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HomeMy WebLinkAbout2020-10-15 Leeward Exh F (Amend Zoning Code re Use Permit) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT OCTOBER 15, 2020 A regularly advertised hearing on the PLANNING DIRECTOR INITIATED AMENDMENT TO CHAPTER 25 OF THE HAWAII COUNTY CODE, RELATING TO USE PERMIT was called to order at 4:04 p.m. via live-stream online meeting, with Chairperson Nancy Carr Smith presiding. COMMISSIONERS IN ATTENDANCE: Nancy Carr Smith, Barbara DeFranco, Perry Kealoha, Max Newberg, Mark Van Pernis, Michael Vitousek and Faith"Faye" Yates ALSO IN ATTENDANCE: J Yoshimoto, Esq. (Counsel for the Commission), Michael Yee (Planning Director), John Mukai, Esq. (Counsel for the Planning Director), Tracie-Lee Camero (Planner), Jeff Darrow (Planning Program Manager), Alex Roy (Planner), Jessica Andrews (Planner), Rachelle Ley (Secretary to the Planning Director), Kim Tanaka(Secretary to Boards and Commissions) and Noriko Sauer(Leeward Planning Commission Secretary) INITIATOR: PLANNING DIRECTOR An ordinance amending Chapter 25 (Zoning Code), Article 2, Division 6 of the Hawaii County Code 1983 (2016 Edition, as amended), to update the time and revocation requirements for the Windward Planning Commission and Leeward Planning Commission to act on and revoke a use permit to be consistent with the Planning Commission Rules of Practice and Procedure. Secretary's Note: "- - -" indicates that there were technical and/or internet difficulties, which made the conversation inaudible. CARR SMITH: Staff? Tracie. CAMERO: Good afternoon. CARR SMITH: Yay we get to see you without the sign in front of your face. Thank you for timing though. Go ahead. CAMERO: Good afternoon, Madam Chair, and members of the Planning Commission. As the Chair mentioned, this is a Planning Director initiated amendment relating to the time and revocation requirements for use permits. If you have any questions, please feel free to stop me at any time for clarification. Can you all see my screen? With this bill, the Planning Director's proposing four amendments. These amendments are simply to change the zoning code language with the language that is in our current Planning Commission rules of practices and procedures. Three of the four proposed amendments are within Section 25-2-64 of the Hawaii County Code. Amendment one will remove the requirement that the Commission shall either approve or deny a use permit application no later 1 EXHIBIT F than 60 days after the close of public hearings or allow for a longer period as the Commission is in agreement with the applicant. To address the comments that were earlier provided in earlier testimony, this proposed amendment will ideally allow for a longer time period for the Commission to either approve or deny any application. Amendment two clarifies that the Commission can add conditions of approval that are not limited to the hours of operation in terms of the use permit, and amendment three clarifies that if the Commission fails to render decision on a use permit application in the required time, it is deemed approved unless a contested case hearing pertaining to the permit is pending before the Commission, replacing the broader written objection language in the current code. Now, I know all of you have seen some of the comments that have come into the Planning Department in regards to the automatic approvals. The history of the automatic approval language dates to 1998 with Act 164 which amended HRS Section 91-13.5 to read as you see on the screen. This was an effort to revitalize Hawai`i's economy in the late 1900s. As for the change to remove written objections and replace it with contested case, the Department has always allowed for written objections to be submitted on any application. Written objections, however, have not stopped applications from this automatic approval should the Commission not come to a decision. Historically, a contested case has been the only deterrent from the automatic approvals as required by HRS. The fourth and last amendment is to delete Section 25-2-67 and replace it with the following language. Section A now gives the Director the authority to administer revocation of use permits when requested by the permit holder. Section B is the process in which the Commission shall revoke a permit when requested by the Director. Section C explains that written notice shall be done by the Director to the permit holder, and lastly, Section D is the process to appeal a Director's revocation. These proposed amendments are again to provide consistency with the code and our current Planning Commission rules of practices and procedures. The Planning Directors recommending that the Planning Commission send a favorable recommendation to the Hawaii County code [sic] for these amendments. After the Commission got the background and rec, comments came in from Verizon Wireless and AT&T, as well as AT&T. The Department is currently working to change our process on telecommunication towers in which that will address Verizon and AT&T's comments. The Department has more fine-tuning to do and we will present this change in the following months. With that, that concludes my presentation, and I can open the floor to any questions that you may have. CARR SMITH: Thank you, Tracie. Mike? VITOUSEK: It, my understanding is that in the Planning Commission rules there is a provision that if the applicant requests a deferral, then they're kind of off the clock for that 60-day time period. You think that's covered adequately in these rules? CAMERO: I would have to ask Jeff to go over that. We hadn't discussed any of the deferral language, actually. 2 EXHIBIT F CARR SMITH: Go ahead. DARROW: Commissioner Vitousek, you're referring to the automatic approval language? VITOUSEK: Yeah. DARROW: So, what happens is, if an applicant is amendable to a continuance, then this automatic approval does not apply because they're being willing to continue the hearing beyond the deadline from that point. This is a situation that has only occurred once in my career as a planner, where an applicant was not willing to defer, and the Planning Commission could not come to an agreement or a motion one way or another. There was lack of quorum for each vote that was brought up and the time, the maximum timeframe had come to that point. We had additionally had received the written objection at that time, and the public had made a statement that, "look a written objection had been submitted, doesn't that change the process?" And the Council that we were getting at that time was exactly what Tracie had mentioned, is that a written objection does not defer or change the time process. Only a contested case. So they clarified that the written objection was specifically to the submittal of a contested case - - -. But again, back to your question, if an applicant is amenable to a continuance, then the application can be continued, no problem. VITOUSEK: And you don't think that that needs to be clarified in this language in any way? DARROW: I believe it is in the rule. I don't have that; hold on I might have it with me right here. I apologize for the delay. VITOUSEK: While we wait, bacon is cooked, cookies are baked, discuss. [Jokingly] DARROW: Yeah, I don't see it here, unfortunately, but maybe if we can continue with discussion, let me look for that and then, cause there's other issues regarding this bill that may be talked about. I think J's talking. CARR SMITH: Yeah, go ahead, J. YOSHIMOTO: Jeff, are you looking at, or looking for 6-8? DARROW: That would be under special permits. This would be under 7. YOSHIMOTO: Seven. Okay. DARROW: Thank you. CARR SMITH: So, you have cookies Mike? I want a cookie. [Jokingly] Does anyone else have any comments? Max? Barbara? Nothing right now? Perry? Max, go for it. Go ahead. NEWBERG: Just wanted to make mention that as the language goes into legalese, I get a little bit lost. Maybe towards the end Mr. Vitousek has a good question there, but I guess under my 3 EXHIBIT F own admission, it's hard for me to understand exactly what we're replacing and what is better, maybe if we could get a- - -. VITOUSEK: Sure, if I could restate it. The issue that I'm raising is with the automatic approval of permits after 60 days following the public testimony. So, under the proposed regulations, in accordance with the Planning Commission rules, after public testimony's closed, there's 60 days for the Planning Commission to render a decision on that application and if you don't meet those 60 days, then that application is automatically approved. But the question is, if the applicant agrees to deferring, then we get an extension on that 60 days, so that it doesn't automatically approve after the 60 days. CARR SMITH: Go ahead, Jeff. DARROW: So, the actual language of that extension is in 91-13.5. It says that there are a number of factors that could delay the hearing, one of them is a lack of quorum, and that's a result that nobody can see and so at that point they say that that's not a, you cannot automatically approve the permit based on lack of quorum. The other option it gives is unless an extension is agreed upon to by all parties, and so that's where that agreement language comes from. Now, we can place that in as an addition to our language in the bill to make it clear that the automatically extension will not apply as long as a continuance or time extension is agreed upon by all parties. VITOUSEK: I think that would be appropriate, and having that language basically copying the language that's in Planning Commission rules 9(f)(1), where it states, "the applicant may request the commission to defer on the application, majority vote of the total membership of the commission is required, the applicant can request to defer the motion on the application and the event the commission fails to render decision to defer action within a prescribed time limit, the request shall be denied. That's what the language is in the Planning Commission rules, and if we're, if we're adding to the zoning rules to make it in line with the Planning Commission rules, we might as well carry that through as well. DARROW: Just to be clear, you're not requesting that there be an automatic denial? VITOUSEK: No, that's not— DARROW: otDARROW: Okay. VITOUSEK: I'm not, I'm not. I think that deferral just means that we, we're not having an automatic approval. DARROW: Right. So the, the, there are two different sections of law that this applies to, 205A for the Special Management Area has its own requirements in regards to denial, but again, they both apply that if there's an agreement by all parties to extend, then the automatic denial or approval is off the table. 4 EXHIBIT F VITOUSEK: Agreed, I mean, again, I just feel like since we're doing this, we're re-writing the rules, why not include it so that it's not an implied agreement but an explicit agreement stating that in the event of a deferral the clock stops. DARROW: Excellent, thank you. CARR SMITH: Director, you have any comment about that? YEE: No comment. That's acceptable. CARR SMITH: Makes sense. Thanks Mike. Yeah, it gets kind of scary when it you think about automatic approvals. Anybody else have any comments, questions? Jeff. DARROW: Since you did make that last statement, I'll just make mention that there is language in the HRS that allows the counties to create an ordinance to opt out of the automatic approval. We're discussing that direction with our Corporation Council to find out what that entails and so, at that point we may want to move towards getting out of that automatic approval requirement. It, it's something that a lot of people have brought up and are concerned about, but again, we're just trying to act upon the law at this time. CARR SMITH: Yeah. Okay. It's always good to make different documents jive, so I support this. So, are we clear as to what we're adding based on Mike's request? CAMERO: Yes, Madam Chair. CARR SMITH: Okay. Thanks, Tracie. Go ahead Mike. VITOUSEK: Let's see, I'll make a motion that we forward a favorable recommendation to the amendments to Chapter 25, Zoning Code, Article 2, Division 6 of the Hawaii County Code 1983, 2006 [sic] Edition, as amended. CARR SMITH: Very good. There a second? KEALOHA: I'll second. CARR SMITH: Okay, seconded by Mr. Kealoha. Any more discussion about this? Seeing none, Tracie, could we take a roll call vote please? CAMERO: Thank you, Chair. With that we'll take a roll call. Commissioner Vitousek? VITOUSEK: Aye. CAMERO: Commissioner Kealoha? KEALOHA: Aye. 5 EXHIBIT F CAMERO: Commissioner DeFranco? DEFRANCO: Aye. CAMERO: Commissioner Newberg? NEWBERG: Aye. CAMERO: Commissioner Van Pernis? VAN PERNIS: Aye. CAMERO: Commissioner Yates? YATES: Aye. CAMERO: And Chair Carr Smith? CARR SMITH: Aye. CAMERO: The motion carries 7-0. Thank you. CARR SMITH: Thank you very much. The hearing ended at 4:22 p.m. Respectfully submitted, Kim Tanaka Secretary to Boards and Commissions 6 EXHIBIT F