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HomeMy WebLinkAbout2019-08-15 Leeward Exh C (Admin Matter 1 re Condition Deadlines) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT AUGUST 15, 2019 A regularly advertised ADMINISTRATIVE MATTER (Summary of Discussion on Permit and Ordinance condition deadlines and consequences of not complying with condition deadlines) was called to order at 11:48 a.m. in the West Hawaii Civic Center, Community Center, Building G, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii, with Chairman Keith F. Unger presiding. COMMISSIONERS PRESENT: Keith F. Unger, Nancy Carr Smith, Perry Kealoha, Michael Vitousek and Faith"Faye" Yates ABSENT AND EXCUSED: Scott Church ALSO PRESENT: Malia Hall, Esq. (Counsel for the Commission), Michael Yee (Planning Director), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner) and Noriko Sauer (Commission Secretary) And approximately ten people from the public in attendance. Summary of the Discussion on Permit and Ordinance condition deadlines and consequences of not complying with condition deadlines. UNGER: Next on the agenda, Administrative Matters. Number 1, Summary of the discussion on permit and ordinance conditions deadlines and consequences of not complying with condition deadlines. DARROW: Thank you, Mr. Chairman. Again, if I could direct your attention to our presentation. This is a continued hearing on this matter. We are trying to summarize the discussion that the public, as well as both Commissions, had regarding permit and/or ordinance condition deadlines and consequences of not complying with condition deadlines, as well as other areas that we got into in regards to time extensions and how do we go forward from here with some of these issues we find ourselves facing on a regular basis regarding lapsed permits or permits that come in for time extension after the permit is so-called, after their deadline has passed. So, what I've done is I've kind of broken this up into two sections: One is relating to ordinances and one is relating to permits. The ordinances, obviously, the authority is the County Council. For permits, the authority is going to be more the Planning Commissions. A lot of it will be the same or similar, but some things are different. And, I'll try to incorporate some of the discussion that happened at our August 1st meeting with the Windward Planning Commission as well. We haven't received those minutes as of yet, but once we do, I will forward those to you for your review. 1 EXHIBIT C So, first of all, when we looked at zoning, there was a theme that kept going through the discussions both in Kona as well as in Hilo, and that was that if the zoning got approved in the first place, then it was appropriate. In our older ordinances, as well as our more current ordinances, you'll see language that says if the applicant does not comply substantially with conditions therein, the zoning may be reverted to a more appropriate, or revert back to its original zone. Most times, if the zoning got approved from, say, Agricultural to Residential, it's, to go back from Residential to Agricultural may be contrary to what the General Plan says, to what the community development plan says and what may be, the Zoning Code may be stating about those uses. So, there was discussion about, look, if the ordinance deadline passes, maybe we should keep the zoning in place. They can't do anything. That was the discussion. Their permit is basically inactive; if they were to come in for any type of permit—a grading permit, a building permit, Plan Approval, anything, a subdivision—whatever planner would be working on that would look at the ordinance and realize that the condition is expired, they would have to come back to the Commission and the Council. So, their idea is the—we'll get into a little bit more about talking about what to do—but basically, is maybe we should take a wider look at everything once it expires or once it goes past that deadline. In this sense, is it still consistent with the General Plan, is it still consistent with the CDP, and then just focus on the conditions of that ordinance, but keep the zoning. Because people think that once the, once the condition deadline ends, that zoning, that zoning reverts; it doesn't revert until there is an action taken, so it stays in place. So, anyway, that was the discussion both from the public and from some of the Commission members is that thought to keep that in mind. As we get into deadlines, the discussion was —and this was mainly more so on the Windward side—they were thinking, look, if the zoning is okay and we're allowing it, we say, you know what, this is appropriate. Let's use commercial zoning, for example; this is in an urban core,this area is in the medium density General Plan area, it's slated for commercial development, there's commercial development all around, you've got all the infrastructure in place. If timing is an issue, you just, you know,they were thinking it's appropriate. Whenever they build it, they build it. If they don't build it, it just sits there until somebody can build it, right? That was some of the thought. Again, I'm just bringing out what was presented so you can kind of get an idea of LINGER: Excuse me, what is the process, and, if the zoning is no longer appropriate? DARROW: If it's no longer appropriate, then at that point, the Commission would say, no, this isn't appropriate, we should change the zoning. LINGER: So, that's where it would come to us and DARROW: Correct. LINGER: we would have a DARROW: Yeah. 2 EXHIBIT C LINGER: So, so, a deadline ends for any ordinance. Technically, that owner of the property is susceptible to that ordina DARROW: Right. LINGER: to that zoning DARROW: Right. Now UNGER: reverting or changing in some way. DARROW: Yeah, so, again, using that similar example that we were using, let's say we're downtown Kona, and it's in the heart of the urban area, and there's a piece of Agricultural there, but everything is pointing that this is the high-density commercial area for uses in this area. So, someone comes in and they zone the area to commercial. It's consistent. It meets everything. It's the right place. This is, all the infrastructure is in place. The question would be unless something happened in the future with the General Plan or the CDP saying, you know what, let's change this urban area to something else, a residential area. Then, the commercial, which would be highly unlikely, but again, it could happen more so outside of these areas, right? And that's what we'll get into a little more discussion, though, but in a lot of areas, when you approve the zoning or when the Council approves a zoning, it's met a number of criteria that says this is appropriate, this is the right place for this, the infrastructure can handle it. And, it's not a project specific permit; it is a zoning ordinance that allows a whole wide range of uses. So, when we look at it with you folks and the Council, we're saying, look, even though this applicant might be saying I'm going to do a little two-unit office building or office structure,the reality is that it could allow, you know, a gas station or a McDonald's or something, right? Because the zoning allows for it, right? So, we can't be so focused on what the applicant is saying about it, because it could change. And it changes all the time. I mean, all the time. We, I don't even want to guess the percentage, but it's quite a bit where the original proposal was this, but later on it changes to something. UNGER: That's good clarification, because I know we had some frustration with that, but that helps clarify it DARROW: Right. UNGER: —for me. DARROW: So, we should be looking at the zoning requests with the highest and best use in mind. Can this handle what is the highest and best use for this zoning? If it's an area that, you know–there has been, which we kind of stray away from there, has been conditions at times in ordinances where they've actually said we're not going to allow these uses in this ordinance, you know, and they've actually put a list of zoning, of permitted uses not permitted in the zoning. The only way that person would know that is if they were, if they came in and took a look at the zoning ordinance and saw that. Otherwise, they would just think, oh, it's Commercial zoning, it allows. But, again, that's something that's happened in the past. We've highly recommended 3 EXHIBIT C straying away from that because that's really not the way to do it; that's more contract zoning or spot zoning or, yeah, it's not, it's more like a permit almost. The other thing that I've seen in the past is that if—and, again, this is what happens when you look at zoning from a project standpoint—is they'll put in conditions specific to a project. They'll say if the applicant proposes a use other than what was originally proposed, they may have to do this —a traffic study and do the improvements on a traffic study and stuff. But, again, we want to look at it as the highest and best use in the zoning. If that is going to require curb, gutter, sidewalk, a left turn, signalization, so be it. Then, it's taken care of. That's part of the approval for the ordinance. So, anyway, that was one of the, one of the options was once the zoning is in place, there shouldn't be time conditions. That was the consideration, because whenever it gets built, it gets built. People think, oh, the longer you delay, the more it's going to affect everybody else. And logically—I'm trying to figure that out—but the reality is if they were to build something today, for a developer, the cost would be far less than if they waited ten years and built it then. The costs for development are going to be much greater. Not only that, the requirements on some of the ordinances would be much more expensive. The infrastructure costs, if there's a fair share condition associated with it, every year, once it passes, through years that goes up yearly, so their costs for the fair share go up significantly. I've seen it as much as go up a third from people waiting to develop, you know, and there comes a point that they come back to the Commission and we bring it up to that higher level at that point. And, they're like wow, I wasn't expecting that, you know, it's like well, that's what happens when projects get delayed. The other discussion was considering utilizing phasing for larger projects. We have to keep in mind, and I've spoken to a couple people on this, it's not a one shoe fits all kind of thing. Each project is different, or each, you know,there are projects that come in that involve hundreds of acres, and then there are projects that come in that involved 20,000 square feet. So, when we place the same conditions on a project that's quite large versus a project that's small, we've got to keep in mind that there has to be some sort of relevancy as far as, okay, this guy is going to take some time here, he can't do this in five years, he's probably just going to get his permits in five years, right? This guy here, he may be able to get off the ground and get this done in five years. But, so the idea of phasing is, was recommended that as we consider conditions in these permits —because a lot of this may not require any kind of code change or rule change; it's, a lot of this is going to be dependent upon conditions placed in these ordinances. And, again, it sometimes comes down to these projects and how big they are and what sort of time we think is considerable for a project like this. Even with the so-called possible delays that could happen— economic or health or whatever conditions arise that cause delays. The other consideration was currently what happens is in the ordinances and permits is there's an administrative time condition. It's usually a standard condition for the first original ordinance or permit. So, it says the applicant shall construct this within five years, and then at the end of the ordinance or permit, there is an allowance that if these certain things happen, if the applicant wasn't able to meet that time condition, they have the opportunity to get one administrative time extension for that timing condition. And, it's not to exceed what was originally permitted; so, if it was five years, they could be granted an additional five years. The Planning Director has been 4 EXHIBIT C given the authority to review that, to look at the reasons for delay, and to be able to grant or deny that administrative condition. After that period,the applicant is informed that if you need additional time, you have to come back to the Commission and/or Council. So, they are thinking that maybe instead of having it an administrative process, we just look at it and say okay, we think it's going to take this long, but we'll give them, instead of five years, we'll give them eight years. They're not thinking, you know,ten years; they're thinking more reasonable. Let's see, okay, so this is the other discussion that a lot of times when we're reviewing the administrative permit request or extension request,there are three or four criteria that they have to meet: Is, was the delay based on circumstances that were unforeseen and are not the, not as a result of the actions of the applicant; is the project still consistent with the General Plan and the Zoning Code; and, is the project still consistent with the original reasons that it was approved in the first place. So, we look at that. But, a suggestion was made that if they come in after five years and nothing has been done, then maybe that's a time where we say you know what, you haven't done anything in five years, you've got to go back and you've got to request additional time from the Commission and the Council because nothing has been done in five years. So,that was an option. As part of that, they were trying to suggest that we define certain terms. One is substantial commencement like —it's a tough one because you have to kind of find a, where you feel like okay, they've kind of come to a point where, yes, they're on their way, they've done this much, they poured so much in. The idea is maybe the basic infrastructure is in place; they've come in, they've done their grading permits, they've started putting in roads and electricity and water and sewer and whatever. I think the Land Use Commission went a step further to say something like 10 percent of the actual construction has to be done. The other thing would be define either "begin construction" or we need to,this is something we have to do, and that is to define "complete construction" because there has to, there has to be a definition that says a—because our condition says that the construction has to be completed within this timeframe. There are times they may be close but they are not complete, but they'll argue but, yeah, but, we're, we've already built everything, we just need this and that, and it's like well, we don't really have a definition that says this is complete construction. What we would suggest is a definition that identifies they've received their final inspections on building permits and/or certificate of occupancy. In commercial-type zonings and others, you're required to get signed off for a certificate of occupancy. Other developments is just a building final, right, residential-type projects. There is also, I mean, as part of this discussion, they were thinking that it could be as simple, too, that the applicant has come in and they've been delayed going through all their permitting, right? It's taken them three years to get a building permit. It's taking them a year to go through Plan Approval or whatever it is. So,then, the talk was that you kind of start the time from that particular time. When they get their Plan Approval or their building permit, then we start the time to complete construction. The problem we have with that that we recognize is that they may delay the project to not get that. You know what I mean? They may just say aw, we'll just hold off until we're really ready to go, and that may take five years, but nothing is going to require them to come back because there's nothing forcing them to do that in the first place. You could put a time frame that they have to get that and then they start the time to construct. So there's a couple options there. So, that's kind of what we're speaking about on this last bullet. 5 EXHIBIT C So, anyway, these are some of the suggestions that were made in discussion mainly with ordinances and zoning. Now, we're going to go into, which is very similar—I'm sorry? CARR SMITH: One question. I DARROW: Sure. CARR SMITH: this is great, thank you—but I feel like you kind of went right past the no timeline or deadlines, and I didn't quite get what your thought process was there. DARROW: That was what, the discussion was is that if the zoning has been approved CARR SMITH: Okay,just DARROW: Yes, then CARR SMITH: So, we're not talking about permits? DARROW: No. This would be zoning. Yeah, permit's different CARR SMITH: Okay. DARROW: because you are project specific. But, this, in this case, they're thinking the zoning is okay, whenever they build, whatever they are going to build, it's, it's okay. Now, when we get to the authority of the Planning Commission regarding permits, it's going to be more project specific. They come in, they're asking for a Special Permit or an SMA Permit or a Use Permit for this project. They can't come in and build something else. You know,they can't propose an office building and then come in with a McDonald's or gas station. They just can't do it. So, one thing we have to do right off the bat, and we all saw this, is we need to be consistent on our rules. There's some inconsistency, and the reason that happened is because there was inconsistency previously with the time that each permit had to come before the Planning Commission. And, that was fixed, but apparently, this was missed in regards to the time extensions relating to that. So, whatever we do, if we say that the applicant has to submit it within 90 days from the deadline, then all permits would be 90 days from the deadline. I've had discussions on this matter because, legally, what do you do if an applicant comes in but they come in within that 90 days, but their deadline hasn't lapsed yet. So, it's kind of a tricky situation. Do we say I'm sorry, you didn't come in 90 days before? But,their deadline is still okay. They haven't met their deadline. So, we were thinking that legally, the, probably, the date we should be looking at as far as submitting-by would be the deadline date. We could ask them please submit within 90 days because most permits require a process of 90 days to take it to Commission. That was the understanding of why they put in the 90 days or the 60 days. It was that timeframe to bring it to 6 EXHIBIT C the Commission to vote on it before the deadline. But,there is language, too, within the rule that says if the deadline passes, yet the applicant is in the process, the Planning Commission can allow the use to continue. We've always been under the understanding that if the use is not having adverse impacts to anybody, like if it's a violation that's happening and nobody is really being that affected, I mean, it's not, it's like a B&B or something that's operating and it's in a house or something, then they can come in and try to get the permit. They were operating illegally, but if they get the permit, they can continue legally. But, in this case, it's a little different. They have the permit. They're just coming in for the time extension. Now,the big question comes up. What do we do once the deadline happens? Again, there was discussion about not having deadlines, but as we got into further discussion regarding the difference between zoning and project specific permits, I think the understanding became clear that yeah, there has to be some checks and balances there. There has to be deadlines. But, again, the same type of discussion coming up that maybe it would be better to just look at it case-by-case and give them a period of time rather than a boilerplate amount of time for small and big conditions. Or, again, we can consider the phasing option. Let's see, and again, I think this is an excellent idea here because if the, if somebody is coming to the Commission to be able to build a project and, they should be ready to go, I mean, they should be like okay, I'm ready to go, I'm going to go right after this. And they say that all the time. "How long is it going to take you to do this?" "Oh, once I get approved, I'm going to go, I should have the project done in two years." And, then all of a sudden we hurry up and wait, right? We just, what's going on? So, there should be, we think there should be tied in with those conditions that if you need, if you don't meet this substantial compliance or substantial commencement definition on your project, and you try to come in for an administrative permit, if that's still the process, their, we're going to say there's been no progress. You have to go back, you know. So, at least at that point, that discussion can come and the applicant will have to answer as to "Why isn't this project moving? Are you even able to go forward now? Do you have to finance it?" So, this was kind of where everything started, right? Having an expiration date on the permit, and once that date has passed, the permit is void and the applicant will need to submit a new permit. That seems like a good option. At that point—and I had mentioned this previously that sometimes when the Planning Department receives an amendment instead of a new permit, sometimes those amendments can be more work than a new permit, because we have to do all this history and look at all these actions that happened, and it gets a lot more convoluted and detailed work. But, a new application, we just say is this still appropriate? We look at just like it's a new application and then the Commission votes on it. "Condition permit to start deadline [timeline] after permitting has gone through." So, this is what we were speaking again. The more, quite a bit of delays happen because of the permitting process, and given whatever is going on, right now, we are going through this massive delay as a result of short-term vacation rentals. Because of the overwhelming response to trying to receive non-conforming use certificates for short-term vacation rentals, it's really overwhelmed both the 7 EXHIBIT C Planning Department, as well as the Building Department. So, building permits are being very much delayed as a result of that. And, at any given time, you never know what's going on with the economy. Sometimes it could be in recession and the permits slow down, so it's not that hard. But, other times, you go in and you're told the permit is going to take five months or six months, and that's sometimes, it's kind of standard nowadays; you hear that on a regular basis. So,the idea here is to again start the deadline, I mean start the construction timeline on a particular action that occurs. But, you put a time on that action, too,just so that, you know, they've got to get this done. But, let's say, you give them three years to come in for Plan Approval, but they come in in one year. Well, from there, they have five years to complete construction. So, it's not going to be eight years like they wait till the last minute and then they do it; they come in, they're ready to go,then they have five years to build. And, again, you could have your condition, your deadline at that point. And, then if they don't complete, they come back in. Now,this was the other issue that came up in discussion was that, let's say an applicant has this deadline—and this is where the problem arises with the, with voiding the permit after a deadline —let's say the applicant is 90 percent done, yet, we're telling him now come in with a brand new application when in reality all he really needs is maybe another six months to finish; he just needs a simple time extension. So, that's kind of where we're, what we were talking about. It's hard to put everything in one, you know, shoe, right? It's, everything comes up and we're faced with these decisions we have to make. So, we're going to continue trying to look at everything. Okay, let's see, the last one: "Possibly create a process to have the applicant appear before the Commission when no activity has been done on the property after the deadline [has passed], similar to an Order to Show Cause." But if we put the deadline on it and nothing has happened, we would just have them come back at that point. That would be where the deadline does happen. This is some other stuff that we came across and we're almost done here: "To curb speculation and resale of undeveloped lots,"because this came up based on one particular project that's happening. People think that, again, the delays is causing this huge speculation, but a lot of times, a delay is caused because the developer can't afford to do the project. That's just plain and simple. If they could, the project would go forward. They're not, it doesn't appear that they are holding onto it. Again, that's a true developer, right? There are, the speculation happens where someone buys a property, and they're saying okay, right now it's Residential, I'm going to rezone it to Commercial, and then I'm going to sell it so I can make money because it's going to be worth far more being Commercial than Residential. That's where we've got to try to watch out for. I mean, the reality is we want to see people that are coming in that haven't, you know, some sort of goal in mind to do a project. But again, with zoning, it can be hard, but we want to also curtail speculation. And, this is right out of the General Plan. They are thinking that by doing these phasing, phases in the project they can, they can help curb speculation. 8 EXHIBIT C And, then, I believe Perry brought this up, I'm sorry, Commissioner Kealoha. That if the property is sold, that there be a condition to have the new applicant appear before the Commission. And, currently, what happens, and this isn't a condition necessarily, but we usually will do it as a standard practice. If somebody comes in, they own the property, they rezone it or they come in for a Special Permit, and then later on somebody submits something that's relative to that project yet it's a different LLC or a different applicant, we'll change everything to have the new applicant's name. We don't, we kind of hope that they would do that, but it really, there should be something that says if you sell or do something, you should notify us. But,this is taking it a step further saying that if you're going to do this, you should come before the Commission. If it's, if it's a zoning ordinance, we would have to discuss this with Council to see if that's something they would like to see happen for any change in zone owner. You know what I'm saying? So, come to the Commission and then to the Council, but for permits, it, they could come to the Commission if that condition was placed in there. And, again, you have to, you know, what are you trying to, you know, what kind of information are you trying to get? Are you wanting to make sure that this applicant is ready to go forward with this project and, yeah, you know, it's a good time to bring them forward and ask him questions. I don't know legally. We would have to talk to our Corporation Counsel. If we agendize it, as that, if all of a sudden now, it opens the door to some sort of possible, you know, or if it's just for administrative matters, or—I'm just not sure, something that we need to kind of work through. Anyway, so that's, that's everything. What we'll do is we are going to compile everything. We'll send out the minutes to both Commissions. We're going to go through, we're going to try to change our rules to be more consistent and then present some options as far as possible code changes, definition, rule changes, and get direction. Now, we apologize that this process has been a little more lengthy than normal. What normally happens is the Planning Director initiates a change and then it comes before the Commission; this is, it's unique, because this really hasn't happened as long as I remember where the Commission initiated discussion on a matter to be able to get ideas to make some changes. So that's why the length of time to go through this. We have to take it before both Commissions. And, I believe, this will also be going to the Council because they had also spoken about wanting to speak about these same issues. But, that concludes our presentation. Do you have any further questions? LINGER: Great, wonderful. It's, obviously, it is an important topic for us. We're the one who initiated and called the Planning Department's attention to this issue, so we're really, really glad that you guys are delving into it. I mean, we knew that once you started kicking the dirt, it was going to be a lot more involved with this situation. But, I think we're really on the right track, and I think that concept is still really solid. So, we look forward to do the next phase, and we do know it's a lot of work on top of the additional work you already have had with the Vrbo's, etcetera, etcetera. But, as you get to this, we continue to want to participate and look forward to the options, you know,that you will be proposing to us. So I think that'll be a really good discussion. DARROW: Thank you. 9 EXHIBIT C UNGER: Commissioners, any questions of the process to date? CARR SMITH: Just thank you for the work. DARROW: Thank you. UNGER: Great,thank you. The discussion ended at 12:23 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 10 EXHIBIT C