Loading...
HomeMy WebLinkAbout2021-01-07 Windward Exh E (Discussion permit extension) WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JANUARY 7, 2021 A regularly advertised discussion on AMENDING THE COUNTY CODE TO ALLOW FOR CONSIDERATION OF CHANGE IN CONDITIONS WHEN CONSIDERING PERMIT EXTENSION REQUEST was called to order at 12:17 p.m. via live-stream online meeting, with Chairperson John Replogle presiding. COMMISSIONERS IN ATTENDANCE: Dean Au, Gilbert Aguinaldo, Joseph Clarkson, Thomas Raffipiy and John Replogle ALSO IN ATTENDANCE: Malia Hall, Esq. (Counsel for the Commission), Jeff Darrow, Deputy Planning Director), John Mukai, Esq. (Counsel for the Planning Director), Maija Jackson (Temporary Assignment Planning Program Manager), Rachelle Ley (Secretary to the Planning Director), and Melissa Dacayanan-Salvador (Windward Planning Commission Secretary) Discussion of amending the County Code to add a clause to allow for consideration of the passage of time and change in conditions when considering whether a permit should be extended. Secretary's Note: "—" indicates that there were technical and/or internet difficulties, which made the conversation inaudible. DARROW: So, we do have Item Number 3 and if you could give me a moment, I will share my screen again we have another Power Point. Let me go ahead and get that. All right, Okay, let me know when you do see that screen and I'll proceed. REPLOGLE: I see it. DARROW: Okay, so this was another matter that was requested to be brought forth before the Leeward Planning Commission by a particular Commissioner. The concern was that they wanted some direction and clarity as to the ability to review a project when a project has had a considerable amount of time that has passed and so, it prompted us to take a look at our rules especially in regard to amendments. Because that's basically what ends up happening a project is approved, it's given a certain amount of time to comply with that project or construct or complete and the project does not get completed. It ends up whatever situation arises whether it's the economy, whether it's a pandemic or whatever it may be, the person has health related issues. But they find themselves coming back to the Commission or and or the Council and so they just wanted to provide more clarity as to the ability to be able to review or re-review that particular project when they come in for these amendments and to have some criteria in place that would allow them to either approve or deny based on these reviews. This particular heading talks about 1 EXHIBIT E amending the County Code, but it also should say and or Planning Commissions rules obviously because it's going to relate to criteria for amendments and which will be placed in the rules as well. So, our current language for amendments is very general and if you look you have two (2) sections here on the screen. One is for time extensions the top part and the lower part is for additions, modifications, and deletions. Although, they're basically the same in content that you need to identify the affected condition, you need to identify either the length of time you are requesting or the specific amendment and you have to provide the reasons. It doesn't speak at all to criteria for reviewing these. As far as the Planning Department what we've been doing historically is using our administrative time extension condition which is in almost all permits and ordinances that go before the Commission and Council. We basically refer more specifically to Items B and C. That the granting of the extension or the amendment would not be contrary to the General Plan which also includes the Community Development Plans or the Zoning Code. So, when these amendments comes in we take a look and see if the General Plan has been changed. Whether there's been a change to an existing community development plan or whether there's been a new plan created or if there's been a change to the zoning code that would affect this particular project. The other area of criteria that we look at is that the granting of the extension or the amendment would not be contrary to the original reasons for granting the permit or the ordinance. This statement right here basically allows us to go back to the original reasons and criteria for approval and re-review the permit in relation to how we approved it originally. If nothings, changed then it should be good, and it would get a favorable recommendation or an approval recommendation to go forward. In discussion with the Commissioners on the Leeward Planning Commission they wanted to use the language that is in the 106 Review as well as the Hawaii Administrative Rules (HAR) Environmental Review language in the Hawaii Administrative Rules. What it says is the passage of time, changing perceptions of significance, or incomplete prior evaluations may require the agency official to reevaluate properties previously determined as eligible or ineligible. Again, this in relation to Section 106 Review but they're trying to use this similar type of language to bring it into an amendment review that has not come to fruition within that particular time granted originally. If I go to the next slide it talks about more specifically under the environmental review what those changes are and so it says that an EIS is accepted with respect to a particular action is usually qualified by the size, scope, location, intensity, use, and timing of the action, among other things. An EIS is accepted with respect to a particular action shall satisfy the requirements of this chapter and no supplemental EIS for the proposed action shall be required, to the extent that the action has not changed substantively in size, scope, intensity, use, location, timing, or among other things. So, that's kind of the focus here that if this project has changed substantially in these particular areas of size, scope, intensity, use, location, timing, among other things then they wanted to have the ability to require additional review for an amendment or a project that's coming back before the Commission that may actually be changing as well. This may include asking for updated reports like a traffic report or an archaeological report or whatever report the Commission may feel is necessary or needed for them to make their decision. 2 EXHIBIT E The Commissioner had actually put together some language he was going to send it to me I have not received that yet but once I get that we can look at that and add that in. What the proposal or the suggestions would be is that we would be proposing as part of these amendments coming before the joint Commission another amendment that would kind of clarify or identify the criteria for these amendments that would come before the Commission and or the Council. We would add the additional information that was requested by the Leeward Planning Commission and so this is just an update for you and it also is giving you the opportunity to be able to include some suggestions that you might have or ask questions regarding this particular request. This concludes this presentation I can answer any questions that the Commission may have. AU: Jeff, I have a question. Jeff, so as it stands now the Planning Director has the power to approve this, is that correct? DARROW: Well, in almost all permits and ordinances that come before the Commission there's what's called an administrative time extension condition. That basically is an allowance that if the project doesn't be completed within that original time period normally it's five (5) years that they have one (1) administrative time extension for a period not to exceed what was originally permitted. So, if it was 5 years, they can be granted an additional 5 years. It's only given one time and after that period they have to come back before the Commission. But again, even when they come back before the Commission it's going to be normally a time extension request or an amendment of conditions of that particular permit. So, that would be the Commission and or the Council that approves that request. AU: And that's what we just saw with Ikaika Ohana right? They were previously approved on their time extension by the Director and then the second time it came to the Commission that is exactly what happened is that correct? DARROW: Yeah, they not only asked for a time extension but they asked because that actual project was changing scope from a multiple family project to an affordable rental housing project. They actually were requesting some changes or modifications to existing conditions as well. CLARKSON: So, Jeff my question is why is this particularly necessary if the time limits are reasonable and I mean anytime an amendment for a condition comes back to the Department or the Commission we could just say no, circumstances have changed we're not going to approve this amendment and if that kills the project so be it or no, you don't get a time extension if you haven't built it by now you don't get to build it. I don't understand why this other Commissioner is so concerned I mean have projects in the past been approved with unlimited time, twenty (20), thirty (30) years go by and all of a sudden, the community is completely changed in character I mean what's going on. DARROW: Well, I mean I can't answer to the actual intent of the Commissioner I can say that he's had previous background in working with agencies that do these types of reviews and so he felt that it would be helpful for the Commission to have that particular type of language added to 3 EXHIBIT E the Commission rules when they review projects, so it was clear as to the criteria for approval or denial for an amendment. But on top of that a point that we're trying to do as part of this overall request is adding specific language into our rules that is currently not there. We don't have anything in our rules that gives us direction as far as criteria for approval or denial for an amendment or a time extension. As I mentioned we've been utilizing the criteria that's in the condition that we use for the administrative permit. So, we're trying to take that language and put it into the rules but, again taking into consideration this added information and request from the Leeward Planning Commission to beef that up as part of the review. We do have certain rules that say like if a period of time has passed an Applicant needs to do an updated traffic study or something but it's very limited as far as the overall scope of all the different types reports that could be needed because of the passage of time. CLARKSON: Thank you. DARROW: Any other questions? So, moving forward staff will prepare some language for both the recusal as well as the criteria for amendments and we will provide that to the Commission as well as hopefully some type of guidelines that Commissioner Clarkson had requested to give some direction as to what bias or prejudice issues might mean in relation to everyday life. From there once we're prepared with these other rule changes that we are working on we will prepare a joint Planning Commission meeting and try to get through these amendments. Thank you and if I haven't said already Happy New Year. The hearing was adjourned at 12:33 p.m. Respectfully submitted, Melissa Dacayanan-Salvador Secretary Windward Planning Commission 4 EXHIBIT E