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HomeMy WebLinkAbout2021-03-18 Leeward Exh C (Discussion on proposed clause re time extension for permit) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MARCH 18, 2021 A regularly advertised discussion on A CLAUSE TO ALLOW FOR CONSIDERATION OF THE PASSAGE OF TIME AND CHANGE IN CONDITIONS WHEN CONSIDERING TIME EXTENSION FOR PERMIT was called to order at 12:13 p.m. via live-stream online meeting, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Nancy Carr Smith, Barbara DeFranco, Perry Kealoha, Max Newberg, and Mark Van Pernis ABSENT AND EXCUSED: Faith"Faye" Yates ALSO IN ATTENDANCE: Malia Hall, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Zendo Kern (Planning Director), April Surprenant(Planning Program Manager, Long Range Division), Maija Jackson (Planning Program Manager), Alex Roy (Planner), Tracie-Lee Camero (Planner), and Noriko Sauer (Leeward Planning Commission Secretary) Discussion of amending the County Code or permit conditions 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. VITOUSEK: We'll move on to item 2 of Administrative Matters: Discussion on amending the County Code or permit conditions 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. JACKSON: Yes, Chair Vitousek So Commissioner Van Pernis has suggested some language that could be considered as a condition that the commission adds to its favorable recommendations for rezone to the Council, and we distributed that to all the commissioners. One thing I just want to remind everybody that the commission makes a recommendation to the Council, not a decision, so anything you decide here, you can forward up to them as a suggestion and recommendation, and then we'll see where it goes from there. VITOUSEK: Unless of course we are reviewing a special use permit, a Special Management Area permit, in which case we are the issuing body, so we are the party who issues the conditions. So for a change of zone, yes, we are a recommending body, but we are the ones who are actually issuing SMA permits, so we are the ones that can impart those conditions. And I want to make sure that we all know that we have the authority in those situations to provide language indicating that should circumstances change in the future, we can re-evaluate our issuance of discretionary permit. 1 EXHIBIT C JACKSON: That is correct, and I just framed it that way, Mike, because Commissioner Van Pernis's suggested language was geared more towards rezones. But you absolutely do have authority to put conditions in and time limits on Use Permits, Special Permits, SMA permits, shoreline setback variances. VITOUSEK: Okay, Commissioner Van Pernis, would you take us through your suggestion? You are on mute. Commissioneroh, there you go. VAN PERNIS: First, I want to point out that the biggest reason for problems and argument in the County Council and in this commission is because of the delays that people seek and without any additional conditions. And I want to point out that I have discussed this matter with members of the County Council, and they uniformly ask why isn't such a condition as I've presented, why isn't that made part of our recommendations. They are generally in favor of this so that they don't have to negotiate. And I would point out that numerous applications, for instance, the past application of Puaa Development LLC and Suffolk Development LLC involved delays and expired ordinances for 25 years, and VITOUSEK: Hold on, Mr. Van Pernis VAN PERNIS: (Indiscernible—simultaneous speech) VITOUSEK: Commissioner Van Pernis, we can't speak directly about any specific projects, but you can speak in the, you know, hypothetical about projects that you are trying to VAN PERNIS: The Youngs app VITOUSEK: You know, we are, the entire discussion about change in conditions and that's okay, but we don't want to relate that(indiscernible—simultaneous speech) VAN PERNIS: All right. Many applications VITOUSEK: (Indiscernible—simultaneous speech)projects—hold on one second VAN PERNIS: I'll just(indiscernible—simultaneous speech) VITOUSEK: for Sunshine Law purposes. Go ahead. VAN PERNIS: Many applications including ones considered today have expired, and people think they can get extensions despite expired applications without having to present or argue any future conditions. This is a major problem and the biggest controversy that has risen. The language I proposed deals with that and leads to open the matter of how long an ordinance should be able to survive without new conditions being considered. It doesn't mean that there have to be new conditions that are imposed, but they certainly need to be considered. There is decades often go by without any sort of contribution added when changes are very significant and need to be added. All of the expenses end up with the taxpayer, rather than the developer who is benefiting. 2 EXHIBIT C And I also would point out that many applications involve getting an approval with certain conditions and then selling the property with those conditions, knowing that the conditions will never be changed or added to, and that's a promise, the promise I can make to the buyer. So in order to deal with this, not just to discuss it, but deal with this, we have to have such a condition from us and take the County Council away from having to negotiate conditions also, such as some that have received negative recommendations from us. So this is good land planning, it's what most other progressive areas have, and it fills in the blank that our Planning Department leaves being the meaningless provision that a project be completed by a specific date and rely on to get year after year after year of extension without any price. I think we need to make this a condition. This is something I have, a clause I have submitted. VITOUSEK: (Inaudible—microphone on mute) Sorry, Director Kern, go ahead. I see you had your little hand up there the whole time. KERN: Thank you, Mr. Chair. Yes, I'd just like to add a little bit to this discussion. This is more of a discussion related to rezonings. As far as Special Permits and SMAS, the SMA side of it, it's a little bit different. But related to Special Permits, when an application comes in for, let's say, a time extension, it might be a shorter application form than the normal submittal; however, that gets sent out to all the agencies, and all the conditions and all the impacts are looked at fresh based on when this came in. So it's sounding like it's assumed that because they are only asking for a time extension to an existing ordinance, that everything basically stays the same. And if the conditions haven't changed, that would be true, but in certain cases, that's not the case; traffic has changed, you need to do updated TIAR, and they do maybe updated archaeology, as well as we see fair share increase with that as well. So one of the interesting points I'd like to make with this is a property that was rezoned in the past and has expired, let's say, it was rezoned from like Ag to Residential or to Commercial, the property tax rates change, and they are being charged at that new designation, so they are paying higher property tax based on that land use. And so at what point do we stop that as well, right? Because we are collecting that revenue that we do need for our county based on that. And if we stop that, that those taxes won't be paid, is one situation. Or if you require I'm trying to figure out requiring more than we already do, I guess is what I'm trying to understand here, we do review it, we do go over new conditions, we basically go through an entire process as if it were a new change of zone, yet all these years we are collecting property taxes. It could get into—I think there is some implications around that as well, I won't get into those. So that's kind of just some thinking on my side as we talk about this subject. I'm happy to answer more questions on that. VITOUSEK: Yes, Director Kern, do you feel like the language that has been proposed by Commissioner Van Pernis would make it more difficult or easier in the application, even application of the Planning Department's procedures when it comes to the time extensions? You think saying it evenly across the board, saying, okay, you run out of time, your ordinance is over, now you need to reapply. From a planning perspective, is that more difficult or is that easier when we are trying to apply things evenly? 3 EXHIBIT C KERN: I think it could be actually a bit more difficult in one sense because then we are trying to, we are trying to potentially regulate that or have them notify on one level. We said it just, so if we said it just expireslet's, let's run this down for a little bit, right, we get a project, they are doing rezoning, let's say, it's a, you know, to create 49 residential house lots, and the 10 years goes by, they get, five years goes by, they get an administrative time extension, that entire 10 years they've been paying property taxes based on that zoning, at the end of the administrative time extension, if it just died right then, we would then need to go back to Real Property Tax, tell them, hey, the rezoning has been reverted back, it's ended, now charge them the lower property tax rate, and maybe notifying the landowner, applicant, or it's already known in their conditions, that's probably less of an issue, and then the five years goes by, and then the economy comes back around, somebody wants to resurrect the project, and they basically go through the same process they'd go through right now; they'd submit an application, we would review it for all the conditions, we'd say it has previously been zoned, and then we would go back to Real Prop- if it was approved, we would go back to Real Property Tax and have them do it. I'm just trying to understand what the true intent is around it, because, to me, if it expired and if it's basically in limbo, it has to go through this process. And if the Council deemed that that's no longer appropriate, and it's done at that point in time. Does that make sense? VITOUSEK: Commissioner Van Pernis. VAN PERNIS: Yes, the entire matter of real property taxes Mr. Kern refers to, is a shibai; the tax stays the same, the zoning stays the same, there is no reversion to Agriculture tax rates or anything else. So there is no change in the tax concerns. The applicant has delivered a huge benefit by the upgraded zoning, which he then sells or has the opportunity to develop. The county supposedly is supposed to get certain infrastructure; the county gets nothing out of these deferrals. You'll notice my suggested language says the zoning stays, the zoning stays; they don't, there is no reversion, there is no tax consideration. If an applicant wants to upgrade with millions in many cases, if not more, it's up to them to pay their taxes on that increased amount. That's what they are selling their property for or developing the property for. If they choose not to develop it or don't develop it for whatever reasons, the value of upgrade is still there. Let me ask you: When was the last time you saw the director downzone something from Multiple Residential or Commercial zoning to the Agricultural zoning? Never. It's not, doesn't happen. When was the last time you saw a developer sell his project on the basis of upgraded zoning and upgraded conditions? I would say it happens all the time. Now, does that make their job harder by adding a sunset provision? No, it makes it easier than VITOUSEK: (Indiscernible—simultaneous speech) if I can just stop you for one second there, Commissioner Van Pernis, I want to say that, you know, I agree with a lot of what you have put in here, and I think that what you have kind of stated in this proposed condition is actually very reflective of the practice that's happening now where the zoning is maintained but they have to re-evaluate as if it were new application in order to recondition it based on the changing environment of the time, and I don't think that necessarily the sunset clause is needed, if we are maintaining the zoning, but instead, if we are revising the language to reflect that, if the zoning, or the conditions of the zoning, are not met in the time that's allocated, that the conditions can be 4 EXHIBIT C re-evaluated and new conditions can be composed based on the changing in the environment surrounding the project. I think that that kind of serves the intent of what we are offering here and sort of fits within the actual practices of what you are proposing while maintaining that—we are not putting a sunset on the zoning, which could have tax implications; what we are saying is we are putting a sunset on the conditions indicating that, you know, they will need to be re-evaluated should change, should conditions around the property be changed. Does that make any sense to you? Commissioner Van Pernis, go ahead. VAN PERNIS: The proposed language requires a new application; it doesn't leave the matter to the discretion of the applicant, or the planning director in granting a continu- an extension. We've seen time after time, and it has been a great cause of problems and consternation where an ordinance expires but the applicant and planning director consider it as not expired but we'll just go ahead and talk about an extension. There is no opportunity for public input for instance. Public input is very important in this VITOUSEK: I think there is (indiscernible–simultaneous speech)public input. VAN PERNIS: —our job of servicing the community. Public input is eliminated by the present process for extension of expired ordinance. I also have a lot of problems with the fact that saying something will be subdivided by a certain date means nothing to the applicant or the planning director. VITOUSEK: Maija, go ahead, I think you had your hand up for a while, I think. Go ahead. JACKSON: Thank you. I just want to speak to the actual language that Commissioner Van Pernis proposed. VITOUSEK: Yep. JACKSON: I do have concern with the second line. Atone point I heard Commissioner Van Pernis say that the zoning would remain, but this language says, "If there is not such completion, the ordinance shall terminate and be of no further force or effect automatically and without any further action." So when an ordinance terminates, that means VITOUSEK: "Except," it says, "except any zoning of the property granted or which was allowed by the ordinance shall remain in effect." JACKSON: Yeah, so you can't do that; you cannot terminate a zoning ordinance yet keep the zoning. Legally, I don't think that works. We could have Malia chime in, but when you rezone a property, the ordinance is what changes the maps legally and then actually changes the code. So I don't know how to go about doing that legally. VITOUSEK: I think that, you know—again, this is very, what is being proposed by Commissioner Van Pernis, is actually similar to the practice of requiring a reconditioning of a stale ordinanceI think that if we can have language that is put into the ordinance when it's issued that if the ordinance lapses, the commission can then recondition that ordinance based on 5 EXHIBIT C the changing environment in the community. I think that that is what, you know—and then at that point they would have to reapply for that continuation of their ordinance, and we would then recondition it and then move forward according to the zoning that's been issued. Director Kern. KERN: Thank you, Mr. Chair. So outside of an administrative time extension, which is generally allowed on most permits, we go—it's being implied by Mr. Van Pernis that we don't allow public comments, that there is not a review process, that there isn't a recommendation done by the respective planning commission, and there isn't something that goes on at Council, it implies that it just,just happens automatically if somebody asks for it. And, I mean, you folks see it all the time that's not necessarily the case. I know there has been some challenging applications, but when it goes through, they, we have to look at how this, the Planning Department has to look at how that request for a time extension of that zoning relates to every single element that exists today, the current General Plan, the CDP, they have to send out notices to surrounding property owners just like they would with a fresh application, they have to, we have to send it out to all the agencies for comments; it goes through every single process that a fresh application would. I'm just, I'm just confused on, I guess I'm perplexed of what the additional requirements. I would get it if you just said, hey, it's only a time extension and every condition is locked in stone and you can't change that and there is no public testimony now, sure, I'd fully get it. But when it has to go through the same process—is it more of a notification to the applicant as, and they are saying that if this expires,just be put on notice we are going to review these conditions, like this is going to, we are going to take a fresh look at it? That's a different story because that would never message—and it's more of a communication issue; it's not change, it's not necessarily change in the process. VITOUSEK: Commissioner Van Pernis, what, what procedural change do you think would be needed in order to accomplish what you are trying to do? Commissioner Van Pernis. VAN PERNIS: Well, first of all, let me say that the administrative extension privilege given to the applicant and the planning director is limited by my suggested language, which can be modified, of course, so we don't get into a situation with the administrative extensions of five, 10, 15 years, three at a time, that don't add any conditions whatsoever despite the change in time. Mr. Kern doesn't address that subject. We are talking about, he is talking about a new application. I think the language should be utilized so that there is a limit on administrative extensions without additional conditions and additional public input VITOUSEK: Hold on a second there. For most cases, the commission or the Council who is the approving authority, are in advance establishing when administrative time condition [sic] can be issued, so that's pre-built into the permit— KERN: ermitKERN: And it's also, it's also the, it's inI believe it's codified and in practice—we can't issue multiple time extensions on an ordinance or a Special Permit; the only thing we can issue multiple time extensions on is like a subdivision because it's an administrative permit, that's basically a right, entitlement to it. We are only allowed to issue one administrative time extension, so if the zoning ordinance said five years, we are only allowed to issue one administrative time extension up to five years; we can't say, oh, you know what, we actually feel 6 EXHIBIT C like giving them an administrative time extension for 10 years. We can't do that; we are maxed out at that five-year. VITOUSEK: That's built into the permit when it's issued KERN: Correct. VITOUSEK: so if, for any specific permit, if the Council or the issuing body decides that for this particular permit, they don't want to issue an administrative time extension, then that's within their power; they could, the issuing body, this Council, this commission, could say that we don't want an administrative time extension. So that could be a case by case depending on the permit. KERN: Which you folks have done, which they have done in the past— VITOUSEK: astVITOUSEK: Yes KERN: or longer for that matter. The project is going to be a 20-year project, right, and it's not a five-year project. We've seen that with schools. VITOUSEK: And that has to be considered with the merits of that individual application and by the approving body, so, I mean, it's something that, you know, is a tool that is at our discretion. We are handing off the ability to approve this administratively for a certain period of time, and that's it. And in some cases that is perfectly appropriate, other cases it may not be, but that's up to us and that doesn't require a change in ordinance in order to implement. We do that, that's our job. Commissioner Carr Smith. CARR SMITH: Yeah, I agree with what you just said, and we've, we've had a lot of conversations about this, and I think the Leeward Planning Commission has had more heartburn over expired permits than Windward has. And I think that that's something that the staff has done really well over the last couple of years, have tried to listen to our concerns, they found that Windward didn't feel the same way, they did make some suggestions as to how things could improve. And I think that you guys need to have the latitude to take things on a case-by-case basis. I don't, I don't support Mr. Van Pernis's suggestions. Thank you. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: Yes. These administrative extensions may be five years at a time. I'm not suggesting there'll be 10 or 15-year extensions or there were, but the administrative extensions could be five years, then another five years, then another five years. KERN: That's not true. VITOUSEK: No KERN: That's not true at all. 7 EXHIBIT C VITOUSEK: yes, there could not be VAN PERNIS: Then there has been a change. VITOUSEK: The administrative time extensions are built into the issuance of each permit, so each permit—they could have 10 administrative time extensions if the Council determines that's appropriate for that permit. In most cases the approving body would issue one administrative time extension for that permit, allowing the applicant the opportunity to have a time extension without going back to the Council or the commission. Every permit could be different. We could review a permit tomorrow or next month and say absolutely no time extensions, and that would be okay, that's within our authority. It's a case-by-case thing. And I think the merits of each individual application would have to be taken at that time. Commissioner Van Pernis, go ahead—and then I think we are going to move towards wrapping this up and then moving this discussion on to the merits of the next applications. Okay, Commissioner Van Pernis, go ahead. VAN PERNIS: I think at a minimum, at a minimum, we should somehow indicate in every application that the time limits given, be they extended or not, that the application and the recommendation in any ordinance expires and is of no further force and effect, and eliminate this practice of, well, that doesn't mean anything, you can ask for an extension at any time even if your ordinance and its conditions expire. VITOUSEK: Got it, I absolutely hear you on that, and I appreciate your perspective. And I think that in the future when we are reviewing an application for a change of zone, we can try to work together to put some language that the applicant would hopefully agree with that will alert them to the need to come back and recondition their approval, should they lapse. So I'm looking forward to working with everybody on that, on the next actual application that we get. With that, I think we can conclude that administrative matter. The discussion ended at 12:40 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 8 EXHIBIT C