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HomeMy WebLinkAbout2019-08-01 Hearing Transcript - Admin Matters #2WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT AUGUST 1, 2019 A regularly advertised hearing on the summary of the discussion on permits and ordinance condition deadlines and consequences of not complying with condition deadlines (Administrative Matters) was called to order at 10:50 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Joseph Clarkson presiding. COMMISSIONERS PRESENT: Dean Au, Joseph Clarkson, Donn Dela Cruz, John Replogle. ABSENT & EXCUSED: Gilbert Aguinaldo, Thomas Raffipiy. ALSO PRESENT: Michael Yee (Planning Director), Malia Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Christian Kay (Planner), Alex Roy (Planner), Jessica Andrews (Planner), and Sarah Hata-Finley (Commission Secretary). No members from the public were in attendance. DARROW: All right, if I could direct your attention to our next presentation. This is a summary, April and—March and April, we met with the Leeward Planning Commission in March at the Leeward Planning Commission meeting. We met with, we discussed this at the Windward April Planning Commission, and basically what it was, was there was a request by the Leeward Planning Commission to discuss permit and ordinance condition deadlines as well as consequences for not complying with these deadlines. So, we had a lengthy discussion at the Leeward Planning Commission. During that time, the entire room was filled with testifiers discussing this. I would venture to say that a majority of them were there based on a particular project, so it was more talking about a specific project that they didn't, there's a lot of opposition going on. But, overall, there were, there was testimony in relation to this topic generally. The Commission had a lot of good topics to share as well as the Windward Planning Commission. This is a summary of those discussions as what we're doing in this, is we're providing a summary of the ideas from the Commissions as well as from the public, and we're including some from staff. So, we'll begin with ordinances. This should be a pretty quick review, but a reminder, the authority for ordinances is the County Council, so what you're going to see is a lot of their regulations come out of Code. So, if we do a Code amendment, it will come before the Commissions and then a recommendation to the Council. I0,141111.11 11 One of the ideas or requests, yeah, suggestions, which basically, in our opinion, has been occurring anyway—which was, keep the zoning in place as it is the appropriate zoning for the location and then we just focus on refreshing conditions. And, we can discuss that, but for example, if an ordinance, if a request for a change of zone comes in, and we do our review, is it consistent with the General Plan? Is it consistent with the CDP? Is it consistent with the Zoning Code? Is it appropriate for this area? If it gets approved, then it has met that criteria. It makes no sense in the future for non-compliance to consider reverting it back to something that may not be consistent or compliant with that area at that time. A good example a lot of times is going from Agricultural to an Urban zoning district in an area that was clearly an urban core like in the middle of Hilo or in the middle of Kona. The long- range plan for that area is Urban. It's either Residential or Commercial or whatever it may be. But, it makes no sense to revert it back to Agriculture after it's already been brought to this particular zoning. So, the idea is they still want to, the suggestions were they still want to be able to have a time deadline, you know, on conditions. And, again, that's a suggestion, one suggestion. There are others. The Windward Planning Commission suggested no timelines. Zoning is appropriate. Whenever they build it, they build it, right? So, those are some of the suggestions. So, we'll talk about some of the deadlines or the deadline. So, one of them again, which was brought up by the Windward Planning Commission, having no timeline or deadlines. The zoning is appropriate. When the build it, they build it, regardless of how the economy is doing or regardless of any other issues. This was brought up in the Leeward Planning Commission meeting that there are a number—let me just finish this slide real quick, sorry about that. There are a number of properties around the island zoned already. They've been zoned from the beginning when zoning was created in [the] 1960's. So, they have no conditions placed on them, right? They were just boop, you're zoned. So, whenever they do what they do is whenever they do what they do. There's no timeline. So, the thought was, hey, if it's good for them, it should be good for others, right? Commissioner Replogle? REPLOGLE: My question related to what you were saying. I wasn't quite following you earlier saying when zoning is changed, it's done. How does timeline come into that? Wouldn't time line be more related to conditions and things you want to do in that new zoning? DARROW: Correct. So, I mean, what's happened in the past is it is, there's been too much of a focus on project specific on zoning. Now, that's appropriate for permits, but when it comes to zoning, it allows for a large amount of permitted uses, and we shouldn't be focusing on a specific project because that's, it was almost like becoming conditional zoning, like Use Permits, right? Like you have to do this project here because you said you were going to do this. So, you have this much time to do it, and if you don't do it, you gotta come back to us, and if somebody else wants to do something different, they gotta come back to us. But, the problem with that, again, is that the zoning allows for all kinds of things to happen, so what the focus should be is looking at the zoning that's being allowed and assessing it as—what we've been doing is assessing it at the highest possible impacts that can happen for those uses in that zoning district. So, even though the person may say oh, I'm just planning on doing a simple little office building with three units, well a gas station can go there or a McDonald's can go there. So, we look at it from EXHIBIT D 2 that standpoint that yeah, you're proposing that, but the, it could change, you know. But, yes, the conditions are placed on there to make sure that they do certain improvements with the project that they're doing. Chair Clarkson and I were discussing that earlier, is that, you know, the conditions we send out, the applicant submits 20 copies of each application. We sent it out to all these agencies requesting for comments. They submit comments saying we want to see this done on the project and this, and we want to see curb, gutter, sidewalk, we want to see these drainage improvements. Those kind of things. We place those in as conditions. The problem that has been occurring is that we're getting requests for zoning extensions, time extensions, sometimes 20-30 years after the original zoning was approved, right? And, so, they're coming back just asking for a time extension. The Leeward Planning Commission felt that's not right. If anything, we should make it so that their conditions have expired. They need to come in with a whole new request, but to review it almost as if they did when they originally came in. So, they have to have all the reports, all the studies. We review it like we would review—is it still consistent with the General Plan? Is it still consistent with the CDP? And, those kinds of things. Now, if it isn't, let's say 30 years down the line, the General Plan changed and now all of a sudden that property that was slated for Urban is now slated for Open, then they're not going to get their zoning approved. Their request, even though it's in a sense a time condition, we're looking at it brand new, right? So, that's one of the options here. The other thing that came up was that you cannot look at each project the same. Sometimes, you have a small, little 20,000 -square foot lot come in for a residential rezoning that's going to allow one house, and you have conditions, and you tell them you can do that in five years. And, then, you have a person that comes in and they have an acre of commercial, and we tell them well, you have five years to do that project. Or, if they come in with a 100 -acre project in, you know, some of these project districts that are huge projects, there's no way they can do this project in five years. They'll be lucky to get through the permitting in five years. So, we want to be able to start considering this phasing option where maybe we have a time condition on the first phase, and then it initiates the second phase. We don't know at this time yet whether or not it's appropriate to have conditions for each phase, but once you know, okay, they're off the ground, they're running, then, okay, they're going. You know, they're on their way. Another suggestion was to not writecurrently, conditions have a deadline and then there's an allowance for an administrative time extension. Planning Department feels that's appropriate because at that point, there's conditions in that language that say if the project still is consistent with the General Plan, if it's still consistent with the Zoning Code, if it's, if the reason for the request was not based on their fault but unforeseen circumstances, the Planning Director can allow an additional time period for before they have to come back. What's a possible suggestion, is to add in a little, another requirement for that administrative time extension that the applicant should have done something—either come in for Plan Approval or a Building Permit or done some sort of work on the property. But, if they after five years, did nothing, then really at that point, it's like, are you really able to proceed with this project? So, again, that's speaking about this. EXHIBIT D 3 We were considering the Land Use Commission recently created a definition for substantial commencement, and it identified how much of that project has to be done for it to meet that definition. And, then, lastly, because of the fact that there is always this process that somebody has to go through, an applicant, before they can start their project, we're considering the possibility of starting the timeline at a particular time, like when they receive Plan Approval. Then, they have five years to do the project. So, you don't lose that two or three years trying to get Plan Approval. It's not, you know, because currently, it takes them a long time to go through that permitting process, then after they're done, they almost depend on that administrative time extension to be able to really do the project. Let's move on to permits, which are clearly the authority of the Planning Commission. So, this would include SMA Permits, Use Permits, Special Permits, and now also PUD permits which we haven't seen yet, but eventually. We definitely need to go in and fix the rules on, the Planning Commission rules on these permits because they are not consistent with each other. They're different. And, so we need to bring uniformity. So, the possibility is either. So, in the discussion right now in one of the rules, it says that the applicant has to submit the time extension request 90 days prior to the deadline. Okay, another permit says 60 days prior to the permit. The question is, is what happens if they submit 80 days prior to the permit? Do we say, sorry, that is not acceptable, you know, so in discussion with a colleague, we were thinking maybe the more appropriate is to just say they have to submit prior to the deadline. Because legally, that's the deadline. You know, you can't really make 90 days prior to the deadline the deadline, because that's kind of—it's harsh. So, even though it may take them time after they submit to go through the permitting to get their approval, the Commission felt, they kind of say, well, you know, still that's kind of, you know, they'll wait till the last minute. Believe me, if these applicants know that that timeline is coming up, they are aware of it. They're gonna submit. The problem is a lot of these guys aren't even focused on their permit. They don't even, they don't submit their annual progress reports. They don't submit the time extension until a year or two after. So, those are the kind of guys, I think, that are gonna be affected by this. The other thing is, is that if the applicant submits—let's say they submit just at the deadline, and it takes 90 days to get their approval for a modification or an extension. If they come in for any type of permit or Plan Approval during those 90 days, we won't approve it because their permit is expired. I mean, the timeline has finished. We would tell them you have to wait until the outcome of the Planning Commission hearing to come back and get your permit. So, that's the, that's the consequence they get by waiting. So, on project deadlines. So, again the same sort of discussion. If an applicant comes in—now, this is a little different for projects because in permits, it is project specific, right? We're not looking at zoning. This is a Special Permit, an SMA Permit, or Use Permit that says I'm building this structure and I'm held to that. I can't change that. If I change it, I gotta come in. So, timelines might be good to be a part of this because of the fact that it is project specific. There was a consideration to say maybe we don't consider the administrative—we just give `em EXHIBIT D 4 what we think. We look at this project, and we say, this looks like it's going to take eight years to build, and we give `em eight years. Or, this looks like it's going to take ten years, we give `em ten years. If it looks like it's going to be longer and larger, then we do what we were talking abouta phased approach where we deal with the first phase. And, we have the applicant submit that phasing plan, what they realistically think they can do within a time period. REPLOGLE: How does the annual progress reports fit into all of this? You mentioned it a little while ago when they didn't DARROW: So, they're, they're placed as a condition to ordinances in permits on what we consider larger projects, because we need to know where they are at in a given time period. On the smaller projects, we're not, we don't want to bog ourselves down doing, you know, a ton of that, right, but on larger ones, we do make that. And, so that helps us to understand every year what sort of progress they've made with that project. So, when someone calls us and says hey what's going on with this project, we can look back and say well it looks like they've got Plan Approval and they are submitting for Building Permits or something. Now, granted there are times that the applicant doesn't comply with that, right? And, we have to kind of say, hey, you know, you haven't done your annual progress report for four years. And, they'll come in, oh, here's our annual progress report for the last four years. It's unfortunate. We don't have any type of consequence, but it makes us understand that that kind of situation in these new changes will again show that these guys really aren't ready to go forward with their project. REPLOGLE: If they're not coming in with their annual progress— DARROW: Right, because the progress report is probably going to say they didn't do anything. You know what I mean? Because they're not really focused on their conditions and doing what they should. Now, I think that's the key that we're trying to get here is that if an applicant really isn't ready to go forward with the project, why should the Planning Commissions be granting them approval to go forward? And, that's where there's, the Land Use Commission. In sitting in with some of their hearings, they require some sort of financial proof that they are able to proceed with the project. Now, I don't know if we can go to that sort of extent, but it is something that we're thinking of adding in the application that please provide information regarding your financial ability to proceed with a project. CLARKSON: Well, that's there's a Catch 22 there, because anything that requires financing, you can't go to a lender and say please finance my project without having the permit to do it if they say, and then if you say, well we're not going to give you the permit until you have a letter from your lender DARROW: Yeah CLARKSON: then anything that needs financing is dead in the water. EXHIBIT D 5 DARROW: Right. And, that's the problem that we run into, is that they're telling you this, but really you don't have the information because the bank isn't providing you with some sort of loan guarantee or anything. REPLOGLE: Could that Catch 22 be dealt with, with the annual or biannual even progress reports, when the permit is issued say we're going to do this, you have this much time a year, whatever, to get financing, and we need a report on that before this can move forward. And, that could be the catalyst to be sure that annual reports are filed. And, as you say, if they don't file them, you know, they're not doing it. DARROW: That's a good suggestion. The other alternative is maybe a specific condition after they've received approval to provide information of the ability to be able to move forward with the project. And, again, I think they, the reason for the focus on this is the Commission was concerned about speculation. People getting their zoning or getting their project approved, turning around and selling it, and just making money off the work they did for that. Because the value of a commercial property versus a residential property is much higher. So, they did this work to get it rezoned and then they go and sell it. So, we'll talk a little bit more about that, too, after. AU: Question, Jeff, so, you know, they—what, so there's applicants out there that come out, outright and say that their intentions are to sell it. So, how do you deal with that? DARROW: That's speculation. The General Plan, all through the General Plan AU: —And, they can do that. DARROW: Well, no, it says to curb speculation. It actually is saying do not, you know, make efforts to not allow speculation, because that increases the value of projects and makes it more unaffordable. Right? And, so that's the intention here. I must reallyI think it's just going off on its own, but, and I have a little blurb on that at the end of this that talks a little bit about that, but again, that's one of the things—we're not bringing that up. That's something that's being brought up because of these concerns from the public as well as the Commission. And, again, I gotta say some of the statements that are being made by the public I think are misunderstandings. They, for some reason, they think if a project doesn't get off the ground and sits there for 30 years that somehow that's speculation. That's not speculation. That's just that project couldn't get off the ground. In fact, it's the actual opposite, because if they had built the project back 30 years ago, it would have cost them probably half of what it would have cost today. So, it now increases the cost to be able to do the development, as well as when they come back in and get their permits, they open the door for all these new updated conditions that are far more strict than it was back then, including fair share. That's probably, if they even had fair share back then, would really cost the developer a significant amount of extra money. Anyway, that's just my thought on that. CLARKSON: So, for rezones, when the fair share applies to a new rezone, it doesn't apply to an original zone from the sixties where the person comes in for a Building Permit, you can't go, oh, EXHIBIT D 6 fair share. So, fair share in and of itself is a, is a tax on, it's the public recouping some part of the increase in value from the rezone. DARROW: My understanding it's like a community benefit assessment. It's to be able to help regionally with the impacts that are going to be generated by this specific project. So, they pay monies towards Parks & Rec., towards Police and Fire, towards wastewater, and towards roads, and it can be used in that region for specific improvements. On top of that, there are conditions specific to the impacts that this project is going to generate right there locally. But, yeah, you're right. On a zoning that wasn't in place, I mean, that was original zoning, they have no conditions. The only option that I see in regards to our discussion earlier that if you treated all zoning that same way where a zone has been changed, but you don't place conditions on it because you're looking towards other departments to be able to place these conditions on it through the process. The fair share could only be taken care of if there was an overall impact fee ordinance done, and that occurs usually when they come in for a Building Permit, and that's how that would apply across the board. But, if that were to happen, that would mean that Public Works, whenever a project comes in, regardless of conditions on a zoning ordinance, they would have to do these curb, gutter, sidewalk improvements if they are along a particular road. They would have to do drainage improvements if they came in and did a project. I mean, there would be a whole number of specific conditions that would have to be placed through the permitting process, I mean, through the whatever it isBuilding Permit or Plan Approval. But, it is, it's something to consider but I don't know if it's something we can do in this particular time frame. Right now, we just are trying to deal with getting applicants to understand that they have a limited time. If they don't meet that time, they are going to have some consequences to deal with, possibly having to come back into the Commission and Council if they don't meet that timeline. The—okay, so the other option is, besides no administrative time extension and we spoke about this before, is to not grant the administrative time extension unless there has been progress on the project, right? And, we would have to create this definition on what progress is, yeah, substantial commencement. The other option is put an expiration date on the permit. Once that date has passed, the permit is void, and the applicant will need to submit a new project. Now, this kind of was what I think was the focus here, was because normally the way both the ordinances and the permits read now is that if a condition is not met, and the deadline passes, there has to be another action. Either there has to be a revocation action by the Commission or there has to be a reversion by the Council, a reversion to the ordinance. This is a good idea, and in speaking to our colleagues, I think it can work legally because you just say, you just change the rules. You just say, okay, from now on, you have this much time. If you come in prior to that deadline, and you submit for an extension, you can go forward with an extension. If you come in five years later and ask for an extension, you can't do that. You gotta come in with a new permit. It may be the same project, but you're going to have to do like what we said. You're going to have to refresh all the reports. You're going to have to refresh the traffic study, and it can be expensive. And, so, maybe, you know, that will EXHIBIT D 7 REPLOGLE: I think that would go back to the annual progress reports again. Everybody, them included, would know— DARROW: When REPLOGLE: —it's happening. DARROW: Right, yeah. CLARKSON: Well, I will say that if you do put an expiration date now I'm talking about permits, now, not rezones—if you put an expiration date on it, it has to be crystal clear what has to happen before that date so that the expiration does not apply. Either you have to get your certificate of occupancy or some other critical, easily defined document, because what if, you know, it's not crystal clear. They get the thing half built. The expiration date happens. Now what? Oh, I'm sorry, your permit is expired. Stop work now. So, I mean, you know, what— DARROW: —You raise a very good point, okay? And, we've run into this nightmare before, and what it is, is that we don't have a very good definition. We don't have a definition of what complete construction means. Okay, so people think, oh, I've completed my construction. We've had—well I won't go into the past, but anyway, what it should be is exactly what you're saying. You identify specifically in a definition what complete construction means, which means if it's a commercial project, they have to receive [a] certificate of occupancy, which means they got their final Building Permit, and it was all signed off by all the agencies. If it's another project, the residential, it would just be a final on the Building Permit. So, those kind of things. But, right now, we've had, because there is a lack of definition for complete construction, somebody built something, got a Building Permit, never finalled it, and never CO'ed it, but was able to build it, and so apparently, that meant the definition of complete construction. So, again, and, then it's held in limbo for however long, because they met that condition apparently. But, so, that is a good suggestion that I need to definitely put in this amendment is to define that. AU: How about the request for extension? Would that be Planning Commission decision or just a Planning Department decision? DARROW: That's, the discussion now is whether or not we want to continue allowing an administrative time extension granted by the Director for certain circumstances. And, again, I think we're suggesting that just beyond the conditions we have now to also place in a condition as part of the usually, it's the last condition in a permit, right? The administrative time extension. There's three criteria. We'd like to add a fourth one that says that the applicant should have done substantial commencement, and then we define that. So, it's something where we say they put in the infrastructure and maybe 10 percent of the building. Or something. Just so that it's clear they're not just, you know, buying time, right? If they come in and they haven't done anything, and they want a time extension, an administrative, and they haven't done anything on the project, I think we would all agree that at that point, it might be better to have the I0,141111.11 11 applicant come back to the Commission and request for the extension so that they can speak directly to how they are going to finish this project if they haven't even started. CLARKSON: For project specific permits, which all of these are, my feeling would be give them plenty of time to get to some kind of milestone that marks the completion of whatever they were proposing. Plenty of time so that there is no need for administrative extensions. They've got time to go get their financing. They've got time to get their Building Permit. They've got time to build it, and whatever that marker was that was set up in the beginning, if that's not reached by that time, it's all over. The permit is void. They gotta start all over again. That's my feeling for project specific permits. DARROW: And, I believe that's the direction of the Leeward Planning Commission, too. I think that's what they want to see, is they want to see a specific expiration date the permit becomes void, and it's just, we change our rules to make that happen. We don't have to go through another process where we bring `em in and void the permit. It's just clearly stated as a condition in the permit. At that point, yes, they would have, they wouldn't come in with a time extension. So, that's the question, right? So, let's say it's, you give them ten years to do this project. Nine years, nine months they come in a with a time extension. Do we say okay? Or do we say nope, you gotta come in with a new permit. CLARKSON: Exactly, they gotta come in with a new permit. DARROW: Okay. CLARKSON: There's no extension period DARROW: Beyond that time. CLARKSON: They gotta come in with their final. They gotta come in with their certificate of occupancy. They gotta come in with some document from some agency that says originally that was part of the permit. You gotta come in by this time with this document or your permit is void. HALL: I would just caution on thein the law, basically, there is the rule of like, you know, if you have substantial commencement, taking away entitlements can get tricky. So, I would say a more case-by-case basis on that situation. If you come in at nine years or whatever, we still, I think you still have to look at how much of the project they have completed. Like you said, if they're half way done or even, you know, 90 percent done, and they just can't get that CO because, you know, the floor that they put in is peeling or something. You know, I think we have to really look at—it's really hard to do like one rule for everything. I feel like there really needs to be project—for project specific permits, there kind of needs to be a project, like a case- by-case basis basically. So, that's all I would caution the Commission on is if we try to put everybody in the same box. Not everybody is going to fit, and we may run into problems where, EXHIBIT D 9 just like you said, somebody has a whole thing built, and now you're going to have them go back to "A" and do their traffic study again and do there, you know, it's kind of tough. CLARKSON: I think when an applicant comes to us and asks for an application for a Use Permit or Special Permit, and we say to them we're going to recommend this permit be approved, and by the way, 10-12-15 years from now, you have to show this document to the Planning Director or your permit will be void, and everything you've done up to then is REPLOGLE: Lost. CLARKSON: —lost, it's pretty clear, and they say yeah I agree with that, that's fine with me. DELA CRUZ: Okay HALL: Okay, but let's just say there's a lava event or there's multiple hurricanes or, you know what I mean? There's things that can stop—I guess that you can put in the active, like the force of nature stuff and whatever, but still there's things that happen that are unforeseen. So, sorry— DELA CRUZ: Okay, what about like the project with Keahole Power Plant? They came to get their permit, everything, then they ended up going to a contested case hearing. So, with that contested case hearing, would you make them go back and redo all of their studies? DARROW: There's, if I could speak to that. There's a tolling allowance in the Code so if they are going through a challenge or contested case, a legal challenge, that kind of stops the clock, and so that time isn't taken away from them. So, after the court case or the contested case finishes, their time starts again. So, that's happened a number of times with projects, so there is that allowance in the Code, and it's been utilized a number of times. REPLOGLE: I don't want to, it's not my intent to make more work or take something away from the Director, but would it make them feel more inclined to stay in communication with their annual reports if they knew they had to come back here and plead to the Commission for an extension versus just asking. I don't know. DARROW: Yeah, I mean, the annual progress reports in our view are more helping provide us with updated information regarding the project. And, again, to be honest with you, I would say over 50 percent of the projects, annual progress [reports] that we've seen say nothing has happened for the last year, you know, and it's like, well, you know already where this project is going. But, if I could speak a little bit more to Joe's suggestion. It might be to be able to resolve this, I think Malia and your suggestion combined would work, and that is that they do come in. If they are doing the project, they are almost done, they just need a little bit more time, they submit their time extension prior to a particular time which is either 90 days prior to the deadline or the deadline, and you guys look it and you say, yeah, look, they've made significant progress. They had some issues. They have a little bit more time. We can do it. Now, that's— EXHIBIT D 10 CLARKSON: That's what we do now. We have all these time extensions coming in, and they all have great excuses for why they couldn't get it done, and we all take pity on them and everything. DARROW: Right, I would have to agree with you, Joe, but I think a lot of the ones we're seeing, we're not seeing any work. A lot of `em are just asking for more time, and they haven't gotten off the ground. I think we don't see a whole that have actually gotten off the ground and are coming back, and they just need a little bit more time. Those are the rare ones we see. Yeah, so, the Commissions, I see frustrated with the ones where no work has been done, and they are coming back in asking for more time, and they don't, you know, they hear all these great stories and stuff, but they heard it originally, too, you know. CLARKSON: Well, maybe there could be an intermediate benchmark like if you haven't even gotten a Building Permit, don't even ask for a time extension. DARROW: Right. CLARKSON: Because it's void. If you've gotten a Building Permit at least. DARROW: And that's where the substantial commencement definition may help out. CLARKSON: But, it has to be crystal clear what that is. DARROW: Yeah, and I mean, that would have to be approved through you folks so it would be a rule change or a Code change. So, again, this is the other option we talked about under ordinances taking into consideration that delays that happen with permitting. You have a particular time in the process where that timeline starts. And, then— HALL: Jeff, do you know the average for permitting right now? Like, let's say, just a single- family home, how long it takes. DARROW: It changes so frequently, but I would, yeah, I think its several months to get through the permitting process. And, especially now with STVRs going through their process. I've heard it's gotten a lot more backlogged. REPLOGLE: What is STVRs? DARROW: Short Term Vacation Rentals. Okay, so to finish off here, this is what we were talking about earlier with the speculation. This is in the General Plan, and I was pretty shocked to see how many times this popped up in the General Plan. Not only in specific areas around the Island, but under specific elements. So, I just choose generally what it says. To curb speculation and resell of undeveloped lots, impose incremental phase conditions that are performance based. So, it's saying, it's asking us to curb the speculation, but it's also considering us to consider phasing, right? So, that was pretty neat to see in the General Plan. EXHIBIT D 11 In the Leeward Planning Commission, one of the members of the Commission said what he thought might be an idea to curb speculation was that if an applicant within that period of time given to him changes that the new applicant has to come back to the Commission. And, I don't know if we want to do that, but thatI wouldn't want to be the new applicant coming back to the Commission. I mean, that would be tough, because it's like we just approved this project to be able to do this, and now it just got sold. What's going on here, you know? And, so, anyway, that was a suggestion, and I think that what he was trying to do was make it uneasy for the new developer or new applicant to purchase that knowing that they would have to come back and speak to the Commission. CLARKSON: Now, Use Permits, permits are transferable, though, I assume. If there's been somebody that's had a permit to do a yoga studio or whatever for 20 years and they sell the property, the new owner doesn't have to come to get DARROW: —This would be in the initial time period prior to finalizing the permit. But, I don't know if that's practicable, but it was a suggestion, so we wanted to bring it forward. I think some of the conditions we're considering will curb speculation because it's going to put a lot of pressure on the original applicant to get that project done within a particular time and to show that there's been progress. Without that, and they go to a particular time without progress, they are going to have a hard time getting an extension from the Commissions. So, what we'll do, what we're really seeking for from the Commission at this time is with these different options, to kind of just hear from the Commission as to what you folks think the Planning Department and the Planning Director should be focusing on to bring before the Joint Commission for a vote, because at some point, we're going to have to this is a highly unique situation. Usually, the Planning Director brings forth something or the Council brings forth something and you vote on it. This is something that was initiated for discussion by the Commission that's gotten pretty detailed and extensive on the discussion. So, we want to be able to make sure we hear clearly and be able to bring forth these proposed amendments to both the Windward and Leeward Commission for that joint hearing. It's not going to make a whole lot of sense if the direction of the Windward Commission is completely different from the direction of the Leeward, and we go to vote on the Joint Commission, and there's not that, we're not able to get it passed. AU: I have a question for [the] Director. Do you have any concerns with what was presented? I'm just curious. You know, a lot of discussion was about a lot of different things. I wasn't part of that. I just got on the Commission, so I'm interested to see if there's any major concerns that you do have, Mike. YEE: I don't have any at this time. I think it's been pretty clear through the hearings, and it's not as if you've sat through the Leeward, that we have to address this. I think Jeff was right. There are some folks that have misunderstandings, and so they want radical change. I don't necessarily see the suggestions being radical. Again, we have to take into a place in time where these rules were created at a certain point. We've moved along a timeline, and as the Commissioners now weigh what's our environment now and what makes sense moving forward EXHIBIT D 12 from now. You know, and that's the value of a commission, right? That's the value of getting all the heads on both sides of the island to come to compromise on this. So, I kind of tend, at this part of the process, not to want to throw in a major way to swing one way or another. I rather get all the ideas out on the table, and we'll go from there. CLARKSON: Let me make—one of the things that might be helpful, I think, is some data, too. I'm going to make work for your staff. Is, you know, how often is it that permits are applied for and the project doesn't happen. How often is it that rezones are granted by ordinance by the Council and nothing happens except the resale of the property? I mean, you know, what are we, what are we looking at as the real problem here? DARROW: That's actually not that difficult to be able to get an answer for. I mean, the way that I would be able to find that information is just going back in our logs and look at how many time extensions came before the Commission and/or the Council where an applicant originally you'll see it on our permits because it will say applicant so and so formerly this applicant. So, you know right off the bat that it's no longer the original applicant. It's changed. And, so that's easy to find. I can also be able to easily find how many time extensions have come before the Commission and the Council let's say over the past ten years. That's pretty, a good number to use. It should be easy. The difficulty is like Commissioner Aguinaldo last hearing said how many rezonings are out there sitting in limbo. Well, we have rezonings that go way back to, you know, sixties, and we just haven't had the staff or the time to go back and look at every single one of those to see if they're in limbo, if they've been completed, or if they are just dead. CLARKSON: I don't even understand what that means. How can a rezone be in limbo? DARROW: It happens all the time just like what we were saying. You have a piece of property that came in, it was zoned, and they had conditions, but they didn't do the conditions, and so the property just sat there until somebody in the future comes along and says I want to buy that and they realize they have to go to the Planning Commission or the Council to reignite the conditions. So, it's just been sitting in limbo ever since. You can't get a Building Permit. You can't get a Plan Approval. You can't do anything on it until you go back to Commission and Council. CLARKSON: These were time conditions? DARROW: Correct. CLARKSON: Oh, okay, I'm sorry. DARROW: Yeah, so that's where—and, you know, we've asked this Director as well as other Directors. Do you want us to initiate revocation on these zonings? And, they say, no that doesn't make sense because if we revert it back to its original, it's going against what is actually EXHIBIT D 13 the appropriate zoning for the area, so just keep it in place, and when somebody is ready to go forward on that, they just come in and refresh the conditions. AU: I have a comment. The Planning Commissions don't see everything. The County Council doesn't see everything. The people that see everything are the Directors, the Director and staff. So, I'm very interested to see what staff has—what kind of comments staff has, and I haven't heard anything about what staff has to say. DARROW: Anyway, if youDirector, do you want to speak to that? What you would like to see? YEE: I'm not sure that was Commissioner Au's point. I think his point was as staff, you know, what do you see at your level and want to push out, and you know me, I'm open to staff having their own opinions and from their experience sharing, but I would also say, a lot of this, if not most of it has been embedded with their experience. So, you know, I don't think there's anything being thrown out right now as ideas that Jeff and his staff haven't vetted as something that they are generally supported of. I want to make one comment before we move on. You know, we want to keep this moving with forward momentum. That's important. I will say we're kind of hitting the third alarm bell on fire in our Department because of vacation rental processing and the new Energov permitting system. We are totally slammed. I am having to redirect many, many staff from other areas to process. We just got hit yesterday with another like 140 of hours of testing the software for every division, and to a certain extent, Jeff's division is probably one of the least affected in terms of having staff totally involved in both areas, but he's going to have to have some involved because there are processes within Planning Division, Planning Commission Division that needs to vet out the software processes. And, so, Jeff, I just leave it to you that if there has to be push back on some of the timeline to provide information, you know, certainly come back to the Commission and explain that. But, it is all hands on deck on two major areas elsewhere right now so we need to kind of balance the workload a little bit. DARROW: Thank you. Back to Commissioner Au's question. As I mentioned earlier, some of the testimony that I heard going through the Leeward Planning Commission? It gets heated, you know, and it's passionate, and sometimes I think it's a misunderstanding, you know. And, I think it is hard to fight that when you're talking to a crowd and everybody is going "arrrrh" you know, they're not agreeing with what you're saying but realistically, we're trying to come up with a solution to be able to keep these projects moving forward and not just sit in limbo and to be able to effectively deal with time extensions. It sounds like some people want a consequence that's extreme, like kill the project or revert the zoning or make `em pay money or go to jail. I don't know what it is. It's extreme. And, that's not the situation here. These are, again, a lot of these projects, I mean, I had mentioned at the Leeward, and I'll probably mention here, the administrative time extension requests that come in to the Director, a majority of time are based on the overall impact to the economy. The economy EXHIBIT D 14 is not doing well, these guys cannot get loans. If you cannot get a loan, you won't see the project go forward. But, then all of a sudden when the economy starts picking up, you see all these time extensions comes in, coming in because they can now move forward. They can get the funding. But, what we want to do is say, look the project has been sitting. It died. You know, we want to create a deadline, an expiration. If they come in prior to that date, and they show that they've been doing something, the Commission can entertain it, a further time extension. If they don't come in, and it expires, regardless of what the excuse is, they have to understand, gotta start over. You want to move forward, you got start over. And, it's going to cost them. But, that may be the cost they are willing to pay because now they are able to move forward. Yes, it's going to cost more money, but they can get the money at this time because things are better. So, we want to realistically come up with some options to address all the issues that are being brought up, and I think it won't be as extreme as what some people want, but it's not going to be minimal either. It will be something that will have an impact and an effect. And, so, we'll bring this before the Leeward Planning Commission and hear them, but again, before we close here, if you have something that you are really focusing on, if you agree with the direction of the Director in where we are trying to head here, then we'll proceed with that, and that's going to be basically trying to create this expiration date giving them an opportunity to come in before with a, again, with showing that they've started and are moving along with the project. And, then, I don't know, I'm thinking, no administrative time extensions. We just lengthen the time like what Joe was saying. And, then lastly, if they don't meet it, come in with a new permit. Sound good? CLARKSON: Yeah, I just want to reiterate that I think there is a distinct difference between a rezone which should make sense on its face regardless of what kind of project the people—in fact, I personally don't think we should even see any project specific presentations on a rezone application, because I think that is distracting from what the rezone really means, and a permit which is project, it's a permit for a specific project, and those there should be definite timeline, time deadlines on them. DARROW: I agree, Joe, with that 110 percent, and that's been the direction we've been trying to go. What we will have to do to make that happen is to change our application forms right now, because our application for a change of zone clearly says detailed information regarding the project. And, so site plans, parking, all this kind of stuff, but you're right, it takes away from the focus of the overall matter which is zoning. So, that is something we're actually in the process where we are going to have to change our form shortly with this Energov that Michael was talking about. And, so that's a great opportunity to be able to change our application forms across the board and then putting all these changes. CLARKSON: There's just one other thing I want to say, and then I want to eat. DARROW: Okay. EXHIBIT D 15 CLARKSON: Is—we've had several applications for rezone where a basic part of the rezone is speculation, and it's an integral part of the rezone. A person that owns property and gets a rezone from say Ag -3, we just had one, to RS -10, is going to sell portions of that rezone to developers who are going to actually put in the roads, the water, the power, the lots, develop the lots. They're not going to do it all themselves. So, I don't understand how this anti -speculation thing is going to be in the General Plan, is reconciled with what actually happens on the ground when there is a rezone for residential development. DARROW: Yeah, it's a tough question to answer, but I think we're not looking at something like that. I think again, I think it's clearly where somebody is coming in with the intention, they have no intention to develop. The case that you're speaking about was such a large project that it would have to include multiple developers. So, in that case, that is understandable. I think we're speaking about somebody that clearly comes in and their purpose is to get the approvals to be able to turn around and sell it and make money and increase the cost of the overall development which is passed on to the people buying. Thank you. CLARKSON: Any further questions for staff? [None.] The discussion ended at 11:52 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT D 16