Loading...
HomeMy WebLinkAbout2019-04-04 Hearing Transcript - Admin Matters Item 1WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT APRIL 4, 2019 A regularly advertised hearing regarding a discussion on permit or ordinance condition deadlines and consequences of not complying with condition deadlines (Administrative Matters, Item No. 1) was called to order at 10:45 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Joseph Clarkson presiding. COMMISSIONERS PRESENT: Gilbert Aguinaldo, Joseph Clarkson, Donn Dela Cruz, Donald Ikeda, Thomas Raffipiy, John Replogle. ALSO PRESENT: Michael Yee (Planning Director), Malia Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner) (from 11:31 a.m.), Christian Kay (Planner), Jessica Andrews (Planner), and Sarah Hata-Finley (Commission Secretary). And 1 member from the public in attendance. CLARKSON: Please proceed, Mr. Darrow. DARROW: Thank you, Mr. Chairman. Good morning, Members of the Planning Commission. Again, thank you Donald for all your years of service. We're going to miss you, but we hope that you will join us again in the future. There's always a hope. Well, this is our second discussion on this matter. We met with the Leeward Planning Commission on March 21st and had a very lively discussion. There was an entire room of people at the Leeward Commission. We had approximately 20 people from the public testifying on this particular matter. What we did do is forward the Planning Commission, the Windward Planning Commission, all the testimony that came in for the Leeward, so you may see duplicates because I think they additionally sent it on their own again. We tried to get the transcripts available to the Commission, but unfortunately, our secretaries have been experiencing quite a bit of meetings where there's a lot of transcripts that need to be done, and she wasn't able to get it done prior to this meeting. But, once it is done, we will make it available to the Commissioners. Our goal, again, is to discuss this matter with both Commissions, get feedback from both Commissions, and then look towards some changes in the future to our rules and code regarding condition compliance and time extensions. So, with that, we'll begin our discussion on permit or ordinance condition deadlines and consequences of not complying with condition deadlines. So, first thing we'll do is we'll look at the different areas of code and rule regarding condition compliance as well as time extensions. So, when our Zoning Code under [Section] 25-2-44, there's a section called, "Conditions on change of zone." It says, "Within any ordinance for a change of zone, the council may impose conditions on the applicant's use of the property subject 10V1111.11 11 to the change of zone provided that the council finds that the conditions are: (1) Necessary to prevent circumstances which may be adverse to the public health, safety and welfare; or (2) Reasonably conceived to fulfill needs directly emanating from the land use proposed with respect to: (A) Protection of the public from the potentially deleterious effects of the proposed use, or (B) Fulfillment of the need for public service demands created by the proposed use" and "Changes or alterations of conditions of any change of zone ordinance shall be processed in the same manner as a zone change, unless the council authorizes the changes or alterations to be made by the director. A request for any change or alternation of conditions shall be submitted in writing to the director in lieu of the application required for an applicant -initiated change of zone. The request shall be accompanied by a filing fee of $250." Lastly, "Failure to fulfill any conditions of the zone change within the specified time limitations, or any extensions thereto, may be grounds for the enactment of an ordinance making further zone changes or for rezoning the affected property back to its original zoning designation or a more appropriate zoning designation, upon initiation by either the director or the council in accordance with section 25-2- 43." So, to just reiterate these, basically, when we look at conditions for, to be placed on a zone change or a Change of Zone application, we want to make sure that it meets this criteria. A lot of, there are times that we try to be specific to a proposed project, and that's what we need to kind of stay away from. An example would be if the applicant came in and they are requesting a change of zone from Residential to Commercial but they also had a site plan showing an office building. The reality is we're looking at the zone change. We're not looking at the office building, because once that's approved, basically anything that's allowed in Commercial zoning can be permitted there. What happens is sometimes there's a tendency to want to hold the applicant to that representation. Unfortunately, that's something what we're trying to not do. It becomes in a sense like a Use Permit or a conditionally permitted use. And, we want to look at it, is this area, is this zoning appropriate for this area, and those areas of permitted uses in that district. CLARKSON: Can I ask a question? DARROW: Of course. CLARKSON: So, if a zone change is for any of the approved uses for that zone over basically any time period going on, why aren't, why are there any time limitations to zone changes? Once you change the zone, why not just have it a permanent zone change that is forever? DARROW: That's going to be one of our areas that we're going to discuss as far as what do we do from here, and those are—that's one of the issues that was brought up. Once we approve a zoning change, why are we looking at time, you know? So, that's something we need to look at overall but basically what happens is things change over time, right? The General Plan changes, the CDP changes, the infrastructure changes, so there should be some sort of time requirement to allow the project if it's not built in a timely manner to come back and be re -reviewed as far as does, is it still compatible with the General Plan? Is it still consistent with the CDP? Is the infrastructure requirements still okay for this particular area? So, there's reasons for having a timeline on it, but again, that was an issue brought up in the Leeward Commission, is that if the EXHIBIT E 2 zoning is appropriate for a particular area, why are we considering reversion back to a zoning that's not appropriate? If, you know, we approved it because we felt it was appropriate. So, then the issue becomes should we have time conditions? Should we not? Should we allow time conditions for a period of time and after that it dies and they have to come in for new conditions? So, these are kind of ideas that were brought up at the Leeward Commission. So, moving on, we're going to look now at the Planning Commission Rules regarding time extensions. So, these are similar, the Special Permit and the Use Permit, so I'm reflecting different sections, but the language is very similar. The applicant may apply to the Commission through the Planning Department for an amendment to the permit, conditions imposed. In the case of time extensions, the applicant shall file the request not less than 90 days prior to the expiration date of the time conditions setting forth the affected condition, the length of time requested, and the reasons for the request. If the Commission is not able to act on a properly filed time extension request prior to the expiration, the use granted under the Special or Use Permit may be continued, unless the Commission specifically disallows the activity during the interim period. In the case of additions, modifications or deletions of condition, or the original permit granted, the applicant shall set forth in writing the affected condition, the specific amendment requested, and the reasons for the request. The applicant shall also file a $250 filing processing fee along with the original and 20 copies of the request. The hearing and notice procedures and action shall be the same as under Sections 6-5, 6-6, and 6-8 for Special Permits; 7-4, 7-5, and 7-7 for Use Permits. So, basically, at the Leeward Commission, a question came up was this specifically says that these guys have to submit this time extension not less than 90 days prior to its expiration. So, the question is, and this happens all the time, what do we do if it comes in a year later or two years of five years? Do we just not accept it and say sorry you missed your time? Or, do we say, you know, at this point, our rules don't clearly say you cannot accept it. What we may have to do is accept it, bring it to Commission, and the Commission says you didn't submit timely, you need to resubmit a new application. Or, if the Commission feels that, you know what, this isn't that big of a deal, we can go ahead and look at it. CLARKSON: Well, a time condition is just one of many conditions. Refresh my memory. What happens when a permit holder fails to comply with the conditions of their permit? DARROW: So CLARKSON: What—any, any condition. What happens? DARROW: So, it will come up as we discuss, but basically, there is two means of consequences for—there's the consequence for an ordinance and there's a consequence for permits. So, the consequences for ordinances is just what it had mentioned that we can revert the zoning back to its original or more appropriate zoning. So, basically, you are coming in and you're saying you didn't comply. We're just going to come in and revert this. And, that happens on a—it's becoming more regular at the Land Use Commission. If you don't comply, they revert it. EXHIBIT E 3 Now, as far as permits go, our standard condition at the end of our permit says that should the applicant not substantially comply with conditions therein, the Planning Director may initiate procedures for revocation. So, we don't do that very often, but every so often for really, you know, they clearly are not complying with their conditions and even though we've made attempts to ask them to comply, they don't. Our only recourse is to bring them back to the Commission for revocation. So, that's the two options at this point. So, we're going to touch upon this, so now that we've already done it, we CLARKSON: So, there's no automatic revocation then? It always has to DARROW: Not automatic— CLARKSON: Yes? DARROW: Correct. CLARKSON: Okay. DARROW: Yeah, and again that was another idea brought up, and this is something we'll have to work with Corporation Counsel. Do we have the ability in a particular permit to say if this happens or if this deadline comes, can this automatically be reverted or can this automatically be revoked without an action occurring by the Council or the Commission? So, those are the questions that legally we still need to get answers for. Okay, so, this is in regards to Special Management Area Use Permits. So, we saw in the Use Permits and the Special Permits 90 days. There's a little difference in this. This one says that the applicant may apply to the Commission through the Director for an amendment to the permit or conditions imposed by the Special Management Area Use Permit. In the case of the extensions, the applicant shall set forth in writing the length of time and the reasons for the time extension. In the case of modification or deletions of conditions, the applicant shall file the request not less than 60 days prior to the expiration date of conditions. So, it's a little strange how our rules are coming out. The first one had the deadline relative to time extensions, and no deadline in regards to amendments. This one has no deadline for time extensions but it has it for the amendments in modifications, although we would obviously apply that to time extensions as well. So, in one, we have 90 days. In this one, we have 60 days. So, we, there's obviously a need to maybe make the rules more uniform. The applicant shall also deposit with the Department the sum of $250 to cover publication and other administrative costs, along with the original and 20 copies of that request. Notice and hearing shall, procedure shall be the same as under Section 9-11(c) and (d). CLARKSON: Can I just a question? DARROW: Sure. EXHIBIT E 4 CLARKSON: What do you need with, why the 20 copies? DARROW: With each of our permits, we send out each copy to a different agency with a request for comments, and so, when you look at your Background Report that has all those attached comment letters, those are in response to the copies that we sent all those agencies asking them do you have any concerns that you want us to address through this permit process. CLARKSON: So, you actually send hard copies— DARROW: Yes. CLARKSON: Return receipt requested and all of that stuff? DARROW: Not so much return receipt. CLARKSON: You don't just send them a PDF with an email saying here it is? DARROW: That's our goal, you know, but it takes two to tango there. You need, they need to accept it digitally if we're going to send it to them digitally, but there are some that have requested that the Planning Department send these to them digitally so we can try to get away from paper. But, there are others that are not at that point yet, and so we send them the hard copy. But, we, Sarah [sic -Melissa] sends these out with a deadline on them, so they have a usually one month to be able to respond. If we don't hear from them, it means that they didn't have any comments. But, again, every so often, just like with what happened today with Cellco, we'll receive a late comment, and we need to incorporate those comments into our conditions, and so it will be a late revised recommendation. Moving on. So, these are our typical timing deadline conditions within a Change of Zone or permit, and we kind of spoke about this. This will have—the underlined, the underlined area is again, something we've been moving into for Change of Zones, and the reason why is because we're trying not be project specific. We're trying to put a deadline on it for whatever they propose but also whatever is allowed. So, it will say construction of the proposed development, as substantially represented by the applicant, or as permitted by its zoning district classification, shall be completed within five years from the effective date of this ordinance. Now, the italicized in brackets is our typical permit within aI mean our typical language in our permit condition which says construction of the proposed development shall be completed within five years from the effective date. That is project specific, because they are limited to that project. They can't sway off and go do something else. They would have to come in for an amendment. The remainder of the condition talks about the Plan Approval and the steps they need to take when they come in. Final—this is another condition that's placed on a Change of Zone. Sometimes, they will be asking for a project and other times they will be asking to do a subdivision, so we have a number of applicants that come in to change the zoning from Agriculture to Residential. Everything lines up, and if it gets approved, the intention is to be able to subdivide the lots for housing. EXHIBIT E 5 And, so, our condition will be placed on the timing of the subdivision. So, it says Final Subdivision Approval of the proposed subdivision shall be secured from the Planning Director within five years from the effective date of this ordinance. This is the administrative time condition that's added to each of our ordinances and permits, and you—you'll be familiar with this. It's normally at the end of the permit or the ordinance. An initial extension of time for the performance of conditions within the ordinance or permit may be granted by the Director upon the following circumstances: 1. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant, successors or assigns, and that are not the result of their fault or negligence; 2. That the granting of the time extension would not be contrary to the General Plan or Zoning Code. Included in that with, under General Plan would be the community development plans. And, then 3. Granting of the time extension REPLOGLE: May I ask something? DARROW: Oh, sure. REPLOGLE: On the extension to the General Plan, are you saying that say we granted this approval and within the five-year period, the General Plan changed somehow and they come in back for a time extension, they can be not be denied because the General Plan or the community development plan says something different? DARROW: Correct. REPLOGLE: So, it behooves them to get their job done? DARROW: Right, yeah. So, again, getting back to what this this particular condition is, this is the administrative time condition. This is the one that will not be coming back to the Commission. This is the allowance that is usually allowed for a time not to exceed the time originally granted by the Director as long as they meet this criteria. So, staff will look at the request, make sure that it—normally, I would say 90 percent of the time, the reason for non- compliance is economic downturn. That's difficult to prove when all of a sudden we're getting hundreds of applications coming in and there's an upswing. So, right now, we're not seeing a whole lot of that. We're seeing a lot of guys coming in that now have the ability to be able to move forward with their project because they can get funding. So, these Change of Zones and permits that have been lapsed for a while now can start moving again. CLARKSON: So, let me ask you this. Does the Council ever do zone changes on its own initiative without a request? Like a blanket change to a certain area that's been gradually shifting from one zoning category to another? Do they just ever rezone the whole area? DARROW: In the years that I've been here, 20 plus years, I've never seen that happen. There was one time where the Director was trying to do that in a particular area where there's a conflict of State Land Use designation and County zoning. You have areas that have State Land Use Urban with small County Ag lots, and you have other areas that have State Land Use Ag with EXHIBIT E 6 residential lots. So, there's this conflict. The problem that has, that occurs to try to do a large Change of Zone as well as a State Land Use Boundary Amendment falls with the notification and authorization requirement. Every landowner has to be notified and approve the request. So, they actually have to sign and say that they are giving authorization to do that. Unfortunately, that doesn't happen because people for whatever reason they just will say no I don't want to do it. So, there has been times where the State Land Use has done that, but you'll see that there is certain properties that weren't approved, and it was because they didn't sign. CLARKSON: Well, getting to the rezone thing, they're literally thousands of parcels that are zoned one thing or another, and there is no time limit whatsoever. It could stay there in Commercial or Industrial for decades, and it just stays zoned that way from when was this? When zoning first came in, in the sixties or something? DARROW: Correct, yeah. CLARKSON: All right. DARROW: So, they kind of again, there's no magical rhyme or reason to some of these, some of them there were. This was, the actual use is going on in that particular area, so they try to line it up as best they could. CLARKSON: Right. DARROW: But, yeah, you got some that you just say why did they do that, you know? Now, what—before you can do an overall sweep or even allow for changes to happen, the General Plan has to change sometimes. So, in 2005, when they did the General Plan update, there were certain subdivisions that were obviously not agriculture although they were zoned Agriculture. So, what they did was they changed the General Plan in those areas `cause they could do that without the need for authorization from every owner. They changed it from Extensive Ag or Orchard to Rural, so it allows the potential for Applicants to be able to come in and change their land use from Agricultural to Rural. Paradise Park is a good example, Oceanview, I believe Orchidland. A lot of these more rural -natured type subdivisions have that ability at this time. But, yeah, that's been something that's been very frustrating in the land use process to be able you would like to be able to have the ability for either the State or the County to come in and just be able to zone an area because it's appropriate and at this point, we've been informed that without ownership or authorization from landowners, we're held back, and I think that's only going to be a legislative process that can change that. So, getting back to this, this is again the criteria for approving an administrative time extension. The Planning Department, when an applicant comes in later after this, for a time extension before the Commission, and that's all they're asking. We normally will use the same criteria, because this criteria here basically covers everything that was looked at previously. We're looking at the General Plan; we're looking at the Zoning Code; we're looking at any changes in the CDP's. We're looking at the original reasons for granting the Use Permit which was the criteria that approved it. And, so, that's where people are thinking, well you guys are just EXHIBIT E 7 approving time extensions, but we really are looking at it with the criteria that we would look at a new permit to see if it's still consistent with—yeah. Okay, so the extension shall be for a period not to exceed the period originally granted for performance. Example, if a, your typical five-year time extension, the Director would have the ability to grant up to five years. There hasn't been a lot of times, but there's been a few times where the Director said I'm only going to grant you a year because maybe he didn't feel like they were being serious enough or maybe that was all the applicant was asking. They're real close and they just need a year. And, then lastly, if the applicant should require an additional extension of time, the Planning Director shall submit the applicant's request to the County Council or the Planning Commission for appropriate action. Any questions? CLARKSON: Now, this is in the Code not our rules, right? DARROW: This is, this is normally the last condition on an ordinance or a permit. Yeah, so this is just a condition, because people are asking where is all this coming from? So, we're trying to bring the information forward. Okay, so, typical consequences, condition within a change of zone or permit, and we talked about this earlier. In an ordinance, it says, "Should any of the conditions not be met or substantially complied with in a timely fashion, the Planning Director may initiate rezoning of the area to its original or more appropriate designation." For a permit, it would say something similar, "Should any of the conditions not be met or substantially complied with in a timely fashion, the Director may initiate procedures to revoke the permit." So, these are some of the ideas that have come out in the discussion for this. Number one, the the Planning Commissions and/or the County Council has the ability, if they feel that that time extension was way beyond the time, like we've been seeing a lot of—not a lot, but a number of time extensions come before the Commission and the Council that has been sitting for ten plus years, and now they have the ability to move forward, so they just come in with a time extension. And, nothing's been done for a period of time. We have some that are actually, have been lapsed for 30 years, and they're just sitting there. So, the Commission has the ability to deny the time extension request and ask the applicant it's been too long, you need to come back in with a new permit. You need to re-evaluate everything again, come back with a new permit. So, that's one option. This would require additional action from the Planning Commission or Council to revoke the permit or zoning ordinance. Number 2, placing an expiration date on a permit or zoning ordinance so that it automatically expires without the Director, Commission, or Council having to take further action. So, again, this is an idea that was brought forth. It needs to be looked at legally to see if that can even happen without an action being done by the Commission, without Director, Commission, or Council. 10V1111.11 11 We are considering a process similar to the Land Use Commission which is what they call order to show cause. So, let's say we have an applicant that this particular rezoning has been sitting here for ten years, and we haven't heard from them. There's been, you know, no annual progress reports, no requests for a time extension. We are considering creating the procedure of being able to initiate an order to show cause, and what happens is basically, the Commission or the Council votes to issue an order to show cause to the applicant. They will be required to come before the Commission or Council, and they are the ones that have to show compliance or lack of compliance. And at that point, the Commission or Council can initiate if they feel like you know what, you haven't done anything, you're not going to do anything, we're going to revoke. The otheror, the Council can say we're going to, we're going to revoke this ordinance and anybody that comes in the future, so it can be reverted or it can remain the same without conditions, but for them to come back to Commission or Council to refresh those conditions. So, it's like they have to submit a new application. And, again, that's something that has to be worked out. With, with the Land Use Commission, they only have two options: revert, don't revert. They don't have the ability at this time to amend the conditions. They were asking for that in the last legislative session, but apparently the bill died. They would like to have that flexibility. I don't think the Commission or Council is limited by that. I think you would have the ability to be able to revert, not revert, or amend as you see fit. Okay, so, as we mentioned, it places the responsibility of proof of performance on the applicant instead of the Department to have to prove that. We are also considering something that the Land Use Commission does which I don't—again, this is a legal matter, but we noticed that they, during the order to show cause hearings, they would ask the applicant to show proof that they have the ability to finance the project, and it was pretty interesting because, you know, I mean, they'll come with a letter from the bank saying we can loan you this much money. And, then, they got a question well, is that letter legitimate, right? Did you just make that up or, you know, but they didn't—they brought the letter and it said yeah, we can finance the project, but then it was like, wait a minute, it that a legitimate letter? So, we were dealing with some characters at that point, so there was reason to question. But, it would be good HALL: —Stay on topic. DARROW: I'm trying, I'm trying. It would be good to have some information provided like yeah, we have the ability, because a lot of times, the people, again the main reason we are hearing is that they didn't have the ability to move forward financially, right? They couldn't get a loan or whatever it was. There are times that its other issues, mainly health issues, something happened, and that just can't be helped. Those things are unforeseen. So, to kind of come to a conclusion here, one of the, a few things that came up at the Leeward Planning Commission, and this has kind of been the way we've done things in the past `cause we've had a number of ordinances as I've mentioned that have been sitting for years. So, you know, we come across them every so often in our everyday activities, and we say hey, these guys are out of compliance. What do you want to do? And, the—at the direction that we've been given at this point was, well, it's currently the appropriate zoning for the area even though they EXHIBIT E 9 are not in compliance, for anybody to move forward on that property, the time has lapsed, they have to come back. So, it just sits there. It's the appropriate zoning. When somebody is ready to go forward and be able to do a project there, they will have to come back to Commission and Council, and so that was one of the, one of the ideas brought up. But, the way that the speaker spoke was instead of, it almost was as if like we were saying that after a particular time, the ordinance almost in a sense dies, and you have to come back for new conditions. I don't know legally again if we can do that without an action being done. That's why this might be, this current process that we do might be okay in the sense that it just stays there, no one—it's not doing anything, it's not hurting anybody. The misunderstanding that was happening at the last hearing was that, oh, by them sitting there, they don't have to pay, you know, the fair share, and they don't have to pay the impact fees, and they don't have to put in the requirements. That's true, but when they come back in, everything is going to be adjusted to the higher rate, so they actually will have to pay more on fair share rates. The Honolulu Consumer Index is continually rising. It's going to cost more for them to put in the infrastructure. So, it's actually, more detrimental to them to let it sit longer. So, these are the ideas that we have. We're always open to more ideas and suggestions, and again, so what we want to do is kind of get feedback from both the Commissions and then maybe present some more solid proposals of rule changes and code changes, or if everything seems to be going okay now, we just adjust it to be consistent and move forward there. But, anyway, that concludes our presentation. AGUINALDO: Hey, Darrow, how many of those, you know, like you said been sitting 30 years, 10 yearsI'm assuming it's just a lot of paper taking up County space that's just sitting, yeah. DARROW: We have— AGUINALDO: —Must be a lot DARROW: —gosh, maybe, we have a several thousand rezonings, and it's unclear if you go back in time how many of those were complied with or not complied with. AGUINALDO: Right. DARROW: So, we kind of just wait and then every so often, we get somebody that comes in any says I want to do something on this property, and we say sorry, you gotta go back to Commission and Council if you want to get a permit approved or do anything. And, you know, so in time, they all come back to us, I mean, because somebody wants to do something. We have some that, you know, it's kind of funny. I'll use an example of one. They came in. They got Industrial zoning. They created a massive junkyard with like literally a thousand cars, you know, on the property, and they can't comply with their conditions, so they want the Director to revert it back to its original zoning, and it's like you can't—you gotta got rid of the cars if you want to revert the zoning. You know, you're doing industrial uses there. So, he's like, oh, you know, what I do now? So, if they end up using the property for what its zoned for and try to revert it, that's going to backfire too `cause we won't initiate that. EXHIBIT E 10 CLARKSON: So, you are wishing to testify on? FOSTER: Yes, sir. CLARKSON: You will? Can we DARROW: Sure CLARKSON: have public testimony now? Get her out of here before lunch. Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? FOSTER: Yes, sir. CLARKSON: Would you please introduce yourself and then provide us with your testimony? FOSTER: My name is Laura Foster. I work for HOVE Road Maintenance Corporation. The reason I'm here to testify is over the Special Permit applications and processes. So, first of all, thank you Chairman. Thank you, Commissioners, for all your work. Because of my work, I've been following two Special Use Permits quite closely. My concern is first of all, the Use Permits have very vague language in them which I think that this Planning Director might take a look at and tighten those up. Second of all, these permits were granted in 2016. One of the conditions was supposed to be complied with within one year. This is now 2019. There's not been a single condition complied with from either of those entities. One of them applied for an extension to the Special Permit even though he hadn't followed the Special Permit to begin with, so I'd just would like to bring that forward that some of these Special Permits are out there that doesn't appear anyone is looking after or minding. And, I guess, maybe this isn't the right place to file a complaint or to complain, but the allowance of extensions, in my opinion, these people are asking for extensions because they merely didn't comply with their Special Use Permit, and under those circumstances, I don't believe that that should be, you know, an extension that should just be granted, and no one is notified that, you know, that they're looking for an extension so that it can come forward with well, what about their compliance. That so isthat's some of my concerns with the way Special Use Permits are put out, and I was in attendance of the Leeward Commission two weeks ago, so I just—most of that testimony was over the ordinances. CLARKSON: Are there any questions for this testifier? No? Thank you very much. FOSTER: Thank you. CLARKSON: If there are no other people that are wishing to testify at this time, I'll ask for a motion that public testimony be closed. DELA CRUZ: So moved. EXHIBIT E 11 RAFFIPIY: Second. CLARKSON: All those in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Motion carried. There is nothing for action today as far as I can see, so there's no motion for action. I would just like to say that I see a major distinction between a rezone ordinance and a project specific permit application, and I would like to think that rezoning would be treated as a—very differently than a project specific application and that a rezone would be considered to be permanent and with basically no time conditions whatsoever since the vast majority of the properties that are zoned have no time limit on their zoning status. And, you know, then years could go by or decades, nobody does anything, but when they do something, they're going to have to follow the same rules that everybody else does. I also think that most people don't just, you know, gratuitously come in and apply for a zoning change without having some project in mind, and if it doesn't happen, you know, there are probably unforeseen reasons and maybe they sell the property, they can't finance it or whatever, and somebody else will do something different, appropriate for that zoning. Anyway, that's my two cents. RAFFIPIY: Can I ask a question? What is our mechanism that is on permit extension? What's the mechanism in place for us to if somebody come in and request for an extension for, you know, the permit, for instance, for us to know that they met all the conditions prior to us granting another, or granting an extension? What kind of mechanism do we have to verify to confirm that they have met all the conditions? Because I believe they should at least meet all the conditions before we extend another, grant another extension. DARROW: Thank you, Commissioner Raffipiy. What—this is another area that we as staff realize that is lacking in the rules. It just says that the applicant shall submit their request and reasons along with the original and 20 copies and all the time, they ask do you have an application, what do I have to submit? So, staff basically kind of guides them as to what they need to submit, and basically, we ask them to give us a history of the project, because there's been history. So, we ask them, you know, original—what you ask for. We ask them to submit the permit as an exhibit. We ask them for a chronology of everything they've done, but more importantly, we ask them for an updated status report on conditions. And, so that way we know if they've complied with it or not complied with it. And, if they've complied with it, we ask that they submit something showing the compliance. Like if they got Plan Approval that they submit their Plan Approval approval to us. So, that's something that we need to update our rules, and we may actually create a form so that it's very clear that they request, that they submit information that's relevant to the request. They—staff all the time say this one comment, and it's sometimes we find that extensions and amendments are a lot more difficult than a new permit because you're dealing with a lot of history and issues and all these things come up, and it's sometimes, it's just easier to deal with a EXHIBIT E 12 new application. I mean, you folks saw Wailani, right? I mean, that was pretty radical for an amendment, but it was a number of amendments that took a lot of time to go through and try to address each and every amendment request. But, anyway, so that's something we'll be working on as far as staff goes, but yes, we try to ask that they submit an updated status report on conditions `cause that's important. RAFFIPIY: Thank you. So, if we don't have anything in place right now where as the, let's say a project is ongoing where the developer will submit a, some kind of status report that we have met these conditions. We had a, you know, as they progress through, or is that way to much to ask? DARROW: We, and thisI'm glad you brought this up `cause it just triggered something else I wanted to talk about. The, when we look at a project, some projects are manini, right? They're small, and so we're like, it's not that big of a thing. There are other projects that are larger that we feel we need to keep a handle on this project. So, the Commission or the Council will put in an annual progress report conditions, and so every year on the effective date of the permit, they have to submit an updated annual progress report that addresses each condition. Unfortunately, some times, for the first four years or so, its applicant will comply, applicant will comply, applicant will comply, and there hasn't been any action. Others, other times you see, you know, they're moving. And, so we get an idea which projects are moving and which ones are kind of stale. But the other thing I wanted to bring up in light of that is the fact that our typical time condition on our developments and our ordinances is five years. And, so, what we, what we want to try to do is keep in mind that our time really should be relevant to the project. So, it's something small, then, yeah, maybe we can keep it at five years or three years, and they have the administrative for the additional time. If it's something very large, five years isn't—they're going to, they're not going to meet their conditions. So, Kaupulehu which was in Kona just recently, they had a 20 -year timeframe. So, it was because that project was so big that, you know, they realized that this was going to take 20 years to get to the point where they could finish the project, and even in that 20 years, they were only half done, so they had to come back and ask for an additional 20 years. But, again, so we're going to try as staff when an applicant comes in, normally their request is five years because they just think that's the standard request. We're going to try to see if we can keep in mind that there needs to be a correlation between the size of the project and the time. But thank you. RAFFIPIY: Thank you. YEE: So, comments from the Planning Director. First of all, I appreciate Jeff and his staff, Maija. Ever since I've arrived here and, you know, in early 2017, the question around time extensions has been out there. Again, you have to appreciate that Jeff and his division is all application based, right? They get an application in, and they got so many days to move it through. So, that that's first priority. Then we have the line-up of projects coming in to us that EXHIBIT E 13 want a permit, who they're constantly consulting with in trying to help them. So, then you get to this point of when do we have time to make rule changes, code changes, and that falls on the back burner of stuff, and we accomplished some things in the last two years. I will say in very short order here, when time extension was really bubbling up, Jeff and his staff have cranked this out in reviewing it. I said at Leeward it is not coincidence that time extensions are coming up in Leeward Planning, Windward, the Council, with all the community groups, and so, the winds have changed. Peoples' attention are on this. Decades have passed on some projects. They're coming back to us now, and now we're dealing with them, so I think this is just kind of a natural kind of an order of things for us to look at this, so they've, we've received a lot of great comments from Leeward. We had great discussion today. Staff will go back and look at amendments they want to put forward, too. I do want to comment, and I made this comment on Leeward, that there was a lot of testimony in Leeward. The room was packed, and unlike today, although I really appreciate your comments, that's because they were very, some very high profile cases, permits in Leeward that time extensions are coming up on. And, so everybody's attention was on the Planning Department over why are you going to give them a time extension, and I had to remind folks that we process a lot of administrative time extensions that the Planning Commissions don't see that are very appropriate for us to do. A lot of folks were like every time you shouldn't grant any time extensions. They should all come back automatically, and they should resubmit everything in an application, and understand that there are a lot of smaller, regular folks like you who put in applications that's you know, in one case recently, the mother died. It's taken years for the family to sort through the estate to get to where they wanted and they needed an extension. You know, not all these applications will go to you, but that's just an example of people trying to deal with these very high -profiled cases not understanding that the Planning Department does deal with a huge number of just regular folks putting in applications trying to get permits through us. And, so I want us to be careful that we don't throw out the baby with the bathwater because we're trying to address some very large -scaled projects that, yes, have some rub. So, I just wanted to give that context to everybody today. Thank you. CLARKSON: Any further discussion on this matter? [None.] The discussion ended at 11:40 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT E 14