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HomeMy WebLinkAbout2021-07-15 DRAFT Joint Hearing Exh B LEEWARD AND WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JULY 15, 2021 The County of Hawaii Windward and Leeward Planning Commission met in joint session at 9:47 a.m. on July 15, 2021, to review and take action on proposed amendments to Planning Commission Rules related to intake procedures and processing applications submitted to the Planning Commissions in preparation for Energov launch, with Chairman John Replogle presiding. LEEWARD COMMISSIONERS PRESENT: Michael Vitousek, Barbara DeFranco, Shani Armbruster, Mark Van Pernis, and Faith "Faye" Yates. WINDWARD COMMISSIONERS PRESENT: Dean Au, Gilbert Aguinaldo, Michelle Galimba, Dennis Lin, Joseph Clarkson, Thomas Raffipiy, John Replogle. ALSO IN ATTENDANCE: Dalilah Schlueter, Esq. (Counsel for the Leeward Commission), Malia Hall (Counsel for the Windward Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Zendo Kern (Planning Director), Jeffrey Darrow (Deputy Planning Director), Maija Jackson (Planning Program Manager), Christian Kay (Planner), Tracie Lee Camero (Planner), and Noriko Sauer (Leeward Planning Commission Secretary). In preparation for Energov launch, review, and action on proposed amendments to Planning Commission Rules related to intake procedures and processing of applications submitted to the Planning Commissions for recommendation or final decision and non-substantive housekeeping rule changes. Secretary's Note: "- - -" indicates indiscernible speech due to internet/technical difficulties or simultaneous talk. REPLOGLE: So, we have discussion of the Planning Commissioners suggestions for future amendments to the Planning Commission Rules of Practice and Procedure. Discussion only. If the discussion appears to go beyond 11 and if you find it appropriate you might consider scheduling another meeting to continue the discussion. Staff will assist throughout this item. I have set my clock or my alarm for 10:30 because I want to make sure we have enough time to allow the Windward excuse me Leeward Planning Commission to have their meeting, which is supposed to start at 11 and they may have testifiers on items they are taking up. So, at 10:30 I'll give a heads up and we're going to wind it down so they can get their show on the road. Any objections to that? DARROW: Just so were clear Mr. Chair— REPLOGLE: Yes. 1 EXHIBIT B (DRAFT) DARROW: —right now, we're working the rule changes, correct? And then after we finish the rule changes, we'll go into discussion of future possible rule changes. REPLOGLE: Okay. DARROW. You have 2 agenda items on today's joint— REPLOGLE: Thank you, I missed the whole page. DARROW: —Thank you. If you'd like we can briefly touch upon Cory Harden's suggestions that way, we can address those and then we also did receive comments from Commissioner Clarkson as well. And then we can also address any other concerns or questions that other Commissioners have. REPLOGLE: That sounds like a plan. DARROW: Zendo, did you want to talk about that? KERN: Um' no, I was thinking about it, I feel like everybody's been briefed of this because we've come through with the rule changes for Chapter 25 and 23 so, this is all in the same regard of the EPIC system or otherwise known as the Energov system moving into digital format, digital applications. So, everything that we're seeing here in the amendments is basically housekeeping through that so, I believe everybody's pretty aware of it, and probably utilize the time more in conversation unless Commissioners feel otherwise and would like a further briefing on what this is about. REPLOGLE: Okay, Mr. Clarkson? CLARKSON: I'd just like to follow up with Corey Harden's concerns and have the Planning Director or someone from the Department clarify whether paper copies will be accepted at all. And if so, under what circumstances. KERN: Yes, I can answer that. So, it's kind of a multi-part transition to being digital. The first part is up, launching the EPIC System and taking on online applications and trying to have majority of our communications be digital. So, that's going to be a requirement for new applications that's fixed. But we are dealing other correspondence coming in, it could be a testimony, it could be a letter, it could be something else that's related to some other permit. At that time, we would take those in, and we would scan those into the system and upload into the EPIC System. Down the road more probably at the end of this year or beginning of the next we will be moving into pretty much accepting only "digital copies"but there needs to be a longer transition around that. But for right now, if somebody did come in with a as Ms. Harden said with a written testimony. We would accept that at the desk, and we would just scan it in. Just like we're going to have other mail coming in, etcetera. Does that make sense Commissioner Clarkson? 2 EXHIBIT B (DRAFT) CLARKSON: It makes sense, but I have severe objections to that. I think we should always be willing to accept one physical paper copy and I think the Department and local government in general would be well advised to not rely entirely on digital communications. Especially for important records about land use planning permits and other legal documents which I personally believe should be securely stored somewhere in physical form rather than exists only in the cloud or on servers within the County internet network and digital network. So, in follow up to that if you're truly migrating or even beginning to accept copies of applications only in electronic format then you have to go through all of these yellow highlighted things. I mean right here, general definitions, copy or copies means both physical media or electronic media. So, if our Rules say that you only have to submit one copy and somebody brings in a paper application, we have to accept it according to that definition. REPLOGLE: Yes, Ms. Yates? You're muted. YATES: Okay, I'm okay now. I have to agree with Commissioner Clarkson. I agree that we should be a little bit more lenient because not everybody has the capability of doing things digitally or even the know-how of doing it. So, I have to agree with Commissioner Clarkson. KERN: So, to speak to that I think— HALL: Sorry,just real quick, sorry Zendo, let me jump in. Point of order. Can we stick to questions right now and then we can get it into discussion once a motion is made on the amendments, so please stick to questions at this time, thank you! REPLOGLE: Sounds good. Mr. Van Pernis? You're muted, I think. You're muted Mr. okay. VAN PERNIS: Okay, thank you. Question along the line on what the testifier said about bankruptcy. Being a retired attorney, it's my understanding of bankruptcy is that it can be filed either before or after an application is made to the Planning Department. At least half the time and not more the project that is in bankruptcy does not go forward. So, I wonder why the removal of bankruptcies is excuse not to grant the approval is included. KERN: Regarding that provision the fact when we moved out of getting the, requiring the tax clearance certificate we asked the Finance Director how they would like the language to be written in there. So, that's what they said. There are certain unique circumstances where there could be a bankruptcy in the Court would order the property taxes be stayed, yet the application would still need move forward. There is multitude of circumstances in that way, so this just gives the latitude that the Finance Director felt was prudent for the situations that occur from time to time is very rare. She did testify to this as well at the County Council last week, so, this is based on her direction not from the Planning Department, this is coming from the Finance Director. REPLOGLE: Okay, anything else? Yes, Mr. Van Pernis. 3 EXHIBIT B (DRAFT) VAN PERNIS: The Planning Director I think was still advised to accept that testimony and accept their recommendation. In most bankruptcy cases the project does not go ahead. So, my question— REPLOGLE: Excuse me, one moment. Yes, Ms. DeFranco? You're muted. You're still muted. Go ahead Mr. Van Pernis. VAN PERNIS: Thank you. Can I be heard? Am I heard? DARROW: Yes. REPLOGLE: Yes, yes, your heard. VAN PERNIS: Thank you. DEFRANCO: Sorry, I went offline. But I think that, I think right now we are at a point of asking questions, not making comments, or having discussions. Is this correct? Am I, so, what is happening now is please ask your questions, then they are going to be answered, this isn't a point of discussion or comments or viewpoint, is that right? SCHLUETER: That's correct. REPLOGLE: It's my understanding and the Planning Director has answered Mr. Van Pernis's question. DEFRANCO: Thank you. REPLOGLE: Do you have another question Mr. Van Pernis, or do you wish to move along? Okay, anybody else? Mr. Clarkson? You're muted. Okay. CLARKSON: Yes, I have a question for our Counsel, Ms. Hall. When matters go from the Planning Commission to the Courts, what is the format of the record, what format are the documents that goes to the Courts in? How do they receive the substantial records that might go to an appeal? HALL: The Courts are doing E-Filing, so, we do send electronic files. The Record on Appeal is usually very voluminous, they do not want boxes of transcripts, so, yes, everything is done electronically. CLARKSON: And that's in, image format or a PDF or what kind of files are they? HALL: Usually PDF. CLARKSON: And how are those generated? HALL: What do you mean by generated? 4 EXHIBIT B (DRAFT) CLARKSON: Well, I mean, what is the procedure to convert all of the current paper documents— HALL: Oh, scanning. CLARKSON: — into PDF's for transmitting to the Courts. HALL: We scan in documents. CLARKSON: We meaning the Department or the legal Counsel? HALL: The Department. Usually, the Commission Secretary and the Department puts together the record. CLARKSON: So, is it true, then, the Department has the ongoing and as always had the capability of converting paper documents to electronic format? HALL: I cannot speak to always, Commissioner,but in my recent recollection there has been a scanning capability, yes. CLARKSON: Thank you. REPLOGLE: Mr. Lin? LIN: Question for Director Kern. So, curious on, is there going to be a document for the public informing them of what defines "an electronic copy". So, it is a PDF, what type of file format is acceptable? Because right now, it says at the discretion of the Planning Director, as well as a digital signature. What defines a digital signature? Is it a scanned signature versus other people who use different programs that has an encrypted signature, will there be a document explaining that to the public? KERN: Yes, there will be. We have it prescribed right now as PDF documents. We did want to have the latitude within the rules as things change, the rules need to be somewhat dynamic because we don't know what could be in five years, but right now it will be prescribed as PDF. An electronic signature would be that or whether it was a scanned in signature or a Docu Sign or the like. Does that answer your question Commissioner? REPLOGLE: Okay, Mr. Van Pernis? You're muted, okay. VAN PERNIS: A further question of the Planning Director. I understand that he's taken bankruptcy out of the picture. Upon the testimony on the recommendation of the Finance Director concerning taxes. Has the Finance Director have an opinion, or has he gotten legal advice that the bankruptcies have much more than dealing with taxes as the economy is in a bad situation eliminating bankruptcy isn't an excuse. 5 EXHIBIT B (DRAFT) KERN: The language has been vetted by the Finance Department as well as Corporation Counsel. REPLOGLE: Thank you. Anybody else? Yes, Ms. Galimba? KERN: "- - -" and Mr. Raffipiy as well. GALIMBA: Yes, I wanted to ask if it would be fair to say that the amendments that we will look at today are entirely of the nature of adding electronic media rather than taking away certain physical media. Would that be a fair synopsis of what we are looking at today? KERN: I'd say that's a fair synopsis, I don't believe we are taking away we're adding a lot more inclusion with that ability then we will be able to refine down into how we are going to be accepting digital applications. But it's still like let's say, we have a letter that comes in or some other piece of a paper copy, we still are going to accept that for the time being. But it gives us the latitude that we need. Yes. GALIMBA: Thank you. KERN: Thank you. REPLOGLE: Anybody else? KERN: Mr. — REPLOGLE: Mr. Raffipiy? RAFFIPIY: Thank you Mr. Chairman. The question is, will the County keep or print a printout and save a hard copy of all the documents that are submitted electronically? Or we will have everything electronic and saved in the cloud or on the County server? KERN: We will be moving towards all digital. So, these cases when an application is submitted through the EPIC system that will not be printed into hard copy it will go into some redundancy backups as far as like Laserfiche and repositories. So, it's not all going to be sitting on one system, there will be multiple backups so, I can get into further on other document challenges that we have at a certain point. But, yes, we won't be, but we will be ensuring that it's secured safely digitally. RAFFIPIY: Okay, thank you very much. REPLOGLE: Anybody else? Mr. Clarkson? CLARKSON: I just would like to ask a question if this system is in addition to existing capabilities of the public to follow up on Commissioner Galimba's question. Why does every email from the Planning Department now indicate that after July 26h only electronic applications will be accepted? 6 EXHIBIT B (DRAFT) KERN: Because that is the case, applications for Planning documents will only be accepted in a digital format through the CSS system, through the EPIC system. That doesn't mean that a letter coming from the State right now or a piece of testimony that was mailed in we will still accept that currently in its paper format and will then intake that in its own way. But, specifically for applications all those will be coming in digital. So, through the rules it gives some flexibility so we're not just saying, everything has to be digital right now. As far as other correspondence so it gives that flexibility that's needed but it is stated and known that applications will only be accepted in a digital format. REPLOGLE: Mr. Lin? LIN: Just to comment on your remarks there Director Kern. So, as a service to the public if they do not have access to a computer and a scanner the Department will help scan that document? KERN: So that's where the, I think, we will have self-serve kiosks in the West Hawaii office and the Hilo office for folks to be able to go in log into the computer, log into CSS. The scanning side of it though, we will not be providing scanning services we will have a list of places that folks could get their documents scanned and then they could come in with their flash drive if they needed to and put those into the computer, into the kiosk and upload it into the system. So, similar conversation that we had around this at the Board of Ethics, excuse me, Board of Appeals. Was that applications come in and they are generally a minimum of 5 copies, 10 copies, 20 copies and that means that somebody had to go and generally fill something out, go to a printer, at the bare minimum fill it out and go to a printing station and print out anywhere between 20 and 200 to 400 to maybe 1,000's of pages of copies. And if the person is capable of doing that, and they'll be doing the same thing of scanning the documents in there so it's very similar, we're just not taking the paper. So, again, if you are going through that process, you're going to be able to get it scanned and we will be able to provide again those kiosks for people to utilize, but the scanning we can't do. We'll have a list whether it be Office Max, etcetera of all the places that we know that could be scanned and we will have people there to help them at the kiosks and show them how to do it will be very facilitating. Just like if somebody came in with one copy right now, and so they have this application filed out and the requirement was say 10 copies. We wouldn't make those copies for them, we would say, "this application is incomplete right now, you will need to go and get your copies made and then bring it back with the complete application:". So, it's similar with the scanning. That make sense. LIN: It does, but I just see it from a customer's perspective. That's it's going to be upsetting or frustrating if they're going to the counter, that's just my comment. SCHLUETER: Just one more reminder, we're still in the fact-finding section, we are not opining and discussing yet, you'll have that opportunity shortly. REPLOGLE: Thank you. Mr. Clarkson? 7 EXHIBIT B (DRAFT) CLARKSON: So, I just want to ask one more question for clarification. So, the Planning Department will accept a scanned image document of a handwritten application? KERN: Yes. CLARKSON: That's quite in question format. KERN: Yes. REPLOGLE: Thank you. CLARKSON: Thank you. KERN: Yes, if it was handwritten, handwritten out and then scanned into a PDF and uploaded into the system, you are in good shape. We will also have fillable forms as well. REPLOGLE: Mr. Darrow? DARROW: Thank you Mr. Chairman, I just wanted to take this time it seems like the Commissioners had enough opportunity to ask questions. We did receive several correspondences regarding suggested changes so, if I could kind of focus back on those and then working with our Corporation Counsel, we have a suggestion or two that we'd like to also include as part of it. And this is in response to some of the comments that we received going through the changes that the Board of Appeals for their rules similar to these rule changes. We've talked about it a lot and we've gone through several meetings discussing this one section regarding bankruptcy. The whole intent of that particular section is when the Planning Department can or cannot or will not accept an application. So, if real property taxes are not paid on a property, we won't accept the application. But we have been informed by the Finance Director that there are certain situations where they do not have to pay their taxes. One of them is when the bankruptcy Court holds it in stay and she just said use other similar models, but it had to do with other legislative actions. She just asked to keep it general because she couldn't be very specific on that. We would confer with her if a particular applicant was going through a legislative action or a legal action that stayed any real property taxes so that we could move forward with the acceptance of that application. In regard to bankruptcy, we've had a recent case where that happened. In a bankruptcy Court a particular applicant was stayed on paying their real property taxes, we were able to accept the application moving forward. Corey Harden had requested why the change from 30 to 40 days for minutes. We're being reflective of what the State law is in HRS 91-9.5, I'm sorry, yes, I believe that's it, 91-9. It changes it from 30, it's now 40 days legally that the Departments or the Counties have to place the minutes online. In regard to a request of placing audible files on the internet or available to the public currently because of Zoom and because of our recording of YouTube, we are able to do that, so that is already available. When a meeting is recorded after we are done with it, it's uploaded to YouTube, and somebody can go there and review the audible and visual files for that particular 8 EXHIBIT B (DRAFT) meeting. Let's see, there was one suggestion across the board that we agreed with at the Board of Appeals that we'd like to propose to the Planning Commission and that is when we were making this change, we were focused on removing the reference to "copies". So, we kept the language original and whatever it was. They suggested removing the term "original" and just referring to that particular document. So, where it would say an "original"with the deleted reference to copies of any written communication. We would just say, "any written communication" and delete the term original or if it said, "the original application"we would delete "the original" and just put"the application". So, if the Commission is okay with that, the Department staff can go through and any reference to "original"just refer to that particular document. That was one of the changes that we'd like to be consistent, not only with Board of Appeals but just across the board. Lastly, our Corporation Counsel Jean had a suggestion in reference to I believe 4, Rule 4-30, is that correct Jean? CAMPBELL: Yes. Rule 4-30 addresses the certain decisions and order from the Commission and we're viewing this as the equivalent of a court decision. Currently as Malia noted, most court documents are received electronically and then put out electronically. So, if we were, if the Commission were a court rather than a Commission, the court order, the court's decision at the end of the proceeding would be submitted electronically to the parties. And so, rather than require personal service of Decisions and Orders we would like to suggest that Section 4-30 would read "Decisions and orders shall be provided as certified copies to the parties of record. When a party to a proceeding has appeared by a representative, service upon such representative or counsel shall be deemed to be service upon the parry." So, we would delete the middle sentence there, that requires either mail or personal service and this would allow the Commission to conclude its proceedings by sending its Decision and Order out electronically. Which is consistent with the way the Courts are doing in Hawaii these days. DARROW: You had also mentioned Jean in your email to add the word"as" and "or". CAMPBELL: Yes, as I read it. So, it would be "Decisions and orders shall be provided as certified copies to the parties of record". And the middle sentence is stricken. The final sentence reads" When a parry to a proceeding has appeared by a representative, service upon such representative and instead "of counsel" it would read representative or counsel shall be deemed to be service upon the parry". So, we thank Corey for her addition of the word"as"that clarifies that and then we're essentially correcting a typo to change "of'to "or". DARROW: I believe that's all I have unless Director Kern if you have any other additions? KERN: No additions, thanks. DARROW: Thank you. REPLOGLE: Mr. Clarkson? CLARKSON: Yes, I have a question, why the reference to applications and bankruptcy is in the rules at all. I mean, why should it make any difference whether a person is paid or not paid their 9 EXHIBIT B (DRAFT) property taxes or is bankrupter is not bankrupt? Why can't the Planning Commission just accept all applications that are complete? KERN: So, one of the requirements for that, as it currently reads is that the applicant needs to provide a property tax clearance certificate from the Real Property Tax office and that comes in a paper format, and they pay a dollar for it. So, our requirement is that people have their property taxes paid in full before an application would be accepted that way, they are in compliance with that. But again, as Jeff mentioned, and we mentioned earlier there are the exceptions and there's occasional time where that's not possible by way of a court order or something like that. So that flexibility needed to be in there. But this has been standard practice for all the years, every application that you folks have seen pretty has always made sure that there was a tax clearance certificate. But, by moving digital we did not want to require them to go to the Real Property Tax, go through the process in getting a paper copy and a tax clearance certificate and then having to upload that. Our staff will just review their property taxes and say "yes"you're current or if you're not we will then respond back to the applicant saying, "your property taxes aren't current, please get them current before we can accept the application". Does that make sense? CLARKSON: Well, I understand that it is a long-standing requirement but, I'm just trying to get at the root of that requirement. Is that something required by County Code, State law. I mean, why is it in there and why should it be in there? I understand it's been in there for a long time but why can't we just remove any reference to bankruptcy or tax that is being disqualifying? KERN: I'll let Jeff or Corporation Counsel speak to where it's embedded, but from a practice standpoint I think people should be current on their property taxes before they are applying for an application to do a Change of Zone or a Special Permit or a Variance or anything like that unless there's this special circumstances. REPLOGLE: Sounds good. JACKSON: That is based out of County Code, the Zoning Code requires it. DARROW: As far as Joe, what was the original reason why the Council had included that as a requirement for applications to be accepted. I would just guess it's to make sure that they are paid up with real property taxes so that we can make sure that us approving whatever requests that they're using that they are up to date on everything that they need to be doing as far as paying taxes. CLARKSON: Well, thank you especially to Maija for getting at the root of the reason why that requirement is in there. If the County Code requires that then, of course you have to go through what you are going through to prepare for exceptions. REPLOGLE: Okay, may I ask a question? I would like to follow up on what Mr. Lin was talking about in regard to some people not understanding the new system or not being electronically savvy and I know you say you'll have your kiosks offering all the help and guidance so, people can do these applications. I'm wondering if you'll be providing a form of a cheat sheet, as it were, where you could give them a paper and it would mark it out like say, 10 EXHIBIT B (DRAFT) "they need to do electronic copies" listed next to that places that it can be done and so on and so forth. We should do everything I feel we can to facilitate people being able to learn this system, make it user friendly. KERN: Yes, and to speak to that. We'll have frequently asked questions, we have resources there that they can actually click on links as well as videos guiding them to the process on how to sign up for CSS, how to submit an application. So, we have various resources that a person could do because some folks will be doing it from home, and it'll be foreign, and they don't necessarily want to come down and go through the kiosk. We're trying to make sure that we have ample resources for somebody to navigate that through and I think the simplest one would be some of the videos that we have showing people how to do it. REPLOGLE: Okay. Thank you. Miss Yates? YATES: The kiosks going to be located in the Planning Department or in the County offices? KERN: There will be kiosks for Planning, we'll have 2 kiosks in the West Hawaii Planning office, so when you come in the door there'll be 2 there on the other side of desk on the public side of the desk. And then in Hilo as well, we'll have 2 sitting on the public side of the desk more on the side of DPW or towards the State Building will have an area over there so can still be working on serving people at the desk but there will be a separate space with 2 of those for folks to be able to utilize. YATES: So, there will be someone there to help in case they needed help? KERN: Yes. YATES: Okay. KERN: There will be, and the Department of Public Works is going through the same process we are, and they will also have kiosks for folks that are working with them. YATES: So, are you going to have specific hours when because I mean, I'm not really sure that someone's going to always be available or are your planning to always have someone available to help in case? KERN: Yes, well I would say at normal practice we usually have 2 to 3 folks up front to assist customers right now when they come in and that would be the same practice now and, in any case, sometimes folks have to wait if there is a big influx of people coming in. But, yes, we will always have somebody available and in certain cases when we are short staff, we'll have planners from the back come up and work on the front desk as well. So, generally speaking we always try to have at least 2 people up on the front servicing customers. YATES: Okay, thank you. KERN: You're welcome. 11 EXHIBIT B (DRAFT) REPLOGLE: Are there any more questions? I guess it would be time to move on to new business. KERN: You need a motion? REPLOGLE: May I have a motion to move on to new business, please. DARROW: What we're hoping is to get a motion to be able to approve the rule changes. KERN: As amended, as you stated. DARROW: As amended, yes. HALL: Sorry, Chair. REPLOGLES: Yes. HALL: I need a five-minute recess because I need to confer with my fellow counselors. There may be a requirement that we need to repost for thirty (30) more days before these rules can be adopted if we are adding amendments to what was originally posted. But, let me go take a quick look at that, everybody can take a nice little break and we'll be right back. REPLOGLE: Okay, we'll see you all in five minutes. HALL: Thanks. At 10:27 a.m. the Chair called a recess and the hearing reconvened at 10:34 a.m. HALL: Alright, thank you for waiting we just wanted to double check on a few things. Yes, so right now, the emergency proclamation has suspended 91-3 which would usually require a certain rule change to be reposted for another 30 days. But because we have agendized this correctly and posted for 30 days you are allowed to move up with your non-substantive amendments. REPLOGLE: Okay, thank you. So, question, are we going to vote on these said amendments now? DARROW: We would appreciate that. REPLOGLE: Okay. HALL: Yes. REPLOGLE: I will accept a motion if there's no further discussion, Mr. Clarkson? 12 EXHIBIT B (DRAFT) CLARKSON: Yes, I have a question as to about Rule 2-1, Initiating of Rulemaking Proceedings. Did the Department pay it's non-refundable filing and processing fee of five- hundred dollars? DARROW: The Departments are exempt. REPLOGLE: Okay. CLARKSON: Well, then that should be an amendment to these rules then, because the interested person or agency has to pay the fee. Where does the fee go anyway? DARROW: I believe it goes in a general fund. An agency could be a private agency as well but when it comes to County agencies; Department of Parks and Recreation or Public Works or Planning they are exempt from having to pay the filing fee. CLARKSON: Shouldn't that be in our rules? DARROW: That would be good to discuss in our future rule changes. REPLOGLE: Okay. I would be happy to entertain a motion to move forward here. GALIMBA: I will make that motion so that we can move on to the next step, yes. REPLOGLE: Second? It's been moved by Ms. Galimba, seconded by Ms. Defranco, yes, no? DEFRANCO: I think that the motion has to be put forward with the amendments. So, you need to state that motion a little bit and then we can second it. So, you would say something like I move that the application to amend the Use Permit number 05-001 is that where we are? No, sorry. I'm sorry, but you have to cite it and then state with the proposed amendments and then you can get the second. GALIMBA: So, since we're at it, let me get clarity then. On the amendments that we're discussing, so there's the amendments that were published and there's the amendment that Ms. Campbell read into the record I believe. Are we contemplating having that amendment to our amendments be what we decide on today? DARROW: As well as Commissioner Galimba, as well as the just clarification that instead of keeping the word "original"that we just reference that particular document throughout the rules. And again, this was something that was brought out at Board of Appeals, and everyone agreed that was more practical. GALIMBA: I see, there seem to be very much sort of a housekeeping measure, a clarity measure. The other amendment, I kind of forgotten already what that was about. Could we restate that other that language again? CAMPBELL: Yes, are you looking for the revision to Rule 4-30? 13 EXHIBIT B (DRAFT) GALIMBA: Yes, thank you. CAMPBELL: The revision to Rule 4-30 which is Service of Decisions and Orders; would now read "Decisions and orders shall be provided as certified copies to the parties of record. When a party to a proceeding has appeared by a representative, service upon such representative or counsel shall be deemed to be service upon the party". And so, the middle sentence of the existing Rule 4-30 is deleted. GALIMBA: Okay. REPLOGLE: Ms. Yates? YATES: I'm a little confused. What are we voting on or what is the amendment? Are we doing portions of rules and practice and procedures or the whole thing with all the changes? I'm confused. KERN: So, we submitted the proposed rule changes that are spread around the entire the rule documents that you folks got so, that's the primary reason for the hearing and that we'd be voting on. That being said, there was some things that came to our attention such as the changing the "original"to "application" or what Ms. Campbell said. So, it's just a housekeeping within this overall rule change that we're working on. So, if you folks are okay with those minor housekeeping changing "original"to say "application" and then the statement with what Ms. Campbell said. That would just be taken as the entire rule change that you folks are looking at in its entirety. Does that help? AU: Mr. Chair, I can make the motion, if you want me to or if Commissioner Galimba still wants to, if not, I'll make it. REPLOGLE: Ms. Galimba? GALIMBA: That will be fine Commissioner Au, but I have to go research, so I think you got it, got it all squared away so go. REPLOGLE: Okay, Mr. Au. AU: Thank you Mr. Chair, so I move that the Commission approve the amendments to the Planning Commission Rules related to intake procedures and processes of applications be approved, based on the Planning Director's recommendation and the amendments stated by Mr. Darrow and Ms. Campbell. REPLOGLE: Ms. DeFranco? DEFRANCO: I second the motion. 14 EXHIBIT B (DRAFT) REPLOGLE: Okay, it's second. Moved by Mr. Au and seconded by Ms. DeFranco. All those in favor of Mr. Au's— HALL: Sorry, Chair, we need a— REPLOGLE: —would this be a roll call vote? HALL: Yes. REPLOGLE: Or we have to have discussion? HALL: Oh, yes. CLARKSON: Yes, I have a— REPLOGLE: We're going to— CLARKSON: Chair Replogle. REPLOGLE: Please, Mr. Clarkson? CLARKSON: Please don't be so disheartened when I raise my hand, We're like "- - -" sound. Less disheartened. I unfortunately, I'm going to vote against this motion because I think there are just numerous ambiguities throughout these proposed amendments that should be clarified as to exactly when physical copies. Remember copies can be physical are accepted, and when only electronic copies are accepted, and that is not at all clear to me in reading these proposed amendments. Perhaps, definitions need to be included for written, definitional changes for copy need to be made. But as far as I'm concerned there's so much ambiguity here that a person reading these proposed changes would not know when they could and could not submit paper or would have to submit an image file. That's my comment. REPLOGLE: Thank you, Ms. DeFranco? DEFRANCO: Yeah, I really appreciate how extensive this is and that we've had a lot of comments on it and that you're providing the kiosks for people that don't get this and I don't think it's much different than going in there and having to get 20 copies of everything. We're just not doing that anymore. I feel we can move forward, and I think the quicker we can move forward, the quicker we can have progress in the backlog of the Building Department and the Planning Department and our community. We need just to get this in place so that we can move forward, so I think that with the housekeeping that's being done and maybe there's a few words that I agree need to be changed. But I think for the most part it's pretty clear what it means and how to do this. So, for people that don't understand how electronics are, I think that having your people there at the kiosk to help them go get it on a zip drive or whatever they need to do that we can move forward and save trees or however you want to look at this. All of this paper that we have. If you try to get background of years ago, they don't have any of those records anyway, I 15 EXHIBIT B (DRAFT) mean we are much safer having our records electronically backed up, then we are asking them to keep volumes of things. Anyway, that's my comment. REPLOGLE: Thank you. Any other comments? Mr. Raffipiy? RAFFIPIY: Thank you Mr. Chairman. I'd like to echo Ms. DeFranco's comment. If you look at the pros and the cons where we are at right now and what we can do to move forward. The backlog for the permits is just horrendous and I heard more out there in the community each not getting the permits on time and have to wait months and months. I suppose the things that we can change, little things like rules perhaps may not be the best rule that we have at this time, but I think as we move forward, we can continue to improve the rules as we progress through this new system. But just to automate things as to relieve the backlog that is there and to serve the community at large, the projects that are impacted, the lives that are impacted because of the backlog that we have in our county system the permit approval. I think I would have to vote to approve these amendments simply to just help out not only the county but also help out the community members whose projects have been hampered by the manual process that we have. Thank you. REPLOGLE: Thank you Mr. Raffipiy, anybody else? Ms. Galimba? GALIMBA: Alright, yes, I think that Commissioner Clarkson's points are very well taken, however, one of them being that we need to be sure that there is reasonable access for people who are less electronic media savvy. So that, through follow through on the department is really important. That it be ongoing, into perpetuity that we have that capacity to help people get their applications into an electronic format and a second point that it is unclear when it will not be acceptable, it should never be not acceptable to communicate in paper, really. It's just a matter of how we help people to get it from paper into electronic format and to the third point, which I think is implicit in what Commissioner Clarkson is talking about is sort of becoming as an administration too dependent on electronic media. Such that, if the internet goes out, we're all completely hopeless and we can't function at all. So, I think that risk and that sort of what they call Enterprise Risk nowadays is a serious issue and we need "- - -". The County and the Planning Department should have plans in place to deal with that kind of eventuality. With that being said, I also see that benefit of having electronic applications being the dominant mode and not having to put everything into 20 copies with one electronic copy is a lot more efficient than 20. Physical copes having done that myself, so I think Commissioner Clarkson's points are very valid and should be taken into consideration. That being said, I will vote to move forward but, I don't think we should sweep those points under the rug in any way, shape, or form. Thanks. REPLOGLE: Mr. Lin? LIN: My concern would just be if the County has been discussing with all the different vendors, or the locations, that you will be sending people to make scans. What they expect right, because if there is a line at Office Depot to make a scan of blueprints or that kind of documents and every place else has a cue to do the same. How does that effect how we are going to be running the 16 EXHIBIT B (DRAFT) Planning Department if nobody can get their stuffs scan or there's going to be a delay at all of these different locations. That's just my concern. REPLOGLE: Thank you, Mr. Van Pernis? VAN PERNIS: Thank you. REPLOGLE: You're muted. You're muted again. VAN PERNIS: Am I heard now? REPLOGLE: Yes, I can hear you now. VAN PERNIS: I believe kind of needs to move into the digital age time over this However, I don't really understand all the motion and all of the last-minute changes the County wants to make. I also don't agree they all are just housekeeping; I think some of them are various substantiative right down to the application process. So, I think the motion should be in writing so that we all understand it rather than "- - -"to some future write up that's what the motion is which may or not be what we are voting on. So, I think the County should do this homework to better read the motion as something as "- - -"was all the changes including the last-minute changes, thank you. REPLOGLE: Thank you. Anybody else? I will take a motion to end the discussion, no? KERN: You don't need to do that; you just need to call for the vote. REPLOGLE: Okay, I believe this will be a roll call vote? JACKSON: I will take a roll call vote. REPLOGLE: Thank you. JACKSON: Before the vote, I see that Commissioner Raffipiy hand is up again, is that correct? REPLOGLE: Oh, I'm sorry, I missed that, Mr. Raffipiy? JACKSON: Oh, he took his hand down. RAFFIPIY: I'm sorry — REPLOGLE: No, there it is. Mr. Raffipiy? RAFFIPIY: No, no, I didn't think enough last time, thanks. JACKSON: Okay, thank you. 17 EXHIBIT B (DRAFT) REPLOGLE: Okay. JACKSON: So, the motion is to approve the proposed Planning Commission rule changes with amendment to Rule 4-30 as stated by Jean Campbell as well as removing the word"original" throughout the rules and instead refer to "that document"that particular document as stated by Mr. Darrow. With that, I'll take the roll, Commissioner Au? AU: Aye. JACKSON: Commissioner DeFranco? DEFRANCO: Aye. JACKSON: Commissioner Aguinaldo? AGUINALDO: Aye. JACKSON: Commissioner Clarkson? CLARKSON: No. JACKSON: Commissioner Galimba? GALIMBA: Aye. JACKSON: Commissioner Lin? LIN: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: Commissioner Armbruster? ARMBRUSTER: Aye. JACKSON: Commissioner Van Pernis? VAN PERNIS? Abstain. JACKSON: Commissioner Vitousek? VITOUSEK: Aye. JACKSON: Commissioner Yates? 18 EXHIBIT B (DRAFT) YATES: Aye. JACKSON: And Chair Replogle? REPLOGLE: Aye. JACKSON: Okay, the motion carries with ten (10) ayes, one (1)no and one (1) abstain. CLARKSON: So, in the last 90 seconds, can I just have a clarification, then after since this has been approved. Just for example, Rule 6 Special Permits, non-refundable filing fee this would be 6-3 (b). We've substituted something for the word"original". What is actually going to be here for "original" in Rule 6 Special Permits 6-3 (b)? CAMPBELL: In that case, that rule is talking about a petition for a Special Permit will be filed, so the "original"would be the petition for the Special Permit. CLARKSON: So, (b) instead of saying "original" it will say application for Special Permit? CAMPBELL: Or yes or petition for Special Permit. DARROW: Or just a — CAMPBELL: Document. DARROW: Yeah. CLARKSON: Okay, well I'm — DARROW: The application. CAMPBELL: Actually, I think in that case, "- - -"maybe to just have the list, it doesn't need to be anything there, because what that"original" indicated was that it was an original of all of the things in the list. So, the application form itself is actually 7 number 1. So, I think it would just (b) 1 Application Form; Description of property;plot or site plan; in that case `original" doesn't add anything. CLARKSON: Well, my point being that we still don't know we've had a petition for Special Permit, application for Special Permit. No use of the word "original"whatsoever and we've just voted that in and yet we still have no idea what's actually going to be right after the parenthesis (b). I think that we were premature and voting on stuff that we don't really know what it's going to look like on the written page. That's just a final comment, it's almost time for Leeward' s meeting. KERN: I'll speak to that real briefly. I think the intent is very clear on what it is, it's either going to be the application speaking to that particular application. But what we can do, I 19 EXHIBIT B (DRAFT) appreciate everybody's vote in moving this forward so can begin the process. I'm happy, though, Mr. Clarkson to bring this back through with those specific languages and for you guys to look at it and you can take a vote on that again to put that specific language in there. I don't see a problem with that if that would please the Commission. CLARKSON: It would certainly please me to be able to see exactly what we're voting on. GALIMBA: I agree, that would be great. That way we'll know. REPLOGLE: Mr. Aguinaldo? AGUINALDO: I totally agree with our commissioner because he hit it on the nail. We're talking about this, is it we're just saying so, pleasing people because there's multiple areas that says "original". So, with consideration to our Planning Director, if we go back around and vote again later on down the road because I got multiple areas that says "original" in that language. So, like what Joe indicated 6-3 (b) there are areas, multiple areas that says "original". So, are we going to go back around on this? KERN: You know — AGUINALDO: Commissioner, yeah, go ahead. KERN: The intent was to clean it up as how we did for BOA, that came up at the Board of Appeals hearing to clean that up. AGUINALDO: Okay. KERN: Even leaving it as original it still has the same intent, except it's a digital format so it'll be cleaner if we specified what those documents were. I think it's very clear for the record on what the intention is and I'm happy to come back through, like I said and do a quick housekeeping on that to spell it out. But I think the intention is extremely clear if that were a barrier or altered from that, that anybody would be able to challenge that and see that that wasn't the case. So, I think as long as we stay with what the intent is which is what we will be doing. We can certainly clean that up for you guys and apologize about the format. REPLOGLE: Mr. Van Pernis? HALL: Can I just jump in real quick, sorry. Point of order, the Leeward Planning Commission meeting was supposed to have started now. So, you may wrap up your discussion at this point. Is there anybody that would be testifying for the next Commission meeting? JACKSON: Yes. HALL: Okay, are they on yet? JACKSON: No, they are not in the waiting room yet. 20 EXHIBIT B (DRAFT) HALL: Okay, so I guess we can continue until people start to show up for that meeting. At that time, we're going to have to wrap up. REPLOLGE: And when it comes— JACKSON: However— REPLOGLE: —to wrap up its going to happen. Yes, Maija? JACKSON: Malia, we do have applicants in the waiting room. HALL: Okay. JACKSON: Not testifiers. REPLOGLE: So, we should — HALL: Okay. REPLOGLE: —close this up? Mr. Van Pernis? VAN PERNIS: Thank you. REPLOGLE: Make it— VAN PERNIS: Thank you. REPLOGLE: — let it out. VAN PERNIS: I'll get it out real fast. As Ms. Yates said and Ms. Galimba had said. What are we voting on? The intent is one thing. The letter of the law is more important than the intent. So, I think that the intent needs to be finalized in a "- - -"letter. So, I appreciate Mr. Kern willing to bring this back written rather than intent. REPLOGLE: Thank you. CLARKSON: I move that we adjourn. JACKSON: Excuse me, can I say one thing before we adjourn. REPLOGLE: Yes, you may. JACKSON: Item number 2 was supposed to be a discussion of Planning Commissioners suggestions for future rule amendments, and I think we have a few things on our radar. We have changes to the SMA and Shoreline Setback Rule,we have potentially new language that we'd 21 EXHIBIT B (DRAFT) like to add regarding conflict of interest for the Planning Commissioners based on our Board of Appeal rules. And I would also ask that if any of the Commissioners have suggestions for rule changes such as ways to refine wording as Commissioner Clarkson suggested. Please send those to either me or your Commission Secretary and we will work on getting those rule changes before another joint Commission meeting. Thank you. REPLOGLE: Thank you. So, we have a motion to adjourn, and I was looking for a second. We have a second Mr. Vitousek. All those in favor of adjourning say aye. COMMISSIONERS: Aye. REPLOGLE: All those who oppose? The ayes have it, this meeting is adjourned. This item ended at 11:04 a.m. Respectfully submitted, Melissa Dacayanan-Salvador Secretary to Boards and Commissions 22 EXHIBIT B (DRAFT)