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HomeMy WebLinkAbout2021-05-20 Leeward Exh A (Discussion on amending agenda) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII DISCUSSION TRANSCRIPT MAY 20, 2021 The commission discussed potential amendments to the agenda for this live-stream online meeting at 9:55 a.m., with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Nancy Carr Smith, Barbara DeFranco, Max Newberg, Mark Van Pernis, and Faith "Faye"Yates ABSENT AND EXCUSED: Clement"CJ" Kanuha III ALSO IN ATTENDANCE: Dalilah Schlueter, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Jeffrey Darrow (Deputy Planning Director), Maija Jackson (Planning Program Manager), Alex Roy (Planner), Christian Kay (Planner), Tracie-Lee Camero (Planner), and Noriko Sauer(Leeward Planning Commission Secretary) VITOUSEK: Before we get into public testimony, we have some potential changes to the agenda. Sunshine Law allows the commission to alter the agenda on the day of the meeting with a two-thirds vote of the commission, provided that changes to the agenda are not reasonably major importance. So, requested change number one, is with the pending departure of Vice Chair Max Newberg from the commission, we will be without a vice chair for the June meeting. There is a chance that I have a scheduling conflict in June and may not be able to attend; therefore, it would be prudent to amend the agenda to allow for the election of a temporary vice chair for the June meeting to give us enough time to properly agendize a permanent replacement for Vice Chair Newberg at a future meeting. Therefore, I request a motion from the commissioners to amend the agenda to allow for the election of a temporary vice chair for the June LPC meeting. CARR SMITH: So moved. YATES: (Raises hand to second the motion) VITOUSEK: Moved by Commissioner Carr Smith. Second by Commissioner Yates. Any discussion? Commissioner Van Pernis? VAN PERNIS: (Inaudible—microphone on mute) VITOUSEK: Yeah, needs to be unmuted. 1 EXHIBIT A VAN PERNIS: Now can you hear me? VITOUSEK: Yes. VAN PERNIS: Is there any possibility of changing the date of the June hearing so that you would not have a conflict? VITOUSEK: Possible, but in either case I think we should have a deputy, I mean an interim vice chair for the meeting, regardless of whether I'm there or not. So we can work that out with the date of the meeting—we can work that out offline and figure out if we can schedule it or schedule a special meeting. But I think for the purposes of coverage, we will need to have a vice chair. Any further discussion? I would, I put this item as item number 7, if it were elected, so it will be taken after the completion of all the other items. SCHLUETER: Excuse me, Chair. Dalilah Schlueter, Corporation Counsel. I just want to, while everyone is considering,just make sure that you are aware that the Hawaii Revised Statutes 92-7(d) does, as the Chair, allow for this,provided that no item shall be added to the agenda, if it is of reasonably major importance and action thereon by the board will affect a significant number of persons. So I just want to make sure you all know the standard just so that, while you are considering. VITOUSEK: Okay, any further discussion? (No audible response) okay, seeing none, let's take a vote. All those in favor? (Commissioners Carr Smith, Yates, DeFranco, and Newberg, and Chairman Vitousek raise their hands in favor.) VITOUSEK: Aye. Any opposed? VAN PERNIS: (Raises hand in opposition) VITOUSEK: Okay, motion carries—is that six to one? JACKSON: I believe it's five to one. VITOUSEK: Five to one, five to one, okay. Thank you. The item will be added as agenda item 7. Okay, next up is a clarification of agenda item 2. In a letter dated May 18, 2021, the applicant's representative for agenda item 2, Jekaterina Mysinforgive me if I pronounced it wrong SMA 21-078, requested to postpone until the June meeting to give the public time to review and comment on changes to the development plans and to allow the applicant additional time to follow up on concerns expressed by community members. This application has not been 2 EXHIBIT A withdrawn. There has been a petition for standing in a contested case hearing on this agenda item that has also not been withdrawn. Given the very short notice, on which this item was withdrawn, was requested to be postponed, there wasn't sufficient time for the applicant to notify all the owners and lessees or individuals who have possessory interests of properties within 300 feet pursuant to Planning Commission Rule 9-1 l(d). I'm concerned about the department unilaterally postponing this item. The applicant may withdraw their application at any time, but if they want to postpone the agenda item this close to the meeting, then the Planning Commission needs to make that determination. So the applicant is not the only party involved in this public meeting, especially if there is a request for standing in a contested case. So we will hear public testimony on this item, and then the Planning Commission will consider whether this item should be continued in its entirety or whether the commission should hear the petition for standing in a contested case. Moving onto potential amendment to the agenda item number 6. Deputy planning director is requesting a change to the planning director-initiated bill to add FA zoning. Mr. Darrow, will you please explain the requested amendment to the agenda? DARROW: I can. If we can go back to the previous item. The department does not agree with moving forward on the motion to grant or to deny standing on the matter of number 2. The applicant has requested a continuance; when you read the rules, it gives the applicant the right to submit a filing fee and to request a continuance. There is no information in the rule regarding a motion by the commission. Further down in the rule, under Decision and Order, there is a section that says the applicant may request the commission to defer action on the application. So there are two different situations here. As mentioned previously, standard practice is is that if the applicant requests a continuance prior to the hearing, there is no hearing that has, was no hearing on the matter, that we accept the request, they submit the filing fee the filing fee is for administrative cost that will be used to be able to re-agendize the item—and then they are required to send out the notification. As it was late in the process, I don't know if the applicant sent out the request to the surrou- or the information that was needed to be sent out to the surrounding property owners, but the department did post on the website that this item was continued. The department is not ready to move forward on this matter, and being a parry in this matter, is requesting that it be continued. VITOUSEK: Okay, thank you. You know, we are kind of getting conflicting message on whether it's the commission's role to continue a matter on the agenda, whether it's the department's. I believe that it's the commission's role to decide whether to continue a matter that is placed for the commission, and as such, I'd like to give the commission that opportunity and, you know, they will likely consider all of the information that's coming from the department and the applicant and public testimony in making a decision to continue DARROW: The reason why I mention that I disagree with that is because the way that the rule reads is that there is a process in place for the applicant to follow without the request, or being granted by the commission, and that process is that they submit the filing fee, and that they 3 EXHIBIT A notify surrounding property owners that the matter has been continued. They wouldn't do that, if they had to go before the commission to request the continuance because they wouldn't be sure if they were going to be granted a continuance. They would have to be ready to move forward on the matter, and so would all parties. At this point all parties have been notified that the issue has been continued. And so we have not had an opportunity to prepare for this matter today. VITOUSEK: Okay—Commissioner Van Pernis. VAN PERNIS: Can you hear me? VITOUSEK: Yes. VAN PERNIS: I disagree with the Planning Department's analysis. I think(indiscernible) the language of the fee rule says the Planning Commission can decide, or implies that. But I'm concerned because the lateness of the application, whether or not there is public testimony, that should be taken. I also would like to hear from the Planning Department as to whether—two thingsa notice has been, they signed the notice, originally was presented or in place, and secondly, whether the application fee, the fee that has been referred to, has been paid. DARROW: I have received the filing fee for the continuance. Maija, if you could answer the other question. JACKSON: Yeah, I believe the sign is still posted on the property. And the applicant did provide notification to all owners within 300 feet of today's hearing. They did not send out a notice yet that the hearing was, that they requested to continue the hearing. However, the department did put on our website that the hearing was continued, so anybody that views our website and the background and recommendation reports would see that the hearing was continued. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: In follow-up, you say, "believe"; are you certain or not certain that the notice including the sign that goes up on property was timely in place? SMITH: (Raises hand) VITOUSEK: I'm sorry, Mr. Smith, we are not taking public testimony at this point. SMITH: I just wanted to clarify that the sign is in place. VAN PERNIS: Well, it's in place now, but was it in place prior to the meeting? 4 EXHIBIT A JACKSON: Yes, Commissioner Van Pernis, staff went out to do a site visit, and when they did the site visit, the sign was in place. VAN PERNIS: Thank you. VITOUSEK: So, I think what might make the most sense for us to do at this point would be to call an executive session, in which we'll have the opportunity to consult with our Planning Commission attorney to determine the appropriate course of action for this agenda item. Commissioner Carr Smith. CARR SMITH: If I could just ask the Planning Department a quick question before we go into executive session. I understand that they have a process and procedure, and I respect that but I'm wondering, in this case when it's been continued, how is the petition for standing handled, generally, Jeff? DARROW: The entire hearing is continued. And the reason that we want them to be continued together is because normally what happens is when we come together for a hearing, staff will present the application, they will provide all the information, they will be able to answer any questions of the commission that they may have, and then after the presentation and questions and testimony are complete, then they go into the matter of whether or not to grant standing. It's difficult to move forward with one portion of this application without the other, because you are going to be very limited on what you can do and what you can ask and say in regards to the petition because the other portion is continued. But again, our process has always been that when the matter is requested by the applicant prior to the hearing to continue, that we will continue the matter. If it's at the hearing, and the applicant or the petitioner or the Planning Commission requests a continuance, then there is a motion made and a vote. CARR SMITH: Okay, thank you. VITOUSEK: Okay, with that, I think executive session would be appropriate. Will one of the commissioners make a motion to go into executive session to consult with our attorney? CARR SMITH: (Raises hand to so move) VITOUSEK: Moved by Commissioner Carr Smith. DEFRANCO: (Raises hand to second the motion) VITOUSEK: Second by Commissioner DeFranco. All those in favor? (Commissioners Carr Smith, DeFranco, Newberg, and Yates, and Chairman Vitousek raise their hands in favor.) 5 EXHIBIT A VITOUSEK: Aye. Any opposed? VAN PERNIS: I oppose. VITOUSEK: Oppose, okay, one, five to one again. With that, we will close the public testimony, or close the public meeting, and we will go into executive session. How are we going to do that? JACKSON: So with Zoom, we have what is called a breakout room. VITOUSEK: Okay. JACKSON: So what I'm going to do is I'm going to put the planning commissioners and Corp. Counsel Schlueter and Noriko in a breakout room, and then—so bear with me, this is the first time I've done a breakout room when the commission is done with the executive session, you guys will have to come back to this main meeting, and it will have a little icon for you to click to come back to the main meeting. So we will all still be here; the testifiers, the applicants, staff will be in the main meeting. VITOUSEK: Okay. JACKSON: Okay? So let me, let me try to set that up,just give me a few minutes here. DARROW: Good luck, Maija. JACKSON: Thank you. The commission went into executive session at 10:16 a.m.for the purpose ofconsulting with its attorney regarding questions and issues pertaining to the commission's powers, duties, privileges, immunities, and liabilities,pursuant to Hawai`i Revised Statutes 92-5. At 10:25 a.m. there being no further legal questions, the commission came out ofexecutive session at the call of Chairman Vitousek. The commission left the Zoom breakout room and rejoined the main meeting, and Chairman Vitousek called the open session back to order at 10:26 a.m. VITOUSEK: Okay, we are back from our executive session. Thank you for your patience. At this time we'll be seeking two motions from the commission: One motion being whether to postpone agenda item 2 as requested by the applicant, and one item being whether to allow public testimony on this agenda item. So if the commissioners would like to make a motion so we can have a discussion. DARROW: Mike, can I just make a suggestion? 6 EXHIBIT A VITOUSEK: Yes. DARROW: Chair—sorry about that. In any, whenever any item is agendized, there is no need to vote on public testimony; we will always accept public testimony for any item that has been agendized, whether it's continued or not. VITOUSEK: Got you. Okay, so we, in that case, we just need one motion, and we will be allowing public testimony on this no matter what. Commissioner Newberg, I mean Vice Chair Newberg, sorry. NEWBERG: Thank you, Chair. I would like to make a motion to allow a continuance for agenda item 2, Mysin for SMA 21-000078. CARR SMITH: (Raises hand to second the motion) VITOUSEK: Motion by Vice Chair Newberg, second by Commissioner Carr Smith. Discussion? Is there anything anybody would like to add? (No audible response) no, okay, all those in favor? (Commissioners Newberg, Carr Smith, DeFranco, Van Pernis, and Yates raise their hands in favor.) VITOUSEK: Any opposed? (Raises hand in opposition) okay, is that five to one again? JACKSON: Yes. VITOUSEK: Okay, motion carries. This item will be deferred to a later date. Commissioner Van Pernis. VAN PERNIS: (Inaudible–microphone on mute) VITOUSEK: It's on mute. It's on mute, Commissioner Van Pernis. VAN PERNIS: Is a motion in order to allow public testimony for those who have appeared today on the Mysin matter? VITOUSEK: A motion on that is not necessary; public testimony will be allowed on that agenda item today. VAN PERNIS: Thank you. 7 EXHIBIT A VITOUSEK: Yep. Okay, carrying on to the last potential change to the agenda, it's item 6. Deputy Director Darrow, would you please take us through the planning director-initiated changes? DARROW: Thank you, Chair Vitousek. We, unbeknownst to us, we had a number of staff, as well as council aides, review a particular ordinance that went through both commissions and through council for approval regarding medical clinics and Use Permits, and this was about a month or two ago, and after everything was passed and ready to go into code, it was observed that there was just a very minor change to the wording of a particular section in the code. Although the wording is very minor in nature, the way, if it's applied, the way that it is presented, it would be incorrect. So it's just a minor change of a word, one word, and we are asking that the commission through the ability that Corporation Counsel had mentioned earlier, to be able to allow this through in this bill that we are working on. It, the way that it's added on to the agenda, is at the end it says, "and making clerical revisions to permitted uses in the Family Agricultural zoning district." It's the last section in the bill, Section—let's see, well, it's included in the bill—anyway, it's a particular word, it is from, changes it from "outside," or "within"to "outside" I need to look at that and just find out exactly where it is. But it's, we weren't able, what happened was we found out after the agenda was already released, and so we weren't able to amend the agenda. For the Windward Planning Commission we were able to ame-to get the correct agenda out. The reason why, I mean, it's not critical for this particular section to go through; the main thing that we are trying to do with this bill is make some minor changes to the rules regarding EnerGov, and we'll talk about that as we get there. But again, we are just requesting this minor addition to help us fix this issue that happened previously. Thank you. VITOUSEK: So, are you requesting an amendment to item 6 or are you requesting a new item to be heard regarding the change to the FA zoning? DARROW: It would be just an amendment to the agenda. VITOUSEK: I got that, but is that a change to agenda item 6 or is it a change adding a new agenda item? DARROW: No, no, it's just a change to agenda item 6. I'm trying to locate the—it's Section 8 within the ordinance. VITOUSEK: The ordinance that was included in our background? DARROW: Correct. So again, it's just, we had sent the ordinance to the commission after we made the changes, but we weren't able to agendize it with that addition once it was sent out. VITOUSEK: So, so I understand, the requested change is a minor revision to the ordinance that we have had submitted to us? Maija? 8 EXHIBIT A JACKSON: Yeah, Chair Vitousek, if I may? So the only change we are asking for is a change to the agenda. What happened was we put the agenda out, because it has to be released almost a month before the hearing, and then we made amendments to the bill that's before you in your recommendation report. So the background and recommendation report are accurate. So the amendment we would want to the agenda is on item 6 after the last word "the Planning Department,"we would also say, "and making clerical revisions to permitted uses in the Family Agricultural zoning district." So we are just adding that last statement to the agenda. VITOUSEK: And could you take us through what the clerical revision is so that we understand what substantive change is, if it— JACKSON: tJACKSON: Sure. So if you look at page 3 of the bill of your background and recommendation report, at the bottom of page 3 there is a section 8, and that entire section 8 was added. And so what that does is that it just fixes a clerical or typographical error that occurred when a previous bill went through council. You can see it says, "The following uses may be permitted in the FA district, provided that either a use permit is issued for each use if the building site is within the State land use Ag [agricultural] district or a special permit is issued for each use if the building site is within the State land use agricultural district." So it's just a change that needs to be, it's a fix that needs to be done, because when we, when the department sent a previous bill through, we accidentally changed that word from "outside"to "within," and that was in error. We superimposed the wording incorrectly. The code never had the word"within" in it; we accidentally added it. VITOUSEK: Okay, I see that, and I believe that that's not reasonably major importance. Commissioner Carr Smith. CARR SMITH: I'd like to make a motion that we amend agenda item number 6 as stated by Ms. Jackson. VITOUSEK: Motion has been made. Is there a second? NEWBERG: (Raises hand to second the motion) VITOUSEK: Oh, Commissioner Newberg, or Vice Chair Newberg, sorry. So, moved by Commissioner Carr Smith, second by Vice Chair Newberg. All those in favor? (Commissioners Carr Smith, Newberg, DeFranco, and Yates, and Chairman Vitousek raise their hands in favor.) VITOUSEK: One, two, three, four, five. Any opposed? VAN PERNIS: (Raises hand in opposition) 9 EXHIBIT A VITOUSEK: Five to one DARROW: Thank you. VITOUSEK: Okay, that will be included with agenda item 6. Now we are finally able to get into the new business of the agenda. Thank you for your patience. The discussion ended at 10:37 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 10 EXHIBIT A