I think I need to talk to her about a job because that's the basics of it,
that there are places—we want things in places that you don't, and it is certainly a
balance that many cities have struggled with. Paris, New York, Santa Monica,
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every major tourist town is again, looking at how to find the right balance. So,
the idea of not striking a balance today or finding a path would be a mistake.
Anything we're trying to do will be imperfect, but we knew that. There have
been many times I have been here testifying that this is part one. There's going to
need to be a part two. We are addressing unhosted rentals today, there'll be a
time when we have address hosted rentals in the future. We'll need to address ag
land, ag tourism possibly, and how that all fits together. I think a lot of folks
don't quite get that state law prohibits us from overnight accommodations on ag
land. The reason why we didn't try to bite off in this bill is we would need
changes at the state level, so, we were trying to bite off what we can handle at the
county level for now.
There are clearly ag areas that should be considered. How we try to address that,
we'll have to be careful about. As a Planning Director who has every decision to
scrutinize and take into Board of Appeals or contested, I also have to be careful
about trying to do something that the Council has to back me up with Corporation
Counsel when we're trying to be sued for one reason or another. We have to be
careful about the steps that we're going to take with ag land.
I want to highlight, really quickly, some of the recommendations that came out of
the Planning Commission, because that was the next step when we came out of
Council a couple months ago. That was about going back to the Planning
Commission and hearing what their recommendations are, not going specifically,
but there were some general things. One was the increase of the registration fee
from $250 to $500. As much as somebody wanted to paint it like I was, it had a
jedi mind trick to get somebody on the Commission to go to $500, that was
something that was put forth from Windward Planning Commission, and certainly
not debated with the Leeward Planning Commission.
I think the other really big thing is enforcement. Again, people had to learn that
enforcement will be a detail in us reviewing rules and procedures around this bill.
So, we can't address every step we try to do in this bill, that this is not the place.
It will come down to rules and procedures. There will be a public hearing on that.
So, there are those rules.
There's also, you know, I've said many times that I'm going to need additional
staff if we're going to enforce this. It helps certainly that there will be a special
account that helps fund that, but whether or not that's enough or not, we're going
to have to see when it comes to budget time. But I am already preparing a
supplemental budget request to Finance, to be able to enact processes when this
bill passes.
Based on the Leeward Planning Commission recommendations, we've deleted
having RS -zoned areas in resort nodes from having to get a non -conforming use,
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which I think pleased a lot of folks. Also, within that, we fixed the condo hotel
issue with the language we added for RM's (Multiple -Family Residential district),
so, I think that dealt with some things we had not quite thought about. But I
think, again, that was an excellent example of how democracy works. We have
public hearings, we hear things, and then we make adjustments.
Then there were a couple of Director recommendations that I made. One was to
put CV (Village Commercial district) into the zoned areas. We did not include
CN (Neighborhood Commercial district) and that was intentional around
preserving areas for things like 7 -eleven's and those types of businesses that we
want in neighborhoods and not just vacation rentals, and that was intentional.
I think lastly, we just wanted to reiterate where we stood on special permits and
ag lands that were really restricted from overnight accommodations by the state.
So, that's a quick summary.
MS. EOFF: I believe I still have the floor, so, I just wanted to ask for a little bit
of clarification. With the issuance of non -conforming use certificates though, if
theI believe this is correctly stated in the bill, that if the lot was created prior to
1976, we would be able to issue a non -conforming use certificate for those. Is
that correct?
MR. YEE: That is correct.
MS. EOFF: Okay, I just wanted to make sure that's clear. My understanding is
that most of the lots, especially in the Puna area and Volcano, were all created
prior to 1976, so they should all be eligible.
MR. YEE: Correct.
MS. EOFF: Okay. What I was thinking might be beneficial, and maybe
Mr. Kanuha might have something to say, too, about this, but if it would help
Council Members to go through some of the changes one by one, we can do that
and then ask you questions if there are any. Would that be all right? Or one way
to proceed? I don't know. It's kind of a lot of information to digest, I know that.
So, I was just going toI do have notes that my staff prepared where all the
changes are.
MR. YEE: Okay.
MS. EOFF: So, as you stated—well first of all, I'd like to explain why CDH
(Downtown Hilo Commercial district) was removed from this. Wait, I'm sorry, I
need to ask the Council to consider amending with Communication 73 9.3 10
before we can discuss that, correct? Okay, let's do that. I would like to ask my
colleagues toI'll make the motion to consider amending Bill 108, Draft 4, with
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the contents of Communication 739.310. This communication incorporates
okay, so that was a motion and a second. Yeah, that's a motion.
Motion to Amend: Ms. Eoff moved to amend Bill 108, Draft 4, with the
contents of Comm. 739.310. Seconded by Mr. Kanuha.
ACTING CHR. O'HARA: Go ahead, Ms. Eoff
MS. EOFF: And the reason I'd like to do that is because this draft has been much
improved; recommended changes are added. It's not to say there can't be more
amendments, there could be certain things that we want to continue to talk about,
but I think it's a much cleaner place to start. So, I urge you to support amending
with Communication 739.310.
ACTING CHR. O'HARA: Alright, thank you, Ms. Eoff Mr. Kanuha, do you
have any comments on the amendment?
MR. KANUHA: Maybe Ms. Eoff can explain a little bit more about all the
amendments that are taking place within this amendment. I know a lot of these
came out through the Planning Commissions and the work that they took to
review a lot of this and hearing from the public about, you know, all the little
nuances. We'll always say the devil is in the details and something like this bill,
everybody is exactly correct. So, a lot of the details that might have been
overlooked or might have been refined have come through these amendments, and
it is a pretty substantial amendment being that we took a lot of the points from
both Planning Commissions and added it within this one amendment.
So, I hope the Council had enough time to review a lot of this. There are not a ton
of substantial ones, but really trying to refine what we currently have. Sure,
there's the addition from or the adding from $250 to $500, that's something that
we debated previously. Whether that's a reason to vote against it or not, I don't
think so because it's just a dollar amount. But we've heard from the community
that for some people, it might be a little bit more substantial than others. So,
that's something that we can look at.
Of course, the—what else? If there are any question as to how we got to this
point or the reasoning behind this amendment, please ask us. But this came about
from all of the conversations and through the Planning Commissions and the
Planning Department, and of course the community that has given us a lot of
these—how we should move forward with this or not move forward with this. So,
I'll just state that for now and leave it up to the rest of the Council to discuss this
particular amendment.
MS. EOFF: Madam Chair, can I just ask for some leeway to address some of
the?
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ACTING CHR. O'HARA: Yes. Can you identify how we're going to deal with
it because we've got a lot of amendments that were just shared with the rest of
Council yesterday. I've tried to read through them as carefully as possible. Are
we going to be addressing this in one action or?
MS. EOFF: Well, I'd like to go through it and see what kind of discussion we can
start to have and then take it from there.
ACTING CHR. O'HARA: I think that works.
MS. EOFF: Like Mr. Kanuha said, some of them are not really substantial,
they're either organizing the bill a little bit differently or clarifying certain things.
But I just wanted to state that somebody earlier talked about the CV. If you just
start on the first page of this communication, we can see the Ramseyer
information. So, CV was added so that permits are not required in that district.
And, as the Director stated, oh no, he didn't, but I wanted to state that the CDH,
which was the special, downtown Hilo district, which was always meant to be
included in the permitted areas, we had to remove it. But it's only a temporary
removal. We intend to come back with the amendment once this ordinance is
adopted. The reason we had to remove it is eagle eyed Deputy Clerk realized that
we had never stated in the title of the bill that we were amending article seven.
That's where the CDH comes in. So unfortunately, that was sort of a clerical
error, but we're not allowed to address it in the bill if it's not noted in the title. I
just wanted to explain that.
Then, if you look to page two on the Ramseyer amendment here, you'll see that—
after hearing from the Leeward Planning Commission, we had long discussions,
and also hearing from quite a few others in the community who manage the
condominiums that are formed under state law 514A or B, and many of them on
Alii Drive, of course, we've heard about, we decided to include that use, as long
as the condo is governed by that HRS (Hawai`i Revised Statutes), then it would
be an allowable use. In other words, they wouldn't need a non -conforming use.
Going further down regarding—the Director addressed the ag issue, so, I just
wanted to make it clear again that if the ag lots were created prior to 1976, we are
able to issue a non -conforming use certificate and we do need to deal with the
state on changing some of the provisions of state law. I heard a good suggestion
today about looking at the ag tourism on our island as one mechanism. That's the
kind of thing that we may have to come back with later.
Requiring the registration of all short-term rentals, somebody brought up that he
thought that would mean then even the hosted ones, but we're only referring to
bills defined in, I mean units defined under this bill, which clearly states that
short-term vacation rentals are those unhosted, under 30 days, where there's no
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owner on site. So, the registration at this point only is a requirement of that type
of rental.
Changing the fee for registration from $250 to $500, this is something I think we
can go back and discuss. We tried a sliding scale previously because of issues
with some people having a financial burden, especially in Puna, but we were told
that we can't do a sliding scale. So, we have to keep that even across the board
since it's not a tax, it's actually just a processing fee. Now, we did reduce the
non -conforming use certificate renewal fee to $250. So, going forward, the yearly
renewal would be $250. The $500 is a one-time fee.
Okay, we wanted to make it clear that non -conforming use certificates, or
actually, any short-term vacation rental must be within a permitted dwelling. So,
if that house had a final building permit issued, then they're good to go.
Taxes must be paid in full up to the date. Also, I'd like to just mention that the
registration process needs to be started within 180 days after adoption. So, their
six-month period where somebody needs to get into the system, they would need
to at least put in a request. It doesn't mean that the whole process would have to
be finished within 180 days. Can I ask for a little bit more time? Okay, thank
you.
With the non -conforming use, there's a requirement on page three that's added
that the director should be notified if it permanently ceases, meaning that the
activity is no longer going to be used in a short-term vacation rental. Under
standards, we've changeda recommendation that came was not clear that the
noise requirement might have prohibited gardeners from doing their lawn jobs or
leaf blower noise, so that, we removed. There was a change where the
registration has to be displayed, but the registration and the non -conforming use
certificate, that just describes where they need to be displayed.
Regarding complaints, the Director has said previouslyI heard a very good
explanation at the Planning Commission that you would begin to—this bill would
require you to maintain a list of all short-term vacation rentals that have been
registered, which would be helpful in a lot of ways, not only for property tax or
GET (General Excise Tax) and TAT (Transient Accommodations Tax) but just so
that when people are having issues, you know, whether they're registered with
you.
There was a question about whether we actually removed the requirement fee to
adopt rules, but we're trying to keep the bill as tight and concise as possible. Our
attorneys have said that the requirement of adopting rules is inherent already in
the Code in another sections, so, we don't need to restate it. But you are
currently, I'm understanding in the process of drafting rules and once the bill was
adopted, you could finalize the rules. That is where a lot of the details would be
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provided to people who need to register or look upon requirements, that there
would be a link on the website in the future where the rules would be there and
the process for registration would also be available. So, the steps that people
would need to take would be easy to access.
We do need to have proof of prior use for the non -conforming use certificate.
That really hasn't changed. On page five, there's a change. It talks about
verification of complaints. These would be reasons for not issuing a non-
conforming use certificate. That's not anything that would be a frivolous
complaint. These complaints would need to be verified by either a notice of
violation, a police report, complaints that are actually something that the Planning
Director would have become aware of and the problem didn't go away. I don't
think that in any way, shape, or form, the Director would just begin to take in
frivolous complaints that could shut somebody down. So, I think you talked
about that at the Planning Commission in detail. You might want to address that a
little bit more thoroughly after I go through this.
So, the ag land we've addressed but we can, I'll say it again, issue the non-
conforming use certificate on lots created prior to 1976. If there is a denial, the
person would have to receive a letter from the Director and there's also an appeal
process if they wanted to within 30 days. As was stated, these fees or fines would
go into a vacation rental enforcement account, which will help being able to
afford enforcement for this bill.
There has been some question about what reachable means, and we broke that up
into two sections; you'll see that on page seven. So, we need to try to make it
clear that reachable means that within one hour, someone should be able to
answer the phone if there's some reason to make a call. But, the requirement to
be present, it just means that they would need to be able to get to the property
within three hours. The Big Island is pretty big and someone—it doesn't mean
that they have to come to that place every time but just that they are within three
hours, in case they need to show up.
Page eight is where—starting on page eight is where you just see changes to the
Code. So, everywhere in our Code, we do have allowable uses within different
zoning districts. So, this is just where amendments to the Code, it's just a, what
do you call it? I lost the word right now, but, it's just an added use that's under
each of the zoning districts.
Okay, so that's about all I had to go over the amendments. I think one other thing
I just missed but I want to talk about is the definition. Besides the definition of a
short-term vacation rental in this bill, are unhosted, no owner on site, and under
30 -day rental, and it does not apply if this dwelling is your primary residence as
defined under the Internal Revenue Code. A primary residence is where you live
at least half of the year and it's where you make it your property tax exemption
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and homeowners' exemption. So, if it's your primary residence and you have a
vacation rental there, it is not covered under this bill, it's not being regulated.
Before I relinquish, I would just like to say that I do urge my Council Members to
consider adopting or voting for this amendment with possibly after some
discussion and some changes. But, to keep this bill moving, I think it's really
important that we do finish this up this term and I do believe that we will be
looking again in the next year on some of the tweaks that we are bound to
discover after we put these tools into place. One of the main things I'd like the
Director to address, maybe not right now with me but before we close here on this
discussion, is some of the ideas for the Director's ability to either legislatively or
administratively look at some of the solutions for lost vacation rentals due to the
natural disaster. I think the way it's worded is natural amendment disasters, but in
this case, I think we need to address some of the issues that are happening in
Puna, and maybe some of the ideas that you might be considering over the next
few months on how to help restore the economic vitality that the vacation rentals
create there.
So, I'm not going to talk about it now, but I just wanted to make sure that we do,
and I'd just like to say, in general, this bill was in no way to ban vacation rentals.
We were trying to protect neighborhoods and trying to balance everybody's
needs. It's been stated very well, better than I can by our testifiers that that is our
goal. It's not to put any negativity on either side of this issue, but basically to
bring everybody to where we can find a working solution.
There was great testimony today and I think we will continue to discuss issues
that were raised here, but keep in mind that we do have to start somewhere.
We're the only county in the state that doesn't have any regulation. We do want
to keep the residents who own property as a residential purchase, that they're safe
also for the peace of mind and peace and quiet and what residential
neighborhoods are here to provide. So, it has been very difficult because we do
find a lot of short-term vacation rentals already in existence. So, we're trying to
deal with it fairly. I mean the gambit of opinions is from very large range
between them, to where some people believe that they're already considered
illegal. So, we're trying to take a road that our attorney has briefed us on that
right now, that's why we're looking at the non -conforming use as a fair way to
balance going forward. Okay, I will yield the floor.
ACTING CHR. O'HARA: Okay, thank you. Mr. Kanuha.
MR. KANUHA: Thank you, Madam Chair, and thank you, Ms. Eoff, for
explaining all of the different amendments to this bill. I just had a question for
the Director or maybe for the Deputy Director. I know a lot of people here have
been testifying about wondering what's going to happen with their vacation rental
on ag land. Can you kind of go through the process of how you guys are going to
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go through those that want to get a non -conforming use certificate? If they don't
know if their property or their lot was created prior to 1976 or if it was created
afterwards, is there a process by which you guys will go through to verify when
those properties, those lots were created? I know this is something, an issue that
we've all been, or a huge amount of the community is really confused about, so,
can you kind of go through what's going to happen with that?
MR. YEE: So, without having all of our procedures outlined, I want to be sure
that this is not set in stone here, but let's take for instance, a lot, trying to
determine a lot whether or not on ag land if it was pre -1976 or not. An applicant
would come in with their application package, submit all their information that we
would request from them, then we would try to make a determination from that.
If they certainly feel as if they're in a pre -1976, if it's not clear to us via our
zoning information, we would certainly give an opportunity to be able to get more
information from the applicant. That could be for any issue regarding their
application, that there is a period to provide additional information and get to
whether or not they're viable or not.
Although we do not have a comprehensive GIS map that right now, we would
show everybody to say, "Hey, if you could look up your property and you're
exactly here, we don't have that map that exists today." Will we have a list and
an ability to be able to determine when their subdivision was created, we'll have
that by the time people come in and have to get registered. But we don't have an
easy map that somebody could read right now online.
MR. KANUHA: Thank you for that. That's some of the, not some of the issues,
but a lot of people's worry. And we understand, you know, ag land, what it's
there for and we understand why the state law is the way it is in not allowing
overnight accommodations on state ag land. But we want to be clear for those
who are currently doing short-term vacation rentals on these pieces of land and
now we're just stating what state law is, following state law correctly.
MR. YEE: So, just to be crystal clear, if you're on ag land, post 1976, and you
bought a piece of property, built a home that was just meant for vacation rental,
you never did farming activity and you are not farming now and you just created a
full-time vacation rental, you did so against state law. So, it's a sticky situation
now where, yes, you can come in and submit for a special permit, but there's
going to be a period here where I may have to continue to reject them or at least
have an unfavorable recommendation as they go to a Planning Commission.
But we also are in debate with the state land use around, and we heard some of the
testimony, around ag land that's not quite ag land, right? And we get that. We
get that there are lots of parts of Puna that should be rural areas probably. Again,
so, trying to tweak the vacation rental bill around all that becomes a somewhat
philosophical way how you want to approach it. Certainly, as a planner, I would
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suggest that we rezone large areas, we create the overlay areas such as Volcano,
possibly in Puna. So, although we may not call them a resort node, we're creating
nodes where we want things to go. Again, it's about where we want things to go.
In this first round, we were trying to determine where we didn't want them to go
There's been testimony around trying to kill the growth. Basically, if you're
doing it now, you can continue to do it. So, we haven't tried to restrict the
growth. There was testimony around trying to take the number of non-
conforming number and as people subtract from that, then add to it, you're
missing the point to a non -conforming use. That's exactly what it means, you
don't conform. We're trying to end it in that area and trying to put it into the
areas that we want it in. So, the idea of saying we subtract from non -conforming
use and we should then add back to non -conforming use, that goes opposite of
what we're trying to do then.
What's fair about the argument is where do we allow the growth? That's part
two. That's where we get into where the other areas will be. That gets into
understanding the impact of the volcano on areas and where we should have that
expansion. So, that's some of that.
MR. KANUHA: Thank you. A few other testifiers asked about—and you guys
are going to have to—if this bill passes, you're going to have to go through a
process of adopting rules from the department of how to carry out this law. Some
of the testifiers asked how they become part of that process of working with the
Planning Department and going through those rules and see how they become part
of that process.
MR. YEE: I'm going to, because I haven't gone through a rule change with the
public here, I'm going to check in with Daryn Arai in Hilo whether or not he has
experience on how we have engaged community and rule changes.
MR. KANUHA: It might be going down a further, future path, but, some of the
members that came to testify asked specifically about that.
MR. YEE: No, that's an excellent question that I think needs to be answered to
help ease people's minds about the process.
(Note: At this time, Deputy Planning Director Daryn Arai came forward
to address the members of the Committee.)
MR. ARAI: Hi. Good afternoon, Daryn Arai, Deputy Planning Director. The
department, in the process of rulemaking, needs to conduct a public meeting on
the proposed rules. We would probablyobviously, we need to do it on both
sides of the island. The notice of this meeting will be placed in the newspapers,
and we'll probably look at opportunities to post the draft rules online on the
county's website to give people at least advanced notice of the proposed rules, so
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they can properly comment upon it. So, we'll try to provide as much advanced
notice of the meetings as well as the draft language in the rules.
MR. KANUHA: Thank you, and I just ask if you can be as engaging as possible
to the public when drafting these rules as well. And not to say that it's important
that you have these public meetings to present the rules to the public, but, engage
beforehand as well so that we can make some good rules that fits for all. I yield at
this time.
MR. ARAI: Absolutely.
ACTING CHR. O'HARA: Okay. Thank you, Mr. Kanuha. Anyone else?
Mr. Richards.
MR. RICHARDS: Thank you, Chair. Director, I'm listening to some of the
testimony today, specifically with respect to the agriculture standpoint. We've all
discussed, ad nauseam, that this was going to be complex and contorted. In
reading through the HRS, and I don't think we're going to be able to get to the
end of the conversation, but, under 205-2, section (d), section 12 or line (12), it
talks about overnight agriculture activities, tourism activities including overnight
accommodations, and this was referenced by one of our testifiers and except
what's in the qualifier that it has to be a three -island county.
Where I'm going with this is obviously, our state is accepting of overnight
accommodations on agriculture land, and what I am mindful of is that our
testifiers, and this is not the first time I've heard this, this is part of a financial
planning for the family going forward. We've heard of accommodations for
planning for the retirement programs, for educating kids out of our county. So, in
looking at here, again, our state has already said, yes, we're amenable to this. I
can argue we have three islands on this county pretty easily, but the intent, I think,
is what we're discussing here. Can you comment on where we might be going
with this conversation?
MR. YEE: First, I want us to be careful that overnight accommodations are not
permitted in state land use ag district, even in conjunction with ag tourism right
now. That's been an opinion that land use commission keeps spewing out to us.
There's a debate, even internally with planning around ag land, that do we
allow—do special permits allow things that are not associated to farming activity?
But the philosophical point here is that's why it's a special permit, that the ag land
is not usable for ag land, so you do something else.
There is, then, the opinion that no matter what happens when you issue a special
permit, it has to be tied to some level of farming activity and trying to get an
opinion from the state around exactly where they want us to fall on that is what
we need to clarify with them. I think different directors over time have been able
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to kind of make their decisions based on where they felt they could go with it, but
that was an individual director's belief on that.
On separate permits, they can kind of be lost within all the activities of the land
use commission, possibly. We come out with something around vacation rentals
saying we want to allow all this to happen and land use doesn't like it, land use
commission, and we get called right away. So, it's not as easy for me to hide
around decisions of not trying to be consistent with the State Land Use
Commission.
So, Councilman Richards, I'm not sure I have a direct answer except that we
know we have a lot of ag land, some of it that's not usable for certain kinds of ag,
and so, how do we make that available for other uses? That's the question, and
we want to be sure we're consistent with the state, so not to be able to get in
trouble down the road. That may seem bureaucratic and stuff, but I also have to
look out for the interest of the county.
MR. RICHARDS: Thank you, Director. As I said, I don't think we're going to
get to the end of the conversation, but I did want to put it on the table. I yield at
this point.
ACTING CHR. O'HARA: Thank you, Mr. Richards. Ms. David.
MS. DAVID: Thank you, Chair O'Hara. Director, as a follow-up to that
question, because in reading 205 that Mr. Richards refers to, it also states that
those rules will only apply to a county that has adopted ordinances relating to ag
tourism. So, refresh my memory, is this countyI know we've discussed this
prior to us getting up on, at least prior to my being a Council Member, but have
we, I don't believe we have, right? We don't currently have ag tourism
ordinances for this county at this point.
MR. YEE: I'm going to check in with Daryn. I want to say we have something
on ag tourism. Daryn?
MS. DAVID: The only reason I'm asking is because the discussion about that, if
it only applies if we have.
MR. YEE: Yes.
MR. ARAI: Hi, this is Daryn.
MS. DAVID: Hi Daryn. Sorry.
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MR. ARAI: No, no. I wasn't sure when to jump in. Yes, we do have an
ordinance, we just simply don't have three islands, I guess. So regardless, we
lose.
MS. DAVID: I'm sorry, I was distracted, Daryn. So, what was your—we have
one?
MR. ARAI: Yes, we do have an ordinance, but at the same time, we don't qualify
because as a county, we're not recognized as having three separate islands. So
basically, that provision of state law doesn't really benefit us.
MS. DAVID: This island could never have three islands. So, it would only apply
to some county like Maui, right? So, that's where—
MR. ARAI: Right. Exactly.
MS. DAVID: Okay, that's what I'm getting at. Is there a possibility? And it
doesn't seem like for our island we would be able to
MR. YEE: Right. Sorry, excuse me. To align with state, we would need them to
add our island in at the state level. I also think there would be some tweaking to
our current ag tourism ordinance that's on the books to just make sure it's refined
in there for what the uses that we want. Again, that got back to why we didn't try
to bite off on ag lands on this bill.
MS. DAVID: Okay, so it's a state issue.
MR. YEE: Back to the state.
MS. DAVID: Maybe we'll entertain our senator here, or Mr. Kanuha.
MR. ARAI: This is Daryn again, sorry to chime in but, we've always been
careful about special purpose legislation, right? So, when creating legislation
so, if there's going to be any attempt to provide the opportunities, keep in mind
that the land use classification is a state land use classification. Those
classification districts are applied uniformly statewide. So, if there's going to be
any initiative, it's to make those type of opportunities available to all
agriculturally designated lands throughout the state of Hawai'i. I think that the
fair approach.
MS. DAVID: Thank you. Yes, I agree with that, and that's why I needed to ask
basically because of some of the issues raised by some of our testifiers here. So,
thank you for that clarification, and at this point, I yield.
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ACTING CHR. O'HARA: Sorry, we're distracted over here checking Codes.
Sorry. Mr. Chung, are you wanting to say anything? Are you with us? I don't
see him.
MR. CHUNG: No.
ACTING CHR. O'HARA: No? Okay. Any more discussion on the amendment?
None? Okay, that gives me an opportunity to speak to the amendment. Thank
you. I have some questions for you, Mr. Yee. I know we've really hammered
you on this special use permit and if I'm reading this right, this new addition,
which I believe is section 25-4(a)(1)—where are we? (b)(3)? Special permits in
the state land use ag shall not be issued. Now we've kind of said this over and
over again, and yet, when I made amendments earlier, which remain in this bill,
and that's on page four, section (e), Directors duties in event of emergency. It
says that you, the Director, may initiate legislative and administrative
opportunities to restore such loss in short-term vacation rental capacity.
Now, when I was working on those amendments, and Mr. Arai, you were part of
that discussion, the special -use permit process was discussed as a means of
allowing new short-term vacation rentals on ag in the same manner that we
currently allow Airbnb's on agricultural lands through a special -use permit. And
the reason my understanding of why we do that in the context of ag tourism is that
the Airbnb is considered an accessory use on ag land. Is there not—why are we
not able to make that same argument with the short-term vacation rental?
MR. ARAI: This is Daryn. I'll try to respond to Council Member O'Hara's
question. We have taken the position that a bed -and -breakfast is a kin to a hosted
vacation rental in so many ways. The owner of the property resides on the
property or the operator also resides on the property, therefore, first and foremost,
it is a single-family residence, or if it's situated on ag land, it's a farm dwelling.
That's really the primary distinction. The focus of this bill currently before you is
really for the non -hosted type of operation, and that's where the distinction really
lays. We cannot associate it with any activity that is permitted on those lands
simply because the owner is not there, and the unit in itself is rented completely
for a transient type of occupancies.
ACTING CHR. O'HARA: Just playing devil's advocate, I understand what you
just said here. We have granted, and I have to admit I was part of the Planning
Department for a while, so, I went on a lot of site inspections on the Airbnb's
when we first initiated the Airbnb Code. Many of them were on ag lands and
there was no evidence of agricultural activity, and yet, they received an Airbnb
permit.
Now, on the other hand, there are people who farm. In fact, my family has this
situation. We don't farm on the property that we reside on,we farm on a separate
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property. So, there's farming activity going on that property, and it would seem
to me that a short-term vacation rental would be an auxiliary use on that other ag
property, even though the owner is still unhosted, is not residing on the TMK
(Tax Map Key).
I mean we're getting down to picking knits here, but I think it's a real important
knit to pick because if we allowed the special -use permit process, and this is the
reason that I'm calling this out because I cannot support this particular
amendment in any way. If we were to allow that special use permit process for
properties that demonstrated agricultural activity, I think we would be as strong in
our argument as we are in our argument in justifying Airbnb. That's what I'm
trying to get at here. That's why I have concerns because I feel that the new
addition on the first part on the top of page two, negates what we already have in
the bill on page four. So, we have kind of conflicting language. There may be
other administrative opportunities, ministerial approaches, I can't really think of
anything besides this special use permit or use permit offhand. But, it's as if we
have removed administrative opportunities and we're just looking at initiating
legislative opportunities.
Correct me if I'm wrong, are there other types of administrative opportunities that
the Director could apply in the event of emergencies? And it is very particular to
my district, as you've heard from all the testimony, and my ear has been bent for
months now on this in Puna. So, we need to get this resolved. I cannot, at this
point, support this bill in its current form. Thank you. I guess there is an answer
coming, or no? I don't know. Mr. Yee or Mr. Arai.
MR. ARAI: This is Daryn. I'll try to respond. The way I look at it, there is
really no administrative opportunities. I think for the benefit of everyone it's best
to do it legislatively, either like through the Council or through this legislature by
amending statute. You can appreciate the difficulty associated with crafting
Bill 108 and trying to be as accommodating, but at the same time, as thoughtful in
trying to manage it, something that we've never managed before. The same thing
would apply if we were to look at what the intent of state law is, which is to
protect agricultural land. So, when you have the State Land Use Commission,
which is charged with administering the state land use designations or state land
use law, we have to make sure that both us and the state are in alignment because
we don't wish to create further conflict between the levels of government, which
in the end, may simply end up hurting the landowner. That's probably the best
response I can offer you right now.
ACTING CHR. O'HARA: In that response, I'm understanding that you should
probably amend this bill further and take out "and administrative opportunities"
on page four if you really don't want to have a jumble of meanings moving
forward, or one or the other. Can or cannot. And I'm understanding that it is the
Planning Department's position that we cannot, and in doing so, we're trying to
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thread a needle through a jumble of archaic state land use laws. It is my opinion
that we should have started in the amendment that's needed for the state land use
law such that instead of ag accommodations being allowed only in counties with
three islands, have it be in counties with mountains 10,000 feet above sea level or
higher. I mean seriously, it's absurd. I'm sorry, it is absurd, but I think actually,
in terms of land use planning, it should be stated in terms of max/min population.
I'm actually working with two state legislators on this now. But, for us to move
forward right now, puts the kibosh on a lot of people in Puna. It's decisions being
made by the Planning Department, but you need to understand that households
make decisions, they make economic decisions, they purchase homes that are in
the neighborhood of $300,000 to $500,000. So, they may have their income on
the line, and given how this impacts the Puna district at this point in time, where
people, many have lost homes of that value and they're not being fully
compensated for them, it is a huge pull out of the pocket of constituents in my
district. I cannot support moving forward in this manner.
There was a really good recommendation from one testifier about putting a grace
period in and we can discuss that when we get back to the full bill, but I'm sorry,
this debate over whether can or cannot on state ag land, we aren't even taking into
consideration and the state law does take into consideration the types of ag lands,
a -b -c -d, there's nothing in Puna that is above a c. So, if people understand the
gradation of state ag land, you really can't grow much on c and d, you're dealing
with a lack of soil or you're in a drainage ditch, one or the other. So, to call this
ag, it's not really ag, and we need to come into modern times. These laws were
written for plantation days and they do not serve us. I can't see moving forward
with a bill based on archaic state law. We've got to change the law, at least that
one in order to have a reasonable bill here. That's my opinion. So, at this time, I
guess we're—unless somebody else has a comment. Ms. Eoff has a comment.
Okay, go ahead.
MS. EOFF: I have a question, just to further look at this special permit in the
state land use ag. Now, if the lot was created prior to 1976 but somebody wants
to build a replacement vacation rental on it today in Puna, this says that we would
not be able to issue them a special permit, and that is even if that subdivision was
created after 1976?
MR. YEE: Yes, because if they're building it now it would be a farm dwelling
unit, not a single-family home.
MS. EOFF: We'd have to consider it a farm dwelling?
MR. YEE: Yeah.
MS. EOFF: Okay. So actually, I don't know if we can do anything about
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Point of Order: ACTING CHR. O'HARA: Excuse me, point of order. I don't know that we're
understanding that correctly. It's whether or not the lot was created, not the home
built before 1976.
MS. EOFF: Well, with regard to the non -conforming use certificate, being able to
give that, my understanding was that if the lot or subdivision were created prior to
1976, those dwelling units were considered dwelling units. It wasn't until after
that time that state land use law or our land use law then defined the dwellings as
farm dwellings. So, I understand why we can't provide a non -conforming use
certificate to someone after that in the subdivision post 1976 that has a farm
dwelling. But, why does that exclude them from being able to go for a special use
permit if the subdivision was created prior to 1976? Or am I not getting it?
So maybe, if that's—to me, because when I first read this, and I know this is a
stickler point, but when I first read it, I felt that it was okay because it referred to
farm dwellings, which in my mind, refers to dwellings on lots created post 1976.
Those we know are farm dwellings, so, I thought it just applied to the farm
dwellings.
MR. YEE: I will call on my expert deputy.
MR. ARAI: I'm your deputy but not necessarily an expert. Okay, let me try to
unravel this. Now, the distinction with—the 1976 distinction was primarily to
support the issuance of non -conforming use certificate for those operations
currently in existence, and it was simply to say that on a pre -1976 lot, single-
family residential use or a single-family dwelling was a permitted use on those
lots. So, they had the opportunity to basically say that they are operating as of the
adoption of this bill, but they are not conflicting with the intent and purpose of the
agricultural designation as prescribed by state law. I hope I was clear with that
part.
MS. EOFF: I got that part.
MR. ARAI: Okay, but when you look at the other section where it talks about
special permits when—it's making it crystal clear that if a dwelling was approved
as a farm dwelling, that the special permit cannot then subjugate that or be issued
to take away that very intent on why the dwelling exist there in the first place.
That was the message I think that was trying to be conveyed.
MS. EOFF: The question might be more clear if we could look at it. Considering
what's happening in Puna, there may be people who depended on short-term
vacation rentals for their income. They may have lost theirs and want to build
another one. So, there is an ag lot for sale and the lot is in a subdivision created
post 1976 but a person buys it and wants to put a dwelling on it and use it for a
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October 16, 2018
short-term vacation rental. Is that considered a dwelling or a farm dwelling? The
subdivision is created prior to—most of Puna was created prior to 1976.
MR. ARAI: What's really complicating the matter is that you have like three
forces trying to dictate what you can and cannot do on ag land. One is the pre -
1976 situation and one is the post 76 situation, and then you have the status of
state law that says no overnight accommodation on agricultural lands.
MS. EOFF: Is that any agricultural land?
MR. ARAI: Within the state land use agricultural district, right? That distinction;
it doesn't make a distinction between pre or post 1976. It's just an expression
saying overnight accommodations, and the state's position is overnight
accommodations are not allowed. So, part of the pre -1976 argument that we try
to make a distinction was simply recognizing that up to this point, we simply
allow people to operate the short-term vacation rentals as long as they can operate
in the manner consistent with the definition of a single-family residential use,
which is no more than five unrelated people. So, we really didn't classify it as
short-term vacation rentals. All we simply told them is operate as if you're a
family consistent with law, and that's the most we could offer to people.
But, when this bill was being crafted, it became clear there was going to be this
distinction now that short-term vacation rentals was finally going to be defined in
the Code. Therefore, we have to make it clear that—recognizing what we've
been offering to landowners is making the distinction that you can continue to
operate as long as you operate in the manner consistent with single-family
residential use, which is only permitted on pre -1976 lots. So hopefully, that kind
of explains the difficulty of trying to manage all of this because you have three
separate forces trying to define what you can and cannot do on ag lands.
MS. EOFF: I'm not sure I really understand all of that, but to understand the
situation that people will be up against then, is there anything else
administratively that can be done where someone say was operating a short-term
vacation rental, but it's gone due to the lava and may want to have another one. Is
there anything besides over laying zoning districts through legislation? Is there
anything administratively that you can think of that would be applicable?
Because they had what would have been a non -conforming use, they may have
been able to get grandfathered in, but it got destroyed because it's an emergency
situation. Is there anything that you can think of that the Director would be able
to offer? I think that's where Eileen is going. I don't really see that the two
provisions conflict, but I do see that it may take some administrative remedy off
the table unless you can maybe think of another one or someway to fix this. I
would just like to see us be able to go forward.
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MR. ARAI: Well, I can't think of any current administrative process. The reason
why that provision talked about in the event of an emergency legislative and
administrative is because when you create a section of code, you would hopefully
create it where in case there's any legislation in the future that could provide
administrative opportunities, you don't want to then have to amend your code in
order to take advantage of it.
MS. EOFF: Right.
MR. ARAI: So, we already built those types of processes into the language so
should things pop-up—and keep in mind that's the whole point of the recovery
plan that the administration is trying to develop, it's to look at not just recovery as
it may pertain to housing, but recovery as it may pertain to the economy as well.
So, it's going to be a multifaceted, multilayered approach to try to determine what
type of program the initiatives can be stood up to help those survivors impacted
by the Kilauea eruption.
MS. EOFF: So, I can see where even if we left this the way it states, so that
you're comfortable that we're not in violation of any state provisions until those
can change. But, given that you do have the opportunity, and I'm sure that there
are plenty of people who are currently working on recovery efforts for Puna,
whether they be land use special zoning things but things that wouldn't change
the nature of the whole law but only apply to Puna. Because it is considered an
emergency situation, and I think that it has been declared a disaster. So, it does
seem like maybe the ideas are not here right now for us, but it seems like within
the next year, we will be looking at ways to help out this situation in Puna. I
don't know if you can make that commitment, but it seems like that would be part
of the economic plan for recovery.
MR. YEE: With the General Plan update coming, and we're going to pick that up
again, staff was redirected because of the lava event. Now's the time to align
General Plan revisions, time to look at—we were getting ready to embark on the
Pahoa town plan and trying to see what changes, with the event, impacts that.
Then, along with all of the recovery efforts that are being taken right now, we
need to align all that and try to make sure our response to Puna is adequate. I
think it's coming. It's being worked on now, I just don't have all the answers
today.
MS. EOFF: I'm okay with that because I feel like by grandfathering in the people
that homes are still remaining, they can go back to doing business. They don't
ever have to stop doing business, they can continue and within the next six
months, they take care of their registrations. So, we're not stopping anybody who
can still offer vacation rentals, and we do have to see what happens in Puna and
who
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MR. YEE: Right. I want to add that part of adding the extra language around the
special permits now on the ag land, that really clarifies a situation where we've
heard from the other counties that they've been getting mass appeals and stuff It
gave us some room and some coverage to be able to deny special permits and
stuff without feeling like people can still file an appeal, but have a little more
breathing room on that, while still having the revision that Council Woman
O'Hara had introduced around when there are natural disasters and events that we
have the ability to take a look at it. Because otherwise, if we thought that any
kind of natural event disaster occurred that impacted non -conforming uses, we
would be writing that into the bill and saying, "Okay automatically, we're going
to give any kind of event five years" and we'd write all this stuff into it now.
We're not doing that, but we did give enough language to provide that flexibility
in it.
ACTING CHR. O'HARA: Okay, are you done, Ms. Eoff? Okay.
Ms. Poindexter.
MS. POINDEXTER: Madam Chair, I'd just like to say that we're past the—we
didn't even have lunch. We're now past the one o'clock where we're supposed to
have Governmental Relations. I want to say call for the question, but I don't need
to if we're going to vote on the amendment now. Then I'm suggesting we go into
recess with this until the end of the day, have a quick bite to eat, come back, and
get into Governmental Relations.
ACTING CHR. O'HARA: So, you're recommending we vote on the amendment
now?
MS. POINDEXTER: Yes, but if people want to talk, I'll make a call for the
question. I'll call for the question. Let's just do it that way. I'll just call for the
question.
Vote on Motion to Call Ms. Poindexter moved to call for the question. Seconded
for the Question: by Mr. Kanuha and carried by the following voice vote:
(Approved)
Ayes: Committee Members Chung, David, Eoff,
Kanuha, Lee Loy, Poindexter, Richards, and
Acting Chair O'Hara – 8.
Noes: None.
Absent: Committee Member Ruggles.
Excused: None.
ACTING CHR. O'HARA: The question is adopting the amendments under
Communication 739.310. Clerk, can you take a roll call on that?
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Vote on Motion to
Amend:
(Approved)
October 16, 2018
The motion to amend Bill 108, Draft 4, with the contents
of Comm. 73 9.3 10 was carried by the following roll call
vote.
Ayes: Committee Members Chung, David, Eoff,
Kanuha, Lee Loy, Poindexter, Richards, and
Acting Chair O'Hara — 8.
Noes: None.
Absent: Committee Member Ruggles.
Excused: None.
ACTING CHR. O'HARA: Okay, thank you. Let's take a recess now. We're
going to get a very quick lunch and let's plan on being back by quarter to two. Is
that sufficient, guys?
MR. HENRICKS: Checking in, Ms. Poindexter's recommendation was to recess
this meeting because we have other meetings in tow right now that we're late on.
So, is that what you're contemplating?
ACTING CHR. O'HARA: Recess to the end of the day and I'm just trying to let
people know when we'll be back in session again with the Government Relations
and Economic Development Committee. Is 20 minutes long enough or should we
take a half hour? 2:00. Okay. So, everything on the agenda rolls down by an
hour and then we're going to take this discussion up when we're completed with
the Environmental Management Committee towards the end of the day. Okay?
Thank you, we're in recess.
Recess: At 1:28 p.m., the Acting Chair called for a recess.
Reconvene: The meeting reconvened at 4:38 p.m.
ACTING CHR. O'HARA: Okay, we're calling back into session the Planning
Committee. It is now 4:38 p.m. We're here in the Kona Chambers and I have
with me Mr. Kanuha, Ms. David, Ms. Poindexter, Ms. Eoff, Mr. Richards, and
Ms. Lee Loy. Mr. Chung is gone for the day, is that correct? So, Mr. Chung is
excused and we have Ms. Ruggles absent. So, we're resuming our discussion on
Bill 108. We were actually on the amendment, 739.310, is that correct? It was
approved, so, we're back to the main motion on Bill 108. Anybody want to
kickoff this discussion here? Ms. Eoff.
MS. EOFF: So, just to reiterate that, I'm just going back to where the bill began
and that we pretty much everybody has agreed that we need to set up this
regulatory framework. It doesn't mean it's the end all of everything regarding
short-term vacation rentals, but it does set up a framework for regulating the
commercial use of residential housing, while at the same time, it provides an
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October 16, 2018
avenue through the non -conforming use certificate for all of those currently
operating to continue.
I think that we've worked very hard to do what some of the testifiers have
commended us for, which is trying to strike a balance into a very difficult
situation. However, I don't really think we should wait. We can't wait until we
understand or can change state law at this point, we have to work with it, and I
believe that Director Yee would like to address it a little bit further. I think that
we need to be assured that going forward for a place like Puna, we've heard a lot
about the economic loss there and the willingness among the residents to find
ways to revitalize that community, that we will commit to looking at whatever
resources are available through the provision that Ms. O'Hara had worked into the
bill, which was giving the Director some discretion, either administratively or
legislatively.
So, I don't know what all those opportunities are now and maybe we are all still
thinking about it, but just to guarantee people that we won't forget about that
important exercise and possibly even in the next couple weeks, I would like to
move this to first reading. If we can, then, I'd commit to speaking further with
the department and others to explore these options. But for now, I just hope the
people realize that nothing should change if they still are operating a short-term
vacation rental, wherever it is, nothing will change when we adopt this bill and
they'll have a six-month period to take care of all of the provisions of registration.
So, nothing should upset current, economic stability of all of the people that
we've heard from, but I have to keep in mind, and I know today was a little bit
more about the people who are concerned about the bill because of negative
impacts on their particular business, but I have to remember that earlier on in the
year, the majority of the testifiers had been begging us to adopt some kind of
regulation to protect their neighborhoods. And those were the people that I really
want them to know that we're still looking out for the interest of keeping
neighborhoods a place for neighbors and for residents, and that's also very
important in our deliberation here. So, I think I have probably talked enough.
Would you like to add anything, or other Council Members? I'll yield.
MR. YEE: Michael Yee, Planning Director. I just want to reiterate that we
intentionally went down the path of dealing with where we didn't want them to go
and creating the non -conforming category. The lava event changed some things,
but had the lava event not occurred, we'd still be in a situation where vacation
rentals would have been inundated and taken out. And then we would have had to
consider, you know, what were our options then. The bill provides for us to take
a look at that, you know, the idea of looking at our recovery plans, doing the
Pahoa town plan, looking at general plans and seeing how that all aligns. Given
the timing of it, it's within reason to take a look at all of that all at one and see
how it aligns.
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October 16, 2018
I think there was one thing right before we recessed that was interesting, which
was the question of whether or not if you were in a subdivision prior to 1976
and now you lost the house or don't have anything, and you want to build
something, whether or not you could. I sat here, and I testified that it's a farm
dwelling, so, most likely not. And you heard Daryn Arai talk about three
different perspectives that put pressure on that kind of complex situation. I'd like
to endeavor to come back when this goes to the next reading to be able to provide
more input. I'm not sure we will change your position much, but hopefully,
clarify how we reach a position or an opinion on that. I think that's the best I can
hope for at this point.
I think also regardingI just had a quick conversation with Council Member
O'Hara on the idea of wanting to provide a five-year kind of like grace period for
folks to come in. I'm hesitant to want to provide that, given that this was non-
conforming. Again, in the bill, it provides that if there are avenues legislatively,
probably not administratively, but it says administratively, we can take a look at
things. Again, with the right information, if it makes sense, then we will have to
take a look at those options. So, I'm not sure I want to outright provide a five-
year period. Again, that's up to the Council if they want to make that amendment,
but I certainly wouldn't be supportive of it at this moment.
ACTING CHR. O'HARA: Ms. Lee Loy.
MS. LEE LOY: Thank you. You know, I listened. I want to get back to the bill
itself if that's okay, Director. And just some tiny little questions I had. Starting
on page 16, and I'll give you a minute to pull that out. This is where some of the
confusion I think started with hosted or non -hosted and how this bill is for non -
hosted. Under section (b), it says, "Registration of all ..." on page 16, of the
amendment, this is the clean version of the bill that we would be working on with
the amendment. So, 739.310, page 16, (b) Registration of all short-term vacation
rentals. So, when I read this, I feel like it's all, it's not just the unhosted, it's the
hosted. Can you help provide a little bit more clarity on that, Director?
MR. YEE: This had come up in some discussion and whether or not that was
confusing because it's defined what short-term vacation rentals are, in this case
unhosted. You know, intuitively, you sit there and wonder about the hosted
rentals but because we defined it as the unhosted, it was addressing all of those.
MS. LEE LOY: Thank you for that clarification. Now I'm onto page 17,
part (D) Verification and notification letters of non -conforming use. We have a
300 feet perimeter boundary. Could you provide just some understanding on why
300 feet? I mean I've done notification to surrounding property owners, and
sometimes it's 500, sometimes it's 1,000. Just some rational on why the 300?
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October 16, 2018
MR. YEE: Earlier at the Planning Committee meetings, we had it at 150 I think,
and then there was a proposal for 300. So, I wouldn't say it was a planning -
initiated number that we came forward with, so, I'm not sure how we ended up at
300. It was kind of a compromise, I think, somewhere during the process.
MS. LEE LOY: We also heard one testifier talk about notice to surrounding
property owners, but oftentimes, there may be a community association attached
to it like Leleiwi Community Association. If I were to wordsmith this to include
all owner and leases of record, and any known community associations, is thatI
mean we're trying to let people know. You don't have to answer, just think about
it.
MR. YEE: Okay, I'll think about it. However, I will say that could be addressed
more at the rules and procedures.
MS. LEE LOY: And I appreciate that because if the Code makes it too
cumbersome, when we go through the rulemaking process, if we could kind of
create a better expectation there for someone pulling a non -conforming permit.
MR. YEE: Correct. And in the case of some of the condo hotels, there were
certainly testifiers saying why should we send out 50 letters to everybody in this
one building, right? Could we not just contact the condo association?
MS. LEE LOY: Onto page 18. Another testifier brought up sound audible
beyond the property boundaries. This was kind of, I guess, arbitrary for me. I
live on homestead ag lots and I can hear my neighbors, but we have 10 -acre lots
and it's just that quiet sometimes. They talked about maybe using a measurable,
like a decibel. Again, you don't have to answer that but just maybe food for
thought on quantifying or qualifying those levels.
MR. YEE: I'll actually give you a quick response on that because I hear my
planning staff in my ear here. They'd be quick to sit there and say our inspectors
do not go out with a decibel meter. We really dislike having to sit there and
basically enforce what is a Department of Health condition usually. So, it's in
here and that's why it kind of says audible and stuff, to be able to give some
ability for people to complain. But if people expect planning inspectors to come
out with decibel meters, they'll probably be disappointed.
MS. LEE LOY: Onto page 20, we talk about short-term vacation rental
enforcement account, and "This fund shall be administered by the director." I'm
assuming the "director" meaning the Planning or is that the Finance Director?
MR. YEE: No, that was clearly the Planning Director.
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October 16, 2018
MS. LEE LOY: Then further down on page 20, and this is something else
another testifier brought up, ""Short-term vacation rental" means ..." and it gives
a definition. But, being a little bit more forward thinking, the question that came
up was what about hosted homestays? You're smiling. What's the answer?
MR. YEE: I don't have an answer to that right now, continue with your question.
MS. LEE LOY: You know, I guess people get real creative. We had bed -and -
breakfast and then we have short-term vacation rentals and then the trend is going
to be these home share. So, just something to think about and maybe some rules.
MR. YEE: In crafting this bill, there were many times we were trying to take a
look at the loopholes that could be created, even trying to insert the new revision
around RM for the condo hotels. Although it made sense a week before Leeward
Planning Commission, we didn't want to come out with a recommendation that
week because we had not had time to really vet through planning what were all
the loopholes. Again, you know it's not as if anybody has written Code to want to
create loopholes, but there always are. But we're confident what we have has
created as few loopholes as possible and certainly, none that we're aware of.
MS. LEE LOY: I want to circle back on creating the space for maybe a five-year
grace period. I guess I saw this piece a little differently that if a short-term
vacation rental was not available after the event, if they could still apply as a
placeholder to hold onto that non -conforming permit until they make the business
decision, whether or not they're going to go back.
MR. YEE: You know, that's one of these tough questions for you folks, which is
where do you sit on non -conforming when they're taken out by a natural disaster
and how flexible do you want to be on that?
MS. LEE LOY: I don't have any more questions, other than something I've been
reflecting on throughout this entire process, which is don't let perfection be the
enemy of good, and this is something good. It's not great. We heard kind of
testimony, we heard testimony about it striking a balance. We heard testimony
about how it could be improved, but we need something in place. We need a tool
in the tool belt for what we can address right now, and I'm confident, listening to
the Director, that there will be a version 2.0 coming forward that gives more tools
in our tool belt to address some of the areas that have been more challenging to
address. So, with that, I'm going to yield and look forward to kind of moving this
forward. So, thank you, I yield.
ACTING CHR. O'HARA: Ms. Poindexter.
MS. POINDEXTER: Yeah, I just want to say that I am supporting this and I'm
hoping that we push this up to Council. I know that there were a couple people
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who testified this morning and saying to hold off, you have to think about the
economy and all of that, and they clearly stated that there's only one person on
this Council that has a background in economy. But what they failed to see and
acknowledge is that the cultural preservation and the knowledge of a lot of us on
this Council about cultural preservation. So, when you talk about economy, you
also have to balance it out with how it's affecting our culture. What is it going to
do to our communities? If we keep holding this off and we say we have to think
about the economy, we're killing off our neighborhoods at the same time and
we're killing off our cultural heritage.
I've gotten a lot of e-mails and phone calls. I've got pictures being sent to me
about, you know, 14 cars up their driveway, down the road, blocking things,
partying until the wee hours of the morning, and then to hear one testifier here
say, I think he talked about being disingenuous because one of the people in the
neighborhood started up a chainsaw at seven thirty in the morning.
Well, I think if the vacation renters didn't stay out late and party out so late, that
wouldn't bother them. So, who are we catering to? People pay their residential
tax because they want to live in a residential neighborhood. I don't want to live
down at Mauna Lani because I know activity is so heavy down there with people
vacationing. It's not the place I want to be. So, we need to protect our
neighborhoods and we need to protect our cultural heritage.
You look even in Honoka`a, people have been complaining that we have houses
becoming available but the people buying the houses and offering a higher price
and taking them out of the market are the people from the mainland not even
living here and turning them into vacation rentals. We've got to be careful of
what we want to turn this island into. If this is just going to be a vacation
destination island, then you know, God bless the people who are able to afford
and build. I've heard some say, "We built our dream homes and the vacation
rental helps them to subsidize their dream." Well, God bless them, but I feel so
sorry for those who cannot afford to have that dream or cannot even afford to find
a place to rent, because homes in our neighborhoods are not becoming available
to them anymore. I'm concerned about what's happening on our island and this
bill will help to curve that.
Yes, maybe we need to tweak it, or we need to make some other compromises.
We have made a lot of compromises. We have to start somewhere. There is no
absolute in everything we do. It's never going to be a perfect bill for anyone, but
we have to start somewhere. If we talk about economy and cultural preservation,
we've got to balance that out. I'll yield at this time, I just want to let you know
that I am supporting this. Thank you.
ACTING CHR. O'HARA: Thank you. Ms. Eoff.
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MS. EOFF: I know there may be others who wish to say something, but I
neglected to speak to the 300 feet notification requirement. At first, it did seem
onerous, but currently, it applies to those seeking a non -conforming use
certificate. I had Wendy go on the website to check out what I had been told, that
it's not that hard to do. You go on the County website, you put in your address,
then a map comes up. Then there's another link to click and it gives you a
mailing list. It tells you all of those residents that are within 300 feet. So, that
makes it a little bit easier.
MS. LEE LOY: I wasn't thinking to how that process happens, I wanted to know
the rational. So, in a use permit there's a defined radius map. In a special permit,
there's a defined radius map. If you're in an ag district, it's another number. So,
I just know a number of people who are going to have to go through this process,
and so, I just wanted to understand the rational so they don't get confused
between one application process.
MS. EOFF: I'm not really tied to that requirement. I believe it came in with
Ms. O'Hara's amendment, right? The 300 feet. So, I went along with it because I
was trying to keep Ms. O'Hara on board and do what she thought was important
and someone else had mention that it was a number that the Planning Department
uses. First, I thought it was way too onerous and then I found out that you can
generate a mailing list pretty easily. So, it wouldn't be that hard, and that's a
onetime responsibility to take care of. So, I'm okay with it either way. I wasn't
wedded to it, but I'm also willing to
ACTING CHR. O'HARA: Just to explain that is the distance for the use permit,
for a special permit, which is on ag, it's 500 feet because the lots are bigger. So,
it just seemed reasonable for this use.
MS. EOFF: Right, and I think Ms. Lee Loy had a suggestion that we may also
want to notify the community associations, which is a good idea, and something
to think about.
ACTING CHR. O'HARA: Anything else, Ms. Eoff?
MS. EOFF: No.
ACTING CHR. O'HARA: Anybody down that way? Dru? Okay.
MR. KANUHA: Thank you, Madam Chair. Again, mahalo Council, for looking
at these amendments seriously. This did take a lot of work and a lot of time and a
lot effort, not only from us, but the entire department. A lot of people have been
e -mailing us on the daily about how it could affect their livelihoods, also, on the
other end of the spectrum, the communities that are being affected by some of the
impacts with certain vacation rentals.
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We tried to balance out this bill as much as we possibly could, and we did really
take that open approach to finding the true balance. It will never be completely
the best bill for anybody. It's never going to happen. We tried so many different
layers and levels and ways to make it work and I think we've come to a point
where you can only go so far until you actually go through with the bill and see
how it's implemented in the community. And, you know, to those that think this
is a complete, this is the end of the game, it absolutely isn't. Bills are alive.
We're going to have different Council Members involved. We're going to have
different people in Planning going through this bill saying, "Oh wow, that actually
doesn't work." How do we change that to see how it would work for the
community that it might be affecting? Until we actually get this through and look
to see how this is implemented, we really don't know.
You know, Honolulu, they keep on amending their bill. They've had short-term
vacation rental bills for decades, and they keep on amending them to go with the
times. I don't know if that's good or bad with what's happening over there, but
bills are alive, they're meant to be seen and looked at and tweaked and make sure
that our communities are taken care of. So, that's what I see with this bill, and I
think we're headed in the right direction.
Again, we are the only island that doesn't regulate the short-term vacation rental.
I feel that we took the necessary steps. We are as transparent as possible. We
wanted to hear from the community, that's why it's taken so long to get to this
point. I do appreciate everybody being patient with us and really giving us as
much impact as possible because we want to have the best bill that we can come
up with. Again, it's not going to be perfect, but we have to start somewhere. We
have to figure out the right place and time to start regulating something that hasn't
been regulated that is affecting our community.
So, I appreciate everybody looking at this bill with open eyes, with open minds,
and bringing the concerns from your communities to the table. It's hard to
regulate a zoning bill because a zoning bill will affect the entire island. So again,
mahalo for all of your input. I really, as well, want to move this forward to
Council and then go from there. But I'm in full support of this bill and really
appreciate the administration working with us on all of the details.
ACTING CHR. O'HARA: Anyone else wishing to speak? Mr. Richards.
MR. RICHARDS: Thank you, Chair. I do want to commend Councilman
Kanuha and Council Woman Eoff for taking the first swing at this one and
moving it substantially forward. We've heard a lot of testimony, not on both
sides but all sides because this has so many different facets. I don't disagree with
the comments that have been made. We're not going to have a perfect bill when
we get done with it, but we do have to do something and something that Council
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Woman Eoff said in the communities that are being adversely impacted, we do
have to get after that and get something going for those guys.
I think I stated this so long ago when this conversation first started, a lot of our
problems are bad neighbor problems. I think we have to be very mindful of that
and how we're going to enforce that.
One thing that was commented repeatedly today was an economic impact of
going forward, and I think that's a good concept. However, in order to do that
you're going to have to get the information collected to figure out what the impact
is, which—does that mean we're going to collect that and then collect it again?
That doesn't make a whole lot of sense. If we're going to do it, I think it would
be prudent to understand what the financial impact of it overall is, but at the same
time, get the ball rolling on this.
Councilman Kanuha was very articulate in saying bills are living and legislation is
living. When it's adopted, it's adopted, but it can be tweaked if we go forward. I
don't want to get into the habit that we're going to fix it later, we'll fix it later
because too many times we don't. However, in order to get going sometimes you
have to just do it and then get going with a definite, hard commitment. This was
one of those pieces of legislation that I think we're going to have to do something
like that. I'm still hesitant because I'm bothered by a testimony today about a
young family who is educating their children by use of this on agricultural land.
So, there's more stuff to sort out and we're not pau. We've got a lot of stuff to
get done.
Probably the thing that bothered me the most was what Council Woman Eoff said
about the communities that are struggling because of the party houses. So, with
that, I know we need to keep moving forward. I think there's more work to get
done on this. I am supportive, generally speaking. There are some things that
aren't quite sitting right with me, but generally speaking, I think we need to move
forward. No real questions right now, Director, I'm sure I will have some, and
I'm sure I'm going to contact you. But I definitely want to get those comments
out because we've all received numerous phone calls on all different sides of the
conversation. And what we're trying to do is do the best we can for most people
in the fairest way we can. With that, I'll yield.
ACTING CHR. O'HARA: Okay, thank you. Anyone else wishing to speak?
Okay then, I guess it's my turn. I do have one question. In the definition it says
thatI have to ask this because somebody spoke about this earlier and I can't
remember who, what, where, when at this point, but it says that—Okay, the last
sentence says, "This definition does not include the short-term use of an owner's
primary residence as defined under section 121 of the Internal Revenue Code."
That, as I remember, is if you live in the home six months plus one day, it's
considered your primary residence. Is that more or less the IRS (Internal Revenue
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Service) Code? So, in the five and a half months that you're not living in the
house, you use it as a short-term vacation rental, am I reading this to mean that's
an allowed use without any kind of non -conforming certificate? Page 20, I'm
sorry.
MR. YEE: Go ahead but repeat your question.
ACTING CHR. O'HARA: "This definition does not include the short-term use of
an owner's primary residence as defined under section 121 of the Internal
Revenue Code." So, the question, I believe it was Daryn Arai that answered it
was that if you're an owner, to whom this applies now, I'm thinking of the guy
that came in here from Alaska, he just returned, right? So maybe he's kind of a
snowbird. He may spend five to six months here and maybe five to six months in
Alaska. If he considers this his primary residence but he goes back to Alaska for
five and a half months, can he then use his primary residence as a short-term
vacation rental and this bill would not apply to him?
MR. YEE: Yes.
ACTING CHR. O'HARA: Okay, that was my question. That's an interesting
concept. I really understand the need to regulate short-term vacation rentals very
much so and had wanted to tackle this for a long time. I have never been a fan of
the basis of this bill, and that basis being the grandfathering. It makes the
assumption, and you said it just now, Mr. Yee, that these are uses that we want to
get out of our communities.
Now, representing my community, lower Puna, I have to say in terms of hearing
from folks, over 90 percent of people that have contacted me about this bill in my
district, want short-term vacation rentals in the district. So, for that decision to be
made outside of the community, by say the Planning Department or somebody
else, we have not been consulted on that. We want them. So, it may be a non-
conforming use, but we want to find a way to make them happen. And that was
before the lava event. They were a desirable thing.
Now, were we getting the best spread of short-term vacation rentals in terms of
location? Not necessarily because they are going to be grouped in the areas where
the tourist attractions are. That's going to be your coastline or up by volcano. So
yeah, they're going to cluster in those areas that are most desirable for the tourist
industry. So, that's why I'd always felt a cap approach would be a better way to
approach this, but that was not something that ever happened.
I also listened to Ms. Poindexter's point about let's concern ourselves with the
social issues first and not the economic issues, but I'm sorry, any sustainable
response to land use, it's got to consider all of them. It's got to be a balance
between your social concerns, your environmental concerns, and your economic
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concerns. That's what we always called the three-legged stool of sustainability.
So, we've got to look at all of it.
I don't think it's wise to pursue an economic impact analysis after the fact. I
think it's good to look at where we stand now and see how this is going to impact
loss of jobs. We can already identify that just in the Puna district where we did
lose over 400 short-term vacation rentals in the event, at least. So, that's
something that could be done independently, and I'd like to call up one of the
testifiers from earlier. His name is Matthew Middleton. Did I get that right?
(Note: At this time, Matthew Middlebrook came forward to address the
members of the Committee.)
ACTING CHR. O'HARA: I know you have national experience in this. Give us
an idea of the types of businesses that are out there that can assist with things like
an economic analysis, economic impact analysis, and how that might be done and
what we would learn from that if you can.
MR. MIDDLEBROOK: Sure, just in terms of the economic impact, just in our
experience in Hawai'i, the Hawai'i Tourism Authority (HTA) did a significant
economic impact analysis for the state just on alternative accommodations,
sourced all types of data including, in great part, the surveys on the back of flights
as people travel to the state of Hawai'i.
We've done—we just recently did an economic impact analysis partnering with
an internet business organization called Travel Tech, with a local consultant
called Kloninger and Sims who are based on Oahu, on impact economic report
on the impact of alternative accommodations on the island of Oahu. As part of
that analysis, Expedia and Airbnb actually cooperated with the consultant and
provided data in terms of how many rentals. So, it was a very accurate analysis in
terms of how many rentals exist on Oahu. Then that consultant used typical
economic data that were applied to the number of nights stayed and how many
rentals to determine the economic impact of those visitors to the island of Oahu,
which ended up being a couple billion dollars. So, something like that is
something that is done very commonly and there's a lot of fairly standard
economic metrics that can apply to them. The HTA does that consistently with
hotel economic impact. They put out data with respect to that almost monthly.
ACTING CHR. O'HARA: I appreciate that. Just to get a feel for what it might
look like, and I'm not, at this point, moving to do such a study, but I think it's
something to be considered. We are putting together one of the most far-reaching
public policies, land use policy changes in terms of zoning that has gone on in
years, and to not look at that piece because we've been looking very much at the
social impacts and I agree we need to. And we need to look at the cultural
impacts. Those things should not be ignored but we haven't really studied the
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economic impacts and because of what happened in the volcano eruption and the
loss of all of these short-term vacation rentals, we didn't lose just these rentals, we
lost all of these jobs and the impact is obvious for anybody that lives in Puna.
Our town is drying up and turning into a ghost town.
While you say, Mr. Yee, that there are things that need to occur down the road to
improve upon this bill, I'm afraid that they will not move quickly enough because
we're talking about a major asset for most families in Puna, their home. That's
where most households have their largest equity invested, so, it's not something
they can move around quickly and make changes. These are life changing
decisions that people are going through in Puna right now, and I really feel that
we should, in the context of this bill, do something that recognizes the huge
economic negative impact that this will have on the Puna district.
If it'sin the final sentence of this bill where it says when this bill takes effect,
we could potentially add a clause that it takes effect in every district except Puna,
which it will be implemented in two years, three years, I don't know that it's
necessary to have five years. But we need some time because it's going to take
time to look at all these other things. It's going to take time to potentially change
state law so that we are not trying to thread that needle. I think my district would
be best served by some kind of grace period like that if that's something we could
consider in the next draft of this bill. What's your response, Mr. Yee?
MR. YEE: I think I shared earlier that I'm not in favor of a grace period. I also
said I didn't want things in—non-conforming means non -conforming. When the
use ends that's the reason why you create non -conforming. In this case, I also
said that there are areas in Puna that should not necessarily be ag land. The work
needs to be done around to try to rezone to rural. That's a heavy lift. I get it, but
that would not only fix vacation rental issues, it would fix a lot of other issues we
have in that area.
ACTING CHR. O'HARA: I agree with you wholly, but it is a longer timeframe
thing.
MR. YEE: Correct. With the right people, hopefully, it could be done sooner
than later.
ACTING CHR. O'HARA: Well, resources are always tight at the County, as you
have learned since you came through the door. So, I don't expect that to happen
in the near term. So, I can't support this bill for its immediate impact on my
district without some kind of grace period tucked in there for the Puna district.
So, I'm just putting that out there for people to consider. I will bring forth an
amendment and try and make it as palatable as possible, but I will not be
supporting the bill this time and maybe you all will be willing to accept that for
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consideration. Thank you. I guess I'm the last to speak unless there's anyone
else who wants to comment. Then I guess we're ready for the vote.
MS. DAVID: Can I just say something? I'm sorry.
ACTING CHR. O'HARA: Sure.
MS. DAVID: First of all, I think the discussion has been pretty in depth about
this complicated issue. What I will say is at this time, I will support this bill
because I need to see it. I mean, I'd like to see it move forward and engage in
more discussions. What I'm seeing as a difficulty with right now is our role as
legislators creating bills that right now is mixed with a lot of social issues that
have to be addressed. I'm not necessarily sure that the legislative process can
address all of it. I know what you're saying.
Eileen has some deep personal attachments to that but I'm looking at this in a way
that, out of all the issues that we speak of, why this bill is good or why it isn't
good or why we need to wait or what needs to be done. I'm having some issues
trying to sort out and separate what the Planning Director's duties are in creating
laws that benefit everybody. I totally respect that if it was my district and it was
hit by a lava flow, there are other means of addressing those social issues. I'm
having a hard time trying to see or sort out what is actually our job as legislators.
But I know what has happened so far has taken a lot of effort on Council
Members Kanuha and Eoffs part and the department trying to find that balance.
So right now, I'd like toI will support this because I think it deserves to move
forward, at least to Council, and entertain any other discussion that we've heard
today. And based on that, I just wanted to explain that this is something that is
very difficult for all of us, and I'm hoping that we can find something, a starting
point like we were discussing earlier. So, on that note, I yield.
ACTING CHR. O'HARA: Thank you, Ms. David. And in response to that, can I
just say that I do feel that part of your district is impacted.
MS. DAVID: I know that.
ACTING CHR. O'HARA: And, they've been talking to me a lot, and I suspect
they've been talking to you, too, about those impacts. And while the Volcanoes
National Park has reopened, a small part of it has reopened, it isn't back to normal
in terms of business yet. So, there's a lot of assistance that's still needed for that
whole area. So, just pointing that out.
MS. DAVID: I know, and you don't have to point that out to me because I've
been here for a long time and I know the issues.
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ACTING CHR. O'HARA: Yes, I'm sure you do.
MS. DAVID: Yes, thank you.
ACTING CHR. O'HARA: While we can describe it as social, some of that is
economic. It's just a matter of how you want to define it. We're ready to vote, I
believe, and I think the Clerk could take a roll call vote on this.
Vote on Bill 108: The motion to recommend passage of Bill 108, Draft 4, as
(Approved) amended to Draft 5, on first reading was carried by the
following roll call vote:
Ayes: Committee Members David, Eoff, Kanuha,
Lee Loy, Poindexter, and Richards — 6.
Noes: Acting Chair O'Hara — 1.
Absent: Committee Members Chung and Ruggles — 2.
Excused: None.
(Note: Mr. Richards voted "kanalua" then "aye."
ACTING CHR. O'HARA: Thank you. That means that this moves to Council
with a positive recommendation. Motion to adjourn?
ADJOURN- There being no further business, at 5:26 p.m., Ms. Lee Loy moved to adjourn
MENT: the meeting. Seconded by Ms. Eoff and carried by the following voice
vote:
Approved:
Ms. Karen Eoff, Chair
Planning Committee
KE/j m
Ayes: Committee Members David, Eoff, Kanuha, Lee Loy,
Poindexter, Richards, and Acting Chair O'Hara — 7.
Noes: None.
Absent: Committee Members Chung and Ruggles — 2.
Excused: None.
ACTING CHR. O'HARA: Alright, we are adjourned.
(Date)
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