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HomeMy WebLinkAboutCOM 0352.012 2018-2020 • COUNTY CLERK UM.M 35 2 COUNTY OF HAWAII RECEIVED August 5, 2019 Time 11'106M BY Date 08*1a Hawai'i County Clerk 25 Aupuni Street Hilo, HI 96720 (fax)808-961-8912 counciltestimon ghawaiicounty.gov RE: Testimony#1 in opposition to Bill 87 Aloha Madame Chair and members of the Hawai'i county council, It is important to acknowledge the importance of Chapter 4 of the Kona Community Development Plan, "Goals, Objectives, Policies, and Actions. This chapter is effectively the brain of the Kona CDP,the chapter that guides its implementation. Therefore, changes to this Chapter have a comprehensive and substantial impact to all other parts of the Kona CDP. Please refer to the "Chronology of Amendment Process" contained in the Background and Recommendations from the Planning Department, Director. What started as a limited scope of work with suggested amendments by personnel from the Mayor's office in November 2017 has morphed into substantive changes to Kona CDP that substantially alter the legal framework designed by the partnership of consultants, Kona community, and county government. While the proposed changes have been thoroughly vetted by numerous county and state agencies, departments, and offices, the same process has not taken place with the Kona community. The Kona CDP Action Committee ("AC") is comprised of community volunteer who generously donate their time and expertise to assist the county in implementing the Kona CDP. The amendments initially proposed by the Mayor's office and the Planning Department were vetted by the Kona CDP Action Committee and its Kona CDP amendment subcommittee from December 2017 until March 2018, at which time the AC approved their recommendations. The meeting minutes accessible on the Planning Departments website show 18 members of the public attended the AC meetings. In August 2018, the Planning Department met with the county Long-Range Planning Division and the scope of work and the impact on the Kona CDP was greatly expanded. According to their meeting minutes, the AC was not aware of the additional amendments resulted from the expanded scope until just prior to their 5/14/19 meeting. Last minute revisions to the amendments package were presented to the Leeward Planning Commission("LPC") by the Planning Department for their 6/20/19 meeting (I have read the transcript of the LPC meeting), but the AC was not given an opportunity to review these. The chair of the Kona CDP AC amendment subcommittee testified he would be open to postponement of the agenda item to allow for further review. However the transcript indicates the LPC was already prepared to forward the proposed amendment package with a favorable recommendation. Neither the AC nor the public know what these amendments are or their effect, yet Bill 87 was passed out of the Planning Committee without any questions being asked about these. Comm. N �"�-"- � 1 Ref. Tol.vu: .I nU Ref. Date 019 Given the scale and impact of the proposed amendments to the Kona CDP, the aforementioned facts should raise serious concerns for Kona district county council members David, Eoff, and Villegas. I urge the county council to table Bill 87 for the time being and recommend the Planning Department schedule at least one public charrette on a weekday evening or on a Saturday to go through the proposed amendments to the Kona CDP with the reasoning behind each, which would then allow for informed public comment and testimony on the next schedule first reading of Bill 87 before the county council. The following are my detailed comments on proposed amendments to the Kona CDP, Bill 87. Mahalo, Chuck Flaherty P O Box 922 Captain Cook HI 96704 COMMENTS ON EXHIBIT A OF BILL 87 (2019) Chapter 4. Goals, Obiective, Policies, and Actions. The proposed amendments to the language in the Preface in Section 4 were not presented to the Kona Community Development Plan Action Committee nor the Kona CDP subcommittee until just prior to their 5/14/19 meeting. An amendment removes "legally binding on" (County agencies). Another changes (These policies) "must" (be implemented) to (These policies) "may" (be implemented). These amendments would gut the Kona community's clear intention that the Policies in the Kona Community Development Plan have the force of law. This is a substantive change to the Kona CDP that should be reconsidered using public chanettes and meetings hosted by the Planning Department as was done in developing the Kona CDP, The Kona community and county council with clear awareness and intent passed the Kona CDP with language that specifically stated the Kona CDP policies amended the County Code where there are differences and detailed these differences in the Kona CDP as"enacted by plan" . This language was reviewed and approved by Corporation Counsel. Removing this language is a substantive change to the Kona CDP that should be reconsidered using public chairettes and meetings hosted by the Planning Department. The Kona CDP anticipated amendments to the Hawai'i County Code, so the Planning Department should explain why it has not acted to change the County Code instead. Pages 3-15. Section 4.1 Transportation The county council should review the numerous amendments to Policies contained in the Transportation section which remove mandates on themes and issues very important to members of the Kona community. 2 Page 10. Policy TRAN-3.5 Safe Routes to Schools We are all aware of the children who have been killed because they did not have a safe route to school. A Leeward Planning Commissioner brought up the tragic example of Ulu Ka'aloa of Honaunau Elementary School. The Kona community intended Safe Routes to Schools to be a mandate, not a recommendation. This amendment should be rejected. Page 12. Policy TRAN-6.1 The proposed amendment inexplicably removes designation of the Kona Urban Area as a "critical road area" as defined in existing Hawai'i County Code 25-2-46. No explanation of how the Kona CDP is in conflict with the HCC is given. The impact of removing"critical road area" from the Kona CDP in not described in any AC meeting minutes or the transcript of the 6/20/19 Leeward Planning Commission meeting. Pages 16-30 Section 4.2 Land Use I was a participant in the Land Use Working Group during the development of the Kona CDP. Each Working Group received the hundreds of related comments from the public. Our task was to reduce the comments into main themes and to work with the consultants in developing ideas on implementation of those themes. The proposed amendment changes the first sentence of the Preface of the Land Use section to describe it as a"suggested"framework. This change may unintentionally create a legal "gray area", which should be avoided. Page 17 Section 4.2.2 Overall Strategy The proposed amendment removes "legally-binding policies" and changes (policies, however,) "shall" (be implemented) to "may" (be implemented). This amendment severely dilutes the legal authority of Kona CDP. Page 19 Section 4.2.2.1.f) Concurrency Requirements & g) Vested Rights The Kona CDP AC was not able to see these changes until their 5/14/19 meeting. Concurrency requirement and vested rights are serious legal matters with profound implications for development in the Kona community. These changes are substantial and should be explained in detail, especially as to how removal of these relates to other areas of the Kona CDP, Page 20 Section 4.2.2.3. To encourage rural clustered subdivisions Planned Unit Developments are significantly different from subdivisions when it comes to process and regulations. Amendments to this section have substantial legal implications which should be justified, given Attachment C, Clustered Rural Subdivision Guidelines, is also removed by amendment. Page 24 Policy LU-2.4.(2)(b) Conceptual Master Plan The proposed amendment replaces an environmental report meeting the requirements of Hawai'i Revised Statutes 343 with an undefined"county environmental report". 3 Page 24 PolicyLU-2.4(6) Development Agreement Given the massive legal issues with the Hokuli'a project development agreement and vested rights, which was invalidated by a court ruling, the county council should ask for assurances this proposed amendment will not have unintended consequences. Page 25 Policy LU-2.5 Village Design Guidelines Proposed amendments to this Policy reduce Village Design Guidelines from a requirement to a suggestion. This goes against the themes contained in the Kona CDP formation process. Page 27 Policy LU-2.8.2.b.iii. Greenfields Rezoning The proposed amendment undermines environmental protection by removing requirement for an environmental review consistent with Hawai'i Revised Statutes Chapter 343. Page 28 Policy LU-3.3 Clustered Rural Subdivision Guidelines The proposed amendment to remove the language "and the approval shall be considered a tentative subdivision approval"undermines citizens right to intervene and appeal decisions of the Planning Department. Pages 31-38 Section 4.3 Environmental Resources I was a participant in the Environmental Resources Working Group during the development of the Kona CDP. No amendments are proposed in the Preface to this section. Page 34 Policy ENV-1.2 Kona Mauka Watershed Management Program The proposed amendment reduces the requirement for an action plan to a recommendation. No program can function without an action plan. This policy is not related to the Missler case and does not conflict with any existing law. Page 35 Policy ENV-1.5 Sensitive Resources and Policy ENV-3.3 Kona Treasures Fund The proposed amendment inexplicable requires any transfer of development rights to be via a Planned Unit Development. No explanation is contained in the minutes of meetings. Another amendment would remove the requirement that protection or restoration of Sensitive Resources will qualify for funding from the Kona Treasures Fund. An amendment is being proposed to Policy ENV-3.3 changing establishment of the Kona Treasures Fund from a"shall"to a "should". These Policies are not related to the Missler case and do not conflict with any existing law. Page 37 Policy EVN-1.12 Water Quality Monitoring Program This amendment is being proposed even though it is not related either directly or indirectly with the Missler legal case nor does it conflict with any law. In fact, this amendment goes against the Hawai'i Supreme Court ruling in Kelly v. 1250 Oceanside Partners in which court found the county has an"affirmative duty to protect nearshore marine waters", meaning"shall protect nearshore marine waters". The Planning Department under then-Planning Director Chris Yuen under then-Mayor Kim began designing a county water quality monitoring program to coordinate and assist current and future water quality monitoring programs required by Special Management Area permits. This amendment should be rejected as it is an action in opposition to the existing law. 4 Pages 39-45 Section 4,4 Cultural Resources Preface I was a participant in the Cultural Resources Working Group during the development of the Kona CDP. No amendments have been proposed the Preface. Page 43 Policy CR-1.1 Kona Cultural Resources Committee The proposed amendment of this Policy removes the requirement for a Kona Cultural Resources Committee. The Cultural Resources Working Group knew that a county Cultural Resources Commission would be created in the future (see Policy CR-2.1: Certified Local Government), but wanted to have a committee comprised of qualified Kona residents to aid in the preservation, protection, and restoration of the massive amount of cultural resources in Kona(see Action CR- 1.I.a.), Removing the language requiring the KCRC goes against the express wishes of kupuna who participated in the Cultural Resources Working Group and undermines protection and preservation of cultural resources. The language in this Policy is not related to the Missler case nor does it conflict with existing law. Pages 46-56 Section 4.5 Housing I was a participant in the Housing Working Group during the development of the Kona CDP. No amendments are being proposed for the Preface. Page 50 Policy HSG-1.1 and Policy HSG-1.2 Amendments to these Policies remove the requirement for a Kona Housing Non-Profit and a Kona Housing Trust Fund, which undermines the structure created within the Kona CDP for alleviating the critical need for more affordable housing in Kona. These Policies are unrelated to the Missler case and do not conflicts with existing law. t 4, Pages 57-66 Section 4.6 Public Facilities, Infrastructure, and Services Page 58 Policy PUB-2.2 Crime Prevention Emphasis This amendment would reduce the requirement that building design deter crime to a recommendation. Page 59 Policy PUB-2.6 Disaster Shelters and Critical Facilities This amendment would reduce the requirement for an adequate number of hurricane shelters to a recommendation. Another amendment would reduce the requirement that any new fire station or hospital withstand all hazards to a recommendation. Page 60 Policy PUB-4.2 South Kona Water System This amendment would reduce the requirement that the South Kona Water System not be extended further south to a recommendation. There was and continues to be strong support in the South Kona community for the existing Policy, so the proposed amendment goes against the community's clearly communicated position, while the existing Policy does not relate to the Missler case nor does it conflict with existing law. Pages 67-69 Section 4.7 Energy No comment. 5 Pages 70-76 Section 4.8 Economic Development No comment. Kona CDP Actions Estimated Timeline Matrix with Kuleana An examination of this matrix indicates the extent to which Actions described in the Kona CDP have been neglected over the past ten years and the extent to which Actions are being further delayed. Had many of these actions been performed by the county, many of the amendments being proposed in Bill 87 would be moot and unnecessary today. Why must the Kona CDP suffer the consequences of the county's neglect of implementation? The county council should note,per the 5/14/19 meeting minutes, concerns were expressed by the AC that numerous "implementer(s)"were removed and not replaced. The AC asked who has the kuleana for these now. 6