Loading...
HomeMy WebLinkAbout2008-02-22 TPDBOA PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT FEBRUARY 22, 2008 A regularly advertised hearing on the PLANNING DIRECTOR’S AMENDMENT TO CHAPTER 25 (ZONING), ARTICLE 2, HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED) REGARDING BOARD OF APPEALS was called to order at 10:40 a.m. at the - Waikoloa Beach Marriott Hotel, Alii I, 69275 Waikoloa Beach Drive, Waikoloa, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: Andrew Iwashita Lani Bowman Takashi Domingo Shelly Ogata Alvin Rho Rene’ Siracusa Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Christopher Yuen, Planning Director And no one from the public in attendance. INITIATOR: PLANNING DIRECTOR Amendment to Chapter 25 (Zoning), Article 2, Division 3, Section 25-2-35, Hawaii County Code 1983 (2005 Edition, as amended) relating to administrative enforcement. The proposed amendment states that “an appeal to the board of appeals shall not stay the provisions of the (planning) director’s order pending the final decision of the board of appeals.” WATANABE: We are now on Agenda Item No. 3; this would be Planning Director initiated amendment to Chapter 25 (Zoning), Article 2, Division 3. And with that, I’ll turn it over to Mr. Yuen. YUEN: Yes, good morning. Again, this is a matter that we did talk about a little bit at our last meeting. This relates to enforcement. And what happens when there is a Zoning Code violation, the Planning Department will issue a letter typically saying – and in a typical scenario somebody has an unpermitted use going on that, something that’s not permitted in the zoning district – so the Planning Department letter will say, stop doing what you are doing, or if you don’t stop by a certain – and it’ll give a fairly short timeframe, if it’s a stop-doing thing especially, it’ll have a fairly short timeframe to stop – and it’ll say if you don’t stop by such and such a date, then daily fines will commence. It will also say that the person has the opportunity EXHIBIT C 1 to appeal this to the Board of Appeals. The Planning Department is not given absolute power in this; there is a check and balance in that the person can make an appeal to the Board of Appeals and challenge and say what I’m doing is allowed in the zoning district or I’m not doing it anyway, and challenge the notice of violation. So currently the Code says that the appeal stays the provisions of the order. So it’ll also, it operates to stay the fine. So that means that if the person continues doing what they are doing, what with, they appeal and they continue what they are doing, there is no fine until the final action of the Board of Appeals, which typically can be two to three months down the road. And if there’re any delays, then again they just get to keep on with the activity. Now so this proposal is to change the Zoning Code, so it says that the appeal does not stay the order of the Director. Now as a practical matter, this applies really only to the running of fines. So and what it means is that the person would, if the person stops what they are doing, they can still appeal, and if they win, then they can start up again. If they, but, and if they stop doing what they are doing, then they don’t have any daily fines; they don’t accrue. So that’s the choice of the person that’s been cited. If the person wants to keep doing the activity despite the cease and desist order, then they run the risk that they will lose at the Board of Appeals and then the fines will accrue during that timeframe. Our concern about the current situation is that it does create an incentive for the person to make an appeal regardless of the merits because it allows them to continue with whatever they, whether it’s a, you know, they might be operating an auto repair shop in a residential neighborhood, something like that; that gives them two to three months that they can keep doing what they are doing in the violation and not have any consequences while the appeal plays out. So that’s the reason for this amendment. WATANABE: Do we have -? Mr. Domingo. DOMINGO: Mr. Yuen, have you had any occasion where people have been doing this and they somewhat abuse the provisions of the law? YUEN: Yes. DOMINGO: Plenty? YUEN: Yes. Well, from our point of view, yes. You know, we have had appeals where the Department ultimately was successful and we felt that certainly there was no question or doubt that there was a violation. But the appeal happened and the person, you know, continues to operate for several months while the appeal runs its way on the process, and at the end of the appeal the Department is upheld, but the person has operated for several months. DOMINGO: Mr. Torigoe -. WATANABE: Follow-up? DOMINGO: Mr. Torigoe, can you think of any situation, and not specifically only to, you know, these land use matters, in which a law is broken and that, you know, you follow the same pattern that is followed by what this, the present ordinance permits? EXHIBIT C 2 TORIGOE: Mr. Chairman. You know what’s strange is that my understanding is that the City and County of Honolulu has basically the same provision but it says that an appeal -, well, basically it says what the Director wants this to say now; theirs says that an appeal to the Board of Appeals shall not stay the provision. So I think that that’s the general pattern, and what we have here is kind of aberration. Maybe it was a clerical error, you know, where the “not” originally was taken out. WATANABE: Satisfied? DOMINGO: Thank you. WATANABE: Okay. Ms. Siracusa. SIRACUSA: And speaking of clerical errors, we do have one here in the ordinance because Section (c), Nos. (3) and (4) are exactly the same thing; they both read, “Pay a civil fine not to exceed $500 per day for each day in which the violation persists, in the manner and at the time and place specified in the order.” We have it twice. Does that mean that they pay $1,000? So I’m just pointing that out. But I did have a question also. Shall I give you a minute first to look at that in the ordinance? Section 25-2-35, (c), (3) and (4). WATANABE: Yeah, I believe that is a clerical error, yeah? SIRACUSA: So what I’m wondering is, should there only be (3) or was there a different (4) that we don’t have here before us? Because if it just ends with (3), there is no problem; we just say, okay, delete (4). But if there was something else that was supposed to be under (4), then we really shouldn’t vote on this, if we don’t know what we are voting on over there. And then I have a question, but I’ll hold that while -. Shall I hold the question while the Director looks up? WATANABE: Yeah, let’s clear this up first. SIRACUSA: Okay. YUEN: Okay, yeah, you are correct. The bill that’s attached has a mistyping. Okay. What you have attached, (3) and (4) are exactly the same, whereas the actual ordinance which – and we are not trying to change the section of the ordinance – the actual ordinance, (3) is different from (4) in the current Zoning Code. Three is supposed to say, “Pay a civil fine not to exceed $500 in the manner” – which is also probably a, probably should say “matter” – “at the place and before the date specified in the order.” And then (4) has the same reading as here. And so the way it’s supposed to work in the Code is that you can enact a $500 fine under Subsection (c) (3), and then you have a $500 a day fine in Section (c) (4). So you are correct; what you have attached in this is, where (3) and (4) read exactly the same, is a mistyping where (c) (3) has a different wording than (c) (4) in the actual County Code. So we’ll correct that. SIRACUSA: So (c) (3) is supposed to say “matter” with “t,” and (c) (4) is “manner,” or -? EXHIBIT C 3 YUEN: Thanks for correcting that. We’ll make that change. Because that whole section of (c) (3) and (4) is not supposed to change, was not supposed to be changed at all, and it is -. In what you have before you, (c) (3) is put in wrong. SIRACUSA: So (3) is wrong. WATANABE: Yeah. YUEN: (c) (3) is wrong; should read differently -. SIRACUSA: Okay, but that’s nothing that we are going to be voting on, right? We are not voting on anything to do with (3). YUEN: Right. There is no change intended to (c) (3); it’s just that it was typed in wrong in the bill that you have in front of you. SIRACUSA: Okay, so it’s irrelevant for our purposes. Then I go to my question then. WATANABE: Okay. SIRACUSA: Chris, and that is, suppose someone appeals, right? Is there a filing fee to appeal? YUEN: Two hundred fifty dollars, yes. SIRACUSA: Okay, I thought that was it, but I wasn’t sure. Suppose the appellant wins the appeal, is their filing fee also reimbursed to them? YUEN: No. SIRACUSA: So even if they were right in the first place, and the Planning Department was wrong in issuing them the cease and desist and the violation notice, they still have to eat that fee. YUEN: Yes. WATANABE: That is -. SIRACUSA: That doesn’t seem fair. WATANABE: That is -. May I comment? That is not uncommon within our system; if I were to sue you and it was a frivolous suit and you had to defend yourself and hire an attorney, and I basically didn’t have any money, you couldn’t get it back from me, either. So it sometimes costs you money to prove that you were right or innocent. DOMINGO: Or wrong. WATANABE: Yeah. EXHIBIT C 4 YUEN: That’s correct, Ivan, right, that there is no provision for the return of the filing fee in the ordinance? TORIGOE: I’m trying to recall if -. I have some vague recollection that in certain circumstances when one might be able to, but I can’t remember if it was just like a, you know, poverty situation or something like that. We don’t have the Board of Appeals Rules, do we? SIRACUSA: It just seems like, if the Planning Department, for example, was acting frivolously, you know, not saying that you would or you do, but you know, you are not going to be the only Planning Director in the world, and the person really was innocent all along and, you know, where he’s shown to be right, it seems that they shouldn’t have to bear that cost. After all, to use Rodney’s example, if somebody were to sue me for something and I have to defend myself, you know, then I could always have the option of suing them for court costs and attorney’s fees, that sort of thing, right, so, to get back what I needed to defend myself. WATANABE: It’s not uncommon -. ALAMEDA: Mr. Chair? WATANABE: But then again, you know, what you are discussing, I believe is potentially a separate amendment, to another section? SIRACUSA: Because I do support this; I do think we need some teeth here to close the loophole where some really ugly and possibly even hazardous violations are taking place. But at the same time, it seems like if somebody is found to be innocent or not in violation at the very least, it shouldn’t cost them money to have to -. WATANABE: Well, on the other hand, it may be like I -. SIRACUSA: I mean it cost them money in the first place when they file their appeal; but they should be at least be able to recover that -. WATANABE: I understand where you are headed. But it may be in a different statute and a separate amendment that would be required, yeah? And so I’m not sure if we want to go there right at this moment. Mr. Woodward. WOODWARD: Yes, Mr. Chairman. I seem to remember, because I did actually appeal a property tax increase; and my recollection was that if you were successful, that they would refund your filing fee. But that’s honestly neither here nor there because we are not voting on that. We are voting on what we are going to do; these are going to be the Board of Appeals rules, and we have no jurisdiction in that regard. So whether or not it’s fair and what they do, that’s really not something for us to consider. We have to consider what we need to do. And as I pointed out at the last meeting when we discussed this, you know, if the IRS sends you a bill, says you owe more taxes, and you file an appeal to Tax Court, you still have to pay the money. And you know, if you are successful, you get it back. And that’s the way it ought to be here. I mean there is no reason to give people a chance to escape just because they file an appeal. So I EXHIBIT C 5 think this is a clear-cut issue. And the question of whether or not the Board of Appeals gives them their, you know, filing fee back, that’s really not a matter that we can consider. WATANABE: Thank you. SIRACUSA: You are correct. And I thank you for pointing that out to me. WATANABE: Okay. Any further comments, Mr. Alameda? ALAMEDA: Yeah, I just want to say but -, I mean Ms. Siracusa’s point is well taken that we should make a mental note of that; just because it’s commonly done, it doesn’t make it right. That’s all. WATANABE: Mr. Domingo. DOMINGO: Just wondering. Does this apply to the Special Permits also? The collection of fines? YUEN: Yes. You know, in a sense that if we cited somebody for violating the terms of a Special Permit or other approval, we would, they could appeal -. If it was a revocation, we would bring it to the Commission; if we were citing somebody for violating the terms and making a fine, then it’s something that they could appeal to the Board of Appeals, and so then it would apply to this as well. DOMINGO: If it’s a revocation, then if the Planning Commission concurs with the Department, what will then happen with the fines that have been imposed in the past? YUEN: We would, they would stick. Say, what would happen is that we cited somebody for violating terms of a Special Permit and fines are accruing, and then we decided to bring the matter to the Commission to revoke because the Planning Department cannot just revoke the Special Permit; it’s the Commission’s permit. Then the Commission would vote on the revocation. Now that decision, by the way, doesn’t go to the Board of Appeals because only the administrative decisions from the Director go to the Board of Appeals. It used to, appeals from the Planning Commission used to go to the Board of Appeals, but that was changed in the Charter. The appeal from your decision would be to the Circuit Court. Say, if you revoked a Special Permit and the person didn’t like that decision, then they can appeal that to the Circuit Court. WATANABE: Okay, thank you. Any further discussion on this matter? SIRACUSA: I’m prepared to make a motion, if there is no discussion. WATANABE: Okay, it seems like we are ready for the motion then, Ms. Siracusa. SIRACUSA: In the matter of the Planning Director initiated amendment to Chapter 25, Zoning Code, Article 2, Division 3, Hawaii County Code 2005 Edition, as amended, relating to administrative enforcement, I move that we approve -. EXHIBIT C 6 WATANABE: Send a -. ALAMEDA: Second. WATANABE: Favorable recommendation? Send a favorable recommendation, yeah? SIRACUSA: Right, thank you. ALAMEDA: Second. SIRACUSA: I move that we send a favorable recommendation up to the County Council. ALAMEDA: Third. WATANABE: Okay. So it’s been moved and seconded that a favorable recommendation be forwarded to the County Council.Any further discussion? Mr. Hayashi. HAYASHI: Thank you, Mr. Chair. Just for clarification, the typo error on -. SIRACUSA: Right. HAYASHI: The bill that was submitted will be corrected by staff -. SIRACUSA: As corrected. HAYASHI: Yes. SIRACUSA: With the typo error corrected. HAYASHI: Also just to let the Commission know, we are voting on the bill that has a Purpose to the bill; the first one we sent out to you, which was replaced at the last meeting, did not have the Purpose and the Intent. The one that we are adopting today or recommending or considering today has the Purpose included. SIRACUSA: And both of those had that typo? HAYASHI: Yes. SIRACUSA: Yes. HAYASHI: We apologize for that. With that, Commissioner Siracusa? SIRACUSA: Aye. HAYASHI: Commissioner Alameda? ALAMEDA: Aye. EXHIBIT C 7 HAYASHI: Commissioner Bowman? BOWMAN: Aye. HAYASHI: Commissioner Domingo? DOMINGO: Aye. HAYASHI: Commissioner Ogata? OGATA: Aye. HAYASHI: Commissioner Rho? RHO: Aye. HAYASHI: Commissioner Woodward? WOODWARD: Aye. HAYASHI: And Chair Watanabe? WATANABE: Aye. HAYASHI: Mr. Chair, motion carries. WATANABE: Thank you. The discussion ended at 11:01 a.m. Respectfully submitted, Noriko Sauer West Hawaii Secretary EXHIBIT C 8