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HomeMy WebLinkAbout2020-12-17 Leeward Exh D (Discussion re permit extension) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT DECEMBER 17, 2020 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 1:56 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, and Michael Vitousek ABSENT AND EXCUSED: Faith"Faye" Yates ALSO IN ATTENDANCE: Malia Hall, Esq. (Counsel for the Commission), Zendo Kern (Planning Director), John Mukai, Esq. (Counsel for the Planning Director), Jeff Darrow (Planning Program Manager), Jessica Andrews (Planner), Tracie-Lee Camero (Planner), Rachelle Ley (Secretary to the Planning Director), and Noriko Sauer(Leeward 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 indiscernible speech due to internet/technical difficulties or simultaneous talk. CARR SMITH: Agenda Item Number Four, discussion on 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. Thanks, Jeff. DARROW: I'm going to, again, share my screen. Give me one second here. Let me know when you see it. CARR SMITH: We see it. DARROW: Okay, so this is an item under administrative matters that was requested at our last Planning Commission meeting by Commissioner Vitousek. I, I, you know at first, I thought it was kind of related to our previous discussion a year ago on time conditions and ordinance conditions, but it's actually a little different. And so, I'll go through the PowerPoint and then at any given time, I think it would be healthy to kind of go through and talk about the different areas of a, an expired permit that the commission wants to, you know, bring it back or take a look at it, re-review it, request for additional information such as reports or studies, or things like that. But let me, let me start off with this particular PowerPoint. 1 EXHIBIT D So, this is our current language in our Planning Commission rules for Special Permits as well as Use Permits, and if you look at it, you're not gonna see any language that talks about the, you know, what the commission is to really look at for approval or denial. It's basically just stating what the applicant needs to submit and the, if it's a time condition, the amount of time, and the reasons for the request. And on the bottom portion of the screen, it talks about if you're amending, or modifying, or deleting a condition. The same thing, you're, you're identifying what condition the specific amendment that you're requesting and the reasons. It doesn't go into any kind of detail as to what the commission looks at as far as criteria for approval or denial. The closest that we've come as staff is, we've, we've looked, we've utilized our language that's in our administrative time extension that you'll see in almost all permit conditions, as well as ordinance conditions. And more specifically, we're looking at, we do look at A, you know, it's like hey, it's been ten years, what happened here, what, what was the reason for the delay? Was it your fault or was it something else? And 99 percent of the time it's the economy, but now it's, it could be the COVID pandemic. So, you just never know, there are these outside factors that could really affect a project. In 2008, when the economy took a beating, for a number of years developers could not get loans, I mean it was just rough. And so, these, these permits just sat, they couldn't do anything. They couldn't move, and so that was the majority of the reasons that we would get when they would come back asking for more time. But B and C is what we really focus on. B says that the time, I mean, let me go to the next slide. So, wait, wait. I'm sorry. So, I'm gonna address some summaries at the end but basically what we look at that kind of ties in the original criteria that we look at for approval or denial and the original reasons for approval or denial, we tie that in by B and C, and that is that the time extension or the amendment request would not be contrary to the General Plan, the Community Development Plans, or the Zoning Code. There are times that something changes, either a General Plan amendment comes in, and the General Plan has change for that area, or a new Community Development Plan has come in or has been amended, or the Zoning Code has changed and has affected this particular request. So, if something's changed there and they're coming in for the amendment, that may affect the recommendation from the Director to the commission. C, this kind of ties in everything else. This says that the granting of the amendment or time extension would not be contrary to the original reasons for granting the permit in the first place, which is basically if you have a Special Permit, you have eight criteria for approval, we re-look at those. If it's a Use Permit, you have three criteria for approval, we re-look at those, and we see if they're still consistent with that. So that's why sometimes even though it's not really clear in a rule, which it should be, which I think that's gonna be the outcome of this, these are what we've been relying on up to this point. I'm going to go to the next slide, and this was provided by Commissioner Vitousek as an example of some of the areas we should be looking at when it comes to a change that might have happened over a period of time to a particular project and what we should look at. So, Commissioner Vitousek, I have this, as well as your reference to Hawaii Administrative Rules 11-200.1 on the next screen, if you wanted to kind of speak as to what you were looking at in regards to these. VITOUSEK: Sure, so what is shown here is from the National Historic Preservation Act, the Federal regulations that are designed to implement the National Historic Preservation Act for taking into account the effect of a project on historic sites. They're noting that the passage of 2 EXHIBIT D time allows for changes in the perceptions of significance, allows for changes in the community on what the community values, and so those changes have to be considered when re-evaluating a project. So, if something's approved in 1980, and then is coming back before you again 20 years later, you have to take a look and think how has thing's changed, how has the community changed since then, how has everything around it changed since then, how has our perceptions of the significance of whatever it is changed since the project was originally approved. And so, you have to consider that when re-evaluating a project. The further language is from the Hawaii Administrative Rules, Chapter 13-200 which basically creates the guidelines for implementing environmental impact statements and indicating when a supplemental environmental impact statement is needed. So, what we have here is that the, an EIS is accepted with respect to a particular action is usually qualified by the size, scope, location, intensity, use, and timing of the actions, among other things. So, that timing refers to when the project is proposed to be completed. So, if a project is proposed to be completed in 1980, but it's not done, then is later on proposed in 2020, the timing of that project has changed, so therefore the impacts of that project will change. And in the case such as environmental impact rules, a supplemental environmental statement is required in order to update the - - - of the project on the new timing. So, basically the purpose being where if we're in a situation where we're seeing extension, after extension, after extension, after extension, and the area has substantially changed, the beliefs about what should be done in the area has substantially changed, and the commission should review a request for extension based on the changes in the community now, and what's happening currently instead of just focusing on the merits for why it was approved back in--. And,just,just to add, I -- is there any more that you want to go on before I keep, keep talking? DARROW: I do have another slide VITOUSEK: Go ahead. DARROW: --but after you're done. VITOUSEK: Go ahead, go ahead. DARROW: So, based on the, the previous slides, and, and the information that Commissioner Vitousek has provided, we - - - CARR - -CARR SMITH: Jeff, you're muted. DARROW: Sorry about that. CARR SMITH: No problem. DARROW: And my screen went blank, so I don't know what—is your screen, is your screen black? Yeah? CARR SMITH: Yes, it is. DARROW: Okay. 3 EXHIBIT D CARR SMITH: Now we've got your desktop. DARROW: Give me one sec. I don't know what just happened. CARR SMITH: No problem. DARROW: Earlier Rachelle had the blue screen of death, now I have the black screen of death. Okay, let's see. Can you see that now? CARR SMITH: Yes. DARROW: Okay. Let's hope this stops. Stop, stop, stop. Okay, I can go back. Alright, so, what we're, what we're suggesting is to include the criteria that we used in the administrative time conditions into our rules. That's the examples. These are either criteria or findings. So then again, we could, you know, say you need to re-evaluate the entire project again, but this kind of summarizes everything into these two statements. And then we can incorporate language that helps us to re-evaluate based on Section 106 and the HAR language so we can try to incorporate language into the amendment that addresses those scopes that were identified in that. Size, scope, intensity, use, location, and or timing. Additionally, we were thinking that we should add in the ability for the commission, which would most likely be the Department on behalf of the commission, when these come in and we see a change to the intensity of the project that we request a possibly a traffic, a traffic study, or a, maybe an archaeological inventory survey if recommended by SHPD, or any other type of report that may be needed to provide clarity as to the changes in the project. And then lastly, I think one thing that is really important is to really be clear that the applicant provides a specific update of everything that has happened from the original time of approval till that date, whether there has been any activity, and if there has, what has that been. If there hasn't, then they basically say nothing's happened on the property for, during that period of time. And then again, any other considerations by the commission that we can consider in the amendment. CARR SMITH: Excellent. Thanks, Jeff. Go ahead Mike. VITOUSEK: Sure. Some, some language that I was kind of working on is, if an applicant requests a change in the proposed development, including but not limited to, an extension of time periods or other conditions required by the permit's approval, the commission or the Director shall consider the extent to which the proposed action has changed in size, scope, intensity, use, location, or timing, among other things, and or whether there have been changes in the environment and or community where the project is located such that the impact of the project would be substantially different from the potential impacts at the time the permit was initially approved. DARROW: Very good. 4 EXHIBIT D VITOUSEK: Or if there's been a change in any of these characteristics which may have a significant effect, the commission will assess whether or not to grant a time extension, impose different or additional conditions, or rescind approval of the SMA permit. CARR SMITH: Good job. VITOUSEK: Something to think about. CARR SMITH: Yeah. Yup. VITOUSEK: And then I also wanted to add that I think that, you know, the process of revising the regulations and what not can take time, but I think that we can start to include language like that in the conditions of approval of SMA permits, and special permits and the like, where we're putting in there that, you know, when reviewing the time extension we will be reviewing the impact on the passage of time as I just stated. DARROW: If I could ask a favor, Commissioner Vitousek, if you could send that language to me, I'd appreciate it. Thank you. VITOUSEK: Guaranteed. CARR SMITH: Awesome. Thank you both for working on this. Appreciate it. You have something, you want to add something more Jeff? DARROW: I see hands being raised by Commissioner Van Pernis as well as Commissioner Newberg. CARR SMITH: Okay. I can't see them, they're not on my screen. Do you mind dropping down your, your presentation please? Thank you very much. Alright, Mr. Van Pernis, go ahead. VAN PERNIS: Thank you. Can you hear me? CARR SMITH: Yes. VAN PERNIS: This seems so elementary for good planning by the commission and good planning by the Department. Let's use the Diamond Resorts as an example. Here's a project that's 23 years old since its approval and wants another 5 years, so it'd be 28 years from approval, and approval was given on conditions that existed 28 years ago. As you know, I've proposed a traffic study and they have not agreed to it. This project is going to dump hundreds of cars into an area that's already over the last 20 years has become terribly congested. If we had this rule in effect, we could impose that traffic study. Without this rule, we can't. Let me tell you something as an attorney for the last 40 years. Many applicants go before this commission to get approval of their project with the full intention of getting an extension of time because I want to get the conditions narrowed down so they don't change within the next 5, 15, 20 years, and they can then sell the project on the basis that it's already determined. This is a common practice amongst consultants and attorneys. I don't know why we want to throw the population of West 5 EXHIBIT D Hawaii under the bus and make them pay for all the infrastructure improvements that develop over the next 10 to 20 years. I think that this is so elementary that there should be no opposition to it at all. CARR SMITH: Okay, thank you very much. Anyone else have comments or questions? Max, go ahead. NEWBERG: Thank you, Madam Chair. I don't think, at least what I was gonna comment on, I don't know if there is any way for us to shape it or make it better, I've only been on the commission a short time, but I think three projects come to mind as far as basically setting precedent, one being the project in Keauhou, mauka of End of the World that was granted a time extension on the basis that they had made a substantial investment on the egress of their property, investing in somewhat around a million and a half-- CARR SMITH: Can I I'm going to interrupt for just a second. I don't think that Corp Counsel wants us talking about specific cases, so let's not refer to them. I should have stopped Mark from talking about the one we just heard, but yeah, if you could generalize in any other way,please go ahead. NEWBERG: Sure, I think everything falls under circumstances. I guess without mentioning the titles of any other projects, you know, everything has its own circumstances. You have circumstances where you want it to move forward, there wasn't the original owner that created an obstruction in an area that we want to see move forward, and then there's also been projects where even though we forwarded the recommendation that we did, its been overturned, so I don't know, again, more of a comment than anything else, but I don't always see where we're setting good precedent to be able to deny anything that comes before us. That's the comment I have. CARR SMITH: Thank you. Perry or Barbara, did you want to comment on this? KEALOHA: I like some of the language added by Mike. Again, as stated earlier, we see this come before us quite regularly now, where people have, where 20 years later and so much as changed, and so, some kind of a sunset makes sense at some point. Having said that, I've been on the opposite end and witnessed the opposite side of this as well, where you're doing improvements and you get approvals and entitlements for a project and you go ahead and do all the public-value infrastructure, and then the project doesn't pencil. So, you kill it and you come up with another idea and you go in and get new entitlements and you make more public commitments and at the end of the day it doesn't pencil. So, I've seen the flip side of what we're hearing everyone says, as if there's some big intent to defraud the public in some way, but I've seen where it's not easy to make a profit, especially close to the shoreline with SMA requirements and infrastructure expectations, and you have a, you know, small project. Trying to pay for all the community infrastructure and capture it in a small project can be impossible. But, that being said, there's gotta be some sunset. There's gotta be an end to, you know, how long can we wait as well. CARR SMITH: Thank you for those comments Perry, worthwhile. Go ahead Barbara. 6 EXHIBIT D DEFRANCO: Yeah, I just, I wanted to agree with Perry on that, you know. We don't always understand everything on the other side of how, how much money they've even invested and what's happened in the economy. There's so much going on to really understand going forward. But I like the spirit of all of us on this commission because the intent is to make it right for the community and to hold the investors and the developers responsible for what they've made their commitments to. So, I agree it would be nice to put a sunset on them, but we would only be able to do that if we understood the whole project, and a lot of times we don't. So, we get what they present to us, but we don't always have, or at least I don't have the background of how they got there in the first place. CARR SMITH: Thank you, Barbara. Max? NEWBERG: To echo what both Perry and Barbara mentioned, is it within the realms of sense to perhaps try to draft legis—draft language that says if you're granted a five-year plan initially, that if it goes to three times that initial request, in other words if you've been granted extensions twice on a five-year, or have had 15 years as the original owner, then it comes under different scrutiny at some point? CARR SMITH: Jeff, were you thinking about responding to that? DARROW: Right now, the way that our Code reads is there's a section that says permits run with the land, and so, when a particular permit that's issued by the Planning Commission is issued, it runs with the land. There's been discussion by the commission about trying to either change that code or put in the rules that this sunset date that's been spoken about, and as well as if the property changes ownership that they're required to come back. So, those are things we can look at as adding in during the rule amendments, but again, it may also require a code change which goes up to Council. The, you know, it's a, again, if this is the direction of the commission, we can present it. We're going to take both of these matters before the Windward Commission at our January hearing, and then we'll compile the suggestions from both commissions, try to put together particular rule changes and possible code changes. This thing, you know, it's not as simple as we would hope, you know, because we think we're on the right page but if we just agendize a joint meeting and presented this and, and both commissions came together and we, unless we can try to somehow vet it before we come together as a joint commission, it might be a futile effort. So, what we'll try to do is create the suggested rule changes, provide them to the commission for feedback to make sure we're on the same page, and then put it together to bring to a joint commission. But again, I, I hear what you're saying regarding the time period that's been discussed a number of times so, that's something we can try to present in the rule amendments. CARR SMITH: Very good. Thank you, Jeff. Mike? VITOUSEK: Sure, I just want to reiterate that the idea behind this language change is not about timing itself, and not about a sunset clause, but about considering the effects and how the effects change over time. So, it'll be a case-by-case thing where you'd be looking at a project and seeing that over the last years what changes have there been in the community that now need to be taken 7 EXHIBIT D into account when re-evaluating this project. So, that's the intention of what, what I was talking about. CARR SMITH: Yeah, yeah. Well, thank you for working with Jeff on this. Commissioner Van Pernis, do you have something new, or? VAN PERNIS: I wanted to respond to Barbara, Barbara's comments, which are it's the applicant's responsibility to inform us of everything that should be considered. Their investment or whatever. We shouldn't have to guess; we shouldn't have to wonder. In Mike's presentation on this is not about time, they can get as many extensions as allowed, as long as the Planning Commission can impose appropriate conditions rather than having a development approved in 1990, built in 2025 with no additional conditions or changes and the result being that the population, the public pays for the problems that the developer is creating by his delay. It's only fair, it's only good planning and other jurisdictions do it that way and I don't know why we shouldn't. CARR SMITH: That's what we're working on. Okay, very good. Thank you all, appreciate your efforts on this. Thank you. DARROW: If I could just CARR SMITH: Yeah. DARROW: --say something in summary, is that I'm not sure which commissioner it was that mentioned this, but might have been Commissioner Vitousek, the, you know, amendments take a while, rule changes take some time and stuff, but in the meantime, there is the option to add the conditions in the permit of what the commission wants to see. So, if the commission wants to see those, those review of effects that have, that come out we can put a condition in there or try to word a condition that we can start adding in there that if these things happen, we need to re- review. Additionally, I've seen in the past where there's been sunset time on the permits. It'll say the period of time for this, the life of the permit is ten years, that's it. They have to come back, but basically it's, I've seen one that actually, there was a number of permits that were issued that said that the life of this permit is ten years, but the intention was that they wanted them to relocate to an area that was more zoned appropriately like an industrial area, but there weren't any available during that time, but it appeared that in time there would be areas available for zoning that they could move to. So, these kind of conditions the commission has, has gotten creative and added in. They're not just standardized conditions. So again, until those changes occur, there's always those options available. CARR SMITH: Right. Good. KEALOHA: I have a quick follow up on that, you know, as opposed to sunset, a notion that entitlements or permits can be assigned, because I agree, with Mr. Van Pernis that some developers will seek the entitlements just so they can improve the value of their property for sale. And if you eliminate that opportunity, then they'll be incentivized to finish the project through so 8 EXHIBIT D they can recapture their value, versus handing it over with entitlements to just increase the value and not deliver on the public promises. CARR SMITH: Any response to that Jeff, or no? DARROW: Well again, I would say that that would be the reason for putting in a sunset or a change of ownership condition that they have to come back so that regardless of what entitlements are there, if they sell the property, the new owners gotta come back and, and update those entitlements. CARR SMITH: Yeah. Very good. Thank you, all. Good discussion. The hearing was adjourned at 2:30 p.m. Respectfully submitted, Kim Tanaka Secretary to Boards and Commissions 9 EXHIBIT D